APPEAL from the Circuit Court of Peoria County; the Hon. JOHN
E. RICHARDS, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment in favor of the defendant (called County or defendant) entered by the circuit court of Peoria County, Illinois. The case was tried by the court without a jury. Appellants were plaintiffs below (called plaintiffs) and this is an action for judgment declaring a section of the Peoria County Zoning Ordinance unconstitutional as applied to plaintiffs' property.
The plaintiffs, Edna and Harry Taylor, are the owners of 28.195 acres of real estate located in Peoria County. The remaining plaintiffs are optionees of the land in question. The option is contingent upon the use of the foregoing property as a mobile home park and the amount that will be realized by the Taylors if the option is exercised will be substantially more than the fair market value under present restrictions.
The subject real estate is classified as A-Agricultural under the Peoria County Zoning Ordinance. Plaintiffs' intended use is for a mobile home park as a "special use" under the ordinance which provides:
"Special uses are hereby defined to be those uses in the various zoning districts which, because of their unique characteristics, cannot be properly classified in any particular district without special hearings before the Zoning Board for additional consideration of each case to determine the impact of that use upon neighboring land and to determine the desirability for the public welfare of that use in the particular location."
The ordinance further provides that "special uses" are only authorized "after the findings of fact and recommendations of the Zoning Board have been adopted by the County Board." Section 30-21(c) of the ordinance prescribes criteria and declares that "No special use shall be recommended by the Zoning Board unless it shall find," inter alia:
"1. That the Mobile Home Park will not be detrimental to public health, safety, morals, comfort or welfare and will not be injurious to the enjoyment and value of surrounding properties.
2. That the foregoing use will not impede development of surrounding property and that adequate utilities, roads, drainage and means of ingress and egress will be provided."
The plaintiffs applied for use of the property as a mobile home park under the foregoing ordinance. Earlier they had obtained an agreement from the village of Brimfield concerning their intended use of the property. The agreement contemplates the annexation of the property to the village and requests the reclassification of the property by the County Board for use as a mobile home park.
The property consists of 28.22 acres and lies nine-tenths of a mile east of Brimfield, Illinois. There are only two or three residents within a radius of 1 mile the closest being one-half mile away. To the south and southwest is a 7-acre mobile home park and a sewage disposal lagoon for the city of Brimfield. The lagoon is 8 to 10 acres in size. The other surrounding property consists of Interstate 74 and commercially zoned land either used, or intended for use, as gasoline service stations and restaurants. Tax impact and use feasibility studies were admitted into evidence without objection.
The plaintiffs filed a petition for a special use permit pursuant to the special use ordinance of Peoria County in order to construct and operate a mobile home park on their land. After an extensive hearing concerning the merits of the petition, the Peoria County Zoning Board of Appeals recommended denial of the petition for a special use, making special findings as to why it made this recommendation. Pursuant to this recommendation, the County Board denied the petition for a special use permit. The plaintiffs then brought this declaratory judgment action seeking to have the zoning ordinance as applied to their property and its proposed use declared unconstitutional. The trial court upheld the validity of the ordinance and it is from such judgment that this appeal follows.
• 1, 2 The parties are in general agreement concerning the applicable principles. A zoning ordinance in its application is a legislative function and courts are not concerned with the wisdom of the legislative action or inaction. (Urban v. Madison County Building & Zoning Department, 8 Ill. App.3d 775, 290 N.E.2d 324.) The constitutionality of a statute or its application by a governmental body is presumed valid, unless shown by its challengers to be unconstitutional through clear and convincing evidence. (Hedrich v. Kane County, 117 Ill. App.2d 169, 253 N.E.2d 566.) If the reasonableness of the zoning ordinance or its application presents a fairly debatable question, then the court cannot interfere with the legislative judgment. Urban v. Madison County Building & Zoning Department, 8 Ill. App.3d 775, 290 N.E.2d 324.
On the other hand, the standard is that the denial of a special use permit must bear a real and substantial relation to the public health, safety, morals or general welfare. (Pioneer Trust & Savings Bank v. County of McHenry, 41 Ill.2d 77, 241 N.E.2d 454.) The criteria to be considered in determining whether the applicable restrictions of a zoning ordinance bear a reasonable relationship to the public welfare or are arbitrary and unreasonable have been set forth at length in such cases as Hartung v. Village of Skokie, 22 Ill.2d 485, 177 N.E.2d 328. In the instant case there is little dispute concerning the reasonable inferences to be drawn from the facts and with the exception of the testimony of Donald Irving and Carl Jensen, presented by the defendant, all of such factors support the propriety of the use of the premises sought by the plaintiffs.
At the hearings before the County Board of Zoning Appeals a letter from Donald Irving, executive director of the Tri-County Planning Commission, was received and considered by the Board. According to the letter the proposed use as a mobile home park was unacceptable and several reasons were suggested in support of the conclusion. At the hearing before the circuit court of ...