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Thornber v. Village of North Barrington
State: Illinois
Court: 2nd District Appellate
Docket No: 2-00-0368 Rel
Case Date: 04/20/2001

April 20, 2001

No. 2--00--0368


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


TERRY THORNBER, RUTH THORNBER,
JACKIE LeBLANC, DONALD KNEPP,
SUZANNE LaFOLLETTE, PHIL
KOUCHOUKOS, LAURA WETHEIMER,
MEL PROBST, GREG BLUS,
DONALD P. DARGE, ELIZABETH
McKEE, HAROLD REINHART,
MICHAEL GALASINSKI, CHRISTINE
GALASINSKI, EVELYN RICHER,
LARRY DeBOER, RITA DeBOER,
DAVID N. LOVING, ASTRID
LOVING, and JEAN SCELZO,

     Plaintiffs-Appellants,

v.

THE VILLAGE OF NORTH
BARRINGTON; AMERITECH MOBILE
COMMUNICATIONS, n/k/a Chicago
SMSA Limited Partnership;
SPRINTCOM, INC.; AT & T
WIRELESS P.C.S., INC.,

     Defendants-Appellees.

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Appeal from the Circuit Court of
Lake County.












No. 97--CH-800








Honorable
Wallace B. Dunn,
Judge, Presiding

JUSTICE McLAREN delivered the opinion of the court:

Plaintiffs, Terry Thornber and Ruth Thornber and other owners of residentialproperty located in North Barrington, Illinois, filed a complaint against theVillage of North Barrington; Ameritech Mobile Communications, n/k/a/ ChicagoSMSA Limited Partnership; SprintCom, Inc.; and AT & T Wireless P.C.S., Inc.,seeking invalidation of an amendment to North Barrington's zoning ordinance thatallowed construction of a cellular telecommunications monopole at the villagehall. Plaintiffs challenged the validity of the ordinance on the grounds ofimproper zoning, spot zoning, and contract zoning. The matter proceeded to abench trial. At the close of plaintiffs' case, the trial court entered adirected finding in favor of defendants on the contract zoning claim anddismissed as moot the portion of the complaint seeking to enjoin construction ofthe cell tower at the village hall, since it had already been completed. At theclose of all the evidence, the trial court entered judgment in favor ofdefendants on the counts of plaintiffs' complaint for improper zoning and spotzoning. On appeal, plaintiffs contend that the directed finding on the count forcontract zoning and the judgments in favor of defendants on the counts forunlawful zoning and spot zoning are against the manifest weight of the evidence.For the following reasons, we affirm.

The Village of North Barrington is an Illinois municipal corporation. It is asmall community comprising five square miles. It is composed of approximately2,500 residents living in 1,000 households. Plaintiffs are a group of homeownerswho reside in the vicinity of the North Barrington village hall. They organizedan entity known as "NOPE," an acronym for "Neighbors Opposed toPole Encroachment." Plaintiffs live within one-half mile of the villagehall and purchased their homes prior to March 1998, when a cellular facility waserected on the village hall property.

The zoning ordinance at issue is known as the Village of North BarringtonOrdinance No. 724. Village of North Barrington, Ill., Zoning OrdinanceAmendment, Ordinance No. 724 (eff. July 21, 1997). The zoning ordinances for thevillage established three residential zoning districts, R-1, R-2, and R-3,categorized by the size of the property; a golf course district; an office andresearch district; and a business district. In 1997, the official zoning map ofthe village identified the location of various zoning districts within thevillage boundaries. Although the village provided for zoning in the abovecategories, the property within the village had no zoning districts forbusiness, commercial, or industrial uses. The entire village was zoned forresidential uses.

In 1991, the village amended its zoning ordinance to permit, by special use,the construction and operation of a municipal government facility on propertyowned by the village and zoned for residential uses. The village hall wasconstructed in 1992 on a 10-acre parcel pursuant to the special use ordinance.The village hall property encompasses a municipal government building whereemployees are situated and public meetings are conducted, a 50-car asphaltparking lot, and parking lot pole lighting. Although zoned residential R-1, thevillage hall property has not been used for residential purposes since theconstruction of the municipal government facility in 1992.

