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Boughton Truck. & Mat., Inc. v. Cty of Will

OPINION FILED JANUARY 11, 1983.

BOUGHTON TRUCKING AND MATERIALS, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF WILL, DEFENDANT-APPELLANT. — (THE BANK OF NAPERVILLE, TRUSTEE, ET AL., FIRST INTERVENING DEFENDANTS-APPELLANTS; WILLIAM CLOW ET AL., SECOND INTERVENING DEFENDANTS-APPELLANTS.)



Appeal from the Circuit Court of Will County; the Hon. John Verklan, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

The defendants, County of Will and certain individual and corporate intervenors, appeal from the decision of the circuit court of Will County, sitting in review over a denial by the county board of a request for a special use permit by plaintiffs Boughton Trucking and Materials, Inc., and Lloyd Boughton, Roy Brossman, Leona Boughton and IAA Trust Company (hereinafter Boughton). The circuit court found that the county zoning ordinance, and the denial of a special use permit to Boughton thereunder, bore no substantial relationship to the public health, safety and welfare, and that, as applied to Boughton's application, it was arbitrary, capricious and void. It ordered that Boughton be permitted to use the subject property for the purpose of mining and quarrying sand, gravel and limestone. From the court's decision, overturning the county's action in denying a special use permit, the defendants now appeal. They contend that Boughton failed to meet its burden of establishing that the board's action was arbitrary, capricious and bore no substantial relationship to the public health, safety and welfare; (2) that the trial judge's findings of fact were contrary to the manifest weight of the evidence; and (3) that the trial judge improperly substituted his judgment for the legislative judgment made by the county board.

The record reveals that the plaintiffs are the owners and would-be developers of a 201-acre parcel of property located in Wheatland Township, Will County. Plaintiff Walter Boughton entered into an option to buy the site in 1979, and at that time it was zoned A-1 Agricultural, being used as a farm. Thereafter, Boughton filed an application with the county requesting a special use permit, under the existing A-1 zoning district, for the mining and quarrying, with blasting, of the deposits of sand, gravel and limestone underlying the subject property. Approximately 100 acres of the property would be mined and quarried, with the remaining acreage either farmed or acting as a buffer zone. Plaintiff Boughton Trucking and Materials, Inc., is engaged in the business of mining and quarrying sand, gravel and limestone at a site approximately three-quarters of a mile south of the subject property. Both the zoning board of appeals and the county board of Will County voted to deny the requested special use permit to Boughton. Thereafter, Boughton filed the instant action in circuit court seeking review over, and reversal of the county board's denial of the special use permit for mining and quarrying. In the trial court, various contiguous and nearby property owners intervened as defendants, seeking affirmance of the county board's action.

• 1 The applicable rules concerning challenges to zoning actions by a legislative body are well established and not disputed herein. As set forth by the Illinois Supreme Court in La Grange State Bank v. County of Cook (1979), 75 Ill.2d 301, 307-08, 388 N.E.2d 388:

"* * * Because zoning is mainly a legislative function [citation], it is primarily within the province of the local municipal body to determine the uses of property and to establish zoning classifications [citations]. As this court has previously asserted:

`It is clear from many holdings of this court that a zoning ordinance will be upheld if it bears any substantial relationship to the public health, safety, comfort or welfare. An ordinance will be presumed to be valid, and the one attacking an ordinance bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. [Citations.]' [Citation.]

The relevant factors that the trial court may consider in determining the validity of a zoning decision were enunciated by this court in La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46-47. In the special use context, these factors have been summarized as follows: `the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property's value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses.' [Citation.] No one factor is controlling. [Citation.]" (See also La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40; Meyer Material Co. v. County of Will (1977), 51 Ill. App.3d 821, 366 N.E.2d 1149.)

It is also firmly established that the trial court, sitting without a jury in such actions, is to weigh the conflicting testimony, and its findings will not be disturbed unless contrary to the manifest weight of the evidence. (La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 48.) As the court in La Salle National Bank also noted, the validity of each zoning ordinance and action must be determined on the facts and circumstances involved, set within the general considerations set forth above. With these rules in mind, we turn then to consideration of the relevant factors, within the factual context of this case.

