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Smith v. County Bd. of Madison County





APPEAL from the Circuit Court of Madison County; the Hon. THOMAS R. GIBBONS, Judge, presiding.


Defendants, County Board of Madison County (County Board), Madison County Zoning Board of Appeals (Zoning Board), and Jack R. Clifford, secretary, appeal from a declaratory judgment of the circuit court finding the county's zoning ordinance unconstitutional and void as applied to a 40-acre parcel of land in Godfrey Township. Plaintiff Joseph C. Smith has filed a cross-appeal from that portion of the judgment order which provided for a rehearing or a new hearing by the County Board. Four issues are raised: (1) whether plaintiff lacked standing to attack the constitutionality of the zoning ordinance; (2) whether the trial court erred in basing its decision on the recommendation of the Zoning Board and the subsequent hearing before the County Board; (3) whether plaintiff proved by clear and convincing evidence that the zoning ordinance is void as applied to his property; and (4) whether the court erred in excluding certain evidence at trial.

The subject 40-acre tract was one of three parcels of land totaling 160 acres which were the subject of a contract dated December 28, 1965, between sellers Benjamin and Ethel Dresler and buyers Joseph C. and Laverne Smith. This contract granted buyers a continuing option to purchase the tracts so long as they paid 5 percent interest semiannually on the outstanding purchase price. The total purchase price was $48,000, with the three tracts valued at $250 to $700 per acre. Upon execution of the contract, buyers agreed to pay sellers $200, $100 of which was to be credited against the purchase price. In addition, upon reclassification of the property for subdivision purposes, buyers agreed to pay sellers an additional sum of not less than $3,900. Property taxes for the year 1966 and for all subsequent years were to be paid by the buyers, and beginning in 1966, they had the right to farm all three tracts.

At the time of trial in 1978, plaintiff testified that he had made all interest payments on the option contract, and that the contract was current and up-to-date. In addition, he had paid taxes and liability insurance on the entire 160 acres and between $12,000 and $13,000 on the total purchase price, which sums were not earmarked toward the purchase of any one specific tract. In return for the portion of the sales price he paid, he received no comparable amount of property or deeds. Rather, the parties apparently considered the buyers equitable owners of the three tracts to the extent of the payments made.

When the contract was executed, the land was zoned agricultural. In 1966 one of the three tracts was rezoned to R-3 classification, permitting development of single-family residences. Approximately 50 acres were developed into a subdivision known as Piasa Hills, consisting of slightly more than 100 homes. During development of the subdivision, the 40-acre tract which is the subject of this appeal, situated immediately east of Piasa Hills, was used by plaintiff for storage. It was described as a "marginal" parcel of ground and is fully wooded, rough terrain with ridges, hills and valleys throughout. The land to the north, east, and south is unimproved and is zoned agricultural.

In 1974 plaintiff applied for a rezoning of this property to R-5, multiple-family dwelling residential classification which would permit him to develop condominiums on the tract. Following a hearing, the Zoning Board recommended that his application be approved. However, the County Board, then known as the Board of Supervisors, denied the application.

Plaintiff filed a complaint in the circuit court seeking administrative review of the decision of the County Board. Subsequently, in January 1975, an amended complaint was filed, seeking a declaratory judgment.

A two-day trial was ultimately held, with the first day in November 1977, and the second day approximately one year later. On the first day, count I of the complaint requesting administrative review was dismissed with prejudice at plaintiff's request, and trial was called on count II for declaratory relief. Paul T. Hawkins, building and zoning environmental administrator for Madison County, testified on behalf of plaintiff that the Zoning Board had reviewed the engineer's plans and drawings for the condominiums proposed, and recommended the zoning revision to the County Board. Zoning went into effect in 1963 based upon the use of property at that time and had since been a series of revisions, amendments, and special uses and variations. Hawkins named other established subdivisions in Madison County that have only one entrance and exit — as is planned for the subject property — which is one of defendants' objections to plaintiff's proposed development. He stated that if a tract is rezoned R-5, a building permit will not be issued for that property until the requirements of the Building and Zoning Environmental Agency of the county are met.

