{ "id": 3069292, "name": "THE COUNTY OF LAKE, Appellant, v. THE FIRST NATIONAL BANK OF LAKE FOREST et al., Appellees", "name_abbreviation": "County of Lake v. First National Bank", "decision_date": "1980-03-21", "docket_number": "No. 51934", "first_page": "221", "last_page": "228", "citations": [ { "type": "official", "cite": "79 Ill. 2d 221" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "12 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2779648 ], "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0040-01" ] }, { "cite": "52 Ill. 2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "298 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5032112 ], "opinion_index": 0, "case_paths": [ "/ill/298/0339-01" ] }, { "cite": "1 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5314885 ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0342-01" ] }, { "cite": "68 Ill. App. 3d 693", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3307059 ], "weight": 2, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0693-01" ] } ], "analysis": { "cardinality": 672, "char_count": 13378, "ocr_confidence": 0.825, "pagerank": { "raw": 8.8112698348443e-08, "percentile": 0.4969044527306418 }, "sha256": "9fbdcc772f80fb74288f7f16fbca4d2552618e05f332ad813940529a03d29382", "simhash": "1:b98c9282db28d7d1", "word_count": 2167 }, "last_updated": "2023-07-14T21:04:05.574500+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE COUNTY OF LAKE, Appellant, v. THE FIRST NATIONAL BANK OF LAKE FOREST et al., Appellees." ], "opinions": [ { "text": "MR. CHIEF JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nPlaintiff, the County of Lake, filed this action in the circuit court of Lake County seeking to enjoin defendants, the First National Bank of Lake Forest and Amalio N. Polidori, from violating the county\u2019s zoning ordinance. Defendants filed a counterclaim for a declaratory judgment that the ordinance was void insofar as it purported to prohibit the use of defendants\u2019 land for a restricted landing area and a museum. Following a hearing, the circuit court entered an order enjoining defendants from operating, inter alia, a private aircraft landing strip and an \u201cair museum,\u201d and defendants appealed. The appellate court reversed the order except as to the portion which enjoined the operation of an interior-decorating business and a warehouse-antique business (68 Ill. App. 3d 693), and we allowed plaintiff\u2019s petition for leave to appeal.\nThe record shows that defendant Polidori, who is the beneficiary of a land trust for which the First National Bank of Lake Forest is trustee (hereinafter reference will be made only to defendant Polidori), acquired the 45-acre parcel here involved in 1952. In 1960 defendant applied to the Department of Aeronautics for permission to operate a \u201crestricted landing area\u201d on the property. Although the county and surrounding property owners were given notice and an opportunity to object, none did so. Notwithstanding its failure to object before the Department of Aeronautics, the county, in 1960, by letter, notified defendant that the site of his proposed landing strip was located in an \u201cF\u201d (farming) zone and that he would be required to secure a special use permit from the county board before proceeding. Defendant did not do so. In 1961 the Department of Aeronautics certified defendant\u2019s landing strip as a restricted landing area, and it was so used until enjoined by the circuit court.\nThe Lake County zoning ordinance was revised in 1966. The record does not contain the ordinance in force prior to that time, but an exhibit indicates that the designation of the zoning classification applicable to defendant\u2019s property was changed from F (farming) to AG (agricultural). The ordinance as revised required a \u201cconditional use permit\u201d for the operation of an \u201cairport\u201d or \u201cheliport\u201d in an agricultural zone. The ordinance does not contain a definition of either term. Museums are not enumerated among the conditional uses for which standards are provided in the ordinance.\nIt is not clear from the record when defendant began operating his air museum. Defendant assembled a collection of World War II aircraft, parts and related items of interest and began soliciting \u201cdonations\u201d from visitors. This enterprise was known as the \u201cVictory Air Museum.\u201d Called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), defendant testified that 2,500 to 3,000 persons visited the museum in 1976 and approximately 2,000 did so in 1977. In 1977 the museum generated a gross income of approximately $2,900. Robert Streicher, the director of building and zoning for Lake County, testified on cross-examination that defendant\u2019s was not the only museum operating in an agricultural zone. Lake County itself maintains a museum in an area zoned AG.