{ "id": 2874315, "name": "Clarence Ziemer, Plaintiff-Appellant, v. The County of Peoria et al., Defendants-Appellees", "name_abbreviation": "Ziemer v. County of Peoria", "decision_date": "1975-11-14", "docket_number": "No. 74-372", "first_page": "612", "last_page": "618", "citations": [ { "type": "official", "cite": "33 Ill. App. 3d 612" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "327 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "28 Ill.App.3d 225", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5408985 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0225-01" ] }, { "cite": "333 N.E.2d 731", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "30 Ill.App.3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2624308 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/1089-01" ] }, { "cite": "304 N.E.2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "15 Ill. App.3d 655", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463751 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0655-01" ] }, { "cite": "291 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "8 Ill.App.3d 984", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2760001 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0984-01" ] }, { "cite": "250 N.E.2d 791", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "112 Ill.App.2d 68", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590948 ], "year": 1969, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0068-01" ] }, { "cite": "63 Ill. B. J. 132", "category": "journals:journal", "reporter": "Ill. B.J.", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "192 N.E.2d 351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "28 Ill.2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363382 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0370-01" ] }, { "cite": "182 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1962, "opinion_index": 0 }, { "cite": "24 Ill.2d 488", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802666 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/24/0488-01" ] } ], "analysis": { "cardinality": 717, "char_count": 13483, "ocr_confidence": 0.712, "pagerank": { "raw": 6.907597123529909e-08, "percentile": 0.4197470586122975 }, "sha256": "e95e16d1795efce38cc4b2fa713181914d6dee6a0f802d4499f71ab82fc48d5d", "simhash": "1:a9366d5fd7ccf8cc", "word_count": 2121 }, "last_updated": "2023-07-14T15:25:47.184380+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Clarence Ziemer, Plaintiff-Appellant, v. The County of Peoria et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE STENGEL\ndelivered the opinion of the court:\nPlaintiff Clarence Ziemer brought an action for declaratory judgment in the Circuit Court of Peoria County seeking invalidation of an amendment to the county zoning ordinance which reclassified 5 acres of farm land adjoining plaintiffs farm from agricultural B-3 commercial to permit defendant George Hanlon to build and operate a dance hall-tavern on the premises. Judgment for defendants was entered at the close of plaintiff\u2019s evidence, and plaintiff appeals.\nPlaintiff alleged two grounds for invalidating the reclassification: (1) that the amendment was unlawful conditional or contract zoning because it was conditioned upon a restrictive covenant limiting use of the property to a dance hall-tavern, and (2) that the ordinance was an arbitrary and unreasonable classification of Hanlon\u2019s property because it was \u201cspot zoning.\u201d\nAccording to the record, plaintiff\u2019s farm is composed of 50 acres of rolling nontillable land, suitable primarily for concentrated feeding of poultry and livestock. The farm is improved with a home, bam and several accessory outbuildings. For many years plaintiff raised turkeys and, to prepare his turkeys for sale, he operated a slaughterhouse and processing plant employing 18 persons. During 1973 and 1974, he discontinued turkey production because of economic conditions, and, at the time of trial, he was engaged in raising hogs and cattle. However, the special purpose buildings for processing turkeys remain on the premises and are not adaptable to other uses. Plaintiff\u2019s farm has a 100-yard common boundary with Hanlon\u2019s 5-acre tract.\nDefendant Hanlon was a country-western bandleader who purchased the disputed 5-acre tract in February, 1974. This land had been used continuously for growing crops and was zoned agricultural at the time of purchase. It is located in a sparsely populated rural area surrounded by farm land. Hanlon proposed to operate a country-music dance hall serving alcoholic beverages, with plans to accommodate 800-1000 people drawn from a 30-mile radius, including Galesburg and Peoria.\nHe petitioned for rezoning of the 5-acre tract, and, on April 2, 1974, the Zoning Board of Appeals recommended approval, subject to the following restrictions: (1) that Hanlon dedicate to the County of Peoria land to provide a total width of 50 feet from the centerline of Illinois Route 8; and (2) that he record a covenant running with the land incorporating the decision of the zoning board and his acceptance of it.