The opinion
MR. JUSTICE CLARK, dissenting:
I find it significant that the zoning board of appeals recommended approval of the special use permit, but the county board of commissioners, without opinion, did not. I believe some deference should be given the zoning board, especially under the facts of this case.
It is true that it is primarily within the province of the local municipal body to determine the uses of property and establish zoning classifications. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46 .) A court may not overrule the decision of that body “where the reasonableness of the ordinance is fairly debatable.” (Hartung v. Village of Skokie (1961), 22 Ill. 2d 485, 493 .) But the presumptive validity of such an ordinance is dependent upon the real and substantial relationship between the ordinance’s restrictions and “the public health, safety, morals, comfort and general welfare.” (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46 .) It is for that reason that the decision to grant or deny a special use, which is a legislative determination, is subject to judicial review (Hartung v. Village of Skokie (1961), 22 Ill. 2d 485, 498 ; Pioneer Trust & Savings Bank v. County of McHenry (1968), 41 Ill. 2d 77, 84 ; Kotrich v. County of Du Page (1960), 19 Ill. 2d 181 , appeal dismissed (1960), 364 U.S. 475 , 5 L. Ed. 2d 221 , 81 S. Ct. 243 ): “[T]he denial of a special use permit must bear a ‘real and substantial relation to the public health, safety, morals or general welfare. ’ ” (Lazarus v. Village of North-brook (1964), 31 Ill. 2d 146, 151-52 .) The fundamental policy consideration is this: “[E] very owner has a right to use his property in his own way, subject only to the restraint necessary to secure the common welfare.” (Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Chicago Board of Appeals (1962), 25 Ill. 2d 65, 70 .) Zoning laws implement that restraint, but are permitted only pursuant to the police power of the State.
The factors considered in making the determination of whether a denial of a special use permit bears a relation to public health, safety, morals or general welfare “include the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property’s value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses.” (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111-12 ; accord, La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47 .) “No one factor is controlling. It is not the mere loss in value alone that is significant, but the fact that the public welfare does not require the restriction and resulting loss.” (Emphasis added.) (LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 47 .) “Ultimately if it clearly appears that the relative gain to the public is small when compared with the hardship imposed upon the property owner by the zoning restriction, there is then no valid basis for the exercise of the police power to so limit the owner’s right to the use of his property.” Duggan v. County of Cook (1975), 60 Ill. 2d 107, 112 . Accord, Pioneer Trust & Savings Bank v. County of McHenry (1968), 41 Ill. 2d 77, 85 .
That is controlling here. I agree with the appellate court that the evidence is persuasive: the public welfare does not require denial of the special use. The proposed facility “would complement the community hospital and complete yet another segment” in the de facto development effort “to meet the expanding health care needs of the community at large.” ( 53 Ill. App. 3d 79, 87 .) The public would be benefited rather than harmed. Allowance of an extended-care facility as a permitted special use supports this view. Significantly, the zoning board of appeals agreed, since it concluded the owners’ proposal met the six standards for recommending the special use (Cook County Zoning Ordinance, art. VI, sec. 6.9(f)).
Denial of the permit will result in considerable harm to the owners. Testimonial evidence showed there was little vacant land in the area; that the highest and best use of the subject property is the proposed use; that rental revenues accruing to the owners from the proposed facility (to be operated by Americana Health Services Corp.) would amount to $250,000 to $300,000 annually compared to the current annual rent of $3,360 for the single-family residence; and that the proposed use would give the property a value of $200,000 compared to the $100,000 maximally estimated for single-family use. (Cf. Hartung v. Village of Skokie (1961), 22 Ill. 2d 485, 496 , where this court found “unrefuted hardship to the plaintiffs” whose proposed use (motel and restaurant) would have enhanced the value to $190,000 from $60,000 (for residential use).)
I do not share the fear that neighboring properties will diminish in value due to the proposed facility. The hospital, next door to the subject property, has “established a long-standing change in the character of the area” ( 53 Ill. App. 3d 79, 88 ), and has not seriously threatened the economic interests of its neighbors’ properties or inhibited construction of expensive houses. The proposed facility would simply become a component in the already established medical complex in the area. Moreover, a substantial amount of landscaping would surround the 43-foot-high structure. A six-foot-high screen and trees would comprise a buffer. Many, if not most, of the residences adjacent to the property are screened off or face away from the site.
In sum, I find from the evidence that the proposal would benefit the public, is consistent with existing, surrounding uses, and would not harm the value, use or enjoyment of nearby properties. On the other hand, denial of the special use would injure the owners. For these reasons, I would affirm the judgment of the appellate court.
MR. JUSTICE KLUCZYNSKI joins in this dissent.