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Cosmopolitan Nat'l Bk v. County of Cook





Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.


The present appeal arises out of a declaratory judgment action brought to test the validity of a Cook County zoning ordinance and a denial by the county of a special use permit for operating a sanitary landfill. The plaintiffs include the trustee who holds legal title to the subject property, the beneficiary of the land trust, and John Sexton Contractors Co. (Sexton), the lessee of the subject property under a fill lease agreement. Under the terms of the agreement, Sexton was to develop the property as a sanitary landfill for general municipal refuse, excluding special waste, hazardous and toxic materials and liquid waste. The defendants in this case are Cook County and the village of Richton Park which was given permission to intervene in the trial court proceedings below.

The subject property is a parcel approximately 84 acres in size located in unincorporated Rich Township, Cook County, Illinois. The property is bounded on the east by Interstate Highway 57 (I-57), on the south by Sauk Trail, on the west by Central Road and on the north by gas pipeline, electric company and railroad rights of way.

The type of facility referred to as a sanitary landfill, which Sexton operated on the subject property for nearly two years and which it now seeks to resume operating, has been defined in the Illinois Environmental Protection Act as

"a facility * * * for the disposal of waste on land * * * without creating nuisances or hazards to public health or safety, by confining the refuse to the smallest practical volume and covering it with a layer of earth at the conclusion of each day's operation * * *." (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1003(x).)

The compacting and daily covering of refuse avoids the old-fashioned open dump problems of rodents, flies, odors and burning. The presence of a natural high-impermeability clay seal, supplemented by additional clay sealing when necessary, prevents the migration of liquids out of the landfill and thus protects underground water supplies from contamination. Sexton's engineering design showed 10 trenches on the subject property were to be successively excavated and landfilled. Landfill operations were to cease after the last trench was filled approximately 10 years later, and the property was then to be developed for industrial and open space uses.

The present case has a lengthy legal and historical background which includes prior litigation. In order to fully appreciate the present posture of these litigants, that portion of the history which is relevant has been summarized.

On May 22, 1975, Sexton applied to the Illinois Environmental Protection Agency (EPA) for a solid waste management development permit to develop (not operate) the subject property as a sanitary landfill. On August 25, 1975, the permit was granted subject to a number of standard conditions, among them a condition which specified that the permit did not release Sexton from compliance with local zoning ordinances.

On September 26, 1975, the Illinois Supreme Court announced its decision in Carlson v. Village of Worth (1975), 62 Ill.2d 406, 343 N.E.2d 493, which invalidated the practice of issuing sanitary landfill permits subject to local zoning restrictions. The court cited its previous decision in O'Connor v. City of Rockford (1972), 52 Ill.2d 360, 288 N.E.2d 432, and held that with respect to sanitary landfills local zoning jurisdiction was preempted by the Illinois Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1001 et seq.) and the EPA, which now had exclusive jurisdiction, was not authorized to delegate that responsibility to local zoning bodies.

In reliance on Carlson, Sexton never applied to the county for rezoning or a special use permit but continued to comply with EPA procedures for obtaining a permit to operate a sanitary landfill. The EPA required Sexton to submit responses on eight points dealing with environmental impact and engineering issues, and site suitability, land use and zoning issues. *fn1 On June 15, 1976, Sexton submitted its responses on the EPA's eight points and shortly thereafter Cook County and Richton Park submitted additional materials challenging Sexton's responses. On September 13, 1976, after considering the materials in support and in opposition to the landfill, the EPA issued Sexton a second development permit, this one not subject to local zoning.

Nearly seven months later, on March 8, 1977, Cook County filed a complaint against Sexton alleging the development work was in violation of the county zoning ordinance and seeking to enjoin further development or operation of the sanitary landfill. Sexton pleaded several affirmative defenses in its answer, among them the defense that local zoning jurisdiction was preempted under Carlson and that the EPA now had exclusive jurisdiction over landfills.

