NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190130
Order filed July 22, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
KRR INVESTMENTS, LLC, an Illinois ) Appeal from the Circuit Court Limited Liability Company, and FIRST ) of the 13th Judicial Circuit, MIDWEST BANK, as Trustee of Trust No. ) Grundy County, Illinois 8823, ) ) Plaintiffs-Appellees, ) Appeal No. 3-19-0130 ) v. ) Circuit No. 13-CH-141 ) THE COUNTY OF GRUNDY, a Body ) Corporate and Politic of the State of Illinois, ) The Honorable ) Lance R. Peterson Defendant-Appellant. ) Judge, Presiding. ___________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court. Presiding Justice McDade and Justice O’Brien concurred in the judgment. ____________________________________________________________________________
ORDER
Held: (1) Trial court’s order remanding matter to county board for further proceedings on special use application was not final and appealable; (2) trial court’s ruling that zoning ordinance was arbitrary and capricious as applied to plaintiffs’ property was supported by the evidence where property was zoned Industrial but used only for farming; and (3) trial court’s declaration that plaintiffs’ proposed use of property was reasonable did not usurp role of county board. ¶1 Plaintiffs KRR Investments and First Midwest Bank filed an application with defendant
County of Grundy seeking (1) a map amendment rezoning their property from Industrial to
Agricultural, and (2) a special use permit to operate a recreational vehicle (RV) campground on
their property. Defendant denied plaintiffs’ request for a map amendment and refused to consider
their request for a special permit. Plaintiffs filed a complaint in circuit court seeking declaratory
judgment and injunctive relief. The circuit court entered orders finding that (1) defendant’s zoning
ordinance was arbitrary and capricious as applied to plaintiffs’ property, and (2) plaintiffs’
proposed use of their property was reasonable. Defendant appeals those orders. We affirm.
¶2 BACKGROUND
¶3 In 2007, plaintiffs purchased approximately 44 acres of land in Goose Lake Township,
Grundy County. Plaintiffs purchased the property from a bank that had foreclosed on the land. The
property was vacant, unused and for sale for seven to eight years before plaintiffs’ purchase.
Midwest Bank owns 11.8 acres of the property, as trustee of Trust No. 8823, and KRR owns the
remainder of the property. KRR is the beneficiary of Trust No. 8823. Plaintiffs’ property consists
of unimproved farmland. Approximately 10.2 acres of the 11.8 acres owned by First Midwest is
located in a floodplain and/or floodway of the Kankakee River.
¶4 Plaintiffs’ property is zoned Industrial, according to the Grundy County Zoning Ordinance
in effect at the time of plaintiffs’ purchase. The eastern boundary of the property is the Kankakee
River. The property to the west is zoned Industrial and used primarily as farmland. The area south
of the property is zoned Industrial and used for industrial purposes. The property to the north is
zoned Agricultural Residential and contains a residential subdivision.
¶5 Defendant adopted the Grundy County 2020 Comprehensive Land Use Plan in 2005. That
plan, which was in effect when plaintiffs purchased the subject property, states that one of its
2 objectives is to “promote environmentally supportive recreational uses of lands in flood plains and
areas adjacent to waterways.” It further states: “In order to provide adequate recreational facilities
in the region, a tremendous increase in the amount of park camp sites *** will be needed.” The
map accompanying the Land Use Plan identifies plaintiffs’ property as “Commercial Recreation.”
¶6 In 2010, defendant enacted the Grundy County Unified Development Ordinance, which
permits campgrounds and recreational vehicle (RV) parks in property zoned Agricultural, subject
to a special use permit. The ordinance sets forth the requirements for RV parks and campgrounds
and states that the purpose of those facilities is to offer “alternative uses for marginally productive
farmland.”
¶7 On October 12, 2012, plaintiff KRR, on behalf of itself and Trust No. 8823, filed a written
application with defendant requesting an amendment to the zoning of the 11.8 acres of property
owned by First Midwest Bank. KRR sought to have the property rezoned from Industrial to
Agricultural and requested the issuance of a special use permit to allow KRR to operate a seasonal
campground on the property.
¶8 After local and state agencies reviewed the application, defendant’s Land Use Committee
issued 14 special use conditions for the campground. KRR agreed to abide by those conditions.
