APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiffs in this case are Elmhurst National Bank, contract seller of the land in question, and Edward Hines Lumber Company, contract purchaser of the land. The purchase agreement was subject to the defendant's permitting the buyer to use the tract for a building-materials supply yard. Plaintiffs attempted to have the tract's existing "R-2 single family resident district" zoning amended to "M-1, light industrial district," but the amendment was rejected by the defendant.
Defendant appeals from an order of the circuit court declaring the "R-2 single family resident district" zoning ordinance void as to plaintiffs' property. The order was pursuant to the court's declaratory judgment in favor of the plaintiffs, holding that the defendant village's R-2 zoning classification is unreasonable, arbitrary, capricious, and confiscatory as applied to the plaintiffs' property.
This raises the following questions: (1) did the trial court properly hold the defendant's zoning ordinance invalid as applied to the plaintiffs' property; (2) was the trial court's order valid in that it purports to allow plaintiffs to stack lumber to a height of 18 feet, although a variance for this purpose would have been required even under the light industrial zoning urged by plaintiffs; (3) was the testimony of plaintiffs' expert witnesses properly admitted; and (4) was Edward Hines Lumber Company, as contract purchaser of the property in question, a proper party to the suit?
The tract in question forms an inverted right triangle of about 5 acres in area with its hypotenuse running northwest-southeast along a railway right-of-way; its north and east sides, which meet at a right angle, coincide with the northeastern corporate limits of defendant. The eastern boundary coincides also with Villa Avenue, which is a main north-south road. A small tract of land, at the northwest tip of the triangle is zoned R-2. This parcel and plaintiffs' tract are the only properties within defendants' limits immediately north of the railroad tracks, not zoned for industrial use.
The property along the railroad tracks to the north and the west of plaintiffs' property is zoned light industrial; a large beer distributorship warehouse (400 feet from defendants' property) and a fairly recently constructed chemical plant are located thereon. Somewhat further to the northwest is a recently established bus company. The area directly north and northeast of plaintiffs' property, outside the village limits, is an unincorporated portion of Du Page County. There are several single-family residences along this northern boundary, and one block further north at the intersection of Hill and Villa Avenue there is a multiple-unit dwelling. The record reveals that one block still further north are numerous commercially zoned properties. Directly to the east of plaintiffs' property, across Villa Avenue (and thus in an unincorporated portion of Du Page County) is a tract zoned industrial which is used for stone quarry operations.
A 7-acre area to the southeast of plaintiffs' property, across the railroad tracks from it and within the defendant's limits, is zoned for industrial use. The property to the south and southeast of plaintiffs' tract, across the railroad right of way, is zoned single-family residential.
Defendant claims that the evidence presented did not establish that the existing residential zoning was arbitrary, unreasonable, capricious, or confiscatory with regard to plaintiffs' property. It asserts that even if the evidence did establish a legitimate difference of opinion as to the reasonableness of the zoning classification for that tract, there is nevertheless a presumption in favor of the validity of a zoning ordinance; that to overcome this presumption, the adverse evidence must clearly and convincingly show that the ordinance is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare.
• 1 These familiar principles of zoning law to which defendant refers were acknowledged in Kellett v. County of Du Page, 89 Ill. App.2d 437, 442 (1967), and in Jackson v. County of Du Page, 10 Ill. App.3d 497, 499 (1973), and recently reaffirmed by our supreme court in La Salle National Bank v. City of Evanston, 57 Ill.2d 415, 428 (1974). An additional legal guideline, long established in the reviewing courts of Illinois, is the validity of each zoning ordinance must be determined on its own facts and circumstances. La Salle National Bank v. County of Cook, 12 Ill.2d 40, 46 (1957); Stalzer v. Village of Matteson, 14 Ill. App.3d 891, 901 (1973).
• 2 Among the factors to be considered when determining the validity of an ordinance are those enumerated in La Salle National Bank v. County of Cook, 12 Ill.2d 40, 46-47: "(1) The existing uses and zoning of nearby property, (2) the extent to which property values are diminished by the particular zoning restrictions, [citations] (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public, [citations] (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, [citation] (5) the suitability of the subject property for the zoned purposes, * * * (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. [Citations.]" Although no one factor is controlling (La Salle National Bank v. County of Cook, 12 Ill.2d 40, 47), existing uses and zoning classifications of nearby property are of paramount importance. Ryan v. City of Elmhurst, 28 Ill.2d 196, 198 (1963); Kellett v. County of Du Page, 89 Ill. App.2d 437, 443.
• 3 With the above principles of zoning law in mind, we have reviewed the evidence presented and conclude that the plaintiffs overcame the presumption of validity for the zoning ordinance by clear and convincing evidence.
Plaintiffs' evidence established that the property in question had upon it an old abandoned house and several out-buildings, all of which had fallen into disrepair, and that the area had been used as a site for dumping refuse. It also established that within the past 10 years, defendant has passed at least seven separate zoning ordinances changing the zoning on various parcels of property, in the same area as the subject property, from residential to industrial use and that in the past 5 or 6 years, only one single-family residence has been built in the area.
Each of the plaintiffs' three expert witnesses testified that the highest and best use of the subject property was not as zoned, but rather M-1, or industrial. They agreed that the value of the property as zoned is only 20% of its value under the proposed use; that its development for single-family residences is economically unfeasible because of the surrounding industrial uses, and because the triangular shape of the tract, bounded by the railroad, necessitates cutting it into only 7 lots with a cul-de-sac access leading in from Villa Avenue, whereas a rectangular tract of the same area would yield 15 building lots; and that such arrangement was rendered even less desirable because the houses on the cul-de-sac would face the piles of gravel and mining equipment across Villa Avenue to the east. Each testified to the strong recent trend towards industrial zoning in the area. Pointed out were similarities between the subject property and another triangular property northwest tip of which is contiguous with the southeast tip of the subject property: both properties are within the village limits; each comprises a triangle of roughly 6 acres; each has a railroad siding and fronts on Villa Avenue; comparable public utilities are available to each. But unlike the subject property, this other triangle is zoned industrial.
Plaintiffs' witnesses also established that the value of the small landlocked parcel immediately to the west of the subject property would be enhanced, presumably because it too would likely be rezoned for industrial use if plaintiffs' proposed use were to be permitted. Two of plaintiffs' expert witnesses were of the opinion that the proposed use would have no detrimental effect on the residential property to the south and only a "very minimal" detrimental effect on those properties to the north. Plaintiffs third expert witness was of the opinion that there would be no detrimental effect on those properties to the south because they are effectively buffered by the railroad tracks; that the properties to the north would not be any further depreciated in view of the "many, many other [industrial] uses" in the area; and that the depth of the lots to the north would permit, by appropriate plant or ...