Defendants include the Village of North Barrington and providers of cellularcommunication services, Ameritech, SprintCom, and AT & T Wireless. Cellularand personal wireless communications are provided to subscribers through anintegrated network of cell facilities. The cell facility includes an antennamounted on a free-standing monopole or similar structure of sufficient height.Electronic equipment associated with the tower is maintained in a shed.

In 1993, defendant Ameritech identified service gaps in its cellular networkand sought to erect a wireless facility at the village hall site. At the time,the village's zoning ordinances did not contain any provisions specificallyaddressing the placement or construction of cell facilities within the village.It did address the use of antennae, which were permitted uses in all zoningdistricts but contained a height restriction. Thus, Ameritech sought a heightvariance for the antenna required of its planned cellular facility. The villagezoning board of appeals held a public hearing on September 14, 1993, and votedto deny Ameritech's request. As a result, Ameritech withdrew its application.

Instead, Ameritech constructed a cellular facility on residentially zonedproperty on the border of North Barrington in unincorporated Lake County. At thetime of the construction, there were no ordinances prohibiting or regulating theconstruction of cell facilities in Lake County. Village officials considered thesite of the Ameritech tower to be a major gateway to the village that wasreadily visible to many residents. Since the Village of North Barrington wasunable to prevent the construction of the Ameritech tower, it passed ResolutionNo. 980, disapproving of the cell facility at that location.

The Lake County facility did not solve Ameritech's coverage problems in NorthBarrington. On April 11, 1997, Ameritech's outside counsel corresponded with thevillage attorney, expressing a renewed desire to locate a cell facility onvillage property. The village officials met to discuss Ameritech's renewedrequest and the village's lack of any ordinance specifically governing cellfacilities. The village determined that there was a need to address the futureplacement and construction of cell facilities within the village boundaries byway of amendments to its zoning ordinances.

Under village procedures, the plan commission makes recommendationsconcerning amendments to zoning ordinances. Those recommendations are then sentto the village board for decision. The plan commission met to discuss a proposedamendment to the zoning code to make cellular facilities a special use in areaszoned residential R-1 and a permitted use on municipal property and to amend theheight restrictions on antennae to allow for the cellular facility monopole.After consideration of public comment on the proposed text amendment, the plancommission recommended consultation with experts and consultants before revisionof the proposed ordinances. The proposed amendments were rejected by the plancommission.

After consideration of the recommendations of the plan commission, and twomeetings with public comment, the village board passed a comprehensive wirelessordinance, known as Ordinance No. 723 (Village of North Barrington, Ill., AnOrdinance Amending the Village of North Barrington Municipal Code by AddingTitle XII, Telecommunications, Chapter 1 "Personal Wireless ServiceFacilities," Ordinance No. 723 (eff. July 21, 1997)), and Ordinance No. 724(Village of North Barrington, Ill., Ordinance Amendment, Ordinance No. 724 (eff.July 21, 1997)). The protection of the roadway vistas on village gateways andminimizing the visibility of future wireless facilities from the greatest numberof residents were paramount considerations. Without any regulation, the villagetrustees believed that cellular providers would continue to locate on villageborders as Ameritech had done in 1993. If the towers were located on their ownpublic site, the village would obtain and maintain control over the constructionof cellular towers. Further, the location of the tower on village property wouldenable the collection of revenue to be used for public benefit.

Ordinance No. 723 contains detailed and specific regulations on height,setbacks, screening, and other aesthetic factors, as well as safety regulationsfor cellular facilities. It also mandates the co-location of cellularfacilities, to prevent against the construction of numerous monopoles by variouscellular providers. The village board also passed Ordinance No. 724, a textamendment, that allowed cellular communication facilities to be a permitted useon the village hall property and a special use on all property zoned R-1,provided that the cell facility comply with village Ordinance No. 723.

On July 28, 1997, the village approved Ameritech's proposal for a cellularfacility on village hall property, and negotiations for the terms of a leaseensued. On August 11, 1997, the village board met and approved a lease withAmeritech for the cellular tower on village property. However, the lease was notexecuted until November 1997.

