Garner v. Du Page County

• Decision Date: 22 March 1956
• Docket Number: No. 33784,33784
• Citation: Garner v. Du Page County, 133 N.E.2d 303, 8 Ill.2d 155 (Ill. 1956)
• Parties: Mary H. GARNER et al., Appellants, v. The COUNTY of DU PAGE et al., Appellees.
• Court: Illinois Supreme Court

Page 303

133 N.E.2d 303

8 Ill.2d 155

Mary H. GARNER et al., Appellants, v. The COUNTY of DU PAGE et al., Appellees.

No. 33784.

Supreme Court of Illinois.

March 22, 1956.

Gordon Moffett, Wheaton, George D. Carbary, Elgin, and Lederer, Livingston, Kahn & Adsit, Chicago (Burton Y. Weitzenfeld and Ralph Jonas, Chicago, of counsel), for appellants.

William L. Guild, State's Atty., Wheaton, Winston, Strawn, Black & Towner and Osborne, Scheib, Adams & Hogan, Chicago, and Rathje & Woodward, Wheaton (John C. Slade, Douglas C. Moir and Edward J. Wendrow, Chicago, of counsel), for appellees.

DAILY, Justice.

This is a direct appeal from a decree of the circuit court of Du Page County which found an amendment to the county's zoning ordinance to be a constitutional exercise of the police power and dismissed, for want of equity, a complaint attacking its validity and seeking injunctive relief.

Facts necessary to this opinion show that the amendment in question changed from 'F' (farming) to 'I-2' (industrial) the zoning classification of a 120-acre tract of land located approximately one mile west of the city of Naperville. Proceedings for the change were instituted by Dorothy R. Polivka, the owner of the tract, shortly after she had given Foote Bros. Gear and Machine Corporation an option to purchase it. Zoning regulations permitting, the corporation proposed to erect industrial units which would eventually employ 1500 to 2000 persons. The city council of Naperville, to whom section 2 of the County Zoning Act gives a right of protest (Ill.Rev.Stat.1955, chap. 34, par. 152j) expressed itself to county officials as favoring the rezoning; the county zoning board of appeals recommended against it. However, the county board, by the unanimous vote of its members present, amended the county ordinance so as to effect the change of zoning requested. After the rezoning, Mary H. Garner, Donald J. Anderson and Walter L. Darfler, the appellants, filed a complaint against the county and its zoning officers praying that the amendment be declared null and void and that the defendants be permanently enjoined from issuing a building permit for the construction of any industrial or business buildings on the Polivka tract. Subsequently Dorothy Polivka and Foote Bros. Corporation were made parties defendant.

Appellants' complaint alleged that they were taxpayers, residents of the county, the owners of real estate in and about the city of Naperville, and that said real estate was located contiguous to and in the vicinity of the tract rezoned. As grounds for the relief prayed it was alleged that the rezoning was unreasonable, arbitrary and capricious, that it decreased the value of appellants' property, and that it would be detrimental to the welfare of the city of Naperville in that the influx of population expected to accompany the industrial use contemplated by Foote Bros. would overtax the city's facilities for housing, education, water, sewage disposal, traffic and the like.

Proof given in support of the complaint disclosed that the real property owned by appellants was neither contiguous to nor in proximity with the Polivka tract. It appears, rather, that Garner and Anderson own residential properties within the corporate limits of Naperville some three miles from the tract rezoned and thus outside both the unincorporated area and the use district affected. As regards Darfler, the evidence was that he owns a 100-acre dairy farm within the same use district, but that it is located one and one-half miles distant from the rezoned tract. Similarly, the proof failed to support the allegation that the values of appellants' property were decreased by the change of zoning classification. Appellants Garner and Anderson testified at the hearing of the cause but Darfler did not; however, neither of said appellants nor any of the witnesses appearing in their behalf gave any evidence whatsoever relating to the...