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Doty v. City of Rockford

OPINION FILED JUNE 22, 1979.

GERALD R. DOTY ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF ROCKFORD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, JR., Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 18, 1979.

The city of Rockford appeals from the order of the trial court in a declaratory judgment action in which the trial court held the Rockford Zoning Ordinance to be unreasonable and void in so far as it precluded the plaintiffs from erecting and operating an office building on their property.

The plaintiffs operate a real estate agency and wish to construct an office building in which to carry on their real estate business at the site in question, which is at present occupied by an old residence the plaintiffs purchased in 1966. The property is presently zoned R-1. The plaintiffs used the residence as their business office until 1972 when Rockford passed an ordinance by which they were prohibited from using the residence as a business office. They then moved from the residence and thereafter rented it to tenants. It is apparently tenant occupied at the present time at a rental of $165 per month.

In 1977 the plaintiffs applied for a change in the zoning of the property in question from residential (R-1) to commercial zoning. The Zoning Board of Appeals denied their petition. They then applied for multiple-family residential zoning with a special permit for an office building. This also was denied. The plaintiffs then filed the present suit in declaratory judgment asking the court to declare the Rockford Zoning Ordinance unreasonable, arbitrary and unenforceable as to the property in question. The trial court, after a hearing, held the present residential zoning to be unreasonable and unconstitutional as applied to the plaintiffs' property and Rockford appeals.

In this appeal, the city of Rockford contends the plaintiffs failed to carry their burden of showing that the property in question is not properly zoned and that the present zoning is arbitrary and unreasonable, thus the plaintiffs did not overcome the presumption in favor of the validity of the zoning ordinance.

The immediate neighborhood of the plaintiffs' property is very largely residential. The property is situated on the southwest corner of Broadway and Eastmoreland Avenue. Recently, an extension of Parkside Drive was constructed to meet Eastmoreland Avenue, at Broadway, which has generated considerable traffic along Eastmoreland and Parkside Drive through to Charles Street (running northwest and southeast, a block north of the corner in question). However, all of the property west of Eastmoreland and south of Broadway is residential and all the property east of Eastmoreland and south of Broadway is likewise residential with the exception of a commercial building at the southeast corner of Broadway and Eastmoreland. While the block immediately north of Broadway and east of Eastmoreland is commercial, on the west side it is strictly residential, except for the one office building on the southwest corner of Parkside Drive (which is Eastmoreland extended) and Charles Street. This one incursion of a nonresidential building a block away from the subject property was court ordered in 1968 for the purpose of a day-care center. Since then it has been converted to a law office, although still having the appearance of a landscaped residence.

The plaintiffs contend that the solid commercial area north of Broadway, east of Eastmoreland, has destroyed the residential character of the plaintiffs' property, making enforcement of the residential restriction on that property meaningless, unreasonable and arbitrary. The city, however, says that the one commercial building on the west side of Eastmoreland-Parkside Drive, in the block north of the subject property, is not enough to overcome the otherwise entirely residential character of the area. In its brief, the city takes the position that Eastmoreland-Parkside Drive constitutes a natural zoning boundary south of the arterial highway, Charles Street, and it is a proper prerogative of the municipality to retain that boundary in order to preserve the residential character of the neighborhood beyond it.

The trial court found that the property to the northeast of the corner of Eastmoreland and Broadway is heavily commercial and that the extension of Parkside through to Eastmoreland created a large volume of traffic past that corner. Apparently, from those facts, the court drew the conclusion that the character of the neighborhood had changed and was tending toward commercial. He also found that the erection and use of the proposed office building would not depreciate the value of nearby residences as such and that the gain to the public by retaining the present zoning would be small whereas the detriment to the plaintiff property owners would be substantial.

These findings of the trial court, together with the testimony of the plaintiffs' expert that in his opinion the highest and best use of the land is for a commercial building, constituted some basis for the court's decision invalidating the ordinance. We believe, however, that these findings do not overcome some more basic considerations of zoning law.

