dissenting.
I am unable to agree with the majority of the court. It has been repeatedly recognized that zoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare. (La Salle National Bank v. City of Evanston, 57 Ill.2d 415, 428, 312 N.E.2d 625, 632.) It is therefore always presumed, in an attack upon a zoning ordinance, that the enactment is valid, and the burden of proving its invalidity falls upon the one who attacks the ordinance. (Jacobson v. City of Evanston, 10 Ill.2d 61, 139 N.E.2d 205.) The burden of proof required is one of clear and convincing evidence that the ordinance is arbitraiy and unreasonable and has no substantial relation to the public health, safety and welfare. Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96.
The property at question in the instant case had been zoned for single-family residential uses pursuant to a comprehensive plan adopted by the City of Des Plaines (hereinafter referred to as the “City”) in 1958. The proposed 1971 comprehensive plan also classifies the property as single-family residential. The plaintiffs applied to the Zoning Board of Appeals of the City of Des Plaines for reclassification of their properties from “R-2'Single Family Residence District” to “C-2 Commercial District.” After a hearing, the Board recommended to the City that the request be denied. The City concurred in the Zoning Board’s decision. Considered legislative and administrative determinations were thereupon in conformity regarding the propriety of the present zoning.
An action was then commenced in the circuit court by four plaintiffs seeking a declaratory judgment that the property be rezoned to C-2 commercial. A number of owners of single-family residences located directly across Busse Highway north of the subject property requested and were given leave to intervene. Thereafter, one of the plaintiffs requested leave to withdraw and was dismissed from the suit, leaving an irregularly shaped plot in the middle of the subject property no longer a part of this appeal. The case went to trial and many witnesses were presented by the respective parties, including expert witnesses. After hearing the evidence the court entered judgment against the plaintiffs.
Now, on appeal, in order to reverse that judgment we must not only be convinced that the plaintiffs established the invalidity of the ordinance as applied to them by clear and convincing evidence, thus overcoming the presumption in favor of the legislative determination (Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96), but also that the trial court’s adverse finding in this regard was manifestly against the weight of the evidence (Atkins v. County of Cook, 18 Ill.2d 287, 163 N.E.2d 826).
In my view, the most that can be said of the plaintiffs’ case is that they have demonstrated that there is a difference of opinion between them and the City and the intervenors as to whether their property should be rezoned. And where there is room for a legitimate difference of opinion concerning the reasonableness of a classification, the finding of the legislative body must be conclusive and remain undisturbed. (La Salle National Bank v. City of Evanston, 57 Ill.2d 415, 312 N.E.2d 625.) As stated in Chicago & N.W. Ry. Co. v. City of Des Plaines, 97 Ill.App.2d 201, 210, 240 N.E.2d 280, 285, “[w]here the reasonableness of a zoning classification is debatable, as these different views of the evidence indicate the present one to be, the legislative judgment of the City Council must control.” That statement applies equally to the case at bar.
Plaintiff, Virginia Tomasek, the owner of the northwesternmost parcel of the subject property, testified that she was also the owner of a wholesale tobacco-distributor company located in another area in the City of Des Plaines, and she- finds it necessary to move her business elsewhere. She desires to move the business to her portion of the subject property if the zoning change is effected. Tobacco and tobacco products, including packaged cigarettes, cigars and pipe tobacco, are kept on the business premises. There are truck deliveries to and from her premises, and on an average day there are 12 to 15 deliveries. The company owns six trucks and is also involved in the vending machine business. She has owned the subject property since 1959, at which time it was zoned for single-family residences, and the property across Busse Highway had already been developed with single-family residences. She testified that she would relocate her business into two or three of the four buildings she plans to have erected on the subject parcel if the zoning is changed, and perhaps she would rent out some of the unused space. The property at present is heavily wooded. Plaintiff John H. Rogers acquired his property, adjoining the Tomasek property, in 1954. At the time of trial he lived with his family on the site, which is improved with a single-family dwelling. He testified that if his parcel would be rezoned he would build four office buildings there. Plaintiff William L. Kunkel & Company, the owner of the wooded and undeveloped southeasternmost parcel (which is separated from the Tomasek and Rogers parcels by the plot owned by the plaintiff who was granted leave to withdraw before trial),1 also plans to develop its property with four office buildings upon reclassification.
The City’s experts were of the opinion that the highest and best use of the subject property would be for single-family residences in accordance with the present zoning, and their testimony indicated that it is reasonably adapted for the present zone-use classification. It could be developed with 28 to 30 single-family homes. The plaintiffs’ experts did not directly dispute that the property could be developed as single family, but were of the opinion that the highest and best use of the land would be for office, wholesale, or jobber facilities as allowed by C-2 zoning.
An important factor influencing the opinion of the plaintiffs’ experts, and relied on in the majority opinion, is the nonresidential use near the subject property. The majority points out that the subject property is the only property along the entire length of the south side of Busse Highway that is zoned for single-family residences, and that the adjacent northwestern half of the “peninsula” between the highway and the railroad tracks was zoned and developed as M-2 general manufacturing. But the City persuasively, I think, showed that the essential character of the area is single-family residential and that this use influences the subject property most. As the land use and zoning map appended to this dissent indicates, the present R-2 zoning of the subject property is entirely consistent with the residential zoning and development across Busse Highway to the north which includes a City park, and the forest preserve land to the north and east. The subject strip can genuinely be considered much more a part of this basic single-family park neighborhood to the north, rather than a part of the manufacturing district bordering only the northwesternmost edge of the subject property. These manufacturing uses are located a considerable distance away from the bulk of the subject property because of its long narrow shape. As the map indicates, the M-2 zoning ends at roughly the same point on the western boundary of both the property north of the highway (which is then zoned R-2, and farther east R-l), and the subject property — south of the highway up to the commuter line tracks. Thus, no commercial or manufacturing uses are located along any portion of Busse Highway immediately opposite the subject site. The finger-like extension óf C-2 zoning along the strip north of tire commuter line, which would be created if the subject property were rezoned, was cogently characterized as undesirable.
