from the Circuit Court of Carroll County. No. 16-OV-26
Honorable John F. Joyce, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion. Presiding Justice Hudson and Justice Spence
concurred in the judgment and opinion.
1 Plaintiff, the Village of Chadwick (Village), successfully
prosecuted defendant, Talea Lynn Nelson, for an ordinance
violation. The basis for Nelson's prosecution was that
her farm, which she co-owned with her husband, Dean Nelson,
had allegedly become a nuisance by virtue of its nascent
cattle operation. Because enforcement of the ordinance was
preempted by the Farm Nuisance Suit Act (740 ILCS 70/0.01
et seq. (West 2016)), we reverse the conviction.
2 For context, we note that the Village is a rural, mostly
agrarian town, with a population of about 600 residents. As
is common in many small jurisdictions, the Village does not
have a unified development or zoning ordinance, and so its
land-use restrictions are determined by its laws concerning
nuisance. See generally Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 388 (1926). With that in mind,
we summarize the evidence presented at Talea's bench
3 In October 2014, Dean and Talea purchased the subject
property, a 2½-acre parcel with a single-family home,
from the Village. However, there is evidence in the record
indicating that Dean managed the property for the Village
since around August 2013. In any event, after the Nelsons
purchased the property, they used the land to host concerts
and social events and as the site of their "agricultural
4 The Nelsons' initial "agricultural business"
was, by all accounts, not a large undertaking. Justin Rahn
testified that his family owned the land bordering the
Nelsons' property (although Rahn's land fell just
outside the Village's corporate limits). According to
Rahn, since August 2013, he had an oral agreement with the
Nelsons to seed, cultivate, and bale hay from roughly
one-third of the Nelsons' property. In connection with
the agreement, Rahn explained, after the Nelsons'
purchased the property, he and Dean had to "fix" it
and level several areas so that their uneven grading would
not ruin Rahn's hay mower. According to Rahn, he and Dean
"went in there and took the end loader *** and leveled
the dirt up and disked it down" where needed; then, they
"brought the drill in and *** seeded grass seed down in
the spots [where] it was tore up." After the property
was prepared for cultivation, Rahn stated, he "mowed it,
mowed the forage, let it dry, raked it for hay, round baled
[the hay], removed it from [the] property, and fed it to [his
own] livestock at least once a year and sometimes twice a
year." Rahn paid the Nelsons $10 for each round bale he
reaped from their farm, totaling between five and eight bales
roughly every six months.
5 According to twin affidavits from Dean and Talea, on March
2, 2016, the Nelsons shifted from their initial agricultural
use of their property to "a commercial calf nursing
operation." The Nelsons' stated business plan was to
"raise and sell these calves" to 4-H club members
and to other local businesses. (4-H is a youth development
and mentoring organization. See 4-H Official Website,
http://4-h.org/about/what-is-4-h/ (last visited Dec.
15, 2017).) According to the Nelsons, as of August 3, 2016,
there were 19 calves in their inventory.
6 On July 11, 2016, however, the Village enacted
"Ordinance No. 540." See Village of Chadwick
Ordinance No. 540 (eff. July 11, 2016). The ordinance
declares that "the presence of certain animals" in
the Village constitutes a nuisance, and it declares the
"SECTION 1: KEEPING PROHIBITED ANIMALS WITHIN
THE VILLAGE OF CHADWICK: It shall
be unlawful for any person [or corporate] entity to keep in
the Village of Chadwick any live cattle, horses, swine,
potbellied pigs, sheep, goats, mules, donkeys, or any animal
raised for fur bearing purposes, chickens, ducks, geese,
turkeys, quail, peafowl, pigeons, guineas, partridges,
pheasants, and other similar species."
ordinance goes on to authorize keeping service animals and
traditional pets (such as cats, dogs, and "tropical
birds") and to allow businesses such as veterinary
clinics and slaughterhouses to keep prohibited animals for
"a short period of time." Without an applicable
exemption, however, the fine for possessing any prohibited
animal in the Village is between $100 and $750 per day.
7 Village police chief Scott Marth testified that on July 23,
2016-12 days after Ordinance No. 540 was enacted-he examined
the Nelsons' property and saw "approximately" a
half-dozen calves. "It was hard to tell, " Marth
said, because "[s]ome of them were laying down."
Marth issued Talea a citation under Ordinance No. 540, for
keeping livestock on the property. Apart from that violation,
Marth testified, he was not aware of any specific complaint
about the Nelsons' property.
8 Throughout the trial, Talea maintained that the Village was
preempted from enforcing Ordinance No. 540 by the Act. As we
discuss below, the Act insulates farmers against nuisance
suits after a farm has been in operation for a year. The
trial court rejected Talea's contention that her farm
qualified for immunity under the Act. After closing
arguments, the trial court accepted Rahn's testimony that
he had worked on the Nelsons' property, stating,
"That's technically I guess a farming operation.
It's certainly not a big operation ***." However,
the court stated that "what is new to this thing"
is Ordinance No. 540, which "deals with animals."
The court opined that the Nelsons had altered their use of
the property from a permissible farming operation to an
impermissible "feedlot." The court then stated the
"Having been in this area and gone to parties and stuff
next to feedlots, the stench is awful. I know the farmers say
that's the smell of money, but I'm not going to go
live in an outhouse where I'm going to eat and live.
It's just not going to happen. Also, I'm not going to
be covered by flies morning, noon and night for a six or
seven-month period of time. I'm not going ...