Thereafter, the Grundy County Planning Committee reviewed KRR’s application. After its review,
the Planning Committee recommended that the Grundy County Planning and Zoning Committee
approve the application. The Planning and Zoning Committee next reviewed the application and
recommended that it be placed before the County Board.
¶9 On April 16, 2013, a public hearing was held before the Grundy County Zoning Board of
Appeals. Robert Schmude, a professional engineer, testified that the property owned by plaintiffs
is currently being used as farmland, but the portions of the property occupied by wetlands and
3 woodlands are not farmed. Schmude estimated that all but six-and-a-half to seven acres of
plaintiffs’ property is occupied by a floodplain or floodway.
¶ 10 Jay Heap, a real estate appraiser, testified that KRR’s proposed campground would not
negatively affect property values in the area. He based his opinion on the existence of campground
facilities throughout the state that adjoin residential properties.
¶ 11 Darryl Harrison testified that plaintiffs’ property has been “barely farmed” for the past 20
years. He expressed concerns that KRR’s proposed campground would lower nearby property
values and endanger wildlife. Other nearby residents raised similar objections to KRR’s
application and also argued that the proposed campground would inhibit industrial growth and be
unsafe because of increased boat traffic and potential flooding. Some residents expressed positive
opinions about the proposed campground, stating that it would give more people access to the
Kankakee River.
¶ 12 At the end of the hearing, the County Zoning Board of Appeals voted to recommend denial
of KRR’s application. The application then went back to the Land Use Committee, which provided
a neutral recommendation of the application to the County Board.
¶ 13 On June 11, 2013, the County Board denied KRR’s application for a map amendment to
change the zoning of the property from Industrial to Agricultural and took no action on KRR’s
request for a special use permit. Two weeks later, plaintiffs filed a complaint in circuit court
challenging the County Board’s decision. In December 2013, plaintiffs filed an amended
complaint. Count I sought declaratory judgment, seeking declarations that (A) the county
ordinance’s classification of plaintiffs’ property as Industrial is arbitrary, capricious and
unreasonable; (B) plaintiffs’ proposed use of their property is reasonable; and (C) defendant’s
actions and inactions constituted a taking of plaintiffs’ property without reasonable compensation.
4 Count II sought an injunction, requesting the court to enter orders (A) enjoining defendant to
approve plaintiffs’ request for a map amendment and a special use permit, and (B) enjoining
defendant from interfering with plaintiffs’ use of the property as a seasonal campground. Goose
Lake Township filed a petition to intervene, which the trial court granted.
¶ 14 A bench trial was held in August 2017. In addition to the testimony and evidence presented
at trial, the court reviewed and considered testimony presented at the Grundy County Zoning Board
of Appeals hearing.
¶ 15 At trial, John J. Russ, Jr. testified that he and his family own KRR. He purchased the subject
property to develop it as a seasonal campground based on defendant’s 2020 Comprehensive Land
Use Plan, which designated the property as “Commercial Recreation.” Russ hired Robert
Schmude, a civil engineer, to create drawings and a site plan for the property. Schmude obtained
the necessary permits for the property from U.S. Army Corps of Engineers, Illinois Department of
Natural Resources, and Illinois Environmental Protection Agency. Grundy County’s consulting
engineer, Steve Amann, provided a list of 20 items he wanted changed from Schmude’s original
plan to “bring it in line with exactly how Grundy County comprehensive plan and unified
development code saw these things developed.” Schmude made the changes Amann requested,
and Amann wrote a letter of acceptance stating that the proposal met the County’s guidelines.
¶ 16 Schmude also prepared a wetland and floodplain delineation map, which he provided to
the Grundy County Zoning Board of Appeals. To address concerns from nearby residents, the
plans were changed to move camping sites further away from residential areas. To satisfy
defendant, an archeological study and a zebra mussel study were performed at the site. Based on
a recommendation from the Illinois Department of Public Health, Russ raised well casings on the
property. KRR’s application was reviewed and approved by the Illinois Department of Public
5 Health, Grundy County Emergency Management Agency, Coal City Fire Department, Illinois
Historical Preservation Society and Grundy County Highway Department. Schmude testified that
the RV campground proposed by KRR constitutes “commercial recreation.”
