dissenting:
I cannot agree with the conclusion reached by my colleagues.
Courts are not to interfere with the discretion of legislative bodies charged with zoning and limiting the use of property except where there is a clear abuse of discretion. A zoning ordinance is clothed with a presumption of validity and it is incumbent upon one who attacks the ordinance to establish by clear and convincing evidence that, as applied to him, the ordinance is arbitrary and unreasonable and without substantial relation to the public health, morals, safety and welfare. As I view this record, it falls short of meeting this condition precedent to judicial interferrence.
At most, this record establishes a difference of opinion or presents a debatable issue, and that is not sufficient to establish the ordinance to be clearly unreasonable. Bennett v. City of Chicago (1962), 24 Ill.2d 270, 181 N.E.2d 96; Trendel v. County of Cook (1963), 27 Ill.2d 155, 188 N.E.2d 668; Fox v. City of Springfield (1957), 10 Ill.2d 198, 139 N.E.2d 732.
I agree with the majority that the decree of the circuit court is within the admonitions found in Sinclair Pipe Line Co. and in Treadway, cited in the majority opinion. While the decree may not be subject to the procedural defects urged by the appellant, the record, as I view it, is insufficient to warrant the conclusion that the ordinance is invalid.
Blair purchased his property knowing of the then zoning classification applicable to it. That classification remains unchanged. The area to the south has become commercialized. Golf Road, which divides the commercial zoning area from the single-family residential area of which the Blair property is part and parcel, has become improved and handles substantially more traffic. The previously vacant Nelson lot has become improved with a commercial building. The plaintiff’s property, if rezoned, is worth some fifteen thousand dollars more than if left alone and in its present zoning classification. The question this record presents is whether these facts, either alone or in the aggregate, invalidate the zoning classification, or whether these facts present the plaintiff with a limitation as to the use of this property so unreasonable as to reach constitutional proportions.
We must be mindful in our examination of this issue that while Blair is the beneficial owner of the property, Nelson is its contemplated purchaser in the event of rezoning. I am unable to accept as persuasive the reasoning of the majority that the change in zoning on the property immediately to the east (the Nelson property) is of sufficient detriment to Blair as to make a single-family residence classification invalid when, in fact, the owner of the Nelson property will benefit from the judicially imposed change. To so reason permits the owner of the Nelson property to expand a use criticized by the majority. Invalidating this ordinance as to the Blair property for the benefit of the Nelson property, based upon the offensive use as to the Nelson property, permits a boot-strap operation to succeed.
The Blair property can be used and does have substantial value when used as a single-family residence as it is now zoned.
In the majority opinion it is emphasized that the Village of Mount Prospect has zoned the property south of Golf Road for commercial use and it is indicated that that action of the Village somehow aids the plaintiff in this proceeding. This is apparently premised upon a judgment that Golf Road is an inappropriate fine of demarcation between zoning areas.
It is a matter of judgment whether a zoning fine should be drawn at streets, alleys or property lines, but it is clear, first, that they have to be drawn someplace, and secondly, that there will be unhappiness with the location wherever drawn. We have many cases, however, to the effect that a street may be a proper line between zoning districts, particularly where the street is wide and heavily traveled. In Rebman v. City of Springfield (4th Dist. 1969), 111 Ill.App.2d 430, 438, 250 N.E.2d 282, 286, we noted:
“* ” * Obviously, in establishing zoning areas and the limitations on land use, lines of demarcation between permitted uses have to be drawn someplace — whether a street or an alley or along natural barriers such as lakes or rivers. We know of no judicially imposed requirement that such lines of demarcation be alleys as distinguished from streets, or vice versa. The Supreme Court has recognized that a sheet may be a proper line between zoning districts, especially where the street is wide and heavily traveled. LaSalle Nat. Bank v. City of Chicago, 6 Ill.2d 22, 126 N.E.2d 643 (1955); Mundelein Estates, Inc. v. Village of Mundelein, 409 Ill. 291, 99 N.E.2d 144 (1951); see also: Northern Trust Co. v. City of Chicago, 4 Ill.2d 432, 123 N.E.2d 331 [sic, 330] (1955 [sic, 1954]); Davis v. City of Rockford, 60 Ill.App.2d 325, 208 N.E.2d 110 (2nd Dist. 1965); Reese v. Village of Mount Prospect, 72 Ill.App.2d 418, 219 N.E.2d 682 (1st Dist. 1966) [(abst.)]; Gans v. City of Chicago, 102 Ill.App.2d 456, 243 N.E.2d 400 (1st Dist. 1968).”
Further, in Urann v. Village of Hinsdale (1964), 30 Ill.2d 170, 195 N.E.2d 643, the Supreme Court recognized the validity of drawing a zoning line along a railroad track separating an industrial from a residential area, and held that plaintiff had not there overcome the presumption of validity. Likewise, a toll road serving as a line of demarcation was sustained in La Salle Nat’l. Bank v. Village of Western Springs (1964), 30 Ill.2d 340, 196 N.E.2d 680. An even less desirable fact situation, so far as a property owner is concerned, is represented by Maywood Proviso State Bank v. Village of Berkeley (1st Dist. 1965), 55 Ill.App.2d 84, 204 N.E.2d 144. Thus, when a zoning line has to be drawn, in the absence of a clear showing that the line bears no reasonable relationship to the public health, safety or welfare, or a showing that it is capricious or unreasonable, there should be no judicial interference simply because there is a difference of opinion.
This record indicates that should the Blair property be rezoned, then a single-family residential neighborhood of which it is a part would, under any logical extension of that rezoning, be eroded by commercial intrusions. It is within the legislative authority to preserve and protect against such erosion. Such protection is patently related to the public health and welfare. The ordinance in this case has that protective effect. Under such circumstances the circuit corut was in error in substituting its judgment for that of the legislative body. I would reverse.