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County of Lake v. First Nat'l Bk.

OPINION FILED JANUARY 18, 1979.

THE COUNTY OF LAKE, PLAINTIFF-APPELLEE,

v.

THE FIRST NATIONAL BANK OF LAKE FOREST ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 22, 1979.

The plaintiff, Lake County (the County), sought an injunction against the defendants in a four-count complaint which sought to prohibit various uses of a 45-acre tract of land located in an area zoned agricultural. The defendant First National Bank of Lake Forest holds legal title to the property in question as the trustee of a land trust for which Amalio N. Polidori is the beneficiary. (Hereinafter we will only refer to the defendant Polidori and not to the bank.)

In count I of its complaint the County contended that Polidori was improperly using the property in question as a landing strip without possessing an airport conditional use permit. Count II alleged that Polidori or his family were illegally engaging in three commercial businesses on the property in question, including an interior decorating business, a warehouse-antique business and the "Victory Air Museum." Count III alleged that Polidori maintained unspecified junk and debris on the premises; that a junkyard is not a permitted use in an agricultural zone; and that the "junk" should be ordered removed. Count IV alleged that Polidori had erected various signs on the property without permits from the zoning officer as allegedly required by the Lake County Zoning Ordinance and requested that he be ordered to obtain such permits or remove the signs.

The defendant answered, denying the complaint and counterclaimed in declaratory judgment, alleging that the Lake County Zoning Ordinance is unconstitutional as applied to his use of his property as a restricted landing area and as an aircraft museum.

An evidentiary hearing was conducted in the circuit court of Lake County. At that proceeding a great deal of testimony was taken. It was revealed that the defendant acquired the property in 1952. In 1960 he applied to the Illinois Department of Aeronautics for a restricted landing area on his land. A written notice of that application was sent to the County and to neighboring property owners by the Department in order to determine if there were any objection. In this regard we note that the stated policy of the Department of Aeronautics was not to issue such permits unless the property in question had the appropriate local zoning. No objection was made by any party, including the County, and the permit was issued. Notwithstanding its failure to object, the County notified the defendant that his restricted landing area was located in a "F" Farming District and that he was required to obtain a special use permit. (Under the 1966 Zoning Ordinance this is now referred to as a "conditional use permit.") Nothing further was done by either the defendant or the County until 1974, when the County notified the defendant that he was in violation of various zoning provisions. These long-delayed actions were apparently precipitated by the complaints of a neighbor, Joseph Lenzen, who resides immediately north of the Polidori property. Two ordinance enforcement complaints were filed against him. Complaint No. 928 alleged that Polidori was operating three businesses from a "single family residential" zone without the appropriate licenses or zoning changes. Complaint No. 930 alleged that he was storing junk and debris in a "residential zone" in violation of the County nuisance ordinance. We note parenthetically first that both complaints are facially erroneous since the defendant's land is not in a residential zone and, second, that at no time was the defendant ever cited for his restricted landing area prior to the filing of the action before us.

The defendant admitted under section 60 examination that his land had been used for a warehouse-antique business but that its use as such had been abandoned. He also denied that an interior decorating business was operated on his property and never attempted to justify any such use. In addition, he testified that the museum solicits one dollar "donations" from its visitors; that no one had ever been denied admittance for failure to donate; and that the total amount of donations for the year was approximately $2900.

The County zoning officer admitted that the County itself had constructed, and was maintaining, a museum in an agricultural zone without any legal authorization for such improper use. The zoning inspector who had originally cited the defendant testified that the junk and debris which he had noted on his first inspection of the property had been cleaned up.

Joseph Lenzen, the discontented neighbor, testified that many planes had flown over his property at low altitude and that one had hit a tree on his property. However, his testimony did not, for the most part, tie in these overflights with the defendant's use of his restricted landing area. To the contrary, most of the overflights were by aircraft which did not use the landing area.

Interestingly, Bernard Lenzen, a brother of Joseph Lenzen, who lives immediately north of his brother's property, testified that the use of the subject property by the defendant as a restricted landing area and museum has not interfered with the use and enjoyment of his property.

The defendant offered testimony to support his position that the aircraft in his museum were "antiques," being over 30 years old, and that his operation was unique and a contribution to the public good. This evidence was unrebutted by the County. Testimony of other witnesses was presented as to reasonableness of the present zoning classification. It was established that the property in question was submarginal for farming because a large portion was in the flood plain and the soil was poor. Additionally, even the County's own expert testified that the highest and best use of the property was for large residential estates, not agriculture.

At the close of the evidence the trial court entered an injunction ordering the defendant to:

(1) cease using the property in question as a landing strip;

(2) cease operating an interior decorating business, a warehouse antique business or the "Victory ...


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