APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 6, 1977.
This appeal involves the propriety of the zoning classification of certain property located in Lisle Township within the County of Du Page. On May 18, 1970, a petition was filed with the Du Page County Zoning Board of Appeals requesting that a special use permit be granted for a planned unit development (hereinafter referred to as PUD) on the property in question. The property consists of three parcels which would be contiguous except for the intervention of two roadways. In the proceedings before the circuit court the parcels were designated A, B and C and for the purpose of this appeal we will use the same designations in discussing the property. Parcel A lies directly north of Hobson Road; Parcel B lies between Hobson Road and 75th Street with its eastern boundary being Greene Road; Parcel C is south of 75th Street. Thereafter the Forest Preserve District condemned a portion of Parcel C and the petition was amended. As amended, the total acreage involved in the PUD was to be 235 acres. After a public hearing the Du Page County Zoning Board of Appeals recommended that the special use permit be granted for Parcel A but denied for Parcels B and C. On April 24, 1971, the Du Page County Board of Supervisors granted the requested special use permit for Parcel A. Apparently nothing was done at that time with regard to Parcels B and C. On December 24, 1974, the County Board passed a motion concurring in the recommendation of the Zoning Board of Appeals that the application for a special use permit on Parcels B and C be denied. Thereafter plaintiffs instituted this action, seeking a declaratory judgment that the zoning was unconstitutional as applied to their property or, in the alternative, that the action of the County Board in approving a portion of the requested special use and denying the remainder of it be declared arbitrary and capricious. After trial the circuit court found that the zoning classification was arbitrary, unreasonable and void as applied to Parcels B and C and that plaintiffs might construct their proposed PUD on this property. The County has appealed.
Although technically this appeal involves only the classification of Parcels B and C, we will begin our description of this property and the surrounding uses with Parcel A. Parcel A is generally rectangular in shape, with the south, short side of the rectangle bordering on Hobson Road. To the west of this property is an area of single-family homes located on lots approximately 2 1/2 acres in size. To the north of Parcel A is a large area of 1800 acres which has been approved for a PUD, portions of which are within the County and other portions within the Village of Lisle. The record contains contradictory statements as to whether this approved PUD directly adjoins Parcel A or not. To the east of Parcel A there is a special use approved for the removal of sand and gravel. Hobson Road, a two-lane road with a 100-foot right-of-way, forms the southern boundary of Parcel A.
Almost immediately south of Parcel A is Parcel D, another generally rectangular piece of property which is currently zoned in an R-1 classification which permits only the development of single-family homes on lots of 2 1/2 acres or more. To the west of Parcel B is an area of single-family homes on 2 1/2 acre lots known as Thistle Creek. The northern boundary of Parcel B is, of course, Hobson Road. The eastern boundary is Greene Road and on the other side of Greene Road is the Green Valley Forest Preserve. The southern boundary of Parcel B is 75th Street.
Again south of Parcel B is Parcel C, which is roughly triangular in shape. The northern side of the triangle is 75th Street. Adjoining Parcel C on the east and south is a continuation of the Green Valley Forest Preserve. The southern boundary of Parcel C is marked by the high power electrical lines of Commonwealth Edison Company. To the west of Parcel C are two farms and directly west of those is a PUD approved by the City of Naperville which is referred to as the Larwin Development. Parcel C is currently zoned R-2 which permits single-family dwellings on lots with a minimum area of 12,000 square feet.
