APPEAL from the Circuit Court of Peoria County; the Hon. JAMES
A. HEIPLE, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This appeal is from the judgment of the circuit court of Peoria County, ordering the temporary restraining order entered in favor of plaintiff, City of Chillicothe, be dissolved and denying plaintiff's request for a permanent injunction. The court also fined defendants $50 for undertaking certain building activity in violation of the court's temporary restraining order.
The underlying action was brought by plaintiff-appellant, City of Chillicothe, to enjoin the alleged violation of plaintiff's zoning ordinance by defendants, Joseph M. Stoecker and Marilyn E. Stoecker, following defendants' partial construction of a building without the required building permits. The trial court found the applicable zoning ordinance was unconstitutional as applied to the property of defendants for the reason that as applied it resulted in a deprivation of property without due process of law and condemnation without compensation. The court's reasoning was that the city of Chillicothe had in effect said "* * * the only thing you can do with this lot is to use it for residential purposes, but it's too small and we are not going to allow you to build a residence on it."
We note at the outset appellees, Joseph and Marilyn Stoecker, have failed to file briefs in this appeal. However, the simplicity of the record and the nature of the alleged error permit us to decide the merits of the case without the aid of an appellees' brief. (First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493.) Defendant did have trial counsel.
The only issue on this appeal is whether the application of the single-family residential zoning (R-I) ordinance requiring a 60-foot lot with a 7500 minimum square footage and a 25-foot setback, constituted an unconstitutional taking of property without just compensation. Prior to November 1968, the subdivision in which this lot is located was platted within the village limits of the village of North Chillicothe. All the lots so platted were 25 feet wide. On November 8, 1968, plaintiff annexed the village of North Chillicothe, and thus rendered the subdivision subject to the R-I zoning requirements. On November 1, 1976, defendants purchased the lot in question for $1500. This lot is only 25 feet wide and contains 3550 square feet and was vacant at the time of the purchase. On November 26, 1976, defendants applied for a building permit to enable them to construct a single-family dwelling on this lot. On the reverse side of the application for the building permit, defendants indicated the proposed distance between the building and the street was 7 feet. On December 2, 1976, the zoning officer for the City of Chillicothe denied the application and noted the lot contained less than 7500 square feet, was less than 60 feet wide, and had an insufficient setback from the street bordering the property. Defendants at no time have ever received a building permit, a variance, a certificate of occupancy, or a certificate of completion with regard to this lot. Toward the end of March 1977, defendants started construction. On April 23, 1977, the city of Chillicothe filed a complaint to enjoin the construction and to require defendants to remove the structure under construction on the grounds that defendants were in violation of the zoning ordinance. On plaintiff's motion, a temporary restraining order was issued on April 26, 1976, requiring defendants to cease construction on the premises. This order was in continuing force and effect until August 22, 1977, at which time the court entered its order dissolving the injunction and finding the ordinance unconstitutional as applied. The court also, as noted above, fined defendants for violating the temporary restraining order.
Plaintiff presented evidence regarding the character of the neighborhood. Both a city zoning officer and the mayor, who was a former councilman, testified no building permit had ever been issued for lots containing only a 25-foot frontage. A police officer familiar with the neighborhood testified there were only eight homes on the same side of the block where defendants' home is located, and only five homes immediately across the street. A plat of this area shows 17 lots each on defendants' side of the street and across the street. The police officer testified this pattern was prevalent in the area. Defendants testifed a neighbor had been issued a building permit, but no such permit was ever offered or received into evidence, nor was the alleged recipient called as a witness.
• 1 Ordinances are presumptively valid and the burden of proving otherwise rests on the party attacking the ordinance. (Tomasek v. City of Des Plaines, 64 Ill.2d 172, 354 N.E.2d 899; City of Evanston v. Ridgeview House, 64 Ill.2d 40, 349 N.E.2d 399.) The party attacking an ordinance must establish by clear and convincing evidence that the ordinance, as applied to them, is arbitrary, unreasonable, and has no substantial relation to the public health, safety, or welfare. If this question is fairly debatable, then the legislative judgment of the municipality must be upheld. (Grobman v. City of Des Plaines, 59 Ill.2d 588, 322 N.E.2d 443, Exchange National Bank v. County of Cook, 25 Ill.2d 434, 185 N.E.2d 250, and Jacobson v. City of Evanston, 10 Ill.2d 61, 139 N.E.2d 205.) We also note that in general minimum lot restrictions are permissible. Galpin v. Village of River Forest, 26 Ill.2d 515, 187 N.E.2d 233, and Reitman v. Village of River Forest, 9 Ill.2d 448, 137 N.E.2d 801.
In Reitman v. Village of River Forest, 9 Ill.2d 448, 452, 137 N.E.2d 801, 803, the court stated "[t]o sustain the judgment plaintiffs merely assert their conclusion that `refusal to issue the requested building permit makes plaintiffs' property utterly worthless.' No attempt is made to show an absence of any relationship to public health, safety or welfare; nor do plaintiffs point to any evidence of the extent to which the market value of the lot is impaired. They rely solely upon the inference that `if it cannot be utilized for the erection of a home, then it has no value.' This, we think, is not enough to sustain the burden of proof resting on one who assails the validity of an ordinance. To overcome the presumption of validity, it is encumbent [sic] upon the property owner to prove by clear and affirmative evidence that the restriction is arbitrary and unreasonable."
• 2 An examination of the record on this appeal shows, among other things, that the plat of this addition showed there were 17 lots on the side of the street where defendants' lot was located, and 17 lots across the street. Since there were eight homes on one side of the street and five on the other, the average home on that block was constructed on more than two lots. The mayor testified zoning requirements were necessary to protect the values of property in the neighborhood, and the mayor further testified he was concerned the action taken by these defendants might open the door to a dangerous precedent. After a careful examination of the entire record, we hold the evidence fails to show by clear and convincing evidence that the zoning ordinance as applied did not bear any substantial relation to the public health, safety or welfare. Accordingly, the ordinance as applied is not unconstitutional.
• 3 One other contention which we attribute to defendants on this appeal is that the damage suffered by them would serve to estop the city from applying the zoning ordinance here. We note the zoning ordinance was enacted in 1960 and the village of North Chillicothe was annexed, and therefore brought subject to this ordinance in 1968. The defendants bought the property in November of 1976 and continued to build in violation of the temporary restraining order, and without any building permit. Accordingly, we hold any damage suffered by defendants was a result of their own actions, and would not serve to estop the city from applying the zoning ordinance.
For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed and remanded with directions to proceed in accordance with the views expressed herein.
Reversed and remanded with directions.