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E & E Hauling, Inc. v. County of Du Page





APPEAL from the Circuit Court of Du Page County; the Hon. JOHN S. TESCHNER, Judge, presiding.


Rehearing denied December 12, 1979.

Plaintiffs appeal from the judgment of the Circuit Court of Du Page County upholding the validity of an amendment to the county's zoning ordinance. Two interlocutory orders of the court below are also subject matters of this appeal: the dismissal as a party-plaintiff of E & E Hauling, Inc., and the partial voiding of the lis pendens referring to this case.

Plaintiff, E & E Hauling, Inc. (E & E), operates a sanitary landfill in the Millard Lake Forest Preserve in Du Page County. Plaintiff, LaSalle National Bank, is trustee under a land trust of a 63-acre tract across the road from the landfill; plaintiff, Heil, is the beneficiary of this land trust. Edward Heil is also president of E & E. Defendant, American Heritage Service Corporation (American), is owner of a 254-acre tract adjacent to the Heil property.

Prior to the complained of zoning change, a zoning district property line crossed both the American and Heil properties dividing each property in half. The northern half of each parcel was zoned R-2 (single-family residence) and the southern halves were zoned M-1 (manufacturing).

On March 11, 1977, American filed petitions seeking to rezone the southern half of its property from M-1 to R-2 and to have a special use floodplain on the property. American also requested approval of a plat plan calling for subdivision of its tract into 193 single-family residence lots. On March 17, 1977, notice of a public hearing to be held on March 31 was published. On March 21, the zoning board of appeals (zoning board) mailed additional notices to the owners of neighboring parcels.

The hearing began as scheduled before three of seven members of the Board. At the outset of the hearing the Heil attorney, Mr. McNamara, objected to an alleged absence of a quorum. This objection was overruled on the basis of the chairman's belief that even a single zoning board member could conduct a hearing. The chairman then stated that since attorney McNamara had made a statement he should be sworn. The attorney refused to be sworn on the basis that he did not intend to testify. An engineer was called by the petitioners and gave testimony as to present and proposed use of the property. The Heil attorney then asked to cross-examine this witness. This request was denied; however, the chairman said he would accept relevant questions. American's president also testified in favor of the petitions. Again a cross-examination requested by the Heil attorney was denied.

After the close of petitioners' presentation, attorney McNamara stated an intention to question witnesses who were appearing for the objector. The chairman again requested that McNamara be sworn and this request was again refused. The chairman then ordered that any statements by McNamara be stricken from the record.

On April 7, 1977, the zoning board held its monthly review meeting. After making findings of fact, the zoning board, by a 6-1 vote, approved the petition subject to the condition that the tract be developed in accordance with the proposed plat. On April 14, the Heil interests — alleging they were in excess of 20% of the frontage immediately adjoining the proposed rezoning — filed a formal protest to the amendment. By a 3-2 vote the planning, building, and zoning committee of the Du Page County Board voted to concur with the zoning board's recommendation; by a 15-9 vote the full Du Page County Board enacted the proposed ordinance.

As a result of the rezoning along its eastern boundary, the building setback requirements of the Heil property were increased from 40' to 200'. Two buildings owned by Heil were rendered nonconforming structures which could not be altered without a zoning variance. Noise, enclosure, and loading restrictions were also imposed on the Heil property.

E & E and the owners of the Heil property brought suit against the county seeking to invalidate the rezoning and the plat plan. The county moved to dismiss E & E as a plaintiff, claiming that E & E had no ownership interest in the neighboring property and had failed to allege special damages. This motion was subsequently granted, as was a motion by the remaining plaintiffs to add American as an additional party-defendant.

In connection with the case, plaintiffs filed a lis pendens against the American property. Prior to trial, American moved for authorization to make deeds and other conveyances on the north half of its property free from the lis pendens. After a hearing, the trial court voided the lis pendens as to the northern lots on the basis that it was effectively an injunction against sale of these lots which had not been rezoned.

After a hearing, the trial court found that although some of the conduct at the public hearing was "inappropriate and uninformed," the rezoning was proper. Plaintiffs appeal.

On appeal, plaintiffs raise the following contentions: that the refusal of the zoning board to allow cross-examination of witnesses invalidated the hearing, that the zoning board exceeded its authority when it required plaintiff's attorney to be sworn as a witness, that the failure to give the required notice of the public hearing invalidated the subsequently adopted amendment, that the hearing was invalid because it was conducted by less than a quorum of the zoning board, that the protest of the rezoning filed by plaintiffs necessitated a three-fourths vote of the county board for adoption of the zoning amendment, that the trial ...

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