Bossman v. Village of Riverton
Annotate this Case
NO. 4-97-0047
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
HEINZ BOSSMAN, MARIE BOSSMAN, JAMES ) Appeal from
HIBBETT, BEVERLY HIBBETT, PETER RAPACZ, ) Circuit Court of
SHARON RAPACZ, W. THOMAS SANTARELLI, ) Sangamon County
and SHIRLEY SANTARELLI, ) No. 96MR0002
Plaintiffs-Appellants, )
v. )
THE VILLAGE OF RIVERTON, GEORGEANA, )
LYONS, CHARLES R. BURRIS, and CAROL J. )
BURRIS, Trustees of the Charles R. )
Burris and Carol J. Burris Revocable )
Living Trust Dated October 1, 1993, )
Defendants-Appellees, )
and ) Honorable
CASEY'S GENERAL STORES, INC., ) Donald M. Cadagin,
Defendant-Intervenor. ) Judge Presiding.
_________________________________________________________________
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 judg-
ment 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 plain-
tiffs.
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 agri-
cultural zoning).
Casey's argued the integrity of the R-1 zoning had been
destroyed before it entered the picture. The Interurban Restau-
rant 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 (de-
scribed 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¬ blocks from Seventh Street. Casey's also com-
plained 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 ex-
ceptions, or decide particular cases. Such
activities are not legislative but adminis-
trative, quasijudicial, or judicial in character.
To place them in the hands of legislative bodies,
whose acts as such are not judicially review-
able, is to open the door completely to arbitrary
government. I need not dwell at length on the
obvious opportunity this affords for special pri-
vilege, 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 them-
selves 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 (11-13-1 et
seq.)) to incorporate the views expressed in that special concur-
rence and dissent. Geneva Residential Ass'n, Ltd. v. City of
Geneva, 77 Ill. App. 3d 744, 754, 397 N.E.2d 849, 856 (1979).
Sections 11-13-1.1 and 11-13-5 of the Illinois Munici-
pal 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 con-
cerning 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 con-
siderations 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 to the public as compared to the hardship
imposed upon the individual property owner,
[citing cases], (5) the suitability of the
subject property for the zoned purposes
[citing cases], and (6) the length of time
the property has been vacant as zoned con-
sidered in the context of land development
in the area in the vicinity of the subject
property. [Citing cases.]'"
It is important to note that in Evanston the municipal-
ity rejected the property owner's attempt to rezone the property,
and the supreme court affirmed the municipality's decision to
stand behind its zoning ordinance. Evanston is not authority for
the proposition that a court should give deference to a
municipality's decision when it grants a property owner's request
for special treatment and engages in spot zoning. See Rodriguez
v. Henderson, 217 Ill. App. 3d 1024, 1030, 578 N.E.2d 57, 61
(1991). The Village cites County of Cook for the deference that
should be given the legislative body. Interestingly enough, the
court in that case found that the ordinance before it (the
original ordinance) was arbitrary and void, and stated that a
difference of opinion between the opposing expert witnesses did
not require a finding that the reasonableness of the ordinance
was debatable. County of Cook, 12 Ill. 2d at 47, 145 N.E.2d at
69.
"Spot zoning" is a change in zoning applied only to a
small area, which is out of harmony with comprehensive planning
for the good of the community; zoning that would violate a zoning
pattern that is homogeneous, compact and uniform. Chicago Title
& Trust Co. v. Village of Skokie, 60 Ill. App. 3d 221, 235, 376 N.E.2d 313, 324 (1978). This does not mean that every reclassi-
fication of a single tract is void ipso facto; rather, it must be
determined whether such change is in harmony with a comprehensive
plan for orderly utilization of property in the locality. The
size of the rezoned tract or area is merely one factor to consid-
er. Fifteen Fifty North State Building Corp. v. City of Chicago,
15 Ill. 2d 408, 418, 155 N.E.2d 97, 102 (1958) ("it is true that
inconsistent zoning of small parcels is not to be encouraged").
Sometimes the original zoning ordinance has made a mistake with
regard to a single tract. Bringing that tract into harmony with
the surrounding property is not spot zoning, or said another way,
is not illegal spot zoning. However, the power to zone or rezone
cannot be exercised to satisfy the individual desires of a few.
Cosmopolitan National Bank v. City of Chicago, 27 Ill. 2d 578,
584-85, 190 N.E.2d 352, 356 (1963) (amendatory ordinance void
where no change in general character or existing uses in neigh-
borhood).
It would be difficult to find spot zoning in an area
where conflicting uses were haphazardly mixed. Such mixing may
exist either because little thought was given to the establish-
ment of the districts or because other uses over time have been
allowed to invade the districts. Nevertheless, the existence of
a formal comprehensive plan is not essential to a finding of spot
zoning. What is important is that the community in question has
given care and consideration to the use and development of the
land within its boundaries. First National Bank v. Village of
Vernon Hills, 55 Ill. App. 3d 985, 990, 371 N.E.2d 659, 664
(1977). Of paramount importance is whether the subject property
is zoned in conformity with surrounding existing uses and whether
those uses are uniform and established. Truchon v. City of
Streator, 70 Ill. App. 3d 89, 93, 388 N.E.2d 249, 252 (1979).
The existence of a comprehensive plan may justify what would
otherwise be spot zoning. If the Village here had a comprehen-
sive plan that looked to the construction of a convenience store
and gas station in the area of Lincoln and South Seventh Street,
this rezoning may not have been spot zoning. However, there
clearly was no such plan and the actual zoning pattern in the
area was uniformly residential.
A number of early cases are often cited for the state-
ment that in determining the validity of an amendatory or revised
ordinance, the factors to be considered are the same as those
involved in ascertaining the legality of the initial ordinance.
Garner v. City of Carmi, 28 Ill. 2d 560, 564, 192 N.E.2d 816,
818-19 (1963) (amendatory ordinance found invalid); Exchange
National Bank v. County of Cook, 25 Ill. 2d 434, 441, 185 N.E.2d 250, 254 (1962) (refusal to amend ordinance sustained). That
statement seems to have originated in Trust Co. v. City of Chica-
go, 408 Ill. 91, 100, 96 N.E.2d 499, 504 (1951), where the court
was making the point that amendments to a zoning ordinance could
be struck down just like the original zoning ordinance itself,
that the repeal of an ordinance is not immune from constitutional
attack. (It has been argued that after property owners have
relied on the original ordinance it cannot be changed.) The
amendatory ordinance in Trust Co. was in fact found to be arbi-
trary and unreasonable. The inference cannot be drawn from these
cases that spot zoning stands on equal footing with other zoning.
