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Herman v. Village of Hillside





APPEAL from the Circuit Court of Cook County; the Hon. HARRY M. FISHER, Judge, presiding.


Rehearing denied January 22, 1959.

A declaratory judgment action was filed against the village of Hillside by Kathryn Herman and other individual members of the Holland family as the fee owners of a tract within the limits of the village, and joined by a corporate plaintiff, Vulcan Materials Company, successor after the trial to the leasehold interest of the original corporate plaintiff. They seek to have the 1948 zoning ordinance of the village, as amended, declared invalid as to the property owned by the individual plaintiffs, and a declaration that the lessee has the right to use the property for quarry purposes. The master's report, to which objections were filed, was approved and a decree was entered by the circuit court of Cook County declaring the ordinance invalid and void as applied to the property. The decree is appealed directly to this court since the trial judge certified that in his opinion the public interest so requires.

The individual plaintiffs are the owners of a 40-acre tract, except for a small portion taken off the southwest side for the Congress Street Expressway, which has been in their family since shortly after the Civil War. There is located upon the land a deposit of dolomite, a high medium magnesium carbonate, commonly known as limestone, in excess of 280 feet thick. It is quarriable, is used primarily for building and road construction, and meets the specifications for coarse aggregate of the Illinois State Highway Department.

Quarrying operations were commenced on the tract many years ago by the grandfather of the individual plaintiffs, and have been continued on a much larger scale by the present quarry company and its predecessors since 1929 on a semicircular 8 1/2-acre tract off the east side thereof. The quarry company had attempted to acquire the remainder of the tract, consisting of 23.59 acres, either by purchase or lease, for many years dating back as early as 1934. The Holland family would not consider leasing the tract in controversy during the lifetime of the individual plaintiffs' mother who lived in the old homestead thereon. It was otherwise practically vacant and unimproved, except that the westerly 22 acres had been used as a golf course for a period ending in 1945. After the mother's death in 1953 negotiations were revived and resulted in a long-term lease between the individual owners and the quarry company. The latter owned a 39-acre tract east of and adjacent to the Holland tract, and a 43-acre tract lying immediately south of the 39 acres. Extensive quarrying operations have been conducted for many years on the 39-acre tract and on the northerly portion of the 43-acre tract, in addition to the 8 1/2 acres leased from the Hollands. A substantial part of the 43-acre tract has been condemned and is being incorporated in the Congress Street Expressway which runs roughly from northwest to southeast, cuts off the southwest corner of the Holland tract and runs just south of the south line of the 39 acres, but takes in the southeast corner of the 39-acre tract for an interchange.

The present quarry consists of a quarry hole or pit 250 feet deep at its deepest point. Offices, shops, crushers, conveyors, elevators, a ready-mix plant and other equipment usually associated with a large quarry operation are located on the east side of the 39-acre tract. Stock piles are maintained to a height of 35 or 40 feet along the railroad siding which skirts the east boundary of the 39-acre tract, and contain crushed stone in 8 or 9 sizes from 3/16" up. The stone from all three of the tracts is processed and stored on the east end of the 39 acres.

The subject tract is bounded by Harrison Street and Congress Street Expressway on the south, and Forest Avenue on the west. A strip of vacant land lies immediately north of it, the plant of the Aluminum Company of America, is upon the land next north, which in turn is bounded on the north by Madison Street. Mannheim Road runs along the east side of the 39-acre quarry tract.

The village of Hillside adopted its general zoning ordinance in 1948. That part of the Holland property lying west of a north-south line drawn approximately 50 to 60 feet west of the most westerly part of the area being actively used for quarrying at that time was zoned residential. The 39-acre tract, and that portion east of the line were zoned "C" industrial, which permitted quarrying. The quarry company was granted a certificate of nonconforming use as to the 43-acre tract prior to its condemnation for the expressway. The strip lying immediately north of the Holland and quarry company property was zoned "A" industrial, for light manufacturing use, while the Aluminum Company's strip was zoned "B" industrial, for heavy industrial use. Under the original ordinance all the land lying west of Forest Avenue extended, between Harrison and Madison streets, and that lying south of Harrison was zoned residential.

