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06/01/88 the County of Kendall, v. Aurora National Bank Trust

June 1, 1988





524 N.E.2d 262, 170 Ill. App. 3d 212, 120 Ill. Dec. 497 1988.IL.862

Appeal from the Circuit Court of Kendall County; the Hon. Douglas R. Engel, Judge, presiding.


JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and DUNN, J., concur.


Defendants, Donald and Carol Hamman, are the beneficiaries of a land trust held by defendant Aurora National Bank. All of the defendants appeal from orders of the circuit court of Kendall County which temporarily and permanently enjoined them from conducting certain activities on property they own in unincorporated Kendall County. We reverse.

The parcel of land owned by defendants is zoned agricultural pursuant to the Kendall County zoning ordinance. Early in April of 1987 Donald Hamman planted sod on 90 acres of the 250-acre site at a cost of $58,900. Hamman intended to excavate a portion of the property for the asserted purpose of creating a pond from which he could irrigate the sod. Before he could begin digging, however, the county sought both a preliminary and permanent injunction restraining defendants from excavating and/or removing sand from the premises. The county's complaint alleged essentially that the Hammans planned to mine sand on their property and that mining was prohibited in an agricultural zone.

At the hearings on the complaint, George Bell, the county zoning administrator, testified that he did not have jurisdiction over lands used to grow sod because the cultivation of sod is an agricultural use. He had never before exercised jurisdiction over a farmer digging a pond or creating a lake. Nor had he concerned himself with whether the materials removed from the ground in order to develop such ponds was sold or given away. The only reason he attempted to enforce the zoning regulations relative to the Hammans' pond was because he knew Donald Hamman owned and operated a sand and gravel mining business elsewhere in the county and Hamman had told him that he would probably sell the sand and gravel he planned to remove from the subject property. Bell was also aware that Hamman had previously applied to have the subject site rezoned from an agricultural classification to a mining classification. Pursuant to Hamman's request the application had been on hold for sometime, but it had not been withdrawn. Bell thought Hamman might be planning to mine, rather than farm, the subject site.

The county elicited further testimony from Bell that was meant to show that ponds dug by other farmers in the county had involved the extraction of clay and dirt but not gravel or sand, and that the zoning ordinance regulated extraction of the latter but not the former. On cross-examination, however, it became evident the witness did not really know what was removed from the earth for other ponds because he had never concerned himself with such excavations.

Donald Hamman's testimony indicated that he had grown up on a farm and that he and his sons now farm about 900 acres, mostly in corn and soybeans. The Hammans' acreage is situated in several different locations. At one of these locations, other than the site involved in this suit, Donald Hamman operates a commercial sand and gravel quarry. The year before the hearing Hamman's sons had persuaded him to diversify crops. As a result he planted 100 acres of sod on the site of his sand and gravel quarry. Water from the gravel pit is used to water the sod. When questioning him as an adverse witness, the State's Attorney prompted testimony from Hamman to show that he had applied for a zoning change which would allow him to also put a sand and gravel quarry on the subject site but had changed his mind when he became aware that he probably could not get his rezoning application approved. The witness denied that was the reason for changing his mind about the use of his land and indicated that he might again seek rezoning at a future time. He reiterated that he now wished to plant sod on the subject site because of his sons' urging to diversify his farming operation. Hamman explained that the site has a subsurface of sand that goes down to 27 or 28 feet, at which point clay begins.

Much testimony was offered by witnesses from nurseries and sod farms regarding the need for irrigation for such farms, the methods used to irrigate, and the feasibility and pros and cons of the various methods. Expert testimony was offered by both parties regarding the size of the lake which would be needed to supply water for the 90 acres of sod planted by Hamman and the adequacy of the lake proposed by the defendants.

Following the first hearing the court entered an order temporarily restraining defendants from excavating or removing sand from the site. In the order the court found that the Hammans were planning to engage in mining activities in an agricultural zone and thus were in violation of the county zoning ordinance. Subsequently, a permanent injunction issued which set forth the same findings and restraints as had been recited in the temporary order. Both injunction orders were preceded by letter opinions from the trial Judge in which he enunciated the following reasons for his Conclusion that the Hammans were mining their property rather than farming it: (1) Donald Hamman already operated a sand and gravel operation at another location in Kendall County; (2) Hamman had previously submitted and never withdrawn an application for a zoning change which would allow the mining of sand and gravel on the subject property; (3) construction of the pond would require removal of 2 1/2 feet to 3 feet of topsoil and 24 feet to 25 feet of sand; (4) Hamman intended to remove the sand from the subject site and probably would sell it commercially; (5) the pond proposed by defendant would be inadequate for the purpose of watering sod. The court concluded:

"The above facts indicate to the Court that the Defendant would not be making an economic or business decision after digging a pond to provide water for sod but was, ...

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