\nOn April 17, Hanlon executed a restrictive covenant which provided that, in consideration of the zoning board decision to grant rezoning of his 5-acre tract to allow construction of a dance hall and public entertainment fac\u00f1ity, he agreed (1) to restrict the primary use of the real estate to a facility for live entertainment, dancing, serving alcoholic beverages and related uses; (2) to waive and prohibit all other uses in B-l, B-2 and B-3 commercial classification; and (3) prior to construction of any improvement, to dedicate to the County of Peoria an area sufficient to provide a 50-foot wide access to the centerline of Route 8. The covenant recited that it runs with the land and is binding on Hanlons heirs, personal representatives and assigns.\nOn May 15, the Peoria County Board approved an amendment to the county zoning ordinance as recommended by the zoning board, subject to the same restrictions as noted above. On May 24, Hanlon recorded his restrictive covenant.\nPlaintiff appeared as an objector at the public hearing held by the zoning board, and, after exhausting Iris administrative remedies, he brought this action to have the amendment declared invalid.\nAt the bench trial, plaintiff first introduced evidence to establish his standing to bring the action by reason of special damage to his property, and then moved for summary judgment on grounds that the county board\u2019s action constituted conditional zoning. After ruling that plaintiff had the requisite standing, the court denied plaintiff\u2019s motion for summary judgment. Plaintiff tiren presented additional evidence to show that the ordinance was arbitrary and unreasonable and without substantial relation to the public health, safety and welfare. At the close of plaintiff\u2019s case the trial court granted defendant\u2019s motion for judgment, Plaintiff has appealed from both the order denying his motion for summary judgment and from the order entering judgment for the defendants.\nPlaintiff contends that the restrictive covenant executed by Hanlon, the action of the zoning board, and the amendment adopted by the county board taken together demonstrate that Hanlon\u2019s rezoning request was approved in exchange for his promise to restrict future uses to a dance hall-tavern facility, and to dedicate a 50-foot wide strip of land to the county for highway purposes. Plaintiff asserts that such conditional zoning is invalid in Illinois.\nIn Treadway v. City of Rockford, 24 Ill.2d 488, 182 N.E.2d 219 (1962), the court stated that a conditional zoning amendment may be invalid but expressly refused to rale on that question in the case before it because it had not been raised in the trial court. Instead the court reversed and remanded on grounds that the trial court had exceeded its authority by ordering additional conditions and restrictions not included in the ordinance. The Treadway dispute again reached the Illinois Supreme Court in Treadway v. City of Rockford, 28 Ill.2d 370, 192 N.E.2d 351 (1963), and the court, in its statement of facts, explained that a new ordinance had been passed \u201cwithout the conditional limitations which were the basis for our prior reman dment.\u201d (See 63 Ill. B. J. 132 (1974) for a criticism of the Treadway decisions and subsequent cases.)\nConditional zoning was considered in Hedrich v. Niles, 112 Ill.App.2d 68, 77, 250 N.E.2d 791, 795 (1st Dist. 1969), where the appellate court stated:\n\u201cOrdinarily, courts cannot inquire into the reasons motivating a legislative body in enacting zoning regulations and may determine only if the legislative body had the authority to pass the ordinance and, if so, whether it is arbitrary and unreasonable or bears a reasonable relation to the public health, safety and welfare. [Citation.] This long-established rule must, however, be balanced against a more recent one: that zoning ordinances should not be subject to bargaining or contract.\u201d\nIn Cederberg v. City of Rockford, 8 Ill.App.3d 984, 291 N.E.2d 249 (2d Dist. 1972), the court ruled that a restrictive covenant, which waived 43 permissible uses in a local business classification and restricted future use to offices, was an invalid attempt by the city to control the use of the land. The court also held the rezoning amendment to be void because the municipal authorities granted the reclassification solely on the basis of an agreement for the restrictive covenant, and failed to consider the statutory standards of public health, safety, comfort, morals and welfare. The court said that the effect of the city\u2019s action was to create a classification not set forth in the general zoning ordinances.\nSimilar issues were involved in Andres v. Village of Flossmoor, 15 Ill. App.3d 655, 304 N.E.2d 700 (1st Dist. 1973), where the rezoning amendment itself contained restrictions limiting future use to only one of those permitted in a multiple-family residential district, and imposed additional landscaping requirements for the lot in question. In Andres, the appellate court cited the dicta contained in the first Treadway decision (Treadway v. City of Rockford, 24 Ill.2d 488, 182 N.E.2d 219 (1962)) as the applicable law of Illinois. After an extensive review of authorities, the court held the amendment to be \u201cthe very model of invalid conditional zoning.\u201d\nAs these cases indicate, conditional zoning has been condemned on the theory that zoning is a legislative function which should not be accomplished by private contract. To permit each citizen to be governed by' legislation based on the best deal he can make with the county (or city) is not consonant with our notion of government by rule of law that affects alike all who are similarly situated. Furthermore, the re-suiting contract subverts the public policy reflected in the general zoning ordinance, and the contract also inhibits the exercise of the county\u2019s police powers.