APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Jack and Diana Hoffarth, filed an amended complaint in the circuit court of St. Clair County seeking a declaratory judgment against the defendant, the County of St. Clair. Following a bench trial, the trial court granted the relief sought by plaintiffs, holding a zoning ordinance invalid as applied to plaintiffs' property, from which judgment defendant appeals.
In 1969, defendant enacted a zoning ordinance establishing various zoning districts and setting forth the intent and purpose of such districts. Provisions were made for use variances and special permits. The ordinance also provided for the continuation of certain nonconforming uses under specified conditions and it restricted extensions of such nonconforming uses.
At the time of the enactment of the ordinance, plaintiffs were owners of a certain tract of land, on a portion of which they conducted a business consisting of a retail archery shop and an outdoor archery range. Plaintiffs' property was situated within a district zoned "A" agricultural, hence making their business a nonconforming use. It is undisputed that under the ordinance, plaintiffs may continue their nonconforming use as it existed in 1969.
In 1972, plaintiffs applied for and were granted a building permit for the construction of a new structure on their property to be used in addition to the original buildings. In June 1972, plaintiffs applied for a certificate of zoning compliance, stating that the new structure would be used as a garage and storage shed. On June 27, 1972, a temporary certificate of zoning compliance was issued. On February 12, 1973, plaintiffs again applied for a certificate of zoning compliance stating in their application that the new structure would be used as a retail archery shop and range. A public hearing on the application was held by the St. Clair County Zoning Board of Appeals. A transcript of the hearing was stipulated into evidence at trial in the instant case. The Zoning Board of Appeals issued an advisory report recommending that the plaintiffs' application be approved and that a use variance be granted to plaintiffs. Thereafter, the County Board of St. Clair County rejected the findings and recommendations of the Zoning Board of Appeals and adopted a resolution denying plaintiffs a use variance. Plaintiffs then brought the instant action for a declaratory judgment.
The complaint filed by the plaintiffs alleged that they were legally entitled to a use variance permitting a relocation of their nonconforming use to a new structure and that the County Board's denial thereof was invalid and bore no reasonable relation to the public health, safety, comfort, morals or welfare. At the conclusion of the trial the parties agreed to submit the case to the court on memoranda of law. The issue raised in those memoranda and decided by the court and which is now raised on appeal, revolves around whether plaintiffs' proposed relocation of part of their nonconforming use into the new structure is actually an extension of the nonconforming use which violates the zoning ordinance's prohibition of such extensions. The trial court found no valid basis to limit plaintiffs' requested relocation.
On appeal, defendant contends that the trial court erred in ruling that the zoning ordinance, as applied to plaintiffs' property, was invalid.
The evidence shows that in 1969 plaintiffs' nonconforming use consisted of a retail archery shop contained in a small shed, and an outdoor archery range which members of the public could use for a fee. Since 1969, the volume of business conducted on plaintiffs' property has increased. The "relocation" of their nonconforming use that plaintiffs propose entails the use of a portion of the new structure built on their property as a retail archery shop in addition to the original shed, and the use of the remaining portion of the structure as an indoor archery range in addition to the original outdoor range.
It is clear that plaintiffs propose to employ their new structure not merely to relocate their nonconforming use from one portion of their property to another but also to expand and extend their nonconforming use in size, volume and versatility. The new archery shop permits plaintiffs to offer a greater number of goods and services to be sold to a larger public. Moreover, the indoor range allows practice of the sport by the public during all seasons of the year. Therefore there can be no doubt that we here deal with an "extension" of plaintiffs' nonconforming use.
• 1, 2 While the general scheme of zoning may be valid, when applied to a particular piece of property and a particular set of facts and circumstances it may be so arbitrary and unreasonable as to be void. (Schlueter v. County of St. Clair, 19 Ill. App.3d 470, 311 N.E.2d 735.) In considering a challenge to the validity of a zoning ordinance as applied to a particular piece of property, our Supreme Court in Duggan v. County of Cook, 60 Ill.2d 107, 324 N.E.2d 406, established the following guiding principles:
"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. [Citation.] 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. [Citation.]
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. [Citations.] 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. [Citations.]" 60 Ill.2d 107, 111-12.
As noted, plaintiffs' property falls within a district zoned "A" agricultural under section 2.07 of the St. Clair County Zoning Ordinances which provides:
"The `A' Agricultural District of St. Clair County encompasses areas where soil, water, vegetal and topographical resources generally provide conditions well suited to the raising of crops and domestic animals. The District is designed to prevent the intrusion of non-agricultural pursuits by reason of congestion on public roads, chemical and biological pollution of air and water environmental conditions, soil erosion, and ...