Harvard State Bank v. County of McHenry

• Decision Date: 27 September 1993
• Docket Number: No. 2-93-0058,2-93-0058
• Citation: 190 Ill.Dec. 99,251 Ill.App.3d 84,620 N.E.2d 1360
• Parties: , 190 Ill.Dec. 99 HARVARD STATE BANK, as Trustee, et al., Plaintiffs-Appellants, v. The COUNTY OF McHENRY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1360

620 N.E.2d 1360

251 Ill.App.3d 84, 190 Ill.Dec. 99

HARVARD STATE BANK, as Trustee, et al., Plaintiffs-Appellants, v. The COUNTY OF McHENRY, Defendant-Appellee.

No. 2-93-0058.

Appellate Court of Illinois,

Second District.

Sept. 27, 1993.

Thomas W. Schmitt, Marengo, for Harvard State Bank, Philip L. Giancola, Lucy Giancola, Anthony CiCicco, Michael Rizzo, Laverne Giancola, Gregory M. Giancola, Mark Giancola.

Gary W. Pack, McHenry County State's Atty., Woodstock, James G. Militello, III, Asst. State's Atty., Woodstock, for County of McHenry.

Justice McLAREN delivered the opinion of the court:

In February 1991, plaintiffs petitioned the County of McHenry for rezoning of their 64.5-acre property in unincorporated Coral Township, Illinois, from A-1 (agricultural) to E-1 (estates of one acre). A protest was filed by owners of adjacent properties. On June 18, 1991, the county board of McHenry, based on a finding by the McHenry County planning commission that the rezoning would be incompatible with surrounding land uses and inconsistent with McHenry County's general land-use plan, voted to deny plaintiffs' petition.

On July 10, 1992, plaintiffs filed a complaint for declaratory judgment and injunctive relief in the circuit court in McHenry County seeking to have the county's zoning restriction declared unconstitutional as applied to their property. Following a bench trial, the court entered judgment for the county. Plaintiffs then brought this appeal. Because we find the circuit court's ruling was not contrary to the manifest weight of evidence, we affirm.

Plaintiffs argue that the zoning ordinance as applied to their property is arbitrary, unreasonable and bears no substantial relation to the public health, safety, morals or welfare. The law governing the constitutionality of zoning ordinances is well settled in Illinois. (See La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 145 N.E.2d 65; Wilson v. County of McHenry (1981), 92 Ill.App.3d 997, 48 Ill.Dec. 395, 416 N.E.2d 426.) A zoning ordinance is presumptively valid and will be held an unconstitutional exercise of police power only upon a showing that the ordinance bears no substantial relation to the general welfare. (Smeja v. County of Boone (1975), 34 Ill.App.3d 628, 631, 339 N.E.2d 452.) The burden is on the party seeking the zoning change to show by clear and convincing evidence that the ordinance is unconstitutional. (Exchange National Bank v. County of Cook (1962), 25 Ill.2d 434, 439-40, 185 N.E.2d 250.) On appeal, plaintiffs must demonstrate that the trial court's ruling was against the manifest weight of evidence. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill.2d 510, 516-17, 17 Ill.Dec. 831, 377 N.E.2d 21.

When determining whether a zoning ordinance is valid, Illinois courts balance a variety of factors to determine whether the zoning restriction is fair to the owner of the subject property, owners of surrounding properties, and the public.

Among the factors considered when making this determination are six that have been summarized in La Salle National Bank and often repeated in later cases. These factors are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by particular zoning restrictions; (3) the extent to which the the destruction of property values of plaintiffs' land promotes the health, safety, morals or general 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. (La Salle National Bank, 12 Ill.2d at 46-47, 145 N.E.2d 65.) Two other factors often considered by Illinois courts include the community need for the use proposed by the plaintiff and the care with which the community has undertaken the planning of its development. (Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill.2d 370, 378, 167 N.E.2d 406.) Other cases state that determination of the highest and best use of a property is an important factor. See Rams-Head Co. v. City of Des Plaines (1956), 9 Ill.2d 326, 331, 137 N.E.2d 259; People ex rel. Alco Deree Co. v. City of Chicago (1954), 2 Ill.2d 350, 357-58, 118 N.E.2d 20.

No single factor is controlling (La Salle National Bank, 12 Ill.2d at 47, 145 N.E.2d 65), and each case must be judged on its own facts (Schmidt v. City of Berwyn (1985), 134 Ill.App.3d 36, 46, 89 Ill.Dec. 193, 479 N.E.2d 1199). However, "[o]f paramount importance is the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established." La Grange State Bank v. County of Cook (1979), 75 Ill.2d 301, 309, 26 Ill.Dec. 673, 388 N.E.2d 388.