¶ 17 Robert Tonelli, a professional planner, testified that he reviewed KRR’s application. He
explained that a county’s land use plan is “critically” important as it is “one of the most significant
tools that local government * * * has to set their goals, objectives, [and] visions of how they want
to see property used and developed.” He relies on such plans to gain an understanding of a county’s
desires for the development of its property. He believes KRR’s proposed use of its property is
consistent with the County’s 2020 Land Use Plan because the plan identified the property as
“commercial recreation” and mentioned using property adjacent to riverways as recreational
property. He also believes the subject property is well suited for commercial recreation because it
is located on the Kankakee River. He does not believe industrial use of the property is appropriate
because of its proximity to the river and residential property and because it has flooding issues. He
believes a change in zoning of the property from Industrial to Agricultural would be appropriate
because the property is used for farming and is adjacent to residential property. The property serves
as a buffer between Industrial and Residential property.
¶ 18 Tonelli testified that KRR’s proposed use of the property is consistent with the health,
safety and general welfare of the community. He stated that KRR addressed and rectified all
concerns the County had regarding all issues, including noise, garbage and congestion. He does
not know if a seasonal campground is the highest and best use of the property because he did not
perform that type of analysis but stated that “it represents a much higher use than the use it’s
currently put to.” He could not think of a better use for the property. He believes KRR’s proposed
use of the property constitutes “commercial recreation.”
6 ¶ 19 Defendant presented testimony from Michael Hoffman, a community planning consultant.
He opined that KRR’s proposed campground “was not an appropriate use” of plaintiffs’ property
because the property is located in a highly industrial area and in a flood plain. He does not believe
the proposed campground is “commercial recreation” because it is not an activity consumers pay
a daily or hourly fee for, such as a go-cart track, paintball facility or miniature golf course. Hoffman
also had safety concerns with the property, including the existence of only one road for ingress
and egress and its proximity to a major road, which he thought would be dangerous for hikers and
bikers coming from the property. Hoffman had no traffic volume concerns. He believes the best
use of the property is agricultural because of its location in a flood plain.
¶ 20 Heidi Miller, Grundy County building and zoning planner, testified that the proposed
campground was not a good fit for the property “because of the flood plain issues and the lack of
conservation of that area.” She believes “commercial recreation” includes boating but not
camping. She testified that Grundy County adopted a new comprehensive land use plan in 2014,
just months after the County Board denied plaintiffs’ application for a map amendment. Under the
new plan, KRR’s property is identified as “prime agricultural.”
¶ 21 Nancy Norton, president and CEO of Grundy County Economic Development Council
(Council) testified that KRR’s proposed campground would inhibit future industrial development
in the area. She believes it is “inconsistent” to have an industrial facility next to a “residential
campground.” She testified that a new industrial facility is currently being built west of plaintiffs’
property. She is not aware of any industry showing an interest in purchasing plaintiffs’ property
since she has been president and CEO of the Council, which is more than 17 years.
¶ 22 Steven Kodat, a farmer and member of the Goose Lake Planning and Zoning Commission,
testified that his father has been leasing plaintiffs’ property for six or seven years for farming. His
7 father farmed the property approximately 25 years before that. The property sat empty and unused
for approximately 18 years before plaintiffs purchased it.
¶ 23 On June 1, 2018, the trial court issued a nine-page memorandum and decision in which it
applied the factors set forth in La Salle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40
(1957), and determined that the County Board’s decision to deny the zoning amendment for the
subject property from Industrial to Agricultural was arbitrary and capricious. The court granted
plaintiffs’ request for an injunction in count II of their complaint, requiring defendant “to approve
plaintiff’s request for a Map Amendment from Industrial (I) to Agricultural (A).” The court denied
count I of plaintiffs’ amended complaint, finding that plaintiffs failed to present evidence on the
value of their property or the loss of revenue caused by defendant’s actions. With respect to
plaintiffs’ request for a special use permit, the court stated: “Because the county did not take action
on the requested special use permit there is no legislative action for the court to rule upon at this
time and this cause is hereby remanded to the County for further proceedings if plaintiff chooses
to pursue action on its application for said permitted use.”
