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De Bruler Homes v. County of Lake

DECEMBER 29, 1966.

DE BRULER HOMES, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,

v.

COUNTY OF LAKE, A BODY POLITIC ORGANIZED UNDER THE LAWS OF THE STATE OF ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the Nineteenth Judicial Circuit of Lake County; the Hon. PHILIP W. YAGER, Judge, presiding. Judgment adverse to plaintiff affirmed.

MR. JUSTICE RATHJE DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 18, 1967.

Plaintiff-appellant, De Bruler Homes, Inc., an Illinois corporation, brings this appeal from an order finding the Amended Zoning Ordinance of Lake County valid and dismissing its complaint for declaratory judgment for want of equity. Said complaint prayed that the defendant and its employees be enjoined from enforcing the said Amended Zoning Ordinance against the plaintiff's property and that the said zoning ordinance be declared unconstitutional and void insofar as it prohibits the subdivision of plaintiff's property into lots having less than 10,000 square feet in area.

On February 15, 1961, the plaintiff purchased 5.30 acres lying at the Southwest corner of a 40-acre tract located on the South side of Gages Lake Road in the unincorporated area of Lake County; the contract for sale gave it an option to purchase the remainder by February, 1968. For the purpose of this opinion, the 5.30 acres owned in fee by the plaintiff shall be referred to as the "subject property," and the remaining portion of the 40 acre tract on which the plaintiff holds an option shall be referred to as the "remainder." A diagram of subject property and that related thereto is as follows:

Gages Lake Road ----------------------------------------- | | | Remainder 34.70 acres | | | Wildwood | | Subdivision | | |--------- | | | | | 5.30 | --------- | acres | | | | | | Subject | | | Prop. | | | | | -------------------------------

The subject property and the remainder are used essentially for farming, and both are zoned "F" under the defendant's amended zoning ordinance which classification permits single-family residences with a minimum lot size of 40,000 square feet. The plaintiff filed this suit seeking to declare that portion of the Lake County Amended Zoning Ordinance prescribing a minimum residential lot size of 10,000 square feet unconstitutional and void without first applying for a more intensive residential zoning of the subject property and remainder. A motion to dismiss was filed by the defendant and no action was taken while the plaintiff petitioned the Zoning Board of Appeals and the Board of Supervisors of Lake County for a residential zoning classification with a minimum lot requirement of 8,000 square feet. The Zoning Board of Appeals recommended reducing the minimum lot size of residential property to 8,400 square feet but apparently no action was taken by the Board of Supervisors on plaintiff's application and therefore we assume, for the purpose of this opinion, that the said application was rejected and plaintiff's administrative remedies have been exhausted.

To the west of the subject property and the remainder is the Wildwood Subdivision comprising a development having lot sizes of eight, nine and ten thousand square feet, the latter of which abuts the subject property. There are many vacant lots in this subdivision although the evidence does not reveal whether these lots were owned by the developer or by individual property owners. Recently the Gages Lake Sanitary District was established; it serves Wildwood with a main sewer line running from the subdivision diagonally across part of the subject property and a portion of the remainder to a disposal plant located to the east. Immediately to the east of the remainder is the Woodland Junior High School and to the north of this school, across Gages Lake Road, is an elementary school. The remaining area surrounding the subject property and the remainder is essentially rural and used for farming purposes.

Under the defendant's zoning ordinance, seven single-family residential districts have been established, the most intensive providing for an area of ten thousand square feet. Under this classification, the subject property and the remainder could be subdivided into 123 residential lots. Plaintiff seeks to subdivide the subject property and the remainder into 166 lots having a minimum lot size of 8,000 square feet. Upon each lot it would construct a $14,000 to $16,000 home, and the subdivision would be improved with paved streets, paved sidewalks, sewer and water facilities.

Plaintiff contends that the subject property and the remainder are not suitable for the most intensive permitted residential use under the defendant's zoning ordinance; that the highest and best use of the subject property would be for single-family residence lots of 8,000 square feet; that the savings on the smaller lot size could be used for a higher quality home; that the minimum lot requirement of 10,000 square feet as found in defendant's zoning ordinance fails to bear any substantial relation to the public health, safety, comfort, morals or general welfare; and that the plaintiff has exhausted its administrative remedies.

The proofs of the plaintiff and the defendant, and the memorandum opinion of the trial court considered that the issue presented was the validity of the minimum lot size requirement of the Amended Zoning Ordinance of Lake County as applied to the entire 40-acre tract. The testimony at the trial established that the present minimum lot size of 40,000 square feet for residential development was not economically feasible; that the highest and best use would be for residential purposes; and that the 40-acre tract could be subdivided into lots of either eight or ten thousand square feet.

The evidence for the plaintiff was to the effect that the highest and best use would be a residential subdivision containing lots of 8,000 square feet and that it would have no adverse effect upon the general health, safety or welfare. A witness for the plaintiff stated that the difference in profit between the two-lot size requirements would be approximately $66,000. On cross-examination, he stated the only hardship to the plaintiff by being required to subdivide the subject property and the remainder into 10,000 square foot lots would be a loss of profits. He stated the fair market value for the subject property and the remainder with 8,000 square foot lots would be $120,000, and $60,000 if divided into 10,000 square foot lots.

The evidence for the defendant was that there were several subdivisions in the area with lots of 8,000 square feet or less, which have not been improved; that lots having a minimum lot size less than 10,000 square feet would diminish the utility and value of the lot; that the highest and best use of the subject property and the remainder would not be 8,000 square feet per lot; and that the fair market value of the subject property and the remainder, if divided into 10,000 square foot lots, would be $120,000.

Subsequent to the enactment of the Amended Zoning Ordinance, the defendant inventoried the existing uses and the physical characteristics of the land in the unincorporated area of the County. The Regional Lake County Planning Director concluded that on the basis of this inventory and from forecast of future land needs that the 40-acre tract was an area most appropriate for residential development under the existing zoning ordinance.

As stated by the trial court, the question is not the power of the defendant to prescribe lot area restrictions but rather the exercise of that power as applied to subject property and the remainder. The County Zoning Act, (Ill Rev Stats 1965, c 34, par 3151), provides that for the purpose of promoting the public health, safety, morals, comfort and general welfare, the Board of Supervisors have the power to divide the unincorporated areas of the county into ...


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