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02/10/94 OLIVER CONSTRUCTION COMPANY v. VILLAGE

February 10, 1994

OLIVER CONSTRUCTION COMPANY, INC., PLAINTIFF-APPELLANT,
v.
THE VILLAGE OF VILLA PARK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 87-CH-330. Honorable S. Keith Lewis Judge, Presiding.

Quetsch, Woodward, Bowman

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

The plaintiff, Oliver Construction Company, brought suit against the defendant, the Village of Villa Park, seeking a declaratory judgment that the defendant's zoning ordinance as applied to the plaintiff's property was unconstitutional and void. The plaintiff also sought to enjoin the defendant from interfering with its proposed development of the property. The court ruled in favor of the defendant, finding that the R-3 classification (duplex) was reasonable and bore a substantial relationship to the public health, safety, morals, and welfare. Further, the court ruled that the plaintiff had failed to prove that its proposed office use for the property was reasonable. The plaintiff appeals the judgment of the trial court. We affirm.

Paul Hoffman, the president of Oliver Construction Company, bought the subject property in 1955. The property is located in Villa Park at the southwest corner of Illinois Route 83 (a six-lane highway running north-south) and Highland Avenue (running east-west). The property is a rectangular-shaped parcel extending 664 1/2 feet to the south of Highland Avenue. It has a depth of 100 feet at its north end and 105 feet at its south end. The property is divided into four lots (lots 187, 188, 189, and 190.) Until 1983, there was approximately an eight-foot differential between the highest portion of the property along Riverside Drive to the west and the lowest portion of the property fronting Route 83. In 1983, the plaintiff partially filled the lower portion of the property.

When Hoffman bought the property, the area where it is located was zoned R-2 (single-family residential). In 1965, most of the area was rezoned to R-3 (duplex). The R-3 zoning district extends from just north of Washington Street on the south of the subject property to just south of Riverside Court on the north of the subject property, with a depth of 90 feet from the right-of-way line of Route 83. Duplex construction has recently begun within the R-3 district at the southwest corner of Washington Street and Route 83. There has been no other development within the R-3 zoning district.

The subject property is adjacent to an R-2 zoning district to the west. That area has been developed with single-family residences. There is a mixture of commercial and industrial uses across the street on the east side of Route 83.

On October 31, 1986, the plaintiff filed an application to rezone the property to O/R (office research). The defendant denied the application. The plaintiff subsequently filed an application for a planned unit development. The planned unit development was originally intended to be a 16,000-square-foot building with access off of Highland Avenue. The defendant's plan commission conditionally approved the plan subject to the building being reduced in size to not more than 12,000 square feet. The Commission also suggested that the style of the building be changed. The plaintiff drew up another plan incorporating the Commission's suggestions. However, the defendant denied the application.

The plaintiff brought this action following the defendant's decision to deny its application to rezone the property. At trial, the plaintiff presented expert witnesses who testified that the subject property was unfit for residential purposes due to its long and narrow shape and its proximity to Route 83 (the busiest highway in Du Page County with daily traffic of 109,000 vehicles). These witnesses stated that the highest and best use for the property was O/R (office research) and that the plaintiff's proposed office building would comply with the defendant's building codes for O/R and would not cause traffic problems. The defendant's expert witnesses, on the contrary, testified that O/R would not be compatible with the surrounding residential area and that the plaintiff's proposed office development provided for parking spaces which did not meet code requirements. These witnesses also stated that the office development would create potentially dangerous traffic problems for cars turning into Highland Avenue from Route 83.

Following the bench trial, the court ruled in favor of the defendant. The court determined that the plaintiff had failed to prove by clear and convincing evidence that the R-3 zoning of the plaintiff's property is arbitrary and unreasonable. The court also found that the plaintiff had failed to prove that its proposed use for the property is reasonable. The plaintiff filed this timely appeal.

As a preliminary matter, the plaintiff asks that we strike the additional statement of facts contained in the defendant's brief for failing to comply with the requirements of Supreme Court Rule 341(e)(6) (134 Ill. 2d R. 341(e)(6)) that they be stated fairly and accurately without comment. However, we find that nothing in the statement of facts is so misleading as to interfere with or preclude our review. Under these circumstances the statement of facts need not be stricken. Village of Fox River Valley Gardens v. Lake County Forest Preserve District (1992), 224 Ill. App. 3d 919, 924.

We proceed to address the merits of the appeal. A zoning ordinance, as a legislative judgment, is presumptively valid. ( Glenview State Bank v. Village of Deerfield (1991), 213 Ill. App. 3d 747, 759.) The party challenging a zoning ordinance bears the burden of proving by clear and convincing evidence that the ordinance is arbitrary and unreasonable as applied to the subject property and bears no substantial relation to the public health, safety, morals, or welfare. ( Glenview State Bank, 213 Ill. App. 3d at 759.) The party must also prove that the proposed use is reasonable. ( Glenview State Bank, 213 Ill. App. 3d at 758.) Where there is room for a legitimate difference of opinion concerning the reasonableness of a zoning ordinance or when the question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. ( Glenview State Bank, 213 Ill. App. 3d at 759.) The judgment of the trial court is entitled to great weight and will not be reversed unless it is against the manifest weight of the evidence. Glenview State Bank, 213 Ill. App. 3d at 759.

In La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, our supreme court set forth six factors which may be considered in determining whether an ordinance is reasonable. 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 diminution of the plaintiff's property value promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public 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 vicinity of the subject property. ( La Salle National Bank, 12 Ill. 2d at 46-47.) In Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378, the supreme court added two more factors to be considered: community need for the proposed use and the care with which the community had undertaken to plan its land-use development.

Although no one factor is determinative, we have held that the first factor, the existing uses and zoning of nearby property, is of "paramount importance." ( Glenview State Bank, 213 Ill. App. 3d at 760.) The plaintiff contends that this factor weighs in its favor since the entire R-3 (duplex) zoning district is vacant as zoned. However, there was testimony at trial that duplex construction is ...


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