Ameritech's cellular monopole was constructed on village hall property andbecame operational in 1998. Later, defendants Sprint and AT & T obtainedpermission to co-locate antennae on Ameritech's cellular monopole.

Plaintiffs filed their original complaint against the Village of NorthBarrington and Ameritech on July 13, 1997. In count I, plaintiffs sought adeclaratory judgment that the portion of Ordinance No. 724 allowing cellfacilities as a permitted use on the village hall property was unconstitutionalbecause it was arbitrary, capricious, and bore no reasonable relationship to thepublic health, safety, or welfare. Count II sought a declaratory judgment thatthe same portion of Ordinance No. 724 constituted illegal spot zoning. Count IIIsought an injunction preventing the construction of the Ameritech cell tower onvillage property. Later, the complaint was amended to add a fourth count thatOrdinance No. 724 was passed by the village in exchange for an agreement withAmeritech to enter into a lease and, therefore, constituted illegal contractzoning. Thereafter, the complaint was amended to name Sprint and AT & T asadditional defendants.

The case proceeded to a bench trial. Twenty-three witnesses testified inplaintiffs' case in chief: nine plaintiffs, five village trustees, the villagepresident, the president of the zoning board of appeals, two Ameritechemployees, Ameritech's outside consultant, the Cuba Township assessor, and threeopinion witnesses. The opinion witnesses testified on alternate sites for theAmeritech facility, property values, and land planning issues. At the close ofplaintiff's case, the trial court entered a directed finding in favor ofdefendants on the count of the complaint for contract zoning. It also dismissedas moot the portion of the complaint that sought an injunction against theconstruction of the cellular tower, since the tower was already constructed andoperational.

Defendants called eight witnesses: an employee of the Lake County sheriff'soffice, who testified on the manner in which cellular services benefittedcitizens of the county; employees of Ameritech and Sprint, who testified on themanner in which the cell facility enhanced public access to emergency services;a Sprint engineer, who testified concerning gaps in coverage; two real estateappraisers concerning the impact of the tower on adjacent property; and two landplanners, who testified that the ordinance was based on reasoned land planningprinciples.

After 16 days of testimony, the trial court entered judgment in favor ofdefendants on the count for spot zoning and the count that challenged theconstitutionality of the ordinance as arbitrary and capricious. On appeal,plaintiffs contend that the directed finding on the count for contract zoningwas against the manifest weight of the evidence. They further assert that thejudgment on the counts concerning the constitutionality of Ordinance No. 724 andfor spot zoning was against the manifest weight of the evidence. There are noissues raised concerning the constitutionality of Ordinance No. 723 or thedismissal as moot of the count of the complaint seeking to enjoin theconstruction of the cellular facility.

Municipal enactments enjoy a presumption of validity. Chavda v. Wolak,188 Ill. 2d 394, 398 (1999); Rockford Blacktop Construction Co. v. County ofBoone, 263 Ill. App. 3d 274, 278-79 (1994). Evidence of the municipality'scareful, comprehensive planning of development bolsters the validity of thezoning restrictions. Racich v. County of Boone, 254 Ill. App. 3d 311, 316(1993). The presumption of validity is overcome when the party challenging thezoning ordinance proves, by clear and convincing evidence, that the ordinance isunreasonable, arbitrary, and bears no substantial relationship to the publichealth, safety, morals, or welfare. Chavda, 188 Ill. 2d at 398; CosmopolitanNational Bank v. County of Cook, 103 Ill. 2d 302, 310 (1984); County ofCook v. Priester, 62 Ill. 2d 357, 368 (1976). The trial court's ruling on achallenge to a municipal ordinance will not be reversed on appeal unless it isagainst the manifest weight of the evidence. Racich, 254 Ill. App. 3d at314.

