Sternaman v. County of McHenry (454 F. Supp. 240, 1978)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

McGARR, District Judge.

The court, having heard the testimony of the witnesses for the parties in open court, having considered the documentary evidence and briefs of the parties, and otherwise being fully advised in the premises, hereby enters the following findings of fact and conclusions of law pursuant to Rule 52, Fed.R.Civ.P. and enters judgment thereon pursuant to Rule 58, Fed.R.Civ.P.

I. The Parties, Jurisdiction and Venue

1. The plaintiff, John C. Sternaman (hereinafter, “Sternaman”), is an individual residing in this judicial district and division. Sternaman as a lessee is now and since the spring of 1972 has been in rightful possession of approximately sixty acres of land (hereinafter, “the Sternaman land”) located in a rural, unincorporated area of Nunda Township, McHenry County, Illinois, the legal description of which is correctly set out in the complaint (PX 1, para. 1, 4; 1-7).

2. The defendant, the County of McHenry (hereinafter, “the county”), is an Illinois county organized and existing as an Illinois corporation under S.H.A. Ch. 34, § 301 (PX 1, para. 2) and is physically located in this district and division. Like many counties in this state and elsewhere, the county has enacted a zoning ordinance regulating land use within the county (PX 3).

3. The present suit arises out of a controversy between the parties respecting the county’s application of particular provisions of its zoning ordinance to Sternaman’s business operations on said land. Specifically, in August, 1976, the county issued a final refusal to renew a ten-year conditional use permit (CUP) issued on September 14,1965; the original permit had authorized certain on-site processing of sand and gravel mined on said land by Sternaman as of right. Sternaman was thereafter charged in quasi-criminal proceedings initiated by the county with multiple violations of its zoning ordinances (1-6-18; PX 3). Proceedings on these alleged violations are pending before the Illinois Circuit Court of the 19th Judicial District, McHenry County, i. e., County of McHenry v. John C. Sternaman, d/b/a Illinois Mining Company, Nos. 76-CM-2502 and 76-CM-2615 (DX 8 and 9).

4. The multicount complaint (PX 1) herein alleges that, under the facts of this case, the county’s refusal to renew the conditional use permit denies to Sternaman certain fundamental rights to which he is entitled under the Constitution of the United States, particularly the Fifth and Fourteenth Amendments. The county contends that the Sternaman complaint (PX 1) fails to state a claim upon which relief may be granted. The court disagrees; the court finds that the complaint properly states claims for a denial of “due process” (Count I), a denial of “equal protection” (Count II), and unconstitutional application of the ordinance provisions at issue (Count III). The claim of Count IV, alleging an “unlawful taking” without just compensation, finds no support in the evidence and is dismissed. A fifth count, alleging that the applicable provisions of the county’s ordinance are preempted by the Illinois Environmental Protection Act, was not considered on its merits by the court and was voluntarily withdrawn from contention, since the issues of that count are now pending between the same parties before the Illinois Appellate Court in an interlocutory appeal filed by Sternaman in the aforesaid criminal action.

5. The county, on November 21, 1977, the final date then scheduled for the hearing of evidence in the subject cause, filed a motion to dismiss this cause on the grounds that this court lacked subject matter jurisdiction and that it should in any event abstain from the exercise of jurisdiction, even if it found such to exist. The court on hearing the arguments of the parties denied the motion on November 21, 1977 without prejudice to the renewal of the motion at the close of the trial. The court has considered the renewed motion of the county and, except as to Count IV, again rejects the county’s contentions. The court finds that it has jurisdiction under 28 U.S.C. §§ 1331, 2201 and 2202, in that the present action presents a genuine case or controversy arising under the Constitution and laws of the United States and that the matter in controversy exceeds the sum or value of $10,000, exclusive of interests and costs. The court finds that jurisdiction does not exist in this court under 28 U.S.C. § 1343 or 42 U.S.C. § 1983. The court rejects the county’s invitation to dismiss this cause under the doctrine of abstention, the court finding that the facts warranted the exercise of jurisdiction by this court.

II. The Applicable Legal Standards

6. In hearing the conflicting evidence of the parties, the court was not unmindful of certain guiding principles, specifically, a zoning ordinance is presumed valid (Galt v. County of Cook, 405 Ill. 396, 91 N.E.2d 395), this presumption may only be overcome by clear and convincing evidence (Midland Electric Coal Corp. v. County of Knox, 1 Ill.2d 200, 115 N.E.2d 275), and the burden of proof is on the plaintiff (Krom v. City of Elmhurst, 8 Ill.2d 104, 133 N.E.2d 1). It is likewise well established that it is primarily the province of the municipal body to determine the use and purpose to which property within its boundaries may be devoted, and it is neither the province nor the duty of a federal court to interfere with the discretion with which such bodies are vested, unless the legislative action of the municipality is shown to significantly invade the United States constitutional rights of the complaining party. La Salle National Bank v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65 (1957).

