APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1979.
Plaintiff, as trustee, is the title holder of land classified as R-2 (single-family residence) under the zoning ordinance of the defendant, Du Page County. Plaintiff sought a declaratory judgment that the zoning ordinance was invalid as applied to the subject property and that the proposed use of the property for the construction of a restaurant was reasonable. The trial judge denied relief and the owner appeals.
The subject property is part of a larger lot, originally consisting of approximately two acres located at the northwest corner of the intersection of Illinois Route 53 and 56 (Butterfield Road) in Du Page County, which was the subject of a previous appeal in Moist v. County of Du Page (1973), 10 Ill. App.3d 473. In that case the real party in interest was the Yale Development Co., which is the beneficiary of the present trust. In Moist we declared that the R-2 zoning was invalid as applied to the entire two-acre tract and established the reasonableness of the proposed use for a gasoline service station. We noted that the proposed station would use only about 35% of the parcel, that it would be located at the corner, and that there would be 80-84 feet of buffer zone between the service station activities and residential property to the west and north which could be used to provide screening of natural foliage. 10 Ill. App.3d 473, 474.
In the judgment entered on November 1, 1977, dismissing this suit, the trial judge's findings included:
"4. That there has been no change of circumstances or conditions to warrant a change in the zoning previously given to the subject property in the Moist case as a result of the opinion of the Appellate Court.
5. That the Plaintiffs [sic] have failed to overcome by clear and convincing evidence, the presumed validity of the Defendant's zoning ordinance as it applies to the Plaintiff's property."
The owner contends that the court erred in concluding that Moist barred this suit as res judicata, and further contends that the judgment on the merits was against the manifest weight of the evidence.
We first conclude that the present suit is not barred as res judicata by reason of our decision in Moist.
1, 2 Preliminarily, we reject plaintiff's claim that the defendant has not properly raised the defense of res judicata because of failure of the proof of the former record. It is true that for res judicata to apply the judgment in the former action must not only be pleaded (Svalina v. Saravana (1930), 341 Ill. 236, 247), but that the party asserting the doctrine has the burden of proving the existence and character of the former judgment as well as its legal effect with relation to the matters alleged to be concluded by it. (Svalina, 341 Ill. 236, 247; Wigoda v. Cousins (1973), 14 Ill. App.3d 460, 469, reversed on other grounds (1975), 419 U.S. 477, 42 L.Ed.2d 595, 95 S.Ct. 541. See also Gonyo v. Gonyo (1973), 9 Ill. App.3d 672, 674-75.) Here, the defendant did not introduce the complete transcript and court record of the Moist case. However, the defense was pleaded in the answer and argued both in connection with the motion to strike the answer and in briefs following the closing of proofs. Approximately 10 days after the filing of briefs the trial judge sent a letter to the parties inviting the placing in evidence of the record of the prior proceedings in Moist. The prior judgment is therefore before this court in the record. While plaintiff argues that this was the result of an unfair intervention by the trial judge, without a request to reopen proofs, we do not agree. Defendant on its own raised the res judicata argument in a brief in the trial court, and plaintiff's brief thereafter made the defendant aware of the possible need to introduce proof of the former record. Whether to reopen proofs is discretionary with the trial court. (Department of Public Works & Buildings v. First National Bank (1965), 61 Ill. App.2d 78, 83; Exchange National Bank v. Heller (1975), 26 Ill. App.3d 675, 682-83.) The fact that the court acted sua sponte without waiting for a motion when the issue as pleaded was fully brought to its attention in the memorandums and arguments of both parties is, in our view, neither an unwarranted interference in the conduct of a trial nor an abuse of discretion.
3, 4 Nevertheless we have concluded that the present suit is not barred by the doctrine of res judicata. The issue in every zoning case is whether the zoning ordinance is invalid in light of the particular facts. (See, e.g., La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46.) For the former adjudication to be an absolute bar there must be identity of parties, subject matter and causes of action, which is particularly difficult in zoning cases because the facts involved may change over time. (See Mistretta v. Village of River Forest (1971), 2 Ill. App.3d 102, 104-05.) The doctrine, if applied strictly, could result in land being tied up in a given use long after the area surrounding it has changed. To remedy this the courts> have treated the cause of action as involving those facts necessary to a determination of the validity of the zoning ordinance and have permitted a second attack if these facts have changed substantially since the first challenge. Mistretta v. Village of River Forest (1971), 2 Ill. App.3d 102, 105; La Salle National Bank v. City of Chicago (1977), 54 Ill. App.3d 944, 955.
The only cases cited and of which we are aware, however, deal with the application of res judicata when the validity of a zoning ordinance has been upheld and now faces a new challenge on the basis that circumstances have changed. But in this case, the previous adjudication was that the zoning ordinance was invalid and the defendant now asserts, not the finding of invalidity in the first court, but the res judicata effect of the order of authorizing the use of property as a gasoline station. Thus, this case presents the previously undecided issue of what should be the res judicata effect of a judgment order which not only finds the existing zoning invalid as to a subject property but which also enters a remedial order permitting a particular use which it finds reasonable. *fn1
In order to decide this issue, it is necessary to understand the effect of such a remedial order in Illinois zoning law. The role of the court in forming a remedy when invalidity is found was established in Sinclair Pine Line Co. v. Village of Richton Park (1960), 19 Ill.2d 370. In Sinclair the supreme court held that rather than leaving the property unzoned a remedy should be formed according to the evidence offered in the case on the proposed alternate use of the land. The court weighed two undesirable effects in declaring the statute invalid: (1) that the land would remain unzoned, leading possibly to a multiplicity of suits before its final classification was settled, and (2) that rezoning by the courts> into a general classification would result in the land being used in a manner inconsistent with the evidence presented in the case and unreasonable in light of the surrounding uses. 19 Ill.2d 370, 378-79.
We find nothing in Sinclair to hold or imply that because a remedial use was approved as reasonable on part of a particular tract, with the further provision that screening should be provided to buffer the use from surrounding residential uses, all vacant portions of the tract must thereafter remain fallow. In Moist our ...