*1 THE MASTERSON, OF KNOX ex rel. COUNTY ROBERT L. as Knox Zoning Department Adm’r, Plaintiff-Appellant, HIGHLANDS, L.L.C., v. THE al., HIGHLANDS, et Defendants-Appellees. L.L.C., Plaintiff-Appellee, — THE v. THE al., KNOX COUNTY ZONING BOARD OF et APPEALS Defendants-Appellants. al., L. et Plaintiffs-Appellants, LEONARD — JOHN HIGHLANDS, L.L.C., al., THE Defendants-Appellees. 4—97—0912, 4—97—0913,
Third District Nos. 929 cons. 4— 9 7—0 Opinion filed December 1998.
McLAREN,J., dissenting. *2 County appellant of Attorney, Galesburg, for Mangieri, of L. State’s
Paul Knox. Baird, Baird, D. Mueller, Ottawa, appellants L. William
George for Nina of and John J. Leonard. McDermott, Pflaum, & Gering Stephen both of Will M. F. Charles West, Hattery, Simpson Chicago, of & of
Emery, Simpson, of and S. David Galesburg, appellees. Agricultural Kay Stille, Bloomington, of for amicus curiae
Barbara Association. Association, Narmont, Beef Springfield, of for amicus curiae Illinois
John Inc. Barton, Barton, Springfield, for curiae Il-
Michael of Bellatti & of amicus linois Pork Producers Association. opinion delivered the of court:
JUSTICE RAPP cases, Leonard, John County (county), In these consolidated Knox of Baird, County Zoning Ap- the Knox Board Baird, Nina William (Board) summary al., grant from the trial court’s appeal peals of The L.L.C. We affirm. judgment Highlands, in favor L.L.C., Highlands, the establishment These cases involve County where facility in rural Knox large-scale hog-confinement aof hogs. Knox raising feeding will land be devoted concern about objectors and the voice serious County individual re- occupiers land with surrounding lands and placed upon burdens attendant odors. spect to animal waste L.L.C., Baird and James The Highlands, On December Baird) (hereinafter (husband Highlands) filed Patricia co-owner Zoning County the Knox permit construction application hog-confinement buildings part of a Department, seeking to erect six operation County. permit days rural Knox issued several later. (the 3, 1997, On Bairds), March William and Nina Baird who owned property one mile of subject property, appealed within the issuance of the permit Zoning to the Knox County Appeals. Board of Other eventually joined citizens in this appeal. Pursuant to the Knox zoning resolution, stay of construction went activities into effect upon the filing appeal. of the 23, 1997,
On April hearing the Board held a public on the appeal. Four of the five members of the Board present. presen were After the evidence, tation of the two members voted to the permit, rescind one vote, passed vote, his and the chairman did that, explaining since four necessary votes were to rescind the the motion to permit, rescind could not carry even if he voted in favor of it. The chairman then ruled However, later, motion rescind had failed. days two Attorney Knox State’s Paul Mangieri overruled the announced decision of the Board and opined appeal granted building permit and that the had been canceled. See Prosser v. Village Lake, Fox Ill. 2d being Despite informed Attorney’s opinion State’s and the permit, cancellation of the Highlands began ground preparation activities proposed on the May 5, Masterson, zoning construction site. On depart Robert administrator, ment notified the it that was violation of resolution immediately and that must cease construction apply for a permit. conditional use *3 9,May 1997, Highlands On the filed a in complaint County Knox circuit seeking declaratory injunctive court and in relief three counts May administrative review in the On 12, sepa- fourth count. two complaints seeking injunctive against Highlands rate relief were the. by county by filed the John Leonard and the Bairds. After a hear- ing, temporary restraining the court denied the motions orders against Highlands, appellate the and the court affirmed the denial. Highlands summary judgment
The then in all three moved against it, In Highlands summary cases. the cases filed the moved for judgment filed, Highlands as to all the In it the sought counts. the case only seeking as to the counts declaratory and injunctive granted relief. The trial court all Highlands’ the motions in cases, including finding jurisdiction three a that Board lacked to proceed. light decisions, In of these subsequently dismissed remaining count of its complaint seeking review. administrative These appeals followed.