7. The above zoning ordinance principles are applicable with undiminished force to “special” or “conditional” uses, such as are involved in this case. The local zoning authorities are vested with broad powers in determining the suitability of a given site for a proposed special or conditional use. But for this reason, the avenues of judicial review must be at least as readily available to the party who seeks to establish a special or conditional use as they are in the normal zoning case where courts , have historically stood ready to determine whether the exercise of zoning power “involves an invasion of private rights without reasonable relation to the public welfare”. Pioneer Trust & Savings Bank v. County of McHenry, 41 Ill.2d 77, 241 N.E.2d 454, 459 (1968).

8. The police power of the state and municipality are the justification for limiting a property owner’s or lessor’s traditional right to use his private property as he desires, and in determining whether the invasion of property rights under a purported police power is impermissible under the Constitution of the United States various factual inquiries are properly made by the courts. Pioneer Trust & Savings Bank v. County of McHenry, supra. Specifically, even though the validity of each zoning ordinance and conditional use permit must be determined on its own facts and circumstances, an examination of the Illinois cases discloses that among the facts which may be taken into consideration enroute to such determination are the following: 1) the existing uses and zoning of nearby property, 2) the extent to which the 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 on the individual property owner; and 5) the suitability of the subject property for the zoned purposes. La Salle National Bank v. County of Cook, supra, 12 Ill.2d at 46-47, 145 N.E.2d 65; see also, Shenk v. Zoning Commission of District of Columbia, 142 U.S.App.D.C. 267, 440 F.2d 295 (1971). In looking to Illinois law, this court is well aware of the fact that it does not possess the same latitude of powers as the state courts in ruling on the validity and enforceability of the county’s action in denying the Sternaman application for a conditional use permit; this court is jurisdictionally restrained by 28 U.S.C. § 1331(a) to act only where it finds a violation of the laws and Constitution of the United States by the county’s action in this case.

III. The Evidence Presented

9. Both parties called various witnesses and introduced a number of documents in support of their respective positions. In determining contested fact issues, the court has relied in substantial part upon its opportunity to hear the live testimony of the witnesses, and to observe their demeanor.

A. The McHenry County Zoning Ordinance

10. The County of McHenry some years ago enacted a zoning ordinance pursuant to a statutory delegation of authority from the State of Illinois, S.H.A. Ch. 34, §§ 3151, et seq. Sternaman does not in this proceeding challenge the validity of the ordinance per se, but only the conduct of the county in application to him of certain ordinance provisions, i. e., Sections 8 and 15, relating to the granting of conditional use permits as a necessary antecedent for the washing, screening or crushing of sand and gravel on farm-zoned property (PX 3).

11. The zoning ordinance (PX 3) divides unincorporated portions of the county into thirteen districts, ranging from single family residences on three or more acres (E District) to heavy industry, including iron and steel mills, cement mills, asbestos manufacturing and other heavy industrial uses (1-2 Industrial District).

12. As earlier noted, the Sternaman land comprises sixty acres located in a rural, unincorporated area of the county; the Sternaman land is now and has for many years been zoned “F-Farming” (PX 1, para. 6). This zoning, among other things, expressly permits as of right the following uses under Section 8(1) of the ordinance:

“Mining, loading and hauling of sand, gravel, humus, black dirt, or other aggregate, but not including any screening, crushing, washing or storage equipment or structures, excepting as may be specifically authorized as a variation for a limited period.” (PX 3, pp. 7-8).

No district permits as of right the excluded activity cited above, but property in any of the thirteen districts may be granted a conditional use permit under Section 15(c)(7) of the ordinance for, inter alia, the following uses:

“(7) Quarry, sand pit, gravel pit, top soil stripping, gravel plant, and stone quarry, including crushing, grading, washing and loading equipment . . .” (PX 3, p. 11).

13. In certain zoning districts, a conditional use permit is a necessary antecedent to undertaking the basic operations of mining, loading and hauling of mineral deposits. However, under Section 8(1) quoted above for “F-Farm” zoning, the steps of mining, loading and hauling of mineral deposits may be conducted and the equipment therefor may be used as of right on property so zoned. Also, under the scheme of the ordinance, “unless otherwise prohibited or restricted, a permitted use also allows uses, buildings and structures incidental thereto .” (PX 3, p. 3). The county has consistently recognized in respect of others than Sternaman that in F-zoning, it has absolutely no right under its ordinance to regulate the mining and loading of sand, gravel or other aggregate on the property and the transport of the material from the property. Indeed, the record relating to grant of the original conditional use permit for the Sternaman land in 1965 states that:

“As is well known by the Board of Supervisors, petitioners have a right to mine and extract the gravel content without a permit.”