\nThose favoring conditional zoning argue that availability of such a \u201cflexible zoning tool\u201d protects the best interests of the public and provides an alternative method of regulation superior to mere withholding of approval. See 63 Ill. B. J. 132 (1974).\nIn a recent decision, Goffinet v. County of Christian, 30 Ill.App.3d 1089, 333 N.E.2d 731 (5th Dist. 1975), the court reviewed the cases cited above and concluded that conditional zoning is not invalid in every instance. In that case, the proposed use was a plant to manufacture synthetic natural gas and would serve an area where a fuel shortage existed. The court found that such use would fill a genuine public need and would \u201cunquestionably serve the public health, safety and welfare.\u201d 30 Ill.App.3d 1089, 1096, 333 N.E.2d 731, 736.\nAlthough we acknowledge that special circumstances of overriding public necessity, such as existed in Goffinet, may justify the use of conditional zoning in an exceptional case, we believe the general rule invalidating conditional zoning is recognized in Illinois. Neither the County of Peoria nor Hanlon has urged any special circumstances to justify conditional zoning in this case, and the record does not disclose any facts showing that the public health, safety and welfare were considered at the time the zoning amendment was passed. Therefore, we conclude that conditional zoning would be invalid in tire case at bar, if proved by plaintiff.\nPlaintiff introduced in evidence the rezoning amendment which specifically required the dedication of a 50-foot strip of land as a condition precedent to rezoning Hanlon\u2019s parcel. Although the amendment did not expressly require a restriction of future uses, the covenant executed by Hanlon contained such a limitation. Hanlon\u2019s restrictive covenant was executed one week after the zoning board approved the rezoning, and before the county board passed the amendment, and was recorded one week after the county board action. Finally, the covenant contains a recital that it is in consideration of the zoning board\u2019s approval.\nIn view of the plain language in the documents and the dates of the various related actions, we believe plaintiff\u2019s evidence established a prima facie case showing that the rezoning was approved and the amendment passed in exchange for Hanlon\u2019s restrictive covenant. In the absence of evidence to the contrary, the covenant was invalid, and the zoning amendment void. (Cederberg v. City of Rockford.) Accordingly, the trial court erred in entering judgment for defendant.\nPlaintiff also contends that his motion for summary judgment should have been granted. Under section 57(3) of the Civil Practice Act (Ill. Rev. Stat., ch. 110, \u00a7 57(3)), the court should enter summary judgment if the \u201c* * * pleadings, depositions, and admissions on file * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.\u201d Defendants\u2019 answer denies that the reclassification of defendant\u2019s property was conditioned on the restrictive covenant. As we have indicated, the documents and other evidence are sufficient to establish a prima facie case, but, nevertheless, where a material issue of fact is presented by the pleadings, defendants are entitled to present fully the factual basis for their case. (Anderson v. Dorick, 28 Ill.App.3d 225, 327 N.E.2d 541 (3rd Dist. 1975).) Therefore, we hold that the motion for summary judgment was properly denied.\nIn view of our disposition of this case, it is not necessary to decide whether plaintiff\u2019s evidence failed to establish that reclassification of Hanlon\u2019s property was arbitrary and unreasonable, or was spot zoning. However, one additional matter deserves comment.\nDefendants argue that plaintiff cannot complain about a proposed commercial use of Hanlon\u2019s property because plaintiff\u2019s slaughterhouse operation is also a commercial use. The Peoria County Zoning Ordinance includes, as a permitted agricultural use, \u201cfarm buildings * * * for preparing livestock or poultry products for market * * *. This definition does not include industrial operations such as a * * * slaughterhouse wherein agricultural products produced primarily by others are stored or processed.\u201d Plaintiff\u2019s poultry processing plant was used to prepare his own turkeys for market, and not those of others, and is thus a permitted use in an area zoned for agriculture.\nWe therefore reverse the judgment entered, and remand with directions to proceed as though the motion for judgment had been denied by the trial court, pursuant to Supreme Court Rule 366(b) (3) (iii) Ill. Rev. Stat. 1973, ch. 110A, \u00a7 366(b)(3)(iii)).\nReversed and remanded, with directions.\nSTOUDER, P. J., and RARRY, J., concur.", "type": "majority", "author": "Mr. JUSTICE STENGEL" } ], "attorneys": [ "Ralph J. Coletta, of Peoria (Edmund F. Harmon, of counsel), for appellant.", "Michael Mihm, State\u2019s Attorney, and Davis, Morgan & Witherell, both of Peoria (Stephen Gay, of counsel), for appellees." ], "corrections": "", "head_matter": "Clarence Ziemer, Plaintiff-Appellant, v. The County of Peoria et al., Defendants-Appellees.\n(No. 74-372;\nThird District\nNovember 14, 1975.\nRalph J. Coletta, of Peoria (Edmund F. Harmon, of counsel), for appellant.\nMichael Mihm, State\u2019s Attorney, and Davis, Morgan & Witherell, both of Peoria (Stephen Gay, of counsel), for appellees." }, "file_name": "0612-01", "first_page_order": 640, "last_page_order": 646 }