APPEAL from the Circuit Court of Will County; the Hon. DAVID
E. ORAM, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 19, 1977.
This is an appeal from an order of the Circuit Court of Will County decreeing that a zoning ordinance of Will County is invalid as applied to plaintiff Meyer Material Company property and consequently void as to the plaintiff and, also, finding that a limitation of 80 acres for any one petition for rezoning was also void. The property as to which the validity of the Will County zoning ordinance was concerned comprised 356 acres located in Wheatland Township, Will County, Illinois. The owners of the premises, plaintiffs Meyer Material Company, individually, and Chicago Title and Trust Company, as trustee, applied to the Will County Zoning Board of Appeals in five separate petitions for reclassification of the property from "F" (Farming) to "I-3" (Material Products Plant). In each of the petitions, the Zoning Board of Appeals recommended that the property be rezoned. The Will County Board of Supervisors, however, denied the reclassification.
Plaintiffs then initiated the instant action against Will County in the Circuit Court of Will County and sought to have declared void portions of the Will County Zoning Ordinance, which had designated plaintiffs' property as an "F" zone and that portion of the zoning ordinance which limited each petition for zoning reclassification to "I-3" zoning to an 80-acre parcel. The invalidity of these provisions was alleged and an injunction was also sought prohibiting defendant Will County from enforcing the ordinance with respect to plaintiffs' property. The Village of Bolingbrook and the City of Naperville, both located within 1 1/2 miles of plaintiffs' property, intervened as parties defendant. Adjoining landowners, Robert E. Clow and Harry M. Clow, as trustees under the Robert E. Clow trust, also intervened as defendants. Prior to the trial of the issues in the Circuit Court of Will County, the plaintiffs and the defendants, Will County, Village of Bolingbrook and the City of Naperville, entered into a written stipulation, concerning plaintiffs' use of the property in question, to be effective only upon the court's determination that the zoning ordinance was invalid as applied to plaintiffs' property. After presentation of the evidence, the trial court, in a bench trial, decreed that the zoning ordinance was invalid as applied to plaintiffs' property, and also refused to incorporate in the court decree the stipulation entered into by the parties, and likewise declined to issue an injunction prohibiting Will County from enforcing the ordinance.
On appeal in this court, defendant Will County contends that (1) the Will County Zoning Ordinance designating plaintiffs' property as an "F" zone is reasonable and valid, (2) the Will County Zoning Ordinance limiting the areas to be rezoned to "I-3" zoning under a single petition to a total of 80 acres, is also reasonable and valid, and (3) the stipulation entered into in the trial court is not invalid as contract zoning. Intervening defendants Village of Bolingbrook and City of Naperville joined in the arguments presented by defendant Will County on this appeal, and intervening defendant Village of Bolingbrook additionally argues that the trial court, in refusing to incorporate the provisions of the stipulation into its decree, erred by failing to frame its decree with reference to the record and also erred in failing to shape its order to the facts of the particular case.
Intervening defendants Robert E. Clow and Harry M. Clow have participated in this appeal by filing both an appellant's brief and an appellee's brief. The Clows argue that (1) the trial court's finding, that the Will County Zoning Ordinance, as applied to plaintiffs' property, was arbitrary and unreasonable, is contrary to the manifest weight of the evidence, (2) since the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1975, ch. 93, par. 201 et seq.) establishes exclusive conditions for the surface mining and reclamation of lands, that the additional conditions imposed by the stipulation entered into in the trial court are unenforceable and void, and (3) the stipulation entered into in the trial court is void as contract zoning. In response, the plaintiffs contend that the trial court properly found that the zoning ordinance was invalid as applied to plaintiffs' property, and, also, that the trial court properly found that the 80-acre limitation on each petition for reclassification to "I-3" zoning was invalid, and further that the trial court erred in refusing to incorporate the provisions of the stipulation into its decree.
