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Wilson v. County of Mchenry

OPINION FILED FEBRUARY 2, 1981.

PAUL T. WILSON ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF MCHENRY, DEFENDANT-APPELLEE. — WESLEY W. VOSS ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF MCHENRY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of McHenry County; the Hon. ROLAND A. HERRMANN and the Hon. HASKELL M. PITLUCK, Judges, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The issue in two appeals which we have consolidated for opinion is whether the McHenry County Zoning Ordinance establishing an agricultural zoning classification (A-1) is unconstitutional as applied to particular properties. The first appeal (No. 80-32) involves a declaratory judgment suit brought by Paul T. Wilson and Laila Wilson, his wife (Wilson) against the County of McHenry; the second appeal (No. 80-150) involves a similar action brought by Wesley W. Voss and Delphine Voss, his wife, Edward Neveu, Delores M. Neveu, his wife, and the trustees holding title to the real estate (Voss and Neveu). The trial court entered judgment in each case declaring the A-1 classification constitutional as applied to each of the properties. Each owner appeals.

The history and background of the A-1 classification is common to both appeals. The county zoning ordinance was amended on November 1, 1979, to provide a 160-acre-lot minimum in agricultural zones which were set forth pursuant to the land use plan for McHenry County characterized as the year 2000 plan. The plan was adopted by the McHenry County Board on October 4, 1979, and recited in substance that it was an attempt to channel development toward existing urban centers, particularly recognizing prime agricultural land as a primary, finite material resource to be preserved. The plan also recognized, however, that certain prime agricultural land closer to existing municipalities should be designated for residential use in order to preserve larger, rural tracts of prime agricultural soils.

No. 80-32 — THE WILSON APPEAL

The Wilson property is a 76-acre parcel located about one-half mile north of the intersection of Greenwood Road and State Route 120 in Greenwood Township, which is currently zoned A-1 Agricultural. The Wilsons sought to rezone to an E-1 Estate classification so that their proposed one-acre residential development would be permissible. The county denied the petition, and plaintiffs sought relief in the circuit court. There was evidence at trial that when the Wilsons purchased the property it was zoned F-Farming under the McHenry County zoning ordinance then in effect, which provided for a 1 1/8-acre minimum residential lot size. In 1974 the ordinance was amended, raising the minimum lot size to five acres. The present ordinance, adopted on November 1, 1979, requires residential lot sizes of not less than 160 acres in the zone designated as agricultural.

The Wilsons presented testimony that 37.4% of the subject property is not prime farmland; only 65 acres are tillable; the average yield was approximately 95 bushels of corn per acre; the farming operation has always lost money; and the property is not an economic farming unit. Testimony was further adduced by the plaintiffs that the highest and best use of the property is for a residential development and that such development would substantially increase the value of the property. Finally, there was evidence that a number of rural residential subdivisions are located in the surrounding area, most significantly, the proposed one-acre Shadowood Subdivision adjacent to the eastern boundary of the subject property; and that the trend is toward rural residential development.

The county presented evidence that conversion of the subject property would not be in harmony with its land use plan and its objective to preserve prime farmland. Evidence was likewise adduced that 87% of the subject property contains prime agricultural soils and therefore was classified as prime farmland area. Although the county conceded that the subject property of itself is not an economic farm unit because it is not large enough, other evidence suggested that additional rental possibilities exist and that innovative soil conservation measures could increase productivity. There was substantial evidence that most of the surrounding property is zoned A-1 Agricultural and that the predominant land use in the area is agricultural. While other subdivisions are located within the two-square-mile radius of the subject property they were distinguished on the basis of time of reclassification, proximity to municipalities and urban centers, physical characteristics and soil content. It was noted that several nearby residential and estate uses are located near unincorporated towns or existing municipalities. As to the proposed Shadowood Subdivision immediately adjacent to the subject property, there was testimony that it was not prime agricultural land, that it is almost completely wooded and has deeper slopes. Another subdivision close by, Kings Court Subdivision, was classified and developed prior to the enactment of the year 2000 land use plan.

There was a conflict in testimony as to the suitability of the subject property for one-acre residential development. The trial judge in his final order found that the plaintiffs had failed to establish by a preponderance of the evidence that the proposed use of the subject property is reasonable.

We review the record under the well-established factors. See, e.g., La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46-47. See also Wright v. County of Winnebago (1979), 73 Ill. App.3d 337, 341.

The existing uses and zoning of the surrounding area have been held to be of paramount importance in assessing the reasonableness of a zoning classification. LaGrange State Bank v. County of Cook (1979), 75 Ill.2d 301, 309. See also Jackson v. County of Du Page (1973), 10 Ill. App.3d 497, 499.

• 1 From the testimony it is clear that the predominant zoning in the area is A-1 Agriculture and that the predominant land use is also agricultural. There were other land uses within the two-square-mile area of the subject property; but the mere fact that exceptions exist to the predominant character of an area does not require a finding that zoning which would preserve the predominant classification is error. (See Jackson v. County of Du Page (1973), 10 Ill. App.3d 497, 500.) The nonagricultural uses either existed prior to the recent zoning amendments, were more proximate to urban centers and required services, or were distinguishable because of physical characteristics making them unsuitable for farming.

• 2 There is testimony in the record as to the loss in value to the owners if the agricultural zoning is applied. There was testimony on behalf of the plaintiffs that the subject property as presently zoned is of a value of less than $4,000 per acre; but that if zoned E-1, allowing for one-acre residential development, the value would be $18,000 to $20,000 per lot. There is no testimony in the record as to the cost of development, however. The county does not essentially dispute the valuation testimony offered by the plaintiffs and concedes that the property is worth considerably more for subdivision purposes. A concededly lower value of the property for agricultural use alone is insufficient, however, to overcome the presumption of the validity of the ordinance. (Reeve v. Village of Glenview (1963), 29 Ill.2d 611, 616. See also Jackson v. County of Du Page (1973), 10 Ill. App.3d 497, 500; Parkway Bank & Trust Co. v. County of Lake (1979), 71 Ill. App.3d 421, 424-25.) Moreover, the loss in value becomes significant only where the public welfare does not require the restriction. LaGrange State Bank v. County of Cook (1979), 75 Ill.2d 301, 309.

The consideration of the public welfare does not support plaintiffs' argument on the record before us. The plaintiffs do not challenge the constitutionality of the zoning ordinance except as applied. They agree that the preservation of prime farmland is a valid zoning objection but argue, generally, that the county has placed too much of its territory in that category; particularly, that the subject property is not prime farmland which should be preserved. While the plaintiffs produced testimony in support of their argument there was also testimony on behalf of the county which was conflicting.

There was testimony by the coordinator of agricultural programs at McHenry County College that 87% of the property was prime agricultural land under United States Department of Agriculture standards. The witness based his opinion on the soil types. A witness employed with the United States Department of Agriculture Soil Conservation Service as a district conservationist also testified and gave his opinion that 87% of the property contained prime agricultural soils. In his opinion the subject property ...


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