APPEAL from the Circuit Court of DuPage County; the Hon.
WILLIAM J. BAUER, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 13, 1971.
The plaintiffs brought suit to have the defendant's zoning ordinance declared invalid as applied to the subject property. The trial court entered judgment for the plaintiffs and the defendant appeals.
The property is located on the northeast corner of Main Street and Warren Avenue, in the Village of Downers Grove. It lies immediately north of the Chicago, Burlington & Quincy Railroad tracks and is presently improved with a vacant, large brick building.
The plaintiff, as trustee, entered into a lease agreement with Shell Oil Company contemplating the erection and operation of a gasoline service station, subject to the acquisition of a conditional use permit.
In April, 1965, the defendant adopted a comprehensive zoning ordinance in which the property in question was zoned B-2, Business District General Retail, which would have permitted the operation of a gasoline service station on the property. In May, 1966, the ordinance was amended so that the gasoline service stations within the zoning district were permitted only as conditional uses granted by the defendant after a required public hearing before the defendant's zoning board of appeals. The relevant portion of that amendment reads as follows:
"3.1-3 Conditional Uses, as follows:
a. Radio and television towers.
b. Automobile service stations, provided, however, that to protect the health, safety, and general welfare of the residents of the Village of Downers Grove, the following minimum conditions shall be complied with prior to the issuance of a conditional use permit for an automobile service station:
1. Location. No such use shall be located within two hundred (200) feet, measured along contiguous street frontages, of any place of public assembly such as but not limited to: churches, schools, hospitals, clinics, theaters, auditoriums, parks and playgrounds."
Plaintiffs applied to the zoning board of appeals, a hearing was held and the application denied. The plaintiffs thereafter commenced a suit for declaratory judgment. The trial court found that the zoning ordinance as applied to the subject property was unreasonable, arbitrary, oppressive, and confiscatory insofar as it prohibits the erection and operation of an automobile service station.
The defendant argues that the plaintiffs failed to introduce evidence of a clear and convincing nature which would overcome the presumption of validity of the ordinance involved, citing our case of Whittingham v. Village of Downers Grove (1968), 101 Ill. App.2d 166. Defendant also argues that plaintiffs produced little or no evidence on the factors generally cited as significant in determining the validity of a given zoning limitation: e.g., the character of the neighborhood, the extent to which the value of the subject property is diminished by the limitation, the extent to which the removal of the limitation would depreciate the value of other property in the area, the suitability of the property for the zoned purposes, existing uses and zoning of nearby property, the length of time under the existing zoning that the property has remained unimproved (considered in the context of land development in the area), the relative gain to the public as compared to the hardship imposed on the individual, and the extent to which the ordinance promotes the health, safety, morals or general welfare of the public, Hartung v. Village of Skokie (1961), 22 Ill.2d 485; Myers v. City of Elmhurst (1958), 12 Ill.2d 537; La Salle Nat. Bank of Chicago v. County of Cook (1957), 12 Ill.2d 40; Wehrmeister v. County of DuPage (1957), 10 Ill.2d 604. No one factor is controlling but each must receive due consideration. LaSalle Nat. Bank v. County of Cook, supra, 47.
We believe the trial court did not err in finding the evidence introduced by the plaintiffs to be clear and convincing as to the above-mentioned factors. Testimony by witnesses for both plaintiffs and defendant established that the area immediately surrounding the subject property was zoned B-2, Business District-General Retail. Automobile service stations are permitted within the B-2 District, but only after conditional use permit has been obtained. The defendant claims an automobile service station would be incompatible with existing uses and zoning of nearby property. Yet existing uses in the area include only a few businesses of the prime retail category. Most of the uses were of a service nature, i.e., realty firms, restaurants, chamber of commerce, answering service, etc.
The defendant argues that the trend in the area is to high grade retail establishments "of pedestrian-oriented shopper traffic" and away from businesses which rely on automobile traffic. The zoning ordinance, however, does not bear this out. Among the various permitted uses in the B-2 district are drive-in banking facilities, automobile parking garages, motels, restaurants and others, all of which could be built without a conditional use permit and all of which depend upon automobile traffic for their trade. Furthermore, an automobile service station is now in operation one block north of the subject property, albeit as a non-conforming use. Plaintiffs' evidence clearly established the compatibility of the proposed service station with the surrounding area.
The defendant contends that the subject property is suitable for the zoned purpose and that the plaintiff had failed to establish otherwise. However, we are not faced with an application for a variance or special use permit. Automobile service stations can be a permitted use within the B-2 district if the conditional use is granted; therefore, ...