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Pettee v. County of De Kalb

OPINION FILED MAY 17, 1978.

GARY PETTEE, PLAINTIFF-APPELLANT,

v.

THE COUNTY OF DE KALB ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of De Kalb County; the Hon. WILSON D. BURNELL, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

This is an appeal from the determination of the trial court that the De Kalb County Zoning Ordinance is not unreasonable as it applies to plaintiff's property and denying his proposed use of it.

Plaintiff, Gary Pettee, owner of the subject property, applied to the Zoning Board of Appeals of De Kalb County for a change in zoning from A-Agricultural District to E-2 Estate Residential District (single-family residences of not less than one acre) and a small area of B-3 Commercial, Wholesale and General Service District under the De Kalb County Zoning Ordinance. In addition, he requested a special use permit for an aircraft landing field, which can be allowed in an E-2 district under the ordinance. On August 21, 1973, the Zoning Board of Appeals recommended to the Board of Supervisors of De Kalb County that plaintiff's application be denied. On October 17, 1973, the Board of Supervisors accepted that recommendation and refused to grant the requested changes in zoning or issue the special use permit. Plaintiff instituted this action against defendants, the County of De Kalb and the Zoning Board of Appeals of De Kalb County on March 12, 1974, requesting that the trial court hold the zoning ordinance, as applied to the subject property, arbitrary and unreasonable and bearing no substantial relation to the public health, safety or welfare and order that his proposed uses be allowed. The trial court entered judgment in favor of defendants and plaintiff appeals.

The subject property is an 80-acre tract located in the southwest corner of the intersection of Derby Line and Lincoln Roads in De Kalb County. Plaintiff purchased the south 55 acres in 1973 for $52,000 and the north 25 acres in 1975 for $38,000. It is currently zoned A-Agricultural District under the De Kalb County Zoning Ordinance, as are the neighboring properties, and is vacant farmland. The proposed use of the property, for which the zoning changes and special use permit are sought, is as a single-family residential development for owners of small aircraft. There would be 36 home sites of an acre or more each and each home would be built with an attached airplane hangar. A common paved aircraft landing field would be located on the property with taxiways running to each house. A lot in the far southeast corner of the property, for which the B-3 district zoning was requested, would be set aside for the construction of a 6,000-square-foot building to contain facilities for the maintenance of airplanes and also for the operation of plaintiff's landscaping business and an unspecified wholesale business.

The plaintiff's evidence consisted of the following:

Wilton L. Battles, a city planning and zoning consultant and real estate broker, testified that he made numerous inspections of the subject property and found that about 20% of it was a low lying wet area unsuitable for farming. As a part of his research and analysis he investigated the trend of developments of the proposed type in the United States and found that there were 44 of them, including 4 in the Chicago metropolitan area. He researched the surveys and plans and other aspects of these four area developments, which are all located in rural, unincorporated areas, and was of the opinion that the proposed development was as good, if not better, than any of them. He stated that there was a need for this type of development in the area as many small airports in nearby urban areas were closing down causing many pilots to drive great distances from their homes to the airports where they keep their planes. In his opinion, the highest and best use of the subject property, consistent with the De Kalb County Comprehensive Plan and the health, safety and welfare of the community, would be the proposed use. It would be compatible with the surrounding uses, which are for farming, and would have no adverse effect on the value of properties close to the site. The additional traffic generated on the roads near this development would be negligible. Figures obtained by Battles from the Illinois Department of Aeronautics revealed that in De Kalb County there were 14 restricted landing areas, 2 heliports, 3 commercial airports, 74 aircraft and 170 private pilots.

James L. Coleman, a real estate appraiser and broker, testified that based on his investigation of sales of surrounding agricultural land the subject property as presently zoned had a value of $1,600 per acre and if plaintiff's proposed use were to be allowed the value of the land would be between $2,000 and $2,500 per acre. He stated that it would not be profitable to farm the subject property in its present condition due to existence of low-lying wet areas. He stated that in his opinion the highest and best use of the subject property would be the proposed development and that it would be compatible with the surrounding farming uses. In Coleman's opinion a hardship would be imposed upon plaintiff if he were not allowed to develop the subject property in the proposed manner.

Hugh J. Cahill, a civil, structural, consulting engineer, testified that he tested the soil of the subject property to determine the feasibility of the use of a septic tank system and found the subject property to be suitable for that purpose. He stated that a well system would be able to provide water to the development and that construction of a three-acre water retention pond proposed by plaintiff on the property would alleviate present drainage problems and serve as a recreational area.

Plaintiff testified that three of the five bordering property owners, as well as several other persons in the area, had signed a petition in favor of his proposed development. A letter admitted in evidence which had been received by him from the Federal Aviation Administration stated that the agency had no objection to his proposed development from the standpoint of safe and efficient use of the airspace by aircraft. He testified further that the State of Illinois Department of Aeronautics had approved his plan although the approval had since expired and he would need to reapply for it.

George Gerlt, a farmer owning property bordering on the west of the subject property, testified that a person could not make a living farming the subject property because there was not enough acreage and there was too much low-lying, wet land. He stated he had no objection to the proposed development. On cross examination he stated that it might be profitable to farm the subject property if it were properly tiled to alleviate the drainage problem.

Walter Naker, a farmer owning property bordering on the east of the subject property, testified that he had owned and farmed the south 40 acres of the subject property between 1950 and 1962 and that, depending on the weather, between 5 and 10 acres of that portion could not be farmed due to the fact that they were too wet. He also stated that he had signed the petition in favor of the proposed development.

Albert Nordman, an excavator, tiling contractor and former farmer, testified that three years earlier he had been called upon to estimate the cost of correcting the drainage problem on the subject property. At that time about 20 to 25 acres were covered with water and he estimated the cost of tiling the subject property to solve the problem to be about $12,000. He stated that the present cost of that work would be about $30,000.

Charles W. Henderson, a pilot and airplane owner, testified that he had spoken to plaintiff about purchasing a home site on the subject property and was ...


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