APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
522 N.E.2d 837, 168 Ill. App. 3d 552, 119 Ill. Dec. 175 1988.IL.574
Appeal from the Circuit Court of Piatt County; the Hon. Donald R. Parkinson, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
Plaintiffs Robert Darnall and Nancy Darnall filed a complaint for declaratory judgment against defendant the city of Monticello in the circuit court of Piatt County. Plaintiffs had sought a conditional use permit to build a duplex on property which they owned in an area of Monticello which was zoned for single-family houses. The permit was denied by the city planning commission and the city council. The declaratory judgment action asked that defendant's zoning ordinance be declared void and unenforceable against plaintiffs' property. After a bench trial, the trial court found in favor of the defendant. Plaintiffs have appealed claiming (1) violations of their procedural and substantive due process rights; (2) substantial reliance by them on the owners' certificate to their property which permitted such a use; and (3) denial of the conditional use permit by defendant was arbitrary and unreasonable. We affirm.
The first two points raised by plaintiffs on appeal have been waived as they were not raised in the trial court. The theory upon which a case is tried in the lower court cannot be changed on review and an issue not presented to or considered by the trial court cannot be raised for the first time on review. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303, 443 N.E.2d 575, 577; Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 25, 473 N.E.2d 588, 594.) A review of the record in this case reveals the complaint itself was rather broadly worded but the trial consisted only of evidence presented on the issue of the propriety of the defendant's actions in denying the conditional use permit. To permit plaintiffs to argue any other theory on appeal would be grossly unfair to defendant, who may have had other evidence it could or would have introduced at trial to attempt to refute the contentions of plaintiffs. Therefore, we find the first two issues argued by plaintiffs on appeal, due process and substantial reliance, to have been waived since not raised in the trial court below.
The final issue raised by plaintiffs is that of the reasonableness of the decision by defendant to deny a conditional use permit to them. The plaintiffs have the burden of establishing by clear and convincing evidence that the denial of the conditional use permit was arbitrary and unreasonable and bore no relation to the public health, safety, morals or general welfare of the community. (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111-12, 324 N.E.2d 406, 408-09.) The trial court found this to be the applicable standard and after hearing the evidence found the plaintiffs had failed to sustain their burden of proof. The trial court was the trier of fact and best able to Judge the credibility of the witnesses. This court will not substitute its judgment for the trial court in a bench trial unless the judgment is shown to be against the manifest weight of the evidence. Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill. App. 3d 554, 559, 474 N.E.2d 744, 749.
After reviewing the record before us, we cannot say the decision of the trial court is against the manifest weight of the evidence. The evidence indicated the plaintiffs purchased several lots in the Surrey Hills West subdivision of Monticello. On two of the lots they built single-family homes but their testimony was that they purchased the last lot with the intention of building a duplex there. They further stated they expected to spend $90,000 to $100,000 in constructing the duplex and intended to retire in one half while renting out the other. Plaintiffs did not check the applicable zoning prior to purchasing the property, but instead relied on the representations of the subdivision developers and the owners' certificate provided by them which contained a provision allowing both single-family and two-family homes to be built on the lots in the subdivision.
During the time period in which plaintiffs have owned the lot in question the applicable zoning either allowed only single-family residences with no exceptions or provided for single-family dwellings by right and multiple-family dwellings, including duplexes, only with the issuance of a conditional use permit. The latter provision was the state of the zoning at the time plaintiffs applied for a building permit to build their duplex. Plaintiffs first applied for a building permit in 1983 and were informed they would have to obtain a conditional use permit first. They were denied a permit at that time because of the objections of many of their neighbors.
Plaintiffs next applied for a building permit in 1985 and were again told they would first have to obtain a conditional use permit. Their application for a conditional use permit included six specific items which the defendant's planning commission would have to address and find favored plaintiffs before it could vote to grant the conditional use permit. The planning commission found against plaintiffs on two of the conditions:
"2. The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish or impair property values within the neighborhood.
3. The establishment of the conditional use will not impede the normal and orderly development and improvement of surrounding property ...