The record discloses that the Will County Zoning Ordinance utilizes "F" (Farming) zoning as the base or primary zoning category, and that the "F" classification permits 27 types of property usages. A 1963 amendment to the Will County Zoning Ordinance added the "I-3" (Material Products Plant) classification as a single use classification permitting the operation of:
"Any plant, pit, or quarry, where the principal operation or business shall consist of the mining of clay, gravel, fill materials, humus, peat, sand and such incidental processing, screening, washing and loading of same for commercial purposes as may exist." (Will County, Illinois, Zoning Ordinance, par. 1.)
It appears that existing "I-3" zoning classification in Wheatland Township does not exceed 5% of the township area.
At a time, apparently subsequent to the time of the enactment of the Will County Zoning Ordinance, plaintiffs purchased 356 acres located in sections 12 and 13 of Wheatland Township, Will County, Illinois. Plaintiffs purchased 140 acres at $4,700 an acre, 119 acres at $4,900 an acre, and 98 acres at $5,250 an acre. Plaintiff Meyer Material's business includes the operation of two quarries and three sand and gravel mines. In the record, it is noted that in the opinion of Steven Warnke, an officer and employee of plaintiff Meyer Material, there are 10 million tons of mineable sand and gravel and 40 million tons of limestone on the properties purchased by plaintiffs.
Plaintiffs applied to the Will County Zoning Board of Appeals in five separate petitions (none involving more than 80 acres), seeking to have the entire 356 acres reclassified from "F" to "I-3" so as to enable plaintiffs to use the property for the mining and quarrying of sand, stone and gravel. The Zoning Board of Appeals recommended the allowance of each petition. The Will County Board of Supervisors, however, denied the reclassifications sought by plaintiffs.
Plaintiffs then filed a two-count complaint in the Circuit Court of Will County against defendant Will County, seeking to have the designation of plaintiff's property as an "F" zone and the 80-acre limitation on each petition for reclassification to "I-3" zoning declared invalid as applied to the 356 acres of plaintiffs' property. The Village of Bolingbrook and the City of Naperville, both located within 1 1/2 miles of plaintiffs' land, as we have noted, intervened in the cause as parties defendant, and adjoining landowners, the Clows, intervened as defendants.
As a result of pretrial discovery and negotiation undertaken under the supervision of the trial court, plaintiffs and defendants Will County, Bolingbrook and Naperville entered into a written stipulation to be effective only upon the court's determination that the Will County Zoning Ordinance was invalid as applied to plaintiffs' property. The stipulation provided that, should plaintiffs prevail in their cause, the trial court should issue an injunction prohibiting Will County from interfering with plaintiffs' use of the property as described in their complaint. Further provisions of the stipulation involved an agreement to convey certain lands owned by plaintiffs to the Will County Forest Preserve District; for improvement and maintenance by plaintiffs of entrance roads to the plaintiffs' property; for a cash contribution by plaintiffs to the Will County Highway Tax Fund; for payment of a royalty on mined material by plaintiffs to the Will County Tax Fund; and for removal of plaintiffs' redi-mix plant from Naperville. The stipulation also provided for authorization to plaintiffs to operate a redi-mix plant on the premises in question; for restrictions in the chronology of areas to be mined; and for restrictions as to blasting standards to be observed by plaintiffs.
Subsequent to the execution of the stipulation and shortly prior to trial, defendants Clows moved for a substitution of judges. The case was reassigned to a new judge who had not taken part in the pretrial conferences leading to the stipulation. At the bench trial in this cause, the stipulation was admitted into evidence without objection. Testimony at the trial indicated that the existing uses and zoning of properties in the vicinity of plaintiffs' property was primarily agricultural, with developing residential areas, and that the character of Wheatland Township is changing from rural to residential. It was shown that there are three or four quarries existing near plaintiffs' property, and a 100-acre quarry about 1 1/2 miles southwest of plaintiffs' property. A 700-acre quarry was located about ...