APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM L. GUILD, Judge, presiding.
MR. PRESIDING JUSTICE T. MORAN DELIVERED THE OPINION OF THE COURT:
The plaintiffs brought this declaratory judgment action against the Village of Lisle, praying that its zoning ordinance be declared null and void as applied to their property.
The trial court found that the ordinance bore no relation to the public health, safety, comfort, morals and welfare, and that it was, therefore, void as applied to the plaintiffs' property. The court entered judgment for the plaintiffs and granted them the relief prayed for in their complaint that the Village issue a permit to the plaintiffs to construct a gasoline service station on the premises.
The plaintiffs, Schultz and Palmer, and their respective wives, are adjoining landowners of the property which is the subject of this suit. The tract in question consists of 4 fifty foot lots and is located at the northeast corner of Illinois Route 53 and Burlington Avenue, in Lisle, Illinois. It is zoned for single-family residential use, and is improved with two single-family residences with detached garages. One residence has been occupied by the Schultzes since its construction by them about fifteen years ago; the Palmers have occupied the other since their purchase of it in 1967.
The entire block in which the subject property is located is zoned and used for single-family residences. The property west of the subject property (across Route 53, fronting on the north side of Burlington Avenue) is also zoned and used for single-family residences. This zoning extends northward as far as the southerly boundary of lots fronting on Ogden Avenue. One hundred feet to the east of the subject property is Garfield Avenue, a north-south street. The property on the east side of Garfield Avenue is zoned partially for two-family residences and partially for multiple family residences, except for two losts which are used as auxiliary parking for property further east on Main Street.
The south side of Burlington Avenue, west of Route 53, is zoned for two-family residences and to the east, is zoned for commercial business. Commercial establishments predominate although there are two residential uses in the block. The west side of Main Street (which is the next street east of Garfield, between Burlington and Ogden Avenues) comprises part of the main business district of the Village and is zoned commercial. A portion of this business district lies about three hundred feet from the plaintiffs' property.
Route 53 and Burlington Avenue are controlled by traffic signals. Route 53 is a four-lane divided highway extending approximately four hundred fifty feet north of the subject property where it meets with Ogden Avenue at a clover-leaf type intersection. Route 53 is a heavily travelled highway, while Burlington Avenue carries a considerable amount of rush hour traffic. Burlington and Ogden Avenues are the primary east-west roads leading to and from the village business district. The tracks of the Chicago Burlington and Quincy Railroad lie south and adjacent to the lots facing Burlington Avenue, and the property south of these tracks is zoned for business and manufacturing purposes.
The evidence on behalf of the plaintiffs indicated that the Schultzes built their home on a part of the subject property in 1955, when the area was entirely residential, and that almost contemporaneously, the restaurant across the street was built. Subsequently, the restaurant obtained a liquor permit. After Route 53 was widened, the restaurant installed a parking lot on the south side of Burlington Avenue, across the streetfrom the Palmers' house. Two years previous to this suit, an apartment building was erected on the north side of Burlington Avenue, about 200 feet east of the property.
There was evidence of the construction of a manufacturing plant, a bowling alley and a professional building further south of Burlington Avenue of Route 53, and of the construction of two gasoline stations north of Ogden Avenue on Route 53. The record also indicates that the restaurant across the street from the subject property was the source of a great deal of noise.
The plaintiffs offered expert testimony to the effect that the land, as presently zoned, was worth about $40,000, while if zoned to permit its use for a service station, would be worth approximately $115,000. The testimony was that the highest and best use of the property would be for a commercial enterprise, and that a service station would fall within that classification and use. The expert witness testified that the use of the property for a gasoline service station would not have a deleterious effect on the property in the immediate surrounding area because it had already been depreciated by the commercial uses along the south side of Burlington Avenue and the traffic on Route 53.
However, one of the plaintiffs' witnesses did state that he believed that a gasoline station would have a negative effect on the surrounding property, although it was his opinion that the entire area east of Route 53 (between Ogden Avenue on the north, and the Chicago, Burlington and Quincy tracks on the south) was not suitable for single-family dwellings; that Route 53 would be a logical line of demarcation between the residential area to the west and the commercial area to the east; and that the trend of development in the area was toward retail commercial use, rather than residential.
The defendant's evidence was to the effect that the highest and best use of the subject property and that of the surrounding area, would be for apartment buildings (although present zoning would not permit such use); that the public health, safety, morals and welfare would not be served by the building of a gasoline service station on the property; that there would be a depreciating effect on the value of various surrounding properties if a gasoline service station were built on the subject property; and that the use of the property for a gasoline service station would have the effect of creating a heterogeneous, rather than a uniform development of the area, and would constitute spot zoning.
The defendant's witnesses conceded that single-family residential use was not the appropriate limitation for the plaintiffs', and the surrounding property, but their testimony was that all of the said property was, and should be, residential in character, although of a greater density than single-family.
• 1, 2 To be valid, a zoning classification must bear a substantial relation to the public health, safety, morals or general welfare. (Marquette Nat. Bk. v. County of Cook (1962), 24 Ill.2d 497, 501, 502; First National Bank v. County of Cook (1958), 15 Ill.2d 26, 31; Mutz v. Village of Villa Park (1967), 83 Ill. App.2d 1, 9.) The defendant's zoning ordinance is presumed to be valid and the plaintiffs assume the burden of establishing that it was unreasonable and oppressive as applied to their land. (Camboni's, Inc. v. Du Page County (1963), 26 Ill.2d 427, 432; Fiore v. City of Highland Park (1966), 76 Ill. App.2d 62, 71.) To overcome the presumption of validity, the plaintiffs must establish by clear and convincing evidence that the ordinance is arbitrary and ...