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Knor v. County of Madison

OPINION FILED DECEMBER 5, 1986.

JOSEPH KNOR ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF MADISON ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County; the Hon. Norman Kinder, Jr., Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 6, 1987.

Plaintiffs, Joseph, Millie, and Phillip Knor, Whitney and Connie Law, Ernest and Ella Ostendorf, Donald and Marcia Koenig, and Robert and Karen Schriefer, appeal from a judgment of the circuit court of Madison County which allowed defendants, Leo Gieszelmann, Phillip McKinney, and the Edwardsville Gun Club, to retain a special use permit granted by defendant Madison County board. The record indicates the following facts.

On March 8, 1984, defendants Gieszelmann, McKinney, and Edwardsville Gun Club applied for a special use permit to (1) establish a gun club on a 40-acre tract of agricultural land in Pin Oak Township, and (2) allow for the serving of alcoholic beverages on the gun club premises. This 40-acre tract is located within and is a part of a 120-acre tract owned by defendants Gieszelmann and McKinney. The gun club was interested in purchasing the remaining 80 acres at a later time. The land owned by plaintiffs borders the 120-acre tract.

The Madison County zoning board of appeals heard evidence on this application, then issued a recommendation that the special use permit be denied. Subsequently, the Madison County board voted 22 to 2 in favor of granting the special use permit. Plaintiffs then filed an action in the circuit court requesting either administrative review or a declaratory judgment. The following evidence was introduced in the circuit court.

During and apparently prior to 1983, the gun club conducted operations at a location on Dunlap Lake in Madison County. After a court order closed down the operation at Dunlap Lake in October 1983, the gun club sought another location. The gun club offered to buy the instant 40-acre tract from Gieszelmann and McKinney if favorable zoning was obtained.

Gun club president James Peterson testified that the club's primary fund-raising activity was the conduct of registered trap and skeet shoots. Six registered shoots were conducted in 1983, primarily on Sundays. During a registered shoot, the contestants shoot at 100 or 200 targets. Peterson testified that most of the registered shoots previously conducted by the club consisted of 200 targets. The shooting lasted for approximately 2 1/2 to 3 hours. While a registered trap and skeet shoot would have anywhere from 15 to 55 contestants, Peterson was of the opinion that 40 contestants or more would be required for a financially successful shoot. While at Dunlap Lake, the club was normally open on Saturday and Sunday afternoons. When there was not a registered trap shoot, gun club members and guests would meet in groups of 10 to 20 and shoot informally. Peterson stated that it was possible that both formal and informal shooting would increase if the instant property became available. Specifically, the facility would be open for shooting on summer evenings and holidays.

Madison County Clerk Evelyn Bowles authenticated the record which was before the county board when it considered defendant's request for the instant special use permit. This record, which is part of the record on appeal, did not include the entire proceedings before the zoning board of appeals. The circuit court subsequently refused to consider such record.

Plaintiff Joseph Knor testified that he owns 80 acres of land adjoining the 40 acres the gun club initially wishes to purchase. Mr. Knor testified that the proposed gun club site was planted in soybeans at the time of the circuit court hearing and during the prior three years. He further testified that city water and sewer were unavailable in the area of the proposed gun club and that several wells in the locality had recently gone dry. Mr. Knor was allowed to read into evidence a portion of the zoning board of appeals' recommendation that the special use permit be denied. This portion of the recommendation concluded that the gun club would have an adverse effect on the proposed location (1) due to the lack of adequate public utilities (i.e., sewer, water, and roads) at the proposed location, and (2) because "area residents [would] feel intimidated by the establishment of a gun club and would be in a position whereby the sale and future developments in the area would be hampered." Mr. Knor had testified that he had other residences on his land which he would be willing to sell. The precise location of these residences in relation to the proposed gun club site is unclear from the record.

The circuit court denied Mr. Knor's attempt to testify as to the deleterious effect of the proposed gun club on the value of his property. During his offer of proof on this point, Mr. Knor testified that he used his property for hiking, photographing wildlife, and the quest for solitude. Mr. Knor believed that the establishment of a gun club adjacent to his property would render his property useless for these pursuits.

Plaintiff Donald Koenig testified that his current home is located approximately a quarter to a half mile from the gun club's former site on Dunlap Lake. Mr. Koenig stated that the repetitive noise from the shooting often occurred on weekends and holidays when he wished to use his backyard and that such noise was annoying. Mr. Koenig was of the opinion that the land he owned adjacent to the proposed gun club would be unsuitable for residential subdividing if the gun club located there.

Plaintiff Ernest Ostendorf testified that the property he owns adjacent to the proposed gun club was worth approximately $2,200 to $2,300 an acre at the time of the hearing before the zoning board of appeals. Mr. Ostendorf's attempt to testify as to the value of his land at the time of the hearing before the circuit court was denied.

Plaintiff Whitney Law testified that he owns a 2.43-acre tract of land located within the Gieszelmann-McKinney tract the gun club eventually wishes to purchase in its entirety. Mr. Law testified that he measured from the corner of his house closest to the initial 40-acre tract the gun club wishes to purchase to a lake located on this 40-acre tract. This distance was approximately 400 to 500 feet.

Plaintiff Robert Schriefer testified that several residences in the area of the proposed gun club were not shown on the map submitted at the hearing before the zoning board of appeals. Mr. Schriefer made no reference to the distance from these residences to the proposed gun club. Several photographs Mr. Schriefer took of the area near the proposed gun club prior to the hearing before the zoning board of appeals were admitted into evidence. These photographs show Staunton Road, the primary public access to the proposed gun club. Mr. Schriefer testified that Staunton Road is "breaking up" due to the traffic presently using it. Other photographs purporting to depict the site of the passage to the proposed gun club show that the proposed passage was planted in soybeans.

Defendant Leo Gieszelmann, Jr., testified that he wished to sell the nontillable portion of his farm to the gun club. Mr. Gieszelmann admitted that the land between the lakes on the proposed gun club site was tillable.

An engineer's drawing prepared at defendants' request was admitted into evidence. This drawing shows the distances from the proposed shooting range to residences to be more than 1,000 feet. This drawing apparently measures from the perimeter of the shooting ...


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