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Herren v. Zoning Board of Appeals

MARCH 13, 1972.




APPEAL from the Circuit Court of Kendall County; the Hon. ROBERT J. SEARS, Judge, presiding. MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Robert Herren, Robert Gilmour, Joanne Gilmour (hereinafter referred to as the property owners) and Avery Gravel Company (hereinafter referred to as Avery) appeal from a circuit court order affirming a decision of the Zoning Board of Appeals of Kendall County (hereinafter referred to as the Board), whereby plaintiffs were denied a special use permit to mine limestone and rock.

This appeal was originally filed in the Supreme Court, briefs and excerpts from record filed and oral arguments heard. Shortly after oral argument, the Court stated that it had no jurisdiction on direct appeal and, on its own motion, transferred the case to this Court. A motion to strike portions of Avery's "reply" brief was not passed upon by the Supreme Court.

Taken with this case, therefore, is that motion (on behalf of Certain Individual Intervening Petitioners and Defendants who were defendants in the proceedings in the trial court) to strike in part the reply brief filed by Avery. We first dispose of this motion.

As basis for the motion to strike it is stated:

The property owners and Avery have been represented in all proceedings by different attorneys. On June 23, 1970, plaintiffs requested a thirty day extension of time in which to file the appellants' brief, the basis for the request being that the appeal required the coordinated efforts of counsel for both the property owners and Avery, and that the additional time was needed in order to have Avery's counsel examine and approve appellants' brief which was being prepared by the property owners' attorney. An extension was granted and the appellants' brief was filed on August 11, 1970. Despite the representation made to the Court in requesting the extension, on December 10, 1970, after two out of the three appellees had filed their answering briefs, Avery requested permission to file a separate appellant's brief alleging it had interest separate from those of the property owners and that it wished to acquaint the Court with additional points and authorities. Objection was made and the motion denied. However, the Supreme Court then gave Avery leave to file a separate reply brief.

• 1 The "reply" brief which Avery filed is, in all respects, the separate appellant's brief which the Supreme Court denied the right to file. It contains a complete recitation of the facts and argues five points even though all other briefs filed contain only three arguments. Some points are raised for the first time and nowhere is there an attempt made to reply to contentions made by the appellees.

Supreme Court Rule 341(g) (Ill. Rev. Stat. 1969, ch. 110A, par. 341(g)) provides:

"The reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of the appellee and need contain only Argument."

Not only is the "reply" brief a violation of this Rule but it additionally violates the page limitations established in Rule 341(a) [Ill. Rev. Stat. 1969, ch. 110A, par. 341(a)]. Avery states in this brief that "the legal and factual issues * * * in the instant case may have been somewhat blurred" and "(a)s a convenience to the Court * * * Avery takes the liberty in this Reply Brief to restate the nature of the case, the issues involved, the pleadings and the essential facts." It seems apparent that this alleged "assistance" to the court is merely a guise enabling Avery to file a separate appellant's brief. In this instance, consideration of the arguments raised in the "reply" brief does not effect our ultimate determination and we will therefore deny the motion to strike. We wish to make it clear that we do not here set a precedent for the consideration of improper reply briefs and, in the future, no consideration will be afforded reply briefs which violate the rules in as flagrant a manner as does Avery's.

The property owners hold title to a 78-acre tract of land located in Kendall County, said property being presently zoned for agricultural use. They entered into a contract wherein it was agreed that Avery would remove the limestone and rock in an 18-acre area in order to create a lake; that Avery would be compensated for such excavation through proceeds gained from the sale of rock removed from the site and crushed; and that since the sale price of the extracted rock would more than compensate Avery, the property owners would receive 10% of Avery's gross, either in the form of rock or in money.

The land involved being zoned agricultural, it would be necessary that the mining of limestone be accomplished pursuant to section 7.2 of the Kendall County Zoning Ordinance which provides in part:

"The following uses may be allowed by special use permit in accordance with provisions of Section 13.

(a) Mining, loading and hauling of sand, gravel, topsoil or other aggregate or minerals, including equipment, buildings, or structures, for screening, crushing, mixing, washing, or storage, provided that (1) no open pit or shaft is less than three hundred (300) feet from any public road, nor less than five hundred (500) feet from an existing Residence or `R' District established by this ordinance; (2) all buildings or structures, for the screening, crushing, washing, mixing, or storage are located not less than one thousand (1,000) feet from an existing residence or any Residential District established by this ordinance; (3) the entire property is fenced in accordance with Section 4.13 of this ordinance; and (4) a plan of development for the reclamation of the land is provided as part of the application for Special Use Permit. The plan of development shall be accompanied by a written agreement between the owner or his agent and the County of Kendall and a performance bond in an amount equal to the cost of the reclamation of the land as set forth in the development plan."

The property owners filed a petition with the Board wherein they sought the special use permit required for mining. After a hearing on the petition, the Board denied the application for the permit.

The property owners, joined by Avery, filed a three-count complaint in the circuit court: Count I sought administrative review of the Board's decision, Count II was voluntarily withdrawn by the plaintiffs and Count III sought a declaratory judgment declaring certain portions of the zoning ordinance unconstitutional. The Oswego Community School District No. 308 (which owns school property located adjacent to the proposed site) and neighboring landowners (designated as Certain Individual Intervening Petitioners and Defendants) became defendants in the action in that they objected to the proposed special use. The trial judge struck and dismissed Count III, ...

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