Appeal from Circuit Court of Piatt County No. 09MR9 Honorable Chris E. Freese, Judge Presiding.
PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.
Justices Pope and Knecht concurred in the judgment and opinion.
¶ 1 In March 2009, defendants, Scott T. Gaitros and Brenda J. Gaitros, submitted a special-use permit application to defendant, County of Piatt (County), for a restricted landing area (RLA) on their property. In May 2009, the Piatt County board passed an ordinance granting the special-use permit. In July 2009, plaintiff, Richard B. Robrock II, filed a complaint for de novo review and for declaratory and injunctive relief. In May 2011, the trial court found in favor of plaintiff, found the ordinance unconstitutional, and entered a permanent injunction against defendants.
¶ 2 On appeal, defendants argue the trial court erred in (1) finding the special-use permit was arbitrary and (2) entering a permanent injunction against defendants. We affirm in part, reverse in part, and remand with directions.
¶ 4 On April 7, 2008, the Gaitroses submitted an application to the County for a special use permit for a restricted limited-access grass airstrip, measuring 100 feet wide and 2,400 feet long, on their property zoned as agriculture. The affected property amounted to 5.5 acres out of a 79.5-acre tract. The airstrip would allow takeoffs and landings of the Gaitroses' "personal gyrocopter."
¶ 5 A gyrocopter, or gyroplane, is classified as an experimental aircraft that is sold as a kit. Once built, it must receive a certificate of air worthiness from the Federal Aviation Administration. A gyroplane has one or two seats, an open cockpit, and an uncovered gasoline aircraft engine with a muffler. It has a rotor on top similar to a helicopter and a propeller behind the pilot. Except on takeoff, the rotor is not powered by the engine and it helps keep the gyroplane elevated. Gyroplanes cannot hover like a helicopter. The propeller is powered during normal flight. A gyroplane typically flies at an altitude of 600 to 1,000 feet, although it might fly higher on long distance trips.
¶ 6 Section 8 of the Illinois Aeronautics Act indicates a " 'restricted landing area' means any area of land, water, or both, which is used or is made available for the landing and takeoff of aircraft, the use of which shall, except in case of emergency, be only as provided from time to time by the [Illinois Department of Transportation]." 620 ILCS 5/8 (West 2008). According to sections 14.720 and 14. Appendix E, illustrations A and B, of title 92 of the Illinois Administrative Code (92 Ill. Adm. Code 14.720, 14. Appendix E (2012)), a proposed RLA cannot be approved unless it provides one or more landing strips or runways each of which shall be at least 1,600 feet in length (15:1 approach slope) and at least 100 feet in width (4:1 transition slope). A clear approach area must extend for 3,000 feet from the end of the runway so aircraft may clear the highest obstruction and land at the threshold of the runway.
¶ 7 An RLA is a private-use restricted facility. It is for the private use of one person having no more than six aircraft. No commercial operations are allowed. There are approximately 480 RLAs in Illinois, with seven located in Piatt County.
¶ 8 On May 13, 2008, the Piatt County Zoning Board of Appeals passed an ordinance granting the Gaitroses' application for a special-use permit. On May 16, 2008, the Gaitroses filed a second application for a special-use permit for a restricted limited-access grass airstrip on the 79.5-acre tract. The second application was not limited to "personal gyrocopter use."
¶ 9 On September 25, 2008, the Piatt County Zoning Board of Appeals, over plaintiff's objection, voted 4 to 1 to recommend approval of the Gaitroses' special-use permit application but failed to achieve the five votes necessary for approval. On October 14, 2008, the Piatt County State's Attorney opined that no special-use permit was required for an RLA. Based on that opinion, the Gaitroses withdrew their second application.
¶ 10 In November 2008, plaintiff filed a complaint for mandamus against the County, seeking to compel the County to enforce its zoning ordinance and to require the Gaitroses to obtain a special-use permit for the RLA. On March 16, 2009, the trial court directed the County to enforce its zoning ordinance and to require the Gaitroses to apply for a special-use permit.
¶ 11 On March 23, 2009, the Gaitroses filed an application for their third special-use permit for an RLA on their property. On May 12, 2009, the county board approved the specialuse permit allowing the RLA on the Gaitroses' property.
