Before discussing the issues involving count III, two motions taken with the case in No. 4 -- 88 -- 0860 must be noted. The first is a motion by the individual defendants to dismiss the portion of plaintiff's appeal concerning the awarding of attorney fees. Defendants suggest this issue is moot since plaintiff's attorneys have already paid the full amount of the award, and a release has been given. Plaintiff responds by arguing the issue is not moot even though the payment has been made because the payment was not voluntary, having resulted from the order of this court denying plaintiff's attorneys' motion to file a late notice of appeal.
APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
(Richard J. Zimmerman et al., Defendants-Appellees). --
Nos. 4-88-0836, 4-88-0860, 4-88-0879 cons.
540 N.E.2d 895, 184 Ill. App. 3d 155, 133 Ill. Dec. 29 1989.IL.893
Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. KNECHT and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
Plaintiff Michael Suhadolnik is the owner of real estate located at 410 N. Amos Avenue, Springfield. Plaintiff, wanting to construct a day-care center on the site, sought to have the zoning changed from R-3 (single-family residences and duplexes) to R-5(b) (general residence and office district). After the rezoning was denied, plaintiff initiated this lawsuit in the circuit court of Sangamon County.
The complaint is in three counts: count I asked the court to declare the zoning ordinance of defendant City of Springfield (City) to be unconstitutional and to grant plaintiff a reclassification; count II sought damages from the City for taking plaintiff's property without just compensation; and count III sought damages from individual defendants Richard J. Zimmerman, Timothy Call, and James Rogers for allegedly false statements these defendants made with the intent to prevent plaintiff from obtaining a zoning reclassification.
At the time plaintiff purchased the real estate it had been vacant since 1955. The property was zoned by the City as R-3, which only allowed the construction of single-family residences and duplexes. Concerning the property and the surrounding area, the plaintiff's complaint alleges approximately 1.1 acres of the 4.23-acre subject property will be acquired by the State of Illinois for the construction of the Jefferson-Madison Street corridor. Plaintiff intended to develop a day-care center on 2.13 acres, leaving one acre for further development. The property around the subject property is zoned as follows: on the east are multifamily buildings zoned R-5, general residence and office district; to the immediate north is the proposed ramp for the Jefferson-Madison Street corridor, and across Jefferson, the property is zoned B-1, highway business service district; across Amos Street, to the west some of the property is within the corporate limits of Sangamon County, zoned R-2 and B-3, and some is within the City's limits, zoned R-3, single family and duplex residence district; and on the south, the property is zoned R-3.
In March 1988, plaintiff applied for zoning reclassification of the subject property to an R-5(b) category to allow for the construction of a children's day-care center. On April 20, 1988, the Springfield Planning and Zoning Commission, an advisory board of the City, recommended the subject property be zoned in accordance with plaintiff's request. The Springfield Planning and Zoning Committee also recommended rezoning. The factors supporting reclassification were that the property was suited to the proposed classification, a contiguous property was recently granted R-5 zoning, the reclassification was consistent with the existing zoning and uses of the surrounding property, the reclassification was consistent with the City's comprehensive plan, and the Madison Street corridor will cross the property. However, on May 17, 1988, the Springfield city council denied the plaintiff's petition for rezoning of the subject property.
After the plaintiff filed his petition with the department of planning and zoning, it is alleged the individual defendants discussed the plaintiff's petition for reclassification with persons who, like defendants, lived near the subject property, and in said conversations expressed their views in opposition to plaintiff's development of the subject property. As alleged in plaintiff's complaint, the defendants disseminated the following false information concerning the plaintiff's intended development of the property as a day-care center: the proposed day-care facility would be open 24 hours a day; would be owned and/or operated by St. John's Hospital; would be directly north of 260 North Columbia Avenue; would accommodate several hundred children; would increase traffic flow by 300 to 400 vehicles per day; is the same one originally proposed for an eastside area of the City of Springfield, and made other remarks to discredit the proposed day-care center. The plaintiff further alleged in his complaint that the statements were made by the defendants knowing the statements were false, were made without legal justification and with the intent to deny the plaintiff the relief he requested from the City, to prevent the plaintiff's development of the subject property, and to disparage the plaintiff in the community.