On these three parcels plaintiffs propose to develop a single integrated PUD with connecting streets and facilities designed for use by residents of all three parcels. Attention was given to preserving the natural amenities of the property, such as streams and trees. The buildings are to be so placed that there will be a mix of single-family and multiple-family units as well as a commercial area and recreation sites. Parcel A, which was approved by the County Board, is to be developed with 100 single-family dwellings and approximately 672 multiple-family dwellings. The overall population density is to be 8.68 dwelling units per acre. Also included in Parcel A is 9 acres dedicated for use as a public school, which would serve all residents of the PUD. Parcel B has a planned density of 6.82 dwelling units per acre with 147 of these units being single-family homes and 455 multiple-family units. The single family homes are planned to be distributed mostly along the western edge of the property, which also contains an area of well-established woods. A 4.5-acre portion of Parcel B is to be used for commercial development. In addition, there will be a large baseball field and recreation area, including a clubhouse and swimming pool located on Parcel B. Parcel C is to have an overall density of 5.8 dwelling units per acre composed of 121 single-family dwellings and 258 multiple-family dwellings. Provisions were made for equestrian trails throughout the development, which would allow persons from all parcels to eventually reach the forest preserve area adjoining Parcel C.
Although conflicts in testimony concerning most matters of importance in determining the constitutionality of a zoning classification are to be expected, one thing upon which all witnesses in this lawsuit seem to agree is that the current zoning classifications of Parcels B and C diminish the value of that property. The witnesses disagree, however, with respect to the extent of the difference in value between the property as presently zoned and as proposed. The witnesses for the plaintiff put the depreciatory effect of the current zoning at between $2,900,000 and $3,275,000. The real estate expert who testified for the County was of the opinion that the depreciatory effect was only $700,000 or, if discount factors were applied, that the difference would be reduced to only $144,000. The plaintiffs' witnesses were also of the opinion that the change in zoning of Parcel A did not significantly increase the value of it because there was no change in the zoning of Parcels B and C, which were also proposed to be incorporated in the PUD. The County's witness was of the opinion that the value of Parcel A was increased by the change in zoning which was granted and that the value of it remained the same, regardless of the zoning classifications of Parcels B and C.
Another point upon which the witnesses seem to agree is that the property in question is physically suitable for development, either under the current zoning as large acreage homesites or as petitioners have proposed in the PUD. Public water supply and sanitary sewer service are both available for the subject property.
The plaintiffs' experts were of the opinion that the highest and best use of the property would be for the proposed PUD on all three parcels. They were also of the opinion that although it would be physically possible to develop Parcel A with the approved portion of the PUD, that it would not be economically and practically feasible to do so. Plaintiffs' witnesses further testified that the trend of development in the area is compatible with the proposed PUD. In the area north of Hobson Road, including Parcel A, there are a number of other PUDs already approved by either the County or the adjoining municipalities. Likewise, there is a PUD located approximately 2,000 feet to the west of Parcel C with the only intervening use being two farms. One of the major factors in explaining this trend of development was the fact that in the last several years the County had developed and now had sewerage treatment facilities available to serve these areas. Plaintiffs' witnesses testified there was a demand for 2 1/2-acre homesites but that it was much less than for the proposed PUD. The witnesses for the County were, however, of the opinion that the highest and best use of the property in question would be under the existing zoning, providing for single-family homes. They testified that there was a demand for 2 1/2-acre homesites in the area and were further of the opinion that there was a greater demand for this type of use than for the uses proposed by plaintiffs. This testimony was, in part, based upon the fact that there is already a considerable amount of property in the area that has been zoned for PUDs which would provide a combination of apartment type uses as well as single-family homes on smaller lots. Despite his testimony as to demand for 2 1/2-acre homesites, the County's real estate expert admitted that he had sold only 7-8 such estates in the past 6 1/2 years. The beneficial owner of the property testified that since 1971 he had attempted, without success, to sell Parcels B and C as currently zoned for single-family homes.
The various witnesses called to testify disagreed concerning the effect which the proposed development would have upon the adjoining properties, principally the 2 1/2-acre estates adjoining Parcel B. Plaintiffs' witnesses testified that the proposed development would not diminish the value of the adjoining estates at all. They noted that the Thistle Creek area is well established and basically a neighborhood of its own. Along the western border of Parcel B there is a substantial wooded area which would be supplemented by further planting. In addition, the estates, numbering approximately seven, which adjoin Parcel B also contain woods on those portions directly adjoining Parcel B. Under the proposed plan of development, the land closest to the homes in Thistle Creek was to contain single-family homes rather than a multiple-family area. Two residents of Thistle Creek testified for the County that in their opinion the proposed development would depreciate the value of their homes. The appraiser who testified for the County was also of the opinion that the proposed development could depreciate the properties in the surrounding area between 10 and 20%. He admitted on cross-examination, however, that he was hired only six days before he testified, that he had not inspected any of the interiors of the residences in the Thistle Creek development, and that he did not have any sales data involving homes in that area. He did not explain why he apparently felt that all homes in the area would depreciate in value even though some of them are located a considerable distance from the proposed use on Parcel B.