The effect of the highway on the affinity between the subject property and the residential district to the north was sufficiently demonstrated to be minimal. It was not seriously disputed that Busse Highway is not a major traffic artery. Captain Blume of the Des Plaines Police Department testified as to a traffic count on Busse taken by the City and said that Busse is like a normal residential street in Des Plaines. The plaintiffs’ own expert witness, Smith, agreed that “all it [Busse] is” is a “relatively short highway or road,” connecting up Des Plaines with Park Ridge and it “leads nowhere in terms of cut-offs north or south from it.” The TriState Tollway, which intersects Busse east of the subject property, has no interchange with Busse Highway.
The existing uses and zoning of the neighboring property to the south of the subject property were also demonstrated to have no influence that would compel a finding that the present residential zoning of the subject tract is unreasonable. As the map shows, the subject strip is bordered on the south by railroad tracks belonging to the Chicago and Northwestern line. The property south and southwest of the tracks consists of forest preserve and camp grounds — uses consistent with residential zoning — except for the City of Des Plaines Public Works maintenance garage opposite a portion of the subject property and a small section of the forest preserve which appears on the map as being zoned C-2 but apparently remains undeveloped. Any adverse influence the operation of the maintenance garage would have on abutting residential property is obviated, since the garage does not “abut” the subject property but is separated by the railroad tracks. And the railroad presents a logical line of demarcation between the residential use of the subject property and any commercial use to the south. (See Urann v. Village of Hinsdale, 30 Ill.2d 170, 195 N.E.2d 643.) Ipso facto, then, any contention that the very presence of the railroad tracks renders the plaintiffs’ lots unfit for single-family use is highly debatable. As in Urann, the abutting railroad does not necessarily “fix the character of plaintiffs property, or cause its classification to be unreasonable,” since it provides a logical boundary between residential and commercial use. (30 Ill.2d 170, 175, 195 N.E.2d 643, 646.) We note also that the railroad here is basically a commuter line, not a freight line.
Although witnesses for the plaintiffs testified to the contrary, it was also credibly and amply demonstrated that the proposed development would have a detrimental effect on the residential property of the intervenors to the north. Six of the intervenors testified at trial. The evidence shows that their homes range in value from approximately $70,000 to $135,000. They are beautifully landscaped, and substantial investments were made when the intervenors purchased or built them in reliance upon the existing single-family zoning. The proposed development of plaintiffs’ property involves the construction of 12 commercial buildings across the street from their homes, with the unsuitable attendant commercial activity, including truck traffic. Such a development would, according to expert testimony, depreciate the value of the property across Busse Highway considerably. The City is apparently in accord by denying the requested reclassification in the first instance.
The plaintiffs stress that, according to their experts, the value of their property would increase 2% times if the zoning change were allowed. This estimate is not uncontradicted and, even assuming that their property would be worth more if the proposed use was permitted, this would not be sufficient to invalidate the present zoning ordinance in its application to their property. As stated in Seith v. City of Wheaton, 89 Ill.App.2d 446, 451, 232 N.E.2d 173, 175:
“The fact that plaintiffs’ property might be worth more if more intensive use were permitted is true in most every case when use of private property is restricted by zoning ordinances.”
In conclusion, I reiterate that initially legislative and administrative determinations were rendered in support of the present zoning, thereby raising a presumption of its validity. Judicial relief was then sought, and the trial judge who saw and heard the witnesses and evaluated their credibility made specific findings of fact. Included therein is the finding “[t]hat the Plaintiffs failed to overcome the presumption of validity of the Zoning Ordinance * * * as applied to the subject property * * *, and said Ordinance as applied to the subject property is reasonable and valid and bears a reasonable relationship to the public health, safety, welfare and morals.” That finding must be accorded proper weight. Although I recognize that a conflict of opinion testimony in cases of this nature is to be expected, and does not automatically create an irrebutable presumption that the ordinance is valid (Bass v. City of Joliet, 10 Ill.App.3d 860, 295 N.E.2d 53), the evidence here, from the standpoint of the plaintiffs, at best establishes in my mind (as it apparently did in the trial judge’s) only a legitimate dispute over whether the property should be reclassified, thus requiring the legislative determination to be sustained. (La Salle National Bank v. City of Evanston, 57 Ill.2d 415, 312 N.E.2d 625.) At worst, it appears that plaintiffs are engaged in a speculative scheme to pump up the market value of their property, as is contended by the City. In any event, by no stretch of the imagination does it appear that the action taken by the City of Des Plaines is confiscatory nor that the finding of the trial court is manifestly against the weight of the evidence.
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The map appended apparently mislocates this irregularly shaped parcel, owned by the dismissed plaintiff, and therefore not comprising a part of the subject property. It should appear farther to the southeast thus making the contiguous Tomasek and Rogers parcels appear considerably larger, and the separated Kunkel parcel considerably smaller.