APPEAL from the Circuit Court of Kane County; the Hon. ERNEST
AKEMANN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The Aurora National Bank as trustee, as the owner of some eight acres of real estate located at the southeast corner of Sullivan Road and Illinois State Route 31 in the northern part of the City of Aurora in Kane County, in 1971 filed suit against that city, seeking declaratory and injunctive relief. After a long trial (820 pages) and a long written opinion (33 pages), the trial court in March of 1974, (1) declared the present zoning of the property (R-4, Two Family Dwelling, with a special use permit as a medical facility) null and void; (2) enjoined the enforcement of said zoning; (3) authorized the use of the premises in accordance with the provisions of B-2, Business District-General Retail, under the City's zoning ordinance; (4) enjoined any interference with such use; and (5) reserved jurisdiction to enforce said judgment.
The City appeals, contending, in substance, (1) that the evidence is not sufficient to establish that the City's present zoning is unreasonable and void as applied to the subject property; and (2) that the evidence is not sufficient to establish that all intermediate zoning categories between the present zoning and that requested by the plaintiff are unreasonable and confiscatory as applied to said property. We conclude that neither contention has merit and affirm the judgment.
The subject property which consists of 8.72 acres, is located at the southeast corner of the intersection of Sullivan Road, also known as Offutt Lane, and Illinois Route 31 in Aurora, Illinois. Route 31 is a north and south four-lane highway which runs through the city and is a main artery for traffic. It runs along the west side of the Fox River at a distance varying from a short block to as much as two blocks distant from the meandering river. A semi-improved road aptly named River Road (dead end), a seldom-used railroad track and a narrow (10 feet to 75 feet) river bank separate the east edge of the property from the river. This latter area is owned by the Fox Valley Park District. The subject property is adjacent to the north border of the city and the south border of North Aurora which adjoins Aurora on the north.
Until a few years ago, this property was used as a tuberculosis sanitarium treatment facility. For this reason, when the major part of the property was annexed by the City, it was zoned R-4 residence with a special use (the south strip of the property which remains in the county is zoned for commercial use). The property has not been used as a sanitarium since 1970 and indeed the buildings do not qualify under the present State standards for health care type facilities. Temporarily the buildings are used as a work release center for the rehabilitation of convicts.
The property directly to the south of the subject site on the east side of Route 31 is used as a retail outlet for the sale of swimming pools and recreational facilities. Along the south border of plaintiff's property is a warehouse described by the trial court as "something less than beautiful and not much better than ugly."
The property directly to the north of the subject property contains a Toyota automobile dealership and garage. The northwest corner of the intersection has since 1972 changed from a residential to a commercial use; as found by the court, the City of Aurora by certain annexations had guaranteed the eventual use of this residential property as commercial.
Across the highway directly opposite the subject property, is the Mercyville Sanitarium, a hospital and psychiatric facility.
The plaintiff introduced photographs showing the adjoining areas along Illinois Route 31 northward and southward far in excess of a mile in each direction. These pictures depict approximately two miles of commercial area uninterrupted by any new residential development and almost uninterrupted by any residential use. The residential properties are zoned business and have signs in front of them advertising forthcoming development, and some of these residences are actually used for business purposes.
On the other hand, north of the eastern part of the property, near the river is a residential area, containing about eight or ten homes. Also there is a R-1 single-family residential area on the south side of Sullivan Road past the Mercyville property to the west, but there are no homes on the property. At the west end of the Mercyville property and south of it, is mostly an exclusively residential area. This area does not, however, extend all the way to Route 31, terminating instead about a block west; the area between the residential area and Route 31 to the east is zoned B-3 and B-2.
In 1966, the City of Aurora adopted a comprehensive zoning plan. As admitted by the city planner, the decision as to how to zone the area around Route 31 was not dictated by a theory of good planning but by the actuality of existing zoning and use. Thus, the area bordering Route 31 on the west was zoned for business except for the Mercyville property which was zoned residential with a special use.
East of the highway commencing from the north edge of the old residential area, it likewise "planned" for the then existing business, commercial and industrial uses to and including the northernmost business use which was at that time the end of the city limits and the beginning of county land. The county land extended for a distance of about two blocks and was "planned" by the City for multiple-family development.
Northward of the county land was the subject property. The map as to the subject property is subject to the interpretation that it is not "planned" for at all or that it was planned for its then existing use. At any rate, it is clear that it was not planned for multiple-family development despite the defendant's claims to that effect on appeal.
Subsequent to the adoption of the comprehensive plan, the city, in direct opposition of its own plan, zoned and annexed a narrow parcel of the county land east of the highway as commercial for the convenience of one of the automobile dealerships (Dodge) thus extending northward toward the ...