morning welcome everyone first case on the call the docket today wednesday september nineteenth two thousand and twelve his agenda number eighteen his number one one three five six nine were roger tof toy represent mr ken rosenwinkel and the rosenwinkel family partnerships this case involves the interpretation and application of the farm nuisance act and whether it can be applied is written or whether there's a need for to imply interpretation or limitation into the act in order to effect its intended purpose the policy represented in the language of the act is to protect illinois farmland and farmers  from nuisance lawsuits that may discourage capital development of farmland and to further protect farmland from these type of suits and protect the farming industry rosenwinkel should prevail but i believe under the broader interpretation that's the appropriate interpretation as was intended by a legislature the x pacifically provides that there are no the no farm shall become a nuisance because of any change conditions in the surrounding area are occurring after farm has been in operation for more than a year and a farm is not a nuisance when it began operation and under the circumstances the language of the statute is goes back to the seventy's and eighty's and it's been adopted by states around the country and that was in part because in an effort to address nuisance suits that were brought against farms but the first language there the first statute  state that uses language was alabama and in alabama they adopted it with regard to industrial operations and as early as one thousand nine hundred two in being versus birmingham slagged the alabama supreme court recognized that the effect of the language in this type of statute and with regard to the any change conditions language was to relieve industrial operations and later alabama adopt it with regard to farming operations to having to anticipate changes in conditions in the surrounding area which would render the operations a nuisance beyond twelve months after the operation began and so the original interpretation of the act is just that so that people who are doing these type of operations and they've been in existence for a year don't have to think about what the potential possibilities of abuse of land are for example across the street and down the street and out of the circumstances that is the way the and it's our position that if you interpret it as the lower court interpret it which is to require some kind of anticipatory presumption or idea of how some of potentially might use the land in the future that defeats the whole purpose of the act because that is going to cause situations where farmers we made the site not to farm anymore farmers made reframing making capital investments into their operations and under those circumstances that's exactly opposite of what the legislature intended by enacting this piece of legislation is the difference here because there was an existing residents albeit it was  clarence tof toys legally protected interest in the property was at that point when this property was used as a cattle farm was to use it as role crops and then to rent the house out as a tenant residence he never lived there and then ultimately he abandoned that and the person that had lived in the farm house stopped living there and then three months after the person the last state of residency the rosenwinkel family cattle operation began and it began in renting the house across the street but he demolished the home and at that point there is no legally protecting used even in the even in some kind of expectancy that he might use the residence to run and he certainly didn't use it as his own residence he then transferred ownership of the property and the only transferred one point eight three acres of the property to his son and daughter in law and that was for the development and creation of a residential home and a point eight three acre lot that was separated out from the rest of the farm parcel that had been there before so under the circumstances and based upon the plain language of the statute the rosenwinkel zz operation had been in place for more than a year and that in that until long after the operation was in place did a new owner in the form of roger and bobby tough boy come to the courts and ask that the ro nwinkel operation be enjoined from specific activities that were set forth in the trial court and under those circumstances merely because there was a residence in the past there that doesn't give rise to legally protected interest otherwise we'll be in a situation for example where nearly every parcel of land in the state may have had a homestead on it at one point or another and so what that would result is a trial court doing a historical analysis of what was going on on that piece of property which would then completely undermine the purpose of the founders and soon to act in the intended purpose of the act which was to what i will say preserve farmland house there's also church a change in the construction of a new house there's also a change in the use of the property itself in that previously in the city ten years prior twelve years prior there had been no residential occupancy on that parcel of land and only after two thousand and four was there ever any kind of residential occupancy on the land itself so under the circumstances and based upon this plain language which says any change there are  a myriad of changes that have occurred one ownership two occupancy three the character of the land in the sense that a new struck a structure has been demolished and in any olds an old structures been demolished and a new structure has been built and then ultimately there's the actual subdivision of the land itself and i would point out to the court that the rosenwinkel is operation sits in a zone as agriculture the property across