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Village of Chadwick v. Nelson

Court of Appeals of Illinois, Second District

December 15, 2017

THE VILLAGE OF CHADWICK, Plaintiff-Appellee,
TALEA LYNN NELSON, Defendant-Appellant.

          Appeal from the Circuit Court of Carroll County, No. 16-OV-26; the Hon. John F. Joyce, Judge, presiding.

          Lester S. Weinstine, of Law Office of Lester S. Weinstine, P.C., of Morrison, for appellant.

          Edward J. Mitchell, of Lanark, for appellee.

          Panel 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 (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 trial.

         ¶ 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 business."

         ¶ 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 that, after the Nelsons purchased the property, he and Dean had to "fix" it and level several areas so that the 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 that 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 What Is 4-H?, National 4-H Council, (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 following:

"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."

         The 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 ...

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