• 2 There is no dispute that the subject property, at the time of the court hearing and for many years previous, had been used essentially for agricultural purposes as a corn and bean farm. The property is not within 1 1/2 miles of any municipality and is situate in an unincorporated area of Will County. Zoning is A-1 Agricultural, allowing certain agricultural uses, and permitting mining and quarrying only when specifically authorized by the county board as a special use. It was a special use permit, under A-1 zoning, that Boughton sought from the county in order to operate a mine and quarry operation. The existing uses and zoning of nearby property were accurately stated by the trial court in its findings:

"8. The nearby land to the North, East and West of the subject land is used and zoned A-1 for agricultural purposes for grain farming as is the East half of the land adjoining to the South, while the West half of the land adjoining on the South across 111th Street has been used and zoned for a number of years as a quarry with blasting operated by Avery Gravel Company together with a concrete plant operation, the Avery property consisting of approximately 140 acres having been rezoned by Will County in 1980 for general industrial use with a special use for quarring and mining with blasting and the operation of a concrete plant. To the West of the property approximately one-quarter (1/4) mile West of the DuPage River is a church and to the Northwest of the property from three-quarters (3/4) to one mile Northwest of the river is a residential subdivision of approximately 160 acres in area. There is a scattering of farm houses and agricultural buildings in all directions from the subject land. One-half (1/2) mile South of the Avery quarry [bordering the proposed property on the southwest] is a quarry on the North side of 119th Street operated by the Plaintiff, Boughton Trucking and Materials, Inc. Immediately South of the Boughton quarry on the South side of 119th Street is a quarry operated by E and E Hauling Company. Approximately one mile Southeast of the latter quarry is a quarry operated by Elmhurst-Chicago Stone Company. All of these quarries mine limestone with blasting."

While agricultural use dominates most of the adjacent land, it is evident from the record that considerable mining and quarrying is done on adjacent and nearby property to the south. There is no dispute that valuable deposits of limestone, sand, and gravel underlie the subject property.

The evidence concerning the economic implications of the proposed special use, on the property itself and on adjoining and nearby properties, was somewhat contradictory. Boughton's evidence indicated that the highest and best use of the property was for the proposed mining and quarrying, with a subsequent return to open space, pursuant to applicable requirements for reclamation under the county zoning ordinance. The experts' testimony indicated that the property's farm value was $3,000 to $4,000 per acre, while its value as a mine and quarry was double that, or $8,000 to $8,500 per acre. The defense expert testimony focused upon the economic effect of the proposed use upon nearby property. That evidence indicated that the property of the Clows, the intervening defendants, lying contiguous and immediately north, had a market value between $2,900 and $3,400. It was the expert's opinion that if the Boughton property were quarried, values on the Clow land would fall on the low side of that range, or $2,900. This finding was disputed by plaintiff's expert, who concluded that there would be no adverse affect upon the surrounding farm property from the addition of another quarry on the proposed property. As noted, there is an existing mining and quarry operation, with blasting, on nearby property to the south.

Conflicting evidence was also before the court respecting various effects of the mining operations upon nearby properties. An explosives expert, who had done extensive blasting in the Will County quarries for a number of years, testified to the relatively limited number of complaints about blasting and as to the limited effects of blasting. Plaintiff Walter Boughton, who utilizes blasting at his nearby quarry, testified to the minimal damage accompanying such operations. Boughton could not deny that the blasting causes perceptible vibration, and one intervening defendant, a nearby resident, testified that the blasting from the existing quarries causes windows to shake in her house and the contents of the house to rattle. The evidence also indicated Boughton's plans and intentions to comply with applicable regulatory provisions of the county zoning ordinance which prescribes procedures for the handling of explosives and the blasting, and establishes hours for such work.

The court also heard evidence upon the effect of the proposed mining and quarrying upon the area's water supply. A geologist who had done limited field testing testified for the plaintiffs that the proposed quarry would have no effect upon shallow water wells 1,000 feet or more from the quarry site and little effect on those closer. He testified that there would be no effect upon properties to the west and north of Du Page River, where the intervening defendants' properties are located. Deep water wells, according to plaintiffs' experts, would not be affected. The defense expert, while admitting he had not ...


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