The appellants first contend that the trial court erred in consider- ing Highlands’ summary judgment, motions for as these motions decision, a collateral attack on constituted the Board’s which should only subject disagree. We have been to administrative review.
345
final
that all
provides
Counties Code
5—12012 of the
Section
shall be
appeal
of
decisions of
boards
administrative
Review
of the Administrative
pursuant
provisions
to the
judicial review
(West 1996)).
(735
55 ILCS
See
seq.
Law
5/5 — 12012
5/3 — 101
(West 1996).
is
applicable
Law
the Administrative Review
Where
griev
may
party’s
not redress a
remedy,
a
the circuit court
provides
Board, 128
Dubin v. Personnel
any
type of action.
through
ance
other
(1989).
factual
power
A
resolve
490,
reviewing
Ill. 2d
court’s
agency’s decision
be exercised
legal
arising from an
must
issues
a separate proceed
order and not in
agency’s
its review of
within
Security, 282 Ill.
ing.
Employment
v. Director
Corp.
Midland Hotel
of
(1996).
regulate thé
power
had the
App. 3d
316-17
buildings
land. See 55 ILCS
unincorporated
and use of
location
1997).
(West Supp.
5/5 — 12001
v. Il
is
of
In
to the above cases
the case Castaneda
contrast
(1989). Castaneda,
Comm’n, 132 Ill.
In
Rights
Human
2d
linois
exceptions to the doctrine of
supreme
recognized
several
exceptions
One of these
is
exhaustion of administrative remedies.
jurisdiction is attacked because it is not autho
agency’s
“where
Castaneda,
by
exception
regulate and restrict the location and *4 (West 1996). (55 of Code tion 5—12001 the Counties 5/5 — 12001 impose have no expressly section states that counties This used or to be used regulations respect land require permits with agricultural purposes. 346 “agriculture”
The term
by
was defined
supreme
People
court
(1926).
City
Joliet,
ex rel. Pletcher v.
Our review of order summary judgment is de novo. Co., Espinoza Elgin, Ry. Joliet & Eastern 165 Ill. 2d conclude, review, upon We de the rearing raising novo hogs, any quantity, agricultural purpose constitute under the recognized definition cited above.
Appellants granting next contend that the trial court erred in Highlands’ dismissing in the preju- favor and with appellants’ complaint seeking injunctive against dice the relief Highlands. complaints Our review of the us to leads conclude properly granting summary judgment trial acted and dismiss- ing the complaints prejudice upon based the same factors indicated above. objectors, dissent would allow the of Knox and other
supported by opinion operation this court’s County, pursue ordinance of Knox to return to the trial court to respective attempts prohibit Highlands’ their *5 I, II, III of and ruled on counts the time the trial court hog farm. At seeking administrative review IV Highlands’ complaint, count did not laws a Having received determination pending. abandoned its operation, to its apply then would it. dissent voluntarily and dismissed review count (it counts) (the substance wrong over ruled on the place form agricultural pursuit). will still be an curiae, Association
In its brief amicus Agricultural the Illinois Livestock entitled the this court’s attention to a new act directs Act) (510 (the seq. Management Facilities Act Livestock 77/1 (West 1996)). proceed May on 1996. The Act became effective This ap began the court on December ings the case before Act. the effective date of Livestock proximately months after 6V2 as in section 5 follows: purpose This new Act states its “Policy.
(a) Assembly following: finds the The General
(1) regulations dealing with to the current Enhancements are needed. production facilities livestock (2) industry experiencing rapid changes as The livestock is industry many within the a result of different occurrences including sophistication production technology, increased opera- capital expand to maintain or increased demand tions, product. changing quality demands for a and consumer
(3) major industry represents The livestock a economic economy. Illinois activity (4) larger at a is for concentration animals trend management facility due to market forces. various livestock (5) management of regulation and Current industry today’s a production adequate for with livestock modifications. few
(6) increasing a of animals at livestock Due to numbers facility, greater impacts a management potential there on the immediate area.
