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Tuftee v. County of Kane

OPINION FILED SEPTEMBER 10, 1979.

BETTY TUFTEE, PLAINTIFF-APPELLEE,

v.

THE COUNTY OF KANE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PAGE, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Defendant, County of Kane, appeals from an order of the Circuit Court of Kane County enjoining it from interfering with the operation of a public stable by the plaintiff, Betty Tuftee, for the care and training of 19 show horses. We affirm.

On January 15, 1976, the plaintiff entered into a contract for the sale of all but seven acres of her 76-acre tract. The plaintiff also entered into a contract with a construction company for the erection of the shell of a training barn on the seven acres calling for an expenditure of $48,000. On or about April 23, 1976, plaintiff became aware that a building permit might be necessary for the erection of the barn. On that date her son-in-law, Thomas Hoish, who was to operate the stable, called upon the county's zoning office and talked with Stanley Henderson, the director. The testimony of Hoish was that Hoish advised Henderson of the characteristics of the barn and that the purpose of the barn was for the care and training for show of 19 horses.

Henderson advised Hoish that based upon the zoning maps and his knowledge of the 76 acres that no building permit was required and that upon the filing of an affidavit the plaintiff would be granted an agricultural exemption. The record further shows that the matter of the sale of all but seven acres was probably not discussed in detail if at all on April 23, 1976, nor was such a revelation required in the affidavit form provided by the zoning office nor was it disclosed by the plaintiff in the affidavit. Further, the record fails to disclose that the plaintiff knew that such information was relevant or that the information was purposely withheld.

On May 5, 1976, the plaintiff received from the zoning office a letter granting her an agricultural exemption for the construction of her horse barn. She then began construction of the shell of the barn pursuant to her earlier contract. By June 7, 1976, the construction of the shell of the barn was virtually completed, obligating the plaintiff to an expenditure of approximately $48,000 of the anticipated total cost of $100,000.

On June 7, 1976, the plaintiff received another letter from the zoning office that she would have to stop construction until she secured a building permit. The property was "red tagged" by a zoning official the same day. It appears that the zoning office learned of the contract for the sale of 69 of the original 76 acres and the plan to have the 69 acres annexed to North Aurora. The county zoning ordinance provides that agricultural exemptions are given only for property of not less than 15 acres in size.

The plaintiff stopped construction and was granted a building permit on August 25, 1976, at which time she concluded the remaining construction, principally of the interior of the barn. However, the permit only authorized private use of the facility or, for commercial use, limited the number of horses to 10. The plaintiff then applied for a special use permit of the building to accommodate 19 horses. The hearing for the permit was held April 11, 1977. An adverse recommendation was rendered on June 7, and on June 14 the county board denied her application for a special use. Plaintiff thereafter filed a two-count complaint for declarative and injunctive relief. Count I alleged the relevant provisions of the zoning ordinance as applied to her property were unconstitutional. Count II sought injunctive relief on the basis of equitable estoppel. At the conclusion of the bench trial the trial court found for the plaintiff on grounds of equitable estoppel and granted the injunctive relief sought by the plaintiff. The trial court made no findings as to count I regarding the constitutional issue.

Defendant alleges that both the May 5, 1976, agricultural exemption and the August 25, 1976, building permit were invalidity issued by its zoning officer. This is because the zoning ordinance does not permit agricultural exemption of properties of less than 15 acres and, because building permits must be secured before and not after, construction has commenced and the special use procedure must be favorably concluded before a building permit can issue.

Defendant's theory on appeal is that ordinarily a governmental entity is not bound by the unauthorized conduct of its officials in issuing invalid building permits. Defendant maintains that since its ordinance denies agricultural exemptions to property of less than 15 acres, the seven acres that will eventually be retained by the plaintiff do not qualify for the exemption. Further, defendant argues that the use of the barn for the care and training of horses for show is not an agricultural purpose. Defendant acknowledges that under special circumstances equitable estoppel can be invoked to prevent the government entity from denying the validity of its acts. However since we affirm on other grounds we need not discuss the issue of equitable estoppel relied upon by the trial court.

Plaintiff maintains that the care and training of horses for show is an agricultural purpose and she argues and, we believe convincingly, that a county has no authority to impose a 15-acre limitation as to property which is entitled to the statutory agricultural exemption.

• 1 A municipal government may exercise only those powers conferred upon it by the State, and its right to restrain the use of private property is limited to properly promulgated enactments. (City of Chicago v. Rumpff (1867), 45 Ill. 90; Village of LaGrange v. Leitch (1941), 377 Ill. 99, 35 N.E.2d 346.) No rights exist and no powers are conferred with respect to zoning except by statute. (People v. Ferris (1958), 18 Ill. App.2d 346, 152 N.E.2d 183.) The only limitations which may be placed upon the use of plaintiff's property, therefore, are those which have been enacted within the authority granted by the General Assembly and circumscribed by statute.

Therefore, the central issue in this case is whether defendant county may properly restrain the plaintiff from using her seven acres to board and train 19 show horses. Defendant contends that it may do so by virtue of its ordinance. The power of the county to regulate the plaintiff's property rights, however, is expressly limited by the terms of the enabling acts under which its ordinances are authorized. This limitation as found in section 1 of "An Act in relation to county zoning" (Ill. Rev. Sat. 1975, ch. 34, par. 3151) is as follows:

"The powers by this Act given shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted; nor shall they be exercised so as to impose regulations or require permits with respect to land used or to be used for agricultural purposes, or with respect to the erection, maintenance, repair, alteration, remodeling or extension of buildings or structures used or to be used for agricultural purposes upon such land except that such buildings or structures for agricultural purposes may be required to conform to building or setback lines; * * *."

If, therefore, the erection and use of a barn for the boarding and training of fine harness horses is an agricultural purpose, the defendant has no authority to interfere with this endeavor through zoning ...


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