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12/20/94 CHARLES PEET v. BOUIE CONSTRUCTION

December 20, 1994

CHARLES PEET, SR., BURTON PEET AND EMMA PEET, HIS WIFE, HENRY NATIONS AND MYRNA NATIONS, HIS WIFE AND GLADYS PROCTOR, PLAINTIFFS-APPELLEES,
v.
BOUIE CONSTRUCTION, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 92-CH-9545. Honorable Thomas M. Ewert, Judge Presiding.

Released for Publication January 25, 1995.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Michael P. Mccuskey, Justice, McCUSKEY, J., concur. Stouder, J., dissents with opinion.

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

The plaintiffs, Charles Peet, Sr., Burton Peet, Emma Peet, Henry Nations, Myrna Nations, and Gladys Proctor, brought an action pursuant to section 5-12017 of the Counties Code (55 ILCS 5/5-12017 (West 1992)), seeking injunctive relief against the defendant, Bouie Construction, Inc. The plaintiffs alleged that the defendant was violating the applicable zoning in its use of its property. Following a bench trial, the court enjoined the defendant from conducting the complained-of activities. We affirm.

The defendant is the owner of three contiguous parcels of land. One parcel was zoned C-4 (highway commercial) at the time the defendant acquired it and has remained so. The other parcels were zoned R-3 (single family residence) at the time the defendant acquired them. The plaintiffs are the owners of properties that are all zoned residential and either adjoin portions of the defendant's land or are in the vicinity of it.

Elijah Bouie, the owner of Bouie Construction, described his business as that of a sub-contractor. The majority of his work involves concrete road paving. In 1986, Bouie moved the offices of Bouie Construction into a building on the property zoned commercial and stored some equipment in a separate building on that same property. Beginning in late 1991 or early 1992, the defendant began to expand in terms of the number of its employees, the type and size of its equipment, and the volume of its business. By 1992, the defendant had four or five 18-wheel dump body trailers and diesel tractors to pull them, two backhoes, a water truck, mobile diesel refueling tanks, a 1000 gallon diesel fuel tank, concrete road building forms, a tar tanker truck, a white panel delivery truck, 8 pick-up trucks, three concrete saws, and four large yellow pieces of GOMACO road building equipment. Many of these pieces of equipment were stored on the parcels zoned residential as well as on the parcel zoned highway commercial. At times, the defendant also rented additional construction equipment and had also stored steel rebar and mesh as well as concrete forms and converted fuel tanks at this location.

Testimony on behalf of the plaintiffs indicated that in general the diesel trucks and tractors would be started each morning between 5:30 and 7:00 a.m., although start times as early as 1:30 a.m. had been noted. In the winter, each truck or tractor would warm up at idle for 20-30 minutes. This idling could also be heard at other times of the day as the trucks moved back and forth between the office and the construction site. Engine work on the trucks was performed with the use of pneumatic tools. The road building equipment was cleaned by using high pressure steam and water. The 18-wheel dump bodies were cleaned by elevating the bodies 20 feet upward and banging on the floors with metal sledge hammers or shovels to loosen the dirt which was then washed away with high pressure sprayers. Diesel smoke and fumes from the property caused neighboring residents to seek refuge indoors.

After the plaintiffs complained to the Will County zoning authorities about the defendant's ongoing land uses, the defendant filed a petition for re-zoning. In the petition, the defendant requested that the residential parcels be re-zoned to C-3 (general business) with a special use permit for outdoor storage and a variance on the side yard lot line. The defendant stated it wished to use the property for a truck terminal and offices for a construction business with an area for maintenance of trucks. The defendant also stated it wished to use the property for outdoor storage of vehicles, construction materials, and forms. The plaintiffs opposed the re-zoning petition. They argued that the uses to which the defendant sought to put the land were industrial uses, not commercial uses. The Planning and Zoning Commission of Will County recommended that the County Board grant the defendant's petition. The Board did so, and the plaintiffs subsequently filed suit.

In its written judgment order, the trial court found that the defendant had been and was still using the parcels for the uses it described in its re-zoning petition. The court also found that the defendant's uses would diminish the value of the plaintiffs' property. Further, the court concluded that the defendant's uses were not "limited industrial in nature" at all. Instead, the court found the uses were of the type properly located only in the I-3 industrial zoning classification and were not any of the uses listed as eligible special uses in either C-3 or C-4 zoning districts. The court permanently enjoined the defendant from conducting any truck terminal or contractor's yard uses on the parcels, from conducting any outdoor storage or operating any outdoor storage of the truck terminal or concrete road building equipment on the parcels, and from conducting or operating any repairing, cleaning, fueling, maintaining, mobilizing, storage of truck terminal and contractor road building or construction vehicles and equipment on the parcels.

The sole issue on appeal is whether the trial court erred in determining that the defendant was violating the Will County Zoning Ordinance.

The Will County Zoning Ordinance provides for many different zoning classifications, including general business (C-3), highway commercial (C-4) and intensive industrial (I-3). Permitted uses in C-3 districts include farm and garden supply stores, day care centers, and cartage, express or delivery systems. (Will County Zoning Ordinance sec. 5.3-3 (1991) (hereafter Ordinance).) Special uses in C-3 districts include those uses that are "similar and compatible" to the permitted uses, such as drive-in theaters, hotels, liquor stores and taverns. (Ordinance sec. 5.3-4 (1991).) C-4 zoning allows motor vehicle sales and repairs, antique shops, and towing services. (Ordinance sec. 5.4-3 (1991).) Permitted uses under I-3 zoning include cement block manufacturing, truck terminals and railroad yards. Ordinance sec. 6.3-3 (1991).

In the case at bar, the defendant, by his own admission, was operating a truck terminal. That use is specifically set forth as a permitted use under I-3 zoning. The Zoning Commission and County Board had previously recognized that I-3 zoned uses would be disturbing to neighboring residents and had determined that such uses should be segregated from residential districts. (See Ordinance sec. 6.3-1 (1991) (the purpose of I-3 zoning is to "provide lands for * * * activities * * * whose external effects will be felt to some degree by surrounding districts").) Moreover, this use is not specifically enumerated as a special use under C-3 zoning, nor is it "similar and compatible" to the permitted uses under either C-3 or C-4 zoning.

The defendant argues that the Board is the final arbiter of whether the proposed use fits within the land's zoning. It contends that as long as the Board knew what activities were going to be carried on and determined that those activities were within C-3 zoning with a special use permit, we are precluded from determining whether the defendant's use violates the ordinance. Carrying the defendant's argument to its logical conclusion would mean that the Board would be both legislature and judiciary. We disagree. It is not the petition, nor even the decision of the Board, which restricts the uses to which the defendant may put his property. It is the zoning ordinance which provides those restrictions. The power to enact the ordinance was solely the province of the Board; the power to construe the ordinance is the court's. See Fergus v. Marks (1926), 321 Ill. 510, 152 N.E. 557; Palella ...


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