the street as a one point eight three acre parcel is a non conforming use in that zone and under the circumstances what's happened now is someone who comes in and says i have a non conforming residential use of this property is now going to impose that non conforming use on a conforming use in this is own and under the circumstances that's exactly opposite again of what the legislature intended by i think it wouldn't make it it would make a difference if the old house had been remodeled i don't i don't think it makes a difference at all because there hasn't been occupancy of those circumstances again it has to be a legally protected interest and an invasion and an actual use and there was no actual use of the property for the one year preceding or during the time which the rosenwinkel began their farm operation and in fact the time there is twelve months or twelve years excuse me that the property had been used without complaint and so under the circumstances if we look at the factors that one has to look at out of the statute and i think you look at that as one was it a nuisance previously and there's no evidence that there was a news that it was a nuisance previously there's no lawsuits there's no allegations of violations of statutes there's no allegations that there's been violations of regulations so it wasn't a nuisance previously and then the next question  than an operation for more than a year it was an operation for more than a year and then the next issue is one of the change conditions and i think that's where the lower courts ran afoul of the language of the statute is what are the change conditions and the change conditions are apparent based upon the subdivision occupancy construction that type of thing and then this concept of somehow having to look at a historical use of the land again runs contrary to those concepts of protecting farmland because again you can contemplate a situation where obviously there's been a historical use of land they say it lay for example it laid fallow and not used and then it springs into insistence again be somebody decides to move back into a piece of property and finally there's been some discussion about whether or not this constitutes a agricultural or not agricultural use it's our position that the statute applies regardless it was broadly interpreted it was broadly drafted it says any the legislative history on it says if you move into the countryside there's no discussion of what a nonagricultural uses versus an agriculture use and under either circumstance in the case of bar what is complained of here are residential non agricultural uses there is some discussion in the top stories presentation to the court and their brief court that somehow they should be considered as a farmer and this is a farm versus farm situation that's not the case the evidence that was submitted to court the complaint that was filed as well as the circumstances around the claim to nuisance all involved residential nine agricultural activities on the one point eight three acre plot of land that was not his own its own farmland but was it solely used for residential purposes so one of the circumstances that sort of what i will call exemption doesn't apply and in the trial court the plaintiffs themselves acknowledge that their property was not a farm they big knowledge that later on they added a parcel but those parcels were brought together so one of the circumstances again we have a situation where the act should be broadly interpreted and this isn't what i will call ag versus ag question and even if the court were to say somehow this is limited nonagricultural activities in the case of bar these are exactly what was complained of nonagricultural activities just out of curiosity of the plaintiffs alleges that the respect to what potentially could be done to reduce fly populations on the property although the expert in the trial court was specifically prohibited from testifying with regard to whether or not there are proper or improper or negligence issues in that in the action because he was unable to opine on that and he specifically testified both at trial and in discovery that he had no position or opinion on those issues so under the circumstances there the concept is that you can't force a farmer on of these circumstances to do that analysis because again what will have a situation is that farmers are in operation for more than a year and then people will come in and say i'm going to add cost to what you're doing and i'm going to say you could do it in a different way maybe even a more comprehensive way but it's not necessarily a better way and it's certainly not required under the law either common or statutory provisions of the law and so if they were faced with a situation where an expert is able to come in and say i think you could modify your operations to do something different we're again faced with that concept were farmers in fear of a nuisance lawsuit being brought and then he's in fear of having to make changes to his operations which are wholly legal and wholly appropriate simply based upon the subject of nuisance complaints of a person that lives nearby so to the extent that there was testimony there that testimony isn't relevant to the analysis presented to the court the next issue i think that needs to be addressed again is the concept that somehow that there is a that there is that these people here first before the rosenwinkel meeting that the tough choices arrive before the rosenwinkel have their farming operation and i think if you look at the facts of the case and based upon the express written materials that are put before the court and put for the trial court there's no doubt that the transfer of ownership on the property itself doesn't occur until six years after the operation begins there is discussion about what i will call a succession plan but