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County of Knox v. Highlands

December 30, 1998

THE COUNTY OF KNOX EX REL. ROBERT L. MASTERSON, AS KNOX COUNTY ZONING DEPARTMENT ADMINISTRATOR, PLAINTIFF-APPELLANT,
v.
THE HIGHLANDS, L.L.C.; JAMES R. BAIRD; AND PATRICIA A. BAIRD, DEFENDANTS-APPELLEES. THE HIGHLANDS, L.L.C., PLAINTIFF-APPELLEE,
v.
THE KNOX COUNTY ZONING BOARD OF APPEALS; ROBERT L. MASTERSON, AS KNOX COUNTY ZONING BOARD OF APPEALS SECRETARY AND KNOX COUNTY ZONING DEPARTMENT ADMINISTRATOR; PAUL L. MANGIERI, AS STATE'S ATTORNEY OF KNOX COUNTY; SHELLY ADAMS, BILL ADAMS, MARY LOU BAIRD, NINA BAIRD, RICHARD B. BAIRD, WILLIAM BAIRD, LLOYD BODINUS, CHERYL BROWN, MARILYN CARR, ANTHONY CARROLL, KIMBERLY CARROLL, DUNCAN COOPER, DELPHINE LEONARD- DELL, JOHN DEMAREE, GARY DEWALT, MARTY DIEFENDORF, MARY DIEFENDORF, RICHARD E. DIEFENDORF, DANETTE DOUBET, JULIE GORMAN, THERESA M. GRAY, LAWRENCE HALL, THEDA HALL, CAROLYN HANSEN, MICHAEL L. HASSELBACHER, KAREN HUDSON, MATINA A. JACOBS, ROBERT M. JACOBS, BENNIE L. JOHNSON, JANE JOHNSON, GAYLA KARRICK, JOHN J. LEONARD, CAROLE M. MACKIE, JIM MACKIE, LARRY MACKIE, LORI MACKIE, MR. AND MRS. ROBERT MARTIN, GRETCHEN MCINTIRE, CHERAG METAH, CAROL L. MOORE, RHONDA MOORE, TODD MOORE, ALLEN PORT, CAROL K. QUICK, JOHN L. QUICK, JUDY RACE, TASMRA L. SMITH, GREG STONE, MATTHEW M. VOGEL, ESTATE OF ROBERT J. VOGEL, RAY WATSON, BARRY WEBBER, JOHN WEBBER, JOANNE WILSON, RUTH WOLFE AND TERRY L. WOLFE, DEFENDANTS-APPELLANTS. JOHN J. LEONARD, WILLIAM D. BAIRD, AND NINA L. BAIRD, PLAINTIFFS-APPELLANTS,
v.
THE HIGHLANDS, L.L.C.; JAMES R. BAIRD; AND PATRICIA A. BAIRD, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Knox County. No. 97--MR--32 Honorable Larry W. Heiser, Judge, Presiding. Appeal from the Circuit Court of Knox County. No. 97--CH--20 Honorable Larry W. Heiser, Judge, Presiding. Appeal from the Circuit Court of Knox County. No. 97--MR--33 Honorable Larry W. Heiser, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

In these consolidated cases, Knox County (county), John Leonard, William Baird, Nina Baird, and the Knox County Zoning Board of Appeals (Board) et al., appeal from the trial court's grant of summary judgment in favor of The Highlands, L.L.C. We affirm.

These cases involve the establishment by The Highlands, L.L.C., of a large-scale-hog-confinement facility in rural Knox County where the land will be devoted to the raising and feeding of hogs. Knox County and the individual objectors voice serious concern about the burdens placed upon surrounding lands and land occupiers with respect to animal waste and its attendant odors.

On December 5, 1996, The Highlands, L.L.C., and James Baird (husband of co-owner Patricia Baird) (hereinafter the Highlands) filed an application for a construction permit with the Knox County Zoning Department, seeking to erect six buildings as part of a hog- confinement operation in rural Knox County. The permit issued several days later. On March 3, 1997, William and Nina Baird (the Bairds), who owned property within one mile of the subject property, appealed the issuance of the permit to the Knox County Zoning Board of Appeals. Other citizens eventually joined in this appeal. Pursuant to the Knox County zoning resolution, a stay of construction activities went into effect upon the filing of the appeal.

On April 23, 1997, the Board held a public hearing on the appeal. Four of the five members of the Board were present. After the presentation of the evidence, two members voted to rescind the permit, one passed his vote, and the chairman did not vote, explaining that, since four votes were necessary to rescind the permit, the motion to rescind could not carry even if he voted in favor of it. The chairman then ruled that the motion to rescind had failed. However, two days later, Knox County State's Attorney Paul Mangieri overruled the announced decision of the Board and opined that the appeal of the permit was granted and that the building permit had been canceled. See Prosser v. Village of Fox Lake, 91 Ill. 2d 389 (1982). Despite being informed of the State's Attorney's opinion and the cancellation of the permit, the Highlands began ground preparation activities on the proposed construction site. On May 5, Robert Masterson, the zoning department administrator, notified the Highlands that it was in violation of the zoning resolution and that it must immediately cease construction and apply for a conditional use permit.

