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Nelson v. County of De Kalb

December 20, 2005

JANICE K. NELSON, PLAINTIFF-APPELLANT,
v.
THE COUNTY OF DE KALB, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 04-MR-107, Honorable Michael J. Colwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Plaintiff, Janice K. Nelson, filed an action seeking a declaration that certain portions of defendant's, De Kalb County's, zoning ordinance (De Kalb County Ordinance §1.01 et seq. (eff. January 1, 2000)) are unconstitutional as applied to her property. The circuit court found that plaintiff did not sustain her burden of showing that the ordinance was invalid. It therefore entered judgment in favor of the county. We hold that the trial court's findings were not contrary to the manifest weight of the evidence; consequently, we affirm its judgment.

The instant appeal arises from plaintiff's attempt to develop property in rural De Kalb County. The property, consisting of approximately 30 acres, currently is largely wooded and contains one single-family residence. Plaintiff, along with her husband, purchased the land in 1976 for $186,000. It was zoned for agriculture at the time of this purchase. During the middle portion of the last century, the property was a gravel quarry. Prior to that time, it had been a farm. Quarrying left the land barren and unsuitable for crop production, and the land is still unsuitable for that purpose. Dr. Paul Carney, plaintiff's predecessor, purchased the land in 1964. He built a residence there and planted a great number of trees, 4,000 of which currently occupy the property. Two lakes, which were formerly gravel pits, are located on the property. Plaintiff wishes to develop the property so that 10 additional residential lots would be added to the land. This use, however, is inconsistent with the way in which the property is zoned.

Under De Kalb County's comprehensive plan, the area in which plaintiff's property is located is designated agricultural. Defendant hired an outside consultant to update the plan in 2000. The revision took 1" years to complete. The plan was named "Best Plan" by the Illinois Chapter of the American Planning Association in 2003. One stated goal of the plan is to preserve prime agricultural land. Additionally, the plan seeks to promote development near existing municipalities in order to provide stability for owners of agricultural uses, to reduce the costs of the development of infrastructure, and to limit environmental impacts. De Kalb's zoning ordinance follows its comprehensive plan. See DeKalb County Ordinance §1.01 et seq. (eff. January 1, 2000).

Defendant refused to approve plaintiff's planned unit development, so she filed an action seeking a declaration that the portions of the zoning ordinance that prohibit her from using the property in the manner she wishes are invalid as applied to her property. Determining whether plaintiff's claim is well founded involves a complex and fact-specific analysis. Accordingly, we will discuss additional particular evidence as it is pertinent to the various aspects of the inquiry.

Before proceeding to this inquiry, we emphasize plaintiff's high burden, both before the trial court and especially now on appeal. A zoning ordinance is presumed valid. La Salle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40, 46 (1957). To overcome that presumption, a plaintiff must show, by clear and convincing evidence, that the ordinance is arbitrary, unreasonable, and bears no substantial relationship to the general welfare. Racich v. County of Boone, 254 Ill. App. 3d 311, 314 (1993). Having failed to convince the trial court that she carried this burden, plaintiff must now demonstrate to us that the trial court's judgment was contrary to the manifest weight of the evidence. Wakeland v. City of Urbana, 333 Ill. App. 3d 1131, 1139 (2002). A trial court's decision is against the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Liebert Corp. v. Mazur, 357 Ill. App. 3d 265, 276 (2005). Hence, plaintiff now must show that it is clearly evident that at trial she proved, by clear and convincing evidence, that De Kalb County's zoning ordinance, as applied to her, was arbitrary, unreasonable, and bore no substantial relationship to the public welfare.

The particulars of our inquiry were set forth by our supreme court long ago in La Salle National Bank of Chicago, 12 Ill. 2d at 46. In that case, the court articulated the following six factors to consider: (1) the zoning and existing uses of nearby land; (2) the diminution in value caused by the zoning restriction; (3) the extent to which the public welfare is enhanced by the destruction of property values; (4) the relative gain to the public balanced against the hardship upon the landowner; (5) the suitability of the land to the zoned purpose; and (6) the amount of time the land has been vacant as zoned. La Salle National Bank, 12 Ill. 2d at 46-47. Two additional factors that are entitled to weight are the community need for the proposed use and the care that the community has undertaken to plan its development. Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370, 378 (1960). Sometimes, the property's highest and best u se is listed as a stand-alone factor (see Harvard State Bank v. County of McHenry, 251 Ill. App. 3d 84, 86 (1993)); however, this consideration is subsumed within several of the factors listed above. For example, the hardship to the landowner is necessarily measured by the inability to use the property for its highest and best use. This list of considerations is not exclusive, and each case must be resolved on its own facts and circumstances. La Salle National Bank, 12 Ill. 2d at 46. Finally, a plaintiff must not only prove that the ordinance is invalid; he or she must also show that the proposed use is reasonable. Glenview State Bank v. Village of Deerfield, 213 Ill. App. 3d 747, 758 (1991); see also Schultz v. Village of Lisle, 53 Ill. 2d 39, 42-43 (1972). With these factors in mind, we now turn to the substance of this appeal.