no such succession plan was ever provided to the trial court and the only issues that are raised with regard to that issue are what i will call discussions that perhaps may have been had between various family members but under those circumstances that doesn't constitute a succession plan and under those circumstances that could create situations where people retroactively say i'm going to allow a oral succession plan to establish my ownership in a piece of property and therefore i have i'm first in time and again that runs into the statute of frauds issues that are that were present in the trial court and there is no succession plan and out of the circumstances there's absolutely an expressed what i will say change in ownership  recorded with the kennel county recorder of there's a change in use and there's a construction of a new home and with that i think i'll reserve my comments for rebuttal and i would just ask that the court that i think that one of the circumstances of the matter should be remanded to the trial court for the application of farmers and sued act and for assessment of statutory fees and costs under the act thank you thank you mr mcknight also for the were heard both sides waive their right to the jury trial and we had a bench trial judge a person listened to the evidence and then she took it under advisement and about a month later issued about a half hour ruling from the bench which is part of the record she found that very specifically after listening to all the evidence all the testimony and look at all the exhibits that there is a house where there was a house there is now a family where there once was a family this farm house had been there is a regional farm house for over one hundred years on this property it had a tenet in it who was there when the rosenwinkel brought them not to properly cross the street this case does not threaten now in the way agriculture it doesn't threaten the livestock industry it doesn't threaten them with  any number of lawsuits over nuisance because of how farmers conduct their business it doesn't threaten them with higher costs it's a very simple story the story is the top toys clarence thomas t plan to move into the house and take it over yes there is no written succession plan and fact coming from a farm family myself it's hard to get my own parents to put together a succession plan there no written succession plan but as bobby tough to testify they looked into remodelling the existing old farmhouse and decided it was too expensive and so they would do something different they would tear it down and build on the very location the very same footprint a new house for those of us from the farming community we know things don't move at the same places they do for always intended as a residence when it was there and when they decided to take over that residence from clarence top to the way they were going to remodel it and keep it as a residence they decided it was going to cost too much to remodel it so they decided to tear it down your internet hypothetical anymore i think i'm missing it yeah well i'm just saying they were there for one hundred years ago and they have farms and they live there ok if they only lived in that farm for want one year if ok it's a hypothetical ok it's hypothetic right if they only live there farm to live in the house and then they decided to build a house one of the top stories was still on the only way and decided to build a house at that point would that be a change and if not if it was being built in the very same location just replace seen the existing house it wouldn't be a change condition because what has not been talked about in this change condition in judge shortens just destructions and got it right is she said there has to be a direct causal relationship between the change whatever the change condition that it's in alleged to have occurred in the nuisance going from one house that's roughly three thousand three thousand square feet to a new house the trophy three thousand square feet at the very same location is not a change in the condition they cause their now to be a nuisance and the condition is only then the use of the property the fact that there was a house there and now there's a house there that whether or not people are correct if we want to say that occupancy alone is a change condition and i guess everyone needs to worry about if if they lose a tenet or if somebody moves out briefly or somebody dies or somebody goes bankrupt whatever happens that that these issues of occupancy are not a change condition with regard to the use of the house the house was used as a  house the new house is used as a house it's still being used as a house it is a you know this is argument that it's a non conforming versus conforming use may or may not have some  kindle county but it doesn't have anything to do with the fact that it's use for a single family now if they had brought in a bed and breakfast and started a commercial business and it was still the same house but they had a different  then i would call that a change condition i think judge abramson in the truck or even mentioned that in some of her comments that you know it's been no change year to single family home before it's a single family home now they use hasn't changed they're not starting a business there they're not arguing that that because now we have people showing up as a beauty parlor or something in the country that now the new census is affecting the business or something this is not the case  my definition of the word condition is that something changed in the usage that made what otherwise was not a nuisance from the nearby operation to become a nuisance that's the language which says the new soon must be quote because of any change condition in the surrounding area so there has to be this causal because whether clarence earned it or bobby and