"An amendatory zoning ordinance cannot be sustained if the
evidence fails to show that it was passed for the public good,
but instead tends to show that it was passed in deference to the
wishes of certain individuals." Trust Co., 408 Ill. at 100-01,
96 N.E.2d at 504-05.
Casey's argues its project will bring additional jobs,
additional tax revenue, and competition to Riverton, citing
Westwood Forum, Inc. v. City of Springfield, 261 Ill. App. 3d
911, 918-19, 634 N.E.2d 1154, 1160 (1994). One of the justifica-
tions for a zoning ordinance is that it "promotes the health,
safety, morals or general welfare of the public." County of
Cook, 12 Ill. 2d at 47, 145 N.E.2d at 69. A municipality that
requires additional housing for its residents, for example, may
zone single-family areas for multifamily use. Trust Co., 408 Ill. at 101-02, 96 N.E.2d at 505. Public waterworks, fire
stations, hospitals and the like may have a substantial relation-
ship to the public welfare. See 83 Am. Jur. 2d Zoning & Planning
78, 79, 149, 150 (1992). A municipality may change its ordi-
nance to include uses not originally provided. Oak Forest Mobile
Home Park, Inc. v. City of Oak Forest, 27 Ill. App. 3d 303, 320-
21, 326 N.E.2d 473, 486-87 (1975) (mobile home park). The
present case is not an exclusionary zoning case, however. There
is another gas station and another grocery store in Riverton, and
there are C-1 areas within a reasonable distance of Lincoln and
South Seventh Street. The problem here is not a lack of C-1
areas; the problem is that the particular property where Casey's
wants to be located is zoned R-1.
Casey's argues that the Village may abandon its zoning
ordinance whenever it sees any benefit in doing so. That argu-
ment is mistaken. Not every perceived benefit will justify
rezoning, only those benefits that constitute legitimate objec-
tives of zoning. See 83 Am. Jur. 2d Zoning & Planning 70
through 127 (1992). The argument that rezoning would increase
the tax base, as opposed to conserving the tax base, has been
rejected. "[S]uch a justification is totally illusory and
totally violative of all the basic principles of zoning." Con-
cerned Citizens for McHenry, Inc. v. City of McHenry, 76 Ill.
App. 3d 798, 806, 395 N.E.2d 944, 950 (1979); see also La Salle
National Trust, N.A. v. Village of Westmont, 264 Ill. App. 3d 43,
58, 636 N.E.2d 1157, 1166 (1994); 83 Am. Jur. 2d Zoning & Plan-
ning 83 (1992).
One of the considerations in a rezoning case is whether
the property will be more valuable with the rezoning. That
consideration has been downplayed, however, since increased value
exists in virtually all reclassification cases. Suhadolnik v.
City of Springfield, 184 Ill. App. 3d 155, 176, 540 N.E.2d 895,
907 (1989); Evanston, 57 Ill. 2d at 429-30, 312 N.E.2d at 633.
That is why the owner seeks reclassification--in order to in-
crease the value of his property. Casey's varies the argument
somewhat in this case. Casey's does not argue the increased
value to itself, but attempts to focus on the corresponding value
to the community. Every new business will bring some additional
jobs, additional tax revenue, and competition. Again, that
should not be dispositive, since it is true in virtually all
reclassification cases.
The control or restriction of competition is not a
proper or lawful zoning objective. Cosmopolitan National Bank v.
Village of Niles, 118 Ill. App. 3d 87, 91, 454 N.E.2d 703, 705
(1983). Many zoning decisions have some indirect effect on
competition, but it is improper to directly legislate economic
protection for one business "against the normal competitive
factors which are basic to our economic system." Exchange
National Bank v. Village of Skokie, 86 Ill. App. 2d 12, 21, 229 N.E.2d 552, 556 (1967); see also 83 Am. Jur. 2d Zoning & Planning
81 (1992). Encouragement of one competitor amounts to discour-
agement of others. Competition should be managed by market
forces, not by local government, which should not be placed in
the position of deciding whether more (or less) competition is a
good thing. If the rezoning here is allowed to stand, the
Village will have given Casey's competitive advantages that the
existing gas station does not have. The existing gas station is
required to operate out of a C-1 area. Casey's would have a
monopoly at the Burris Trust and Lyons location, as no other gas
station could locate near it because of the surrounding R-1
zoning.
Defendants' primary argument is that plaintiffs have
conceded the ultimate issue in this case: whether there is room
for a "legitimate difference of opinion" or whether such "ques-
tion of reasonableness is fairly debatable." Plaintiffs' expert,
Chuck Kirchner, a land-use planner, testified the zoning in the
area is homogeneous, compact and uniform, and that the character
of the neighborhood is residential. He testified the action of
the Village was arbitrary and constituted spot zoning. On cross-
examination, Kirchner was asked how a community that lacked a
comprehensive plan could ever make a rational decision in a
zoning case, and he responded that they would have to listen to
each side of the case. Kirchner was asked if the result here was
irrational, and he responded "I don't know if it was irrational,
it was incorrect." Elsewhere Kirchner was asked if there were
arguments in favor of Casey's, and he replied there were no
favorable zoning arguments. Fairly read, Kirchner's remarks
indicated there were arguments that Casey's would be a desirable
addition to Riverton, if it were properly located, but those
arguments should not be considered in making a rezoning decision.
Kirchner also made the statement, "there was an honest difference
of opinion as to whether this was suitable or not." Assuming
Kirchner was referring to the views of the Board, and not simply
the public at large, it is clear he was suggesting that the Board
honestly went outside the factors it could legitimately consider
in order to do what it thought best. We disagree that Kirchner
conceded the primary issue in this case.
Plaintiffs presented the testimony of Ronald Ladley, a
realtor, that the Casey's project would devalue the Santarelli
property by 10% to 20% and would also devalue the property of the
other plaintiffs. On cross-examination Ladley was asked this
question:
"Q. Because of all the factors you
mentioned or agreed with about the benefit
to the community--the sales tax, the property
tax, the convenience of shopping, the jobs--you
would agree that this issue of rezoning--on
the issue of rezoning, there is room for a
honest difference of opinion, would you not?
A. Sure."
Plaintiffs also called a real estate appraiser, Edward H.
