International Municipal Lawyers Association - Local Government Blog

An Apple a Day Might Not Keep the ZEO Away…in Danville, Illinois | May 18, 2009

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

If you live in a residential neighborhood, within the canopy of the extra-territorial jurisdiction of Danville, Illinois (see last week’s posting on extra-territorial jurisdiction), that looks like this

google1

 Courtesy Google Maps

 and you have 6.3 acres out behind your house that looks like this

 google2

 Courtesy Google Maps

 and you want to add more apple trees to the 85 already there and branch out to operate an organic apple tree orchard, you might have to rezone your land from residential to agriculture and you might not be able to get it because it would could be spot zoning. 

So goes the story of this couple, Lindsay and Marie Varner, who lived in town until 1986, then went to Florida and are now returning to reestablish roots – their own and those of the apple trees.  The parcel had 100 apple trees on it planted 25 to 30 years ago.  Through the fruits of their labors, the Varners saved 65 of them and planted 20 new ones. Here is the still-smiling couple with their trees, courtesy of The News-Gazette.com. “Zoning ruling won’t affect couple’s plans for orchard,” May 11, 2009.   google3

It seems that they can plant trees and sell apples off-site, but if they planted 300 more trees, they would have to get a rezoning, said the planner. “Couple withdraws rezoning request,” Commercial-News, May 16, 2009.  The Varners had applied for a rezoning but the zoning commission, to stem the expansion, recommended denial, so the Varners withdrew their application before it went to the city ouncil.  The Commercial-News reported: “The zoning commission’s recommendation, however, was to deny the rezoning due to: it being spot zoning in the residential neighborhood, not in compliance with the city’s future land-use plan and neighbor concerns about the agriculture zoning designation meaning various possible future business uses for the property.”

One commissioner, as reported The News-Gazette May 11th article, went out on a limb to question why they should even hear the request because the commission would have to deny it as it singled out a small area for special treatment and therefore would be illegal spot zoning. See also, “Group denies apple orchard,” Commercial –News, May 7, 2009 .

I leafed through the zoning regulations searching “agriculture”, “trees”, “orchard”, and “300”, and I can’t find anything regulating apple orchards.

Now, if you think the idea of possibly requiring a permit to expand an orchard seems a little farfetched, you might consider the planner’s argument that drainage and runoff and pesticides could be problems. “Couple want to open apple orchard,” Commercial-News March 30, 2009. Or maybe you reject that as barking up the wrong tree.

But here’s the pièce de résistance, to go right to the core, the planner has concerns about the neighboring residential properties and wants to know if the Varners will provide a buffer. The Danville zoning ordinance defines “buffer area” as “land used to visibly separate one use from another” and then says that buffers may include trees.  So, it looks like the Varners may have to plant some trees to buffer their trees from the neighbors.


Posted in Land Use

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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