We first address the trial court's judgment in favor of defendants on thecount of the complaint challenging the constitutionality of Ordinance No. 724.The due process clause prevents the arbitrary and unreasonable exercise of amunicipality's police power to zone. The touchstone of constitutionality of anyregulation is whether the regulation bears a reasonable relationship to thepublic interest and is a reasonable method to accomplish the desired objective.See Opyt's Amoco, Inc. v. Village of South Holland, 149 Ill. 2d 265,269-70 (1992). A municipal regulation is constitutional, on its face, if it isrationally based. City of Carbondale v. Brewster, 78 Ill. 2d 111, 115(1979). Under this test, the court must determine whether the regulation isrationally related to a legitimate governmental interest. If the regulationbears a rational relationship to the public health, safety, or welfare and isneither arbitrary nor discriminatory, the requirements of due process are met. Cityof Wheaton v. Sandberg, 215 Ill. App. 3d 220, 227 (1991).

To invalidate the ordinance on constitutional grounds, plaintiffs had theburden of proving, by clear and convincing evidence, that the ordinance isarbitrary, unreasonable, and bears no relation to the public health, safety, orwelfare. La Grange State Bank v. Village of Glen Ellyn, 227 Ill. App. 3d308, 316 (1992). If there is any conceivable basis for finding a rationalrelationship, the ordinance will be upheld. On appeal, plaintiffs mustillustrate that the trial court's ruling upholding the constitutionality of thevillage ordinance was against the manifest weight of the evidence. CosmopolitanNational Bank v. County of Cook, 103 Ill. 2d 302, 310 (1984); Village ofAlgonquin v. Village of Barrington Hills, 254 Ill. App. 3d 324, 331 (1993).

In upholding the validity of the village ordinance on constitutional grounds,the trial court found that it was consistent with the village's comprehensiveplan, was based on generally accepted planning principles, was consistent withthe preservation of residential densities, and that there was no significantfinancial impact to adjacent properties. The trial court further found that theordinance contributed to the public health, safety, and welfare by allowing theimprovement of wireless communications and access to emergency services and wasconsistent with the special nonresidential use granted to the village hallproperty. Additionally, the trial court found that the ordinance was the productof reasoned and principled decision-making on the part of village officials. Forthese reasons, the trial court found Ordinance No. 724 to be constitutional onits face.

There is sufficient evidence to support the trial court's finding that thecellular facility promoted the public welfare. The defendants presentedunrebutted testimony that the village hall cellular facility serviced hundredsof emergency 911 calls and provided service for the reporting of highway-relatedemergencies. Further, there was evidence that the cellular facility was used toenhance the ability of the Lake County sheriff's office to provide emergencyservices within the county.

Plaintiffs assert that there was no evidence of public benefit byplacing the cellular facility on village property rather than another location.Plaintiffs attempted to prove this negative fact by presenting evidenceof a detrimental effect upon their properties. Such proof was substantiallydiminished by the homogeneous zoning in the village. It is undisputed that allreal property in the Village of North Barrington is zoned for residential use.Therefore, the construction of a cellular facility at any other location withinthe village would cause similar detrimental effects with all possible adjacentresidential landowners. Plaintiffs failed to establish that there was somewhereelse in the village where the negative effects would be minimized and the netbenefits maximized so that there was little or no public benefit by selectingthe village property. Furthermore, Ameritech submitted evidence that themonopole at the village site would, and did, remedy the coverage problems andwas the best location for the facility because it was more evenly spaced betweenthe surrounding cell sites and would optimize coverage. Likewise, Sprintsubmitted evidence that the village hall site was almost directly in the centerof its coverage gap and provided optimum coverage.

There is ample evidence to support the trial court's finding that theordinance was not arbitrary and capricious but, instead, the product of reasonedand principled decision-making by village officials. The ordinance at issue waspassed only after intensive debate and consideration by the village. Further,the evidence indicated that the village passed the ordinance in an effort togain control over future placement of cellular facilities in its vicinity, whichwas a legitimate consideration given the history of the placement of cellularfacilities just outside the village boundaries. Based on the evidence presentedat trial, the trial court's ruling upholding the constitutionality of OrdinanceNo. 724 on its face was not against the manifest weight of the evidence. Intheir briefs, defendants assert that plaintiffs challenged the validity of themunicipal ordinances on their faces rather than as applied. In support of thisproposition, defendants refer to rulings on motions in limine whereinplaintiffs purportedly conceded that they made no challenge to the ordinances asapplied. The record is devoid of any such concession by plaintiffs duringmotions in limine. Defendants further assert that no evidence wassubmitted to establish that the ordinance was invalid as applied or that thisissue is waived on appeal. Our review of the record reveals that evidence waspresented in an effort to establish that the ordinances were unconstitutional asapplied and that the trial court considered the validity of the ordinance asapplied in its ruling. During oral argument, defendant Ameritech conceded thatthe issue of whether the ordinance was challenged on its face, rather than asapplied, was blurred. Therefore, we will review the issue on the merits.

