Appeal from the Circuit Court of Kendall County. Nos. 02-CH-77, 02-OV-19, 02-OV-20, 02-OV-38 & 02-OV-39. Honorable Leonard J. Wojtecki, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Defendants, Michael Rosenwinkel, Tamara Rosenwinkel, John Rosenwinkel, and Susan Rosenwinkel, appeal orders entered by the circuit court of Kendall County imposing fines (No. 2--03--1216) and ordering the removal of a grain bin (No. 2--03--1028) that was constructed too close to a roadway in violation section 7.00(H)(3)(b) of the Kendall County zoning ordinance (Kendall County Zoning Ordinance §7.00(H)(3)(b) (_____)). In case No. 2--03--1028, defendants contend that the trial court abused its discretion in issuing the mandatory injunction. In case No. 2--03--1216, defendants contend that plaintiff, the County of Kendall (the County), failed to prove each and every element of the section 7.00(H)(3)(b) violation, and that section 5--12017 of the Counties Code (55 ILCS 5/5--12017 (West 2002)), authorizing penalties for zoning ordinance violations, is unconstitutional. In case No. 2--03--028, we reverse and remand with directions. In case No. 2--03--1216, we affirm in part, reverse in part, and remand with directions.
On May 2, 2002, the County filed complaints in Kendall County case Nos. 02--OV--19 and 02--OV--20, alleging that Michael and Tamara, respectively, committed a zoning violation. On May 31, 2002, identical complaints were filed in Kendall County case Nos. 02--OV--38 and 02--OV--39 against John and Susan. It was alleged in the complaints that on August 14, 2000, and at all times since that date, Michael and Tamara were tenants and John and Susan were owners of the farm located at 12621 Galena Road, Little Rock Township, Kendall County (the subject property). It was also alleged that since August 14, 2000, a grain bin has been located on the subject property that was less than 150 feet from the center line of the adjacent Jeter Road, in violation of section 7.00(H)(3)(b) of the zoning ordinance. The County alleged further that defendants have failed to bring the property into compliance with the ordinance, despite demands by the Kendall County planning, building, and zoning department (zoning department). Pursuant to section 5--12017, the County requested an order enjoining defendants from permitting the grain bin to be less than 150 feet from the center line of Jeter Road, an order finding each defendant guilty of an ordinance violation, and the imposition of a fine of $500 per week from August 14, 2000, to the date upon which defendants abate the ordinance violation.
On May 31, 2002, in Kendall County case No. 02--CH--77, predicated upon a violation of section 7.00(H)(3)(b) of the Kendall County zoning ordinance, the County filed a petition in chancery for a permanent injunction. The petition alleged that on August 14, 2000, defendants had begun construction of a foundation for a grain bin and that on the same date a stop-work order was posted on the subject property. The County further alleged that defendants' request for a variance for the grain bin was denied on April 24, 2001. The County requested that a permanent injunction be issued, permanently enjoining and restraining defendants and their agents, lessees, and successors from violating section 7.00(H)(3)(b) on the subject property, and that defendants be ordered to immediately remove the grain bin.
The record reveals that the subject property is an approximately 19-acre rectangular parcel of land, improved with various agricultural buildings, a grain elevator, several metal grain bins, and a two-story farmhouse. The subject property is bounded by Galena Road on the south, and Jeter Road runs north and south on the subject property's eastern edge. Galena Road is a well-traveled arterial road and Jeter Road is lightly traveled. There are 10 metal grain bins on the subject property, including the bin that is the subject of this dispute. The grain bins are located in an L-shaped pattern such that seven are lined up parallel to Galena Road and three to Jeter Road. Of the grain bins lined up parallel to Jeter Road, the one that is the subject of this dispute is the northernmost.
The proceedings on the ordinance violation complaints and the petition for a permanent injunction were heard simultaneously by the trial court over three dates in July, September, and October 2002. The parties entered into a written stipulation providing in relevant part that on or about January 5, 2002, and at all times since, John and Susan have been the owners of the subject property; that on August 14, 2000, and at all times since, Michael and Tamara have been the tenants of the subject property; that the subject property was zoned A-1 at all relevant times; that sections 7.00 (H)(3)(a) and (H)(3) (b) of the zoning ordinance provide that an accessory structure located in an A-1 zoning district must not be closer that 150 feet from the center lines of all adjacent roads; that the subject grain bin is located less than 150 feet from the center line of Jeter Road, specifically 60.51 feet from the center line of Jeter Road; and that on August 14, 2000, and at all times since, no variance for the grain bin or permit for construction of the grain bin had been obtained.