Thereafter, plaintiff filed his three-count complaint. The City answered count I of the complaint, but moved to dismiss count II of plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) for failure to state a cause of action. On the City's motion, the trial court dismissed count II of plaintiff's complaint with prejudice on October 31, 1988.
On June 30, 1988, the defendants filed a motion to dismiss count III of plaintiff's complaint. On July 1, 1988, the plaintiff served upon each of the individual defendants interrogatories and requests to produce documents. The defendants filed a motion for protective order or to quash the notice of depositions. The trial court entered an order granting defendants' motion and staying depositions until defendants' motion to dismiss was heard and ruled on by the trial court. On July 25, 1988, the trial court, by docket entry, dismissed count III with prejudice. No Supreme Court Rule 304(a) 107 Ill. 2d R. 304(a)) finding was made at that time. Subsequently, the defendants filed a motion for attorney fees. After hearing arguments of counsel, the trial court granted the defendants' motion and assessed the defendants' attorney fees and expenses against the plaintiff and plaintiff's counsel pursuant to section 2-611 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.) The trial court directed counsel for plaintiff and defendants to meet and attempt to agree on the appropriate sum for attorney fees and costs. On October 21, 1988, the trial court entered a written order dismissing count III of plaintiff's complaint with prejudice and a written order assessing attorney fees and costs against the plaintiff and plaintiff's counsel. As to both orders, a Rule 304(a) finding was also made. From these orders, plaintiff appealed, docket No. 4-88-0860.
As to count I, the plaintiff filed a motion for summary judgment, a memorandum in support of the motion for summary judgment and, later, a supplement to the motion for summary judgment. The City filed a memorandum in opposition to the motion. The trial court heard arguments of counsel and found that the R-3 classification was unreasonable and an R-5(b) classification would be reasonable. The trial court entered a written judgment in favor of the plaintiff on October 31, 1988. The City appealed the summary judgment, docket No. 4 -- 88 -- 0836, and plaintiff appealed the dismissal of count II, docket No. 4 -- 88 -- 0879. All appeals were consolidated.
The first issue to be considered is whether the trial court erred in granting summary judgment in favor of plaintiff on count I because genuine issues of material fact remained to be considered. In Reed v. Bascon (1988), 124 Ill. 2d 386, 393, 530 N.E.2d 417, 420, the Illinois Supreme Court recently reviewed the standards for granting summary judgments:
"Section 2-1005(c) of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c)) provides that summary judgment shall be granted 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Although summary judgment is to be encouraged as an aid in the expeditious Disposition of a lawsuit (Allen v. Meyer (1958), 14 Ill. 2d 284, 292), it is a drastic measure and, therefore, should be allowed only when the right of the moving party is free from doubt (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016). The court must construe the pleadings, depositions, admissions, exhibits, and affidavits on file strictly against the movant in determining whether a genuine issue of material fact exists. Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398."
Where the matter before the trial court can be decided as a question of law, the case is a proper one for summary judgment. See Smith v. Rengel (1981), 97 Ill. App. 3d 204, 422 N.E.2d 1146; see also Lewis v. Illinois Institute of Technology (1977), 50 Ill. App. 3d 418, 365 N.E.2d 1079.
The City frames its issue in the language that material questions of fact remain. On the other hand, the City argues not that the facts are disputed or contradicted, but only that, as applied to the factors for determining the reasonableness of the zoning ordinance, the trial court's decision is unsupported. No genuine issue of material fact remains. The facts are before the court. Whether, under the facts of this case, the zoning ordinance, as applied, is unconstitutional is a question of law. This was a proper case for summary judgment and the only question is whether the trial court's determination was correct.