Hofferkamp, who testified the impact of the Casey's store on
neighborhood property values could be substantial, extending even
beyond the four corners of the intersection. Hofferkamp on
cross-examination was asked about the general benefits to the
community and responded that "the impact on the surrounding
properties, the negative impact outweighs the positive in this
location." Hofferkamp was then asked:
"Q. But there is room for a fair debate
on this subject?
A. I guess that is why we're all here.
Q. So you would agree with that?
A. Yes."
When their testimony is viewed in its entirety, plaintiffs'
experts did not concede the primary issue in this case. We
reject the argument we should decide this case on the basis of a
few out-of-context statements and ignore the overall testimony of
plaintiffs' expert witnesses.
In Westwood Forum, we upheld a rezoning ordinance, but
that case did not involve spot zoning. The rezoned area in that
case was not a single tract, but a 93.6-acre tract, and the
rezoning was consistent with the comprehensive plan. Westwood
Forum, 261 Ill. App. 3d at 913, 919, 634 N.E.2d at 1156, 1160.
In Truchon, the appellate court reversed a finding of spot
zoning, but there was significant evidence in that case that the
rezoning from residential to commercial was in conformity with
the character of the neighborhood and existing uses and zoning of
nearby property. Truchon, 70 Ill. App. 3d at 93, 388 N.E.2d at
252. There is no such evidence in the present case. There was
also a finding of estoppel in Truchon, where the plaintiffs
waited seven months after enactment of the ordinance to file
their suit, during which time defendant spent significant sums in
reliance on the rezoning. Truchon, 70 Ill. App. 3d at 94, 388 N.E.2d at 252-53. The present case is most like Concerned Citi-
zens, where the appellate court found a rezoning of undeveloped
land from R-3 single family to B-1 commercial retail district
constituted spot zoning. Although the area was not totally and
uniformly residential, the existing variations were held not to
alter the essentially residential character of the property.
Concerned Citizens, 76 Ill. App. 3d at 805, 395 N.E.2d at 949.
The property owner also knew at the time he bought the property
that it was restricted to residential use. Concerned Citizens,
76 Ill. App. 3d at 805, 395 N.E.2d at 949.
Defendants' argument that the surrounding uses are not
uniform is without merit. Schools, churches, and home occupa-
tions are generally permitted in residential areas. 83 Am. Jur.
2d Zoning & Planning 220 (1992). The Village itself argues that
the surrounding uses are not uniform ("the surrounding uses are
indubitably commercial--a newspaper operation, a dog grooming
business, and a commercial sign" (emphasis in original)). If the
Village truly believes that, it might consider rezoning the
entire area, instead of requiring everyone except Casey's to
abide by R-1 zoning. See also Central Transport, Inc. v. Village
of Hillside, 210 Ill. App. 3d 499, 515, 568 N.E.2d 1359, 1369
(1991) (a municipality is estopped from claiming that its own
ordinances are invalid). Although the existence of a substantial
number of nonconforming uses (uses predating the ordinance) may
be destructive of the homogeneity of a residential area, the
testimony in this case disclosed only one nonconforming use, the
Interurban Restaurant, more than a block away from the Burris
Trust and Lyons properties. The existence of nonconforming uses
generally cannot be used to justify a rezoning of a single tract.
Littlejohn v. City of North Chicago, 259 Ill. App. 3d 713, 720-
21, 631 N.E.2d 358, 364 (1994) (goal is to eliminate nonconform-
ing uses, not to expand them).
The evidence is overwhelming in this case that the
existing uses and zoning of nearby property is residential, that
plaintiffs' property will be reduced in value by this rezoning,
and that the Burris Trust and Lyons properties are suitable and
being used for residential purposes. See Evanston, 57 Ill. 2d at
429-30, 312 N.E.2d at 633. It is true the Burris Trust property
has been vacant for some time, but it appears that vacancy is due
to its small size, the fact that a portion of the lot was taken
for Lincoln Avenue. The Burris Trust lot is not suitable for any
use by itself, but only in conjunction with the adjoining Lyons
lot. For the fact of vacancy to be significant there must be
proof that improper zoning caused the vacancy, not that the
property remained vacant merely because no one attempted to
develop it or because of some other reason not zoning related.
Suhadolnik, 184 Ill. App. 3d at 176, 540 N.E.2d at 907. Casey's
knew of the R-1 zoning when it purchased the property. Evanston,
57 Ill. 2d at 430, 312 N.E.2d at 633. Rezoning would clearly
cause deterioration of the surrounding residential properties and
permit the transformation of those properties to other uses.
Evanston, 57 Ill. 2d at 430, 312 N.E.2d at 633. There has been
no change in the general character or existing uses in the
neighborhood of the Burris Trust and Lyons properties.
The rezoning here was spot zoning. There is clear and
convincing evidence that the rezoning ordinance in this case, as
applied to plaintiffs, is arbitrary, unreasonable, and bears no
substantial relation to public health, safety, morals, or wel-
fare.
After the witnesses in this case were deposed, both
sides filed motions for summary judgment. See 735 ILCS 5/2-
701(b) (West 1994) ("if a declaration of rights is the only
relief asked, the case may be set for early hearing as in the
case of a motion"). All the evidence that the parties wished to
present was before the court. It would have been better if the
parties had filed a stipulation with the court that this case be
decided on the depositions, without any further presentation of
evidence, but the intent to follow that procedure seems clear.
Even if there is some issue of fact, if what is contained in the
pleadings and affidavits would have constituted all of the
evidence before the court and upon such evidence there would be
nothing left to go to a jury, and the court would be required to
direct a verdict, then a summary judgment should be entered.
Fooden v. Board of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500 (1971). We conclude that
summary judgment is appropriate in this case for whichever side
prevailed.
Accordingly we reverse and remand with directions that
the trial court enter summary judgment in favor of plaintiffs.
Reversed and remanded with directions.
KNECHT, J., concurs.
McCULLOUGH, J., dissents. JUSTICE McCULLOUGH, dissenting:
The issue is whether the entry of summary judgment for
defendants was improper because (1) either a genuine issue of
material fact existed or (2) the documents submitted to the trial
court indicate the plaintiffs were entitled to summary judgment.
Plaintiffs argued the rezoning ordinance was arbitrary, capri-
cious, and without substantial benefit to the public health,
safety, or welfare based on their analysis of the factors re-
ferred to in zoning cases and that their experts had not admitted
the ultimate issue, i.e., the rezoning was fairly debatable. The
trial court may draw inferences from undisputed facts, but should
not grant summary judgment if reasonable persons could draw
divergent inferences from undisputed facts. Pyne v. Witmer, 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308 (1989).