The County called Brian Holdiman, a code compliance officer for Kendall County, who testified that he and James Smith, another code compliance officer, went to the subject property on August 14, 2000, to stop work on a grain bin that was under construction without a permit. At that time, only the forms for the grain bin's concrete base were in place. Smith told Michael that he needed a permit for the grain bin and asked him to apply for one. Michael said that he would do so. On November 16, 2000, Holdiman sent Michael a letter regarding the construction that was proceeding on the subject property, referencing the fact that Michael was advised to stop work on or about August 14, 2000. On cross-examination, Holdiman admitted that there was no written stop-work order in the zoning department's file on the subject property. Holdiman also indicated that he never had a conversation with any of the other three defendants regarding the grain bin.
James Smith testified that he and Holdiman visited the subject property on August 14, 2000. On that date, Smith observed a crew forming up a concrete pad for a grain bin. Smith advised Michael that he should stop work on the grain bin until a permit was in place for the structure. Smith said that he told Michael that he would need to apply for an agriculturally-exempt building permit or zoning certificate. Smith explained that a written stop-work order is typically posted on the property when no one is present, but in this case, he gave the stop-work order verbally. Smith said that he did not grant Michael permission to continue building the grain bin on August 14, 2000, or on any date thereafter.
Scott Buening, the former director of the zoning department, testified that within a short period after August 14, 2000, the zoning department received an application for an agriculturally-exempt permit for the construction of a grain bin on the subject property. With the filing of the application for the permit, Buening discovered that the grain bin's location did not meet the zoning ordinance's setback requirements, and he did not issue the permit. Buening advised Michael that he would need to get a variance in order for construction to proceed. Buening handed Michael the papers required to request a variance and explained what Michael needed to do to submit them. Regarding his conversation with Michael, Buening testified:
"I explained to him the variance process and we had had a conversation about, you know, I think we talked about whether there was a possibility of being able to continue the construction prior to the variance and permit being approved."
Buening said that he told Michael that Buening:
"would consider that but we [the zoning department] needed to have the variance application in hand. We needed to have some survey done of the property. We needed to have some information from the road commissioner regarding whether or not they had a problem with the location of the bin. We did not--I did not during that conversation say that he could continue that construction at that time."
Buening said that he had only one conversation with Michael and never spoke to the other defendants about the grain bin.
Buening identified a letter that he sent to Michael's and Tamara's attorney on December 18, 2000, in which Buening clarified what he told Michael about the variance procedure. In pertinent part, Buening wrote:
"Furthermore, when Mr. Rosenwinkel and I discussed the variance procedures, I indicated that we may consider allowing construction to continue after a variance application was submitted. I also requested a letter acknowledging this work would be done at his own risk and that he would agree to remove the structure to be in compliance with the zoning ordinance if the variance were to be denied." (Emphasis in original.)
Buening testified further that he received the survey of the subject property in January 2001. Buening also said that the Little Rock Township highway commissioner indicated in a letter that he did not object to the location of the grain bin. Buening added that the two pre-existing grain bins on the Jeter Road side of the subject property are actually closer to Jeter Road than the grain bin at issue. Buening said that one of the pre-existing grain bins was the subject of a variance and that he did not know the circumstances regarding the other grain bin. After the application for a variance was complete, a hearing was held before the Zoning Board of Appeals, after which the application for a variance was denied.*fn1 On April 25, 2001, Buening sent a letter to Michael's and Tamara's attorney, with a copy to Michael and Tamara, advising that the grain bin must be removed within 90 days.
On cross-examination, Buening admitted that the survey does not indicate that Jeter Road has been dedicated to the public nor does it indicate the existence of any prescriptive easement in favor of Little Rock Township. Buening also admitted that no stop-work order was posted on the subject property but that the oral stop-work order was referenced in subsequent correspondence. Buening said that the grain bin was completed by December 18, 2000. Buening agreed that no letter regarding the Zoning Board of Appeals' decision was sent to John or Susan.
Kendall County engineer Francis Klass testified that Jeter Road is a township road that is maintained by Little Rock Township. Klass testified that it was his understanding that Jeter Road is a public roadway. Klass did not have any document showing a dedication of Jeter Road to Little Rock Township. Klass also said that the survey does not show that there is a prescriptive easement in favor of Little Rock Township for Jeter Road.
Little Rock Township Highway Commissioner Thomas Murst testified that Little Rock Township is responsible for maintaining Jeter Road, and the maintenance is paid for with motor fuel tax funds. For the past 22 years Murst, as a Little Rock Township employee, has worked on and maintained Jeter Road, including performing snow removal. Murst acknowledged that he provided Michael with a letter indicating that as long as the new grain bin was farther away from Jeter Road than the existing grain bins, he had no objection to its location.
Jerry Dudgeon testified that he has been the director of the zoning department for the past 4" months. Dudgeon identified a 1997 request for a variance, signed by Michael, concerning the two pre-existing grain bins located on the subject property along Jeter Road. Kendall County granted ...