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Spielman v. County of Rock Island

OPINION FILED FEBRUARY 10, 1982.

R.C. SPIELMAN, PLAINTIFF-APPELLEE,

v.

THE COUNTY OF ROCK ISLAND, DEFENDANT. — (DEERE & COMPANY ET AL., INTERVENING DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Rock Island County; the Hon. GENE McWHORTER, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal by intervenors and defendants Deere & Company, the Saelens, and the Vande Geests (hereinafter intervenors) from the decision of the circuit court in plaintiff R.C. Spielman's declaratory judgment action concerning the zoning of certain Rock Island County property owned by him.

The county, though a defendant, took no appeal from the court's action. The circuit court ruled that Spielman's property had been validly and properly zoned to a C-3 (commercial) classification by the Rock Island Board of Supervisors in October 1973. It also ruled that no subsequent action taken by the board had validly altered the rezoning taken in October 1973, and therefore it found that the property was zoned C-3 (commercial).

The intervenors, who are adjoining property owners, appeal from the decision of the circuit court and argue (1) that the action of the county board in October 1973 was invalid and void because the zoning board of appeals had issued its findings of fact four days after the time limit set for such findings by zoning ordinance and (2) that the plaintiff is barred by the doctrine of laches from challenging other county board action, taken in December 1974, which sought to declare the property's zoning classification as AG-1 (agriculture).

The record reveals that the controversy began on July 2, 1973, when George Yeager and John Fitzgerald filed a petition with the Rock Island County Zoning Board of Appeals (hereinafter ZBA). They sought to rezone a 19.35-acre tract of farmland in Hampton Township from AG-1 (rural agricultural) classification to C-3 (heavy commercial). Their petition was accompanied by a plat prepared by plaintiff Spielman indicating plans to construct an auto auction business and a recreational facility with pool and tennis courts. The petition was set for hearing on August 16, 1973, and adjoining property owners were duly notified. The proposed rezoning petition was met with unanimous disapproval by all the adjoining property owners, being the intervenors herein. Intervenor Deere & Company owned considerable acreage to the west of the Spielman tract. The objections were based upon the fact that the usage of the entire area was agricultural, with no commercial development. The larger segment of property, however, owned by Deere & Co., was zoned "manufacturing." The objectors feared that an auto auction business would be out of keeping with the character of the area.

At the ZBA hearing, some question was raised with respect to Deere's objections, since their adjoining property had an M-1 (manufacturing) classification. At the close of the hearing, Deere & Co. requested that the zoning administrator notify them of any action taken by the ZBA on the petition. Thereafter, on September 21, 1973, the objectors filed written objections to the proposed rezoning with the county clerk, as the county board of supervisors had final authority to decide the petitioner's request.

Thereafter, on September 27, 1973, the ZBA voted to grant the rezoning request, but no notice of such decision was sent to Deere. A little more than a week later, on October 4, 1973, the ZBA adopted its findings of fact on the petition, emphasizing the fact that adjoining property carried the M-1 classification and that the proposed change would show a logical progression. The issuance of the findings of fact came 49 days after the ZBA hearing, in violation of the county zoning ordinance calling for such findings within 45 days after the hearing.

The petition, with ZBA recommendation, then went before the county board on October 16, 1973, and the board voted unanimously to adopt a resolution granting the rezoning request. There was no indication in the minutes of the meeting that the board had been made aware of any objections to the proposed change in zoning. Spielman attended the meeting and Yeager, still the owner, was notified by letter of the action. No notice was given to the objectors. Evidence in the record indicated that Spielman thereafter, on November 3, 1973, purchased the land from Yeager and Fitzgerald. Later, he sold back to them the north five acres of the property.

Sometime in the late winter of 1974, after the north five acres had been offered for sale as commercial property, the objectors first became aware of the zoning change adopted by the county board on October 16, 1973. They vigorously voiced their protest with the county board. On March 20, 1974, the county board met and considered what action to take with respect to the Spielman property and the Yeager and Fitzgerald property. Board members at the time were extremely upset that the zoning administrator had not informed them before of the unanimous objection to the zoning change. At the March 20, 1974, meeting the board voted unanimously to rescind their October 16, 1973, action adopting the rezoning for the 19-acre tract of land. The board also at that meeting terminated the services of the zoning administrator who had failed to inform them fully concerning the petition and the objections.

Thereafter, on the advice of counsel that its prior rescission was ineffective without notice and public hearing, the county board filed its own petition to rezone the Spielman tract (including the five acres in the north) from C-3 back to AG-1. Notice was given on the petition, and a ZBA hearing was held on July 18, 1974. Spielman attended the hearing and testified.

The same summer, on August 19, 1974, while the county board's petition with respect to the Spielman property was pending, Deere & Company petitioned to rezone its adjoining property (557 acres) from M-1 (manufacturing) to AG-1. Along with its own petition, Deere filed a motion to consolidate the county-initiated Spielman petition with its own petition and to reopen hearings in the former. The ZBA refused to reopen the Spielman property hearing. Thereafter, public hearing was held in the Deere petition case. That same day the ZBA voted to retain a C-3 classification for the Spielman property. Subsequent to that action, the ZBA voted to grant Deere's petition to rezone its property.

Thereafter, the State's Attorney injected his opinion concerning the matters as to plaintiff's property that had taken place. He made a full review of the matter and indicated, in a written letter to the board, his conclusions. Such conclusions were: (1) that the initial board action that changed the zoning to C-3 was void because of the late findings of fact by the ZBA, and (2) that the rescission action of March 20, 1974, was valid as a reconsideration of the board's earlier action. He advised the board that the Spielman property was and at all times remained AG-1, as there had been no valid and effective change. He recommended that action on the pending petition to rezone to AG-1 be tabled.

On December 17, 1974, the board met and considered all pending zoning matters. It followed the State's Attorney's recommendations to the letter. The meeting was attended by Spielman's wife and by representatives of Deere & Company. The board tabled its own petition to rezone the Spielman property, declaring that the property had been, and remained, zoned AG-1. The board then voted to grant the petition of Deere & Company to rezone its adjoining acreage from M-1 to AG-1. Spielman received no formal notice of the action taken by the board in its meeting on December 17, 1974. He testified at trial that his attorney had informed him that he need not do anything until he received official notice of any board action.

Thereafter, according to evidence presented at the hearing in the declaratory judgment action and accepted by the trial court, Spielman expended about $5,000 in creating a commercial use of the property. He did not seek, nor was he denied a building permit for that use. Testimony at the hearing indicated that Spielman convinced county authorities that his commercial use was consistent with AG-1 zoning and did not require a ...


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