APPEAL from the Circuit Court of Christian County; the Hon.
DON E. BEANE, JR., Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendants, the city of Taylorville and the planning and zoning commission, appeal seeking to reverse a decree of the circuit court of Christian County declaring invalid a municipal ordinance to the extent that it divides the property of plaintiff, Marcella Jeisy, by a demarcation line which causes one portion to be zoned commercial and the other portion to be zoned residential. The issues raised on appeal are (1) whether plaintiff, by clear and convincing evidence, overcame the validity generally accorded legislative enactments promulgated for the general health, safety and welfare, and (2) whether the trial court erred in judicially declaring the plaintiff's property to be rezoned for commercial uses without remanding to the city council for reclassification in accordance with the court's opinion. For the following reasons we affirm the judgment of the circuit court.
Plaintiff's property, commonly known as 401 Cheney Street, occupies the northeast corner of the block bounded by Spresser Street on the north, Cheney Street on the east, Park Boulevard on the south, and Silver Street on the west. The property runs for 142 feet along Cheney Street and 100 feet along Spresser. Immediately south of her property and occupying the northwest corner of the intersection of Park Boulevard and Cheney Street is a vacant lot which fronts on Cheney Street for 37 feet and Park Boulevard for 100 feet. To the west of plaintiff's property are three lots which are used for residential purposes and front Park Boulevard. They are backed by a commercial lot, occupied by a small office building and owned by Ray High, which lies along Spresser Street for 150 feet and is 37 feet deep. To the west of these properties is the Johnson Nursing Home, a commercial establishment which, fronting on Silver Street, occupies the entire width of the block and runs approximately 81 feet along both Spresser Street and Park Boulevard. The four parcels of land on the block which are currently used for residential purposes are split-zoned by the line which divides the block into residential and commercial property zones.
The streets which intersect at the corner of plaintiff's property, Spresser and Cheney Streets, are two heavily traveled thoroughfares. On the northwest corner of the intersection are a gas station and a restaurant. On the northeast corner are a large IGA supermarket and a shopping center, and on the southeast corner is an appliance store. On Cheney Street, south of the appliance store, is a residential property upon which there is a house and garden. Along Park Boulevard, east and west of Cheney Street, are residential properties which have been improved by individual residences, and one block south and two blocks west of plaintiff's property is the Taylorville West School.
Plaintiff purchased her property on January 4, 1952. At that time, it was zoned residential in accordance with Ordinance No. 1094, adopted by the city of Taylorville in 1949. In 1964, Ordinance No. 1366 was adopted, repealing the earlier zoning ordinance and providing for the division of the block upon which the property is located. The northern half of the block as well as the northern portion of plaintiff's property were zoned commercial (C-1) and the southern half of the block and southern portion of her property were zoned residential (R-1). This division line was altered when, in 1964, the Johnson Nursing Home obtained reclassification of the southern portion of its property so that a new and larger facility could be constructed. The line transecting the rest of the block was re-adopted in 1972 under Ordinance No. 1617 and in 1977 under Ordinance No. 1793, the subject of this suit.
After receiving an offer from the Big John Super Stores in February of 1977 to purchase her property for $55,000, plaintiff sought an interpretation from the planning and zoning commission concerning the placement of the line transecting the block. At a meeting held on January 3, 1978, the commission interpreted the line to fall so that the northern 89 1/2 feet were zoned commercial and the southern 52 1/2 feet were classified as residential. Plaintiff then filed a request for the rezoning of the southern portion of her property, and after a public hearing on February 20, 1978, the request was denied successively by both the commission and the city council. As a result, plaintiff brought this action.
Plaintiff's amended complaint, filed on April 25, 1978, sought to have the remainder of her property zoned for commercial use. She alleged that the application of Ordinance No. 1793 to her property violated the Constitution of the State of Illinois and the Constitution of the United States in that it was confiscatory and deprived her of her property without due process and the equal protection of the laws. She claimed that the fair market value of her land as residential property was declining in an increasingly commercialized area and that, if zoned commercial, it has almost twice the value that it has as residential property. She alleged that to use the portion of her property zoned residential for a single-family residence would violate the minimum-size requirement, 6,000 square feet, of the present zoning ordinance (Ord. No. 1793, art. IV, § 44), since the ordinance as applied leaves her with only 5,250 square feet. She claimed that the ordinance as applied was arbitrary and capricious because when adopted, no footage specifications were indicated on the map which accompanied the ordinance, and the exact placement of the line crossing her property had to be interpreted by the planning and zoning commission because the ordinance as enacted was too vague. Also, plaintiff claimed that she was uniquely affected by Ordinance No. 1793 in that very few properties were divided between the residential and commercial classifications. Plaintiff alleged that she had exhausted her administrative remedies and requested that the ordinance classifying part of her property as residential be declared void as to her property.
