Appeal from the Circuit Court of Peoria county; the Hon. JOHN
T. CULBERTSON, JR., Judge, presiding. Affirmed.
This appeal involves the validity of a 1958 amendment to the Peoria County Zoning Ordinance, which rezoned certain property owned by defendants John W. and Frances F. Hibser, from residential to commercial use. The action was commenced in the Circuit Court of Peoria County by The Stratford Aire Association and about sixty individual plaintiffs who were members of the Association and residents and owners of property in the Stratford Aire Subdivision in the City of Peoria. The Hibsers, their lessee, The Texas Company, and the County of Peoria were named as defendants. Plaintiffs prayed for a judgment declaring that the amending ordinance is void and unconstitutional and for an injunction restraining the county and its officers and agents from acting under the ordinance. After hearing the evidence presented, the court found that plaintiffs had failed to establish the invalidity of the ordinance or a right to injunctive relief, and entered a decree dismissing their complaint for want of equity and a judgment on all issues in favor of defendants and against plaintiffs.
The property rezoned is a rectangular tract located at the northeast corner of the intersection of University Avenue extending north and south, and War Memorial Drive, a four-lane divided highway, also known as new U.S. Route 150, which there extends generally in east-southeasterly and west-northwesterly directions from the intersection. The tract measures about 108 feet east and west and 135 north and south along the east line of University Avenue. The tract and the intersection are located in the County of Peoria, but the corporate limits of the City of Peoria meander around the intersection at distances of from one to three hundred feet to the north, along the east line of Hibsers' property, and southeast and southwest of the intersection. The premises of the individual owners and members of the Association are located in the Stratford Aire Subdivision to the north and east of the Hibser property and within the corporate limits of the City of Peoria. It is alleged that the Association is a corporation not for profit, organized to act as representative of its members in the enforcement of subdivision restrictions and to aid by all lawful means the development of surrounding territory as desirable residential property.
When the Peoria County Zoning Ordinance was adopted in 1948, the tract here involved was classified for residential use. Hibsers acquired the tract and 50 feet adjacent on the east in 1952 for $15,000. It was improved with a dwelling which was rented for $80 a month. In 1955 the Zoning Board refused to recommend that the Hibser property be reclassified for use for a root beer stand. That decision was upheld by the County Board, and the Circuit and Appellate Courts. Hibser v. Zoning Board of Appeals of Peoria County, 12 Ill. App.2d 365, 139 N.E.2d 325.
The ordinance involved in the instant action followed a recommendation by the Zoning Board that the tract, not including the 50 feet adjacent on the east which abuts residential property in Stratford Aire, be rezoned commercial, subject to certain restrictions. When the recommendation was submitted to the Board of Supervisors, the supervisors voted 21 to 11 in favor of the reclassification. However, a 3/4ths vote of all members of the board was necessary to enact the ordinance, because plaintiffs had filed a protest. At a subsequent meeting Supervisor Hamilton moved to reconsider the recommendation, Supervisor Sprenger seconded the motion, and the County Board voted 29 to 5 to adopt the ordinance. In their complaint plaintiffs alleged that the record of the board's proceedings failed to show the name of the supervisor who seconded the motion to reconsider. Thereafter the board met and corrected the minutes of the former meeting to show that the motion to reconsider had been made and seconded by supervisors qualified under the board's rules of procedure to make and second the motion.
The ordinance rezoned the tract in question from residential to commercial so as to permit the construction and operation of a gasoline service station subject to certain restrictions, viz.: that the northerly and easterly property lines be landscaped and that there be no vehicular ingress or egress across the north line to Stratford Drive; that all lighting facilities be directed toward University Avenue and designed to eliminate glare to residential properties; and that the station be laid out so as to permit the purchase by the State of Illinois of a strip of land about ten feet wide along the west side of the tract. In accordance with the provisions of the ordinance, the owners have accepted the restrictions and made them covenants running with the land by formal document filed in the Recorder's office, and the strip has been acquired by the State.
The evidence discloses that the Hibsers have leased the tract to the Texas Company for a term of 15 years at a rental of $550 per month, provided lessors erect a $32,000 service station and contingent upon the rezoning effected by the ordinance; and that such use is the highest and best use for the land. One witness valued the tract for residential use at $11,000.