The parties in this case relied on the factors enumer-
ated in County of Cook, 12 Ill. 2d at 46-47, 145 N.E.2d at 69.
The majority determines that the decision in County of Cook does
not stand for the proposition that deference should be given to
the zoning ordinance. That was never argued by the parties, and
the case relied on by the majority, Rodriguez (217 Ill. App. 3d
at 1030, 578 N.E.2d at 61), (1) involved the question of the
propriety of a dismissal of a complaint; (2) while questioning
the application of the County of Cook factors to cases not
involving a property owner's challenge to the original zoning,
never said no deference was to be given the municipality's
legislative enactment; and (3) nevertheless considered the
sufficiency of the complaint in light of the County of Cook
factors. Furthermore, this court has applied the principles
announced in County of Cook to a case involving neighbors chal-
lenging a rezoning ordinance and required that the presumption of
validity of the rezoning ordinance be overcome by clear and
convincing evidence. Westwood Forum, 261 Ill. App. 3d at 912-17,
634 N.E.2d at 1156-59. In addition to the County of Cook fac-
tors, courts should also consider the need for the use proposed
by the property owner and the care with which the community has
undertaken its development planning. Westwood Forum, 261 Ill.
App. 3d at 917, 634 N.E.2d at 1159. No one factor is determina-
tive, and a primary concern is whether the property in question
is zoned in conformity with surrounding uses and whether those
uses are uniform and established. La Grange State Bank v. County
of Cook, 75 Ill. 2d 301, 309, 388 N.E.2d 388, 391 (1979). Where
there is room for a legitimate difference of opinion concerning
the reasonableness of the zoning classification or the question
of reasonableness is fairly debatable, courts will not interfere
with the legislative classification. Bredberg v. City of
Wheaton, 24 Ill. 2d 612, 625, 182 N.E.2d 742, 748 (1962); Bullock
v. City of Evanston, 5 Ill. 2d 22, 34, 123 N.E.2d 840, 846
(1954); Oliver Construction Co. v. Village of Villa Park, 257
Ill. App. 3d 750, 753, 629 N.E.2d 199, 202 (1994).
The majority finds that the ordinance constituted spot
zoning. Although spot zoning is looked on with disfavor (Reskin
v. City of Northlake, 55 Ill. App. 2d 184, 189-90, 204 N.E.2d 600, 603 (1965)), the current legal philosophy about spot zoning
is that it is not per se illegal, but it may be improper depend-
ing on the application of the factors relating to the reasonable-
ness of the zoning ordinance to the facts of the particular case
(101A C.J.S. Zoning & Land Planning 44 (1979)). In Truchon (70
Ill. App. 3d at 93, 388 N.E.2d at 252), the trial court's invali-
dating of the ordinance rezoning a parcel from single-family
residential to commercial to accommodate a liquor store and bar,
argued to be impermissible spot zoning, was reversed, where the
appellate court found room for a reasonable difference of opin-
ion.
All experts, including plaintiffs' experts, agreed that
the rezoning was the result of an honest difference of opinion on
its suitability. Defendants' experts clearly agree the action
was appropriate and not arbitrary and capricious. Plaintiffs'
experts disagree with the action of the Village to varying
degrees. Ladley agreed that there was room for an honest differ-
ence of opinion on the question of rezoning the subject proper-
ties. Hofferkamp testified that the negative impact on the
surrounding properties outweighed the positive aspects of rezon-
ing this site, but reluctantly conceded there was room for a fair
debate on the question. Kirchner, however, was more evasive. He
stated there was an honest difference of opinion, noting the vote
of the Village's board of trustees. He also stated that he would
not testify it was irrational, but would testify it was improper
and further that anyone with his background and school of thought
would agree it was improper. According to Kirchner, there may be
reasonable argument about getting new business into the Village,
but not about zoning these particular pieces of property. To
Kirchner, zoning was not debatable in terms of its impact on
residential values "and those sorts of things." However,
Kirchner's testimony that like-minded persons would agree and
that the decision was not irrational does not refute the infer-
ence that the issue of rezoning was fairly debatable.
If plaintiffs cannot prove a crucial element of their
case, summary judgment is appropriate. Uncontradicted expert
testimony in a deposition may be used as a basis for summary
judgment where it demonstrates no genuine issue of material fact
remains and a verdict would have to be directed. Grote v. Estate
of Franklin, 214 Ill. App. 3d 261, 269-70, 573 N.E.2d 360, 365-66
(1991). In spite of Kirchner's testimony, the only reasonable
inference to be drawn from the evidence is that there was room
for legitimate difference of opinion concerning the reasonable-
ness of the classification and that the question of reasonable-
ness of the rezoning was fairly debatable.
It is obvious from the testimony that the question of
whether the rezoning of the subject properties was in conformity
with surrounding zoning and whether the surrounding zoning was
uniform and established depended on how large the expert drew the
circle around the subject property. However, the old commercial
district began only 940 feet away. The Knights of Columbus club
was also nearby.
There was some opinion that plaintiffs' property values
would diminish, but there was no evidence by how much. No
appraisals were submitted or made. There was some evidence that
the values of plaintiffs' properties as residential property was
diminished by the traffic in the area without the rezoning.
There was no evidence that rezoning would adversely affect
health, safety, or morals, although there were speculative
statements that an increase in criminal activity might arise from
the location of a convenience store in this area. The evidence
was consistent, however, that the Casey's would enhance the
general welfare of the public. This is the best location in the
town for this type of business because of the traffic flow. It
would increase income to the Village and promote employment. One
of the lots had been vacant for a long time. The other had an
older home. There was testimony that the vacant lot was less
suitable for residential purposes because of the traffic in the
area. The community had a substantial need for this type of
commercial development from a competition and a consumer's
benefit standpoint. The hardship imposed on plaintiffs does not
necessarily outweigh the relative gain to the public.
