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Alice Guth v. Tazewell County

October 17, 2012


Appeal from the United States District Court for the Central District of Illinois. No. 1:09-cv-1333-JES--James E. Shadid, Chief Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.


Before BAUER, POSNER, and WOOD, Circuit Judges.

The plaintiff in this suit under 42 U.S.C. § 1983 seeks damages from the governing body of Tazewell County and from various subordinate agencies and County officials (but we can disregard all the defendants other than the County Board, and treat the Board as the only defendant) for violating her con- stitutional rights. The district judge granted summary judgment for the defendants.

The plaintiff owns five properties in a mixed rural/ suburban area in central Illinois, nine miles from the City of Peoria and three miles from the Village of Morton (population 16,000). She lives in a house that's on one of the parcels, but that parcel and the house are not involved in the case. The other four parcels, totaling about 190 acres and very near the house, were until recently zoned agricultural; the parties refer to them as parcels "A," "B," "C," and "D." All properties re- lated to the litigation are marked on the accompanying Google aerial photograph: 4 No. 11-3452

A hog farm a few hundred feet from the house almost abuts parcels A, C, and D. (B does not abut the farm but can be reached only by driving past it.) The additional properties labeled on the photo are the main hog farm (the one adjoining A, C, and D is a satellite facility), the Fligge parcel, and a parcel called Wolf Cross- ing. Both of those parcels used to be zoned agricultural, just like A through D, but their owners persuaded the County Board to rezone them as "rural residential"; this was before the plaintiff succeeded in getting her parcels rezoned. Tazewell County's zoning code de- scribes "rural residential" development as "development in areas normally outside the reach of public facilities,"

Tazewell County Code, tit. 7, ch. 1, § 9(a)--in other words, areas neither urban nor suburban in which never- theless people can have homes without interfering with agricultural and forestry uses. The larger of the two properties, Wolf Crossing, is now a suburban sub- division.

In September 2004 the plaintiff asked the county's Zoning Board to recommend to the County Board that parcel A be rezoned rural residential. (The rezoning decision is made by the County Board rather than by the Zoning Board.) The Zoning Board instead recommended that the County Board deny her application, and the County Board, agreeing, did so the following month. A year later the plaintiff asked the Zoning Board to recommend that B and C be rezoned rural residential; but again agreeing with the Zoning Board, the County Board denied her applications.

The plaintiff responded to these disappointments by suing the County Board in an Illinois state court. But on the day, in October of the following year (2006), on which the trial was to start, she agreed to a settlement with the defendant, which the court entered on the court record as an "Agreed Order." The settlement was not approved by the Board itself, even though it was the defendant, but by the Board's Risk Management Com- mittee, which is authorized to make binding settle- ments on behalf of the entire Board. See 55 ILCS 5/1-6006. The Agreed Order stated that the Board now agreed that parcels A, B, and C--as well as parcel D, which the plaintiff had not applied to rezone along with the other parcels--should be rezoned rural residential. It seems that the Board had based its earlier denial of the plaintiff's applications, in part at least, on the proximity of the auxiliary hog farm, but had since learned that the owner of the two hog farms was planning to close them.

One might think the relevance of the hog farms to the Board's original decision would have been that the plaintiff's parcels, because of their proximity to the hogs, were considered unsuitable for (human) residences. Not so; the concern was not with the people who might live on these parcels but with the hogs.

If the County Board wanted to retain a flourishing agricultural industry in Tazewell County--as apparently it does, for we read on its official website, "Welcome to Tazewell County, Illinois," (visited Sept. 12, 2012), that "agriculture is an important component of Tazewell County's history and economy and it is ingrained with the County's identity and way of life. Seventy-eight percent of the County's land area consists of farmland, and agriculture is poised to remain one of the County's defining industries"--it could not allow unlimited residential development on land currently zoned for agriculture. Residential development could squeeze out agriculture long before all the agricultural land had been bought for homes, because if the character of the county changed from predominantly agricultural to predominantly residential, the home- owners would have a potential claim of nuisance against the farmers--not least the hog farmers.

It might seem that anyone who bought a home a few hundred feet from a hog farm would not be heard to complain about the grunts and odors emitted by the hogs; the buyer would have been compensated by an appropriate discount in the price of the land for the home. But when the character of an area changes gradually from commercial or industrial or agricultural to residential, the homeowners, even though they bought with knowledge of those uses of the land adjacent to them, usually can seek to abate those uses as private nuisances. Oehler v. Levy, 85 N.E. 271, 273 (Ill. 1908); Woods v. Khan, 420 N.E.2d 1028, 1031 (Ill. App. 1981); see Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700, 706-08 (Ariz. 1972). We say "usually" because Illinois's Farm Nuisance Suit Act, 740 ILCS 70/3, which has counterparts in other states, alters the common law's rejection of the defense of "coming to the nuisance" by insulating farmers against nuisance suits after a farm has been in operation for a year--but with exceptions.

Allowing nuisance suits by newly arrived residents is a sensible rule because it enables land to be put to its highest-valued use; residential uses of land are very often more valuable (judging by price) than non- residential uses, such as agriculture. Sensible or not, allowing such suits does threaten farmers, and if the County Board wanted to preserve Tazewell County's agricultural industry without relying entirely on the Farm Nuisance Suit Act, with its exceptions, this was a reason to deny the plaintiff's rezoning applications even though her parcels were not at present being used for hog farming, or indeed for anything. But this ground for denial seemed to vanish when the owner of the hog farms declared that he was closing the farms. The Risk Management Committee decided there was no longer a sound basis for resisting the plaintiff's state court lawsuit, and so it settled.

But although the Agreed Order stated that parcels A through D should be rezoned for residential use, it did not order that they be rezoned, and it could not. The state courts have plenary power to review zoning deci- sions, 55 ILCS 5/5-12012.1, but no authority to rezone property. The County Board has that authority, but could exercise it only in accordance with the County's procedures for rezoning. Those procedures required a hearing before the Zoning Board and (if a neighboring landowner filed a formal objection) a three-fourths vote ...

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