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January 20, 1994


Appeal from the Circuit Court of Will County. No. 92 CH 11271. Honorable THOMAS EWERT, Judge, Presiding.

Released for Publication February 24, 1994.

Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court.

Defendant County of Will appeals from a judgment of the Circuit Court of Will County declaring defendant's county zoning ordinance void and unconstitutional as applied to the property of plaintiffs John W. and Anna Twigg and granting injunctive relief to restrain defendant from enforcing its A-1 (agricultural) zoning regulation with respect to the subject real estate. The issue in this appeal is whether the trial court's decision is contrary to the manifest weight of the evidence. For reasons that follow, we affirm.

According to the record on appeal, plaintiffs purchased a 35-acre parcel of land in Peotone Township zoned A-1 for $3750 per acre in 1991. John Twigg testified that he knew the zoning classification at the time of the purchase, but he was not aware that the corresponding county ordinance required a minimum of 10 acres per residential unit. He testified that he had intended to divide the real estate into four parcels to provide separate residential lots for himself and his three adult children and to raise and keep horses. However, because of complaints of an adjoining property-owner, plaintiffs sold off the eastern-most 10 acres for $50,000. They then proposed to divide the remaining acreage into two 10-acre lots for one son and their daughter, and to split the last 5 acres into two lots of 2 1/2 acres each for themselves and their other son. Because plaintiffs' plans for the five acres did not conform with the A-1 classification, they petitioned the Will County Board to rezone the five acres from A-1 to E-2, which permits country residential lots of 2 1/2 acres. The Board denied plaintiffs' application, and they brought their complaint for declaratory and injunctive relief in the circuit court.

At trial, plaintiffs presented expert testimony of Thomas Murphy, a land use planner, and Charles Southcomb, a real estate appraiser. Murphy testified that E-2 zoning was a good use of the five-acre parcel and that it would have a positive effect on the future development of the surrounding area in that it would increase tax values while providing attractive residences in the immediate area. He further opined that the current A-1 zoning had no practical application and its 10-acre limitation was "somewhat arbitrary" as applied to plaintiffs' proposed use. As a former director of the Will County Regional Planning Commission, Murphy testified that in his opinion the county had assigned A-1 classification arbitrarily to all tracts in Will County that were not otherwise used for non-agricultural purposes when the county zoning ordinance was adopted in 1978. He testified that the county had a history of turning down all applications for rezoning to develop parcels of less than 10 acres. Finally, Murphy testifed that denial of plaintiffs' proposed use of the five-acre parcel for two single-family residences adjacent to their daughter's horse-keeping operation would do nothing to preserve the agricultural character of the surrounding area.

Southcomb testified that the plaintiffs' proposed use of the five-acre parcel as two lots zoned E-2 was the highest and best use. He testified that the market value of the land as currently zoned was $5000 per acre, and that using a comparable sales analysis it would be $12,000 per acre if rezoned E-2.

James Shelby, Director or Planning for Will County, and Bruce Clover, a farmer in the immediate area, testified on defendant's behalf. Shelby testifed that there were no parcels zoned E-2 within a 1 1/2-mile radius of the subject property. However, he admitted that there are about five non-conforming parcels with residences on less than 10-acre lots within that 1 1/2-mile radius. These all had been in existence prior to the enactment of the 1978 zoning ordinance. Shelby testified that residential development was generally incompatible with agricultural use because the homeowners complained about farming practices. He also expressed concern about setting a precedent for residential development if the rezoning were allowed in this case.

Clover testified that he had leased the subject real estate from the prior owner and had himself netted about $150 per acre per year on a crop-share basis. He stated that he bore no animosity toward the plaintiffs, but that agricultural use was incompatible with residential development to the extent that mail boxes and garbage cans along the roadways might hinder the movement of farm machinery, or children playing in the area might damage terraces and downspouts. Clover agreed that the soil was "excellent" for growing crops, including alfalfa, and for pasturing horses.

At the Conclusion of all testimony and closing arguments of counsel, the court took the matter under advisement. On February 22, 1993, a written decision was entered granting declaratory and injunctive relief for plaintiffs, as aforesaid.

Zoning is primarily a legislative function, and it is within the province of local governmental bodies to determine the use of land and to establish zoning classifications. Accordingly, a zoning ordinance will be deemed constitutional and its validity upheld if it bears any "'substantial relationship to the public health, safety, comfort or welfare.'" ( LaGrange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 388 N.E.2d 388, 390-91 (quoting Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80, 354 N.E.2d 899, 903).) A party challenging the validity of a zoning ordinance must establish both the invalidity of the existing zoning ordinance and the reasonableness of the proposed use of the property. ( Glenview State Bank v. Village of Deerfield (1991), 213 Ill. App. 3d 747, 758, 572 N.E.2d 399, 407.) The party challenging the ordinance has the burden of proving by clear and convincing evidence that the application of the ordinance to the property is "unreasonable and arbitrary and bears no substantial relation to public health, safety, morals, or welfare." (Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 310, 469 N.E.2d 183, 187.) An appellate court may not reverse the trial court's findings unless such findings are against the manifest weight of the evidence. ( Glenview State Bank, 213 Ill. App. 3d at 759, 572 N.E.2d at 408.) The trier of fact is in a better position to assess the credibility of the witnesses and their opinions, and the reviewing court may not reverse simply because the reviewing court may have come to a different Conclusion. Glenview State Bank, 213 Ill. App. 3d at 759-60, 572 N.E.2d at 408.

There are eight factors to consider in determining whether a zoning ordinance is valid. The first six factors were listed in LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69. They are: (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 promote the health, safety, morals or welfare of the public; (4) the relative gain to the public as compared 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. The final two factors set forth in Sinclair Pipeline Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378, 167 N.E.2d 406, 411, are: (7) the care that the community has taken to plan its land use development, and (8) the community need for the proposed use.

Although no one factor is controlling, the first factor -- existing uses and zoning of nearby property -- is "of paramount importance." ( Glenview State Bank, 213 Ill. App. 3d at 760, 572 N.E.2d at 408.) Defendant argues in this appeal that this factor weighs heavily in its favor. We do not agree. As plaintiffs correctly point out, the quarter section in which the subject property is situate is divided into nine other ownerships, three of which contain less than ten acres. Plaintiffs' five-acre parcel lies in the northwest corner of the quarter section, and within the 1 1/2-mile radius surrounding it, several residences on parcels of less than ten acres are established. Although none are zoned E-2 and were existing prior to the 1978 ordinance, the uses of nearby property are not inconsistent with the E-2 use plaintiffs propose for the five-acre parcel in question. The trial court ...

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