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August 29, 1997


Appeal from Circuit Court of Sangamon County. No. 96MR0002. Honorable Donald M. Cadagin, Judge Presiding.

Honorable Robert W. Cook, J., Honorable James A. Knecht, J. - Concur, Honorable John T. McCullough, J. - Dissent. Justice Cook delivered the opinion of the court. Knecht, J., concurs. Justice McCULLOUGH, dissenting.

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

Plaintiffs sought a declaratory judgment that an ordinance rezoning neighboring property was unconstitutional. The trial court, in a one-sentence order, entered summary judgment for defendants. Plaintiffs appeal. We hold, based on the clear and convincing evidence contained in the record, that the rezoning was spot zoning. We reverse and remand with directions for the trial court to enter summary judgment in favor of plaintiffs.

The Village of Riverton (Village) is a community of 2,700 persons, located about 10 miles east of Springfield. At the southwest corner of Lincoln Avenue and Seventh Street in Riverton, in an area zoned R-1 (residential), the Charles R. Burris and Carol J. Burris Revocable Living Trust dated October 1, 1993 (Burris Trust), owned a portion of a residential lot, with a frontage on Seventh Street of 50 feet. The rest of the Burris Trust lot had been taken for Lincoln Avenue, which at one time was State Route 36. Immediately south of the Burris Trust lot, Georgeana Lyons owned a lot improved with a single-family home. Defendant-intervenor, Casey's General Stores, Inc. (Casey's), purchased the Burris Trust and- Lyons properties, then filed a petition with the village board of trustees (Board), seeking reclassification of the properties from R-1 to C-1 (commercial). On December 4, 1995, the Board enacted ordinance 95-30, reclassifying the properties C-1.

Three of the plaintiff families (Bossman, Rapacz and Santarelli) own residential properties on the corners of Lincoln and Seventh; the other (Hibbett) owns a residential property that adjoins the Burris Trust and Lyons properties on the west. The Village was named a defendant in the declaratory judgment action, as were Lyons and the Burris Trust. Casey's was allowed to intervene as a defendant.

To the north of the Burris Trust and Lyons properties, on Seventh Street, there is residential zoning for approximately three blocks (700 feet), at which point the C-1 zoning for Riverton's downtown commercial district begins. To the east of the properties, on Lincoln Avenue, there is residential zoning for approximately three blocks (960 feet), at which point C-1 zoning begins for a commercial district around Lincoln Avenue's intersection with the interstate highway. To the south of the properties, on Seventh Street, there is residential zoning for a similar distance, after which there is agricultural zoning to the Village limits. All the property west of the properties to the Village limits (approximately 2,240 feet) is zoned residential. The block on which the properties are located is residential, as are the adjacent blocks in all directions (there is only one long block to the south, with only one cross street before the agricultural zoning).

Casey's argued the integrity of the R-1 zoning had been destroyed before it entered the picture. The Interurban Restaurant is located across Seventh Street in the second block north of the Burris Trust and Lyons properties, in a building whose commercial use predated the adoption of the Village zoning ordinance in 1968. Across Seventh Street from the restaurant is an elementary school and church. The Village water plant (described in the Village's brief as "an industrial eyesore") is located across Seventh Street, south of the Burris Trust and Lyons properties. The land to the south of the properties is pretty much vacant. There is a Knights of Columbus Hall, a permitted special use, four blocks southwest of the Burris Trust and Lyons properties, on the west side of Third Street. There is a church west of the properties, on the north side of Lincoln Avenue, about 1 1/4 blocks from Seventh Street. Casey's also complained the local newspaper was operated out of a residence on Sixth Street (telephoning and typing for a weekly paper, printing done elsewhere), a dog grooming business was operated out of another residence on Sixth Street, and there was a commercial sign on the Bossman property across Seventh Street from the Burris Trust and Lyons properties (which plaintiffs described as "a small aged, weathered sign tacked to the Bossman's back yard wood privacy fence advertising the Bossman's furniture store in Springfield"). Lincoln and Seventh is the busiest intersection in town, but plaintiffs respond that this is a town of only 2,700 people.

Concern has been expressed over some types of local governmental action in zoning cases:

"It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government. I need not dwell at length on the obvious opportunity this affords for special privilege, for the granting of favors to political friends or financial benefactors, for the withholding of permits from those not in the good graces of the authorities, and so on. The rule is familiar enough that courts may not inquire into the motives or reasons on which the legislative body acted. [Citation.]

It is because of this immunity from review that legislative bodies must confine themselves to the prescribing of general rules. If they may undertake to confer upon themselves authority to decide what in fact amount to individual or particular cases, the foundations of our legal system will fast disappear." Ward v. Village of Skokie, 26 Ill. 2d 415, 424, 186 N.E.2d 529, 533 (1962) (Klingbiel, J., specially concurring).

See also Kotrich v. County of Dupage, 19 Ill. 2d 181, 189-90, 166 N.E.2d 601, 606 (1960) (House, C.J., dissenting). In 1967, the Illinois Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 11-13-1 et seq.) was amended (1967 Ill. Laws 3335 (ยง 11-13-1 et seq.)) to incorporate the views expressed in that special concurrence and dissent. Geneva Residential Ass'n, Ltd. v. City of Geneva, 77 Ill. App. 3d 744, 754, 397 N.E.2d 849, 856, 34 Ill. Dec. 177 (1979).

Sections 11-13-1.1 and 11-13-5 of the Illinois Municipal Code (Municipal Code) require that variances and special use permits be granted only in accordance with established standards (65 ILCS 5/11-13-1.1, 11-13-5 (West 1994)), after a public hearing and findings of fact (65 ILCS 5/11-13-1.1, 11-13-5, 11-13-11 (West 1994)). In municipalities over 500,000, the decision must be made by the zoning board of appeals, the corporate authorities may not overrule that decision, and an appeal lies under the Administrative Review Law. 65 ILCS 5/11-13-4, 11-13-13 (West 1994). Municipalities under 500,000 may utilize that same approach or may reserve the ultimate decision on variances and special use permits to themselves. 65 ILCS 5/11-13-5, 11-13-11 (West 1994). Any result that may be obtained through a variance or a special use permit may also be obtained through an amendment to the zoning ordinance, but the Municipal Code does not attempt to regulate zoning amendments, except to require a hearing and to require that in some cases amendments must be approved by a two-thirds vote of the aldermen holding office. 65 ILCS 5/11-13-14 (West 1994). The only real limitation on zoning amendments is the inquiry whether they may constitute spot zoning.

The case of La Salle National Bank v. City of Evanston, 57 Ill. 2d 415, 428, 312 N.E.2d 625, 632 (1974), is often cited:

"Before a court will intervene it must be established by clear and convincing evidence that the ordinance, as applied to plaintiffs, is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. These rules are based upon a recognition that zoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare. [Citations.] Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. [Citation.] In [ La Salle National Bank] v. [County of Cook], 12 Ill. 2d 40, [46-47, 145 N.E.2d 65, 69 (1957),] we reviewed the considerations determining the validity of an ordinance as applied to a particular property and stated that 'among the facts which may be taken into consideration in determining the validity of an ordinance are the following: (1) The existing uses and zoning of nearby property, [citing cases], (2) the extent to which property values are diminished by the particular zoning restrictions, [citing cases], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public, [citing cases], (4) the relative gain ...

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