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Frelk v. County of Kendall

OPINION FILED NOVEMBER 30, 1976.

CALVIN FRELK ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF KENDALL ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kendall County; the Hon. ROBERT J. SEARS, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The plaintiffs petitioned for a special use permit to allow them to mine sand and gravel on 43 acres of land located about one mile from the Caterpillar plant on Cannonball Trail south of Aurora. The Kendall County Planning Commission approved the proposed use but the petition was denied by the Zoning Board of Appeals of Kendall County and the Kendall County Board of Supervisors. Subsequently, the circuit court, in an administrative review and declaratory judgment proceeding, held a hearing and ruled that the county zoning ordinance was unreasonable, arbitrary, confiscatory, unconstitutional and void as applied to appellees' property. The court further found that the findings, decisions and recommendations of the Zoning Board of Appeals and the Board of Supervisors of Kendall County were against the manifest weight of the evidence. The court held that the real property involved could be used by the plaintiffs for the purpose of mining, excavating and sale of sand and gravel, topsoil and aggregate or minerals, including the operation of the necessary equipment. Lastly, the court enjoined the officers, agents and servants of Kendall County from enforcing or attempting to enforce the Kendall County Zoning Ordinance as applied to the subject property. In making the above findings, the court further ordered that the plaintiffs be restricted by various and sundry limitations imposed upon them, including the completion of the mining operations within a period of five years and creation of a landscaped artificial lake of approximately 18 acres on the premises from which the gravel and sand had been removed. To enforce the provisions of this order, the court directed the plaintiffs to deposit a surety bond in the sum of $20,000, conditioned upon the completion of development and reclamation of the property as indicated in the order.

In their appeal, the defendants contend that the evidence before the trial court was insufficient to support the trial court's order granting the requested special use. They argue that the trial court erred in permitting the gravel pit rezoning upon insufficient evidence on the ground that the same evidence was considered by the Zoning Board of Appeals and the Board of Supervisors of Kendall County when they denied the requested gravel pit rezoning.

The property in question consists of a 43-acre tract which is part of a 120-acre farm owned by the Frelk brothers. The tract immediately adjoining the farm to the west is zoned R-3, one-family residential, but part of it is used for farming; the property immediately to the south is zoned agricultural and is used for farming; part of the property immediately to the north of the farm is zoned agricultural and is being used partly for farming and partly R-3, one-family residence; the property immediately to the east, which is presently being used for farming, is zoned in part agricultural and in large part M-1, Limited Manufacturing. There does not appear to be any coherent plan to the zoning in the area. There is a Caterpillar plant a mile, more or less, northeast of the Frelk property. Because of the Caterpillar factory, Cannonball Trail, which runs along the north side of the property, is very heavily travelled especially at certain times of the day. There are about four houses west of the property on Cannonball Trail, the nearest being 900 feet away. Further to the west there are two small subdivisions; Storybrook Highlands which lies to the south of the road and Willowbrook, which lies to the north. Blackberry Creek runs through Willowbrook. As stated by a member of the zoning board, the area is not very densely populated.

There is a very good sand and gravel deposit on the 43-acre tract which the Feltes brothers, sand and gravel dealers, agreed to mine for a royalty, subject to rezoning to permit such use. The Frelk brothers petitioned for the property to be rezoned either agricultural or M-2, general manufacturing (at the time the property was zoned R-3) with a special use permit for sand and gravel mining. The Zoning Board of Appeals, after a hearing, denied the petition, finding:

"1. That said property is presently zoned `R-3' and is contiguous with `M-1' and agricultural.

2. That there is an excellent supply of gravel within four miles of proposed site.

3. That the roads would not stand this type of traffic.

4. That the increase in traffic due to the operation of this pit at the present time would warrant an objection."

The County Board of Supervisors thereafter denied the plaintiff's petition.

The complaint herein consisted of two counts. The first count sought to have the court declare that the Kendall County Zoning Ordinance, as applied to plaintiffs' property, was unconstitutional and void. The second count requested judicial review of the entire record of all proceedings before the Zoning Board of Appeals of Kendall County and the County Board of Supervisors of Kendall County.

While in form the plaintiffs sought both a declaratory judgment and administrative review, since the trial court was not limited to review of the administrative hearing but received evidence as well, we will treat this solely as a suit for declaratory judgment. Before the trial court's judgment was rendered, the property was rezoned agricultural and the trial court, in its judgment, took judicial notice of this rezoning.

A somewhat concise summation of the testimony before the Zoning Board of Appeals reviewed by the trial court follows. A Mr. Sharkey, the County Superintendent of Highways, testified that Cannonball Trail was a good road of B-5 construction designed to carry present truck traffic. He testified that, while it was not designed for future traffic, the road problem could be worked out at some cost. There was testimony before the Board that the gravel pit would not appreciably affect the level of the wells or the quality of the water in the area. Before the Board, Howard Feltes, who proposed to operate the gravel pit on plaintiffs' property, testified that he operated other gravel pits and that the water in them was not stagnant. He stated that in one the water was 15'-20' deep, was clear and supported fish life. He further testified that there were other depleted gravel pits which contained fresh, clear water. As an example, he cited the Lucky 50 Club, whose gravel pits provides the best swimming in the area. LaVerne Feltes testified that there would be no dust from the mining operation because the sand and gravel would be mined wet, reducing dust, and a blacktop road would be built on the property to eliminate dust from the truck traffic. A Mr. Palmer testified that he has a gravel pit on his property currently being worked by the Feltes. He testified that there is some noise from the operation of the gravel pit but that the dragline is run by a diesel motor which makes no more noise than a farm tractor pulling a plow. Likewise, the crusher would not make any substantial noise as the equipment would be operating below ground.

George Frelk testified before the Board that he could sell the property as farmland for $2000-$2500 an acre but that the value of the gravel operation on the property would ...


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