¶ 24 Two months later, plaintiffs filed a motion to enforce judgment, asserting that defendant
refused to hold a hearing on its application for a special use permit. On February 19, 2019, the trial
court issued a “Supplemental Clarifying Order,” finding in favor of plaintiffs on paragraphs (A)
and (B) of count I of their amended complaint, holding that the county ordinance’s classification
of plaintiffs’ property as Industrial is arbitrary, capricious and unreasonable and that plaintiffs’
proposed use of their property is reasonable. The court remanded the case “to the County Board to
act on the special use permit application, consistent with this court’s findings and rulings at the
next possible board meeting.” On March 13, 2019, defendant filed a notice of appeal.
¶ 25 ANALYSIS
8 ¶ 26 I.
¶ 27 Plaintiffs argue that we lack jurisdiction to consider the propriety of the trial court’s June
1, 2018 order because defendant did not file its notice of appeal within 30 days of its entry.
Defendant responds that we have jurisdiction to consider the propriety of that order because it was
nonfinal and a step in the procedural progression that led to the trial court’s final order, which it
timely appealed.
¶ 28 Illinois Supreme Court Rules 301 and 303 govern appeals from “final judgments” entered
by trial courts. See People v. Orengo, 2012 IL App (1st) 111071, ¶ 3. Rule 301 authorizes appeals
from the “final judgment of a circuit court.” Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). Rule 303 requires
a notice of appeal to be filed “within 30 days after the entry of the final judgment appealed from.”
Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017).
¶ 29 To determine if a judgment is final, the court must examine “whether the judgment fully
and finally disposes of the rights of the parties to the cause so that no material controverted issue
remains to be determined.” Cory Corp. v. Fitzgerald, 403 Ill. 409, 414 (1949). When a case is
remanded for further proceedings, it may or may not constitute a final judgment depending on the
scope of the proceedings on remand. See id.
¶ 30 A trial court’s order remanding a cause to an administrative agency to act in accordance
with the court’s directions is final for purposes of appeal. See Lippert v. State Property Tax Appeal
Board, 273 Ill. App. 3d 150, 153 (1995). However, a trial court's remand to an administrative
agency is not final if the court orders a new hearing (Lippert v. State Property Tax Appeal Board,
273 Ill. App. 3d 150, 153 (1995)) or if the remand involves disputed questions of facts or law
(Martin v. Cajda, 238 Ill. App. 3d 721, 727 (1992)). In those circumstances, a final judgment is
not entered because “the rights of the parties have not yet been fully and finally adjudicated.”
9 Lippert, 273 Ill. App. 3d at 153. When a case is remanded to an administrative agency for further
proceedings, the circuit court retains jurisdiction over the action on remand. Id.; Page v. City of
Chicago, 299 Ill. App. 3d 450, 457 (1998). Only after the circuit court has examined the results of
the additional proceedings will its subsequent order be final and appealable. Mitrenga v. Martin,
110 Ill. App. 3d 1006, 1008 (1982).
¶ 31 An appeal from a final judgment draws into question all prior nonfinal orders that produced
the judgment. Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433 (1979); In re Estate of
Nicholson, 268 Ill. App. 3d 689, 694 (1994). “A prior nonfinal order is reviewable if it is a step in
the procedural progression leading to the judgment specified in the notice of appeal.” Hough v.
Kalousek, 279 Ill. App. 3d 855, 864 (1996). A nonfinal judgment that is “a step in the procedural
progression leading to the judgment specified in the notice of appeal” does not have to be identified
in the notice of appeal. See Nicholson, 268 Ill. App. 3d at 694.
¶ 32 Here, on June 1, 2018, the trial court entered judgment in favor of KRR on count II of
plaintiffs’ amended complaint, enjoining the County “to approve plaintiff’s request for a Map
Amendment from Industrial (I) to Agricultural (A).” The court did not rule on plaintiffs’ request
for a special use permit, stating that “because the County did not take action on the requested
special use permit there is no legislative action for the court to rule upon at this time.” The court
further stated: “[T]his cause is hereby remanded to the County for further proceedings if plaintiff
chooses to pursue action on its application for said permitted use.”
¶ 33 Plaintiffs contend that defendant’s failure to file a notice of appeal within 30 days of the
June 1, 2018 order divests us of jurisdiction to consider it whether it was properly entered. We
disagree.