(7) lagoons according Livestock must be constructed waste integrity to protect and to standards maintain structural groundwater.
(8) complaints from manure of odor result Since producers provided be with an application, livestock must neighbor awareness program that enhance educational will skills, emphasis management their environmental management of livestock wastes. (b) Therefore, to maintain policy it is the State of Illinois industry economically in the State livestock viable the live- for the benefit both protecting the environment while producer stock persons vicinity who live aof livestock (West1996). facility.” production 510 ILCS 77/5 The Livestock Act also defines a management facility livestock as follows: management facility. management facility’
“Livestock ‘Livestock any shelter, feeding operation, means animal livestock or on-farm milking accompanying milk-handling area. Two or more live management stock ownership, facilities under common where the separated by mile, facilities are not a minimum distance of 1k facility share common handling livestock waste shall be single considered a management facility. livestock A livestock management facility institutions, at educational pasture livestock operations, where animals are housed on a temporary basis such fairs, shows, tracks, and state livestock race and horse breeding foaling farms, holding and market facilities are not (West1996). subject to this Act.” 510 ILCS 77/10.30 *6 places The Livestock Act rule-making authority the and enforce regulations upon agencies, ment of these two state the Department Agriculture and the Agency. Environmental Protection 77/ (c) (West 1996). 15(c), 55(b), ' light In emergence the of mega hog- cattle-feeding opera- tions cases, legislature such as those involved in these appears preempt agriculture have continued to zoning from local and reserved government regulation unto state the uniform of such facilities. ' summary, In agree we with the trial court and allow collateral attack on decision of jurisdic the Board because the Board lacked tion to purposes through zoning control ordinances. Inher in opinion ent this affirmance is our grant that de novo review of the ing summary judgment confirms hog- the conclusion that a confinement an agricultural land is purpose. I, this upon
Based affirmance of the trial court’s in decision counts II, and III Highlands’ declaratory judgment of the actions for injunctive (appeal 97—0913), granting relief No. our of the review 4 — in brought by County this (appeal case Knox 97—0912) Zoning compliance No. seek decision of the 4 — sought us Appeals Board of leads to the same conclusion. The relief predicated upon ability that case is of Knox to regulate hog per ordinance se or as a farms commercial feed previous opinion may lot. Our herein holds it not. reasons, judgment
For the above of the circuit court of Knox 4—97—0913, appeals affirmed in Nos. — 4—97 4 — 97—0929.
Affirmed.
COLWELL,J., concurs. McLAREN, dissenting:
JUSTICE County Zoning Board has concluded that the Knox join I zoning. cannot jurisdiction over Because has no Appeals declaration, I must dissent. such a incorrect patently Comm’n, Ill. 2d Rights Citing v. Illinois Human Castaneda exhaust party that a need not majority rightly states agency’s as not jurisdiction if attacks an administrative remedies it However, examining the case that Castaneda by statute. authorized Way Byrne, Inc. one notes Liquors, One proposition, cites for this It ‘jurisdiction’ scope. is limited in meaning of the word “[t]he to hear decide the and does not only case applies body A [Citations.] on the correctness of the decision made. depend right as well as a decision.” jurisdiction wrong has to make added.) Byrne, (Emphasis Way Liquors, One Inc. v. County, given that Knox It is inconceivable which regulate Code to restrict and
statutory authority in the Counties structures, authority to does not have the location and use of Highlands’ buildings are determine whether the county requiring from prohibits Code requirements. While is the agricultural purposes, it permits on land used jurisdiction being Its land is used. purpose must determine what right It of its decision. has depend does not on the correctness Highlands’ has over the matter. The wrong; be therefore on its face and in not an attack on the Board’s attack was *7 argue that the Board cannot entirety, Highlands as the did not its County. in Knox The at unincorporated land regulate structures on not the use of the land was tack on the Board’s decision that the correct requirements. This is an attack on exempt from through decision, only should be attacked ness of the Board’s which administrative review. an from analogous obtaining exemption is to that of
