experts’ testimony did not rise to the level of clear and convincing evidence where the experts did not adequately explain the bases for their opinions and where their opinions were largely unsupported
How later courts described this case
- experts’ testimony did not rise to the level of clear and convincing evidence where the experts did not adequately explain the bases for their opinions and where their opinions were largely unsupported
- change in value from $250,000 to $750,000
Written by the judges who cited it.
The opinion
JUSTICE TULLY, dissenting:
I must respectfully dissent. While I have no quarrel with the majority’s recitation of the applicable law, I cannot accept its conclusion that the trial court’s findings are not against the manifest weight of the evidence.
As the majority correctly noted, the validity of a zoning ordinance is subject to review under the eight factors outlined by the Supreme Court of Illinois in La Salle National Bank v. County of Cook, 12 Ill. 2d 40 (1957), and Sinclair Pipe Line Co. v. Village ofRichton Park, 19 Ill. 2d 370 (1960). See 287 Ill. App. 3d at 915. However, after reviewing the evidence put forth by plaintiffs and the City, I believe that the trial court and the majority have reached an incorrect result.
With regard to the first La Salle/ Sinclair factor, the existing uses and zoning of nearby property, the best witnesses are the adjoining properties. See Aurora National Bank v. City of Aurora, 41 Ill. App. 3d 239, 244-45 (1976). In the instant case there has been a clear trend toward multifamily development in the area of the parcel plaintiffs wish to develop. Since 1969, the City has permitted nine parcels to be rezoned to R-4. The majority opinion diminishes the significance of this trend by pointing out that a number of these rezonings were done in the 1960s and 1970s and that only a couple occurred in the 1980s and 1990s. However, anyone familiar with real estate development knows that it can take decades for a neighborhood’s character to develop. Moreover, real estate development is particularly vulnerable to business cycles and interest rates. The fact that the trend is drawn out over a few years is irrelevant. Clearly, the trend is there and, thus, this factor weighs in favor of plaintiffs.
The evidence about the second factor, reduction of property values, also weighs in favor of plaintiffs. The real estate appraiser, Jerry O’Brien, testified without contradiction that the value of the property at the time of trial was about $250,000, while it would be worth $750,000 if zoned R-4. Moreover, there was evidence presented that there was no industrial market for the lot in light of its relatively small size and of the ongoing residential development in the neighborhood.
With respect to the third and fourth factors, the promotion of the public health, safety or general welfare, I believe there is nothing in the record that significantly bolsters the City’s position. Rather, I believe the opposite is true here. Surely, the interests of the people of the 23rd ward and of the city at large are better served by the creation of more homes and the expansion of home ownership within the city. I absolutely cannot believe the neighborhood is better off with this land being used as a parking lot or in its current capacity as a dump.
As for the fifth factor, the suitability of the property for its proposed use, it is undisputed that the property is perfectly suited for the construction of multifamily residential residences. Thus, this factor also weighs in favor of plaintiffs.
The sixth factor relates to the length of time that the property has been vacant. While it is true that the record does not reveal exactly how long the property has been vacant, it is clear that it has been a long time. The trial court expressed concern about the lack of evidence on this point, but the key question is not how long the lot has been vacant, but whether it will ever again be viable for its former use. In view of the nearly nonexistent industrial development in the area, it seems unfortunately clear that an industrial renaissance in the 23rd ward is not on the immediate horizon.
Under the seventh factor, the community’s care in planning land use development, it is without question that the City has exercised great care in the creation and administration of its comprehensive zoning ordinance. However, that ordinance was enacted 40 years ago during an unprecedented post-war economic and industrial expansion. Since that time great economic change has transformed our economy from a primarily industrial economy to a more mixed economy in which the service sector has a much more substantial role. In light of these profound changes, common sense would seem to suggest a continuation of the City’s recent policy of allowing more multifamily residential development.
Finally, the eighth factor is the community’s need for the proposed use. Respecting this factor, I believe plaintiffs provided more than sufficient evidence of a need for this type of development. I cannot imagine that Chicago needs another dumping ground.
In closing, on a more general note, I find it perplexing that at a time when markets and economies are opening up in Eastern Europe, Latin America, Asia and throughout the world at the encouragement of the United States government, we continue to straightjacket in regulation the entrepreneurial spirit here at home.
Thus, I believe that the trial court erred in refusing to rezone the subject property to R-4. I would, therefore, reverse the circuit court’s judgment and remand for further proceedings consistent with this view.