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Duggan v. County of Cook

JANUARY 16, 1974.

MICHAEL J. DUGGAN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF COOK, DEFENDANT-APPELLEE — (THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 227, COOK COUNTY, ET AL., INTERVENORS, DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

In this action the plaintiffs, Elmer Marquardt and LaVerne Marquardt, the legal owners and Michael J. Duggan, the contract purchaser and proposed developer, filed an application before the Zoning Board of Appeals of Cook County to have a 147 acre farm rezoned or reclassified from the R3 Single Family Residence District to the B5 General Commercial District and to obtain a special use for a mobile home park, a sewage treatment plant, and a community well. After a public hearing, the Zoning Board of Appeals recommended to the Cook County Board of Commissioners that the application for said uses be granted. Subsequently, the Board of Commissioners rejected the recommendation of the Zoning Board and denied the application.

On July 12, 1972, plaintiffs filed a complaint for declaratory judgment seeking to have the current R3 single family zoning classification of the subject property declared invalid and unenforceable and to have the proposed mobile home park development allowed. The defendant, County of Cook, filed its answer. Thereafter, without objection, Illinois Tool Workers, Inc., an adjoining property owner on the west, intervened. Over objection of the plaintiffs, the Board of Education of School District No. 227 and No. 159, within which the subject property is located, were allowed to appear and intervene. After a trial the court found that "under the totality of all the evidence the plaintiffs have failed to establish by clear and convincing evidence that the Cook County Zoning Ordinance as it applies to plaintiffs' property is arbitrary and unreasonable and without substantial relation to the public health, safety, morals and welfare." Plaintiffs appeal from this adverse finding of the trial court.

Plaintiffs contend in this appeal that the ordinance is arbitrary, confiscatory, and violative of plaintiffs' rights and that the finding of the trial court is against the manifest weight of the evidence. They also contend that the trial court improperly allowed the intervention of the two school districts and placed undue emphasis on the position of the school districts in reaching its decision.

The defendants, the County of Cook, School Districts No. 227 and No. 159, and Illinois Tool Works, Inc., contend in response that: plaintiffs failed to overcome the presumption of validity attaching to the zoning ordinance; plaintiffs failed to sustain their burden of proving that the denial of the requested rezoning and special use by the County Board of Commissioners was arbitrary and unreasonable; the denial of the special use for a trailer park is a valid exercise of the legislative authority vested in the commissioner; plaintiffs failed to show that their property is not suitable for the purpose for which it is zoned; the Circuit Court did not commit reversible error in allowing the school districts to intervene and did not place undue emphasis on the position of the school districts in reaching its decision; and the decision of the trial court is supported by the weight of the evidence.

For purposes of the issues raised, the Cook County Zoning Ordinance, article VIII, section 8.3, "Permitted Uses," as amended in 1968, permits single family residences with a minimum lot area of 20,000 square feet in the R3 classification. (Article VIII, Section 8.5A-3.) Article IX, section 9.4-5, "Special Uses — B5 District" allows a mobile home park as a special use in a general commercial district. Article X, section 10.4-1, "Special Uses — M1 District" allows a mobile home park as a special use in a restricted manufacturing district.

• 1, 2 We initially recognize that the ordinance under attack is presumed valid and the burden is upon plaintiffs to establish its invalidity by clear and convincing evidence. Where there is room for a fair difference of opinion concerning the reasonableness of a particular zoning classification the legislative judgment will be respected and sustained. Fox v. City of Springfield, 10 Ill.2d 198, 139 N.E.2d 732.

• 3 However, as stated in Fiore v. City of Highland Park, 76 Ill. App.2d 62, 71, 221 N.E.2d 323, 328, "the fact that there is a difference of opinion among the witnesses — lay and expert —, does not mean that the court must find that the reasonableness of the ordinance is debatable and, hence, uphold the ordinance. In cases of this nature, a court must expect differences of opinion. It is for the court to determine from all of the facts whether the differences of opinion are reasonable and justifiable. [Citations.]"