Enacting a zoning ordinance is a legislative function, and once a legislative body has enacted legislation in response to a need to protect and promote the general welfare of its citizens, there is a presumption the enactment is a valid exercise of police power. Therefore, a home rule unit may enact any zoning ordinance it desires as long as it meets constitutional requirements. Insofar as they operate to limit the exercise of police power, the due-process clauses of the Federal and State Constitutions proscribe only the unreasonable or arbitrary use of such power. Thus, the zoning ordinance must not only bear a reasonable relationship to the protected public interest, but the means utilized must also be a reasonable method for accomplishing the objective. Scandroli v. City of Rockford (1980), 86 Ill. App. 3d 999, 408 N.E.2d 436.
A zoning ordinance may be valid in general, but invalid as to a particular piece of property. (Petropoulos v. City of Chicago (1955), 5 Ill. 2d 270, 125 N.E.2d 522.) To overcome the presumption of validity, the property owner must show the ordinance, as applied to the subject property, is arbitrary, unreasonable and without substantial relation to the public health, welfare, and safety. (Welch v. City of Evanston (1978), 65 Ill. App. 3d 249, 382 N.E.2d 615.) The presumption of validity must be overcome by clear and convincing evidence. Coney v. County of Du Page (1977), 51 Ill. App. 3d 980, 367 N.E.2d 152.
Ordinarily, before resorting to the courts, a party must exhaust all administrative remedies. Plaintiff could have sought a variance. The variance procedure is designed to provide a flexible way to relieve rigid zoning requirements in individual cases. (Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406.) However, where a property owner's application for reclassification has been rejected, the property owner need not apply for a variance in order to exhaust administrative remedies before proceeding to challenge the ordinance in court. Liebling v. Village of Deerfield (1961), 21 Ill. 2d 196, 171 N.E.2d 585.
There are several factors which courts consider to determine the constitutionality of a zoning decision. The six factors set out in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69, are:
"(1) The existing uses and zoning of nearby property [citations], (2) the extent to which property values are diminished by the particular zoning restrictions [citations], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public [citations], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner [citations], (5) the suitability of the subject property for the zoned purposes . . . [citations], 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."
Since no one factor is controlling, they should be reviewed in the aggregate and not individually. In addition, there are two additional factors more recently recognized as requiring consideration: the evidence or lack of evidence of community need for the proposed use and the care with which of the community has undertaken to plan its use development. Sinclair Pipe Line Co., 19 Ill. 2d 370, 167 N.E.2d 406.
In Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 402 N.E.2d 719, the court pointed out that before the unreasonableness of the ordinance can be considered, the reasonableness of the proposed use must be established. The court proceeded to discuss the use in relation to the factors hereinbefore discussed, and it would seem, therefore, that the analysis of the reasonableness of the proposed use and unreasonableness of the ordinance are interrelated.
The facts available for the trial court to consider in ruling on the motion for summary judgment are these. The City passed its current comprehensive land use plan on July 19, 1983. This plan governs the use of land within the City until the year 2000 A.D. The affidavit of Mr. Keith Haynes, the director of planning and zoning and chairman of the Comprehensive Plan Task Force, indicates that the comprehensive land use plan for the City of Springfield designates part of the subject property for multiple-family development, and part of the property for single-family and duplex use. The zoning classifications which most closely approximate the uses allowed for the subject property are R-4 (general residence district) and R-3 (single-family and duplex residence district). The plan also contains an R-5(b) classification entitled multifamily and office use, which most nearly resembles the classification requested. The subject property has not been designated for multiple family-office use in the plan.
