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Richardson v. Kitchin

OPINION FILED AUGUST 31, 1979.

ETHEL RICHARDSON, PLAINTIFF-APPELLANT,

v.

GLENN KITCHIN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Warren County; the Hon. STEPHEN C. MATHERS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Warren County, Illinois, denying an injunction to prevent construction of a facility for the slaughter of livestock within a certain zoning district in the city of Monmouth, Illinois.

The original action was brought by Ethel Richardson, owner of a restaurant located at 614 North Main Street and a residence located at 618 North Main Street, Monmouth, Illinois, to enjoin the construction of a slaughterhouse adjacent to the existing locker plant owned by Glenn and Norma Kitchin and located at 600 North Main Street, Monmouth, Illinois.

Kitchins' locker plant has been located on North Main Street for nearly 31 years. It has a North Main address, although access is from Euclid Street. The cutting, freezing, wrapping, and rendering of slaughtered livestock is performed at the locker plant. Kitchins own a slaughterhouse located at R.R.2, Monmouth, where cattle and hogs are slaughtered and then transported to the North Main location.

On or about February 24, 1978, Kitchin received a construction permit from the zoning enforcement officer of the city of Monmouth to allow construction of a slaughterhouse adjacent to their locker plant. Access to the proposed slaughterhouse would be from Main Street or from an alley running north and south and located immediately west of the vacant lot upon which the slaughterhouse would be built and behind the restaurant and residence of Richardson.

Richardson has owned and operated a restaurant at her present location for 15 1/2 years. She also operates a rooming house in her residence. Her property is located approximately 10 feet from the north line of the adjacent property on which Kitchins intend to build the slaughterhouse.

Located in the same block as Richardson's restaurant and Kitchins' locker plant is an auto parts store and a gas station. There are filling stations on each of the four corners of Euclid and Main Streets. In the immediate area there is a hardware store, a thrift shop bakery, a fast food restaurant, a photography shop, a drugstore, another restaurant, and a dry cleaner. There are also some single-family homes.

The Monmouth Zoning Ordinance divides the city into three districts: residential, business, and manufacturing, and each district is divided into divisions; R-1, R-2, R-3; B-1, B-2, B-3; and M-1, M-2. Each district is cumulative so that uses are more restricted in a division with a lower number than in a division with a higher number. They are not so restrictive, however, that a use permitted in an M-1 division is forbidden in a B-3 division. There is some overlapping of uses.

The lot on which the proposed locker plant is to be built is zoned B-3. B-3 is a general service and wholesale business district. Among the permitted uses in a B-3 district is food processing, packaging, and distribution. The only zone in which the slaughter of livestock is specifically permitted is the M-1 division, a limited manufacturing district, where the slaughtering of rabbits and poultry is permitted. The Municipal Code of the City of Monmouth (sec. 18-104) declares that anyone who slaughters "* * * cattle, sheep, swine, or other animals, except for the use of his own family," within the city of Monmouth is guilty of creating a nuisance.

Richardson filed suit to prevent the construction of the slaughterhouse because it would be a nuisance. The trial court denied a temporary injunction. Hearing was held on the petition for permanent injunction. Richardson presented testimony and then rested. Kitchins introduced three photographs into evidence and presented a motion for judgment at the close of Richardson's case. The City of Monmouth joined in Kitchins' motion and the trial court took the matter under advisement.

Richardson then filed an amended complaint to conform with the proof and ask for a declaratory judgment. The trial court allowed the amendment, but entered judgment for the Kitchins and the City of Monmouth.

The sole issue raised on appeal is whether the trial court erred in entering judgment.

Richardson argues that slaughtering is not a permitted use in the B-3 district. She does not argue that she will be irreparably harmed by the operation of the slaughterhouse. Richardson's theory is that it is immaterial if the decision of the zoning officer is arbitrary or merely misinformed. The test of whether a permit is properly issued should include a literal interpretation of the ordinance. If the language of the ordinance is not clear the court should determine the intent of the ordinance by relating the portion in question to the whole and by determining the reasonable and foreseeable impact of the various suggested interpretations. In order to do that, it is necessary to understand the nature and character of the subject matter and that surrounding it.

The Kitchins argue that if the action of the zoning officer is not arbitrary and capricious and if it is fairly debatable whether the questioned usage is permissible under the ordinance, then the ...


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