As to use restrictions in the immediate vicinity of the proposed station, the evidence shows that all other corners of the intersection are zoned commercial. Gasoline stations are located on the southeast and southwest corners. The northwest corner is used for a housetrailer sales and display lot. Between Hibsers' south line and the north line of Route 150, there is a triangular segment of land which was a part of a larger tract lying south of the highway and which remains after its construction. This segment of land was and continues to be zoned commercial.
South and west of the intersection considerable reclassification of various tracts for commercial and light industrial uses has occurred since 1948. On University Avenue in the block south of Route 150, in addition to the gasoline station, there are Dog'n Suds and McDonald's stands, the Key Club and a Howard Johnson restaurant. A quarter of a mile north of the intersection an area has been rezoned for a shopping center. In the Stratford Aire Subdivision north of Route 150 and east of University there have been no reclassifications since 1948. In that area, however, there are four commercial, nonconforming uses, viz.: a grocery store, an auto service station, a nursery stock retail outlet and a florist shop.
The evidence also disclosed that the traffic at the intersection had increased since 1956; that traffic there is now controlled by traffic signals; that there is no service station on the north side of Route 150 for distances of eight miles east and west of the intersection; that a service station is located on University north of the highway, but on the west side of the avenue; and that a service station at the northeast corner of the intersection would be convenient for motorists generally, as well as for those residing in Stratford Aire.
The evidence was conflicting as to whether a service station at that location would or would not create a hazard for pedestrians. There was no evidence relating to the value of any of plaintiffs' properties and there are no facts in the record showing any special damage to any of such properties, attributable to rezoning of the Hibser tract.
Plaintiffs-appellants contend that the ordinance violates the due process and equal protection provisions of the State and Federal Constitutions, and particularly that the action of the county board in adopting the ordinance was arbitrary, capricious and unreasonable.
[1-3] It is elementary that there is a presumption in favor of the validity of a zoning ordinance and one assailing it must prove by clear and affirmative evidence that the ordinance is arbitrary, capricious and unreasonable. Fifteen Fifty North State Bldg. Corp. v. Chicago, 15 Ill.2d 408, 417, 155 N.E.2d 97; Jacobson v. City of Evanston, 10 Ill.2d 61, 69, 139 N.E.2d 205. The same presumption applies to an amendatory or rezoning ordinance and the validity of such an ordinance must be determined by the same rules and tests as those applied in ascertaining the validity of an original ordinance. Bohan v. Village of Riverside, 9 Ill.2d 561, 566, 138 N.E.2d 487; Kinney v. City of Joliet, 411 Ill. 289, 293, 103 N.E.2d 473. Where there is room for a legitimate difference of opinion concerning the reasonableness of the classification effected by the ordinance, or an amendment thereto, or such is fairly debatable, the courts will not interfere with the legislative judgment. Wehrmeister v. County of Du Page, 10 Ill.2d 604, 610, 141 N.E.2d 26; Kinney v. City of Joliet, 411 Ill. 289, 296, 103 N.E.2d 473.
It is contended that capricious and arbitrary action by the board was manifested by its adoption of an ordinance so vague, indefinite and uncertain that it cannot be ascertained whether the words "service station" refer to a gasoline service station or some other service station activity, and whether the restrictions prescribed apply to any of the 66 other uses permitted under the commercial classification. Plaintiffs were not misled or prejudiced by these alleged uncertainties. They made The Texas Company a defendant and alleged that Hibsers had leased the property to that company to operate a gasoline station and almost all of the evidence presented pertained to the operation of a gasoline filling station upon the property. One of the plaintiffs, a realtor who was called as one of their three witnesses and who had attended the hearing before the Zoning Board, testified concerning his objections to a gasoline filling station on the tract, but said that there are many commercial operations that can be good for an area and could even be community assets. In their briefs plaintiffs also complain that the ordinance provides no safeguards against the dangers of fire in connection with gasoline filling stations. Obviously plaintiffs' resistance to this ordinance was based upon the proposed use of the property for a gasoline service station and no other. We are satisfied that all parties and the county board understood the precise use contemplated for this property. While the entire proceedings were conducted on contemplated usage for a gasoline service station, the restrictions prescribed are clearly applicable irrespective of the ...