\nOther witnesses testified concerning the effects of the landing strip and the museum on surrounding uses, and as to the highest and best use of the property. Joseph Lenzen, whose property abuts the defendant\u2019s landing strip at the strip\u2019s north end, testified that planes frequently fly over his property in taking off and landing at defendant\u2019s airstrip. On one occasion a plane brushed a tree which grew near his house. Lenzen testified on direct examination that total takeoffs and landings ranged from \u201cclose to 300\u201d in 1973 to approximately 25 in 1977. However, on cross-examination he acknowledged that some of the flights over his house were attributable to Campbell Airport at Grayslake. A film taken by Lenzen depicting takeoffs and landings at defendant\u2019s landing strip and overflights of Lenzen\u2019s house was received in evidence.\nThere was testimony that use of the landing strip did not interfere with the use or enjoyment of a parcel of land located 155 feet from the defendant\u2019s land or a house located 300 feet away. Witnesses testified concerning the unsuitability of defendant\u2019s land for agricultural purposes and that only approximately 25% to 35% of the parcel was \u201cfarmable.\u201d Defendant adduced testimony that his use of the land was compatible with surrounding uses and that the landing strip met the safety requirements of the State of Illinois. There was testimony that the museum was of historical value and contained \u201crare\u201d and \u201cvery rare\u201d aircraft. There was conflicting testimony concerning whether the presence of persons attracted to the museum interfered with the use or enjoyment of surrounding parcels of land. A real estate appraiser called by plaintiff testified that defendant\u2019s property was best suited for \u201cfarmette\u201d or \u201cestate\u201d uses and that the landing strip and museum had \u201ca depreciatory effect on the values of property surrounding it.\u201d\nWe consider first the question whether the plaintiff\u2019s ordinance is applicable to a restricted landing area. The circuit court found \u201cThat the desired use of the property as a private landing strip requires a special permit from the County Board\u201d and enjoined the use of \u201cthe property which is the subject matter of this lawsuit as a landing strip for aircraft.\u201d In reversing that portion of the order, the appellate court held that although the zoning ordinance required airports and heliports to possess conditional use permits, it failed to define either term. It concluded that the definitions of \u201cairport\u201d and \u201crestricted landing area\u201d contained in the Illinois Aeronautics Act (Ill. Rev. Stat. 1975, ch. 15\u00bd, pars. 22.6, 22.8) were mutually exclusive. After reviewing the definitions contained in the municipal airport authorities act (Ill. Rev. Stat. 1975, ch. 15\u00bd, par. 68.1), the County Airports Act (Ill. Rev. Stat. 1975, ch. 15\u00bd, par. 110), and the St. Louis Metropolitan Area Airport Authority Act (Ill. Rev. Stat. 1975, ch. 15\u00bd, par. 302(f)), and the rule that zoning ordinances, being in derogation of the common law rights to the use of real property, must be strictly construed in favor of the right of a property owner to the unrestricted use of his property, the appellate court held \u201cthat the Lake County Zoning Ordinance is ambiguous and therefore is not applicable to a restricted landing area. Thus, a conditional use permit need not be obtained by this defendant. Accordingly the trial court\u2019s injunction entered on count I of the plaintiff\u2019s complaint was improper.\u201d 68 Ill. App. 3d 693, 698.\nPlaintiff\u2019s ordinance provides for 20 zones and contains a table of the principal uses permitted in each of them. A footnote to the permitted-principal-uses table provides:\n\u201cThe above uses in Table 1 are permitted in the zones designated. However, the Zoning Officer shall have the right to allow any other use which is similar to and compatible with those uses permitted in the zone in question, and which is consistent with the purposes of this Ordinance.\u201d\nThe ordinance also provides:\n\u201cB. Variations \u2014 It is the intent of this Ordinance to use the variation only to modify the application of this Ordinance to achieve a parity among properties similarly located and classified. Specifically it is to be used to overcome some exceptional physical condition which poses practical difficulty or unnecessary hardship in such a way as to prevent an owner from using his property as intended by the Zoning Ordinance.\n***\n3. Standards for Variations \u2014 The Zoning Board may grant a variation whenever it shall have determined, and placed in its records, that all of the following conditions have been met:\na. That the variation does not permit a use otherwise excluded from the particular zone in which requested.\u201d\nIn urging that the judgment of the appellate court was erroneously entered and must be reversed, plaintiff contends first that the zoning ordinance which expressly provides for conditional use permits for \u201cairports and heliports\u201d should be construed to include restricted landing areas. It argues that \u201cthis provision clearly indicates an intent on the part of the drafters that the permitted principal uses are to be broadly construed.\u201d It argues further that proper application of the rule that the ordinance is to be strictly construed in favor of the property owner required that this ordinance be broadly construed to permit restricted landing strips under the designation \u201cairports and heliports.