Our supreme court has developed a list of factors to be considered indetermining the validity of a municipal ordinance: (1) the existing uses andzoning of nearby property; (2) the extent to which property values arediminished by the zoning restrictions; (3) the extent to which the destructionof property values promotes the health, safety, morals, or general welfare ofthe public; (4) the relative gain to the public as compared to the hardshipimposed on the plaintiff; (5) the suitability of the property for the zonedpurposes; (6) the length of the time the property has remained vacant as zoned (LaSalle National Bank v. County of Cook, 12 Ill. 2d 40 (1957)); (7) thecommunity need for the proposed use; and (8) the care with which the communityhas undertaken its development plan. Sinclair Pipe Line Co. v. Village ofRichton Park, 19 Ill. 2d 370, 378 (1960); Racich, 254 Ill. App. 3d at314. Although no one factor is determinative, a primary concern is whether theproperty in question is zoned in conformity with surrounding uses and whetherthose uses are uniform and established. La Grange State Bank v. County ofCook, 75 Ill. 2d 301, 309 (1979). The validity of the ordinance in questionwill be determined in light of the circumstances of the individual situation. Lambrechtv. County of Will, 217 Ill. App. 3d 591, 594 (1991). The trial court'sruling will not be reversed on appeal unless it is against the manifest weightof the evidence.

With respect to the La Salle factors, the evidence established thatthe village hall property was zoned R-1 residential but used for nonresidentialpurposes pursuant to a special use ordinance since 1991. The location of thecellular facility on village property was consistent with this special use,which was distinguishable from the surrounding residential uses.

Plaintiffs claim a financial impact on their properties by virtue of the cellfacility. However, they fail to balance their loss against the public welfare,as required under the La Salle analysis. The evidence established thatthere was a diminution in the value of plaintiffs' properties due to theconstruction of the cellular tower. However, the degree of diminution rangedfrom 2% to 30%, depending on the particular parcel of land and the method ofcalculation utilized by the expert witness.

As plaintiffs acknowledge, there is no place in the confines of NorthBarrington that a cell facility could be placed that is not adjacent toresidential uses. Therefore, it is undisputed that the placement of the cellulartower at any location within the village would have some impact on adjacentresidential property. Therefore, the trial court determined, under the LaSalle analysis, that the public gain by the placement of the cellularfacility on village property outweighed the interests of the individualplaintiffs.

There is ample evidence to support the trial court's finding. The evidencewas unrebutted that the construction of the cellular facility served the needsof the community at large. Whatever method of calculation was used, it isundisputed that the property values of 8 homes of 1,000 in the village and 8,300in the township were affected. The village accounted for the limited options ithad in locating wireless facilities by encouraging the location on publicproperty that offered the greatest setbacks, screening, and municipal controlwhile minimizing the number of residences affected by the placement of thetower. We determine that the trial court's ruling upholding theconstitutionality of Ordinance No. 724 under the analysis of La Salle wasconsistent with the manifest weight of the evidence.

Next, plaintiffs argue that the trial court erred by directing a finding infavor of the defendants on the count of the complaint for contract zoning.Plaintiffs assert that the Village of North Barrington amended the existingzoning ordinances to allow the construction of a cellular monopole on villageproperty in exchange for a lease with Ameritech and that this constitutedimpermissible contract zoning. We disagree.

