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Ziemer v. County of Peoria

NOVEMBER 14, 1975.

CLARENCE ZIEMER, PLAINTIFF-APPELLANT,

v.

THE COUNTY OF PEORIA ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES W. IBEN, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Plaintiff Clarence Ziemer brought an action for declaratory judgment in the Circuit Court of Peoria County seeking invalidation of an amendment to the county zoning ordinance which reclassified 5 acres of farm land adjoining plaintiff's farm from agricultural B-3 commercial to permit defendant George Hanlon to build and operate a dance hall-tavern on the premises. Judgment for defendants was entered at the close of plaintiff's evidence, and plaintiff appeals.

Plaintiff alleged two grounds for invalidating the reclassification: (1) that the amendment was unlawful conditional or contract zoning because it was conditioned upon a restrictive covenant limiting use of the property to a dance hall-tavern, and (2) that the ordinance was an arbitrary and unreasonable classification of Hanlon's property because it was "spot zoning."

According to the record, plaintiff's farm is composed of 50 acres of rolling nontillable land, suitable primarily for concentrated feeding of poultry and livestock. The farm is improved with a home, barn and several accessory outbuildings. For many years plaintiff raised turkeys and, to prepare his turkeys for sale, he operated a slaughterhouse and processing plant employing 18 persons. During 1973 and 1974, he discontinued turkey production because of economic conditions, and, at the time of trial, he was engaged in raising hogs and cattle. However, the special purpose buildings for processing turkeys remain on the premises and are not adaptable to other uses. Plaintiff's farm has a 100-yard common boundary with Hanlon's 5-acre tract.

Defendant Hanlon was a country-western bandleader who purchased the disputed 5-acre tract in February, 1974. This land had been used continuously for growing crops and was zoned agricultural at the time of purchase. It is located in a sparsely populated rural area surrounded by farm land. Hanlon proposed to operate a country-music dance hall serving alcoholic beverages, with plans to accommodate 800-1000 people drawn from a 30-mile radius, including Galesburg and Peoria.

He petitioned for rezoning of the 5-acre tract, and, on April 2, 1974, the Zoning Board of Appeals recommended approval, subject to the following restrictions: (1) that Hanlon dedicate to the County of Peoria land to provide a total width of 50 feet from the centerline of Illinois Route 8; and (2) that he record a covenant running with the land incorporating the decision of the zoning board and his acceptance of it.

On April 17, Hanlon executed a restrictive covenant which provided that, in consideration of the zoning board decision to grant rezoning of his 5-acre tract to allow construction of a dance hall and public entertainment facility, he agreed (1) to restrict the primary use of the real estate to a facility for live entertainment, dancing, serving alcoholic beverages and related uses; (2) to waive and prohibit all other uses in B-1, B-2 and B-3 commercial classification; and (3) prior to construction of any improvement, to dedicate to the County of Peoria an area sufficient to provide a 50-foot wide access to the centerline of Route 8. The covenant recited that it runs with the land and is binding on Hanlon's heirs, personal representatives and assigns.

On May 15, the Peoria County Board approved an amendment to the county zoning ordinance as recommended by the zoning board, subject to the same restrictions as noted above. On May 24, Hanlon recorded his restrictive covenant.

Plaintiff appeared as an objector at the public hearing held by the zoning board, and, after exhausting his administrative remedies, he brought this action to have the amendment declared invalid.

At the bench trial, plaintiff first introduced evidence to establish his standing to bring the action by reason of special damage to his property, and then moved for summary judgment on grounds that the county board's action constituted conditional zoning. After ruling that plaintiff had the requisite standing, the court denied plaintiff's motion for summary judgment. Plaintiff then presented additional evidence to show that the ordinance was arbitrary and unreasonable and without substantial relation to the public health, safety and welfare. At the close of plaintiff's case the trial court granted defendant's motion for judgment. Plaintiff has appealed from both the order denying his motion for summary judgment and from the order entering judgment for the defendants.

Plaintiff contends that the restrictive covenant executed by Hanlon, the action of the zoning board, and the amendment adopted by the county board taken together demonstrate that Hanlon's rezoning request was approved in exchange for his promise to restrict future uses to a dance hall-tavern facility, and to dedicate a 50-foot wide strip of land to the county for highway purposes. Plaintiff asserts that such conditional zoning is invalid in Illinois.

In Treadway v. City of Rockford, 24 Ill.2d 488, 182 N.E.2d 219 (1962), the court stated that a conditional zoning amendment may be invalid but expressly refused to rule on that question in the case before it because it had not been raised in the trial court. Instead the court reversed and remanded on grounds that the trial court had exceeded its authority by ordering additional conditions and restrictions not included in the ordinance. The Treadway dispute again reached the Illinois Supreme Court in Treadway v. City of Rockford, 28 Ill.2d 370, 192 N.E.2d 351 (1963), and the court, in its statement of facts, explained that a new ordinance had been passed "without the conditional limitations which were the basis for our prior remandment." (See 63 Ill. B.J. 132 (1974) for a criticism of the Treadway decisions and subsequent cases.)

Conditional zoning was considered in Hedrich v. Niles, 112 Ill. App.2d 68, 77, 250 N.E.2d 791, 795 (1st Dist. 1969), where the appellate court stated:

"Ordinarily, courts cannot inquire into the reasons motivating a legislative body in enacting zoning regulations and may determine only if the legislative body had the authority to pass the ordinance and, if so, whether it is arbitrary and unreasonable or bears a reasonable relation to the public health, safety and welfare. [Citation.] This long-established rule must, however, be balanced ...


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