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Swain v. County of Winnebago

AUGUST 19, 1969.

WILBUR E. SWAIN, INDIVIDUALLY, AND AS CLASS REPRESENTATIVE OF MEMBERS OF CENTRAL CITY COUNCIL, AN ILLINOIS CORPORATION, AND CENTRAL CITY COUNCIL, AN ILLINOIS CORPORATION, PLAINTIFFS-APPELLANTS,

v.

COUNTY OF WINNEBAGO, ILLINOIS, DAVID W. JOHNSON AND HELGA S. JOHNSON, AND GUNNARD R. OLSON AND MYRTLE A. OLSON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is a declaratory judgment action brought to challenge the validity of a zoning ordinance adopted by the Winnebago County Board of Supervisors, which ordinance rezoned the property of the defendants, David W. Johnson, Helga S. Johnson, Gunnard R. Olson and Myrtle A. Olson, to permit the construction of a shopping center. The plaintiffs' amended complaint was dismissed and they have appealed.

The defendants' property consists of 145 acres of unimproved land located in Winnebago County on East State Street Road, approximately one mile east of Mulford Road. The land had been zoned for agricultural use, and was changed by the ordinance in question to a business zoning classification to permit the development of a regional shopping center. This land is a substantial distance from the downtown Rockford area, and it is outside of the corporate limits of the City of Rockford.

There are six counts in the amended complaint. In count I, Wilbur E. Swain, individually, is the plaintiff. Therein, Swain alleged that he is a resident, citizen and taxpayer of Winnebago County, and the owner of business real estate in downtown Rockford and the operator of a retail shoe business there; that the zoning ordinance did not receive the requisite vote of the County Board of Supervisors; that Swain's business interest and the value of his business property is adversely affected by the ordinance which would permit the development of the land for a regional shopping center; that such use affects the orderly development and redevelopment of the central city portion of the City of Rockford; that vehicular traffic in the neighborhood of the proposed regional shopping center, and along all major and minor arteries of traffic within the City of Rockford, would be substantially altered; that the use and development of schools, parks, cultural centers and every public facility within the City of Rockford and County of Winnebago would be affected; that Swain's business and business property would be greatly depressed and depreciated in value; that the valuation of his property for tax purposes would be depressed and depreciated; that Swain has invested large sums of money in his business and business property in reliance upon the zoning classifications as they existed and he had, and has, the right in law to expect stability in such classification; that the amounts of money which he pays as rent, and has paid for the purchase of an interest in the business real estate, are the result of former planning and zoning policies of the defendant county — which was to confine large and extensive central business districts to the central city district of the City of Rockford; and that as a consequence of the rezoning, Swain would be greatly damaged and injured and his income would be substantially reduced.

In count II, Wilbur E. Swain, as a class representative, is the plaintiff. Therein, Swain alleged that he is the owner of business property located in downtown Rockford and a member of the Central City Council, which is comprised of retail merchants and property owners in downtown Rockford, all of whom have an identical interest with regard to the proposed regional shopping center east of the City of Rockford; and that the issues concerning the validity of the zoning ordinance are common to all members of the Central City Council. The other allegations of count I are repeated.

In count III, Central City Council, an Illinois corporation, is the plaintiff. Therein, the Council alleged that the business interests of the members of the Council, and the value of the downtown business properties, would be adversely affected by the zoning ordinance; that the Council brought this suit as a class action on behalf of its multiple members; that the vehicular traffic in the neighborhood of the proposed regional shopping center, as well as in the central city area, would be substantially altered; that the use and development of schools, parks, cultural centers and every public facility within the county would be affected; that the retail businesses of the members of the Council would be affected and their volume of business reduced; that the value of the business properties owned by the members would be depreciated in value; that such depreciation would also exist for tax purposes; that certain members of the Council had invested large sums of money with regard to the business and business properties in reliance upon the zoning classifications as they theretofore existed; that the various members have the right to rely upon the stability and the classifications of said ordinances; and that the rentals paid and prices paid for business properties and real estate within the central business district are the result of a former planning and zoning policy — which was that central business activities be confined to the central city district; that the zoning ordinance in question changes such zoning policy; and that as a consequence of this, the members of the Council and the Council are damaged and injured and the income of the Council and its members reduced. Other allegations of count I were also repeated.

In count IV, Wilbur E. Swain, individually, is the plaintiff. Therein, he alleged that the zoning ordinance is arbitrary and unreasonable, bearing no reasonable relationship to the public health, safety and general welfare; and generally, he realleged the matters contained in count I.

In count V, Wilbur E. Swain, as class representative, is the plaintiff; and in count VI, Central City Council is the plaintiff. These counts reallege the matters asserted in count IV of the complaint.

The plaintiffs challenge the zoning ordinance on two grounds: first, that it did not receive the required vote of the County Board of Supervisors; and second, on the standard constitutional ground that the rezoning was arbitrary and bears no reasonable relationship to the public health, safety and general welfare, and, thus, is void. They concede that their attack is not based upon any statutory remedy, such as a quo warrantor; and they assert that they brought this action, as residents, citizens and taxpayers of Winnebago County, and challenge an amendatory zoning ordinance on the grounds above specified.

The plaintiffs are not the owners of the real estate which was rezoned. To have standing to sue, under the circumstances, they have the burden of alleging facts which show that they have suffered special damage as a result of the ordinance, which differ from that suffered by the general public. Garner v. County of DuPage, 8 Ill.2d 155, 158, 159, 133 N.E.2d 303 (1956); Bullock v. City of Evanston, 5 Ill.2d 22, 33, 34, 123 N.E.2d 840 (1955); Hughes v. City of Peoria, 80 Ill. App.2d 392, 394, 395, 225 N.E.2d 109 (1967).

The necessity of showing special damage extends generally to the plaintiffs' right to challenge the validity of the zoning ordinance and not to any particular ground on which the validity is challenged. The special interest that must be shown before a taxpayer may challenge the act of a corporate body is not limited to ordinances affecting zoning. The financial or administrative affairs of the county are not subject to question by the suit of a taxpayer unless his taxes are directly to be affected, or unless he, as opposed to the general public, has some special or distinct interest affected. Bistor v. Board of Assessors of Cook County, 346 Ill. 362, 372, 373, 179 N.E. 120 (1931); 14 ILP, Counties, § 87, p 157; 20 CJS Counties, § 288.

The reason for such a rule is well stated in Garner v. County of DuPage, supra, where the court, on page 159, said:

"As stated in 43 CJS, Injunctions, sec 22B, where a similar rule is expressed in connection with the right of a private individual to seek injunctive relief for a public injury, `The rule is not a technical and arbitrary one, but has a solid foundation in principle and is sustained by very sound reasons of public policy, its object being to protect defendant against a multiplicity of ...


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