The subject property is bounded on the south by property zoned R-3 (single family and duplex district), which property has been used as single-family residences for 30 years. On the east is property zoned R-3 (single family and duplex) and R-4(c) (multiple-family district) and used as single-family residences for 30 years, with apartments for approximately three years. To the west, the property is zoned R-3 and has been used as residences for many years. To the north and across Jefferson Street the property is zoned R-3 and B-1 (highway business service district) and is used for commercial purposes. The subject parcel is bounded by Amos Avenue on the west and Jefferson Street on the north. The only commercially zoned properties adjacent to the parcel are across Amos Avenue and Jefferson Street. The use of all land immediately adjoining the parcel is in single-family residential structures, with the exception of a multiple-family apartment development near the southeast corner of the property.
The subject property had been zoned R-3 prior to plaintiff purchasing the property. Plaintiff filed his petition for rezoning on March 18, 1988. The trustee's deed indicates the property was granted to plaintiff on April 6, 1988. Plaintiff apparently purchased the property with full knowledge of the existing zoning restrictions. Although plaintiff states in his affidavit that the property has remained vacant since 1955, there is nothing in the record to indicate any effort on the part of former owners to develop the property or market the property for its zoned purposes since 1955. Plaintiff's affidavit also states that prior to purchasing the real estate, plaintiff and Judy Kjellander surveyed the area to determine the need for a day-care center by studying the number of children in a seven-block radius and discussing the need with Monsignor Wright of St. Agnes Parish. Plaintiff also determined the day-care centers in the area had long waiting lists., Plaintiff's letter to the mayor proposing the zoning reclassification began thusly:
"A proposed zoning change from R-3 to R-5b for day care will be presented at Tuesday, May 17, 1988 meeting. The land addressed at 410 N. Amos is 4.23 undeveloped acres. A proposed day care facility will occupy 2.1 acres. The State will take approximately 1.1 acres to the North for the Madison Avenue Ramp. One acre of very irregular terrain to the East will be left vacant."
A copy of this letter was attached to plaintiff's response to request to produce documents. As part of the letter there is a drawing of the proposed improvements.
When plaintiff purchased the property, it was zoned R-3. R-3 permits single-family residences and duplexes plus all uses permitted under R-1 and R-2. R-1 and R-2 uses include: single-family detached residences; agricultural; and community facilities for the educational and spiritual needs of neighborhood residents, including noncommercial athletic fields, churches, colleges or universities, community centers, public or private elementary schools, family-care facility, high school or junior high school, park, or family day-care home. There are also special permit conditional uses allowed under R-1 and R-2: cemeteries or mausoleums; electric substations, gas valve, and regulator sites serving a distribution area; fire or police stations; telephone exchanges; water or sewer pumping stations; nonbusiness clubs; radio and television transmission towers; nurseries (without greenhouses); and riding stables. R-5(b) provides for all facilities permitted under R-4, general residence district, as well as permitting "[professional] and administrative office uses which may appropriately be located in medium or high density residential areas to provide professional or essential services for the residents of the community or employment for the large percentage of the office workers who live in nearby apartments, or can perform their activities more effectively in a residential environment, unaffected by objectionable influences from commercial or residential users, and do not create significant objectionable influence in residential areas." Among the uses specifically enumerated R-5(b) uses are: answering services; non-retail business, professional, or governmental offices; business schools or colleges; dental, medical, or osteopathic offices or clinics; some medical or dental laboratories; and wholesale offices restricting samples to no more than 20% of total floor area.
After reviewing the matter, the Springfield Planning and Zoning Commission voted 7 yes, 2 no to recommend the rezoning of the subject property to R-5(b) be granted. The Springfield-Sangamon County Regional Planning Commission made the following recommendation:
"Recommend approval. The rezoning is seen as appropriate due to the compliance with the [City Comprehensive Plan], the trend in the area and due to the fact that Madison Street will cut through the property."
The affidavit of James Slifer, District Engineer of the Illinois Department of Transportation, indicated that the construction of the proposed ramp is to be completed as part of the Clearlake-Madison-Jefferson Corridor and would require the State to acquire property on the southeast corner of the intersection at Amos and Jefferson Streets. Relied upon heavily by the parties are the appraisals of C. Wayne Briggs and William Butcher.
