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Stanek v. County of Lake

OPINION FILED MAY 22, 1978.

JAMES STANEK ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF LAKE, DEFENDANT. — (JAMES ROBERT REARDON ET AL., INTERVENING PETITIONERS-APPELLANTS; THE VILLAGE OF WAUCONDA, INTERVENING PETITIONER.)



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This is a zoning case in which James and Virginia Reardon, owners of adjoining property and intervening petitioners, appeal from the circuit court's ruling that the existing zoning classification is unconstitutional and void as to the plaintiffs' property.

The land in question is a 5-acre tract fronting on a 40-foot improved road known as Bonner Road (County Highway 81), which runs east and west through the Village of Wauconda. The tract is almost at the corner of Bonner Road and Garland Road which runs north and south.

The plaintiff is a police officer presently employed as such for the village of Hoffman Estates. He bought the tract in question — which was originally about 4.5 acres — in July 1974, believing it to be zoned AG (agriculture) and thus permitting the operation of a dog kennel. He then discovered it was zoned UR-1 (residential) which did not permit the operation of a dog kennel. Upon learning this, the plaintiffs purchased an additional strip of land along one side of the original tract in order to have 5 acres, which was the amount of land required for AG zoning.

After he had 5 acres of land, the plaintiff applied to the county for a change in the zoning of his land from UR-1 to AG, and submitted a plan for the building and operation of a dog kennel serving the public on a commercial basis.

Section 5 of "An Act in relation to county zoning" (Ill. Rev. Stat. 1975, ch. 34, par. 3158) provides that a zoned municipality may object in writing to any proposed amendment of the county zoning laws which affects lands within 1 1/2 miles of its limits and unless the county approves the zoning change by a three-fourths majority vote the zoning change fails. The subject property is within 1 1/2 miles of the village limits of Wauconda, and the village filed an objection to the proposed zoning. After consideration, a majority of the county board, but less than three-quarters of the members voting, approved the change in zoning. However, since less than three-fourths of the members voting approved, the zoning change requested could not be granted.

The plaintiffs then filed suit against the county alleging that the present zoning was unconstitutional as to their land in that it bore no reasonable relationship to the health, welfare, safety or comfort of the public and prevented the highest and best use of the land, which they alleged was agricultural use, including (by amendment of the complaint) a dog kennel.

The village of Wauconda sought and was granted leave to intervene and subsequently leave to intervene was granted to adjoining landowners, James and Virginia Reardon. After a trial on the merits, the trial court found the county zoning ordinance unconstitutional and void and enjoined the county from enforcing it as to the plaintiffs' land.

It appears from the record that the plaintiffs first submitted their plan to the county on the basis of a 12-dog kennel; however, at trial the testimony indicated they intended to build a boarding and grooming kennel for 24 dogs and also would board and groom cats. James Stanek testified that he had from the beginning intended to use the property for a commercial dog kennel and that the soil was eroded, did not drain properly and was not suitable for growing crops. He also contended there was not sufficient stable land for more than one residence on the property as much of it could not be built on due to poor drainage. He submitted several photographs as exhibits showing a hay field, a silo and farm animals, such as horses, cows and sheep, grazing on adjoining property. These photos were apparently submitted as evidence establishing that the uses in the area were strictly agricultural, even though the land was zoned residential. In addition, Mr. Stanek testified that across the road from the plaintiffs' property, almost at the corner of Bonner and Garland Roads, there was a body shop and nearby was a sand quarry and a landfill, which he described as a "garbage dump." This was located along and to the north of Bonner Road. The plaintiff argues that these nonresidential uses so close by had already adversely affected the residential character of the neighborhood and, in fact, his proposed kennel would serve as a buffer zone between the more undesirable commercial properties which now existed nearby and the residential areas to the south of Bonner Road. A witness for the plaintiffs — the neighbor who sold them the additional strip of land necessary to complete the needed 5 acres — testified that she did not believe that the presence of the dog kennel would depreciate her property. The professional engineer, who designed the proposed kennel building, testified that only a little more than half of the area of the land in question was suitable for building. He also testified that the noise level, considering the acoustical design of the proposed building, would be very low — not much more than a whisper would reach the outside, if the dogs were kept in the building, as the plaintiff proposed to do.

A real estate broker, called by the plaintiffs, testified that the property as presently zoned was worth less than the plaintiffs paid for it but would be worth more than the plaintiffs paid for it, if it was zoned AG. In answer to a question on cross-examination as to whether the proposed rezoning would constitute spot zoning, she replied that it would. The director of the Lake County zoning board of appeals testified that in his opinion the proposed change was compatible with the residential character of the area and the kennel would serve as a buffer zone between the residential property to the south of Bonner Road and the light industry operations to the north of Bonner Road. He did not see any adverse financial impact from the kennel operation. However, he conceded that it would require careful management to avoid any visual or auditory adverse effect. On cross-examination he said that the trend of development in the area of the plaintiff's property, south of Bonner Road, was residential and not commercial.

A professional real estate appraiser testified on behalf of the intervenors, the Reardons, that their property would be depreciated in value by the presence of a dog kennel on the adjoining property. His opinion was based on the belief that the kennel building was not conformable to the residential character of the neighborhood and it could not be screened off except by a high fence which was equally undesirable.

By stipulation between counsel for the village and the plaintiffs it was agreed that the village had a water connection available approximately 200 feet and a sewer line approximately 400 feet from the plaintiffs' property. This stipulation apparently was introduced for the purpose of countering the plaintiffs' contention that about half of their property was not suitable for building, because of soil conditions which precluded a satisfactory septic system on that portion of it.

This is not the usual zoning case where a municipal body is appealing the judgment of the trial court. Only the adjoining property owners, Reardons, are appealing.

One of the witnesses for the plaintiffs was Cranston Byrd, the director of planning for the county, who testified that he saw no conflict with either the county or the village comprehensive plans in allowing the rezoning of the plaintiffs' property to AG. On cross-examination, Mr. Byrd testified that the proposed kennel would not be inconsistent ...


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