¶ 12 In July 2009, plaintiff filed a complaint for de novo judicial review pursuant to section 5-12012.1 of the Counties Code (55 ILCS 5/5-12012.1 (West 2008)) and for declaratory and injunctive relief. Plaintiff contended the presence of the RLA had caused a reduction in the fair market value of his property, the noise impacts plaintiff's wildlife preserve, and he and his wife both have hearing conditions that require them to avoid loud noise. Plaintiff argued the special-use permit granted to the Gaitroses is arbitrary and bears no real and substantial relation to the public health, safety, morals, comfort, and general welfare, and, therefore, is unconstitutional as applied to plaintiff's property. Plaintiff asked that the ordinance granting the special-use permit be declared void and further use of the Gaitroses' property for RLA purposes should be enjoined.
¶ 13 In September 2009, the Gaitroses filed a motion to dismiss plaintiff's complaint. In November 2009, the trial court denied the motion to dismiss.
¶ 14 In May 2011, the trial court held a trial on plaintiff's complaint. Called as an adverse witness, Scott Gaitros testified he owns approximately 500 acres in Cerro Gordo with about 160 acres used for farming. An 80-acre tract to the south of the Gaitros home contains the RLA, which runs from the southwest to the northeast. Illinois Route 32, which runs north and south, borders the east side of the Gaitros property. To the northeast of the Gaitroses' home sits plaintiff's property.
¶ 15 Gaitros testified he stored his gyroplane at the Decatur airport until the RLA was finished. He agreed the Decatur airport was less than 20 miles from his house and the Monticello airport was approximately 12 to 13 miles from his house. Gaitros stated he sought to use his RLA for "fly-ins," where friends would fly in. There is another RLA approximately three miles north of the Gaitroses' property. Gaitros stated he had taken off and landed over the tree line and power lines near his property and flown over plaintiff's cornfield. Gaitros planned to store his gyroplane in a barn on his property.
¶ 16 Plaintiff presented the evidence deposition of appraiser John Scott regarding the value of plaintiff's land given the nearby RLA. Scott, an emeritus professor of land economics and farm management at the University of Illinois, stated he had been doing real-estate appraisals for more than 50 years. In making his appraisal, Scott looked at plaintiff's property and surrounding areas. He stated approximately 94 acres of the property were suitable for development as they are along the Sangamon River. A 60-acre tract and a 166-acre tract were best suitable for agriculture. Scott valued the farmland at $5,000 per acre and the development land at $10,000 per acre.
¶ 17 Scott then considered the effect of the Gaitroses' RLA on plaintiff's property. He opined the development value would drop by half to $5,000 per acre because "there would be fewer people that would be desirable of building in that area knowing that the flight path of these aircraft [is] going to be over that property." He stated the diminution in value is present regardless of the frequency of the gyroplane flights. He also reduced the value of the farmland by 50%. The total decrease in value of plaintiff's property was estimated at $664,060.
¶ 18 On examination by Gaitroses' counsel, Scott stated the material he relied on regarding noise was not specific to gyroplanes. He admitted the immediate impact area of the RLA was not above any of the 94 acres to be developed. Although Scott estimated the noise level at the farmstead to be 75 decibels, he had no information to support that conclusion other than the information he received from plaintiff.
¶ 19 Plaintiff testified his property consists of 322 acres. He and his wife have developed a wildlife preserve on the property, which included acres of timber, savannah, tall grass prairie, and a pond. In terms of development, plaintiff hoped to build one house per year. Plaintiff has observed several takeoffs and landings of the Gaitroses' gyroplanes. He stated "an hour in that gyro is like thirty airplanes taking off, because you have this continual Harley Davidson buzzing around in the sky for an hour or two." When the gyroplane takes off to the northeast, it comes across plaintiff's property at 40 feet "and flies wherever it wants to go." He once saw it fly two feet over his bean field at a time "the bean pods [were] extremely fragile." He has also observed the gyroplane flying over the development area. Plaintiff stated he has a "hearing problem," which he called "ringing tinnitus," and wears hearing aids to help it. When using equipment, he wears ear plugs and a headset. Even with the ear plugs, headset, and a mower engine, he can still hear the gyroplane. He once saw a gyroplane doing "figure 8s, S-turns and so on, over ...