roger owned it by gift which is how they received it it's still being used it is the use hasn't changed just to get to be a single family residence if for everything they intended that at some point you're going to build a house on the property if they're in a dump the house is going to change if there had been no house there right and they bought a hundred acres and then they put the house there i would call that a change in condition because they're going from an agricultural use of the land in a pure sense raising crops for example and they carve out say five acres and put a homestead with a single family the the question is when do i measure the change condition do you measure the change and dish in this case from the father's ownership  look at when did the operation of the rosenwinkel began and from the time they rosenwinkel speak in their operation was there a subsequent change of use from a single family home to some other use from that point in time if i look at the statute because it's trying to determine the time i'm claiming nuisance if the nuisance occur because of a change condition in the surrounding area and so on it's not this if the house is ok with me it would not make a difference to me under this statute because as justice pride when they bought the property cross the road they knew our house was there they knew someone was living there and as time went forward it was intended and always stayed as a single family house both in intention and in use it never changed from that there was a change made as far as tearing down the old structure and putting up a new structure but the intention was as a single family house to be used as a single family house farmers right next to each other they're both raising rice and one part of raising rice is flooding the fields and because they were both flooding the fields the fact that the water went across their dividing line it didn't matter to anyone because they both had extra water then one of the farmers said i'm going to change to row crops not rice anymore the farmer who was doing the rice continued to flood his flood now of his field that went across the dividing line and put water into the row crops the farmer with the row crops sued him and said you're causing a nuisance to my well crop operation and the california and the court said no there was a change in use because you both he used it as rice and rice floods my point here is this house both before rosenwinkel came in and after they came in they use intended and how it was used was always as a single family home they didn't change it from being a single family home to something else you'd come into council that when we were going through the definitions that it would be the condition would be a condition that they might not use your words exactly because in some time no the condition relegated the fact that it was now a nuisance you remember talking something about that when i said did you define could you define condition as use you recall that yes i was for purposes of this case i'm defining condition as  there may be some other kind of condition that i can't think of that's beyond you sike i can't think of one at the moment and then you see in the change a condition i think you said would be something that would mandate that it is now a nuisance well the there has to be a causal connection between what the change is right for and i am what i'm hearing trouble with is the whole occupancy idea because you tell me and my facts are wrong after nin hundred ninety one the house was vacant until it was demolished in the ninety's very correct and the care why parisian came in in ninety two correct so when they came in that house was vacant well they didn't come into it with you mentioned a couple of times that it's you know he was living in the house he wasn't living in the house when they came into the picture was he when they purchased the farm across the road there was an individual and they were slaton that was living in the house as a tenant in the house for a family in one thousand nine hundred one that's when they bought the property cross about so when they made their purchase of the farm across the road there was someone living in the house but in march of ninety cracked so in march of ninety two there was no one in the house right and they had ten cows i think so i guess my specific question is then why wouldn't the change in condition  be that there is no nuisance is there if no one's living in the house i mean the flies are a nuisance to the people they're not a nuisance to the house or are they well arguably there could be a situation that there's a nuisance even when no one's living in the house for example bobby tough to oyo boarded her horses starting in one thousand eight hundred nine and continuously boarded her horses right next to the house in the barn throughout one nine hundred eighty nine all the way to the present day conceivably if she and the horses were bothered by fry's back in one nine hundred ninety two when they started the cattle operation because that's a very slippery slope if you if you had a strip mall sitting there and because of the great recession everybody bailed out and it went into bankruptcy and it's vacant for two or three years before they can get someone in there in the cattle operation of this next story we're going to say ok you cannot use it anymore as a strip center because of the flies and because of the time that they moved to cataract operation next door to this him to strip center there was nobody there which there was a reason for that because of the economics that that would be a problem if this house was in great condition when the slightest move down and the top  probably half a dozen farms that were initially rented out the other end of two people who work farming right alternately torn down so if ninety nine years later somebody starts