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Judge rules against Marshall County zoning ordinance

Posted January 02, 2008 10:00 pm

Gary L. Smith

A judge has declared Marshall County's rural zoning ordinance "unconstitutionally vague" in a long-running legal battle stemming from a maverick gravel pit started outside Henry by a Pekin man 3½ years ago.

In a written decision issued Monday and filed Wednesday in Marshall County, Circuit Judge John Barra said the ordinance does not meet the test of enabling county residents "of ordinary intelligence" to determine the zoning of their own property.

"Men of ordinary intelligence must guess at its meaning," Barra wrote in a statement quoting legal precedent.

In addition, Barra concluded from evidence presented at a two-day trial in December that county officials had failed to take all the steps mandated by state law when they enacted the ordinance in 1998.

"The court finds that Marshall County failed to substantially follow the statutory requirements in adopting the county zoning ordinance at issue," Barra wrote.

The findings marked a major victory for Kenin Edwards of Pekin, who briefly operated the pit in June 2004 in a direct challenge to the ordinance. The county, joined by the city of Henry, obtained a preliminary injunction at that time, but Edwards has steadily maintained a full hearing of the facts would lead to the very conclusions reached by Barra.

"That's awesome. That's what we've been working for," Edwards said when contacted Wednesday afternoon. "I'm just thrilled. I'm bouncing off the ceiling."

Charles Zalar, an appellate prosecutor representing the county, did not immediately return a call to his Springfield office. City of Henry lawyers Rick Joseph and Jeff Krumpe, from the Miller, Hall & Triggs firm in Peoria, were not in their office Wednesday afternoon and could not be reached by telephone or e-mail.

Barra ruled "the governmental bodies are not entitled to injunctive relief." He refrained from issuing a final judgment order, which could involve damages and attorney fees for Edwards, until a further hearing on issues involving ownership of some involved property and the effect of leaving land unzoned.

But Robert Gaubas and Carl Reardon, Edwards' lawyers, said the judge's findings appear to support arguments their client has been making since 2004 that the local law should be found void. That would mean Edwards could use his property without restriction.

"Having read (Barra's decision) a couple of times, I couldn't be more pleased for Mr. Edwards," Gaubas said. "It's been a long, long road for him."

The finding should also be good in the long run for the county, because it will prompt officials to improve their ordinance, suggested attorney William Anderson. He represents Granville farmer Raymond Kunkel, who owns property adjoining Edwards' and joined in the lawsuit challenging the ordinance.

"I think it's important that Marshall County get a good, valid zoning ordinance in place," he said. "I think this will ultimately be for the benefit of all the residents of the county."

County Board Chairman Dennis Bogner said he had heard only that a ruling had been issued and he could not comment further without learning more.

Reach Journal Star reporter Gary L. Smith at (309) 686-3041 or state@pjstar.com.

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