On May 9, 1997, the Highlands filed a complaint in Knox County circuit court seeking declaratory and injunctive relief in three counts and administrative review in the fourth count. On May 12, two separate complaints seeking injunctive relief against the Highlands were filed by the county and by John Leonard and the Bairds. After a hearing, the court denied the motions for temporary restraining orders against the Highlands, and the appellate court affirmed the denial.

The Highlands then moved for summary judgment in all three cases. In the cases filed against it, the Highlands moved for summary judgment as to all the counts. In the case it filed, the Highlands sought summary judgment only as to the counts seeking declaratory and injunctive relief. The trial court granted the Highland's motions in all three cases, including a finding that the Board lacked jurisdiction to proceed. In light of these decisions, Highlands subsequently dismissed the remaining count of its complaint seeking administrative review. These appeals followed.

The appellants first contend that the trial court erred in considering Highlands' motions for summary judgment, as these motions constituted a collateral attack on the Board's decision, which should have only been subject to administrative review. We disagree.

Section 5--12012 of the Counties Code provides that all final administrative decisions of zoning boards of appeal shall be subject to judicial review pursuant to the provisions of the Administrative Review Law (735 ILCS 5/3--101 et seq. (West 1996)). See 55 ILCS 5/5--12012 (West 1996). Where the Administrative Review Law is applicable and provides a remedy, the circuit court may not redress a party's grievance through any other type of action. Dubin v. Personnel Board, 128 Ill. 2d 490, 498 (1989). A reviewing court's power to resolve factual and legal issues arising from an agency's decision must be exercised within its review of the agency's order and not in a separate proceeding. Midland Hotel Corp. v. Director of Employment Security, 282 Ill. App. 3d 312, 316-17 (1996). The county had the power to regulate the location and use of buildings on unincorporated land. See 55 ILCS 5/5--12001. (West Supp. 1997).

In contrast to the above cases is the case of Castaneda v. Illinois Human Rights Comm'n, 132 Ill. 2d 304 (1989). In Castaneda, the supreme court recognized several exceptions to the doctrine of exhaustion of administrative remedies. One of these exceptions is "where the agency's jurisdiction is attacked because it is not authorized by statute." Castaneda, 132 Ill. 2d at 309. This exception is further developed in Office of the Lake County State's Attorney v. Illinois Human Rights Comm'n, 200 Ill. App. 3d 151 (1990). In Lake County State's Attorney, the second district reviewed this issue when it held that any power or authority claimed by an administrative agency must find its source within the provisions of the statute by which the agency was created. Lake County State's Attorney, 200 Ill. App. 3d at 156. Where the very authority of an administrative body is in question, a question of law, not fact, is presented, and the determination of the scope of its power and authority is a judicial function and is not a question to be finally determined by the administrative agency itself. The exhaustion of administrative remedies is not required where a party attacks an agency's assertion of jurisdiction " 'on its face and in its entirety on the ground that it is not authorized by statute.' " Lake County State's Attorney, 200 Ill. App. 3d at 156, quoting Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541, 551 (1978). The more recent case of Rockford Memorial Hospital v. Department of Human Rights, 272 Ill. App. 3d 751 (1995), used an identical analysis allowing a challenge to the jurisdiction of the administrative agency.

The statutory authority granting Knox County the right to regulate and restrict the location and use of structures is found in section 5-- 12001 of the Counties Code (55 ILCS 5/5--12001) (West 1996). This section expressly states that counties have no authority to impose regulations or require permits with respect to land used or to be used for agricultural purposes.

The term "agriculture" was defined by the supreme court in People ex rel. Pletcher v. City of Joliet, 321 Ill. 385 (1926). The court stated: " 'Agriculture' is defined as the 'art or science of cultivating the ground, including harvesting of crops and rearing and management of livestock; tillage; husbandry; farming; in a broader sense, the science and art of the production of plants and animals useful to man, including to a variable extent the preparation of these products for man's use. In this broad use it includes farming, horticulture and forestry, together with such subjects as butter and cheese making, sugar making, etc.' Unless restricted by the context, the words 'agricultural purposes' have generally been given this comprehensive meaning by the courts of the country." City of Joliet, 321 Ill. at 388-89.

This definition was followed by the court in the case of County of Kendall v. Aurora National Bank Trust No. 1107, 170 Ill. App. 3d 212 (1988), and in Tuftee v. County of Kane, 76 Ill. App. 3d 128 (1979), wherein this court held that the feeding, training, and boarding of horses fell within the scope of the agricultural purpose of "rearing and management of livestock." Tuftee, 76 Ill. App. 3d at 132. The Tuftee court went on to hold that the purpose for which horses are raised should have no bearing on whether the activities involved in raising them constitute "rearing and management of livestock." Tuftee, 76 Ill. App. 3d at 132. Other cases defining "agriculture" are County of Lake v. Cushman, 40 Ill. App. 3d 1045 (1976) (poultry hatchery on 3.09 acres); and Soil Enrichment Materials Corp. v. Zoning Board of Appeals, 15 Ill. App. 3d 432 (1973) (sewage sludge stored and applied to soil).

Our review of an order granting summary judgment is de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). We conclude, upon de novo review, that the rearing and raising of hogs, in any quantity, constitute an ...


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