Kaszynski v. City of Peru

Mr. JUSTICE STENGEL delivered the opinion of the court: Defendant, City of Peru, appeals from the decree of the Circuit Court of La Salle County, declaring the city’s zoning ordinance to be invalid in its application to plaintiffs’ property, and enjoining the city from enforcing the ordinance against plaintiffs’ property. Defendant contends that the decree should be reversed because plaintiffs failed to meet the burden of proof required to overcome the presumptive validity of a zoning ordinance. The property in question consists of two adjacent lots located at the southeast comer of Shooting Park Road and Pine Street in Peru, Illinois. The comer lot is vacant and the adjacent lot to the east fronting Shooting Park Road is improved with a one-family residence. Surrounding this property to the east and south are one-story residences zoned for single-family use. On the southwest comer of the intersection is a single-family dwelling zoned B-5 commercial, which is presently used as a law office. Immediately west of the law office are lots containing a hamburger drive-in, a gas station and a combination department store and food center, all of which are zoned R-4 commercial. The department store-food center is bordered on the west by United States Highway 51. From the northeast comer of Route 51 and Shooting Park Road extending east are a large discount department store, a food market, a trust and savings bank, a gas station and Marquette Street, which is a two-lane offset going north from Shooting Park Road. All of this property is zoned R-4 commercial. Extending east from Marquette Street is an automobile agency, with service facilities and new and used car lots. Immediately east of the car lot is a real estate office and warehouse, a commercially-zoned vacant lot, a car-wash facility, a gas station and a retail liquor outlet. All of the aforesaid properties were zoned B-4 commercial. The real estate office and warehouse stand directly across from the subject property. Because of the rapid changes in the surrounding area, plaintiffs sought to have the lots rezoned from a single family residential classification (R-l) to a real estate office under a B-5 classification. Plaintiffs’ petition to reclassify was denied by the Planning Commission and plaintiffs then brought this action in the trial court to declare the ordinance void as it applied to their property. Plaintiffs offered the expert testimony of three real estate appraisers to the effect that it was no longer feasible to continue using the property for residential purposes. Their testimony was that the highest and best use was a commercial B-5 classification and that the property takes its useage from the commercial development to the west and north of the subject lot. The witnesses agreed that the proposed use as a real estate office would not have deleterious effects on the residential property adjoining the lot. One of the expert witnesses had been consulted for the original plan for the city and had recommended an R-2 classification for the disputed property. He testified that his opinion had changed, however, because it was “bad zoning to have an R-2 classification facing an arterial highway across the street from commercial uses.” The defendants’ evidence included the testimony of two homeowners in the area. These witnesses testified that problems of traffic, parking, storm water drainage, and lighting had resulted in the area as a consequence of the intrusion of commercial development. Defendants’ other witness was a member of the Planning Commission of Peru, who testified that the purpose for continuing the R-2 classification was to halt commercial development at the comer; allowing a B-5 classification would increase lighting and drainage problems to the property to the south. Upon the conclusion of the hearing, the trial court found that the ordinance as applied to the disputed property was illogical and unreasonable. The court made the following findings: (1) that the property would carry an increased value, and that the highest and best use, economically, would be nonresidential; (2) that the present classification of the tracts were intended as a holding pattern against further commercial development from the west along the south side of Shooting Park Road and that the plan was to restrict such development east, but to encourage it to the north; (3) that an unrestricted B-5 classification would allow the entry of unwanted uses, but the proposed real estate office would be an attractive and harmonious addition to the neighborhood; (4) that since the adoption of the ordinance and the decision not to reclassify, further commercial development augmented or encouraged by the change in Shooting Park Road had occurred; (5) that the disputed property takes its usage from the commercial development along Shooting Park Road; (6) the proposed real estate office would constitute an attractive adjunct to the neighborhood and would be harmonious and compatible with the existing uses. The court determined that to allow usage as a real estate office would permit a more uniform tapering off from commercial to residential zoning. The issue presented upon appeal is whether the finding of the trial court that the ordinance was invalid was based upon sufficient evidence to overcome the presumption of legislative validity. The city bases its arguments primarily on the oft-cited proposition that a zoning ordinance is presumed to be valid, and a party that wishes to overcome the presumption must do so by clear and convincing evidence. (Bass v. City of Joliet, 10 Ill.App.3d 860, 869, 295 N.E.2d 59 (1973).) More specifically, the person attacking the classification has the burden of proving that the ordinance bears no reasonable relation to the health, safety, welfare and morals of the community, and that the proposed use is reasonable and nondetrimental to the public welfare. (Bass v. Joliet.) It has been repeatedly held that where the net result of the conflicting testimony is to leave the reasonableness of the ordinance subject to a fair difference of opinion, the legislative judgment should be followed. Marquette National Bank v. County of Cook, 24 Ill.2d 497, 182 N.E.2d 147 (1962). The courts of this State have recognized, however, that the validity of each ordinance must be determined by the facts of each circumstance. (Hartung v. Village of Skokie, 22 Ill.2d 485, 177 N.E.2d 328 (1961).) Mere conflict in testimony does not necessarily create an irrebuttable presumption of the validity of an ordinance, or require a finding that the reasonableness of the ordinance is debatable. (Lakeland Bluff, Inc. v. County of Will, 114 Ill.App.2d 267, 232 N.E.2d 765 (1969).) Such conflicts go to the credibility of the witnesses, and the weight to be accorded their