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01/12/96 DAVID L. BAINTER ET AL. v. VILLAGE

January 12, 1996

DAVID L. BAINTER ET AL., PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF ALGONQUIN; MEYER MATERIAL COMPANY; CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE; AND ANDREW HALIK, BUILDING COMMISSIONER FOR THE VILLAGE OF ALGONQUIN, DEFENDANTS-APPELLEES. THE VILLAGE OF CARY, PLAINTIFF-APPELLANT, V. THE VILLAGE OF ALGONQUIN; MEYER MATERIAL COMPANY; CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE; AND ANDREW HALIK, BUILDING COMMISSIONER FOR THE VILLAGE OF ALGONQUIN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County. No. 94-CH-8, No. 93-CH-316. Honorable Haskell M. Pitluck, Judge, Presiding.

Rehearing Denied February 11, 1997. Released for Publication February 11, 1997.

The Honorable Justice Bowman delivered the opinion of the court: Colwell and Thomas, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

On October 19, 1993, pursuant to petitions filed by Meyer Material Company (Meyer) and the Chicago Title and Trust Company (CT&T), as trustee under trust No. 53278, the Village of Algonquin (Algonquin) passed several ordinances which (1) annexed property referred to as tract 3; (2) zoned tract 3 as an I-1 industrial district; and (3) granted a special use to allow the extraction of gravel and sand from tract 3. Plaintiffs, the Village of Cary (Cary) and certain homeowners residing adjacent to tract 3, commenced separate actions in the circuit court of McHenry County against defendants Meyer, CT&T, Algonquin, and Andrew Halik, Algonquin's building commissioner. These actions sought, inter alia, a declaratory judgment stating that Algonquin's actions were void and injunctive relief enjoining defendants from utilizing tract 3 for any use authorized by the October 19, 1993, ordinances. Upon defendants' motions, the circuit court dismissed plaintiffs' actions under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)). Plaintiffs appealed separately, and this court consolidated the two cases. For the following reasons, we affirm.

BACKGROUND

Meyer mines, manufactures, and trucks gravel. Meyer currently owns approximately 690 acres of land in McHenry County, which is divided into four separate tracts, each containing gravel deposits. These tracts all abut Illinois State Route 31. Tract 1 is home to Meyer's processing plant, where the mined gravel is washed, crushed, screened, weighted, and sold. Processed gravel is either sold on the market or used on site in one of several manufacturing operations. The plant has been located on tract 1 for at least 50 years.

Until the late 1960s, the gravel deposits on tract 1 were sufficient to supply the plant. At that time, however, Meyer needed to acquire additional mines to keep the plant in operation. Thus, in 1968 Meyer purchased tract 4 (except for the most northwesterly 73 acres) as a new mine. Tract 4 is located on the eastern side of Route 31; tract 1 is located on the western side. The southwest boundary of tract 4 is located at approximately the same latitude as tract 1's northern boundary. In 1971, Meyer constructed a tunnel under Route 31 which connected the plant on tract 1 with the mining operations on tract 4. Gravel extracted from tract 4 is placed on a conveyor system and hauled via the tunnel under Route 31 to the plant located on tract 1. Meyer has continuously mined tract 4 from 1970 or 1971 to the present.

In July 1971, Meyer acquired an option to purchase tract 3. Tract 3 is located to the east of Route 31 and directly north of tract 4. The two tracts are separated by Klasen Road. Meyer purchased the property in September 1971 following tests which indicated that tract 3 contained substantial gravel deposits.

In 1971, tracts 3 and 4 were zoned "F" farming district by the 1962 McHenry County zoning ordinance. The uses permitted in an "F" farming district were:

"Mining, loading and hauling of sand, gravel, humus, black dirt, or other aggregate, but not including any screening, crushing, washing, or storage equipment or structures excepting as may be specifically authorized as a variation for a limited period." McHenry County Zoning Ordinance ยง 8(J) (1962).

In 1977, Meyer constructed a nine-foot diameter tunnel under Klasen Road connecting tracts 3 and 4. Meyer also installed a conveyor system on tract 3 for future transport of gravel deposits from tract 3 to tract 4 and then from tract 4 to the processing plant on tract 1. In 1978 and 1979, Meyer extracted and stripped some materials from tract 3 to construct an earthen berm along a portion of the western boundary of tract 3. These extracted materials were never commercially used by the plant on tract 1. In 1989 and 1990, Meyer stripped tract 3 of overburden in order to construct a line-of-sight berm along tract 3's east boundary. Tract 3 has also been farmed, but it has never been mined for gravel.

In 1977, Meyer applied for a special use permit from McHenry County to wash and crush gravel on tract 3. In 1978, the McHenry County State's Attorney informed the McHenry County Zoning Board of Appeals that, pursuant to County of McHenry v. Sternaman (1978), 63 Ill. App. 3d 679, 20 Ill. Dec. 562, 380 N.E.2d 540, it no longer had zoning control over mining operations. Accordingly, Meyer withdrew its application for a special use permit.

On March 15, 1993, CT&T, apparently as trustee of a land trust comprising tracts 1, 2, 3, and 4, and Meyer, as the beneficiary of the trust, petitioned Algonquin to annex those tracts to Algonquin. CT&T also filed a petition to zone tract 3 as an I-2 industrial district with a special use for the extraction of gravel. Tract 3 is approximately one mile from Algonquin's corporate limits. Plaintiffs, the Village of Cary and certain homeowners residing adjacent to tract 3, objected to the petition on the ground that granting the special use would endanger the health, safety, and welfare of the surrounding community. The homeowners reside in the Village of Cary in the Fox Trails subdivision. Approximately 25 residences in Fox Trails adjoin the northeast corner of tract 3. Construction of the houses in Fox Trails apparently began in the late 1970s or early 1980s.

On March 29, 1993, the Algonquin Zoning Board of Appeals (Zoning Board) began the first of numerous public hearings on whether tract 3 should be zoned I-2 industrial district with a special use to extract gravel. On August 4, 1993, the Zoning Board recommended and approved the zoning. The Zoning Board made the following findings: that gravel mining on tract 3 posed no significant health risks to Cary's waterworks system; that any dust or fugitive dust emanating from tract 3 would be minimal; and that insufficient evidence was presented to support the homeowners' assertions that gravel mining on tract 3 would be injurious to their property values.

On October 19, 1993, Algonquin issued several ordinances. Ordinance No. 93-0-54 approved an annexation agreement between CT&T, Meyer, and Algonquin. In the annexation agreement, CT&T, Meyer, and Algonquin acknowledged:

"Meyer's mining of Tract 3, according to the restrictions imposed in this Annexation Agreement, is lawful under two independent legal authorities consisting of (1) its rights to mine as a legal nonconforming use; and (2) its right to mine pursuant to the Algonquin Special Use permit issued after a zoning hearing as required by law, both authorities existing simultaneously, and neither being in abrogation of the other."

Ordinance No. 93-0-55 annexed tracts 1, 2, 3, and 4 to Algonquin. Ordinance No. 93-0-56 zoned tract 3 as "I-1 Industrial District, Limited" under the Algonquin zoning ordinance. This ordinance also granted Meyer a special use permit "for the extraction of gravel, sand or other raw materials which shall only include mining, on-site processing limited to portable primary crusher/feeder, ...


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