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Fiore v. City of Highland Park

OCTOBER 28, 1966.

VITO FIORE AND DELLA FIORE, HIS WIFE, PLAINTIFFS-APPELLEES,

v.

CITY OF HIGHLAND PARK, A MUNICIPAL CORPORATION AND BODY POLITIC OF THE STATE OF ILLINOIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. CHARLES S. PARKER, Judge, presiding. Judgment adverse to defendant in part and reversed in part.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 30, 1966.

Plaintiffs, Vito and Della Fiore, brought this suit against the City of Highland Park seeking a declaratory judgment that the municipal zoning, as applied to their property, was invalid. After a full hearing, the trial court entered such judgment and the defendant City has appealed.

Plaintiffs' property consists of approximately 21 acres, purchased in 1947 for $16,500. Five of the 21 acres are not included in this lawsuit. The plaintiffs maintained their residence and conducted a nursery operation on about seven or eight acres of this land and the balance of the land has remained idle. When the plaintiffs purchased the land, part of it was zoned "A, Country Estate" — a residential use — requiring a minimum lot size of three acres, and the other part "B-1" — also a residential use — requiring a minimum lot size of 20,000 square feet.

The west edge of the tract, approximately 750 feet in length, fronts on Skokie Highway — a highly travelled four-lane arterial highway — which offers direct access to plaintiffs' property to northbound traffic only. The land immediately across the highway is zoned "I" industrial and is vacant except for several advertising signboards. Across the highway and immediately to the south of the tract in question, are a car wash and two gasoline service stations. The "I" industrial zoning across the highway would permit apartment or office and research use, as well as the light industrial or commercial use.

Immediately to the north is the Bob O'Link golf course. To the north of that is the Sunset golf course and, adjoining the highway, a tract of land owned by the Encyclopedia Britannica. The latter tract consists of approximately 10 acres and is either zoned "G-1, Office, Research and Compatible Use" or is intended for such use. It is undeveloped, and the encyclopedia company is attempting to sell it. To the east of the land in question is a tract owned by the park district, which is unimproved. Immediately to the south, adjoining the highway, is a 6-acre vacant piece of land referred to as the "Johnson" tract. To the south of this, and adjoining the 5 acres of plaintiffs' land which is not a part of this suit, is a high-class residential development. Plaintiffs' 5-acre parcel of land which is not a part of this suit is zoned residential and connects with the land in litigation in such a manner that it is referred to herein as an "axe handle." Most of the general area, as most of the City of Highland Park, is developed with single-family residences.

The plaintiffs in December of 1963 filed a petition with the defendant seeking to have 300 feet in width of their land along Skokie Highway rezoned "G-1," for office and research use, and the balance of the 16-acre tract rezoned "F" for multiple-family construction. Hearings were held in February and March of 1964 but no findings or recommendations were made by the City Plan Commission. In June of 1964, the Plan Commission indicated it would hold new hearings on the plaintiffs' petition to consider the rezoning of these premises, along with other property along Skokie Highway, as a part of an overall plan. The plaintiffs then instituted this suit. Subsequently, the City rezoned all of the plaintiffs' land here in question, for office and research use, thus denying their petition insofar as it sought to have a part of their land rezoned for apartment use.

As a threshold question, we must first examine the defendant's contentions that the filing of this suit before the City Plan Commission had concluded its hearings, and the presentation of different and additional evidence at the trial from that presented at the legislative hearings, contravenes the doctrine that the property owner must exhaust administrative remedies before seeking a declaratory judgment, as set forth in Bright v. City of Evanston, 10 Ill.2d 178, 180, 181, 139 N.E.2d 270 (1957).

This is not an administrative review proceeding and the presentation of evidence bears no relation to the Bright rule. As a practical matter, the evidence required to prevail before the zoning body is often different, both as to quantity and nature, than that necessary to sustain the burden of proof subsequently in a court of law. Generally, an adverse ruling by the administrative or legislative agency would tend to place the landowner at a disadvantage. Under such circumstances, we would expect plaintiffs to offer somewhat different evidence in the trial before a court of law than that presented before the Plan Commission, and find no reason to preclude new evidence as such, if not otherwise objectionable.

Subsequent Supreme Court decisions have clearly indicated that the Bright rule is not jurisdictional. It is an expression of judicial policy which seeks to assure the local authority the opportunity of correcting errors and settling disputes at that level, thus avoiding the delay and expense of judicial intervention. Westfield v. City of Chicago, 26 Ill.2d 526, 528, 187 N.E.2d 208 (1963). Plaintiffs here sought relief from the local authority, which either refused to act on its petition, or substituted the Commission's overall plan for rezoning the land in the area for the specific relief sought by plaintiffs' petition. After suit was filed and long prior to the trial of this cause, the Plan Commission acted on its own overall plan in a manner which denied the zoning sought by plaintiffs. Under these circumstances, to require plaintiffs to proceed further before the Plan Commission would have been a useless act. Such futility is not the purpose of the Bright doctrine. Van Laten v. City of Chicago, 28 Ill.2d 157, 159, 160, 190 N.E.2d 717 (1963).

It would serve no useful purpose to reiterate here the oft-repeated factors to be considered in determining whether a given zoning ordinance is invalid as applied to particular property. See: Myers v. City of Elmhurst, 12 Ill.2d 537, 543, 544, 147 N.E.2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40, 46, 47, 145 N.E.2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill. App.2d 241, 244, 201 N.E.2d 177 (1964). Such factors will be referred to herein insofar as they are relevant to the determination of this case.

As noted, this case comes to us in a somewhat different posture than most zoning cases. After the plaintiffs had filed their petition to rezone their property, the City rezoned this land, along with other land along the east side of Skokie Highway, "G-1, Office, Research and Compatible Use" (hereinafter called "O & R"). The City's action at this time was a part of an overall plan as to this area and amounted to a denial of plaintiffs' petition.

Plaintiffs' basic contention is that their property is rendered virtually useless by the O & R zoning, and that such zoning ordinance bears no substantial relationship to the public welfare. The evidence indicates that the City of Highland Park has little land that is presently being used or developed for office and research use; and that this type of land use has developed extensively in the area northwest of Chicago, in the direction of ...


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