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01/27/87 National Bank of Joliet, v. the County of Will

January 27, 1987

NATIONAL BANK OF JOLIET, AS TRUSTEE, ET AL., PLAINTIFFS-APPELLANTS

v.

THE COUNTY OF WILL, DEFENDANT-APPELLEE (ROUSONELOS FARMS, INC., ET AL., INTERVENING DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

503 N.E.2d 842, 151 Ill. App. 3d 957, 105 Ill. Dec. 2 1987.IL.65

Appeal from the Circuit Court of Will County; the Hon. Edward D. Smith, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. STOUDER and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

Richard and Jane Searls, plaintiffs, are in the business of buying land which they subdivide for single-family residential development. In 1977, the Searls purchased 86 unimproved acres in Will County for their business purposes, in the name of National Bank of Joliet, plaintiff, as trustee. At that time, the entire 86 acres were zoned by Will County as district F. This classification allowed not only agriculture and its related uses, but also single- and two-family residential development. The Searls subdivided the first 20 acres of the site into 20 lots and residential streets and designated it Williamsburg subdivision. Homes having a value of $125,000 to $200,000 were constructed on 15 of the lots. The remaining 66 acres are the subject of this litigation.

In 1978, the county adopted a comprehensive amendment to its zoning ordinance which affected plaintiffs' 66 acres in such a way that further residential subdivision development was prohibited. Plaintiffs sought to have the subject land reclassified in both 1983 and 1985 so that the site could be subdivided and developed, but the county denied the applications. The plaintiffs brought suit after the 1985 denial, seeking declaratory judgment that the zoning ordinance is unconstitutional and void as it applies to the subject property and an order enjoining the county from prohibiting or interfering with the proposed use of the property. At trial, the county moved for a directed finding at the close of the plaintiffs' case in chief. The court granted the motion and this appeal follows.

The plaintiffs argue that the trial court committed error in directing judgment in favor of the county. Section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1110) governs motions in non-jury cases to find for the defendant at the close of the plaintiff's evidence. The supreme court case of Kokinis v. Kotrich (1980), 81 Ill. 2d 151, has interpreted the statute to require the trial Judge to first determine, as a legal matter, whether the plaintiff has made out a prima facie case, i.e., presented at least some evidence on every element essential to his cause of action. If not, the motion is to be granted. If the plaintiff has made out a prima facie case, the trial Judge, in his role as the fact finder, is to weigh the evidence, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence. When the underlying cause of action requires the plaintiff to establish its case by clear and convincing evidence, then plaintiff's evidence must meet this higher burden of proof to avoid entry of judgment under section 2-1110. (Heller v. Jonathan Investments, Inc. (1986), 113 Ill. 2d 60.) If the court weighs the evidence in favor of the defendant, an order dismissing the action shall be entered. On the other hand, if sufficient evidence necessary to establish the plaintiff's prima facie case remains following the weighing process, the court should deny the defendant's motion and proceed as if the motion had not been made. On review, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151.

A zoning ordinance is presumptively valid, and when challenging the ordinance, the plaintiff must overcome the presumption by clear and convincing evidence. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40.) To be sustained, the validity of a zoning classification must bear a substantial relation to the public health, safety, comfort, morals, or general welfare. (Cech Builders, Inc. v. Village of Westmont (1983), 118 Ill. App. 3d 828, 455 N.E.2d 817.) The supreme court in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, set out six factors that may be taken into consideration in making a determination of the validity of an ordinance, to wit: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public as opposed to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) 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. Two additional factors are also to be considered, namely: (7) the care with which the community has undertaken to plan its land use development, and (8) the evidence or lack of evidence of community need for the use proposed by the plaintiff. (Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370.) The trial court's findings indicate its Conclusion that the plaintiffs did not meet their burden of proving by clear and convincing evidence, that as applied to their property, the ordinance is arbitrary, unreasonable, and without substantial relationship to the health, safety, morals, or general welfare. We disagree and believe the findings were against the manifest weight of the evidence.

The evidence established that approximately 17 acres of the subject site are in a floodplain. Other than Williamsburg subdivision, the lands adjoining the subject land on the west and south are zoned A-1 (agricultural) and used for farming purposes. The land on the east is also zoned A-1 and is used for a single railroad right-of-way and farming. There is a string of 8 to 10 older, wood frame homes along the north side of Caton Farm Road, which borders the subject site to the north. A mile northeast of Caton Farm Road is Fon-du-lac subdivision.

The first witness to testify on behalf of the plaintiffs was the plaintiff, Richard Searls. He testified that the property was purchased for residential development and that it was zoned for that purpose at the time of the acquisition. He further testified that the property was being used for farming at the time of purchase and that he and his son have continued to farm it. The net income from farming the property in 1985 was $2,100, and after real estate taxes were paid, the income was reduced to $1,109.

Mr. Thomas Murphy testified on behalf of the plaintiff as an expert planning consultant. Mr. Murphy said the subject property is currently being used as farmland and is suitable for that purpose, although the land is also suitable for development. Nearby property is used for agricultural purposes and some single-family subdivisions. He was of the opinion that development as proposed by the plaintiffs would be compatible with the surrounding area and that the present zoning bears no substantial relationship to the public health, safety, morals, or general welfare. At one point, Mr. Murphy stated that development would have a positive effect on the public by adding income to the local tax base without substantial increase in service costs. At another point, Mr. Murphy testified that the development would neither provide a great benefit nor detriment to the public, because any increase in the tax base from the proposed development would be offset by the increased cost of providing essential services. However, he also noted that there is a demand for single-family lots such as the plaintiffs are proposing. When asked about the county's land use plan, Mr. Murphy stated that it was accurate and well-thought out, but the county had not necessarily followed it. On cross-examination he acknowledged that the soil types on the site create limitations to the use of septic systems because of their slow permeability.

Mr. Weitendorf, a real estate broker and appraiser in Will County for 35 years, was the next witness to testify on behalf of the plaintiffs. He was basically called by the plaintiffs to give his opinion as to the highest and best use of the subject site. He believed that the highest and best use was single-family residential development. His opinion was based on what he determined to be the market value of the property as zoned -- $2,000 to $2,500 per acre -- and the market value of the property if allowed to be developed as plaintiffs proposed -- $6,500 to $7,500 per acre. He further stated that development would improve the surrounding areas in value and that there was a need for single-family residences. He also acknowledged that the existing use and zoning of nearby property is essentially agricultural.

The fourth witness to testify was a professional real estate appraiser and consultant, Mr. Edward Batis. Like Mr. Weitendorf, Mr. Batis also gave his opinion as to the highest and best use of the property. He opined that the highest and best use was that proposed by the plaintiffs. He stated that the fair market value of the property with its uses limited to agriculture was $1,400 to $2,000 per acre. If allowed to be developed according to plaintiffs' proposal, the fair cash market value would be $7,500 to $8,500 per acre. He further testified that development of the parcel would have no detrimental effect on the value of adjoining properties and that there was a need for this type of ...


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