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County of Lake v. Cushman

OPINION FILED AUGUST 17, 1976.

THE COUNTY OF LAKE ET AL., PLAINTIFFS-APPELLANTS,

v.

CARL W. CUSHMAN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Lake County; the Hon. WARREN G. FOX, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

The issue in the case is whether a poultry hatchery is an "agricultural use," or, stated otherwise, whether the County of Lake can under its zoning ordinance prevent the defendant landowner from building a poultry barn on his 3.09-acre lot in view of the express provision of an act relating to county zoning barring any county regulation, other than set back, of structures used or to be used for "agricultural purposes." The trial court held that it could not. We agree and affirm.

On August 13, 1974, the defendant Carl W. Cushman applied for a permit for the construction of a poultry barn on a 3.09-acre parcel of land located in Lake County. The property in question is zoned agriculture under the Lake County Zoning Ordinance as is all of the surrounding property. Under the ordinance, a poultry hatchery is a permitted use by right in an area zoned agricultural; indeed the ordinance defines agriculture as "the tilling of soil; the growth of any kind, including forestry; the maintenance of nurseries and green houses; the raising of livestock, poultry, and fur-bearing animals; and incidental structure for carrying out the same." However, the permit was not issued because the defendant's property, being only 3.09 acres in size, was smaller than the minimum 200,000 square feet required for agricultural uses by the ordinance. Believing himself protected by the provision in the Illinois Revised Statutes 1973, ch. 34, par. 3151, providing that the powers of the act shall not be exercised "so as to impose regulations or require permits with respect to land used or to be used for agricultural purposes, or with respect to the erection * * * of buildings or structures used or to be used for agricultural purposes upon such land," the defendant proceeded with the building. The footing foundations were poured on August 21, 1974. The building was red tagged the following day by the Lake County and Zoning Department. The defendant had a conference with the department and received no further word in regard to the building until the walls were poured on October 28, 1974, at which time the building was again red tagged. On October 30, 1974, the County of Lake filed the present action against the defendant.

The trial, by agreement of the parties, was an informal bench trial. Many of the pertinent facts were presented in the briefs and attachments to the briefs rather than in the testimony and exhibits adduced at trial.

The defendant's proposed use of the premises would be for the construction of a frame 40 x 40 ft. poultry hatchery with prepainted aluminum siding. The operations would be conducted from February through June. Eggs would be imported from Iowa by truck and placed in incubators. The building would handle 5,000 eggs. Starter food would be purchased. The chicks would be sold, generally to farmers, at two intervals, some at 21 days and the remainder at 6 weeks of age. The operation would be confined completely inside the building. No employees would be hired as only the defendant and his sons would work there.

In the past, the Cushman Farm has consisted of as many as 20 small tracts totaling 79 acres but at present there are only two 3-acre tracts remaining. According to the defendant's trial court brief he actively farmed on the property from 1935 through 1970 and from 1939 through 1961 there was a poultry raising and laying hen operation on the farm. For the past 4 years there has been a garden on the property covering about one-third acre; the defendant intends to double this when the drainage in the area is improved. In the past, the defendant has also planted Scotch Pine seedling trees and Red Pine trees for sale as Christmas trees on the property. Approximately three-fourths of an acre of that planting remained at the time of the trial. The defendant's tractor, plow, disc and other farm implements which are used on the property are stored at the other farmstead.

The property is situated on Fairfield Road, a heavily travelled county highway. The evidence as to the use of the property in the area was conflicting but it would appear that while there are several residences in the area, one neighbor keeps goats, another keeps feeder cattle and harvests hay on an 11-acre parcel, that on another 1,000 laying hens are confined in a barn, and on others crops are grown. There is a horse stable and arena across from the defendant's property.

• 1 Under the provisions of the ordinance any lot less than 200,000 square feet in size in an area zoned "Agriculture" is a nonconforming lot. The only principal permitted use on a nonconforming lot in an "Agriculture" zone is a single-family dwelling; in other words despite the clear language of the statute the ordinance attempts to bar any and all agriculture uses if the lot is less than 5 acres in size. This cannot be done. No rights exist and no powers are conferred with respect to zoning except by statute (People v. Ferris (1958), 18 Ill. App.2d 346, 152 N.E.2d 183), and the county board is bound by the powers, conditions and restrictions contained in the Act. (County of Lake v. Cuneo (1947), 333 Ill. App. 164, 76 N.E.2d 826.) The County argues that the statute is silent as to whether acreage limitations may be imposed on agricultural uses. But in fact the contrary is true. The statute clearly provides that there can be no regulation of any land or buildings used for agricultural purposes except that building or set back lines may be regulated. Nor can the power to impose such a limitation be read into the statute on the theory that the legislature only meant the term "agriculture" to apply to large farms. In People ex rel. Pletcher v. City of Joliet (1926), 321 Ill. 385, 152 N.E. 159, our Supreme Court, at page 389, said:

"* * * The words `agricultural purposes' are descriptive of the nature of the use to which the land is put, (Lerch v. Missoula Brick and Tile Co. 45 Mont. 314, 123 P. 25,) and so the amount of land involved would have no bearing on the meaning of the words. * * * If the legislature desires to limit the application of the words to tracts containing more than two and one-half acres then it must fix the limitation. We have no authority to do so."

• 2 Accordingly, the real issue in this case is whether a hatchery on a 3.09-acre lot can be considered an "agricultural use" within the meaning of the statute generally exempting land and buildings used or to be used for agricultural purposes from zoning regulations by the county. We agree with appellant that the definition of "agriculture" in the ordinance is not binding on the court as to the meaning of the statute. A county board can hardly dictate to the legislature what is the import of a statute nor can it change the import and meaning of the statute by the enactment of an ordinance. The cases cited by amicus curiae are not in point for they involve situations where the definition was in the same statute or ordinance. We can take notice, however, of the fact the county has treated poultry raising as agricultural and has in no way distinguished it from any other agricultural use. As already noted, the acreage limitation was applied to all agricultural uses not just to poultry raising.

The term "agriculture" was long ago defined by our Supreme Court as:

"`Agriculture' is defined as the `art or science of cultivating the ground, including harvesting of crops and rearing and management of livestock; tillage; husbandry; farming; in a broader sense, the science and art of the production of plants and animals useful to man, including to a variable extent the preparation of these products for man's use. In this broad use it includes farming, horticulture and forestry, together with such subjects as butter and cheese making, sugar making, etc.' Unless restricted by the context, the words `agricultural purposes' have generally been given this comprehensive meaning by the courts of the country."

People ex rel. Pletcher v. City of Joliet (1926), 321 Ill. 385, 388-89, 152 N.E. 159; People ex rel. Pletcher v. City of Joliet (1927), 328 Ill. 126, at 132, 133, 159 N.E. 206; definition affirmed, Forsythe v. Village of Cooksville (1934), 356 Ill. 289, 291, 190 N.E. 421; see also County of Grundy v. Soil Enrichment Materials Corp. (1973), 9 Ill. App.3d 746, 292 N.E.2d 755; Oak Woods Cemetery Association v. Murphy (1943), 383 Ill. 301, 50 N.E.2d 582.

Likewise in 28 Ruling Case Law § 11, at 718 (1921), "Agriculture" was defined as including the use of land for any purpose of husbandry inclusive of the keeping ...


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