dissenting:
I must respectfully dissent. Plaintiffs sought multiple-family residential zoning with a special use permit for an office building which was denied by the city of Rockford. In this action plaintiffs sought a declaratory judgment; the trial judge declared that the single-family zoning classification was unreasonable as applied to plaintiffs’ property and his order provided that plaintiffs would be allowed to use their premises for “a single-story office building” consistent with the site plan that had been submitted at trial. The standard to be applied by this court on appeal has been recently stated by our supreme court in Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 516-17:
“The standard for review of zoning cases, as in other cases, is that the findings of the trial court will not be disturbed unless against the manifest weight of the evidence.”
Application of this rule requires a review of the evidence presented at trial and an analysis of the findings of the trial judge based thereon.
The following diagram depicts the plaintiffs’ property (hereafter “subject premises”), the surrounding neighborhood and the streets; the zoning is shown by designation of “CC” (Community Commercial), “R-l” (single family residence), and “R-2” (two-family residence).
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The following facts about the general area are undisputed:
A. Subject premises have been zoned R-l for a long time and this classification was retained in the current Rockford zoning ordinance enacted in 1973.
B. In 1973, Parkside Extension did not exist; at that time the property was occupied by a residence facing south on Broadway; Eastmoreland came to a “T” intersection at Broadway.
C. In 1976, the city moved the residence noted at B above and constructed Parkside Extension, a four-lane street divided by a median strip; at the same time Charles Street was altered to the east so as to require a large portion of eastbound traffic to turn south onto Parkside Extension and thence east on Broadway.
D. In 1976, automatic stop-and-go signals were installed to regulate the traffic at the intersection of Broadway, Parkside Extension and Eastmoreland.
E. No evidence was presented that the proposed use of the subject premises would depreciate any of the surrounding residential property; no neighbors objected thereto.
F. The area between Broadway and Charles on the east side of Parkside Extension is known as the Colonial Shopping Center, consisting of a Pacemaker Food Store and other retail businesses.
G. On the south side of Broadway, starting at Eastmoreland and heading east, the uses are as follows: a coin and stamp store, a sporting goods store, a dental laboratory and a gasoline filling station.
H. The area south of the businesses noted in G is residential.
I. Except for a title company and law office at the southwest comer of Charles Street and Parkside Extension, the area west of Parkside Extension is residential.
J. In February 1978, the average daily traffic count (Monday-Thursday) on Broadway was 13,000 vehicles; on Parkside Extension, the daily traffic count was 9,000 vehicles. On Friday and weekends, the traffic count was projected as higher than the daily average. On Eastmoreland the average daily traffic count was 1500 to 1900 vehicles.
K. Mr. DeFillips, executive director of the City-County Planning Commission, described Parkside Extension as a major arterial street; he further stated that the 1973 City Plan did not show Parkside Extension.
L. The market value of the subject premises zoned R-l is approximately *22,000; zoned for the proposed use, the market value is *32,200 or nearly 50% greater.
Additional uncontradicted facts pertaining solely to the subject premises are as follows:
A. In 1972, the monthly rent was *210; the current monthly rent is *165; the house is 50 years old. Plaintiffs testified that the noise and traffic made it difficult to keep tenants.
B. The residence adjacent to the west was 1.1 foot from the property line and the entire front yard was paved. The residence adjacent to the south was used as a Salvation Army parsonage.
C. That plaintiffs were prepared to spend approximately *100,000 to construct the single-story office building proposed.
The areas of dispute are considered next. The differences here lie primarily in the ultimate facts or conclusions to be drawn from the facts and testimony of the witnesses. The plaintiffs’ experts, a planning consultant and a real estate appraiser, concluded that the subject premises were in a transitional area where the trend was toward business uses; that the construction of Parkside Extension greatly increased noise and traffic; the traffic activity and the influence of the commercial uses to the north and east brought about this change. Plaintiffs’ experts were of the opinion that the proposed use was the highest and best use of the subject premises. They stated that this use was compatible with the trend of growth, the traffic and that it was not detrimental to surrounding properties; that this use would serve as a buffer between the retail uses and the residential area to the south and west. They compared the proposed use as similar to that of the title company and law office located at the southwest comer of Charles and Parkside Extension.
Mr. Swanson, the senior planner for the City-County Planning Commission, testified for the city; in that capacity he had previously recommended against the use of the subject premises as proposed. It was his opinion the neighborhood was older, mature and stable; that the proposed use was an intrusion and that Eastmoreland was the logical boundary between the residential uses on the west side and the commercial uses on the east. He stated that allowing the proposed use would create a domino effect by being a basis for the further extension of commercial uses. He did not express an opinion as to highest and best use as he felt that the term was meaningless. The city also presented Mr. Jeffembruch, a local appraiser; he gave an opinion as to the value of the subject premises which conformed to the opinion of plaintiffs’ appraiser; he was not questioned as to the highest and best use, and he stated he was not prepared to testify as to whether the proposed use would damage surrounding properties.
The evidence presented at the trial must next be viewed pursuant to the guidelines that our supreme court has prescribed in mling upon the validity of a zoning ordinance. The relevant factors that the trial court may consider in determining the validity of a zoning decision were enumerated by the supreme court in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, in the specific use context. These factors are as follows:
1. The uses and zoning of nearby properties.
2. The extent to which existing zoning diminishes the property’s value and the proposed zoning enhancing it.
3. The suitability of the property for the purposes permitted under the existing zoning.
4. The relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses.
No one of these factors is controlling.