Briggs has this to say about the subject property and the proposed use:
"The subject property at present, is a vacant 4.17 acre tract of the land which is zoned R-3, Single Family Duplex. This land has convenient access to the adjacent or nearby roadways, and utilities are available in sufficient quantity and quality for most any foreseeable future use of the property. Further, the topography of subject would not adversely affect the site for most potential uses.
The subject neighborhood is discussed earlier in this report. It was noted in that Discussion that a residential subdivision is to the south and west, and a relatively new apartment complex joins at the east. The land use trend along Jefferson Street is quite clearly to commercial usage. The apartments built to the south (along Mossman and Washington) indicate that multi-family use is a trend in the subject neighborhood. The success of nearby apartment complexes indicates that there is a demand for multi-family. There appears, however, to be little office building or higher density apartment use in the neighborhood.
Considering the subject's size, access, utility availability, and neighborhood trends, it is my opinion that the most logical use of the subject would be for multi-family development. It is further my opinion, based upon trends and neighboring uses, that a multi-family use density compatible with R-4 zoning (1 unit/1500 sq. ft. of land) would be both conforming to the neighborhood trend and a profitable use."
Briggs appraised the property at $118,000 if zoned R-3, $136,000 if zoned R-4, and $145,000 if zoned R-5, then continued:
"The residential subdivision to the south of subject is bordered by an apartment complex to the east, a school to the southwest and scattered apartment buildings a short distance southerly [ sic ]. These adjacent uses create considerable vehicular traffic in the adjacent subdivision (Sacred Heart Grove). The use of the subject property (now vacant) for any use which utilizes Columbia Avenue as an entrance/exit, will, of course increase vehicular traffic in this subdivision.
Increases in traffic flow in a residential neighborhood may cause a loss of peace and quiet, and, to a certain extent, it will change the character of the neighborhood. Individual property owners, however, have no vested interest in the flow (increase or decrease) of traffic in a dedicated roadway. It is felt that the normal growth of the city and the transition of the subject neighborhood is causing increased vehicular traffic in this adjacent subdivision. The development of subject property for whatever use will cause increased traffic on a small portion of Columbia Avenue. This increased traffic is considered to be the result of normal development and growth, and as such, is not considered to result in any compensable damage to the subdivision or residences therein.
There is a proposed ramp which will be a part of the Madison Street Project, cutting across the north part of the subject property. This ramp will be one-way east and be part of a major east-west thoroughfare. There will be no direct access from the subject to this ramp, however, there will be good visibility. Access from subject to this ramp will be convenient from Amos Avenue. This visibility and good access to the ramp will make subject quite accessible to much of Springfield.
This type of access and exposure would be beneficial to almost any use of subject under zoning from R-3 to R-5. This beneficial visibility and access is a general benefit to the entire neighborhood, however, and not limited to the subject. This proposed ramp has, on the other hand, been planned for many years. The acquisition from subject for this ramp is not yet on the five-year program. Any benefit to subject from this ramp and improved access to other areas of the city needs to be discounted for the time which might pass before construction is complete. Furthermore, there remains some 'speculation' as to when and precisely where such a ramp will be constructed. Stranger things have happened than that of having future highway plans undergo changes of alignment. In summary, however, it is my opinion that if and when such a ramp is constructed, it will have a positive influence upon whatever (R-3 to R-5) use is being made of the property."
In an affidavit submitted by the City in opposition to the motion for summary judgment, Briggs gave the following explanation:
"3. Page seven of said report contains my analysis of the highest and best use of the subject property, which I have determined to be multi-family residential use consistent with densities permitted in the R-4(d) zoning classification of the Springfield Zoning Ordinance.
4. Because of the lack of office use or higher density apartment use in the neighborhood, which would be allowed in the R-5(b) zoning classification (one dwelling unit per 1,000 square foot of lot area), I feel that uses allowed in the R-5(b) zoning classification are too intense ...