10 ¶ 34 The trial court’s June 1, 2018 order did not fully and finally dispose of plaintiffs’ claims.
It only granted plaintiffs the injunction they requested with respect to the map amendment. The
court did enter judgment on plaintiffs’ request for approval of their application for a special use
permit but remanded that matter to the County Board for “further proceedings.” The “further
proceedings” before the County Board would consist of a hearing at which the County Board
would be required to resolve questions of fact and law. See City of Chicago Heights v. Living Word
Outreach Full Gospel Church and Ministries, Inc., 196 Ill. 2d 1, 20-22 (2001) (in determining
whether to grant a special use permit, city council had to adhere to applicable regulations and
ordinances and consider facts and circumstances). Thus, the June 1, 2018 order was not final. See
Martin, 238 Ill. App. 3d at 727.
¶ 35 Because the court’s June 1, 2018 order did not fully and finally adjudicate the rights of the
parties, it was not final and appealable. See Lippert, 273 Ill. App. 3d at 153; Martin, 238 Ill. App.
3d at 728. Further, an appeal from the court’s June 1, 2018 would have been premature because
the trial court had to be given an opportunity to review the action taken by the County Board on
plaintiffs’ application for a special use permit before appellate jurisdiction would be conferred on
this court. See Mitrenga, 110 Ill. App. 3d at 1008; Doyle v. City of Crystal Lake, 183 Ill. App. 3d
405, 411 (1989).
¶ 36 The trial court’s February 19, 2019 order was the first final and appealable order entered.
It granted plaintiffs the relief they requested and remanded the cause to the County Board to act in
accordance with its directions. See Lippert, 273 Ill. App. 3d at 153. Defendant timely filed its
notice of appeal within 30 days of entry of that order and identified that order in its notice of
appeal. While defendant’s notice of appeal did not mention the trial court’s June 1, 2018 order, we
have jurisdiction to review that order because it is a nonfinal order that is a step in the procedural
11 progression leading to the trial court’s February 19, 2019 final order. See Nicholson, 268 Ill. App.
3d at 694; Hough, 279 Ill. App. 3d at 863-64. Thus, we will consider the propriety of the court’s
June 1, 2018 order.
¶ 37 II.
¶ 38 Defendant argues that the trial court erred in ruling that defendant’s zoning ordinance,
which classified plaintiffs’ property as Industrial, was arbitrary and capricious. Plaintiffs respond
that the trial court’s decision was supported by the evidence.
¶ 39 It is primarily the province of a municipal body to determine the use and purpose to which
property may be devoted. La Salle National Bank of Chicago v. Cook County, 12 Ill. 2d 40, 46
(1957). A court will not interfere with the discretion of a municipal body “unless the legislative
action of the municipality is shown to be arbitrary, capricious or unrelated to the public health,
safety and morals.” Id. Moreover, “if the restrictions imposed bear no real and substantial relation
to the public health, safety, morals, comfort and general welfare, the ordinance is void.” Id.
¶ 40 A zoning ordinance is presumptively valid; however, this presumption may be overcome
by clear and convincing evidence presented by the plaintiff. Id. The following facts should be
taken into consideration in determining the validity of an ordinance: (1) the existing uses and
zoning of nearby property, (2) the extent to which property values are diminished by the particular
zoning restrictions, (3) the extent to which the destruction of property values of plaintiff promotes
the health, safety, morals or general welfare of the public, (4) the relative gain to the public as
compared to the hardship imposed upon the individual property owner, (5) the suitability of the
subject property for the zoned purposes, (6) the length of time the property has been vacant as
zoned considered in the context of land development in the area in the vicinity of the subject
property, (7) the care with which the community has undertaken to plan its land use development,
12 and (8) the evidence or lack of evidence of community need for the use proposed by the plaintiff.
Id. at 46-47; Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370, 378 (1960). “No one
factor is controlling.” La Salle National Bank, 12 Ill. 2d at 47. “When it is shown that no reasonable
basis of public welfare requires the limitation or restriction and resulting loss, the ordinance fails
and the presumption of validity is dissipated.” Id. at 47-48.