While balancing these factors would appear to create a
question of fact, this balancing clearly establishes that there
was room for a legitimate difference of opinion concerning the
reasonableness of the rezoning and that the question of the
reasonableness of the rezoning was fairly debatable, as a matter
of law. Plaintiffs have not met the clear and convincing burden
of proof of the invalidity of the ordinance. The burden of proof
is heavy, and it is not met simply by putting on witnesses who
would testify that, if they had the authority, they would not
have voted for the ordinance. Siegel v. City of Chicago, 127
Ill. App. 2d 84, 92, 261 N.E.2d 802, 806 (1970). The judgment of
the circuit court of Sangamon County should be affirmed.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
HEINZ BOSSMAN, MARIE BOSSMAN, JAMES ) Appeal from
HIBBETT, BEVERLY HIBBETT, PETER RAPACZ, ) Circuit Court of
SHARON RAPACZ, W. THOMAS SANTARELLI, ) Sangamon County
and SHIRLEY SANTARELLI, ) No. 96MR0002
Plaintiffs-Appellants, )
v. )
THE VILLAGE OF RIVERTON, GEORGEANA, )
LYONS, CHARLES R. BURRIS, and CAROL J. )
BURRIS, Trustees of the Charles R. )
Burris and Carol J. Burris Revocable )
Living Trust Dated October 1, 1993, )
Defendants-Appellees, )
and ) Honorable
CASEY'S GENERAL STORES, INC., ) Donald M. Cadagin,
Defendant-Intervenor. ) Judge Presiding.
_________________________________________________________________
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 judg-
ment 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 plain-
tiffs.
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 agri-
cultural zoning).
Casey's argued the integrity of the R-1 zoning had been
destroyed before it entered the picture. The Interurban Restau-
rant 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 (de-
scribed 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¬ blocks from Seventh Street. Casey's also com-
plained 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 ex-
ceptions, or decide particular cases. Such
activities are not legislative but adminis-
trative, quasijudicial, or judicial in character.
To place them in the hands of legislative bodies,
whose acts as such are not judicially review-
able, is to open the door completely to arbitrary
government. I need not dwell at length on the
obvious opportunity this affords for special pri-
vilege, 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 them-
selves 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 (11-13-1 et
seq.)) to incorporate the views expressed in that special concur-
rence and dissent. Geneva Residential Ass'n, Ltd. v. City of
Geneva, 77 Ill. App. 3d 744, 754, 397 N.E.2d 849, 856 (1979).
Sections 11-13-1.1 and 11-13-5 of the Illinois Munici-
pal 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 con-
cerning 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 con-
siderations 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 to the public as compared to the hardship
imposed upon the individual property owner,
[citing cases], (5) the suitability of the
subject property for the zoned purposes
[citing cases], and (6) the length of time
the property has been vacant as zoned con-
sidered in the context of land development
in the area in the vicinity of the subject
property. [Citing cases.]'"
It is important to note that in Evanston the municipal-
ity rejected the property owner's attempt to rezone the property,
and the supreme court affirmed the municipality's decision to
stand behind its zoning ordinance. Evanston is not authority for
the proposition that a court should give deference to a
municipality's decision when it grants a property owner's request
for special treatment and engages in spot zoning. See Rodriguez
v. Henderson, 217 Ill. App. 3d 1024, 1030, 578 N.E.2d 57, 61
(1991). The Village cites County of Cook for the deference that
should be given the legislative body. Interestingly enough, the
court in that case found that the ordinance before it (the
original ordinance) was arbitrary and void, and stated that a
difference of opinion between the opposing expert witnesses did
not require a finding that the reasonableness of the ordinance
was debatable. County of Cook, 12 Ill. 2d at 47, 145 N.E.2d at
69.
"Spot zoning" is a change in zoning applied only to a
small area, which is out of harmony with comprehensive planning
for the good of the community; zoning that would violate a zoning
pattern that is homogeneous, compact and uniform. Chicago Title
& Trust Co. v. Village of Skokie, 60 Ill. App. 3d 221, 235, 376 N.E.2d 313, 324 (1978). This does not mean that every reclassi-
fication of a single tract is void ipso facto; rather, it must be
determined whether such change is in harmony with a comprehensive
plan for orderly utilization of property in the locality. The
size of the rezoned tract or area is merely one factor to consid-
er. Fifteen Fifty North State Building Corp. v. City of Chicago,
15 Ill. 2d 408, 418, 155 N.E.2d 97, 102 (1958) ("it is true that
inconsistent zoning of small parcels is not to be encouraged").
Sometimes the original zoning ordinance has made a mistake with
regard to a single tract. Bringing that tract into harmony with
the surrounding property is not spot zoning, or said another way,
is not illegal spot zoning. However, the power to zone or rezone
cannot be exercised to satisfy the individual desires of a few.
Cosmopolitan National Bank v. City of Chicago, 27 Ill. 2d 578,
584-85, 190 N.E.2d 352, 356 (1963) (amendatory ordinance void
where no change in general character or existing uses in neigh-
borhood).
It would be difficult to find spot zoning in an area
where conflicting uses were haphazardly mixed. Such mixing may
exist either because little thought was given to the establish-
ment of the districts or because other uses over time have been
allowed to invade the districts. Nevertheless, the existence of
a formal comprehensive plan is not essential to a finding of spot
zoning. What is important is that the community in question has
given care and consideration to the use and development of the
land within its boundaries. First National Bank v. Village of
Vernon Hills, 55 Ill. App. 3d 985, 990, 371 N.E.2d 659, 664
(1977). Of paramount importance is whether the subject property
is zoned in conformity with surrounding existing uses and whether
those uses are uniform and established. Truchon v. City of
Streator, 70 Ill. App. 3d 89, 93, 388 N.E.2d 249, 252 (1979).
The existence of a comprehensive plan may justify what would
otherwise be spot zoning. If the Village here had a comprehen-
sive plan that looked to the construction of a convenience store
and gas station in the area of Lincoln and South Seventh Street,
this rezoning may not have been spot zoning. However, there
clearly was no such plan and the actual zoning pattern in the
area was uniformly residential.
A number of early cases are often cited for the state-
ment that in determining the validity of an amendatory or revised
ordinance, the factors to be considered are the same as those
involved in ascertaining the legality of the initial ordinance.
Garner v. City of Carmi, 28 Ill. 2d 560, 564, 192 N.E.2d 816,
818-19 (1963) (amendatory ordinance found invalid); Exchange
National Bank v. County of Cook, 25 Ill. 2d 434, 441, 185 N.E.2d 250, 254 (1962) (refusal to amend ordinance sustained). That
statement seems to have originated in Trust Co. v. City of Chica-
go, 408 Ill. 91, 100, 96 N.E.2d 499, 504 (1951), where the court
was making the point that amendments to a zoning ordinance could
be struck down just like the original zoning ordinance itself,
that the repeal of an ordinance is not immune from constitutional
attack. (It has been argued that after property owners have
relied on the original ordinance it cannot be changed.) The
amendatory ordinance in Trust Co. was in fact found to be arbi-
trary and unreasonable. The inference cannot be drawn from these
cases that spot zoning stands on equal footing with other zoning.
