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County of Lake v. First National Bank

OPINION FILED MARCH 21, 1980.

THE COUNTY OF LAKE, APPELLANT,

v.

THE FIRST NATIONAL BANK OF LAKE FOREST ET AL., APPELLEES.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Fred H. Geiger, Judge, presiding.

MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Plaintiff, the County of Lake, filed this action in the circuit court of Lake County seeking to enjoin defendants, the First National Bank of Lake Forest and Amalio N. Polidori, from violating the county's zoning ordinance. Defendants filed a counterclaim for a declaratory judgment that the ordinance was void insofar as it purported to prohibit the use of defendants' land for a restricted landing area and a museum. Following a hearing, the circuit court entered an order enjoining defendants from operating, inter alia, a private aircraft landing strip and an "air museum," and defendants appealed. The appellate court reversed the order except as to the portion which enjoined the operation of an interior-decorating business and a warehouse-antique business (68 Ill. App.3d 693), and we allowed plaintiff's petition for leave to appeal.

The record shows that defendant Polidori, who is the beneficiary of a land trust for which the First National Bank of Lake Forest is trustee (hereinafter reference will be made only to defendant Polidori), acquired the 45-acre parcel here involved in 1952. In 1960 defendant applied to the Department of Aeronautics for permission to operate a "restricted landing area" on the property. Although the county and surrounding property owners were given notice and an opportunity to object, none did so. Notwithstanding its failure to object before the Department of Aeronautics, the county, in 1960, by letter, notified defendant that the site of his proposed landing strip was located in an "F" (farming) zone and that he would be required to secure a special use permit from the county board before proceeding. Defendant did not do so. In 1961 the Department of Aeronautics certified defendant's landing strip as a restricted landing area, and it was so used until enjoined by the circuit court.

The Lake County zoning ordinance was revised in 1966. The record does not contain the ordinance in force prior to that time, but an exhibit indicates that the designation of the zoning classification applicable to defendant's property was changed from F (farming) to AG (agricultural). The ordinance as revised required a "conditional use permit" for the operation of an "airport" or "heliport" in an agricultural zone. The ordinance does not contain a definition of either term. Museums are not enumerated among the conditional uses for which standards are provided in the ordinance.

It is not clear from the record when defendant began operating his air museum. Defendant assembled a collection of World War II aircraft, parts and related items of interest and began soliciting "donations" from visitors. This enterprise was known as the "Victory Air Museum." Called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), defendant testified that 2,500 to 3,000 persons visited the museum in 1976 and approximately 2,000 did so in 1977. In 1977 the museum generated a gross income of approximately $2,900. Robert Streicher, the director of building and zoning for Lake County, testified on cross-examination that defendant's was not the only museum operating in an agricultural zone. Lake County itself maintains a museum in an area zoned AG.

Other witnesses testified concerning the effects of the landing strip and the museum on surrounding uses, and as to the highest and best use of the property. Joseph Lenzen, whose property abuts the defendant's landing strip at the strip's north end, testified that planes frequently fly over his property in taking off and landing at defendant's airstrip. On one occasion a plane brushed a tree which grew near his house. Lenzen testified on direct examination that total takeoffs and landings ranged from "close to 300" in 1973 to approximately 25 in 1977. However, on cross-examination he acknowledged that some of the flights over his house were attributable to Campbell Airport at Grayslake. A film taken by Lenzen depicting takeoffs and landings at defendant's landing strip and overflights of Lenzen's house was received in evidence.

There was testimony that use of the landing strip did not interfere with the use or enjoyment of a parcel of land located 155 feet from the defendant's land or a house located 300 feet away. Witnesses testified concerning the unsuitability of defendant's land for agricultural purposes and that only approximately 25% to 35% of the parcel was "farmable." Defendant adduced testimony that his use of the land was compatible with surrounding uses and that the landing strip met the safety requirements of the State of Illinois. There was testimony that the museum was of historical value and contained "rare" and "very rare" aircraft. There was conflicting testimony concerning whether the presence of persons attracted to the museum interfered with the use or enjoyment of surrounding parcels of land. A real estate appraiser called by plaintiff testified that defendant's property was best suited for "farmette" or "estate" uses and that the landing strip and museum had "a depreciatory effect on the values of property surrounding it."

We consider first the question whether the plaintiff's ordinance is applicable to a restricted landing area. The circuit court found "That the desired use of the property as a private landing strip requires a special permit from the County Board" and enjoined the use of "the property which is the subject matter of this lawsuit as a landing strip for aircraft." In reversing that portion of the order, the appellate court held that although the zoning ordinance required airports and heliports to possess conditional use permits, it failed to define either term. It concluded that the definitions of "airport" and "restricted landing area" contained in the Illinois Aeronautics Act (Ill. Rev. Stat. 1975, ch. 15 1/2, pars. 22.6, 22.8) were mutually exclusive. After reviewing the definitions contained in the municipal airport authorities act (Ill. Rev. Stat. 1975, ch. 15 1/2, par. 68.1), the County Airports Act (Ill. Rev. Stat. 1975, ch. 15 1/2, par. 110), and the St. Louis Metropolitan Area Airport Authority Act (Ill. Rev. Stat. 1975, ch. 15 1/2, par. 302(f)), and the rule that zoning ordinances, being in derogation of the common law rights to the use of real property, must be strictly construed in favor of the right of a property owner to the unrestricted use of his property, the appellate court held "that the Lake County Zoning Ordinance is ambiguous and therefore is not applicable to a restricted landing area. Thus, a conditional use permit need not be obtained by this defendant. Accordingly the trial court's injunction entered on count I of the plaintiff's complaint was improper." 68 Ill. App.3d 693, 698.

Plaintiff's ordinance provides for 20 zones and contains a table of the principal uses permitted in each of them. A footnote to the permitted-principal-uses table provides:

"The above uses in Table 1 are permitted in the zones designated. However, the Zoning Officer shall have the right to allow any other use which is similar to and compatible with those uses permitted in the zone in question, and which is consistent with the purposes of this Ordinance."

The ordinance also provides:

"B. Variations — It is the intent of this Ordinance to use the variation only to modify the application of this Ordinance to achieve a parity among properties similarly located and classified. Specifically it is to be used to overcome some exceptional physical condition which poses practical difficulty or unnecessary hardship in such a way as to prevent an owner from using his property as intended by the Zoning Ordinance.

3. Standards for Variations — The Zoning Board may grant a variation whenever it shall have determined, and placed in its records, that all of ...


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