Plaintiffs admit that the dominant use and zoning of properties in the immediate vicinity of their parcel is agricultural. However, plaintiffs argue, the character of the area is changing and other uses, primarily residential, have appeared in the area in recent years. It is also apparent from zoning and use maps of the area offered at trial that significant residential development has appeared in the area. While the mere existence of nonconforming uses in an area zoned for a particular purpose does not void restrictions to other similarly situated properties, the existence of such nonconforming uses should be considered in evaluating the total character of the area in question. La Salle National Bank v. City of Park Ridge (1979), 74 Ill.App.3d 647, 659, 30 Ill.Dec. 587, 393 N.E.2d 623.

Plaintiffs note in their brief there are seven parcels zoned for residential development within a two-mile radius of their land and that these developments include 190 platted residential lots, 117 with homes and 73 vacant. Maps introduced at trial disclose that plaintiffs' property is directly bounded on all sides by agricultural-zoned land that is either being farmed or is open space, designated as "natural areas." A small section of plaintiffs' land borders the east side of Harmony Hill Road, and the land directly across Harmony Hill Road to the west is also farmland. The closest residential subdivision to the plaintiffs' land is the Raven Hills development, 5 houses and 36 vacant lots zoned E-1 that face plaintiffs' land directly across Harmony Hill Road at the southwest diagonal corner.

Seven of the nine platted subdivision parcels within a two-mile radius of plaintiffs' land are located to the west of Harmony Hill Road. Only the two units of Marengo Ridge Estates, comprising 10 houses and 14 vacant lots, lie to the east of Harmony Hill Road. These units are about one mile north of plaintiffs' land on the west side of Harmony Hill Road and are surrounded by or border the Marengo Ridge Golf Course. The homes are zoned E-1 and R-1 (half-acre residences).

To the southwest of Harmony Hill Road and within two miles of plaintiffs' land are four subdivision units of Harmony Hills Estates. Ox Bow Woods lies about a mile to the northwest of plaintiffs' land and is comprised of 21 houses and 1 vacant lot in two units zoned E-3 (for three-acre estates). There is an E-5 (five-acre) parcel south of Harmony Hills Estates on the west side of Harmony Hill Road at Riley Harmony Road.

At trial, real estate developer and broker James Sarko testified for plaintiffs that the trend of development along Harmony Hill Road and the general area surrounding it is residential. Sarko sold the land in question to plaintiffs and manages it for them. Sarko's son, Roland F. Sarko, a land-use planner who designed the Raven Hills community, testified for plaintiff that E-1 zoning would be consistent with existing uses because there are E-1 parcels in the immediate vicinity.

Defendant countered with testimony from Joseph Abel, a land-use planning consultant and former director of planning for Du Page County who conducted a site survey of the area surrounding plaintiffs' land. He concluded that a residential development on the site in question would pose a hardship to the agricultural community in the area by restricting use of heavy equipment and working hours because of noise, dust and inconvenience to residential neighbors. Abel said a new residential subdivision could set off a domino effect that would push farming out of the immediate vicinity. Abel also concluded that the highest and best use of the property is agricultural. He defined highest and best use as "that use which effectively utilizes a parcel of land and at the same time--and this is very important--is in harmony with the growth goals and planning policies of the community."

An examination of the cases relied upon by the court in La Salle National Bank v. County of Cook in determining that current zoning and use should be a key factor to consider in zoning cases discloses that a restrictive zoning classification is most likely to be ruled invalid when an area in question has undergone a virtually complete change in character from its zoned purpose. (See Krom v. City of Elmhurst (1956), 8 Ill.2d 104, 133 N.E.2d 1; Langguth v. Village of Mount Prospect (1955), 5 Ill.2d 49, 124 N.E.2d 879.) In the present case, the area of plaintiffs' land has not undergone such a complete change in character despite the presence of nearby residential development. Thus the La Salle factor of current use and zoning of surrounding properties weighs in defendant's favor.

There was no dispute at trial that plaintiffs' property would have a higher value if rezoned E-1 than it has currently. Plaintiffs purchased the land in question in October 1978 for $226,000, or $3,500 per acre. Plaintiffs' witness James Sarko testified that the current market value of the land as zoned is $258,000, or $4,000 per acre. He said the parcel would be worth double that amount, or $516,000, if it were zoned E-1. In addition, he...