testimony is a matter to be determined by the trier of fact; unless manifestly against the weight of the evidence, such findings will not be disturbed on appeal. La Salle National Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65 (1957); First National Bank of Skokie v. Village of Morton Grove, 12 Ill.App.3d 589, 299 N.E.2d 570 (1973). In the case at bar, the evidence was uncontroverted that the area had changed greatly. The plaintiff purchased the property 8 years prior to the trial. In that relatively short period of time, the record shows the general nature of the area has changed from single-family residential to commercial. The disputed property is the only comer of the intersection that has remained residential. The other comers have become a law office, an automobile dealership and a real estate office. In the block immediately west of the subject property a hamburger stand, a discount department store, a grocery store, a savings bank and a gas station have been built. Only 2 years prior to this action, the general nature of Shooting Park Road fronting plaintiffs’ property also changed. A two-lane street has been improved to a modern 66-foot-wide four-lane thoroughfare with curbs and gutters, and it is now a major arterial connection bearing a much heavier traffic load. We cannot ignore the unanimous and uncontroverted testimony of plaintiffs’ experts that in their opinion the highest and best use of the subject lots was commercial. The experts testified that the disputed property’s character was derived from the commercial property at the intersection, and from the area north and west of the plaintiffs’ lots. Their testimony also indicated that the proposed use as a real estate office would not be detrimental to the neighboring residential property. Problems of water, sewage, traffic or lighting would not be increased and property values of adjoining lots would be maintained by the proposed use. The only evidence in support of the present classification was a statement by the Chairman of the Planning Commission that the purpose of retaining the residential classification was to protect the adjoining single-family property and that rezoning would allow any use under a B-5 classification (e.g., bowling alley or funeral home) which could increase lighting and storm water drainage. However, the order entered by the trial court specifically limited plaintiffs and their successors to business and professional office uses and does not permit any of the other uses under B-5 zoning. The order further restricted any improvements to a one-story building (17 feet high), 100 feet by 25 feet in size, with a 75-foot setback as well as other landscaping requirements. The trial court found that a business office usage would permit “a more uniformed tapering from commercial to residential * * *” than now exists. Defendants argue that no evidence was introduced concerning the value of the subject property. In reviewing the record, we find that plaintiff, as a witness, testified that in his opinion the value of the property as presently zoned was unchanged from his purchase price, but that it would triple in value if commercially rezoned. Defendants introduced no evidence of the disputed property’s value. The Illinois Supreme Court has set forth following significant factors for determining the validity of zoning classifications: “the character of the neighborhood; the extent to which the value of the subject property is diminished by the limitations; the extent to which the removal of the limitation would depreciate the value of other property in the area; the suitability of the property for the zoned purposes; existing uses and zoning of nearby property; the length of time under the existing zoning that the property has remained unimproved, considered in the context of land development in the area; the relative gain to the public as compared to the hardship imposed on the individual property owner; and the extent to which the ordinance promotes the health, safety, morals or general welfare of the public. [Citations.]” Hartung v. Village of Skokie, 22 Ill.2d 485, 494, 177 N.E.2d 328, 333 (1981). A review of cases applying these factors show the most important inquiry to be whether the property is zoned in conformity with surrounding and existing uses. (La Salle National Bank v. Village of Palatine, 92 Ill.App.2d 327, 236 N.E.2d 1 (1968).) Property may take its character from the surrounding property and thereby invalidate the zoning classification as applied to it. (Bluhm v. City of Chicago, 110 Ill. App.2d 136, 143, 249 N.E.2d 108 (1969).) A primary factor in ascertaining the validity of the ordinance is whether there has been a substantial changing trend in the development of the zoned area; an ordinance was invalid where the character of the area could be described as formerly residential but rapidly changing to commercial. (Scott v. City of Springfield, 83 Ill.App.2d 31, 226 N.E.2d 57 (1967).) This trend is particularly important when it is municipally induced and encouraged. (Scott.) While it is true that the value of the property is a factor to be considered, the failure of plaintiffs to show a great financial loss should not preclude them from challenging a classification which heats their property differently from other property similarly located. Berger v. Village of Riverside, 69 Ill.App.2d 148, 216 N.E.2d 479 (1966). We have reviewed the record and find that the defendants’ evidence was so minimal and unconvincing that it did not overcome the evidence existing in plaintiffs’ favor. We conclude that the judgment order of the trial court should be affirmed. In a substantially similar case where a multiple-family residential use was sought for a comer property, the Illinois Supreme Court stated: “This property is a comer lot and the properties on the other three comers are devoted to business * * * uses. We think it is clear that the character of the property involved here is determined by the business uses on the other comers of the intersection and the uses along Pulaski Road rather than the residential uses in the block in which the property is located. The gain to the public from a continuance of the existing zoning is small compared to the substantial loss to the owners of this property.” (Mutual National Bank v. City of Chicago, 26 Ill.2d 342, 346, 189 N.E.2d 341 (1962).) We believe the same principles apply to the case at bar. Defendants on appeal have also contended that the property in question is burdened with covenants in the deed which restrict its use to single-family residences. From the record it appears that this issue is argued for the first time on appeal and thus cannot be properly considered in this proceeding. The judgment of the circuit court is therefore affirmed. Affirmed. ALLOY, J., concurs.