During the pendency of this action, the EPA issued findings of fact with respect to its eight points. The agency found that Sexton had met all the requirements of the Environmental Protection Act and the rules and regulations of the Illinois Pollution Control Board, as well as all obligations necessitated by the EPA's land use and site suitability review. These lengthy findings of fact may be summarized as follows: the underlying geology of the proposed site was suitable for landfill development; the engineering plans submitted by Sexton were adequate for landfill development and operation in an environmentally sound manner; the landfill was located so as to minimize scenic blight; the landfill was located so as to avoid any hazards to public health or safety and to minimize any offenses to the senses of persons residing, working, or traveling in the immediate vicinity of the site; the site was located so as to minimize incompatability with the character of the surrounding area; the location of the landfill was such that substantial depreciation of nearby property should not occur; there was a need in the area for a sanitary landfill and the need would grow more acute in the ensuing months; the landfill was located so as to avoid a continued adverse effect on the existing air and water quality; and the proposed site was well suited for its intended use as a landfill. The EPA also stated that Sexton had operated other landfills in the past in an environmentally safe manner and was considered a "good operator" by the agency. The EPA subsequently issued an operating permit to Sexton and landfill operations were commenced on September 28, 1977.

Shortly thereafter, on October 27, 1977, the circuit court ruled in favor of Sexton, holding that the EPA had exclusive jurisdiction over sanitary landfills and the county zoning jurisdiction had been preempted. A decree was entered dismissing the county's complaint and enjoining the county from interfering with Sexton's landfill operations. This dismissal was eventually appealed to the Illinois Supreme Court, which reversed in County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 389 N.E.2d 553. Distinguishing Carlson and O'Connor, the court held that under the 1970 Illinois Constitution a home rule unit has concurrent jurisdiction as to sanitary landfills with the EPA and the Illinois Pollution Control Board. On remand, the circuit court entered a preliminary injunction prohibiting Sexton from operating the landfill and granted the county's motion for judgment on the pleadings on October 16, 1979. At this time, the landfill had been operated just under two years and was approximately 20% filled.

Following the circuit court action, Sexton applied to the county to reclassify a portion of the subject property (Parcel 1) from R-4 single-family residential to P-2 open space and the balance (Parcel 2) from R-4 single family to I-1 restricted industrial. Application was also made for a special use permit to operate a sanitary landfill as an interim use. The Zoning Board of Appeals for Cook County held extensive hearings on the proposed zoning changes and special use permit during which Sexton and Richton Park presented numerous witnesses and submitted lengthy memoranda. On November 14, 1980, the zoning board issued a 71-page document of findings and recommendations to the Cook County Board of Commissioners. The zoning board made specific findings on numerous points and made recommendations based, in part, on the following considerations: the geology of the area and the proposed engineering design were suitable for landfill operations; the character of the subject property and surrounding property were suitable; there was a demonstrable need for a landfill at this site; a tax impact study showed a tenfold greater revenue to local taxing bodies by permitting the proposed zoning change; the effect of the prior sanitary landfill operations on nearby property, especially the showing of a comparable or better rate of land value appreciation for a residential subdivision nearest the landfill site when compared to another subdivision 2 1/2 miles away; and the absence of any adverse effect on traffic patterns. The zoning board then recommended by a four to one vote that the rezoning and special use applied for be granted subject to certain conditions. *fn2

The Cook County board decided not to concur with the zoning board findings and voted to deny plaintiffs' application for rezoning and special use. The plaintiffs in the present case then filed suit for a declaratory judgment that the county zoning ordinance was invalid as it prohibited the interim use of a sanitary landfill and the ultimate uses of Parcel 1 for open space and Parcel 2 for restricted industrial. The trial court held the county zoning ordinance invalid and void in that it prohibited light industrial and open space uses, but denied plaintiffs' prayer for relief with respect to the sanitary landfill use. Plaintiffs appeal from that portion of the judgment upholding the denial of a special use permit to operate a sanitary landfill on the subject property. Defendants, Cook County and Richton Park, cross-appeal from that portion of the order holding the county zoning ordinance invalid insofar as it prohibits light industrial and open space uses on the property in question.


