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10/26/94 COUNTY DU PAGE v. K-FIVE CONSTRUCTION

October 26, 1994

THE COUNTY OF DU PAGE, PLAINTIFF-APPELLANT,
v.
K-FIVE CONSTRUCTION CORPORATION, DEFENDANT-APPELLEE (DU PAGE MATERIALS COMPANY AND ELMHURST-CHICAGO STONE COMPANY, DEFENDANTS-INTERVENORS-APPELLEES; PEOPLE EX REL. ROLAND W. BURRIS, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, PLAINTIFF).



Appeal from the Circuit Court of Du Page County. Nos. 91-CH-474, 92-CH-1167. Honorable John W. Darrah, Judge, Presiding.

Released for Publication December 2, 1994.

Colwell, Inglis, Woodward

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, the County of Du Page (County), appeals from a judgment in favor of defendant, K-Five Construction Company (K-Five), and defendants-intervenors, Du Page Materials Company (Du Page Materials) and Elmhurst-Chicago Stone Company (ECS). The trial court denied the County's request for injunctive relief and statutory fines against defendants for their alleged illegal use and operation of an asphalt batching plant. On appeal, the County claims that (1) defendants' abandonment of the use of the asphalt plant defeats its previous status as a legal nonconforming use under the Du Page County zoning ordinance, (2) the asphalt plant is not a permitted accessory use to the nonconforming principal land use as a stone quarry, and (3) the County is not barred by the doctrines of equitable estoppel or laches from enforcing its zoning ordinance against defendants. We affirm.

The County's complaint concerns an asphalt batching plant located near Route 83 and North Avenue in unincorporated Du Page County on land owned by ECS. ECS bought the land, including the site which is the subject of this litigation, during the early 1920's. Much of the property has been used as a stone quarry over the past 70 years. Since the quarry was in operation prior to the inception of the Du Page County zoning ordinance, it is permitted as a preexisting use under the ordinance and operates as a legal nonconforming use.

An asphalt plant was placed on the property shortly after the land was bought in the 1920's. This plant was in operation when the Illinois Supreme Court issued a 1960 opinion holding that ECS had the right to utilize the entire property for its existing uses. See County of Du Page v. Elmhurst-Chicago Stone Co. (1960), 18 Ill. 2d 479, 165 N.E.2d 310.

In 1975, defendants dismantled and discontinued use of the asphalt plant for economic reasons since the cost of producing asphalt had become very expensive. In 1985, a second asphalt plant, which is the subject of this litigation, was placed on a section of the property west of Route 83 and east of the location of the first plant. A stabilized base course plant, or pug mill plant, had previously been operating at this site.

Du Page Materials, a joint venture, was formed in 1985 and is the actual owner of the plant. The three partners in this venture are Outerbelt Contractors, Wilmington Industrial (a wholly owned subsidiary of ECS), and Chicago Materials (a wholly owned subsidiary of K-Five). K-Five is the managing partner and runs the plant on a day-to-day basis. Du Page Materials operates the plant pursuant to a lease with ECS dated April 1, 1985.

In March 1985, Du Page Materials received a temporary permit to operate the asphalt plant until November 1, 1985. Du Page Materials applied for and received similar temporary permits to operate the plant in October 1985 and August 1986 and thereafter until the last temporary permit expired on December 15, 1987. The record indicates that the County was buying asphalt directly from Du Page Materials at this site and continued to do so from 1987 to 1990.

On March 21, 1988, Byron Faermark, attorney for ECS, drafted a letter to Robert Raymond in the Du Page County Development Department. The letter advised Raymond of ECS' intention to continue its asphalt plant operation on the subject site without applying for temporary permits. Faermark referred to the 1960 supreme court case of County of Du Page v. Elmhurst-Chicago Stone Co. in his letter and asserted that this case recognized ECS' right to engage in the business of quarrying and related activities under "grandfather" rights. Accordingly, Faermark said it was ECS' position that any further applications for temporary permits were unnecessary.

On January 10, 1989, Ken Lahner, who was at that time the director of the Du Page County building department, drafted a letter to John Wielebnicki, an Elmhurst resident who had inquired as to the legal basis under which the ECS quarry operated its asphalt plant. Lahner also cited the 1960 supreme court case in the letter and concluded that the asphalt plant is within the scope of the quarry operation. Lahner stated that the plant is an incidental use to the construction activities and therefore continued to be a lawful nonconforming use and an exception to the enforcement authority of the County. Lahner wrote a similar letter to another Elmhurst resident, Stephanie Christian, on June 1, 1989, in which he expressed the same opinion that the asphalt plant was operating as a lawful nonconforming use. Copies of this letter were forwarded to the Du Page County board chairman and to the presidents of K-Five and ECS.

The record indicates that in 1990 Du Page Materials decided to upgrade the asphalt plant. The partners spent about $600,000 in improvements in order to increase production, decrease costs, and comply with environmental regulations.

The County filed suit against K-Five in May 1991. Count I alleged that the asphalt plant violated the County's zoning ordinance in that the subject property was located in an I-1 light industrial district and the use complained of was limited under the ordinance to the I-2 industrial district as a special use. Count II alleged that the plant's activities violated air, odor, and noise pollution standards and caused citizens to ...


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