a farming operation across the street house for a period of years but here once fifty or one hundred years to someone who wants to start a cattle operation have to research to see if there was ever of a form site on their property or home site on their farm land across the street before he or she can start of army cattle operation i don't think if i moved the cattle operation across the road from vacantly and that i would have to research all the property around to see if ever there was a house but but you know the situation there was a house there was someone living there when they made the decision to buy across the street but they didn't start the operation until it was vacant they didn't start the can do it but it doesn't mean that you can use this statute to stop a nuisance sack showed somebody moved his tears out house down fifty years later or within a year you know builds a house i'm subject to this if there's already a house there it was already occupied at the facts in this case are no not occupied not like when i started the farm on cisco the bacon is sitting there right there she had horses since eighty nine boarded at the barn right behind the house house it was intended as a house it was used as a house it was to be used as a house it was to be used as a as a family are ok showing my clients take very not so friendly the concept that they're not farmers because roger talked to has been farming with his dad since one nine hundred sixty seven from that location the equipment is on that location the farm stand is there it is the family farm the transfers by gift both of the parcel for the house and also for the surrounding fifty eight acres that was given to him subsequent the language and the deed that i attached to my brief not all this language that if they ever want to sell it they've got to give it back to clarence this is their family farm they are fine worse this is a farm house in the neighborhood i don't think you could interview farmers and say oh that non conforming not an agricultural use because it's located as a roth my time's expired but this is thomas as a question you get older but you don't i started out with the question for opposing counsel as to the statute itself which we haven't spent a lot of time talking about and the broad versus narrow right one we have to accept your position and again it gets back to the definition of any change condition we would really have to just say condition equals you because otherwise everything we've talked verbalize something other then use as to describe a change condition i would have to agree with you then wouldn't that make this or lean towards look into a broad interpretation all you that the legislature knows the word use was out there well they also move the word occupancy was out there and they also tied this to the  if no one's there then there's no nuisance kind of issue so where does it make any sense the sense is that something that is done by p a murderer or occupant of the property in conjunction with what the farmer has been doing now means we have a nuisance i don't think the legislature was saying well we need to point out that if if somebody is not occupying their area and they can't bring a nuisance action and if they did all the sudden decide to occupy the land that is a change condition because i think it's presumed by the legislature that someone has to be there in order for there to be a claim of nuisance and the question is what is that person who was there done to change the conditions such that before there wasn't a nuisance and now there is i think it was it was the legislature's intention i can i think you've answered thank you very much thank you the bottle if any thank you again i would just note that the first sentence of section one of the farm nuisance suit advised as follows is the declared policy of the state to conserve and protect and encourage the development  improvement of its agricultural land for the production of food and other agricultural products if you accept the narrow interpretation and the definition as proposed by the top toys over change conditions then what happens is the farming industry is locked down by whatever use was done on a specific piece of property for more than two centuries and so what will have is a situation is exactly some of the hypotheticals we're suggesting here is that will have someone come to the court and say there was a house here in one thousand nine hundred fifty and because there was a house here in eight and i built a new house you can't make those improvements on your property because your going to have to think about that issue and you're going to have to think about whether or not a nuisance action was going to be filed against you and that's exactly contrary to the language of the statute the statute uses use and any and under the circumstances that are presented to this court and the facts of this case and the interpretation of the statute itself that's a broad set of circumstances that covers any condition and one of those those circumstances there is no basis and there's no statutory basis for the court to read into that statute and need any limiting provisions in the sense of residency occupancy any other circumstances it says any condition and that's because to facilitate and to bring the purpose of the statute to encourage the development of farmland that's the way you have to read it you have to read it from the beginning of the development of the operation moving forward and under those circumstances that's what music you look at we can't do a historical analysis because that leaves a situation where farmers start thinking about other things then moving forward in developing their property and if we don't consider all of the conditions then that leaves a gap open and there's no statutory basis to do so and with that i think i'll step back thank you