Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Reversed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. The defendant, City of Rolling Meadows, appeals from a judgment declaring that its zoning ordinance is unconstitutional as applied to plaintiffs' property and ordering the issuance of a permit for the construction of a gasoline service station on this property.
During the trial the judge summarily terminated the presentation of evidence by the defendant before it had rested. Plaintiffs have confessed error on this point and move this court to reverse and remand the cause for further proceedings. Defendant contends that the plaintiffs, having presented their case in full, failed to sustain the burden of overcoming the presumptive validity of its zoning ordinance. Defendant argues that an absolute reversal of the trial court's declaratory judgment order is required. We must determine whether the judgment order requires the cause to be reversed and remanded or whether an absolute reversal is warranted based upon the evidence presented.
In their complaint the plaintiffs, Richard and Kathryn Duryea, allege that they are the owners of three lots located at the northwest corner of Kirchoff and Wilke Roads in the City of Rolling Meadows and that the plaintiff, Socony Mobil Oil Company, Inc., has an interest in the subject property under a contract of purchase with the Duryeas. The complaint also alleges that the subject property is currently zoned R-2, single-family residence district, under the city's zoning ordinance of February 14, 1956. The subject property has a frontage of 223 feet, 1 3/8 inches on Wilke Road and a frontage of 209 feet, 1 inch on Kirchoff Road with a total lot area of 30,163 square feet. The complaint further alleges that Kirchoff and Wilke Roads are well traveled arterial thoroughfares.
The complaint then sets forth plaintiffs' attempt to secure a change in the zoning to C-3, general service wholesale and motor vehicle district, before the Special Zoning Commission of Rolling Meadows and the Commission's recommendation that the application be denied. This ruling was subsequently accepted by the City Council.
Plaintiffs having exhausted all administrative and local remedies filed this complaint seeking a declaratory judgment and other relief. The complaint alleged that plaintiffs have been deprived of their property without due process of law and without compensation, contrary to the provisions of the United States and Illinois constitutions and that the highest and best use of the subject property is for the development of an automobile service station.
Defendant's answer admits the zoning ordinance with the exception that the subject property is presently classified R-2 pursuant to the comprehensive zoning ordinance of 1964 but denies that the plaintiffs have been deprived of their property without due process of law and without compensation. The answer alleges that the highest and best use of the property is for the continuation of the present R-2 zoning.
Defendant's answer then sets forth its affirmative defense to the complaint. Defendant alleges that the subject property is completely surrounded by single-family residences and that any change in the R-2 zoning would constitute illegal "spot zoning." It also alleges that the subject property being less than one acre in area violates section 5, Minimum Areas for Zoning Districts of Article IV of the Comprehensive Zoning Ordinance of the City of Rolling Meadows of 1964, which provides that the minimum area for a C-3, general services, wholesale and motor district shall be four acres. Defendant further claims that the proposed use also violates Article XI, section 4, subsection 4.2-4, which provides that an automobile service station shall be not less than one acre. Finally, defendant alleges that the erection of the station violates section 12-261 of the city's Business and Occupation License and Permit Code which provides:
No tank for the storage and handling of flammable liquids shall be installed within 200 feet of a school, hospital, church or theatre, or within one hundred fifty feet (150) of any residence or within two hundred and fifty (250) feet of any electrical distribution center.
Defendant alleges that the subject property is located within 150 feet of a residence and within 250 feet of an electrical distribution center.
No reply was filed by the plaintiffs to the affirmative defense.
Testimony of Alfred C. Stier, called by the plaintiffs:
He negotiated the purchase of the property in behalf of Mr. Duryea. However, Mr. Duryea is the nominee of Mobil Oil and the property is to revert back to Kimbell-Hill Homes, Inc., if the rezoning was unsuccessful. Payment of the $80,000 purchase price is contingent upon the property being rezoned. There are other gas stations within one-third of a mile from the subject property, but he did not know in which municipal jurisdiction each station was located. The subject property is surrounded by single-family homes with several new homes being constructed just east of the subject property.
Testimony of Edward Cahill, called by the plaintiffs:
He is a field engineer employed by the Mobil Oil Corporation. He described the type of station to be built on the property which would have a buffer zone between the adjoining residential homes. This zone would be either fenced in or landscaped. The service gas pumps would be approximately 120 feet from the north lot line. The ...