Appeal from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. DUSHER, Judge, presiding. Reversed.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
This appeal, transferred by order of the Supreme Court to this court for disposition, arises from a declaratory judgment order entered by the trial court. The plaintiff-appellee, Kelley-Williamson Co., filed a complaint against the defendant-appellant, City of Rockford, seeking to have a zoning ordinance, as applied to plaintiff's property, declared invalid.
The plaintiff is the owner of a gasoline service station located on the southeast corner of North Main and Churchill Streets in Rockford, Illinois. The site of the station, referred to as the westerly part of lots 4 and 5, is zoned "C" residential and is completely surrounded by residential zoning for both single and multiple family uses. The subject property has been zoned "C" since 1923. However, prior to the enactment of the zoning ordinance this site had been utilized as a grocery store and thereafter, since 1933, it has been used for a gasoline service station. The defendant has recognized this to be a nonconforming use. During the period of years between 1932 and 1958, the improvements upon the premises have been altered and expanded on five occasions. One of the provisions of the defendant's ordinance pertaining to nonconforming uses prohibits any structural alterations or extensions which would exceed thirty percent of the cubic contents thereof. It is agreed that the maximum alterations or extensions of the station have been made.
Immediately to the south is lot 6, which is also classified as "C" residential. This lot had been improved with a two-family dwelling and two-car garage. In December, 1962, the plaintiff purchased lot 6 and had the dwelling removed, but allowed the two-car garage to remain.
The plaintiff, desirous of using only lot 6 for the temporary parking of its patron's automobiles during the period of servicing, applied to the defendant for a reclassification of use. Under the present zoning, the lot could be used for off-street parking purposes, provided such parking would be incident to a "C" residential use, which does not include a service station. The defendant denied the plaintiff's request, and as a consequence a declaratory judgment action was filed.
It is interesting to note that neither the allegations nor the prayer of the complaint requested any relief as to lots 4 and 5, but only as to lot 6. The record fails to disclose any amendment of the complaint either before or after judgment nor has either side raised this point.
Plaintiff's witnesses testified that the contemplated use would substantially raise the value of the premises without decreasing values of neighboring properties, except for increased activity and noise; that the highest and best use of lot 6 would be as an incident to the adjoining station for parking automobiles; that it would be beneficial to the public if an additional driveway entrance to the station could be located upon and across lot 6; that if two of the three bays of plaintiff's station, located on lots 4 and 5, were deepened an additional 7 1/2 feet, it would not only increase business but allow the doors thereto to be closed while cars were being serviced, thereby creating a better appearance; that the two car garage could be used to store nonflammable supplies of the station; that lot 6 could be surfaced with asphalt, blacktop or other similar material; and that a wooden fence along the southern and eastern borders of lot 6 would eliminate glare and reflection of lights to the adjoining properties as well as add to the aesthetic appearance.
The defendant established that the surrounding area was residential and introduced into evidence its ordinances relating to the expansion of nonconforming uses and off-street parking.
Based upon this evidence the trial court entered an order which found in essence that the Zoning Ordinance of the City of Rockford, Illinois, is unreasonable and void as applied to plaintiff's premises insofar as it prohibits the use of the westerly 84 feet of said premises for off-street parking in connection with plaintiff's adjoining gas station; that said Ordinance is unreasonable and void insofar as it prohibits plaintiff from using the existing 2-car frame garage located upon said premises for the storage of supplies and inventory to be used in plaintiff's adjoining gas station business; that said Ordinance is unreasonable and void insofar as it prohibits plaintiff from expanding its adjoining gas station building by rebuilding and relocating part of the station's east wall 7 ft. 6 in. to the east of its existing location; that plaintiff is legally entitled to: use said premises for off-street parking; use said existing 2-car frame garage for storage; rebuild and relocate the adjoining gas station's east wall; and install a new driveway to the station upon lot 6. The court further ordered that said parking area will be improved by the installation of asphalt, blacktop or similar surfacing and curbings along the easterly and southerly sides thereof; that plaintiff will install a wooden fence between 5 ft. and 6 ft. in height along the southerly and easterly sides of said parking area; that plaintiff will not place advertising signs or lights on said parking area; that in rebuilding and relocating the station's east wall, cement blocks will be utilized so as to present a similar appearance to the remainder of the gas station; that no inflammables will be stored in the 2-car frame garage; that any lease or written agreement affecting said premises will include a covenant referring to the provisions and restrictions of a Declaratory Judgment entered by the Circuit Court of Winnebago County, Illinois, in Cause No. 78842; that this court will retain jurisdiction of the cause until the Declaratory Judgment has been complied with and for the purpose of entering such other orders that may hereafter be required.
The basic question on this appeal is whether the trial court was warranted in finding that the defendant's ordinance relating to nonconforming uses as applied to plaintiff's property, was invalid. Upon careful analysis of the evidence it can be seen that the plaintiff was not only desirous of adding more land (lot 6) to his already nonconforming premises, but desirous of expanding the original premises (lots 4 and 5) beyond the maximum allowed by ordinance.
Plaintiff has a property right in his present nonconforming use, and any ordinance which takes away that right in an unreasonable manner or in a manner not grounded on public welfare, is invalid. Douglas v. Village of Melrose Park, 389 Ill. 98, 58 N.E.2d 864. See also, Western Theological Seminary v. City of Evanston, 325 Ill. 511, 156 N.E. 778; Tews v. Woolhiser, 352 Ill. 212, 185 N.E. 827; and Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767.
By the same token, there is a presumption of validity in favor of a zoning ordinance. The one assailing its validity has the burden of overcoming the presumption by proving with clear and convincing evidence that, as applied to him, it is arbitrary and unreasonable, and is without substantial relation to the public health, morals, safety and welfare. Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96. This same principle also applies to specific sections of a zoning ordinance, for instance those concerning nonconforming uses. In the case of Mercer Lumber Co. v. Village of Glencoe, 390 Ill. 138, 145, 60 N.E.2d 913, the court stated:
"The provision that appellant cannot increase the cubic capacity of its structures in excess of thirty per cent, under the authority granted by the statute, is reasonable, and in fact the language of the statute justifies ...