\u201d Thus construed, plaintiff argues, the ordinance required that defendant apply for a conditional use permit.\nAlternatively, citing City of Chicago v. Sachs (1953), 1 Ill. 2d 342, plaintiff argues that where an ordinance lists the permitted uses to which property in an area may be devoted, those uses which are not listed are prohibited. Thus construed, use of defendant\u2019s property as a restricted landing area was prohibited and the judgment of the circuit court must be affirmed.\nThe rule that an ordinance is void if it is indefinite and uncertain and its precise meaning cannot be ascertained (Consumers Co. v. City of Chicago (1921), 298 Ill. 339) applies to zoning ordinances. From our examination of the ordinance here, we conclude that the appellate court correctly held that it is ambiguous and therefore does not apply to a restricted landing area.\nPlaintiff contends that the appellate court erred in placing upon it the burden of proving that the aircraft museum was unlawful under a prior existing ordinance and that the question was neither raised by defendant nor argued in his brief on appeal. Defendant concedes that the issue decided by the appellate court was not raised in his brief, but argues that the judgment should be affirmed for the reason that the judgment of the circuit court should have been reversed on grounds which were properly preserved for review.\nThe table of permitted principal uses contained in the ordinance shows that \u201cmuseum or art gallery, public,\u201d is a principal use permitted in zones SR (suburban residential), UR \u2014 1, UR \u2014 2, UR \u2014 3 (urban residential), RR (resort residential), and CB (community business). The ordinance provides that in addition to the principal uses permitted in the designated zones, \u201cthe zoning officer shall have the right to allow any other use which is similar to and compatible with those permitted in the zone in question and which is consistent with the purposes of this ordinance.\u201d The portion of the ordinance which provides \u201cstandards for conditional uses\u201d makes no provision for museums, and clearly the procedure provided for obtaining a variation is inapplicable. It would appear, therefore, that the only method of obtaining a permit for use of defendant\u2019s property as a museum would be to seek to rezone it into one of the classifications in which museums are permitted.\nThere is no contention that defendant\u2019s inability to use the property as a museum would have any substantial effect on its value or that his inability to do so would in any manner affect its sale or development. The area in the vicinity of the property is sparsely populated and generally open space, and apparently has existed in that status for a period of approximately 60 years. The only evidence which would indicate an adverse effect on the public health, safety or welfare was that on three or four occasions during the year visitors to the museum had parked their automobiles on the shoulders of the road and in some instances had used neighboring property to turn around. There was no evidence to indicate that these occasional occurrences in any way disrupted the flow of traffic or hindered motorists in the use of the roadway, and nothing in the record indicates in what manner the problems allegedly resulting would be less difficult if the property were rezoned. A neighbor testified that the airplanes were \u201cjunk\u201d and unsightly. Aesthetic considerations, although not disregarded, are not controlling (La Salle National Bank v. City of Evanston (1974), 52 Ill. 2d 415, 432) and are often a matter of personal taste. Further reason to question the validity of the ordinance is that the record shows that the plaintiff county itself maintains and operates a museum in an area zoned AG (agricultural).\nOn this record it is difficult to perceive in what manner the proscription of the use of the defendant\u2019s property as an air museum would bear any real or substantial relation to the public safety, morals, comfort or general welfare. Absent some such relationship the ordinance, insofar as it relates to this property, is void. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.) Because of the conclusions reached we need not consider the remaining contentions briefed and argued by the parties. For the reasons stated the judgment of the appellate court is affirmed.\nJudgment affirmed.", "type": "majority", "author": "MR. CHIEF JUSTICE GOLDENHERSH" } ], "attorneys": [ "Dennis P. Ryan, State\u2019s Attorney, of Waukegan (James C. Bakk and Gary Neddenriep, Assistant State\u2019s Attorneys, of counsel), for appellant.", "Erwin W. Jentsch, of Elgin, for appellees." ], "corrections": "", "head_matter": "(No. 51934.\nTHE COUNTY OF LAKE, Appellant, v. THE FIRST NATIONAL BANK OF LAKE FOREST et al., Appellees.\nOpinion filed March 21, 1980.\nDennis P. Ryan, State\u2019s Attorney, of Waukegan (James C. Bakk and Gary Neddenriep, Assistant State\u2019s Attorneys, of counsel), for appellant.\nErwin W. Jentsch, of Elgin, for appellees." }, "file_name": "0221-01", "first_page_order": 279, "last_page_order": 286 }