• 1 We must, of course, begin with the basic premise that the presumption is in favor of the validity of the zoning restriction. Thus, in the case before us it is not sufficient for the plaintiffs to establish that the extension of Parkside Drive to meet Eastmoreland created a greater volume of traffic at the corner in question; nor that there is a concentration of commercial uses on the east side of Eastmoreland. As to the traffic going by the plaintiffs' property, it has been held in many cases and, indeed, is conceded by the plaintiffs, that a heavy volume of traffic, passing alongside of a property is not, in and of itself, sufficient to invalidate a residential zoning restriction. In Bennett v. City of Chicago (1962), 24 Ill.2d 270, 273, the court said:

"While the narrow strips off the south side of the 3 blocks to the west are devoted to commercial and multiple-dwelling purposes, plaintiff's lots partake of the character of the block of which they are a part. This residential character is not changed by the zoning classification and use of the narrow strip of lots across Irving Park Road, a thoroughfare 100 feet wide. Zoning must begin and end somewhere, and we have recognized that streets may form an appropriate boundary for zoning districts."

To the same effect is Cosmopolitan National Bank v. Village of Mount Prospect (1961), 22 Ill.2d 463.

This court in two recent cases has rejected a similar contention and has upheld the use of a highway as a natural zoning boundary. (See Gulf Oil Corp. v. County of Du Page (1975), 24 Ill. App.3d 954, and Du Page Trust Co. v. County of Du Page (1975), 31 Ill. App.3d 993.) In the Gulf Oil case, in sustaining the concept of Butterfield Road as a boundary or buffer for zoning purposes, we cited the language of Ryan v. County of Du Page (1963), 28 Ill.2d 196, where the court said, in disregarding the contention that property on the north side of North Avenue necessarily partook of the same commercial character as that on the south side,

"`We are of the opinion that plaintiff's property takes its residential character from the area to the west, north and east and that it is zoned in conformity with surrounding existing uses, a factor of paramount importance.'" Gulf Oil Corp. v. County of Du Page (1975), 24 Ill. App.3d 954, 958.

In the Du Page Trust Company case, which also involved Butterfield Road, we again rejected the contention that the property on the north side of Butterfield Road necessarily took its character from the commercial establishments along the south side, saying that "* * * the area east of Park Boulevard and north of Butterfield Road is residential for a considerable distance, and is the area which influences the plaintiff's property and gives it a residential character." (31 Ill. App.3d 993, 999.)

A recent vindication of this principle is found in the case of Fairfield Savings & Loan Association v. City of Chicago (1976), 45 Ill. App.3d 266, where the court after considering the plaintiff's contention that the character of the area should be determined for zoning purposes by the nearby commercial uses, said:

"While the area in question is surrounded by a cornucopia of transportation systems, is in close proximity to commercial uses and O'Hare International Airport, and borders on an arterial roadway, the record reflects that the R4 zoning classification is in conformity with existing uses and zoning in the area. Although the above factors cited by plaintiff merit consideration in a determination of whether or not the zoning ordinance is arbitrary and capricious, they are by no means determinative. The mere fact that adjacent property is zoned for a less restrictive use does not render the zoning classification invalid. [Citation.] Similarly, the fact that there are commercial uses very near a residentially zoned area is not sufficient to render a zoning classification unreasonable or capricious." 45 Ill. App.3d 266, 273.

In the case before us, it is undeniable that the property in question is situated in an area which is overwhelmingly residential in character. In our opinion, the fact that a road which was formerly a mere residential street along the east side of the property has now become an arterial "feeder" street for feeding traffic to Charles Street does not change the essential character of the neighborhood or the property in question, which remains residential. Nor is its residential character lost by reason of the small commercial shops along the east side of Eastmoreland-Parkside Drive — they do not impart their character to the plaintiffs' property so long as the west side of that street as well as the south side of Broadway maintain their overwhelmingly residential character. We therefore find unpersuasive the trial court's conclusion that the plaintiffs' property was given a commercial aspect by the commercial property along the east side of Eastmoreland and Parkside Drive. We regard that street as a legitimate zoning boundary in view of the residential integrity of the neighborhood having been maintained in conformity with that concept. Like many other courts> we, therefore, reject the idea that we must impart a commercial character to the plaintiffs' residential property because of nearby commercial uses.

While the plaintiffs contend the harm to them is much greater by denial of their petition than is the benefit to the community and vice versa that the benefit to them, by granting the rezoning is much more than the harm to the community if it is granted, this argument is, we think, based on very short-term considerations. Assuming that certain zoning objectives are achieved or at least that certain strategic zoning considerations are preserved by holding the residential zoning line along the south side of Broadway and the west side of Eastmoreland-Parkside Drive — can it be said that the community is not benefited thereby? We cannot measure the benefit but the very reason why a presumption of validity attaches to a zoning ordinance is precisely because it is supposed that some benefit accrues to the community as a whole from the enforcement of zoning restrictions. The relaxation of the zoning restriction in the present instance ...


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