APPEAL from the Superior Court of Cook County; the Hon. JOHN
A. SBARBARO, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 18, 1959.
The county of Cook, appellant, brings this appeal to review a final decree of the superior court of Cook County overruling exceptions to a master's report and holding the Cook County zoning ordinance unconstitutional and void as it applies to the property of appellee, Glasstex Co., an Illinois corporation; and further denying the county's prayer for an injunction against appellee's continued use of its property in violation of the ordinance. A constitutional question having arisen and having been determined below, the appeal is properly brought directly to this court.
On March 7, 1956, the county of Cook filed a complaint for an injunction and other relief against appellee, Glasstex Co. The complaint alleged that the company owned certain described property in Cook County improved with a building in which it manufactured and assembled various types of water craft or boats; that the property was zoned as F-District (Farming) by the zoning ordinance of Cook County, approved August 20, 1940; that the construction, maintenance and use of the structure on the premises for light industrial purposes is not permitted in the F-District classification; that the company thus violated the zoning ordinance of Cook County and greatly depreciates the surrounding property. The appellant prayed that appellee's use of the property be declared a violation of the ordinance, and that appellee be enjoined from using the said property for such light industrial use, and other relief as equity might require.
The appellee company by its answer admitted its ownership of the subject property, the existence of the ordinance and the classification of its property; denied it used the property for manufacturing, while admitting that it molded and finished fiberglass boats thereon, insisted the word "farming" in the classification was a misnomer and that farming is contrary to the purpose of zoning; alleged that zoning was designed to create permanent conditions, character, and values of urban communities, that the F-District classification permits uses more detrimental to the value and use of surrounding properties than appellee's use of this property, that the zoning classification applied to its property is capricious and denies its highest use, that the zoning ordinance as applied to its property is invalid and void, has no reasonable relation to public health, safety, morals, comfort or general welfare, deprives appellee of its property without due process of law, and is confiscatory. Hence the company prayed the court to find that the ordinance, so far as it provided an F-District, is null and void; that the ordinance as applied to its property is null and void and unenforceable; that it has a right to use the property for its purposes, and that the court dismiss the complaint.
The cause was referred to a master in chancery, who held hearings and took testimony and made report of his findings to the court. The master recommended that the county zoning ordinance be found invalid as applied to the Glasstex Co. property and that the complaint be dismissed.
At the hearing before the master the company took as its position under its pleadings that the ordinance was invalid and it did not need to apply for a permit to construct a building for its use upon the premises. The county presented certain exhibits, including photographs of the subject property, and the company admitted the zoning as alleged, that the building existed, and the existence of the zoning ordinance. The county then rested, it being agreed that a prima facie case had been established.
Appellee presented the president of its company, and three real-estate brokers as witnesses. The president of the company testified as to the methods used and the processes followed in molding boats and finishing them upon the subject property. The other witnesses for appellee found no noise or odor to be discernible and that the use of the property did not increase the amount of traffic in the area. It was their opinion that appellee's use of the premises did not depreciate the value of surrounding property and noted that there were several uses permitted in an F-District which would be more detrimental, and would depreciate the value of surrounding property more than appellee's operations.
Appellant presented two real-estate brokers in rebuttal who testified that the highest and best use of this property was for residential development. One of them testified that some of the permitted F-District uses would have an adverse effect on adjoining property.
All of the witnesses agreed that in their opinion this property was more valuable when devoted to appellee's light industrial use than to residential or subdivision use.
The testimony of all of the witnesses established that the general area of the subject property for three quarters of a mile in each direction was devoted approximately 90 per cent to forest preserve and to farms, and 10 per cent to residential use. Immediately west of this property is an older residence with a poultry house for raising ducks. To the east is a residence occupied by the father of the company's president, then an open space and then a convent converted from old farm buildings. The property to the north for half a mile in each direction is forest preserve, and to the south for a mile are open fields.
The master then made his recommendations and findings to which the county filed objections. Most objections insisted that the various findings of the master were contrary to the evidence and the law, that the appellee presented no evidence relevant to the issue of whether the zoning ordinance, as applied to this property, bore a substantial relation to the public health, safety, morals and general welfare; and that the master ignored the company's flagrant violation of the law and its setting itself up as zoning authority and judge of the validity of a duly enacted ordinance, and its construction of buildings on its property and the establishment of its manufacturing use without applying for or obtaining a permit.
On March 12, 1958, the court entered its decree overruling the county's objections and exceptions to the master's report, approving the report, and decreeing that the zoning ordinance of Cook County as it applies to appellee's property is void and unconstitutional and of no effect, and denied and dismissed the county's complaint. From this decree the county appeals to this court, contending that the court below erred in refusing to overrule the master's report because the evidence failed to support it.
In its defense to this action, appellee asserted the invalidity and unconstitutionality of the ordinance as applied to its property. It is always presumed, in an attack upon an ordinance, that the enactment is valid, and the burden of proving its invalidity falls upon the one who attacks the ordinance. (Jacobson v. City of Evanston, 10 Ill.2d 61.) He must prove by clear and convincing evidence that the zoning ordinance is, as to him, arbitrary and unreasonable, and without substantial relation to the public health, safety or welfare. These rules are based upon a recognition that zoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without reasonable relation to the public welfare. Where it ...