¶ 41 In cases involving the validity of zoning ordinances, “there is naturally a conflict of
testimony *** and the credibility of witnesses is of great importance.” Id. at 48. The trier of fact
is in a superior position to that of a reviewing court in these cases. Id. When testimony is
contradictory in a bench trial, the weight to be accorded testimony is a matter to be determined by
the trial court and its findings will not be disturbed unless manifestly against the weight of the
evidence. Id. Where the findings and judgment of the trial court are supported by the evidence,
they should be affirmed. See id.
¶ 42 Here, the trial court considered the relevant factors set forth in La Salle National Bank, 12
Ill. 2d at 46-47, and Sinclair Pipe Line Co., 19 Ill. 2d at 378, to determine if defendant’s zoning
ordinance was valid. The court found that the first factor, the existing uses and zoning of nearby
property, “weigh[ed] slightly in favor of plaintiff” because the subject property “sits in an area of
mixed zoning,” and is located next to a residential subdivision, making it unsuitable for industrial
development. The evidence supports the trial court’s conclusion with respect to this factor. The
subject property is surrounded by property zoned and used for a variety of purposes: the property
directly to the east is the river; the property to the north is residential; the property to the west is
zoned industrial but used primarily for farmland; and the property to the south is primarily
industrial. Tonelli, a professional planner, testified that it would be inappropriate to use plaintiffs’
property for industrial purposes because of its proximity to the river and residential property. He
13 testified that the property serves as a necessary buffer between industrial property to the south and
west and residential property to the north. Based on the evidence and testimony presented at trial,
the court did not err in finding this factor slightly supported plaintiffs.
¶ 43 The court determined the second factor, the extent to which property values are diminished
by the particular zoning restrictions, also “weigh[ed] slightly in favor of plaintiff” because
rezoning would have no detrimental effect on surrounding property values, and “[p]laintiff clearly
suffers a loss from the County zoning decision.” The evidence supported this conclusion. Jay Heap,
a real estate appraiser, testified before the Zoning Board of Appeals that plaintiffs’ proposed
campground would not negatively affect property values in the area. While other individuals
expressed concerns that plaintiffs’ proposed campground would lower nearby property values, no
real estate professional presented evidence that property values in the area would suffer. Further,
the evidence showed that the proposed RV campground was a higher and better use of the property
than farming, which is the only other use to which plaintiffs’ property has been put for decades.
The trial court’s conclusion on this factor was proper.
¶ 44 The court ruled that the third factor, the extent to which the destruction of property values
of plaintiffs promotes the health, safety, morals or general welfare of the public, “weigh[ed] in
favor of plaintiff” because defendant’s denial of plaintiffs’ proposed map amendment “precludes
any development of the property and results in the property remaining vacant,” and also
“contradicts and inhibits the County’s specific objectives set forth in its Land Use Plan for this
property.” Again, the evidence supports the trial court’s conclusion. Tonelli testified that plaintiffs’
proposed use of the property is consistent with the health, safety and general welfare of the
community. Plaintiffs’ proposed use is also consistent with the Grundy County 2020
Comprehensive Land Use Plan’s objectives to “promote environmentally supportive recreational
14 uses of lands in flood plains and areas adjacent to waterways” and increase the number of park
camp sites. Defendant disagrees with the trial court’s conclusions that (1) the subject property
could not be developed for other purposes, such as industry, and (2) would remain vacant.
However, the evidence presented by defendant’s own witnesses, Norton and Kodat, established
that the property sat empty and unused for more than 17 years before plaintiffs purchased it, and
no industry showed an interest in the property. The trial court’s finding with respect to this factor
was not against the manifest weight of the evidence.
¶ 45 The court ruled that the fourth factor, the relative gain to the public as compared to the
hardship imposed upon the individual property owner, also “weigh[ed] in favor of plaintiff”
because under the Industrial designation, the property can only be used for farming, which is not
its highest and best use. Again, defendant argues that the evidence does not support the trial court’s
conclusion that the subject property could not be used for a purpose other than farming, such as
industrial development. However, the evidence showed that for more than 25 years the subject
property has been used exclusively for farming, which is not the highest and best use of the
property, according to plaintiffs’ witness, Tonelli. Tonelli also testified that it would be
inappropriate for plaintiffs’ property to be used for industrial purposes because of its proximity to
the river and residential property, as well as flooding issues. Defendant’s own expert, Hoffman,
agreed that the property would likely not be used for industrial purposes but would continue to be
used as farmland because of its location in a flood plain. The evidence supports the trial court’s
conclusion with respect to this factor.