This situation the first Anyone seeking exemption claim an property taxes. to (other file an exemption) application must time than homestead 35 ILCS appeals. board of review or board of with the 200/ 1996). (West rule, exemption excep is the 15 — 5 Taxation is the (1956). Brenza, 2d The Park 108 v. 8 Ill. Rogers tion. Post No. seeking party exemption prove clearly conclusively must that he is entitled to it. Hall v. Property Appeal Board, Tax 98 Ill. (1981). App. board, The as an agency, administrative has authority to statutory construe provisions making its determina Hall, tion. 98 Ill. App. may 3d at 827. A party simply grant itself an exemption and refuse to pay However, taxes. the majority in this case would Highlands allow the to claim simply that its use of the land agricultural is and avoid the agency by set up statute regulate to property. that For if the Board had no the over matter, majority argues, as the Highlands duty the had no ap to ever pear majority encourages before the Board. The people apply not to law, for permits making and flout the the Board then involve itself in litigation eliminated that should be by permit process the that is al ready place. system cannot This be the envisioned by legislature our suggested by our courts. I also disagree majority’s with the presumptive conclusion that raising hogs, in any quantity, agricultural constitutes an purpose. Many municipal officials will be shocked to learn agri- cultural activities have taking place towns, been in their cities and people raising pigs, pot-bellied majority’s law, under the rule of must agricultural be purposes. involved If raising 300,000 hogs is agricultural, raising so must be the majority sallying one. The dangerous into territory ruling beyond apparent expertise unequivocally quantity when states does not matter. I un- am able to conclude as a matter Highlands’ operation of law that the is a hog hog factory. farm rather than a majority
The also placing accuses this dissent of form over in regards substance Highlands voluntarily to the fact that dismissed its granted administrative review count after the trial court other counts. It is not mere “form” when brought trial court on improperly cases, rules and the “substance” the (that majority operation agricultural has defined will still be an pursuit) agencies is best left to administrative and other triers of fact. Highlands asking failed to file a rein cross-appeal this court to state administrative review count should the case be reversed for to Therefore, failure exhaust administrative remedies. we do not have grant majority. to given the relief which is See Bates, only Stacke 225 Ill. 1054-55 way finding for the to end of operation achieve its desired be declare its actions a matter of substance over substance, is no longer since there an administrative review case which I agricultural. opine could find the do not be conclude, county. I would be do not *8 I agricultural. do is or is not law, operation a matter of decision, right to make did have the Board conclude that subject to or wrong, as to whether trial by decision was reviewable and that the requirements, fact remains that review. The through administrative court review; this ability to seek Highlands abandoned ability grant to that we do not have the does not lessen the fact today. Midland Hotel majority does See Highlands the relief which Security, Ill. Corp. Employment v. Director of (1996) through action what could not class (plaintiff could attain review). is not determined attain in administrative Jurisdiction recently supreme court considered expediency but the law. Our need inferentially reaffirmed the espousing I am distinction which v. Rev Department remedies. See McLean to exhaust administrative v. State Labor enue, (1998); Village Ill. 2d 341 of Winfield (1997) Board, (although the court concluded Relations (ISLRB) finding erred in State Labor Relations Board that the Illinois employees bring number of to employed requisite Winfield bargaining representative of a under the the certification collective determining it had the purview, ISLRB’s the ISLRB did not err so). Furthermore, remedy at does not become do law plaintiff preserve it. The inadequate simply because a fails Highlands the relief it grant does not have the request before this abandoned at the trial court level and failed by failing to file a cross-appeal. MESSAMORE, THE Appellant, A. INDUSTRIAL COMMISSION CHERYL (State Company, Appellee). Farm
et al. Insurance
Fourth No. 4 — 97—1080WC District January September Opinion filed 1999. Argued 1998.—