We are first directed to consider the zoning and existing uses of nearby land. Harvard State Bank, 251 Ill. App. 3d at 86. Our supreme court has stated that this factor is of paramount importance. La Grange State Bank v. County of Cook, 75 Ill. 2d 301, 309 (1979). Additionally, that some nonconforming uses exist does not prevent a municipality from enacting zoning that would otherwise preserve the predominant character of an area. Wilson v. County of McHenry, 92 Ill. App. 3d 997, 1001 (1981).

Plaintiff's property and the surrounding area is zoned agricultural. However, there are some nonagricultural uses in the area. Plaintiff points out that there is a gas company operating on the northern boundary of her property. There are also some single-family residences--farm homes--in the area. The town of Cortland lies about 1" miles to the north of plaintiff's land. Near Cortland, over 500 homes, which are to be annexed into Cortland, are being developed. There are also two kennels, a landfill, and a tree farm in the area. The majority of the land surrounding plaintiff's property is used for agricultural purposes--specifically, row crops.

Initially, then, since the surrounding area is predominantly agricultural and the land is zoned agricultural, this factor would appear to favor defendant. However, our inquiry is not over. In Smeja v. County of Boone, 34 Ill. App. 3d 628, 632 (1975), the court took into account not only zoning and existing uses surrounding the property; the court considered whether the proposed development was incompatible with the surrounding, existing uses. Plaintiff flatly states that it "is inconceivable how the development of ten homes on this wooded tract could be incompatible with nearby agricultural property."

There is, however, conflicting evidence on the issue of compatibility. For example, Porter Martin, a farm real estate broker who testified for plaintiff, opined that the development of plaintiff's property would have no adverse effect on surrounding farming operations. It would also add to the surrounding land's economic value. Martin did acknowledge that conflicts between residential uses and farm uses often exist, involving such issues as noise, dust, traffic, and chemical spraying. Plaintiff contends that the fact that the land is heavily wooded would provide a buffer; however, there was testimony that a substantial number of trees would have to be destroyed to develop the land. Paul Miller, the planning director for the county, testified that "scatter-shot" development, as opposed to development adjacent to existing communities, puts premature pressure on farmers occupying intervening land to develop.

Indeed, both sides make valid points. In a particular sense, a small residential subdivision would likely have little impact on nearby ongoing farming operations. On a macro scale, the establishment of a subdivision would serve as precedent for the establishment of more. As others sought to develop, they could point to this subdivision as evidence that the character of the area had changed. As Miller testified, economic pressure to develop would come to bear upon farmers. There is nothing unreasonable about the county wishing to keep its lines of development distinct. In sum, given the zoning and the current character of the area along with the conflicting evidence as to compatibility, we cannot say that the manifest weight of the evidence mandates a different conclusion on this factor.

The second factor we must consider is the diminution in value caused by the zoning restriction. La Salle National Bank, 12 Ill. 2d at 46-47. This factor must be weighed with care, and its presence is not a decisive consideration. People ex rel. Alco Deree Co. v. City of Chicago, 2 Ill. 2d 350, 358 (1954). Two real estate appraisers testified, one for plaintiff and one for defendant. Reed Carnahan, presented by plaintiff, testified that the land was currently worth $400,000 and that it would be worth $1,300,000 if developed. Gary DeClark testified for defendant. He valued the property, in its current condition, at $500,000 in 2002 and $550,000 in 2004. As for development, he opined that the costs of making the property marketable were such that developing the property would actually result in a loss. Accordingly, DeClark opined that the highest and best use for the property was its current use as a single-family residence. Defendant repeatedly mischaracterizes this testimony as DeClark opining that the property "would actually be worth less with additional home sites on" it. DeClark also criticized Carnahan's appraisal. According to DeClark, Carnahan's appraisal represented the "gross sell out value" of the property. Carnahan acknowledged that he used properties in established residential neighborhoods as comparables. This value is not the same as market value, and it does not take into account the costs of developing the property.

Plaintiff argues that DeClark's opinion that the land would be more valuable in its present state is absurd. We are not entirely taken by this criticism, as the costs of developing the land appear substantial, and it may very well not be worth developing from an economic standpoint. It is, of course, for the trial court to resolve such conflicts in the evidence and evaluate the credibility of witnesses. Prairie Eye Center, Ltd. v. Butler, 329 Ill. App. 3d 293, 298-99 (2002). In this case, the trial court apparently resolved this conflict in defendant's favor. However, even if we accept this criticism, Carnahan's valuation was problematic, as it did not represent market value as the property is currently used compared to as potentially developed. Hence, we cannot say it is clearly evident that plaintiff has provided clear and convincing evidence as to the diminution in value of the property. Even if the trial court had rejected DeClark's testimony, it could have also ...


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