• 4 Furthermore a zoning classification must bear a substantial relation to the public health, safety, comfort, morals or general welfare to be upheld. (Marquette National Bank v. County of Cook, 24 Ill.2d 497, 501, 182 N.E.2d 147, 150.) Where the gain to the public is small as compared to the hardship imposed upon the owners of the land by a certain zoning restriction, no valid basis exists for the exercise of the police power. First National Bank & Trust Co. v. County of Cook, 15 Ill.2d 26, 31, 153 N.E.2d 545, 548.

With these general principles in mind, we have carefully examined the entire record. Since the validity of each zoning ordinance must be determined on its own facts and circumstances (La Salle National Bank of Chicago v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65, 69), we have considered the specific facts and circumstances revealed by the record peculiar to the subject property in reaching our conclusion (see Glassey v. County of Tazewell, 11 Ill. App.3d 1087, 297 N.E.2d 235). We have also been mindful of certain facts recognized by Illinois courts as being useful in determining the validity of a zoning ordinance. (La Salle National Bank of Chicago v. County of Cook, 12 Ill.2d 40, 46-47, 145 N.E.2d 65, 69.) Our analysis, which is outlined below, compels us to a different result from that of the trial court, and we respectfully disagree with that court's determination that the zoning ordinance is valid as it applies to the subject property.

We first review some pertinent facts. The Marquardts, as owners, entered into a contract with plaintiff Duggan for the sale of the subject property, a 147 acre farm located on the southwest corner of Ridgeland Avenue and the Penn Central Railroad right of way in Rich Township, Cook County, Illinois. The contract of sale is contingent upon a change in the zoning from the present R3 single family residence classification to a classification allowing a mobile home development. The subject site has been undeveloped, other than for farming, and has been owned by the Marquardt family for 65 years. It had been listed for sale with a realtor for some time — approximately two years, according to Elmer Marquardt's trial testimony. Duggan, a land developer, is the only person who offered to buy — but, as noted, only if the zoning could be changed.

Certain of the unique physical characteristics of the property are of considerable importance. The property is bounded on two sides, the north and south, by railroad tracks, on the west by property zoned M2 (General Manufacturing District) and currently under development for such purposes, and on the east by a four lane highway, Ridgeland Avenue. An oil pipe easement owned by the Shell Oil Company runs along the west end of the property. A creek traverses the property and approximately 30 acres, or 15 to 20 per cent of the gross acreage, are not usable for construction in their present state due to the flood plain. The property is not located in any sanitary district and no sewer is available. Nor is there any public water supply available. The construction of a sewage treatment plant, approved by the Illinois Environmental Protection Agency, is part of Duggan's proposed development. The installation of two wells to bring water to the site is also a part of the development.

From the evidence in the record, including the testimony of numerous witnesses for both plaintiffs and defendants, we first deem it fair to state that the farmland is not economically suitable for development as zoned, i.e., for single family residences. Michael Duggan, the contract buyer, who is a land developer and building contractor, was of the opinion that it would not be economically feasible to develop the subject land with single family residences. He based this opinion first on the fact that, since the present zoning requires a minimum lot area of 20,000 square feet per site, the flood plain would limit the construction of single family home sites on the property to a total of 440. The proposed trailer park would consist of approximately 850 mobile homes. Duggan also considered the absence of sewer and water services an important factor. John Lydon, a real estate appraiser, called as a witness by plaintiffs, testified that the highest and best use the property could be put to would be a mobile home park as proposed. He stated that a development of this site under the present R3 classification allowing 20,000 square feet per building is economically unfeasible for many detailed reasons including those cited by plaintiff Duggan.

William McCann, a licensed real estate broker, testifying on behalf of the defendants, explained also that the property is undulating, has a stream running through it, and that approximately 35 acres are in the flood plain, leaving about 113 acres of usable land. In his opinion, the highest and best use would be for industrial purposes and the property should be rezoned for industrial use. When asked "In your opinion, could the subject property be economically developed for single family residence purposes as presently zoned?" he replied: "I believe realistically it would be borderline, but I believe it could be." Rolf Campbell, a land planner, also called as a witness by defendants, agreed with McCann that the highest and best use of the land would be for industrial purposes. Although he stated that the premises could, in his opinion, be developed with single family residences, he ...


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