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Parkway Bk. & T. Co. v. County of Lake

OPINION FILED MARCH 20, 1979.

PARKWAY BANK AND TRUST COMPANY, TRUSTEE, ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF LAKE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 23, 1979.

The County of Lake appeals from the decision of the trial court in an action for declaratory judgment wherein the trial court declared the present zoning of the subject property to be "arbitrary, unreasonable and unconstitutional insofar as it prevents the plaintiffs from developing the subject property for a limited industrial park * * *" and enjoined the enforcement of the zoning restriction as to the plaintiffs' property.

The property in question consists of approximately 149 acres in Libertyville Township in Lake County. It is irregular in shape and is bounded on the west by the Illinois Tollway (I-94), on the north by State Route 176, on the east by the Village of Lake Forest and on the south by State Route 60. As can be seen from the zoning map of Libertyville Township, the land in question is zoned residential and is surrounded by residentially zoned land, except at the north boundary, where it adjoins a light industrial area for about 200 feet. The northeastern portion of the property is bisected in a northwesterly to southeasterly direction by the Chicago, Milwaukee and St. Paul Railroad.

The land surrounding the site is zoned for estates, requiring 200,000 square feet to build on, except a small section in the northeast corner which is zoned for "suburban estates" only requiring 80,000 square feet for a single-family dwelling. The involved land is vacant except for a couple of large residences but there are other large residences within about 1000 feet to the east, Lake Forest Academy is south of the property and Forest Haven Subdivison is located immediately across the tollroad to the west. While the property at issue has remained largely vacant for sometime under its present zoning, the general neighborhood as it has been developed to date has been almost exclusively oriented toward residential use. The plaintiffs contend the present zoning — requiring mostly 5-acre lots with only a limited number of 2-acre lots available — discourages further development of the land for residential purposes.

The land in question is owned either outright or through contract of sale by Terracom Development Group, which acquired it for development to light industrial purposes. They petitioned for a change in zoning and submitted plans to the County Board of Zoning Appeals, which body recommended unanimously that the petition be denied. The County Board of Supervisors subsequently ratified this decision.

On August 11, 1976, the plaintiffs filed suit in declaratory judgment asking the circuit court to declare the present zoning unconstitutional and void so far as the involved property is concerned and praying for an injunction to restrain the County of Lake from endeavoring to enforce the existing zoning restrictions. The plaintiffs submitted evidence through its expert witnesses that the value of the subject land under the present zoning was about $5000 per acre, whereas its value if used for limited industrial site would be about $12,000 per acre.

Several witnesses testified for the plaintiffs that the land in question was not properly zoned at present and that the present "estate" zoning resulted in it merely lying vacant and that the highest and best use of the land was as a site for light or limited industry. The plaintiffs thus contend that the presumptive validity attaching to a municipal zoning ordinance has been overcome because the present zoning restrictions on the involved land are not contributing to the health, safety, convenience or general welfare of the public while at the same time such restrictions cause an economic loss to the plaintiffs. Moreover, they say the present zoning is unrealistic because the expense of improving the residential lots with water, sewer and electrical power would be more than the value of the finished homes to be erected thereon would justify. Gerald Estes, the plaintiffs' expert, testified these costs would amount to approximately $80,000 per lot. There was also testimony to the effect that the soil of a major part of the property is not suitable for individual well and septic installations and would require central water and sewer system. (They concede, however, that the water supply problem could be solved by using a central supply source nearby.)

In addition, the plaintiffs contend, the tollroad running along the western boundary of the involved land and the railroad cutting through the northeastern portion of it are negative environmental factors from a residential standpoint, whereas they are positive advantages for purposes of light industry, further demonstrating the unwisdom of the present zoning.

The trial court found the highest and best use of the land was for a limited or light industrial park, and that the present zoning was unconstitutional and granted the prayer for an injunction restraining its application to the plaintiffs' property.

In this appeal the county contends the validity of the zoning ordinance as applied to the plaintiffs' property was not overcome by clear and convincing evidence. The county points out that its zoning ordinance is clothed with a presumption of validity and will be upheld if it is found to sustain any reasonable relation to the public health, safety, convenience or welfare.

The county contends the proposed use would cause depreciation of existing residential property, create drainage problems and necessitate substantial financial outlays for road widening and improvement in the vicinity. Moreover, it would be at odds with the overall, long-range comprehensive plan of the county which has designated the particular land in question for nonintensive use, rather than the intensive use desired by the plaintiffs. Such long-range planning, the county contends, promotes the best overall use of the available land and should not be disrupted. The county also contends the proposed light industrial use is not needed and points to the area so zoned, immediately adjacent to the subject property, which is vacant and which was offered for sale to the plaintiffs and refused because the price was higher than the plaintiffs wished to pay.

The plaintiffs say that zoning laws are a restriction on the normal right of a person to do as he sees fit with the land he owns and such restrictions are valid only to the extent the public is benefited thereby; where the public health, safety, convenience and welfare are not served thereby the restriction cannot be justified. And where, such as the plaintiffs suggest here, the zoning ordinance merely hinders the individual owner without advantage to the public, the ordinance should not be enforced. This, of course, is in line with many zoning decisions. See County of Lake v. MacNeal (1962), 24 Ill.2d 253; La Salle National Bank v. City of Chicago (1977), 54 Ill. App.3d 944.

• 1 On the other hand, the burden is on the one attacking the ordinance to show that it bears no substantial relation to the public good. (Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172; Village of Cahokia v. Wright (1974), 57 Ill.2d 166, and cases cited therein.) Thus it is not sufficient for the plaintiff to show that he will be financially better off if the zoning restriction is removed. He must also show that the financial disadvantage to him is not justified by any compensating advantage to the public interest arising out of the enforcement of the ordinance ...


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