The trial judge made specific findings which may be summarized as follows: 1. that the property uses east and northeast of the subject premises is extensively commercial; that the former “T” intersection at Eastmoreland and Broadway has been replaced by a major intersection; that Eastmoreland is no longer a logical zoning boundary because of the noise and heavy traffic; 2. that neighboring properties will not be damaged by the proposed use; 3. the present zoning diminishes the value of the subject premises because of the heavy traffic and character of the neighborhood; 4. the proposed use is suitable; it is the highest and best use; 5. the subject premises have been zoned residential for a long time but the property to the east has developed gradually as community commercial; 6. the proposed use of the subject premises will generate little traffic and any detriment therefrom is slight compared with the hardship to the plaintiffs; 7. the zoning restriction does not promote the health, safety and morals of the community; the gain thereby is nil.
On the basis of the above findings, the trial judge declared the present zoning classification invalid. The issue on this appeal is whether or not the evidence provides a basis for the above findings. It is my view that the evidence furnishes an adequate basis for the order of the trial court. Plaintiffs’ land planner and real estate appraiser stated the area of the subject premises was transitional due to construction of Parkside Extension by the city; this opinion is supported by substantial increase in the traffic, the increased noise occasioned thereby and the presence of the traffic signals. Whether or not the area of the subject property is transitional or stable is actually the only factual area of dispute between plaintiffs’ experts and the city’s land planner who was a city employee of approximately eight months. Certainly the trial court had ample basis for concluding that the neighborhood was changing and that the use proposed by plaintiffs would provide a buffer between the retail establishments and the residential uses to the south and west. The majority state that the diminution in value of the subject premises caused by the zoning restrictions is not a hardship to the plaintiffs; they state that the property is being used as zoned and plaintiffs are “enjoying a return from it.” The evidence shows the rent has decreased by about 25% since 1972 contrary to the inflation spiral. It is not realistic to expect plaintiffs to invest money in this property as a single family dwelling; the house immediately west is a little over one foot from the property line and its front yard is paved; the zoning restriction reduces the value of the subject premises by $10,000, while removal of the restriction will increase the value nearly 50 percent. Since the city created the change in the area by construction of Parkside Extension, the trial court had a logical basis to conclude that the previously existing zoning restriction was unreasonable.
The trial judge found that little benefit accrued to the community by the residential zoning of the subject premises. However, the majority conclude there is a benefit by holding the residential zoning line. Such a conclusion could be automatically advanced in support of every zoning restriction; the important consideration is whether dr not the restriction is reasonable under the particular circumstances presented. Our supreme court has acknowledged this proposition in Myers v. City of Elmhurst (1958), 12 Ill. 2d 537, 546:
“* * * zoning ordinances restricting a certain area to residential use have been held void as to property located in such area, but so situated in its relation to other commercial uses as to render it peculiarly unattractive and of little value for residential purposes.”
Furthermore, the trial judge could logically conclude that the construction of an office building costing *100,000 on the subject premises would far exceed any possible community benefit resulting from continuation of the residential zoning restriction, particularly when there is no evidence that surrounding properties would be damaged.
The majority place great emphasis on the proposition that a street constitutes a natural zoning boundary, citing Gulf Oil Corp. v. County of Du Page (1975), 24 Ill. App. 3d 954, and Du Page Trust Co. v. County of Du Page (1975), 31 Ill. App. 3d 993. The facts of each of these cases involved the same intersection where only one comer was commercial and the remaining three comers were residential; furthermore, the proposed use in each case was much more intrusive since a gasoline filling station was sought in one case and, in the second, a retail shopping complex was proposed.
The Appellate and Supreme Court Reports have many zoning cases, and it is possible to find statements that support either side. Why do I write this dissent? It is my opinion that the proper standard of review is set forth at the beginning of this dissenting opinion. The same rule has again been reiterated in La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301. The majority make no mention of the standard for review and instead they stress the presumption of validity that attaches to a zoning ordinance; they conclude that the plaintiffs have not overcome this presumption, apparently since there was a conflict of expert opinion as to whether the area of the subject premises was transitional or stable. Here the trial judge concluded that the presumption of validity was overcome and having done so, it is the function of this court to analyze the evidence to determine if the evidence supports his findings by any reasonable construction. Since even the majority concedes that the trial court’s findings provide “some basis” for invalidating the ordinance, the trial court’s decison must be affirmed.
Careful review of the decision of the trial court shows that due consideration was given to each of the factors deemed critical in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47; all were weighed together, and the court made specific findings on each factor leading to the conclusion that the ordinance is unreasonable. It is the burden of the defendant to persuade this reviewing court that the decision of the trial court was against the manifest weight of the evidence. The opinion in Myers v. City of Elmhurst (1958), 12 Ill. 2d 537, 547, is appropriate at this point:
“The determination of the trial court is, of course, always subject to review, but its findings should not be disturbed unless they are against the manifest weight of the evidence. [Citation.] Here the testimony was conflicting. The credibility accorded the witnesses, as well as the weight of their opinions concerning values, may well have been the determining factors in the trial court’s decision. The position of the trier of facts is superior to that of the reviewing court in such situation. [Citation].”
In my opinion, the order of the trial court should be affirmed.