In a case decided October 17, 2012, the Seventh Circuit Court of Appeals ruled, among other things, that protection of agriculture was a legitimate reason to deny a re-zoning application that had actually been agreed to by an earlier court order. The court also ruled that the County Board in the case was not responsible for the plaintiff missing the opportunity to sell land at a higher price because of the Board’s denial of the re-zoning request.
The opinion in Guth v. Tazewell County was written by the distinguished Judge Posner and is easier to read than many opinions. The opinion reads more as a story and less like a law school textbook. In this case, Plaintiff Guth owned four parcels of property in central Illinois totaling roughly 190 acres. The parcels were zoned agricultural and featured a hog farm located closely nearby. In 2004, Plaintiff requested that the local Zoning Board recommend to the County Board that one of the parcels be re-zoned “rural residential.” The Board refused to do this and refused the same request for two other of Plaintiff’s parcels.
Plaintiff responded by bringing suit against the County Board in Illinois state court. In October of 2006, the parties settled via an “Agreed Order” which stated that the Board agreed that all four of Plaintiff’s parcels should be re-zoned as rural residential. However, the settlement was only agreed to by a committee of the Board which had the authority to bind the Board, not the Board itself. Judge Posner notes that the reason for the Board’s previous denial of the re-zoning request was that the Board wanted to protect the hog farm located nearby the parcels. The Board apparently feared that new residents would move onto land near the hog farm and effectively force the farm to close via nuisance complaints. The Board made clear its desire to protect agriculture in the county. The Board only agreed to the settlement because it had discovered that the owner of the hog farm planned to close the farm.
Although the Agreed Order stated that Plaintiff’s parcels should be re-zoned, it did not order them to be re-zoned since state courts have no power to actually re-zone property. Therefore, Plaintiff was required to go through the process of obtaining a recommendation from the Zoning Board and then a final decision from the County Board. The Zoning Board recommended the re-zoning to the County Board, but the County Board in 2007 only approved the request by a vote of 11-10, which was far less than the three-fourths majority required for a re-zoning. This failure occurred despite the fact that the Board had approved the re-zoning of similar properties in the area very recently. Apparently the hog farm had decided to remain open and several Board members had denied Plaintiff’s request on that basis.
The following year in 2008, Plaintiff again brought a re-zoning request before the Board and was finally approved. However, by this time the housing market in the area had crashed, thus making the property’s value drop exponentially even after the re-zoning. Plaintiff had thus gained essentially nothing from her long struggle to re-zone her property. The Plaintiff then brought suit in federal court disputing the 2007 denial of re-zoning. After losing at the trial court, Plaintiff appealed to the Seventh Circuit.
Plaintiff first claimed under a “class of one” theory that the Board had discriminated against her in favor of other land owners who had been approved for re-zoning. However, the court ruled that Plaintiff’s property was closer to the hog farm than the properties that had been approved for re-zoning. Thus, her discrimination and equal protection claim failed due to the dissimilar circumstances.
Plaintiff also claimed that the denial was meant as retaliation for her bringing the first lawsuit against the Board that had ended in settlement. The court also refused to accept this theory, saying that there was not enough evidence to prove that more than a couple Board members acted in retaliation to Plaintiff or the court. The court notes that it is actually more difficult to prove the intent of a group of people than that of an individual.
Finally, the court summarily rejected Plaintiff’s claim that the failure to re-zone Plaintiff’s property amounted to a taking not for public purpose. The court briefly addressed Plaintiff’s damage theory and stated that while it was true that the Board’s delay in the re-zoning of Plaintiff’s property caused Plaintiff to miss out on selling the property before the housing market collapse, the Board did not cause the housing market collapse and could not have foreseen it. The court restated the old rule that a tortfeasor cannot be held liable for unforeseen risks. The judgment of the trial court was affirmed and Plaintiff was denied relief.
Many things seem to have gone amiss for the plaintiff in this case, some due to chance and some due to poor choices on the part of the plaintiff. While the plaintiff could not have controlled the reopening of the hog farm, the plaintiff (and its lawyer) could have refused to agree to a settlement that did not provide greater assurances that the re-zoning request would be approved. Additionally, Posner points out in his opinion that the state court was in a better position to provide relief to the plaintiff despite her use of the “heavy artillery” of a federal lawsuit. If a party and its lawyer are not attentive to the details of a case, a perceived victory, such as the initial settlement in this case, can turn out to be nothing but “fool’s gold.”
The lawyers at Dalton & Tomich plc have extensive experience in land use and zoning issues on the state and federal level. If you feel that your rights in this area have been violated, please do not hesitate to contact us about your matter.