Defendants answered on May 12, 1978, denying plaintiff's allegations and asserting that Ordinance No. 1793 is a reasonable exercise of the municipal zoning authority and that its application to plaintiff's property is neither unreasonable nor a violation of her constitutional rights. An answer was also filed on the same date by defendants-intervenors, Terry and Sharon Marsango, owners of the lot to the immediate west of plaintiff's property. A bench trial followed on June 21 and 22, 1978.
Plaintiff's witness, William Culley, director of petroleum and head of the real estate department for the Big John Super Stores, Inc., testified concerning the nature of the proposed use of plaintiff's property as a Huck's Convenient Food Store to sell food items, gasoline and eventually packaged beer. An offer to purchase plaintiff's property for $55,000 was made on condition that the entire parcel would be zoned commercial. He stated that his company considered the corner property as a prime site because of its location across from a large supermarket, the heavy traffic pattern demonstrated by an aerial study of the neighborhood and his own personal observation of the intersection. He testified that the plans called for a one-story, painted brick building, measuring 40 feet by 70 feet, of which 30 feet cut into the residential 52 1/2 feet, and bearing a sign, three feet long and three feet high, painted with the name "Huck's." He said that another sign, measuring five feet by 10 feet, would be placed on a pole and illuminated at the intersection of Cheney and Spresser Streets and a gasoline pump island large enough to accommodate four cars would be installed in the northeast corner of the lot. The building would be set back from the street near the western boundary line to provide for off-street parking. There would be no back door to the building and air-conditioning and refrigeration equipment would be placed either on the roof of the building or behind it.
Expert testimony was provided for plaintiff by Ray High, a real estate appraiser with more than 20 years' experience, who had appraised property for the city of Taylorville, the State of Illinois, and the Internal Revenue Service. The witness was requested by plaintiff to determine the fair market value of her property as used commercially and residentially. Using the market data approach, which consists of comparing the sales of similar properties in the same or similar neighborhoods, the witness found that the highest and best use of plaintiff's property is as commercial property, which would be valued at $60,000, as opposed to residential property, which would be worth $29,000. He indicated that split-zoning may or may not have a depreciating effect on property, but that plaintiff's property could yield a much better return if zoned entirely commercial. The residential portion would not be desirable for two reasons: (1) the fairly heavy flow of traffic on Cheney Street, and (2) the small size of the lot which prevents the construction of a single-family dwelling in compliance with the zoning requirements regulating minimum lot size. On the basis of his personal observation and familiarity with the 1967 and 1976 traffic maps prepared and published by the Department of Transportation, he stated that there has been a substantial increase in vehicular traffic in the nearby area and on both Cheney and Spresser Streets over the last 10 years. The witness also testified as to the surrounding commercial and residential uses in the area.
Plaintiff Marcella Jeisy testified in accordance with the facts and allegations in her amended complaint. She stated that she received offers in 1960 and 1972 to buy her property for commercial use but never for residential purposes.
Richard Daly, chairman of the six-member planning and zoning commission, was called by plaintiff as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). He testified that in the two years he had presided as chairman he had not encountered any other cases of split zoning, although other members indicated to him that similar situations had occurred in the past. He testified that while the ordinance called for the boundaries of zoning districts to fall on natural lines, such as streets, lot lines, and railroads, the purpose of drawing the line through the middle of the block was to separate the residential area from the commercial area and prevent commercial infringement on the residential landowners.
Daly also testified for defendants. He stated that at the first meeting, which was called in January of 1978 for the purpose of interpreting the dividing line, it was noticed that a line dividing the block to the east of plaintiff's property fell on the southern boundary of the appliance store lot, and an effort was made to align the dividing lines of both blocks. He stated that the commission determined that the line, which was reflected in previous zoning maps, split the block in half and therefore was left "to speak for itself." No written findings were made, but Daly stated that certain considerations weighed in the discussion. The possible danger to pedestrian traffic created by the close proximity of the school was mentioned, but he felt this was rejected as an influencing factor. The use to which the property would be put and the effect on the neighbors were of greater concern. The unpleasant appearance of the store seen by those living west and south of plaintiff's property was also a factor in the denial, as was the consideration that the vacant lot south of plaintiff's property was an insufficient buffer between the commercial and residential areas.
On cross-examination Mr. Daly stated that the theory of zoning was to protect the health and welfare of the inhabitants of the area and the best use of the land, but indicated that the interests of the plaintiff were not given consideration. He acknowledged that the area has become more highly commercialized and testified that one of the concerns of the commission was that there were already a grocery store and a gasoline station in the area; the possibility of a business failing and creating a blight in the area weighed in favor of denial of plaintiff's petition. He could not respond immediately as to what was accomplished by the bisection of plaintiff's lot; his only ...