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Tipton v. Madison County

Court of Appeals of Illinois, Fifth District

June 22, 2015

DENNIS TIPTON, Plaintiff-Appellant,
v.
MADISON COUNTY, ILLINOIS; MADISON COUNTY BOARD; and MADISON COUNTY PLANNING AND DEVELOPMENT DEPARTMENT, Defendants-Appellees

Motion to publish granted June 22, 2015.

Rule 23 Order Filed: May 11, 2015.

Appeal from the Circuit Court of Madison County. No. 13-MR-200. Honorable Donald M. Flack, Judge, presiding.

For Appellant: Harry J. Sterling, Sterling and Dowling, P.C., Fairview Heights, IL.

For Appellees: Honorable Thomas D. Gibbons, Madison County State's Attorney, Edwardsville, IL; John McGuire, Assistant State's Attorney, Office of the State's Attorney, Edwardsville, IL; Philip J. Lading, Sandberg, Phoenix & von Gontard, Edwardsville, IL.

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Schwarm concurred in the judgment and opinion.

OPINION

Melissa A. Chapman, Justice.

Page 77

[¶1] The plaintiff, Dennis Tipton, built a 60-by-128-foot pole barn on his property. The property was zoned for agricultural use, but the plaintiff intended to use the building to store equipment for use in his off-site concrete construction business. A series of discussions ensued between the plaintiff and Madison County planning and development officials regarding whether this intended use was consistent with the county's zoning ordinance. The officials took the position that the plaintiff's proposed use was not permitted. The plaintiff filed an application for a change in the zoning of his property, which was denied. He then filed a complaint under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2012)). The plaintiff argued that (1) the county's interpretation of the ordinance was not correct, and (2) the denial of his application was against the manifest weight of the evidence. The circuit court affirmed the denial by the Madison County Board (County Board) of the plaintiff's rezoning request. The court found that the question of the county's interpretation of the ordinance was not properly before it, but noted that if it were to consider the question, it would uphold the county's interpretation. The plaintiff appeals, arguing that (1) the court properly considered whether his intended use was permitted under the zoning ordinance, but erroneously concluded that it was not; and (2) the denial of his rezoning application was against the manifest weight of the evidence. We affirm.

[¶2] The plaintiff owns a 10-acre parcel in Madison County. The parcel is zoned for agricultural use and is situated near property zoned for low-density residential use. The section of the Madison County zoning ordinance governing agricultural districts expressly permits use of the land in such districts for various agricultural pursuits such as raising animals or poultry and growing farm crops, garden crops, trees, or sod. Madison County Zoning Ordinance § 93.023(C)(1) (passed 1985). In addition, the ordinance expressly permits use for activities associated with or ancillary to farming and for providing services to people living in the agricultural district. See, e.g., Madison County Zoning Ordinance § 93.023(C)(2) (animal hospitals); § 93.023(C)(6) (living quarters for people working on farms); § 93.023(C)(4) (greenhouses); § 93.023(C)(12) (single-family residences); § 93.023(C)(13) (schools); § 93.023(D)(2) (agricultural implement sales, service, and repair); § 93.023(D)(3) (animal feed storage, preparation, and retail) (passed 1985). As the plaintiff emphasized, the ordinance also permits uses that bear little connection to

Page 78

agriculture. See, e.g., Madison County Zoning Ordinance § 93.023(D)(15) (colleges and universities); § 93.023(D)(17) (golf courses); § 93.023(D)(19) (kennels) (passed 1985). The zoning ordinance provides that any use not expressly permitted is prohibited. Madison County Zoning Ordinance § 93.060 (passed 1985).

[¶3] On July 18, 2012, the plaintiff obtained a permit for the construction of a pole building on his property. See Madison County Zoning Ordinance § 93.023(C)(19) (passed 1985). On August 7, Madison County planning and development administrator Matt Brandmeyer sent the plaintiff a letter. Brandmeyer noted that the plaintiff's property was zoned for agricultural use and told the plaintiff that he was writing " to affirm that the building may only be used for personal or agricultural purposes and may not be used for business operations."

[¶4] On August 22, 2012, the plaintiff's attorney replied to Brandmeyer's letter. His letter stated that " it is our opinion that the planned structure and proposed uses are permitted and not prohibited" under the Madison County zoning ordinance. The letter further stated that construction of the building had commenced and would continue. Although the letter did not specify the plaintiff's proposed use, he informed planning officials by ...


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