Appeal from Circuit Court of McLean County. No. 92MR101. Honorable William T. Caisley, Judge Presiding.
As Corrected March 31, 1994. Petition for Rehearing and Released for Publication April 18, 1994. Petition for Leave to Appeal Denied October 6, 1994.
Honorable Carl A. Lund, J., Honorable John T. McCULLOUGH, P.j., Honorable James A. Knecht, J.
The opinion of the court was delivered by: Lund
JUSTICE LUND delivered the opinion of the court:
This appeal by the Village of Downs (Village) arises from an order of the circuit court of McLean County granting plaintiff's motion for summary judgment and holding the McLean County zoning ordinance prohibiting plaintiff's use of land for an asphalt plant was unreasonable and arbitrary and bears no reasonable relation to public health, safety, morals, or welfare. Because relief was granted by summary judgment, it necessarily follows that the trial court decided there was no existing question of fact. See Smith v. Rengel (1981), 97 Ill. App. 3d 204, 206, 422 N.E.2d 1146, 1148, 52 Ill. Dec. 937.
Plaintiff Freesen, Inc., cross-appealed from an order of the trial court allowing the Village to intervene.
Plaintiff desires to construct an asphalt plant in a gravel-pit area located across Interstate 74, but within 1 1/2 miles of the Village. The gravel-pit area and the Village are located in McLean County (County). County zoning limited the gravel-pit area to agricultural use.
Plaintiff initially requested, by petition to the McLean County Zoning Board of Appeals (Zoning Board), a zoning change from "A-Agriculture District" to "M-2 General Manufacturing District." The Zoning Board heard testimony and received documents from plaintiff and other parties, including representatives of the Village. The Zoning Board recommended to the McLean County Board of Supervisors (County Board) that the variance sought by plaintiff be approved. The County Board voted 13 to 3 against plaintiff's request.
CIRCUIT COURT PROCEEDINGS
On July 21, 1992, plaintiff filed a complaint against the County alleging, in count I, deprivation of the highest and best use of plaintiff's property, with such prohibition bearing no reasonable relationship to public health, safety, morals, and welfare, and a violation of plaintiff's rights guaranteed by the fourteenth amendment of the Constitution of the United States (U.S. Const., amend. XIV).
On August 11, 1992, the County entered its appearance without answer or other pleadings. Plaintiff filed a motion for summary judgment as to count I the next day, accompanied by an affidavit of O. Robert Freesen, chairman of plaintiff's board, which affidavit incorporated the findings of fact and recommendations of the Zoning Board.
The summary judgment motion was noticed for hearing for August 17, 1992, and, on that date, the County filed a three-page response outlining the history of the matter and stating the issue "is a mixed question of fact and law and is inappropriate for resolution under summary judgment." Plaintiff filed a 28-page memorandum of law on August 17, 1992, and a five-page order was entered the same day granting plaintiff summary judgment. That order stated "use of this property for an asphalt plant is reasonable, and the zoning ordinance which prohibits such a use is unreasonable and arbitrary." The order also stated the "parties agree that there is no genuine issue of material fact and only a question of law is presented to the Court."
On August 28, 1992, the Village petitioned to intervene and, on September 8, 1992, the County filed a motion to reconsider the summary judgment order. After various other pleadings and arguments on June 2, 1993, the circuit court, in a lengthy opinion, allowed petitioner to intervene and ...