Appeal from the Circuit Court of Winnebago County; the Hon.
David R. Smith, Judge, presiding.
PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Defendant, city of Rockford, appeals from a declaratory judgment granting the request by plaintiffs, Swim Club of Rockford, Inc., and John S. Combs, for authority to dispense alcoholic liquor on plaintiffs' premises and declaring defendant's zoning ordinance unconstitutional and void insofar as it denied such use of plaintiff's property. The city of Rockford contends the trial court erred in overruling its legislative action denying a special-use permit as: (1) plaintiffs failed to establish the proposed special use would not endanger the public health, safety, morals and general welfare; and (2) plaintiffs failed to prove the proposed use would not be injurious to the use, enjoyment and market value of nearby property. The city also asserts the trial court erred in failing to restrict sale of liquor on the premises during swimming pool hours.
The Swim Club of Rockford is located on a 3 1/2-acre tract in Rockford and consists of a two-story club house containing 6,000 square feet, three outdoor swimming pools, a water slide, pump house, fenced picnic area and parking lot. Its upper level consists of a snack bar, an open area with tables and offices; the lower floor contains a checkroom and two locker rooms. The swim club has been in operation at that place for several years and plaintiff Combs is presently the sole shareholder. He described the business as a country club without a golf course which members join for a fee for use of the facilities. The club operation lost $72,412 in 1982 and $25,815 in 1983 and, in order to attract more members and also use of the facilities by other groups for meetings and banquets in the off season from September to April, plaintiffs wished to dispense alcoholic drinks within the building.
In October 1982, plaintiffs applied to the zoning department of the city of Rockford for a special-use permit for a bar for use by club members and guests. It was considered first by the Rockford-Winnebago county planning commission, which recommended approval to the city zoning board of appeals. After a hearing, the zoning board also approved issuance of the special-use permit. That decision was appealed by objecting neighbors of the swim club premises to the city council, which thereafter voted to deny plaintiffs' application. This action was then commenced by plaintiffs for declaration that the zoning ordinance was invalid and void insofar as it prohibited the use plaintiffs wished to make of their property.
At trial, the evidence disclosed that plaintiffs' property is zoned under the defendant's ordinance in community commercial district. Uses permitted in that classification allow retail business, including the sale of alcoholic liquor by bars and package stores. Directly east of the subject property and at the rear of the clubhouse there is an alley or roadway to the east of which the properties are zoned R-1 and used for single-family residences. The property north of plaintiffs' land is also zoned for R-1 use, but is actually used as a park and for a Commonwealth Edison substation. The property south of the swim club is zoned for community commercial uses and contains a neighborhood shopping center. Further south and across Charles Street, a four-lane thoroughfare, the land is zoned R-1 and contains a high school and its grounds. The land west of the subject property is zoned for community commercial uses and contains businesses, apartment buildings and vacant land.
Richard Roths, who was a planner for the Rockford-Winnebago county planning commission at the time plaintiffs' application was considered by it, testified he had viewed the subject property and considered each of the six standards of the city of Rockford zoning ordinance which govern issuance of a special-use permit. Section 1503.5(a) of the 1980 ordinance provides:
"1. The establishment, maintenance, or operation of the Special Use Permit will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare;
2. The Special Use Permit will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood;
3. The establishment of the special use will not impede the normal or orderly development and improvement of the surrounding property for uses permitted in the districts;
4. Adequate utilities, access roads, drainage and/or necessary facilities have been, are being, or will be provided;
5. Adequate measures have been or will be taken to provide ingress or egress so designed as to minimize traffic congestion in the public streets; and
6. The special use shall, in all other respects, conform to the applicable regulations of the district in which it is located, except in those instances wherein either the use or the property is nonconforming in which case exceptions may be made as appropriate to result in the nonconforming use or property becoming more compatible with the existing character to the area."
It was Roths' opinion that the proposed use for which the permit was requested met all ordinance standards. He noted that there was adequate distance between the subject property and the residences to the east and they were separated by an alley which ran along the rear of these properties. As there were two entrances to plaintiffs' property from Charles Street and parking was west of the building, Roths considered the effect of traffic on the adjacent residences would be minimal. He also noted that all liquor sales would be indoors and the proposed uses of the property conformed to Rockford's existing community plan and zoning for that property; that all similar private clubs in Rockford had received permits for the sale of alcoholic liquor and, in his opinion, that use was appropriate in this instance and should have been granted by the city of Rockford.
David Noel was at the time of trial the director of the Winnebago County department of planning and economic development and, at the time plaintiffs' application was considered, the director of the city-county planning commission; he is a licensed city planner. Noel testified he had reviewed plaintiffs' application with his staff and considered that the sale of liquor as an accessory use to the primary swimming activity was reasonable. He noted the surrounding area was already developed and such use would have no adverse impact upon it. Noel testified that numerous other private clubs in Rockford, with similar zoning and also adjacent to residentially zoned areas, were permitted ...