Phillip M. Corlew, a consulting engineer and land surveyor who also served on the Edwardsville Zoning Board, testified that because of the topography of the land, it has little value as farmland and is unsuitable and unprofitable for development of single-family homes. Because of the rough terrain, any construction should stay close to the ridge tops, and a great deal of the land should remain vacant. Therefore, the multiple-family buildings will aid in preserving the land and will be more profitable. A relatively small portion of the site, compared to the total acreage, would be developed, and these undeveloped areas would also serve to "buffer" the condominiums from the Piasa Hills subdivision. He asserted that construction of a second entrance to the property, apart from Piasa Hills, would be impractical because of the steepness of the hills. On cross-examination, he admitted that the heavy equipment used in construction would have a detrimental effect on the streets in Piasa Hills. In his opinion, drainage laws and requirements of the Environmental Protection Agency would ensure an adequate solution to the problem of sewage and surface run-off, and it would be possible and feasible to install a sewage treatment system to cover this development that meets all standards. As a member of the Zoning Board, he would be concerned about the impact of run-off water in allowing or disallowing a proposed rezoning. However, he did not foresee any erosion problems to adjoining landowners' land because of this development.

At the second day of trial, November 22, 1978, George Peterie, a real estate broker, testified for the plaintiff. He estimated that in 1974 the subject parcel was worth about $1,000 to $1,500 an acre as farmland, while its present value is $4,000 to $5,000 if rezoned R-5. He testified that condominiums would have no effect on property values in Piasa Hills and would enhance the value of the surrounding farmland. There would be less traffic if the land were used for condominiums rather than single-family homes, as generally there are about two persons per condominium unit and 3.75 per single-family residence. He testified that condominiums in Arrow-Wood Subdivision are within 50 yards of residential homes, and that there have been no condominiums constructed in Godfrey Township.

Plaintiff testified regarding his purchase of the 160 acres and his attempts to have the property rezoned. He asserted that he had developed and built more than 1,000 homes in the Madison County area, and that specific road and sewage plans were neither required nor practical prior to actual rezoning. However, an engineering firm had studied various sewage systems which would be feasible on this tract and would meet county and EPA regulations. He also testified that the 125 condominiums, including roads and parking, would use only 33 percent of the land-surface area of the tract. He stated that he used this 40-acre tract for storage while building Piasa Hills; that he has maintained the property and paid taxes and insurance on it since 1966. He has made all the required payments on the contract to date, amounting to $12,000 or $13,000. The land is not suitable for farming. He stated that there are three or four subdivisions in the area having only one means of ingress and egress to the highway. In his opinion, the assessed value of the forty acres, after the proposed improvements, would be $3,000,000.

Jerome Besterfeldt testified on behalf of defendants that he had lived in Piasa Hills for 10 or 11 years. His home was on the street through which automobiles would enter and leave the proposed condominiums, and the increased traffic past his home was his primary objection to the development. In addition, Besterfeldt noted that an R-5 zoning classification provided no guarantee of condominium development but would permit other types of multiple-family dwellings. He was opposed to the building of apartments on the property. He testified that he had personal animosity toward the plaintiff.

Wayne Croxford testified that he lived directly north of Piasa Hills and owned the property north of the proposed new development. He based his objection to the new development on drainage problems, and presented a number of photographs showing drainage ditches and pipes crossing his property north of Piasa Hills. Croxford stated that no drainage or erosion problems had arisen until development of Piasa Hills, and he feared that similar problems would develop on his property north of the proposed development. He also testified that the property could be used for raising livestock or for orchards. During cross-examination, he revealed that he had personal animosity toward plaintiff; he had sued plaintiff for erosion problems on his land and had settled the case for $500.

Harold Schulte testified that he owned land bordering the site of the proposed development for one-quarter mile on the south and one-quarter mile on the east. His major concern regarding the project was effluent from the sewer system of the condominiums flowing over his property, causing serious erosion. He stated that the ...

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