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Beaver v. Vil. of Bolingbrook

JUNE 29, 1973.

MARY BEAVER, PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF BOLINGBROOK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 27, 1973.

This is an appeal from a judgment of the Circuit Court of Will County, Illinois, which held the zoning ordinance of the Village of Bolingbrook to be invalid as to certain property of the plaintiff, and which enjoined the Village from interfering with use of the property for a neighborhood shopping center and an automobile service station.

The plaintiff, Mary Beaver, the owner of 80 acres of land adjacent to the intersection of Illinois Route 53 and Briarcliff Road in Will County, had entered into an agreement with Yale Development Company for the sale to it of 10 acres of her land at the northeast corner of the intersection. The agreement was conditioned upon rezoning to permit the construction and operation of a neighborhood shopping center and an automobile service station at the intersection. Of the 10 acres subject to the agreement, 7 1/2 acres, constituting the tract of land involved in this litigation, lay within the Village of Bolingbrook. Under the zoning ordinance of the Village this tract of land had an R-2 Single-Family Residential classification, which did not permit the use of land for a shopping center or a service station.

The plaintiff and Yale Development Company requested the Village to rezone her 7 1/2-acre tract of land so as to permit the development contemplated. Their request was denied by the Village upon the recommendation of its plan commission. Thereafter this suit was filed to challenge the validity of the Village's zoning ordinance as it applied to the plaintiff's land to prohibit the intended uses. A hearing on the merits took place before the circuit court, findings were made and judgment entered for the plaintiff, and the Village has taken this appeal.

From the evidence it appears that Illinois Route 53 is a major north-and-south highway, with an average daily traffic volume of 10,285 in the vicinity of the plaintiff's property, and Briarcliff Road is the main east-and-west thoroughfare in the Village of Bolingbrook. Land to the west and southwest of the intersection is zoned and substantially developed as residential property. Additional residential development lies a short distance northeast of the intersection. Immediately north and east of the plaintiff's 7 1/2-acre corner tract is the remainder of her 80 acres of land, all devoted to farming and all zoned for farming except the southerly portion lying within the Village and zoned residential. A short distance east of the intersection, on the south side of Briarcliff Road, is an elementary school.

It appears, further, that Interstate 55 lies less than a mile south of the intersection of Route 53 and Briarcliff Road, and a cluster of commercial uses is found at the intersection of Route 53 and I-55. Other clusters of commercial uses are located on Route 53 at intersections north of Briarcliff Road. Between these intersections there are various housing developments and occasional commercial enterprises and areas zoned commercial. There is conflict in the testimony as to whether Route 53 in the Bolingbrook planning area is primarily commercial, whether it should be considered residential near Briarcliff Road, and what the trend of development is along Route 53.

There is conflict in the testimony, also, as to whether the plaintiff's 7 1/2-acre tract at the intersection of Route 53 and Briarcliff Road is suitable for residential use; whether a detrimental effect on other property might result from allowing commercial uses to be introduced on this site; whether there might rather be an off-setting benefit to the community from the introduction of a neighborhood convenience shopping center and an automobile service station at this intersection; whether the two highways and the remainder of the plaintiff's property would be adequate as buffers on all sides of the 7 1/2-acre tract; whether the proposed commercial development would create traffic problems; and whether any loss of property value which might ensue would be caused only to the adjacent land owned by the plaintiff herself.

It is clear that substantial detriment is caused the plaintiff by the present zoning of her property. The price she would receive from Yale Development Company, if commercial uses should become allowable, is $230,000 for 10 acres, or $172,500 for the 7 1/2-acre tract involved in this litigation. Two of her witnesses would place a valuation of $400,000 on the 7 1/2-acre tract as commercial property in the absence of a contract with Yale Development Company providing for a lower figure. The value of the 7 1/2-acre tract as presently zoned for residential use is $37,500 to $50,000 according to the plaintiff's expert witnesses and $52,500 to $60,000 according to the witness testifying for the Village. It is thus established that the loss which present zoning restrictions would place on the plaintiff is between $112,500 and $135,000 for the 7 1/2 acres.

We have considered, in our review of the record, the various factors which have been said to merit consideration. (See La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 46-47; Lakeland Bluff, Inc., v. County of Will, 114 Ill. App.2d 267, 275-76.) We have thereby sought to assess whether the challenged ordinance imposes a much more serious burden on the plaintiff than the public benefit seems to warrant, in which case the ordinance must be held unreasonable and void as applied to the plaintiff's property. (Tillitson v. City of Urbana, 29 Ill.2d 22, 27.) It is our conclusion that, as the Illinois Supreme Court has stated in another case involving a proposed automobile service station, "the hardship to the plaintiff is plain and uncontradicted, while the gain or hardship to nearby property owners is uncertain and minimal and presents little justification for the extreme confiscation of value worked upon the plaintiff's land by the residential classification." (Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill.2d 116, 126.) We believe that the findings of the circuit court on the character of Route 53 and other factual matters in dispute are not contrary to the manifest weight of the evidence and so should not be disturbed. (Locker v. City of McHenry, 89 Ill. App.2d 457, 462.) We therefore concur with the decision of the circuit court that the residential classification of the plaintiff's property is unreasonable and void and that the proposed uses of her property are reasonable and are to be allowed. Pending motions asking that we consider certain recent changes in the vicinity of the plaintiff's property are denied, and the judgment of the Circuit Court of Will County is affirmed.

Judgment affirmed.

ALLOY, P.J., concurs.

Mr. JUSTICE STOUDER dissenting:

It is my opinion plaintiff failed to overcome the presumption of validity of the Village's zoning ordinance. It is well settled the plaintiff's burden in overcoming this presumption is to show by clear and convincing evidence the zoning restrictions on plaintiff's property are arbitrary and unreasonable and bear no substantial relationship to public ...


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