Thus, the court finds that Sternaman has an unconditional right on his farm-zoned land to perform the primary use activities contemplated by Section 15(c)(7) for an unlimited term, i. e., mining, loading and hauling sand, gravel and other aggregate. A conditional-use permit under the terms of the ordinance was needed only for those additional on-site processing operations expressly exempted from Section 8(1), i. e., washing, screening and crushing. The applicable ordinance standards for the granting of conditional use permits for such operations are set forth in Section 15A (PX 3, p. 11).

B. The Proceedings for Renewal of the Conditional Use Permit

14. An original conditional use permit authorizing certain on-site processing of sand, gravel and other aggregate mined on the Sternaman land was issued in 1965 (PX 5). Sternaman took possession of the land in the spring of 1972 and thereafter operated his business of mining, loading, processing and hauling sand and gravel from the land in normal course without apparent objection from the county through the final denial of the petition for renewal of the permit in August, 1976 (PX 1, para. 5).

15. Sternaman filed a petition to renew the conditional use permit in March, 1976, together with various supporting papers, including a professionally prepared plan for reclamation of the property upon completion of the mining operations (PX 6, 6A — B, 9).

16. Pursuant to the scheme of the ordinance (PX 3, p. 11), a public hearing was held on the Sternaman petition by the County Zoning Board of Appeals (ZBA) on April 28, 1976, at which time record evidence was received including that in support of the petition and that of protestors Robert Carow, Ludwig Wolf and Betty Keeny (PX 7). Members of the ZBA questioned the witnesses for and against the granting of the petition. A resume of the evidence together with the findings and recommendations of the ZBA was transmitted to the Planning and Zoning Committee (PZC) of the County Board of Supervisors in June, 1976 (PX 8). Both the Board of Appeals and the PZC unanimously recommended granting of the petition (PX 3A, p. 14; PX 8) on the basis of the findings made by the ZBA. A cash performance bond for the reclamation in the amount of $5,000 was requested and posted by Sternaman (PX 6C).

17. The Sternaman petition came before the full Board of Supervisors for approval of the findings and recommendations of the Board of Appeals and PZC on June 14,1976. The Board denied the Sternaman petition on that date (PX 10, p. 5), reconsideration of the denial was prompted by a minority of the Board on July 20,1976 (PX 12, p. 4) and the petition was denied for a second time on August 17, 1976 (PX 13, p. 5). Sternaman and the county then became entangled in a series of controversies which need not be recounted here, except to note that Sternaman has exhausted his administrative remedies (I-PX 1, p. 4) and that, on the eve of this lawsuit, Sternaman faced immediate and irreparable harm to his business by reason of the denial of the permit (PX 1, p. 4).

18. The Board of Supervisors did not state its reasons for denial of the petition, never stated what, if any, findings of the Appeals Board it found unsupported by the evidence, never stated why the recommendations of the Appeals Board and PZC were rejected, and never made any findings of its own. The only extant documentary record of the Board action is the recording of the denial in the Board minutes (PX 10, 13), and a brief notice of the denial sent to the Zoning Enforcement Officer (PX 11).

19. The County Board as a quasi-legislative body has broad discretion under its zoning ordinance in deciding what matters it might consider in applications for conditional use permits, and what procedural restraints it might impose on participation by applicants in such hearings. However, the consideration by the Board of matters lacking in any probative value as to the issue before it, and the effective prohibition of any participation in such hearings by applicants, are factors that this court may consider in determining whether or not the Board acted in an arbitrary and capricious manner in denying the conditional use permit, or otherwise acted in a manner inconsistent with the constitutional rights of the applicant for the permit. Likewise the County Board, as with other quasi-legislative bodies, is not required to make findings of fact, and its actions are entitled to a presumption of validity. But when a complainant makes a factual showing indicating that the county has acted arbitrarily, that action cannot be sustained unless the county puts forward, or the court is otherwise able to discern, some basis in fact and law to justify the county’s action. Shenk v. Zoning Commission of District of Columbia, supra, 142 U.S.App.D.C. at 269, 440 F.2d at 297. The record in this case shows no sufficient basis to vindicate the action of the county in denying the Sternaman permit. On the contrary, the record shows that the county’s action herein was arbitrary and capricious and denied to Sternaman the equal protection required by the Fifth and Fourteenth Amendments. La Salle National Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65 (1957); Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928); Pioneer Trust & Savings Bank v. County of McHenry, supra; Taylor v. County of Peoria, 30 Ill.App.3d 685, 333 N.E.2d 726 (1975); Elmhurst-Chicago Stone Co. v. County of Kane, 129 Ill.App.2d 190, 262 N.E.2d 612 (1970); County of DuPage v. Gary-Wheaton Bank, 42 Ill.App.2d 299, 192 N.E.2d 311 (1963).