"An amendatory zoning ordinance cannot be sustained if the
evidence fails to show that it was passed for the public good,
but instead tends to show that it was passed in deference to the
wishes of certain individuals." Trust Co., 408 Ill. at 100-01,
96 N.E.2d at 504-05.
Casey's argues its project will bring additional jobs,
additional tax revenue, and competition to Riverton, citing
Westwood Forum, Inc. v. City of Springfield, 261 Ill. App. 3d
911, 918-19, 634 N.E.2d 1154, 1160 (1994). One of the justifica-
tions for a zoning ordinance is that it "promotes the health,
safety, morals or general welfare of the public." County of
Cook, 12 Ill. 2d at 47, 145 N.E.2d at 69. A municipality that
requires additional housing for its residents, for example, may
zone single-family areas for multifamily use. Trust Co., 408 Ill. at 101-02, 96 N.E.2d at 505. Public waterworks, fire
stations, hospitals and the like may have a substantial relation-
ship to the public welfare. See 83 Am. Jur. 2d Zoning & Planning
78, 79, 149, 150 (1992). A municipality may change its ordi-
nance to include uses not originally provided. Oak Forest Mobile
Home Park, Inc. v. City of Oak Forest, 27 Ill. App. 3d 303, 320-
21, 326 N.E.2d 473, 486-87 (1975) (mobile home park). The
present case is not an exclusionary zoning case, however. There
is another gas station and another grocery store in Riverton, and
there are C-1 areas within a reasonable distance of Lincoln and
South Seventh Street. The problem here is not a lack of C-1
areas; the problem is that the particular property where Casey's
wants to be located is zoned R-1.
Casey's argues that the Village may abandon its zoning
ordinance whenever it sees any benefit in doing so. That argu-
ment is mistaken. Not every perceived benefit will justify
rezoning, only those benefits that constitute legitimate objec-
tives of zoning. See 83 Am. Jur. 2d Zoning & Planning 70
through 127 (1992). The argument that rezoning would increase
the tax base, as opposed to conserving the tax base, has been
rejected. "[S]uch a justification is totally illusory and
totally violative of all the basic principles of zoning." Con-
cerned Citizens for McHenry, Inc. v. City of McHenry, 76 Ill.
App. 3d 798, 806, 395 N.E.2d 944, 950 (1979); see also La Salle
National Trust, N.A. v. Village of Westmont, 264 Ill. App. 3d 43,
58, 636 N.E.2d 1157, 1166 (1994); 83 Am. Jur. 2d Zoning & Plan-
ning 83 (1992).
One of the considerations in a rezoning case is whether
the property will be more valuable with the rezoning. That
consideration has been downplayed, however, since increased value
exists in virtually all reclassification cases. Suhadolnik v.
City of Springfield, 184 Ill. App. 3d 155, 176, 540 N.E.2d 895,
907 (1989); Evanston, 57 Ill. 2d at 429-30, 312 N.E.2d at 633.
That is why the owner seeks reclassification--in order to in-
crease the value of his property. Casey's varies the argument
somewhat in this case. Casey's does not argue the increased
value to itself, but attempts to focus on the corresponding value
to the community. Every new business will bring some additional
jobs, additional tax revenue, and competition. Again, that
should not be dispositive, since it is true in virtually all
reclassification cases.
The control or restriction of competition is not a
proper or lawful zoning objective. Cosmopolitan National Bank v.
Village of Niles, 118 Ill. App. 3d 87, 91, 454 N.E.2d 703, 705
(1983). Many zoning decisions have some indirect effect on
competition, but it is improper to directly legislate economic
protection for one business "against the normal competitive
factors which are basic to our economic system." Exchange
National Bank v. Village of Skokie, 86 Ill. App. 2d 12, 21, 229 N.E.2d 552, 556 (1967); see also 83 Am. Jur. 2d Zoning & Planning
81 (1992). Encouragement of one competitor amounts to discour-
agement of others. Competition should be managed by market
forces, not by local government, which should not be placed in
the position of deciding whether more (or less) competition is a
good thing. If the rezoning here is allowed to stand, the
Village will have given Casey's competitive advantages that the
existing gas station does not have. The existing gas station is
required to operate out of a C-1 area. Casey's would have a
monopoly at the Burris Trust and Lyons location, as no other gas
station could locate near it because of the surrounding R-1
zoning.
Defendants' primary argument is that plaintiffs have
conceded the ultimate issue in this case: whether there is room
for a "legitimate difference of opinion" or whether such "ques-
tion of reasonableness is fairly debatable." Plaintiffs' expert,
Chuck Kirchner, a land-use planner, testified the zoning in the
area is homogeneous, compact and uniform, and that the character
of the neighborhood is residential. He testified the action of
the Village was arbitrary and constituted spot zoning. On cross-
examination, Kirchner was asked how a community that lacked a
comprehensive plan could ever make a rational decision in a
zoning case, and he responded that they would have to listen to
each side of the case. Kirchner was asked if the result here was
irrational, and he responded "I don't know if it was irrational,
it was incorrect." Elsewhere Kirchner was asked if there were
arguments in favor of Casey's, and he replied there were no
favorable zoning arguments. Fairly read, Kirchner's remarks
indicated there were arguments that Casey's would be a desirable
addition to Riverton, if it were properly located, but those
arguments should not be considered in making a rezoning decision.
Kirchner also made the statement, "there was an honest difference
of opinion as to whether this was suitable or not." Assuming
Kirchner was referring to the views of the Board, and not simply
the public at large, it is clear he was suggesting that the Board
honestly went outside the factors it could legitimately consider
in order to do what it thought best. We disagree that Kirchner
conceded the primary issue in this case.
Plaintiffs presented the testimony of Ronald Ladley, a
realtor, that the Casey's project would devalue the Santarelli
property by 10% to 20% and would also devalue the property of the
other plaintiffs. On cross-examination Ladley was asked this
question:
"Q. Because of all the factors you
mentioned or agreed with about the benefit
to the community--the sales tax, the property
tax, the convenience of shopping, the jobs--you
would agree that this issue of rezoning--on
the issue of rezoning, there is room for a
honest difference of opinion, would you not?
A. Sure."
Plaintiffs also called a real estate appraiser, Edward H.