In Goffinet v. County of Christian, 65 Ill. 2d 40 (1976), the IllinoisSupreme Court found that conditional zoning is not invalid per se. Goffinet,65 Ill. 2d at 48-51. Rather, the focus must be on the application of thetraditional zoning factors enunciated in La Salle (La Salle NationalBank, 12 Ill. 2d 40). See Goffinet, 65 Ill. 2d at 51-52; Nolan v.City of Taylorville, 95 Ill. App. 3d 1099, 1104 (1981). We have alreadyapplied these factors to the ordinance at issue and determined that the trialcourt's finding of validity was not against the manifest weight of the evidence.

Further, we have substantial doubt whether any issue of traditionalconditional rezoning is present here. Unlike Cederberg v. City of Rockford,8 Ill. App. 3d 984 (1972) and Hedrich v. Village of Niles, 112 Ill. App.2d 68 (1969), cited by plaintiffs, here the zoning authority and the propertyowner are the same entity. Therefore, the fact that Ameritech later leased theproperty from the village is not remarkable given that the village owned theland that was subject to the rezoning.

In addition, in directing a finding in favor of the defendants on the countfor contract zoning, the trial court also considered the credibility of thewitnesses and drew inferences from the evidence presented. It was reasonable forthe trial court to infer that the ordinances were passed by the village with theknowledge of Ameritech's interest in the village hall site and the possibilityof municipal revenue under a lease. However, a municipal ordinance is notrendered invalid under a challenge based on contract zoning merely because themunicipality is aware that the change may result in pecuniary benefit. There isno evidentiary support for plaintiffs' claim that the village engaged in anonuniform bartering of legislative discretion that applied unequally throughoutthe village. We determine that the trial court's finding in favor of defendantson the count of the complaint for contract zoning was not against the manifestweight of the evidence and was consistent with the traditional interpretation ofcontract zoning.

Finally, we address plaintiffs' appeal from the judgment in favor of thedefendants on the count of the complaint for illegal spot zoning. Spot zoning isa change in zoning applied to a small area. Spot zoning is unlawful when thechange violates a zoning pattern that is homogenous, compact, and uniform. Bossmanv. Village of Riverton, 291 Ill. App. 3d 769, 775 (1997). However, not everyreclassification of a single tract of land is void. The test for determiningunlawful spot zoning is whether the change is in harmony with a comprehensiveplan for use of property in the locality. Goffinet, 65 Ill. 2d at 54. Toinvalidate the zoning ordinances, the plaintiffs were required to present clearand convincing evidence that the amendments to the zoning ordinances violated acomprehensive plan for use of the property in the locality. The trial court'sruling that the ordinances did not constitute illegal spot zoning will not bereversed unless it was contrary to the manifest weight of the evidence.

Plaintiffs confuse spotting an antenna with spot zoning. Ordinance No. 724added wireless facilities as a special use in all property zonedresidential R-1 and set the village hall property aside as a permitted use forcellular towers. Unlike the classic case of illegal spot zoning where propertyis changed from one zoning district to another, the changes here impacted allproperty zoned R-1 by making wireless facilities either a special use or apermitted use. Plaintiffs take issue with the portion of the ordinance thatestablishes wireless communications as a permitted use on village hall property.They do not take issue with the remainder of the ordinance, which establisheswireless communication facilities as a special use on all property zonedR-1 residential. Since Ordinance No. 724 covered the entire zoning district, andnot merely the village hall property, the changes did not disrupt or change anyexisting zoning classifications. Therefore, the amendments to the zoningordinances enacted by the Village of North Barrington do not constitute spotzoning.

Moreover, in rejecting the plaintiffs' claim of illegal spot zoning, thetrial court found that the ordinances were consistent with the village'scomprehensive plan, with generally accepted planning principles, and with thelong-standing nonresidential special use of the village hall. In making thisdetermination, the trial court specifically found that the village was unique inthat it had no commercial, industrial, or business-zoned areas within itsconfines. Adopting plaintiffs' argument, if the antenna were located anywhere inthe village, it would constitute spot zoning; ergo, there is no place inthe village where the antenna may be spotted. This contention is inconsistentwith the concept of spot zoning. The trial court's finding that Ordinance No.724 did not constitute illegal spot zoning is consistent with the manifestweight of the evidence.

The judgments of the circuit court of Lake County are affirmed.

Affirmed.

HUTCHINSON, P.J., and GROMETER, J., concur.

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