Bossman v. Village of Riverton

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, capricious, and without substantial benefit to the public health, safety, or welfare based on their analysis of the factors referred 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 enumerated 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 challenging 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 factors, 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 determinative, 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 depending on the application of the factors relating to the reasonableness 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 invalidating 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 opinion.

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 difference of opinion on the question of rezoning the subject properties. Hofferkamp testified that the negative impact on the surrounding properties outweighed the positive aspects of rezoning 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 inference 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 differences of opinion concerning the reasonableness of the classification and that the question of reasonableness 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 value 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.