Leichner v. City of Champaign , 130 Ill. App. 2d 684 ( 1970 )

Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The plaintiffs are the owners of three lots, situated in the City of Champaign, and sought unsuccessfully, through administrative and legislative channels, to have the lots rezoned. This is an action seeking to restrain the City from enforcing the zoning ordinance as to the plaintiffs’ property. The circuit court denied the requested relief, and this appeal is from that denial. We affirm.

The three lots owned by the plaintiffs face on Neil Street adjacent to the northeast corner of Neil Street and the north city limits of the City of Champaign. Neil Street runs north and south and the city-limit line east and west. The plaintiffs’ lots are within an area zoned multiple-family residence under the zoning ordinance of the City and that area has been continuously zoned for residential use since 1926. In the area north of the city limits, along the extension of Neil Street, there are a number of properties used for commercial purposes including a Gulf gasoline service station, a 207-unit Holiday Inn, and a trailer court. Immediately north of the subject property is an area used and occupied as light industrial by the Leichner Manufacturing Company. The area to the east and west of the subject property (all in the City of Champaign) is zoned R-4, multiple-family residence, and there is no commercial zoning on Neil Street (on the east side of the street) for a distance of five blocks.

Plaintiffs’ property is improved with a single-family residence on the center lot which they acquired in 1939. The area to the west, south and east is zoned and used for residential purposes. At the time the plaintiffs acquired their property the area immediately north was vacant, undeveloped and outside the City. Municipalities in Illinois did not then have, nor did they acquire until 1961, authority to regulate land use on an extraterritorial basis. A 4V2-acre tract north and adjacent to the plaintiffs’ property was acquired by them in the 1940’s and the plaintiffs constructed the Leichner manufacturing plant thereon which they owned and operated. Although it has now been sold, such sale was subsequent to the filing of this complaint.

In 1962, the City exercised its authority as to extraterritorial zoning and by an ordinance then adopted, it zoned the area where the manufacturing plant was then located as light industrial, and the area across from its where the Gulf station and the Holiday Inn are located was zoned B-3, intermediate commercial. The then zoning classification was in accord with the existing use, and it is clear that any classification more restrictive would have resulted in nonconforming uses as to the light industrial and intermediate commercial zones. Neil Street was extended and widened, and at a point some seven hundred or eight hundred feet north of the south fine of plaintiffs’ property it joins with Interstate 74. The widening and resurfacing of Neil Street has substantially increased the flow of its traffic. The area on both sides of Neil Street, for a distance of five blocks south of the plaintiffs’ property, is zoned residential and use as such. From that point south there is commercial usage in varying degrees.

This record shows that the City of Champaign has adopted and adhered to a plan for the development of Neil Street, retaining in the area of the plaintiffs’ property and south thereof its residential classification. The record demonstrates that since 1960, at least four other requests for zoning reclassification have been denied. In fact, in 1960, the plaintiff Howard J. Leichner appeared and opposed a requested reclassification, and in so doing enunciated and endorsed the reasons apparent for the City’s tenacious adherence to its zoning and planning.

In this case — as is so often true — the plaintiffs have an opportunity to sell the single-family residence and the two adjoining lots to an oil company for purposes of estabhshing a gasoline service station. There is an option for such sale at a price of some seventy-two thousand dollars, which is more than twice the general range of appraisal if used for residential purposes. In this case, also — as is true in most zoning cases— there is conflict in the testimony as to the highest and best use of the property, its relative value as zoned and under a zoning change, and the depreciation, if any, that would follow such a change upon the adjoining residential area. We will not extend this opinion by detailing that testimony.

A presumption exists in favor of the validity of a zoning ordinance, and it is well-established and we need not cite authority for the proposition that one who seeks to overcome this presumption must do so by clear and convincing evidence. It is not enough to establish a difference of opinion, nor is it enough to establish that the trier of fact in a zoning case might, if sitting as a legislative body, subject the property to a different zoning classification. Rather, it is necessary that the classification, as legislatively established, be shown to be unreasonable and invalid in order that complaint against the zoning ordinance acquire constitutional dimensions.

In this case there is no question but that the extension, widening and connection of Neil Street with Interstate 74 have substantially increased traffic. As we see it, however, that alone is not a factor of such overriding importance as to invalidate the ordinance. (See: Jans v. City of Evanston (1st Dist. 1964), 52 Ill.App.2d 61, 201 N.E.2d 663; Viggiano v. City of Elmhurst (2nd Dist. 1966), 67 Ill.App.2d 140, 213 N.E.2d 571.) A residential zoning classification is not invalid simply because property fronts on a heavily traveled street. Cosmopolitan Nat’l Bank of Chicago v. Village of Mount Prospect (1961), 22 Ill.2d 463, 177 N.E.2d 365; Elmhurst Nat’l Bank v. City of Chicago (1961), 22 Ill.2d 396, 176 N.E.2d 771; Menolascino v. Village of Franklin Park (1st Dist. 1969), 106 Ill.App.2d 472, 246 N.E.2d 122.

As to the industrial use to the north, it is appropriate to note that the plaintiffs created one of the industrial uses at a time when the defendant-City was without power to stop it. They lived in their house which was near the industrial use they created. Consequently, here, as in Merchants Nat’l Bank of Aurora v. City of Aurora, (2nd Dist. 1970), 119 Ill.App.2d 179, 255 N.E.2d 609, the argument which the plaintiffs now make that the property is not suitable for residence use because of this fact is, as observed by Mr. Justice Davis in Merchants Nat’l Bank of Aurora, "somewhat diluted.” The plaintiffs rely upon Scott v. City of Springfield (4th Dist. 1967), 83 Ill.App.2d 31, 226 N.E.2d 57. The facts in the Scott case, in our opinion, are substantially different. In that case we specifically noted that the municipality induced and encouraged a commercialization trend over many years on the street involved. There the City did not follow a plan for transitional zoning but rather the record demonstrated a propensity to negate any plan by repetitive spot-zoning. Such is not demonstrated by the record here. Likewise, the case of Hartung v. Village of Skokie (1961), 22 Ill.2d 485, 177 N.E.2d 328, is not here analogous. In Hartung there is an indication of unsuitability for use as zoned.

In the instant case it is clear that the property would have more value if rezoned or if an injunction is issued restraining the enforcement of the present zoning. The fact that the property would have more value if it could be used for purposes not permitted by the existing zoning is not determinative of the validity of the zoning. Rebman v. City of Springfield, (4th Dist. 1969), 111 Ill.App.2d 430, 250 N.E.2d 282, and cases there cited.

The existing zoning classification is not demonstrated by this record to be unreasonable, invalid or confiscatory. The property can be and is being used as zoned. It has substantial value for that use. The zoning ordinance is reasonably related to the public health, morals, safety and welfare, and the action of the trial court in refusing to enjoin the enforcement of the zoning ordinance was correct and is affirmed.

Judgment affirmed.

SMITH, J., concurs.