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Pierson v. County of Henry

OPINION FILED FEBRUARY 19, 1981.

DONALD B. PIERSON, SR., ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF HENRY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Henry County; the Hon. L.E. ELLISON, Judge, presiding.

MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

This appeal arises from an action to invalidate the Henry County Zoning Ordinance as it applied to a certain 20-acre tract of land. The suit was commenced by the Piersons, who are the property owners.

The Pierson property is situated seven-tenths of a mile outside of the city limits of Kewanee in Henry County. Of the 20 acres, less than half are tillable, the rest being timber and large brush. Pierson thought it more profitable to subdivide the land into 10 lots. Accordingly, he had a preliminary subdivision plot made. The plot shows the proposed 10 lots varying in acreage from approximately 1 to 3 acres. Since the area is zoned by the Henry County Zoning Ordinance for agriculture, which use prohibits such a residential subdivision, the Piersons applied to the Henry County Zoning Board of Appeals to rezone the property as R-1 Country Home District (residential). The Henry County Zoning Ordinance, article VI, section 6.1 et seq. (revised June 12, 1979), in relevant part reads as follows:

"Only the following uses are permitted in the R-1 [country home] District:

* * * one family dwellings * * * [with] a minimum of one acre of lot area for each dwelling * * *."

Their application was denied, and thereafter the Henry County Board unanimously denied the rezoning. The Board stated its action was taken to avoid conflicts which would arise from having a subdivision in an agricultural area.

The Piersons then filed their complaint for declaratory judgment in the circuit court of Henry County. The complaint alleged that the denial of rezoning bears no reasonable relationship to the health, welfare, safety and comfort of the public, prevents the development of the said property for its highest and best use and that the zoning ordinance is therefore invalid and unlawful as applied to their property.

From the uncontroverted testimony in the record and as previously noted, less than half of the 20 acres are tillable. The remaining acreage is timber and big brush. Also uncontroverted is the fact that six residences are across the road north of the Pierson property. East and west of the Pierson property are several other residences. This land is also zoned agricultural. While these are nonconforming uses preceding the zoning ordinance, the actual use of almost all of the property across from the Pierson frontage is residential. The land to the east of the Pierson tract is zoned manufacturing. However, there is no manufacturing in the area. Situated therein is an animal sale barn, a nonconforming use existing before the zoning ordinance.

South of the Pierson property is an area zoned R-1 Residential and R-2 Residential.

In addition to the zoning ordinance, Henry County adopted by resolution in 1970 the Henry County Land Use Plan. The Pierson 20-acre tract is well within the proposed residential development area which is approximately a mile and a half around the City of Kewanee.

Testimony from the trial also adduced the fact that the Pierson property if used as zoned, agriculture, was worth $2,500 to $3,000 per acre. If used as proposed by Pierson, it would be worth $8,000 per acre.

After taking evidence and reviewing briefs filed by the parties, the trial court found: (1) that the issue in the matter is whether or not there is a rational basis on which the county board's refusal to rezone can stand; (2) that the nature of the surrounding property and road conditions are such that the action of the county board was not unreasonable.

Accordingly, judgment was entered for the county board.

The Piersons urge as grounds for reversal two main points: (1) that the trial court erred in applying a rationality test to the county board's action in denying rezoning of their property; (2) that when applying the proper test to the facts, it is shown by clear and convincing evidence in the ...


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