Hofferkamp, who testified the impact of the Casey's store on
neighborhood property values could be substantial, extending even
beyond the four corners of the intersection. Hofferkamp on
cross-examination was asked about the general benefits to the
community and responded that "the impact on the surrounding
properties, the negative impact outweighs the positive in this
location." Hofferkamp was then asked:
"Q. But there is room for a fair debate
on this subject?
A. I guess that is why we're all here.
Q. So you would agree with that?
A. Yes."
When their testimony is viewed in its entirety, plaintiffs'
experts did not concede the primary issue in this case. We
reject the argument we should decide this case on the basis of a
few out-of-context statements and ignore the overall testimony of
plaintiffs' expert witnesses.
In Westwood Forum, we upheld a rezoning ordinance, but
that case did not involve spot zoning. The rezoned area in that
case was not a single tract, but a 93.6-acre tract, and the
rezoning was consistent with the comprehensive plan. Westwood
Forum, 261 Ill. App. 3d at 913, 919, 634 N.E.2d at 1156, 1160.
In Truchon, the appellate court reversed a finding of spot
zoning, but there was significant evidence in that case that the
rezoning from residential to commercial was in conformity with
the character of the neighborhood and existing uses and zoning of
nearby property. Truchon, 70 Ill. App. 3d at 93, 388 N.E.2d at
252. There is no such evidence in the present case. There was
also a finding of estoppel in Truchon, where the plaintiffs
waited seven months after enactment of the ordinance to file
their suit, during which time defendant spent significant sums in
reliance on the rezoning. Truchon, 70 Ill. App. 3d at 94, 388 N.E.2d at 252-53. The present case is most like Concerned Citi-
zens, where the appellate court found a rezoning of undeveloped
land from R-3 single family to B-1 commercial retail district
constituted spot zoning. Although the area was not totally and
uniformly residential, the existing variations were held not to
alter the essentially residential character of the property.
Concerned Citizens, 76 Ill. App. 3d at 805, 395 N.E.2d at 949.
The property owner also knew at the time he bought the property
that it was restricted to residential use. Concerned Citizens,
76 Ill. App. 3d at 805, 395 N.E.2d at 949.
Defendants' argument that the surrounding uses are not
uniform is without merit. Schools, churches, and home occupa-
tions are generally permitted in residential areas. 83 Am. Jur.
2d Zoning & Planning 220 (1992). The Village itself argues that
the surrounding uses are not uniform ("the surrounding uses are
indubitably commercial--a newspaper operation, a dog grooming
business, and a commercial sign" (emphasis in original)). If the
Village truly believes that, it might consider rezoning the
entire area, instead of requiring everyone except Casey's to
abide by R-1 zoning. See also Central Transport, Inc. v. Village
of Hillside, 210 Ill. App. 3d 499, 515, 568 N.E.2d 1359, 1369
(1991) (a municipality is estopped from claiming that its own
ordinances are invalid). Although the existence of a substantial
number of nonconforming uses (uses predating the ordinance) may
be destructive of the homogeneity of a residential area, the
testimony in this case disclosed only one nonconforming use, the
Interurban Restaurant, more than a block away from the Burris
Trust and Lyons properties. The existence of nonconforming uses
generally cannot be used to justify a rezoning of a single tract.
Littlejohn v. City of North Chicago, 259 Ill. App. 3d 713, 720-
21, 631 N.E.2d 358, 364 (1994) (goal is to eliminate nonconform-
ing uses, not to expand them).
The evidence is overwhelming in this case that the
existing uses and zoning of nearby property is residential, that
plaintiffs' property will be reduced in value by this rezoning,
and that the Burris Trust and Lyons properties are suitable and
being used for residential purposes. See Evanston, 57 Ill. 2d at
429-30, 312 N.E.2d at 633. It is true the Burris Trust property
has been vacant for some time, but it appears that vacancy is due
to its small size, the fact that a portion of the lot was taken
for Lincoln Avenue. The Burris Trust lot is not suitable for any
use by itself, but only in conjunction with the adjoining Lyons
lot. For the fact of vacancy to be significant there must be
proof that improper zoning caused the vacancy, not that the
property remained vacant merely because no one attempted to
develop it or because of some other reason not zoning related.
Suhadolnik, 184 Ill. App. 3d at 176, 540 N.E.2d at 907. Casey's
knew of the R-1 zoning when it purchased the property. Evanston,
57 Ill. 2d at 430, 312 N.E.2d at 633. Rezoning would clearly
cause deterioration of the surrounding residential properties and
permit the transformation of those properties to other uses.
Evanston, 57 Ill. 2d at 430, 312 N.E.2d at 633. There has been
no change in the general character or existing uses in the
neighborhood of the Burris Trust and Lyons properties.
The rezoning here was spot zoning. There is clear and
convincing evidence that the rezoning ordinance in this case, as
applied to plaintiffs, is arbitrary, unreasonable, and bears no
substantial relation to public health, safety, morals, or wel-
fare.
After the witnesses in this case were deposed, both
sides filed motions for summary judgment. See 735 ILCS 5/2-
701(b) (West 1994) ("if a declaration of rights is the only
relief asked, the case may be set for early hearing as in the
case of a motion"). All the evidence that the parties wished to
present was before the court. It would have been better if the
parties had filed a stipulation with the court that this case be
decided on the depositions, without any further presentation of
evidence, but the intent to follow that procedure seems clear.
Even if there is some issue of fact, if what is contained in the
pleadings and affidavits would have constituted all of the
evidence before the court and upon such evidence there would be
nothing left to go to a jury, and the court would be required to
direct a verdict, then a summary judgment should be entered.
Fooden v. Board of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500 (1971). We conclude that
summary judgment is appropriate in this case for whichever side
prevailed.
Accordingly we reverse and remand with directions that
the trial court enter summary judgment in favor of plaintiffs.
Reversed and remanded with directions.
KNECHT, J., concurs.
McCULLOUGH, J., dissents. JUSTICE McCULLOUGH, dissenting:
The issue is whether the entry of summary judgment for
defendants was improper because (1) either a genuine issue of
material fact existed or (2) the documents submitted to the trial
court indicate the plaintiffs were entitled to summary judgment.
Plaintiffs argued the rezoning ordinance was arbitrary, capri-
cious, and without substantial benefit to the public health,
safety, or welfare based on their analysis of the factors re-
ferred to in zoning cases and that their experts had not admitted
the ultimate issue, i.e., the rezoning was fairly debatable. The
trial court may draw inferences from undisputed facts, but should
not grant summary judgment if reasonable persons could draw
divergent inferences from undisputed facts. Pyne v. Witmer, 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308 (1989).
