The opinion
JUSTICE STOUDER, dissenting:
After reviewing the opinion in the above-captioned case, I must respectfully dissent. I disagree with the analysis presented regarding the eight factors listed in National Bank v. County of Will (1987), 151 Ill. App. 3d 957 , 503 N.E.2d 842 .
Initially, I agree that the second factor weighs in favor of the defendants because the plaintiffs did not present evidence showing a diminution in the value of the property due to the zoning restriction.
The fourth factor, however, requires the court to consider the relative gain to the public as opposed to the hardship upon the individual property owner. The opinion indicates that factors two, three, and four are somehow interrelated. I disagree. The eight factors are to be viewed individually. If said factors were not independent of one another, there would have been no need for the court to delineate among the eight factors.
Here, all of the experts emphasized that the use as an asphalt plant was the highest and best use, but that the use was only as an integral part of the existing quarry and, as such, could not be assessed individually. Under these circumstances, the failing to testify as to the diminution in land values does not warrant the inference that the plaintiff (property owner) failed to prove hardship due to the zoning restriction.
In the instant case, the record shows the plaintiff testified that building the asphalt plant in the quarry would save approximately $3 million annually for his company. This is not only a significant savings to the company, but to the consumer as well. Also, at a time when this area of Will County is experiencing a surge in development, the reduction in truck traffic and the increased tax revenues from the property represent a significant benefit to the public. The defendants, meanwhile, presented no evidence to counter this evidence. Accordingly, I find the fourth factor to weigh heavily in the plaintiff’s favor.
Additionally, the seventh factor is the care with which the community has undertaken to plan its land use development. The extensive testimony here revealed that Hullinger, a person who helped develop the plan for Will County, testified that the asphalt plant fit well into the county plan and that it was less intense than a quarry. The trial court ruled in favor of the defendants, stating that the asphalt plant would not promote residential development. I note that residential developments are planned for this area and that the existing quarries have not deterred residential developers from purchasing and developing land in close proximity to these quarries. Indeed, it has been demonstrated that, after the quarries are exhausted, they become excellent areas for residential development. If the quarries fail to deter residential development, then neither will the asphalt plant.
I further disagree with the analysis of the eighth factor. The eighth factor requires the court to consider the evidence or lack of evidence of community need for the use proposed by the plaintiff. The trial court and the opinion emphasize the fact that two asphalt plants have been approved and not yet built. The record contains no evidence of why this is so. The trial court speculates that this must be due to their being no need for such asphalt plants. The plaintiffs counter with evidence that over 1,000 truck loads of stone per day leave the region for asphalt plants outside the area. The defendants presented evidence of a phone call to a local asphalt plant owner who stated that his plant was operating between 33% and 60% capacity. This testimony must be taken with a grain of salt for it’s hard to imagine that the plant owner would say something to the effect that “we’re operating at full capacity, and we sure need a competing asphalt plant to take some of our business.” The trial court, in my opinion, erred in finding this factor to weigh in favor of the defendants.
The gist of my disagreement, however, centers on the trial court’s emphasis on a single factor in making its determination. As stated in the opinion, the court in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40 , 145 N.E.2d 65 , emphasized that “[n]o one factor is controlling.” Here, the trial court and the opinion rely primarily on the fact that the plaintiffs failed to submit evidence indicating that the property has suffered a diminution in value as a result of the ordinance. This factor, significant as it must seem to the trial court, is no more significant than the other seven factors. The National Bank case lists many factors, all of which must be given consideration before a decision is rendered. In addition, these types of cases need not be decided on a mathematical basis. The plaintiff does not necessarily win if he proves successful on five factors, nor does he lose if he fails to prove successful on four. The law requires that the trial court not base its judgment on one factor. After reviewing the substantial evidence presented by the plaintiffs in this case and after reviewing the trial court’s order, I find the trial court, in contravention to LaSalle National Bank, erroneously relied on one factor in rendering this decision. For these reasons, I respectfully dissent.