APPEAL from the Circuit Court of Christian County; the Hon.
BILL J. SLATER, Judge, presiding.
MR. JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
This action was brought by neighboring landowners against the City of Taylorville to have two city ordinances invalidated. One rezoned a tract of land from single-family residential to multiple-family residential use, and the other granted a special use on the tract to build a 134-unit apartment building for the elderly and handicapped. The owners of the tract of land and the developer of the high-rise were allowed to intervene as defendants. In a bench trial the court ruled that both ordinances were invalid because they were conditional or contract zoning and were unrelated to the welfare of the community as a whole. The defendants appeal.
The defendants assert that the trial court improperly placed the burden of proof upon them to uphold the validity of the ordinances in question. They also assert that the findings that the ordinances were conditional or contract zoning and arbitrary and capricious were against the manifest weight of the evidence.
The land involved in this case is a tract of approximately two acres known as the Bland tract. It is within the city limits of Taylorville, Illinois, surrounded on all sides by properties which are zoned "R-1," single-family residential use. The "R-1" classification had, until 1980, allowed for the construction of churches and schools without the need for special permission. It had in addition allowed for certain businesses to be operated from a home upon the granting of a special use permit.
The properties abutting the Bland tract include a church, three schools, and a number of single-family dwellings, most of which are one or one and a half stories tall. One of the homes, owned by one of the defendants, has a special use permit to allow the owner to operate a real estate brokerage on the premises.
On October 25, 1979, three owners of the Bland tract, William E. Bland, Thomas Bland, and Patricia Jenkins, requested the Taylorville City Council to rezone the tract from R-1 to R-2, multiple-family residential use, in order that a 126-unit apartment building for the elderly and handicapped could be built upon it. The Taylorville City Council held a joint public hearing on the proposal with the Taylorville Planning Commission on November 19, 1979. At the end of the hearing the planning commission voted three to two against the rezoning proposal. The city council, however, passed Ordinance 1942 rezoning the tract from R-1 to R-2 by a vote of seven to one.
The R-2 classification only allows multiple-family units to a maximum of eight families without a special use permit. Also, the general zoning ordinance of the city of Taylorville, Ordinance 1793, has a height limit of 50 feet for any building without prior approval of the planning commission and city council. The owners, therefore, applied for a special use permit to build a 134-unit, six-story high-rise apartment building to house elderly and handicapped people. On January 7, 1980, another public hearing was held jointly by the city council and the planning commission. The commission voted three to two against the special use permit, but the city council passed Ordinance 1947 granting the special use by a vote of seven to one. The ordinance limited the permitted use to elderly and handicapped tenants because of the limited parking proposed, and it included eight conditions to be performed by the owners and developer of the tract. These were extensive and included widening Cherokee Street, extending sidewalks to a nearby shopping center beyond the end of the property, adding a loop to the water system, and improving storm and sanitary sewer facilities for the area.
Even the ordinance granting the R-2 special use was not sufficient authorization to construct the building as planned. The general zoning ordinance requires two off-street parking spaces per dwelling unit for multiple-family dwellings. The plans for the elderly and handicapped project called for one parking space for every two units. Also, the tract is approximately three-fourths of the size required by the general zoning ordinance for that many dwelling units. In order to get full permission to build the project, the owners applied for zoning variances. The variances were challenged in another suit which is not joined with the case at bar.
On December 7, 1979, a number of owners of property near to or abutting the Bland tract filed a complaint for declaratory judgment against the city of Taylorville, seeking to have Ordinances No. 1942 and 1947 declared invalid. The owners of the Bland tract and the developer of the project were allowed to intervene as defendants and after amendments to the pleadings a two-day bench trial was held. The trial court required written briefs from the parties following the testimony. On April 29, 1980, the trial court held both ordinances invalid as conditional or contract zoning and arbitrary, capricious, and unrelated to the general welfare of the community. The defendants filed a motion for a rehearing. A rehearing was held on June 9, 1980, but the judge did not set aside the order of April 29 as urged by the defendants. On July 8, 1980, the defendants appealed the failure to set aside the order invalidating the ordinances.
In his rulings on petition for declaratory judgment, Judge Slater stated that he was considering Ordinances 1942 and 1947 as a unit "since it appears from the evidence that both ordinances were passed for the purpose of allowing a multiple family residence of 134 units to be built on the premises involved." Defendants challenge that position and assert that each ordinance must be considered separately. Ordinance No. 1942 does not mention the 134-unit elderly and handicapped project, but merely rezones the tract from single-family to multi-family use. The defendants maintain that even if the special use ordinance is invalidated, No. 1942 should survive on its own.
• 1 The initial request for rezoning from the owners of the Bland tract made clear the intended housing project use. The testimony at the public hearing on Ordinance No. 1942 went to the proposed project and not to any other multi-family uses, such as low-rise apartments without age or handicap limitations. The Taylorville City Council passed the rezoning ordinance in order to take the first step toward allowing the elderly and handicapped project. The Illinois Supreme Court dealt with a similar question thus:
"In our opinion, it is appropriate for the court to avoid * * * difficulties by framing its decree with reference to the record before it, and particularly with reference to the evidence offered at the trial. In most of the cases that have come before us in recent years, a specific use was contemplated and the record was shaped in terms of that use." Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill.2d 370, 379, 167 N.E.2d 406, 411.
The Second District Appellate Court was presented with a similar question. A rezoning ordinance, which was passed in general terms after the landowner had executed a restrictive covenant limiting the intended use of the property, was sought to be upheld after the restrictive covenant had failed. The court refused, saying:
"We hold the ordinance here in question, void. The ordinance was adopted only because of the limitations contained in the restrictive covenant." Cederberg v. City of Rockford ...