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Furling v. County of Sangamon





Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff William Furling sued to have the zoning ordinance of defendant Sangamon County declared unconstitutional as applied to his property. Plaintiff also sought to have defendant enjoined from hindering his development of the property. The trial court found no reasonable basis for the present zoning classification and issued the injunction. Defendant appeals, contending the trial court's holding is against the manifest weight of the evidence.

Plaintiff owns 2.36 acres of land on Park Avenue in Sangamon County. The lot would be a rectangle, 240 feet wide and 519.5 feet deep, but the previous owner, Allen Post, sold off the front corner of the lot. This corner, measuring 125 feet wide and 140 feet deep, has a residence on it. Due to the sale, plaintiff's property has a frontage on Park Avenue of only 115 feet. In addition, Post sold another one-tenth of an acre to a neighbor on the north boundary of the land.

Plaintiff bought the property from Post in 1981 for $10,000. At that time, plaintiff knew the land was zoned R-1 for single-family residences. Plaintiff also knew a third party, who had wanted to develop the property, had attempted to get the property rezoned and had failed. The property has always been vacant. Plaintiff desired to build two seven-unit apartment buildings, permissible under a R-3 classification.

Plaintiff filed a petition to change the zoning from R-1 to R-3. The Sangamon County Planning Commission recommended approval of the change because the land could not be economically used under the R-1 classification. The zoning board of appeals, however, recommended denial of the petition. It found the area already had sewer and traffic problems. It further held plaintiff would suffer no hardship because he knew of the zoning restriction when he purchased the property. There were 53 neighbors who signed a petition opposing the rezoning. The Sangamon County Board voted to deny plaintiff's petition due to the traffic and sewer problems. Plaintiff then filed his complaint for declaratory judgment and an injunction.

Plaintiff is an experienced real estate broker and developer. At trial, he testified his property would be worth $100,000 if classified R-3, and $50,000 if limited to only 14 apartments. He asserted there is a demand for apartments in the area. He also contended taxes would increase $6,000 to $8,000 if he develops the property. His proposed buildings would be set back from Park Avenue and away from all neighboring residences. He planned to fence and screen the lot for privacy and to fit in with the neighborhood. He believed his proposed use would not adversely affect property values in the area. He admitted, however, that his development would cause an increase in traffic in the vicinity.

David Kiliman, assistant director of the Springfield-Sangamon County Regional Planning Commission, had made the original recommendation approving the rezoning. Kiliman based his recommendation on the number of R-3 lots already in the area, which he testified established a trend. Because the area contained many large lots, the tendency was to try to develop those lots for multifamily use. He also based his recommendation on the large size and unusual configuration of plaintiff's property, which did not lend itself to economical development under the R-1 classification. Kiliman testified the highest and best use of plaintiff's property would be for multifamily dwellings.

Kiliman testified the area generally had a drainage problem. He stated the increased roof area and parking lots from plaintiff's development would have some effect on the problem, but he left the property could still be properly developed. He acknowledged traffic in the area would increase. He also conceded that a rezoning would constitute spot zoning and would not be consistent with the county plan. On the other hand, he testified plaintiff's proposed use would further the Planning Commission's policy of developing urban areas around Springfield rather than agricultural areas.

Plaintiff and Kiliman testified as to the uses surrounding the premises in question. Park Avenue is a dead-end street with many single-family residences, but there are several other uses. Across the street from plaintiff's property lies a pasture with five or six cattle. North of the lot is a four-plex apartment building. Also along Park are a small retail business, a home occupation photographic studio, and a large metal structure used for the storage of game machines. An automobile repair shop, which previously received a use variance, operates on the corner of North Street and Park, some 1,800 feet from plaintiff's lot. About 300 feet south of plaintiff's property, on the opposite side of the street, is a dog training school, a conditional permitted use in R-1 areas.

Next to the dog training school lies a vacant lot changed from R-1 to R-3 in 1973. When granting the petition in 1973, the zoning board of appeals found the general trend in the area was toward multifamily development. It held such use would not injure property values or the public welfare. The board stated the use would be in the public interest, would enhance neighboring property values, and would not increase congestion of traffic. Besides this lot zoned R-3, there are three lots zoned R-2 for duplex development and two lots classified R-4, along Park Avenue.

There are various other uses in the area near plaintiff's property. Approximately 300 feet south of plaintiff's lot is a mobile home park. The mobile home park does not abut Park Avenue; rather, its entrance is on Douglas Avenue, one block west of Park. The mobile home park pre-existed the zoning ordinance, yet the land on which it is located was zoned R-3. Bordering plaintiff's lot to the north are several single-family residences, and a duplex, rezoned for R-2 use in 1977. On Centre Street, 600 feet north of plaintiff's parcel, is land zoned R-2 in 1972. A large number of duplexes were built on this street. Along Shiloh Drive, which intersects Park Avenue about 800 to 900 feet north of plaintiff's land, are some four-plexes and tri-plexes, as well as an apartment complex. The city of Springfield lies 600 feet west of plaintiff's property. The land just inside the city limits is zoned R-4, which is the equivalent of defendant's R-3 classification. Most of this land is undeveloped.

Kiliman testified a rezoning normally affects the area within 1,000 feet of the property. In some cases, however, there is an easily identifiable neighborhood that is affected. In this case, Kiliman described that neighborhood as bounded by railroad tracks to the north and south, MacArthur Boulevard to the east, and the large open area inside Springfield to the west. In this neighborhood, there are five other areas that have been rezoned R-3 since the original ordinance was adopted in 1969. One of these sites has a 24-unit apartment complex. Several other use variances have been granted in the area. Besides a second mobile home park, individual mobile homes are scattered throughout the area. Kiliman testified mobile homes are nonconforming uses in the area.

Robert Alvey, district engineer for the Springfield Sanitary District, also testified for plaintiff. He testified the sanitary sewer under Park Avenue was constructed over 40 years ago. The Sanitary District had received many complaints in the past because the sewers had backed up into basements. The Sanitary District remedied the problem by building a release sewer in the area. Alvey testified the number of complaints had been significantly reduced. Due to the way the pipes were laid, however, the system also suffers from erosion of the crown of the pipes.

The Sanitary District imposed restrictions on the number of sewer hookups per acre. Under this restriction, plaintiff is limited to 14 apartments on his property. Alvey conceded an additional 14 hookups would increase the crown erosion problem to some degree, but he also stated the additional hookups would not appreciably affect either the aging or deterioration of the sewers. In other words, he believed whatever happens will happen regardless of whether plaintiff develops his property. If the problems become too severe, the sewer will be repaired.

Karen Hasara, clerk of the circuit court for Sangamon County, testified for defendant. She had sold real estate and had been a broker prior to becoming clerk. She testified plaintiff's development would ...

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