In January 1953, the ordinance was amended to create a "B-I" business zone. All of the tract west of the subject property between Forest Avenue on the east and Wolf Road on the west, a distance of about 1/2 mile, was classified to permit the construction of a large shopping center comprising 60 retail stores built around the Carson, Pirie, Scott & Co. establishment, and a parking lot. Approximately the southwest half is now occupied by the shopping center and the northeast half lying north of the expressway is used as a 5,000 automobile parking lot for the shopping center. During the pendency of these proceedings before the master, the subject property was reclassified for light manufacturing use and that is its present classification. In addition to those heretofore noted, the adjacent land uses consist of a single-family residential area to the northwest of the Holland tract most of which has been built since 1948, an older residential section lying south of the Holland property and south of the expressway. Tracks of the Illinois Central railroad roughly parallel the expressway approximately 500 feet south therefrom. A greenhouse lies in the triangle of the tracks bounded on the north by Harrison Street and on the east by Forest Avenue extended from the southwest corner of the Holland land. The greenhouse separates the subject property from the new $7,000,000 high school being constructed on a 65-acre tract to the southwest. The southwest corner of the Holland tract is 2,000 feet from the closest school building and 1,100 feet from the closest corner of the school's athletic field. To the east of the 39-acre tract there is a built-up residential area in the village of Bellwood and just south of that another residential area in the village of Westchester.

Plaintiffs take the position that the village may not arbitrarily deprive them of a normal and lawful use of their property where the disadvantage to the public is inconsequential and the effect upon the owners is confiscatory. The village contends that zoning of the subject tract to light industrial use which would prevent the extension of quarrying operations is proper, particularly when the quarrying operation is a nuisance in fact.

The testimony is voluminous. Eighteen witnesses from the villages of Bellwood and Hillside testified. Those living in Bellwood were closest to the east or processing end of the quarry company's operation and they expressed annoyance and discomfort caused by blasting manifesting itself in the form of noise, concussion, vibration and dust blowing on their premises from the stock piles. The Hillside residents who are farther from the processing operation made similar complaints except that they did not complain of dust deposits since the prevailing wind is toward the quarry. The blasts from dynamiting were variously referred to as being strong enough to crack foundations, down to strong vibrations and tremors. Plaintiffs furnished much scientific testimony relative to the methods used to minimize the effect of blasting and gave accurate measurement showing that the sounds arising from the quarrying operations were not greater than traffic and other noises customary in urban areas. An air-pollution expert, after taking measurements extending over a period of 12 days, concluded that the dust fall is less than that expected in an industrial area and below that usually found in the suburbs of a large city. An examination of all the evidence leads to the conclusion that the quarry is an unsightly operation which is distasteful to residents in the immediate area. The noise and tremors from blasting and the dust blowing from the stockpiles onto their premises undoubtedly annoy some residents. The record does not bear out the statement of some of the witnesses that structures are damaged by the blasts to any appreciable degree and the cases of flying debris are limited. In any event, this is not a nuisance case, and we must view it from the principles applicable to zoning.

There is, of course, a presumption of validity in favor of a zoning ordinance and the burden of proof is upon one who challenges the validity of such an ordinance as applied to his property and he must prove by clear and convincing evidence that such ordinance is arbitrary and unreasonable and without substantial relation to the public health, safety, morals or general welfare. (La Salle Nat. Bank v. City of Chicago, 4 Ill.2d 253; Skrysak v. Village of Mount Prospect, 13 Ill.2d 329.) Various factors must be taken into consideration including existing uses and zoning of nearby property, the amount by which property values are decreased, the extent to which diminution of value promotes the health, safety, morals or welfare of the public, the relative gain to the public as compared to the hardship imposed upon the individual, the suitability of the property for the purpose for which it is zoned, and many others. Myers v. City of Elmhurst, 12 Ill.2d 537; La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40.

We first consider the factor of the gain to the public by the zoning of the subject property to prevent an extension of the quarrying operations, the public in this sense being the owners of property on the periphery of the tract in question and, to a progressively lesser extent, those beyond, up to a mile or more.

Obviously the quarry to the east will suffer no loss by the extension of its operation. Residents of Bellwood and Westchester next east will not be affected any more adversely by the extension of operations than they are by the present quarrying. The processing equipment and stock piles are located closest to them and will be used in the same manner as at present. Noises and vibration from blasting will decrease as the face is moved farther west. The property north of both the Holland tract and the quarry 39 acres is zoned industrial as is the aluminum company property to the north and the latter is occupied by an industrial plant. Nothing in the record indicates any loss to those owners by the proposed extension. The Congress Street Expressway, which appears by a scale on the exhibit to be about 400 feet wide, separates the residential area to the south from the subject tract. Except for the dwellings on the west side, they will be almost as close to the quarrying operations if extended as they are ...

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