The two homeowners who testified for the County were also of the opinion that the proposed development would increase both drainage and traffic problems which already affected the area. With regard to the drainage problems, it is clear from the testimony of both homeowners that whatever the problems are that they are currently existing and have been for several years, even though Parcel B is currently undeveloped. The testimony further indicates that the pattern of drainage in the area is from west to east so that the properties in Thistle Creek have a higher elevation than Parcel B. Neither of the neighbors was familiar with provisions made for drainage in the proposed development of Parcel B. The County presented no other witnesses who testified to any problems with regard to drainage in the area.
With respect to traffic problems to be generated by the proposed PUD, the County also presented the testimony of a civil engineer employed by the County Highway Department. He had made traffic studies on Hobson Road, Greene Road and 75th Street and testified that the proposed development would substantially increase the traffic on all of these roads. In his opinion the proposed development would shorten the lifespan of the roads involved and would require that the surface of Greene Road be substantially changed and upgraded. He stated that the increase in the volume of traffic on Hobson Road would probably not require that it be converted from a two-lane highway to a four-lane highway. In his opinion, however, traffic signals would be necessary at either two or three points on Hobson Road, partly because children would have to cross Hobson Road from Parcel B in order to attend the school which would be located in Parcel A. In his opinion traffic signals would also be necessary at two places on 75th Street. He noted that 75th Street would have to be widened from a two-lane to a four-lane road to accommodate traffic from the development, but also admitted that the County already had plans to widen 75th Street to four lanes without regard to this particular development. He further testified that the development would cause a six-fold increase in the traffic accident rate on both Hobson Road and 75th Street if they were left as two-lane roads. At another point in his testimony, however, the witness indicated that there would be an increase in the traffic accident rate if the signalization were not properly done. He also testified that if Parcels B and C were developed as currently zoned, the present roads in the area would not be adequate. On cross-examination he admitted that he did not know that the County had already approved the PUD on Parcel A. It is not clear, therefore, whether his testimony with regard to the increase in the volume of traffic on Hobson Road reflects merely the increase to be generated by Parcel B alone or whether this includes the vehicles from both Parcels A and B. On cross-examination the planning and zoning expert called by plaintiffs testified that in his opinion the proposed development would not create a need for traffic lights on Hobson Road, but he admitted that he had not made any traffic counts on the roads in question.
• 1, 2 There is, of course, a presumption in favor of the validity of a zoning ordinance and the party attacking it must prove by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. (See, e.g., Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 354 N.E.2d 899; La Salle National Bank v. City of Evanston (1974), 57 Ill.2d 415, 312 N.E.2d 625.) The factors to be considered in determining the validity of a zoning ordinance are well established and we will not lengthen this opinion by repeating them here. (See, e.g., Duggan v. County of Cook (1975), 60 Ill.2d 107, 324 N.E.2d 406; La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 145 N.E.2d 65.) It is also clear that when it is shown that there is no reasonable basis in the public welfare which requires the limitation imposed and the resulting loss to the property owner, the ordinance falls and the presumption of validity is dissipated. (La Salle National Bank v. County of Cook; Aurora National Bank v. City of Aurora (1976), 41 Ill. App.3d 239, 353 N.E.2d 61.) Although the legislative determination is conclusive if there is room for a difference of opinion as to the reasonableness of the zoning classification, mere differences of opinion do not require that the court find that the reasonableness of the ordinance is debatable and uphold it. (Aurora National Bank v. City of Aurora.) In a trial without a jury the trial court is in a ...