The parties in this case relied on the factors enumer-
ated in County of Cook, 12 Ill. 2d at 46-47, 145 N.E.2d at 69.
The majority determines that the decision in County of Cook does
not stand for the proposition that deference should be given to
the zoning ordinance. That was never argued by the parties, and
the case relied on by the majority, Rodriguez (217 Ill. App. 3d
at 1030, 578 N.E.2d at 61), (1) involved the question of the
propriety of a dismissal of a complaint; (2) while questioning
the application of the County of Cook factors to cases not
involving a property owner's challenge to the original zoning,
never said no deference was to be given the municipality's
legislative enactment; and (3) nevertheless considered the
sufficiency of the complaint in light of the County of Cook
factors. Furthermore, this court has applied the principles
announced in County of Cook to a case involving neighbors chal-
lenging a rezoning ordinance and required that the presumption of
validity of the rezoning ordinance be overcome by clear and
convincing evidence. Westwood Forum, 261 Ill. App. 3d at 912-17,
634 N.E.2d at 1156-59. In addition to the County of Cook fac-
tors, courts should also consider the need for the use proposed
by the property owner and the care with which the community has
undertaken its development planning. Westwood Forum, 261 Ill.
App. 3d at 917, 634 N.E.2d at 1159. No one factor is determina-
tive, and a primary concern is whether the property in question
is zoned in conformity with surrounding uses and whether those
uses are uniform and established. La Grange State Bank v. County
of Cook, 75 Ill. 2d 301, 309, 388 N.E.2d 388, 391 (1979). Where
there is room for a legitimate difference of opinion concerning
the reasonableness of the zoning classification or the question
of reasonableness is fairly debatable, courts will not interfere
with the legislative classification. Bredberg v. City of
Wheaton, 24 Ill. 2d 612, 625, 182 N.E.2d 742, 748 (1962); Bullock
v. City of Evanston, 5 Ill. 2d 22, 34, 123 N.E.2d 840, 846
(1954); Oliver Construction Co. v. Village of Villa Park, 257
Ill. App. 3d 750, 753, 629 N.E.2d 199, 202 (1994).
The majority finds that the ordinance constituted spot
zoning. Although spot zoning is looked on with disfavor (Reskin
v. City of Northlake, 55 Ill. App. 2d 184, 189-90, 204 N.E.2d 600, 603 (1965)), the current legal philosophy about spot zoning
is that it is not per se illegal, but it may be improper depend-
ing on the application of the factors relating to the reasonable-
ness of the zoning ordinance to the facts of the particular case
(101A C.J.S. Zoning & Land Planning 44 (1979)). In Truchon (70
Ill. App. 3d at 93, 388 N.E.2d at 252), the trial court's invali-
dating of the ordinance rezoning a parcel from single-family
residential to commercial to accommodate a liquor store and bar,
argued to be impermissible spot zoning, was reversed, where the
appellate court found room for a reasonable difference of opin-
ion.
All experts, including plaintiffs' experts, agreed that
the rezoning was the result of an honest difference of opinion on
its suitability. Defendants' experts clearly agree the action
was appropriate and not arbitrary and capricious. Plaintiffs'
experts disagree with the action of the Village to varying
degrees. Ladley agreed that there was room for an honest differ-
ence of opinion on the question of rezoning the subject proper-
ties. Hofferkamp testified that the negative impact on the
surrounding properties outweighed the positive aspects of rezon-
ing this site, but reluctantly conceded there was room for a fair
debate on the question. Kirchner, however, was more evasive. He
stated there was an honest difference of opinion, noting the vote
of the Village's board of trustees. He also stated that he would
not testify it was irrational, but would testify it was improper
and further that anyone with his background and school of thought
would agree it was improper. According to Kirchner, there may be
reasonable argument about getting new business into the Village,
but not about zoning these particular pieces of property. To
Kirchner, zoning was not debatable in terms of its impact on
residential values "and those sorts of things." However,
Kirchner's testimony that like-minded persons would agree and
that the decision was not irrational does not refute the infer-
ence that the issue of rezoning was fairly debatable.
If plaintiffs cannot prove a crucial element of their
case, summary judgment is appropriate. Uncontradicted expert
testimony in a deposition may be used as a basis for summary
judgment where it demonstrates no genuine issue of material fact
remains and a verdict would have to be directed. Grote v. Estate
of Franklin, 214 Ill. App. 3d 261, 269-70, 573 N.E.2d 360, 365-66
(1991). In spite of Kirchner's testimony, the only reasonable
inference to be drawn from the evidence is that there was room
for legitimate difference of opinion concerning the reasonable-
ness of the classification and that the question of reasonable-
ness of the rezoning was fairly debatable.
It is obvious from the testimony that the question of
whether the rezoning of the subject properties was in conformity
with surrounding zoning and whether the surrounding zoning was
uniform and established depended on how large the expert drew the
circle around the subject property. However, the old commercial
district began only 940 feet away. The Knights of Columbus club
was also nearby.
There was some opinion that plaintiffs' property values
would diminish, but there was no evidence by how much. No
appraisals were submitted or made. There was some evidence that
the values of plaintiffs' properties as residential property was
diminished by the traffic in the area without the rezoning.
There was no evidence that rezoning would adversely affect
health, safety, or morals, although there were speculative
statements that an increase in criminal activity might arise from
the location of a convenience store in this area. The evidence
was consistent, however, that the Casey's would enhance the
general welfare of the public. This is the best location in the
town for this type of business because of the traffic flow. It
would increase income to the Village and promote employment. One
of the lots had been vacant for a long time. The other had an
older home. There was testimony that the vacant lot was less
suitable for residential purposes because of the traffic in the
area. The community had a substantial need for this type of
commercial development from a competition and a consumer's
benefit standpoint. The hardship imposed on plaintiffs does not
necessarily outweigh the relative gain to the public.
While balancing these factors would appear to create a
question of fact, this balancing clearly establishes that there
was room for a legitimate difference of opinion concerning the
reasonableness of the rezoning and that the question of the
reasonableness of the rezoning was fairly debatable, as a matter
of law. Plaintiffs have not met the clear and convincing burden
of proof of the invalidity of the ordinance. The burden of proof
is heavy, and it is not met simply by putting on witnesses who
would testify that, if they had the authority, they would not
have voted for the ordinance. Siegel v. City of Chicago, 127
Ill. App. 2d 84, 92, 261 N.E.2d 802, 806 (1970). The judgment of
the circuit court of Sangamon County should be affirmed.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