¶ 46 The court determined that the fifth factor, the suitability of the subject property for the
zoned purposes, also “weigh[ed] in favor of plaintiff” because a “significant portion of the property
is located in the floodplain or floodway,” making it unsuitable for industrial use. The undisputed
15 evidence established that all but 6 to 7 of the 44 acres owned by plaintiffs is occupied by a
floodplain or floodway and all but 1.6 acres of the 11.2 acres on which plaintiffs intend to develop
their campground is in a floodplain or floodway. On appeal, defendant contends that it is possible
to develop the subject property for industrial purposes despite its location on a floodplain or
floodway. However, defendant presented no evidence to support this conclusion at trial. Tonelli
testified that the subject property was unsuitable for industrial use because of its flooding issues,
and defendant’s own witness, Hoffman, testified that the property would likely continue to be used
for farming because of flooding on the property. Furthermore, the undisputed evidence showed
that plaintiffs’ property has been used only for farming and that no industry has ever shown an
interest in purchasing the property despite it being for sale for many years before plaintiffs
purchased it. Thus, the evidence supports the trial court’s conclusion that this factor weighs in
favor of plaintiffs.
¶ 47 With respect to the sixth factor, the length of time the property has been vacant as zoned
considered in the context of land development in the area in the vicinity of the subject property,
the court found this factor also “weigh[ed] in favor of plaintiff” because “[t]he property has been
vacant for a significant period of time and it cannot be developed as currently zoned industrial.”
Defendant contends that the evidence does not support the court’s conclusions that plaintiffs’
property has been “vacant” and cannot be developed as industrial property. We disagree. The
evidence presented at trial established that (1) only the land not located in a floodplain or floodway
on plaintiffs’ property is farmed, and (2) only six to seven acres of plaintiffs’ property is not in a
floodplain or floodway. Thus, the vast majority of plaintiffs’ property (37 to 38 acres) is vacant
and has been for many years. While defendant argues that the property can be used for industrial
purposes, Tonelli testified that was not the case and none of defendant’s witnesses provided
16 testimony as to how the property could be developed for industrial purposes despite its location in
a floodplain and floodway. The evidence supports the trial court’s conclusion on this factor.
¶ 48 The court also found the seventh factor, the care with which the community has undertaken
to plan its land use development, “weigh[ed] in favor of plaintiff” because defendant’s “intent and
goal is to keep plaintiff’s property ‘vacant’ or ‘as is’ in perpetuity and preclude plaintiff from any
type of development whatsoever,” which is inconsistent with the County’s 2020 Comprehensive
Land Use Plan. The evidence showed that the land use plan in place when plaintiffs purchased the
property identified plaintiffs’ property as “commercial recreation.” Plaintiffs’ witnesses, Schmude
and Tonelli, testified that the RV campground proposed by plaintiffs constituted “commercial
recreation.” While defendant’s witnesses disagreed, Miller admitted that at least one activity
offered at the campground would constitute “commercial recreation.” Further, plaintiffs’ proposed
use of the property is consistent with the county plan’s objectives to “promote environmentally
supportive recreational uses of lands in flood plains and areas adjacent to waterways” and increase
the number of park camp sites. Thus, the trial court’s conclusion regarding this factor was also
supported by the evidence.
¶ 49 Finally, the court ruled that the eighth factor, the evidence or lack of evidence of
community need for the use proposed by the plaintiff, “weigh[ed] in favor of plaintiff” because
the County’s 2020 plan showed a need for more campsites and commercial recreation facilities,
particularly near waterways. One of the goals of the County’s 2020 plan was to “promote
environmentally supportive recreational uses of lands in flood plains and areas adjacent to
waterways.” The plan further stated: “In order to provide adequate recreational facilities in the
region, a tremendous increase in the amount of park camp sites *** will be needed.” The RV
17 campground proposed by plaintiffs satisfied both of these plan objectives. The evidence, therefore,
supported the trial court’s conclusion with respect to this factor.
