Supreme Court of Illinois.
LA SALLE
NATIONAL BANK OF CHICAGO, Appellee,
v.
The COUNTY OF COOK,
Appellant.
No. 34256.
Sept. 20, 1957.
BRISTOW, Justice.
Cook County, defendant in the trial court, has appealed directly to this court
**67 from
a declaratory judgment of the circuit court of Cook County holding that the Cook
County zoning ordinance, insofar as it applies to plaintiff's property, is unconstitutional
and invalid.
****
An examination of the record reveals that plaintiff's complaint
challenged the validity of the zoning ordinance as depriving
plaintiff of its property without due process of law as a taking
of private property for public use without just compensation,
and as denying equal protection of the laws, all of which questions
involve a construction of the constitution as well as challenging
the unreasonableness of the ordinance. The decree appealed from
based its finding on those constitutional issues.
****
The property in question is owned by plaintiff as trustee, and
is situated in unincorporated territory near Des Plaines at the
southeast corner of the intersection of Dempster Road and Rand
Road. Both roads are heavily traveled four-lane arterial highways
with traffic exceeding 15,000 vehicles per day. The property is
a vacant, low-lying traingular-shaped piece of land, the blunted
apex of the triangle at the road intersection measuring about 55
feet. The base of the triangle is a drainage ditch about 356 feet
long running *44 between
Dempster and Rand Roads. The tract has approximately 566 feet frontage
on Dempster and about 368 feet on Rand Road.
The zoning ordinance of Cook County zones the subject property
as R-4, which restricts the use thereof to single family residences,
each one on a building plot or lot not less than 60 feet average
width and 10,000 square feet in area, and to those uses permitted
in R-3 districts.
Two experts and one of the beneficial owners testified for plaintiff,
while one expert was the sole witness for defendant. From this
testimony it appears that west of the property on Dempster Road
are a factory and office building of Singer Sewing Machine Company;
an old foundry used partly as a warehouse and garage and partly
for commercial and industrial purposes; a plant of Precision Tool
Company; a **68 Veterans
of Foreign Wars recreational building; a park district civic center;
a General Box Company factory, and the Little Fuse Company factory.
On Rand Road to the northwest of the property are a tavern and
package goods store; a wholesale greenhouse, and residences converted
to real estate offices and photographic studios. East on Dempster
Road are a vegetable and fruit stand; a church, and a small farm.
To the south on Rand Road is a 40-acre tract zoned for a shopping-center
use. Interspersed along the roads in each direction are various
houses and vacant lots. The Forest Preserve District area is north
of the property. The plaintiff desires to erect a gasoline service
station on its property.
Plaintiff's expert witnesses testified that the highest and best
use of the property was for commercial purposes; that if used for
residences according to current zoning the property was worth $8000
to $10,000; that if used for business purposes it would be worth
$30,000 to $40,000; that the property is not suitable for homes
because it is at a heavy-traffic intersection, is low, irregularly
shaped, adjacent to two four-lane heavy-traffic roads and to a
deep ditch; that *45 there
are no sidewalks in the area; and that there has been no residential
development in the section. It was also testified that commercial
improvement would have no harmful effect on neighboring property
but would benefit it from increased taxes, additional light on
the corner, elimination of some traffic hazards and increased income
to the community. Existing residential uses would not be adversely
affected, according to plaintiff's witnesses. The property has
not been improved with water, sewers, or sidewalks, and no plans
exist to provide the same, and has been vacant for the entire period
it has been zoned for residences, even though the general area
has enjoyed a substantial building boom. The tendency of the area
is to go commercial.
Defendant's sole witness was a city planner who testified, in
substance, that four or five houses could be built on the property
and that if commercial use was permitted it would be inharmonious
with residential development, attract additional traffic, create
additional light glare, create a different atmosphere, attract
billboard advertising and be detrimental to the nearby communities
of Des Plaines and Park Ridge. He did not touch the question of
value.
The master's report found that the zoning ordinance ignored the
intermixed character of the neighborhood, surrounding uses, the
traffic situation, and the highest and best use of the property;
that there would be little gain to the public by limiting the use
to residential purposes and a great financial loss to the plaintiff
and that there are presently adverse factors to residential development;
that the denial of nonresidential use to plaintiff's property was
discriminatory since the ordinance classified for business use
other properties at similar intersections; and that the ordinance
was confiscatory, unreasonable and void as to the subject property.
