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Cech Builders, Inc. v. Vill. of Westmont





Appeal from the Circuit Court of Du Page County; the Hon. R.D. McLaren, Judge, presiding.


Rehearing denied November 21, 1983.

Defendant, village of Westmont, appeals from an order of the trial court that the village's zoning ordinance as applied to the plaintiffs' property was unconstitutional and void, that plaintiffs could develop the subject property as depicted on either of two plans, that the village was restrained from maintaining any court action to block such development, and that the village was required to issue all necessary permits for such development upon application and compliance with all ordinances and regulations other than the zoning ordinance. Among other grounds it raises on appeal, the village of Westmont contends that the plaintiffs did not sustain their burden of proving by clear and convincing evidence that the zoning classification as applied to the subject property was arbitrary, capricious, and bore no relationship to the public safety, morals and welfare, and further, that plaintiffs have also failed to prove by clear and convincing evidence that the proposed uses are reasonable.

We agree and reverse.

• 1, 2 A zoning ordinance is presumptively valid; this presumption may be overcome only by clear and convincing evidence, and the burden of proof is on the plaintiff. (La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46.) To sustain the validity of a zoning classification, it must bear a substantial relation to the public health, safety, comfort, morals or general welfare, and its validity as applied to a specific piece of property depends on the sum total of the particular facts found in each case. Fiore v. City of Highland Park (1966), 76 Ill. App.2d 62, 71, 73.

• 3 The zoning function is primarily in the province of the municipal body, and Westmont correctly observes that, where there is room for a legitimate difference of opinion concerning reasonableness of an ordinance governing the use of private property or where such question of reasonableness is fairly debatable, the courts> will not interfere with the legislative judgment. (Trust Co. v. City of Chicago (1951), 408 Ill. 91, 98-99; see La Salle National Bank v. City of Evanston (1974), 57 Ill.2d 415, 428.) However, a mere conflict of testimony does not create an irrebuttable presumption that an ordinance is valid or require a finding that the reasonableness of the ordinance is debatable; such conflicts go to the credibility of witnesses and the weight to be afforded their testimony. These are matters to be determined by the trier of fact, subject to reversal only when against the manifest weight of the evidence. Drogos v. Village of Bensenville (1981), 100 Ill. App.3d 48, 53-54.

• 4 La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46-47, sets out six factors that may be taken into consideration in making a determination on the validity of an ordinance.

The first factor is the existing uses and zoning of nearby property. The subject property is presently zoned R-3, single-family residential. It is rectangular in shape and consists of approximately four acres. The southern half is bisected by a stream flowing in a generally northern direction. It appears to have been the westerly portion of a larger tract of land, now known as Newfield Manor, that had been developed by plaintiffs Cech and Flavell for single-family residential use.

The immediately surrounding area is single-family residential, somewhat mixed with vacant areas. Immediately west of the subject property and south are a golf course and a park, also zoned R-3 single-family residential. The only multiple-family use, such as that proposed by plaintiffs, is King Arthur Apartments, and it is off the northwest corner of the property. Access to King Arthur Apartments is from a northern direction, and residents of Newfield Manor testified that they have no contact with these apartment residents. Other than King Arthur Apartments, the only uses other than single-family residential are at least one-half mile away, and the park and golf course and Newfield Manor appear to naturally buffer this tract from other uses. While the testimony of witnesses for each side concerning the character of the area varied almost predictably, the area in which the subject property is located can most accurately be characterized as single-family residential, which is the present zoning of the subject property.

The second La Salle factor is the extent to which property values are diminished by the particular zoning restriction. Plaintiffs insist that the property as zoned is virtually worthless because of the high costs of improvements to make it possible to develop it for zoned purposes. The only evidence of current value of the property was Peter J. Cech's testimony that he contracted to purchase the 3.9 acres from his father's company for $18,000 and defendant's real estate appraiser's testimony that the property as zoned is worth $75,000. There is no evidence of the value of the property if rezoned. There is predictable dispute about the effect on surrounding property values if the property is rezoned. Several of defendant's witnesses say that either plan will have deleterious effects, and plaintiffs' expert real estate appraiser stated that, while the first plan might cause a 2-5% depreciation, the second plan would cause no such depreciation, although his opinion was largely dependent on landscaping not shown in the plans or required by the court order.

The next two factors to be considered are closely related. They are the extent to which the destruction of property values of the plaintiff promotes the health, safety, morals, or general welfare of the public and the relative gain to the public as opposed to the hardship to the individual property owner. Again, plaintiffs insist that the hardship on them is enormous because the cost of improvements required would put the cost of single-family homes on the property out of the market and that the gain to the public by retaining the current zoning is minute, especially compared to the benefit of increased tax revenue from development as proposed, so that there is no valid basis for the current restrictions. See generally La Grange State Bank v. County of Cook (1979), 75 Ill.2d 301, 308-09.

• 5 It is well established that a party who, like plaintiff Cech, acquires the property with knowledge of the present zoning but with the expectation of using it for a purpose not permissible thereunder cannot expect loss resulting from the denial of the change to be a persuasive argument in securing the change. (E.g., Lapkus Builders, Inc. v. City of Chicago (1964), 30 Ill.2d 304, 310.) Moreover, traffic problems would result from both plans, reconstruction of the creek under both plans would increase its depth and velocity creating a hazard to nearby residents and users of the park, and the first plan would diminish nearby property values 2-5% and create traffic hazards for Newfield Manor residents. Therefore, it appears that the development under either plan would have a negative effect on the public health, safety and welfare.

The next factor is the suitability of the subject property for zoned purposes. The experts' testimony once again varied predictably on this subject. The plaintiffs' witnesses found the property unsuitable for single-family residential development, while defendant's witnesses found it suitable. Basically, it was established that the cost of improving each lot for permitted purposes was approximately $30,000. Plaintiffs' real estate appraiser figured that a $65,000 cost per lot would allow for profit, stated that a house on such lots would cost $350,000 in an area of $80-150,000 homes, and expressed the opinion that there was no market for homes of that cost so that the highest and best use of the property was not single-family residential. Defendant's real estate appraiser, on the other hand, opined that plaintiffs could improve the lots for $27,000 per lot, sell homes in the $100-130,000 range, and still make a profit.

The last factor set forth in La Salle is the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. Both parties agree that the property has been vacant at least since its annexation by Westmont in 1965 and that it has always been zoned for single-family residential use. Plaintiffs insist that the property is and will remain vacant because ...

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