We will first address defendants' cross-appeal dealing with the invalidation of the county zoning ordinance.

• 1 A zoning ordinance, like any other legislative enactment, is presumed valid, and the burden of proving its invalidity falls upon the one who attacks the ordinance. (Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 354 N.E.2d 899.) This presumption may be overcome by a property owner who shows by clear and convincing evidence that the ordinance as applied to him is unreasonable and arbitrary and bears no substantial relation to the public health, safety, morals, or welfare. County of Cook v. Priester (1976), 62 Ill.2d 357, 368, 342 N.E.2d 41; Drogos v. Village of Bensenville (1981), 100 Ill. App.3d 48, 53, 426 N.E.2d 1276.

• 2 As the court noted in La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46-47, 145 N.E.2d 65, among the factors to be taken into consideration when determining whether a zoning ordinance bears sufficient relation to the public health, safety, or welfare are the following: (1) the existing uses and the zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of the plaintiff promotes the health, safety, morals, or welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property (hereinafter referred to as the La Salle National Bank factors). The validity of each zoning ordinance must be determined on its own facts and circumstances; no single factor is controlling. La Salle National Bank; Oak Park Trust & Savings Bank v. Village of Palos Park (1982), 106 Ill. App.3d 394, 435 N.E.2d 1265.

Plaintiffs argue there is no substantial dispute that the present R-4 single-family residential zoning does not represent the highest and best use of the property. The county explicitly concedes as much and the comprehensive plans of both the county and Richton Park provide for this property to be ultimately zoned partly light industrial and partly open space. Furthermore, in invalidating the R-4 classification, the trial court entered favorable findings of fact on all of the six La Salle National Bank factors which are all supported by the record.

• 3 Nevertheless, a court has no power to rezone property from one classification to another. That is a legislative function. (Reeve v. Village of Glenview (1963), 29 Ill.2d 611, 195 N.E.2d 188; Harris Trust & Savings Bank v. Duggan (1982), 105 Ill. App.3d 839, 435 N.E.2d 130.) A zoning ordinance may be set aside only to the extent necessary to permit the specific use proposed by the landowner (Schultz v. Village of Lisle (1972), 53 Ill.2d 39, 289 N.E.2d 614). Accordingly, in reviewing the validity of a zoning ordinance, a court should not inquire whether the property as presently zoned might be better zoned some other way. To do so would amount to judicial rezoning. The proper scope of review was correctly stated in La Salle National Bank v. City of Chicago (1970), 130 Ill. App.2d 457, 460, 264 N.E.2d 799:

"The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find from clear evidence before it that the specific use contemplated by the owner is reasonable and may be permitted." (Emphasis added.)

• 4 Defendants, cross-appellants argue that plaintiffs never committed themselves to any specific end use for the subject property and that the portion of the judgment voiding the zoning ordinance was so broadly drawn that it amounted to judicial rezoning. We agree.

The record reveals that Sexton had only committed itself to a specific interim use of the subject property as a sanitary landfill. Landfill operations were not to cease until approximately eight years later and plaintiffs only suggested methods by which the site might then be developed in accordance with light industrial and open space uses. The vagueness of plaintiffs' end use plan was also reflected in the judgment entered below which provided that the zoning ordinance was void "insofar as it purports to prohibit * * * light industrial use for Parcel 1 and open space use for Parcel 2 * * *, all of said uses being in accordance with the evidence presented to this court."

In effect, this judgment purports to rezone the property in question from R-4 to I-1 light industrial and P-2 open space. Such judicial rezoning is beyond the power of the court which is required to frame its order with respect to a specific use contemplated by the owner. (See Dolton v. Village of Mundelein (1967), 86 Ill. App.2d 245, 229 N.E.2d 681.) Accordingly, we reverse ...

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