¶ 50 In this case, the trial court properly considered the evidence and determined that all relevant
factors weighed in favor of the conclusion that defendant’s zoning ordinance was arbitrary and
capricious as applied to plaintiffs’ property. The court’s determinations with respect to each factor
were supported by the evidence and, thus, not against the manifest weight of the evidence. We
affirm the court’s ultimate conclusion that defendant’s ordinance was void because its restrictions
bore no real and substantial relation to the public health, safety, morals, comfort and general
welfare.
¶ 51 III.
¶ 52 Finally, defendant argues that the trial court usurped its role by ruling that plaintiffs’
proposed use of the property is reasonable. Plaintiffs respond that the trial court had the power and
authority to rule on the reasonableness of their proposed use of the property based on the evidence
presented at trial.
¶ 53 Counties have a right and a duty to maintain their land use through zoning regulations. See
Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 255-56 (2003). A special use allows a
property owner to use his property in a way that the controlling zoning code expressly permits as
long as certain criteria or conditions are satisfied. City of Chicago Heights, 196 Ill. 2d at 16. “The
purpose of special uses is to provide for those uses that are either necessary or generally appropriate
for a community but may require special regulation because of unique or unusual impacts
associated with them.” Id. (quoting S. Conner, Zoning, in Municipal Law & Practice § 13.17 (Ill.
Institute for Continuing Legal Education 2000)). “[T]he inclusion of a special use within a zoning
ordinance ‘ “is tantamount to a legislative finding that the permitted use is in harmony with the
18 generally zoning plan and will not adversely affect the neighborhood.’ “ Id. at 17 (quoting 3 K.
Young, Anderson’s American Law of Zoning § 21.13, at 126 (4th ed. 1999 Supp.) (quoting Twin
County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1001, 688 N.E. 2d 501, 502 (1997))).
¶ 54 “A zoning ordinance may be set aside only to the extent necessary to permit the specific
use proposed by a property owner.” (Emphasis in original.) Texaco, Inc. v. Village of Schaumburg,
135 Ill. App. 3d 1084, 1086 (1985) (citing Schultz v. Village of Lisle, 53 Ill. 2d 39 (1972)). The
specific use proposed must be introduced into evidence and the court's decree must be framed with
reference to the specific plan proposed. Id. (citing Sinclair Pipe Line Co., 19 Ill. 2d 370). The
purpose of the rule is to bind both the landowner and the governing body to the adjudication of
one specific use and prevent the multiplicity of litigation. Id. (citing Sinclair Pipe Line Co., 19 Ill.
2d 370).
¶ 55 While courts have authority to rule on the validity of a zoning ordinance, this authority
does not include the power to determine the ultimate zoning classification of property. La Salle
National Bank v. City of Chicago, 130 Ill. App. 2d 457, 460 (1970) (citing Reeve v. Village of
Glenview, 29 Ill. 2d 611 (1963)); see also Seiler v. City of Granite City, 255 Ill. App. 3d 210, 212
(1993) (a trial court may not directly or indirectly rezone a parcel of property). The practical effect
of declaring a zoning ordinance void with respect to a particular piece of property is to leave that
property unzoned; therefore, the court may frame its order in reference to a specific proposal before
it and find that the contemplated use would be reasonable. La Salle National Bank, 130 Ill. App.
2d at 460. However, the court must exercise this authority with extreme care to avoid encroaching
on the legislative function of zoning. Id. The most a court may do after declaring an existing zoning
ordinance void as applied to certain property is to find from the evidence before it that the specific
19 use contemplated by the owner is reasonable and may be permitted. Id. (citing Fiore v. City of
Highland Park, 76 Ill. App. 2d 62, 76 (1966)).
¶ 56 Here, the trial court’s order does not encroach on defendant’s power to zone property
within its borders. In its February 19, 2019 order, the trial court found for plaintiffs on Paragraphs
A and B of their declaratory judgment action, ruling that (A) the county ordinance’s classification
of plaintiffs’ property as Industrial is arbitrary, capricious and unreasonable; and (B) plaintiffs’
proposed use of their property is reasonable. Such declarations were within the court’s power to
make. See id. We, therefore, affirm the trial court’s order.
¶ 57 CONCLUSION
¶ 58 For the foregoing reasons, the judgment of the circuit court of Grundy County is affirmed.
¶ 59 Affirmed.