Appeal from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 27, 1968.
This appeal is taken from a declaratory judgment of the Circuit Court of Cook County holding that the zoning ordinance of the defendant-appellant, the Village of Palatine, is null and void in its application to plaintiff's property. The declaratory judgment permits the plaintiff-appellee, Western Terrace Building Corporation, to use its property for multiple-family units (R-3 General Residence District) eliminating the restriction to single-family units (R-2 Single-Family Dwelling District).
The subject property consists of approximately thirty-five acres of vacant, unsubdivided land fronting on Palatine Road within the corporate limits of the defendant Village. The property had been classified for R-2 single-family purposes under the comprehensive zoning ordinance of 1957 and was so classified when purchased by the plaintiff. The plaintiff began acquisition in the latter part of 1965 with the purchase of five acres and purchased the remaining thirty acres early in 1966. Plaintiff does not deny that he purchased with knowledge of the zoning classification.
Application was made by the plaintiff to the Village to reclassify the subject property from single-family use to apartment use. The hearing before the Zoning Board of Appeals resulted in a recommendation against granting the reclassification. This recommendation was approved by the Village Board on May 23, 1966. The instant suit was filed by plaintiff on July 1, 1966, and subsequently proceeded to trial.
The trial court held that placing the plaintiff's property in the R-2 "Single-Family Dwelling District" classification was an arbitrary action by the Village bearing no relation to the public health, safety, morals, convenience and general welfare of the people. The Court also found that the highest and best use of the plaintiff's property was for multiple-family units and that such units would not "adversely affect the residential property east and/or west of the subject property." The Court ordered that the plaintiff be permitted to use the land for multiple-family units. The Village appeals this final order. No questions are raised on the pleadings.
The Village raises the following issues for review: (1) has the plaintiff overcome the presumption of validity attaching to the zoning ordinance of the Village of Palatine; (2) is the zoning ordinance of the Village of Palatine, as applied to the subject property, a valid exercise of the legislative authority vested in the President and Board of Trustees of the Village. The Village maintains that the trial court ignored the fact that the subject property was similar in all respects to the surrounding areas which had been developed and were now being developed for single-family use.
The plaintiff contends that the Palatine zoning ordinance is invalid as applied to its property, because the ordinance fails to make due allowance for existing conditions and for consideration of property values. The plaintiff further contends that the presumption of validity attaching to the zoning ordinance has been overcome in the case at bar by the evidence and by the physical character of the area in question.
[1-3] The rule is well-settled in Illinois that a presumption exists in favor of the validity of a zoning ordinance and the one who attacks such an ordinance 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, 273, 181 N.E.2d 96. If there is any room for a reasonable difference of opinion, the Court will not substitute its judgment for that of the legislative body. Trendel v. County of Cook, 27 Ill.2d 155, 161, 188 N.E.2d 668; Exchange Nat. Bank v. County of Cook, 25 Ill.2d 434, 439, 185 N.E.2d 250.
The subject property is bounded on the north by Palatine Road. Although several witnesses (and the Palatine Master Plan) described the highway as a limited access junior expressway, Palatine Road tapers to approximately twenty-four feet wide in front of the plaintiff's land. However, to the east and west of the subject property Palatine Road is approximately fifty-four feet wide with four lanes of moving traffic. There are also service roads, twenty-two feet wide, on either side of Palatine Road.
On the north side of Palatine Road across from the subject property is an area completely zoned and developed for R-2 single-family purposes. The area lying to the west of the subject property on the south side of Palatine Road is zoned for R-1 and R-2 single-family uses.
South and southwest of the subject property is a vacant tract of ninety acres fronting on Northwest Highway. This tract is owned by the Winston Park Northwest Corporation (hereinafter referred to as Winston Park), a subsidiary of Winston-Muss Corporation, and is being developed as the "Willow Creek" project. The owners applied for a reclassification of a certain portion of the property from B-1 "Shopping Center District" to B-2 "General Service District," in order to permit as a special use, an auto service station and motel fronting on Northwest Highway. Winston Park also asked that a portion of the tract which had been zoned M "Manufacturing District" be reclassified as B-1 "Shopping Center District." The Zoning Board of Appeals conducted a hearing on the matter about the same time the plaintiff's request was before them and recommended that the petition of Winston Park be denied. The Village Board, however, granted the zoning change. The "Willow Creek" development will consist of two ten-story office buildings, a 50,000 square foot shopping center, a motel, an auto service station, 740 apartment units on a minimum of twenty acres, an enclosed movie theater, and a twenty-five acre park.
Directly east of the subject property was a manufacturing zone. Sometime between January 1958, and January 1966, a portion of the manufacturing zone which had previously been unincorporated was annexed into Palatine as R-2 land. However, that portion of the tract which abutted the plaintiff's land remained zoned M "Manufacturing District." In March of 1967, while the instant case was pending, Winston Park, the owner of the tract directly east of the subject property, petitioned that their property be annexed into the Village under R-2 "Single-Family Dwelling District." On April 3, 1967, the Village Board approved the annexation. Winston Park then subdivided the property into 138 single-family lots and during April and May of 1967 contracted to build 65 houses in the area. None of the houses were under construction at the time of the trial in June 1967.
Plaintiff proposes to build 600 apartment units in sixteen buildings on the subject property. The two larger structures would be three-story buildings and would be approximately twenty-seven feet high. ...