County of Knox Ex Rel. Masterson v. Highlands, L.L.C.

JUSTICE McLAREN, dissenting:

The majority has concluded that the Knox County Zoning Board of Appeals has no jurisdiction over zoning. Because I cannot join in such a patently incorrect declaration, I must dissent.

Citing Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304 (1989), the majority rightly states that a party need not exhaust its administrative remedies if it attacks an agency’s jurisdiction as not authorized by statute. However, in examining the case that Castaneda cites for this proposition, One Way Liquors, Inc. v. Byrne, one notes that “[t]he meaning of the word ‘jurisdiction’ is limited in scope. It only applies to the authority to hear and decide the case and does not depend on the correctness of the decision made. [Citations.] A body has jurisdiction to make a wrong as well as a right decision.” (Emphasis added.) One Way Liquors, Inc. v. Byrne, 105 Ill. App. 3d 856, 861 (1982). It is inconceivable that Knox County, which is given statutory authority in the Counties Code to restrict and regulate the location and use of structures, does not have the authority to determine whether the Highlands’ buildings are subject to permit requirements. While the Code prohibits the county from requiring permits on land used for agricultural purposes, it is the county that must determine for what purpose land is being used. Its jurisdiction does not depend on the correctness of its decision. It has the right to be wrong; it therefore has jurisdiction over the matter. The Highlands’ attack was not an attack on the Board’s jurisdiction on its face and in its entirety, as the Highlands did not argue that the Board cannot regulate structures on unincorporated land in Knox County. The attack was on the Board’s decision that the use of the land was not exempt from permit requirements. This is an attack on the correctness of the Board’s decision, which should only be attacked through administrative review.

This situation is analogous to that of obtaining an exemption from property taxes. Anyone seeking to claim an exemption for the first time (other than a homestead exemption) must file an application with the county board of review or board of appeals. 35 ILCS 200/15—5 (West 1996). Taxation is the rule, and exemption is the exception. Rogers Park Post No. 108 v. Brenza, 8 Ill. 2d 286, 290 (1956). The party seeking an exemption must prove clearly and conclusively that he is entitled to it. Hall v. Illinois Property Tax Appeal Board, 98 Ill. App. 3d 824, 828 (1981). The board, as an administrative agency, has authority to construe statutory provisions in making its determination. Hall, 98 Ill. App. 3d at 827 . A party may not simply grant itself an exemption and refuse to pay taxes. However, the majority in this case would allow the Highlands to simply claim that its use of the land is agricultural and avoid the administrative agency set up by statute to regulate that property. For if the Board had no jurisdiction over the matter, as the majority argues, the Highlands had no duty to ever appear before the Board. The majority encourages people not to apply for permits and flout the law, making the Board then involve itself in litigation that should be eliminated by the permit process that is already in place. This cannot be the system envisioned by our legislature or suggested by our courts.

I also disagree with the majority’s presumptive conclusion that the raising of hogs, in any quantity, constitutes an agricultural purpose. Many municipal officials will be shocked to learn that agricultural activities have been taking place in their cities and towns, as people raising pot-bellied pigs, under the majority’s rule of law, must be involved in agricultural purposes. If the raising of 300,000 hogs is agricultural, so must be the raising of one. The majority is sallying into dangerous territory and ruling beyond its apparent expertise when it states unequivocally that quantity does not matter. I am unable to conclude as a matter of law that the Highlands’ operation is a hog farm rather than a hog factory.

The majority also accuses this dissent of placing form over substance in regards to the fact that the Highlands voluntarily dismissed its administrative review count after the trial court granted summary judgment on the other counts. It is not mere “form” when a trial court rules on improperly brought cases, and the “substance” the majority has defined (that the operation will still be an agricultural pursuit) is best left to administrative agencies and other triers of fact. The Highlands failed to file a cross-appeal asking this court to reinstate the administrative review count should the case be reversed for failure to exhaust administrative remedies. Therefore, we do not have the jurisdiction to grant the relief which is given by the majority. See Stacke v. Bates, (1992), 225 Ill. App. 3d 1050, 1054-55 (1992). The only way for the majority to achieve its desired end of finding the operation to be agricultural is to declare its actions a matter of substance over substance, since there is no longer an administrative review case which could find the operation to be agricultural. I do not opine that the Highlands would be subject to zoning by the county. I do not conclude, as a matter of law, that the operation is or is not agricultural. I do conclude that the Board did have jurisdiction to make a decision, right or wrong, as to whether the operation was agricultural or subject to permit requirements, and that the decision was reviewable by the trial court through administrative review. The fact remains that the Highlands abandoned its ability to seek administrative review; this does not lessen the fact that we do not have the ability to grant the Highlands the relief which the majority does today. See Midland Hotel Corp. v. Director of Employment Security, 282 Ill. App. 3d 312, 321 (1996) (plaintiff could not attain through class action what it could not attain in administrative review). Jurisdiction is not determined by expediency but by the law. Our supreme court recently considered the distinction which I am espousing and inferentially reaffirmed the need to exhaust administrative remedies. See McLean v. Department of Revenue, 184 Ill. 2d 341 (1998); Village of Winfield v. Illinois State Labor Relations Board, 176 Ill. 2d 54 (1997) (although the court concluded that the Illinois State Labor Relations Board (ISLRB) erred in finding that Winfield employed the requisite number of employees to bring the certification of a collective bargaining representative under the ISLRB’s purview, the ISLRB did not err in determining that it had the jurisdiction to do so). Furthermore, a remedy at law does not become inadequate simply because a plaintiff fails to preserve it. The majority does not have the authority to grant the Highlands the relief it abandoned at the trial court level and failed to request before this court by failing to file a cross-appeal.