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06/10/87 the Beverly Bank Et Al., v. the County of Cook

June 10, 1987

THE BEVERLY BANK ET AL., PLAINTIFFS-APPELLANTS

v.

THE COUNTY OF COOK, DEFENDANT-APPELLEE (COMMITTEE TO SAVE OUR ENVIRONMENT ET AL., INTERVENING, DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

510 N.E.2d 941, 157 Ill. App. 3d 601, 109 Ill. Dec. 873 1987.IL.778

Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiffs, the Beverly Bank, as trustee, and Harry A. Carlson, doing business as South Suburban Development Company, sought declaratory and injunctive relief when defendant County of Cook denied plaintiffs the requested zoning relief for the development of a sanitary landfill. Other defendants were permitted to intervene. Following an evidentiary hearing, the trial court entered judgment in favor of defendants. The trial court found that the zoning ordinance was reasonable and not unconstitutional, and plaintiffs do not appeal from that finding. Plaintiffs appeal only from the court's findings that State law does not preempt the county's zoning authority as a home rule unit and that the county is not estopped from exercising its zoning authority.

The dispute over the zoning of the subject property has been prolonged now for over a decade and was previously before this court in Carlson v. Briceland (1978), 61 Ill. App. 3d 247, 377 N.E.2d 1138, modified (1979), 75 Ill. 2d 589, 401 N.E.2d 1390. The 40 acres of property in Cook County are owned by Beverly Bank as trustee and are sought to be developed by Carlson as a sanitary landfill and reclamation project. The property is zoned R-3, single-family residence. In 1960, Cook County had issued to the prior owners of the property a special use permit authorizing them to conduct surface mining operations. Surface mining operations under the permit have continued after Carlson bought the land.

Prior to January 1975, Carlson executed a contract to buy the subject property, contingent on his being able to develop the property as a sanitary landfill. In April 1975, Carlson applied for a Department of Mines and Minerals permit to mine peat on the subject property and to reclaim the mined land by sanitary filling. Notice was sent to Cook County of the application, and the County filed no objection. In May, the permit was issued. In April 1975, Carlson also applied for an Illinois Environmental Protection Agency permit to develop a sanitary landfill, and in May the permit was issued, contingent upon Carlson's obtaining zoning approval from the county. On July 1, 1975, Carlson waived the contingency in his purchase contract and bought the property for $120,000.

On July 7, 1975, Carlson filed the original complaint in this action against the Illinois EPA to declare invalid and enjoin the enforcement of the zoning contingency in the permit. On July 25, Cook County intervened as a party defendant. Carlson began development of the property in July or August 1975. He spent $130,000 to develop the site as a sanitary landfill and estimates that he would need to spend $400,000 to $500,000 to complete the project.

The trial court held that Cook County lacked the zoning authority to determine the site of the landfill. On November 26, 1975, the trial court entered summary judgment against the Illinois EPA, invalidating the environmental permit condition. The trial court also dismissed Cook County's counterclaim. This court reversed, finding that the county zoning restrictions were applicable based on the county's home rule status. (Carlson v. Briceland (1978), 61 Ill. App. 3d 247, 377 N.E.2d 1138.) Our supreme court found that this court correctly held that the permit holder was subject to the county's zoning authority. However, this court had remanded with directions to enter an injunction against plaintiff's landfill project until the county granted a permit. The supreme court found that this order deprived the parties of any hearing on the counterclaim for injunction. Thus, the court modified this court's decision so as to reflect that the cause was remanded to the trial court for further proceedings consistent with its opinion in County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553. (Carlson v. Briceland (1979), 75 Ill. 2d 589, 401 N.E.2d 1390.) In Sexton, the court held that the county, as a home rule unit, had concurrent jurisdiction with the Illinois EPA in regard to landfills.

This court then remanded the cause to the trial court for a hearing on Carlson's answer to the county's counterclaim for an injunction. On September 21, 1978, the trial court granted the county's preliminary injunction prohibiting Carlson from proceeding with the landfill project until further order of the court, or until granted a special use permit by the Cook County zoning board of appeals. The board recommended denial of the zoning relief requested by Carlson, and the Cook County board of commissioners subsequently denied Carlson's application for a unique use permit to use the subject site as a sanitary landfill.

Plaintiffs then filed the present suit for declaratory judgment and other relief. Will County, village of Orland Park, a citizen group called Committee to Save Our Environment, and four banks as trustees under land trusts were permitted to intervene as defendants. In 1981, this case was consolidated with a suit brought against plaintiffs by the Committee to Save Our Environment.

Plaintiffs have expressly adopted the fact findings of the trial court. Because the fact findings are not disputed, and the testimony offered at the evidentiary hearing was mainly in regard to the issue of the reasonableness of the zoning restriction, an issue which is not before us on appeal, most of the testimony is not repeated here.

The amended complaint alleged that the zoning ordinance was unconstitutional and that to apply the zoning ordinance would improperly give retroactive effect to the 1976 home rule ordinance. It alleged further that the county failed to object to plaintiffs' sanitary landfill reclamation plan filed with the Illinois Department of Mines and Minerals, and thus the county was estopped from asserting its zoning ordinance against plaintiffs. Moreover, the Illinois Land Conservation and Reclamation Act rendered the county zoning ordinance inapplicable to plaintiffs' landfill project. The complaint sought a declaration that the 1975 zoning ordinance was void; a declaration that plaintiffs had a ...


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