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06/10/94 ROCKFORD BLACKTOP CONSTRUCTION COMPANY v.

June 10, 1994

ROCKFORD BLACKTOP CONSTRUCTION COMPANY, MARJORIE CHURCHILL AND LUCILLE SISSON, PLAINTIFFS-APPELLEES,
v.
THE COUNTY OF BOONE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Boone County. No. 91-MR-19. Honorable Ronald L. Pirrello, Judge, Presiding.

Released for Publication July 19, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Quetsch, Inglis, Bowman

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Defendant, the County of Boone (County), appeals the judgment of the circuit court which enjoined it from enforcing against plaintiffs' property the five-year limitation on special-use permits issued pursuant to section 20 of the Zoning Ordinance of Boone County (zoning ordinance) (Boone County, Ill., Zoning Ordinance § 20 (1984)). The sole issue for review is whether the trial court erred in finding section 20 invalid on the basis that the five-year limitation is arbitrary, capricious, and an unreasonable exercise of the County's police powers.

Plaintiffs, Rockford Blacktop Construction Company (Rockford Blacktop), Marjorie Churchill, and Lucille Sisson, filed a complaint for injunctive relief against the County, alleging that Rockford Blacktop was the contract purchaser of properties owned by Churchill and Sisson (Churchill and Sisson property). This property, at Irene and Graham Roads, is in an area zoned A-1 for agricultural use. Rockford Blacktop intended to use the property as a dolomitic limestone quarry.

At trial, Daniel Fischer, a geologist and vice-president of the aggregate producing division of Rockford Blacktop, testified that adjacent to the south side of the Churchill and Sisson property was an existing quarry operated by Rockford Blacktop, the Irene Quarry. Rockford Blacktop had been operating the Irene Quarry since the early 1960s. It intended to expand the Irene Quarry onto the Churchill and Sisson property. Fischer further testified that the cost to set up the equipment necessary to conduct a quarrying operation is between $30,000 and $50,000. In addition, there must be site preparation, which includes stripping and removing the overburden (soil overlying the limestone), fencing, building landscape berms, and seeding. During the first three years of operation, the quarry must build berms and plant trees on them. The zoning ordinance requiresreclamation when a quarry is closed, which entails regrading the slopes, installing topsoil, and reseeding. Fischer admitted that the cost of reclamation included reclaiming the existing quarry and that Rock ford Blacktop could have applied for a special-use permit which would not require the reclamation of the existing quarry.

Fischer explained that limestone is quarried by blasting the rock. Blasting can be controlled so that it causes no damage to nearby structures and causes minimal vibration. Rockford Blacktop seismographs every blast to ensure that it is below established limits for noise and vibration.

Fischer further stated that the estimated total cost to expand the Irene Quarry would be $200,000; however, if Rockford Blacktop were bound by the five-year permit, the total cost would be $528,000. Fischer explained the $328,000 difference as follows:

"If we only have 5 years to mine the property, we would only affect approximately 3 to 5 acres. 3 to 5 acres would not give us enough soil to do the reclamation on the--the lower part. The quarry processing area is almost 40 acres[.] * * * If we only mined 3 to 5 acres there is not enough soil to take from 3 to 5 acres and put onto 40 acres to--to do the reclamation; so we would have to haul in topsoil."

According to Fischer, the major use for limestone is in road construction as aggregates, and it also is used as "riprap" for erosion control, as a soil neutralizer for agriculture, and as fluxstone to purify steel. Fischer was unaware of any substitute for limestone for these purposes. Fischer opined that the demand for limestone will increase. Although there are between 15 and 20 other limestone quarries in the area, the Irene Quarry's limestone is high quality, and Fischer knew of only two other quarries with that quality of limestone. The depth of the existing quarry is 87 feet, and there are deposits that range to 300 feet; however, the quality varies more and is poorer deeper down. The projected life of the existing quarry is eight years.

On questioning by the court, Fischer stated that he could not estimate the "break-even" point for the operation and reclamation of a 15-acre quarry. Although the Department of Mines and Minerals is empowered to enforce vibration and noise limits, Fischer also did not know if it could shut down the operation. Fischer admitted on cross-examination that, even though Rockford Blacktop had not received any complaints in the past year, at the hearings on the special-use permit, there were complaints by nearby residents about the blasting. Fischer also admitted that the additional property would make the Irene Quarry the largest limestone quarry outside of Kane and Cook Counties and that there is a residential subdivision bordering the quarry.

Arthur Pincomb, a geologist and mine appraiser, testified that the average life of a quarry is 25 years. Pincomb estimated that the Irene Quarry and the Churchill and Sisson property would be worth $1,862,000. However, if the quarry would be limited to a five-year operation, it would be worth only $744,000. Pincomb stated that the stone in the Churchill and Sisson property "is one of the highest quality ledges available in the state" and that the section that is exposed in the Irene Quarry is high quality from top to bottom. This ledge extends from Iowa, through Illinois and Indiana. According to Pincomb, in nearly all areas it is "unmineable" because the ledge lies under hundreds of feet of overburden; by contrast, the Irene Quarry deposit sits in an erosional remnant caused by the glaciers.

Rolf Campbell, a city planning and zoning consultant and landscape architect, testified that he had never encountered a zoning ordinance that placed a time limit on earth materials extraction. The zoning ordinance did not have a time limit for any special uses other than mineral extraction. Campbell believed that several of the special uses listed in the ordinance were similar to mineral extraction, specifically airports and heliports, artificial lakes, commercial breeding and raising of nonfarm fowl and animals, boarding and breeding kennels, manufacture, storage and use of explosives, penal institutions, sanitary landfills, sewage disposal plants, shooting ranges, slaughterhouses, riding stables, and ...


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