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Union Nat'l Bk. & T. v. Bd. of Supervisors





APPEAL from the Circuit Court of Kendall County; the Hon. CARL M. SWANSON, Judge, presiding.


This appeal essentially questions the power of a county to enforce its zoning ordinance in denial of plaintiffs' right to strip-mine limestone on their property pursuant to a permit issued by the State under the Surface-Mined Land Conservation and Reclamation Act, commonly known as the "Reclamation Act" (Ill. Rev. Stat. 1977, ch. 96 1/2, par. 4501 et seq., formerly Ill. Rev. Stat. 1975, ch. 93, par. 201 et seq.).

The plaintiffs as owners of 149 acres of agricultural land in Kendall, a non-home-rule county, possess a permit from the Illinois Department of Mines and Minerals issued pursuant to the Reclamation Act. They petitioned the county for a special use permit under the M-2, Heavy Industrial classification. Upon denial of their application they filed a declaratory judgment action in the Kendall County Circuit Court. Following a hearing relief was again denied and they appeal.

We preliminarily consider defendants' contention that plaintiffs do not have standing. On May 8, 1975, the plaintiffs, Clyde W. Avery and William W. Avery, were the beneficiaries under a land trust in which the bank held legal title as trustee under Trust No. 1743. On that date the property was transferred to Trust No. 1912 with the beneficial ownership remaining the same. However, the petition for rezoning was mistakenly filed on January 14, 1976, in the name of Trust 1743 rather than Trust 1912. The county denied the petition under this number and suit was filed in the Circuit Court again in the mistaken name of Trust 1743. The mistake was detected during trial and at the close of testimony the trial court denied defendants' motion to dismiss the case on the ground that Trust 1912 owned the property and not Trust 1743.

• 1 Under the Kendall County zoning ordinance one with a "possesory interest entitled to exclusive possession in land" may file the application. The beneficial owners of the trust throughout the proceedings were the Avery brothers and, in fact, Trust No. 1912 was the legal title holder of the subject property at the time of the request for rezoning. We conclude that a misnomer was involved which may be corrected and was corrected. (See Ill. Rev. Stat. 1977, ch. 110, par. 21(3).) The trial court found that plaintiffs did have the necessary possessory interest in the property to maintain the action and we agree.

We would also preliminarily note that were the county zoning power the only issue in the case, we would conclude that Kendall County could properly condition a special use on compliance with

"* * * restrictions upon the establishment, location, construction, maintenance, and operation thereof as deemed necessary to protect the value, utilization and enjoyment of the neighboring properties, and to secure compliance with the standards and requirements specified in this section." (Kendall County Zoning Ordinance § 13.07 (D).)

Other conditions set forth for the operation of a stone quarry in either the Agricultural or the Heavy Industrial classification in identical terms provide:

"Stone and gravel quarries and crushing, grading, washing, and loading equipment and structures (may be permitted), provided the land is redeveloped by the owner in accordance with a plan of redevelopment approved with the granting of the Special Use permit and is accompanied by a bond in the amount of the estimated cost of redevelopment of each phase." Kendall County Zoning Ordinance §§ 7.01(B)(20), 10.02-3(E).

However, we must determine whether the Reclamation Act has preempted the county zoning powers.

The Reclamation Act became effective September 17, 1971. In general, the Act makes it unlawful for any person to engage in surface mining in an area where the "overburden" exceeds 10 feet in depth or where the operation will affect more than 10 acres during the permit year without first obtaining a permit from the Department of Mines and Minerals (Ill. Rev. Stat. 1977, ch. 96 1/2, par. 4504). The act further provides that, prior to obtaining such a permit, a prospective strip-mine operator must submit:

"* * * a conservation and reclamation plan and map acceptable to the Department. The operator shall designate which parts of the lands to be affected he proposes to reclaim for forest, pasture, crop, horticultural, homesite, recreational, industrial or other uses including food, shelter and ground cover for wildlife and shall show the same by appropriate designation on a reclamation map." Ill. Rev. Stat. 1977, ch. 96 1/2, par. 4506(e)(14).

• 2, 3 The Reclamation Act of 1971 as amended does not expressly repeal any aspect of section 1 of the County Zoning Act. (Ill. Rev. Stat. 1977, ch. 34, par. 3151. See also County of McHenry v. Sternaman, 63 Ill. App.3d 679, 380 N.E.2d 540 (1978).) However, "[w]here two statutes are irreconcilable, the one which was more recently adopted will abrogate the earlier to the extent that they are inconsistent." (Johnson v. State Electoral Board, 53 Ill.2d 256, 259 (1972).) We find such inconsistency here. Further, "an implied repeal results from an enactment, the terms and necessary operation of which cannot be harmonized with the terms and effect of an earlier act. * * * [T]he later expression prevails since it cannot be presumed that the legislature intended to enact laws which are contradictory." People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 363 (1972).

• 4-6 Where the General Assembly provides for "comprehensive regulation" of an activity, it thereby implies "that municipalities have no power to regulate this activity." (Chicago School Transit, Inc. v. Chicago, 35 Ill.2d 82, 86 (1966).) Thus, the General Assembly by enacting a comprehensive regulatory scheme with respect to surface mining and reclamation implied that counties and other non-home-rule units of local government should have no power to regulate this activity. To the extent that this implied restriction is inconsistent with the broad zoning powers conferred upon the counties by the County Zoning Act of 1935, the earlier act is, to that extent, repealed. The result in our view is that the County of Kendall has no power to seek to prohibit the operation of strip-mining subject to the Reclamation ...

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