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Duggan v. County of Cook

OPINION FILED JANUARY 21, 1975.

MICHAEL J. DUGGAN ET AL., APPELLEES,

v.

THE COUNTY OF COOK ET AL., APPELLANTS.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. F. Emmett Morrissey, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT: Rehearing denied March 24, 1975.

The plaintiffs, who are the legal title holders and the contract purchaser of the land in question, sought to have a 147-acre farm rezoned from the existing R3 Single Family Residence District to B5 General Commercial District. They also sought a special use permit for the development of a mobile-home park on the land and the construction of a sewage-treatment plant and community wells.

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. (Art. VIII, sec. 8.5A-3.) Article IX, section 9.4-5, of the ordinance, "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.

We 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 (1957), 10 Ill.2d 198.

The zoning board of appeals recommended approval of the requested change, imposing certain conditions as a part of the special use permit. The Cook County Board of Commissioners rejected the recommendation and denied the zoning request. The circuit court of Cook County upheld the Board of Commissioners, and denied the plaintiffs' relief as prayed in their complaint for declaratory judgment that the subject property be rezoned, and that defendants be enjoined from enforcing the existing zoning provisions of the Cook County zoning ordinance. The appellate court reversed the trial court and remanded with instructions suggesting that the recommendation of the zoning board of appeals should be adopted. (17 Ill. App.3d 253.) We granted the defendants' petition for leave to appeal.

The Boards of Education of District Nos. 227 and 159 appeared before the zoning board of appeals and, over objection of plaintiffs, were granted leave by the trial court to intervene in this judicial proceeding. Without objection, the Illinois Tool Works, Inc., an adjoining property owner on the west, was allowed to intervene.

The defendants contend that the appellate court ignored the legal precedents which are applicable when the validity of a zoning ordinance is challenged, as applied to a particular piece of property, and that the appellate court, in effect, overruled the trial court judgment even though it was not contrary to the manifest weight of the evidence. We will consider and further comment on these contentions, but first we will consider the law applicable to this case.

The zoning ordinance of defendant Cook County is presumed valid, and plaintiffs carry the burden of establishing that the existing classification is unreasonable and oppressive as applied to their land. (Camboni's, Inc. v. County of Du Page (1963), 26 Ill.2d 427, 432.) The plaintiffs must establish by clear and convincing evidence that the existing ordinance, as applied to their property, is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare. (Bennett v. City of Chicago (1962), 24 Ill.2d 270, 273-274.) Specifically, when plaintiffs have been denied the issuance of a special use permit, as sought in this case, they carry the burden of showing that such denial bears no real and substantial relation to the public health, safety, morals or general welfare. Pioneer Trust & Savings Bank v. McHenry County (1968), 41 Ill.2d 77, 84.

The general factors considered in arriving at this determination include the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property's value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses. (Tillitson v. City of Urbana (1963), 29 Ill.2d 22, 27; La Salle National Bank of Chicago v. Cook County (1957), 12 Ill.2d 40, 47.) Ultimately if it clearly appears that the relative gain to the public is small when compared with the hardship imposed upon the property owner by the zoning restriction, there is then no valid basis for the exercise of the police power to so limit the owner's right to the use of his property. Pioneer Trust & Savings Bank v. McHenry County (1968), 41 Ill.2d 77, 85; Marquette National Bank v. Cook County (1962), 24 Ill.2d 497, 502.

Without detailing the evidence which is partially set forth in the appellate court opinion (17 Ill. App.3d 253), the premises in question are bounded on the north and south by railroads, on the west by general manufacturing, and on the east by a 4-lane highway. The next nearest residential development is approximately one-half mile to the west. The land is presently being used as farmland. Slightly over 15% of the acreage is within the flood plain and cannot be developed.

It is a fair conclusion from all of the evidence that the land cannot reasonably be developed under its present R3 zoning. While some witnesses felt the highest and best use of the land was for development as a mobile-home park and others felt it was for industrial use, they readily concurred in the view that the present R3 single-family zoning would not permit economical residential development.

While the witnesses differed in their conclusions to some extent, we believe the appellate court correct in concluding that the proposed zoning would not unduly adversely affect surrounding properties. While much of the land is zoned R3 in the area, little is being developed. The manager of the adjoining manufacturing use testified that the proposed development would depreciate the value of its property. He also testified that they would not wish to locate their plant next to a school, a shopping center, or certain types of industrial developments. Other witnesses, plaintiffs' and defendants', testified that the proposed development would not have an adverse effect on the adjoining manufacturing property. The worst that could be said was that the proposed development might cause a "wait and see" attitude for the development of other lands located close by, lands which were not being developed anyway. Opinions customarily differ in a zoning case. This, however, does not necessarily mean that plaintiffs have failed in their burden of proof. Myers v. City of Elmhurst (1958), 12 Ill.2d 537, 544; La Salle National Bank of Chicago v. Cook County (1957), 12 Ill.2d 40, 47.

The testimony suggested that farmland in the area was being sold for a minimum of $4,000 per acre. The premises in question had been listed for sale for approximately a year. The only offer was by plaintiff Duggan, and said offer was contingent upon the zoning in question. It seems clear to us that by reason of: the immediately surrounding uses; the substantial portion of the land within the flood plain; the absence of sewer or water; and the general conclusions that the land could not be ...


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