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Town of Serena v. Kelly, No. 3-98-0944

3rd District, 25 January 2000

JUSTICE HOLDRIDGE delivered the Opinion of the Court:

The Township of Serena sought to enjoin the defendants' gravel mining operation, arguing that the activity was not a permitted use of the subject property under the Serena zoning ordinances. After a hearing on the parties' cross-motions for summary judgment, the trial court ruled against the defendants and in favor of Serena. Following our careful review, we reverse the trial court's grant of summary judgment to Serena and remand for entry of summary judgment for the defendants.

The dispute involves the use of an 80-acre parcel of rural land located in the township of Serena. The property is held in trust by National Bank and Trust Company (National Bank). It is zoned A-1, agricultural, under the Serena zoning ordinances.

In January 1998, Serena officials observed that Scott Kelly was developing a gravel mining operation on the property. Serena served Kelly with notice to cease and desist the operation because it was not a permitted agricultural use of the property under section 4.1--3 of the 1997 Serena Township Zoning Ordinances. When Kelly failed to stop mining, Serena brought the instant action for injunctive relief against Kelly and the National Bank (collectively referred to as "the defendants"). The defendants raised several affirmative defenses, and the parties filed cross-motions for summary judgment.

In their motion, the defendants argued, inter alia, that gravel mining was a non-conforming use of the land established prior to the enactment of the Serena zoning ordinances; that Serena is pre-empted from regulating gravel mining by the Illinois Surface-Mined Land Conservation And Reclamation Act (Mining Act)(225 ILCS 715/1 et seq. (West 1996)); and that section 110--15(b) of the Township Code prohibited Serena from regulating the operation because it was an activity in furtherance of a legitimate agricultural purpose. (60 ILCS 1/110--15(b)(West 1996)). In granting Serena's motion for summary, the trial court rejected the defendants' contention regarding preemption by the Mining Act. We hold that townships are preempted by the Mining Act from regulating gravel mining operations and we reverse the trial court's finding to the contrary.

The Mining Act governs the activities of those engaging in surface mining in Illinois. 225 ILCS 715/2 (West 1996). Prior to 1981, local governmental control over surface mining was preempted by the Mining Act and all other applicable state laws and regulations pertaining to environmental protection. See, County of Kendall v. Avery Gravel Co., 101 Ill.2d 428, 433-34 (1984). This preemption was eliminated when section 2 of the Mining Act was amended in 1981 to provide:

"The issuance of a permit under this Act to engage in the surface mining of any resources other than fossil fuels is not intended to relieve the permitee from its duty to comply with other applicable state and local law regulating the commencement, location, and operation of surface mining facilities." (Emphasis added.) 225 ILCS 715/2 (West 1996).

The issue here is whether the legislature intended by the above language to grant townships authority to exercise control over surface mining activities following the enactment of the 1981 amendment. Serena maintains that the reference to "local law" encompasses townships, as townships are a unit of local government under the Illinois constitution. See Ill. Const. 1970, art. VII,