20. Mr. Richard Klemm, County Board President, testified under Rule 30(b)(6), Fed.R.Civ.P., as a spokesman for the county on the reasons for the County Board’s denial of the Sternaman petition in a pretrial deposition, and likewise testified on the same subject at trial. According to Mr. Klemm, the reasons for denying the Sternaman petition were: a) a concern about the exit of trucks from the Sternaman land onto the road and the “tearing up” of the road thereby incurred; b) a concern over the welfare of school children on the road; c) an alleged declining property value from the mining; and d) an absence of a public need or necessity to mine, since there are many sand and gravel operations in McHenry County (11-16-19). Mr. Klemm acknowledged that at both the July and August, 1976 Board meetings, he made arguments against granting of the Sternaman petition and presented in support of his arguments photographs of vehicles on the Sternaman land (PX 15), a sound recording of noises purportedly emanating from the Sternaman land (PX 16), and a letter objecting to the mining operations on the Sternaman land (PX 17). All of these materials (PX 15017) were received by Mr. Klemm from one of the objectors before the ZB A; Mr. Robert Carow. None of the photographs or the letter related to objections to the processing operations of Sternaman.

21. Klemm testified that the taped sounds were in his judgment made by front-end loaders and trucks, and not by any processing operations of Sternaman (11-11-31). Klemm admitted that no evidence or argument was presented to the County Board about the nature of the washing, screening or crushing operations on the Sternaman land, other than that contained in the ZBA record (11-35-36), and that there was no objection to the manner in which Sternaman conducted his processing operations (11-35-37). The record herein leads inevitably to the conclusion that Sternaman was denied a conditional use permit by the Board on the basis of consideration of matters relating solely to the activities he was entitled to conduct as of right, i. e., mining, loading and hauling of sand, gravel and other aggregate. The record does not reflect any grounds reasonably related to washing, screening or crushing that were relied upon by the Board in any sense as the basis to deny the permit. Also, as summarized later herein, the evidence shows that standards applied to Sternaman were different than the standards applied to other applicants for conditional use permits in the county, and the standards applied to Sternaman discriminated against him in a constitutionally impermissible manner.

22. The county sought to criticize the sufficiency of the Sternaman application for conditional use permit, and to justify denial of the renewal, on the grounds that the reclamation plan offered by Sternaman was not entirely satisfactory and that the $5,000 cash bond posted by Sternaman was not sufficient to guarantee performance of the reclamation. The testimony of the county on this issue is not convincing. The reclamation plan was prepared by a professional land planner recommended by the county and at least tacitly recognized as an expert in his field by the county’s own witnesses. But even aside from these considerations and the fact that the presentation of a comprehensive land reclamation plan and a cash bond have not been imposed on any other applicant for such a conditional use permit in McHenry County as a condition precedent to issuance of the permit, the court finds that requirement of such a reclamation plan and cash bond for its performance are not conditions reasonably related to granting of the permit at issue.

C. The Sternaman Land

23. The testimony shows that the Sternaman land was first mined for sand and gravel almost thirty years ago, that it has been periodically mined with more or less intensity ever since, that prior to Sternaman’s entry on the land in 1972, it was frequently used as an unauthorized garbage dump, that since then a marked cleanup of the property has occurred, that the mining operations have been conducted by Sternaman in a responsible manner, that the washing, screening and crushing operations sought to be conducted by permit produce minimal noise and other disturbance to adjacent properties compared to the mining, loading and transport conducted as of right, that the aforesaid operations were and are wholly conducted within the confines of the Sternaman land, and that these operations have never been the source of complaint by the neighbors or the county during the term of the original permit or thereafter.

24. The record is clear that the Sternaman land is swampy in parts and rocky and sandy in parts, that the land is wholly unsuitable for farming in its present state, and that Sternaman intended and still intends to extract and sell the far less valuable unprocessed minerals if a processing permit is denied, and that the mining, loading and transport would therefore continue.

25. The evidence shows that the Sternaman land contains a comparatively scarce and valuable deposit of natural “blending” sand which is an important constituent in concrete and asphalt; that the nearest equivalent deposit of such material is located at a substantial distance, a factor that significantly affects cost and marketability in favor of Sternaman and which benefits local users of such blend sand in the northern Illinois region; that the valuable blending sand can only be sold as low grade “fill sand” without washing and screening; that the wasting of this limited natural asset through sale as fill sand is to the public detriment; that Sternaman is a significant supplier of blending sand to concrete and asphalt plants in and around McHenry, that the resultant loss of revenue and profit to Sternaman would be severe, e. g., the difference between approximately 65