On the basis of the master's report, a declaratory judgment, as
prayed, was entered. Defendant urges as ground for reversal that
the trial court's judgment and findings as *46 to the highest and best use of the property and the effect of the
proposed use on the neighborhood and surrounding territory are
not supported by the evidence and that the ordinance should have
been sustained because of conflicting evidence.
It is well established
that it is primarily the province of the municipal body to determine
the use and purpose to which property may be devoted, and it is
neither the province nor the duty of the courts to interfere with
the discretion with which such bodies are vested unless the legislative
action of the municipality is shown to be arbitrary, capricious
or unrelated to the public health, safety and morals. (case
cite omitted).
By
the same token, however, if the restrictions imposed bear no real
and substantial relation to the public health, safety, morals,
comfort and general welfare, the ordinance is void. (case
cites omitted)
A zoning ordinance is presumptively valid (case cite omitted), this
presumption may be overcome only by clear and convincing evidence
(case cite omitted), and
the burden of proof is on the plaintiff.
Even though the
validity of each zoning ordinance must be determined on its own
facts and circumstances (case cites omitted) yet an examination
of numerous cases discloses that among the facts which may be taken
into consideration in determining validity of an ordinance are
the following: (1) The existing uses and zoning of nearby property
(case cites omitted), (2)
the extent to which property values are diminished by the particular
zoning restrictions (case cites omitted), (3)
the extent to which the destruction of property values of plaintiff
promotes the health, safety, morals or general welfare of the public
(case cites omitted), (4)
the relative gain to the public as compared to the hardship imposed
upon the individual property owner (case cites omitted), (5)
the suitability of the subject property for the zoned purposes
(in this cause residences on 10,000 square feet) (case cites omitted)
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. (case cites omitted)
Much evidence was heard concerning traffic conditions, general
character of the neighborhood, highest and best uses, valuations,
etc. Each side produced expert witnesses to sustain its contentions.
Difference of opinion does not render plaintiff's evidence unbelievable
or require a finding that the reasonableness of the ordinance is
debatable.
No one factor
is controlling. It is not the mere loss in value alone that is
significant, but the fact that the public welfare does not require
the restriction and resulting loss. When it is shown that no reasonable
basis of public welfare requires the limitation or restriction
and resulting loss, the ***
ordinance fails and the presumption of validity is dissipated. Krom
v. City of Elmhurst, 8 Ill.2d 104, 133 N.E.2d 1. The law does
not require that the subject property be totally unsuitable for
the purpose classified but it is sufficient *** that
a substantial decrease in value results from a classification bearing
no substantial relation to the public welfare.
After examining
the record we are satisfied that the master in chancery and trial
court were justified in their conclusions. There is naturally a
conflict of testimony in cases of this nature and the credibility
of witnesses is of great importance. The triers of fact are in
a superior position to that of a reviewing court in such a situation.
When testimony is contradictory in a trial without a jury the weight
to be accorded testimony is a matter to be determined by the trial
court and its findings will not be disturbed unless manifestly
against the weight of the evidence. We believe the findings and
judgment of the trial court are supported by the evidence and should
be affirmed.
Judgment affirmed.
(note – a
dissenting opinion concerned only with the issue of whether the
Illinois Supreme Court rather than the Appellate Court should
be hearing the appeal, is omitted).
(Instructor’s note- Procedurally, this
case was certified for direct appeal from the trial court to
the Illinois Supreme Court under court rules then in effect because
of the constitutional issues involved.
This case represents the first attempt by the Illinois Supreme
Court to pull together principals articulated from prior zoning
cases decided by Illinois appellate courts - i.e., the common
law in Illinois, into a comprehensive doctrine regarding factors
the courts should look to in determining whether a challenged
zoning ordinance or zoning amendment is a valid legislative act. The
omitted case citation references noted above are the actual case
names of those prior Illinois appellate court decisions.
Subsequent Illinois state court appellate decisions have added
two factors to the six articulated in this case, namely the community's
need for the proposed use; and the care with which the community
has undertaken to plan its land use development. These criteria,
which have come to be known in Illinois planning parlance as the “La
Salle criteria”, are well known to any planning
profession who has devoted a significant part of his or her practice
to the preparation of reports outlining the issues posed by proposed
zoning amendments.)
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