La Salle National Bank v. County of Du Page

Mr. PRESIDING JUSTICE RECHENMACHER, dissenting:

I respectfully dissent.

In my opinion the presumption of validity of the county zoning ordinance as to Tracts B and C was not overcome by clear and convincing evidence. The main complaint of the appellant is that the trial court on several occasions designated the three parcels as “all one piece” and indicated that it had to be considered such for rezoning purposes, therefore the granting of PUD zoning to Parcel A and not to Parcels B & C was arbitrary and capricious.

I do not feel that the majority gives enough consideration to the question of whether there is a qualitative difference between Parcel A and the other two parcels (Parcels B & C). We have upheld the Zoning Board’s use of a road as a boundary line, with the road being regarded as a buffer between different zoning classifications on many occasions. (Gulf Oil Corp. v. County of Du Page (1975), 24 Ill. App. 3d 954, 956 ; Du Page Trust Co. v. County of Du Page (1975), 31 Ill. App. 3d 993, 999 .) In the proposed PUD there would be an area of commercial development of 4.5 acres, which would be in the parcel south of Hobson Road (Parcel B). Obviously, the wish of the Zoning Board was to prevent the spread of multiuse zoning south of Hobson Road and to retain the natural beauty of that area. This appears to me to be a legitimate purpose and should not be subject to being automatically thwarted by a developer contracting to purchase the property on both sides of a road (in this case, Hobson Road), and then designating the property as a unit, subject to the same PUD zoning.

The County contended that Hobson Road is a natural buffer between Parcel A and Parcels B & C and there is a clear difference in the character of the land uses as between north and south of Hobson Road. It is, they say, reasonable therefore to use a different zoning classification. The County also contends the traffic flow generated along Hobson and Greene Roads would greatly increase the danger of traffic accidents and require traffic controls. These factors, I feel, provide a basis for the difference in zoning.

In this case the record indicates that early in the trial the court stated “° * * It is all one parcel. It is a planned unit development so we can’t take it piecemeal. It is all together.” The court’s decision in favor of the petitioner was inevitable, once the judge had decided — at the outset— that the three tracts were all one piece, because if they were all one piece, there would be no rational basis for splitting the zoning.

However, from certain testimony in the record, it appears the parcels were not under a common ownership and merely because they were lumped together in the proposed PUD does not render the three parcels immune to different zoning treatment. Otherwise, by petitioning for a special use for a PUD a landowner could get favorable zoning as to his land in every case by lumping it with other tracts which themselves were eligible for rezoning even though the one tract, standing by itself, would not be eligible for such classification. It seems to me if there is a rational basis of distinction, zoning-wise, between the parcels the mere fact that they are all in the proposed PUD does not automatically make them all subject to the same zoning. In the case before us the owner or owners are not required to create a PUD. If they do not get PUD zoning for Parcels B & C they can still make a profit by developing the land as presently zoned — it is a question of how much they will make. A PUD is a special use and no one has a constitutional right to a special use. It is a question of whether the creation of traffic problems and congestion, the crossing of a buffer zone and the possible depreciation of nearby single residences, all testified to, are substantial enough consideration to justify the difference in zoning. I do not think the fact that the PUD zoning was granted for Parcel A on the north side of Hobson Road automatically makes it necessary to grant the same zoning for Parcels B and C on the south side of Hobson Road.

The standard of proof used by the trial court, as enunciated in his summing up before giving his decision, was the “greater weight” of the evidence, but this is not the proper standard. The proper standard (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428 ) is “clear and convincing” evidence. This is the standard have to apply here.

After reading the briefs and considering the arguments of counsel, it is my opinion that the invalidity of the zoning ordinance, as applied to Parcels B & C, was not established by clear and convincing evidence and the court’s standard — the “greater weight” of the evidence is not sufficient to overcome the presumption of validity in favor of the Board’s ruling.

I would reverse the trial court.