Daily Development for
Tuesday, February 24, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING AND PLANNING; SPOT ZONING: Existence of a formal comprehensive plan is not essential to a finding of spot zoning. Of paramount importance in a spot zoning case is whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.

Bossman v. Village of Riverton, 684 N.E.2d 427 (Ill. App. 4 Dist. 1997).

Residential property owners brought action seeking declaratory judgment that an ordinance rezoning neighboring property as commercial purposes was unconstitutional. The lower court entered summary judgment in favor of the defendant. The proposed use was for a "Casey's General Store," which appears to be a "mini-market," with an ancillary gas station.

In support of the zoning decision, the town and the rezoning proponent demonstrated that there was signficant non-residential activity in the area surrounding the site. A school and church were nearby on the same street, a pre-existing nonconforming restaurant use was nearby, and the municipal water treatment plant - an "industrial eyesore," was across the street. Much of the nearby property was vacant land. The intersection was the busiest in this (admittedly small) hamlet.

The Appellate Court of Illinois reversed and remanded, finding that clear and convincing evidence supported the conclusion that the ordinance reclassifying properties in a residential zone from residential to commercial constituted illegal spot zoning. Even though the area in question was not totally and uniformly residential, there had been no change in the general character or existing uses in the neighborhood. The court noted that not every perceived benefit will justify rezoning, only those benefits that constitute legitimate objectives of zoning. The court held that the control or restriction of competition, which the defendant advanced as a benefit of the rezoning, is not a proper objective of zoning.

Comment 1: Illinois has always been a state that takes very seriously the judicial review of zoning decisions. The "common law of zoning," which basically justifies judicial review of the substance of zoning decisions based upon the redefinition of the police power and delegated legislative authority to zone, has fully flowered in that state. Here the court identifies for itself what it perceives to be the "legitimate objectives of zoning," and defines this zoning decision as outside of those parameters. Here, despite the court's recitation of evidence supporting the treatment of this parcel in a special manner, the court concluded that "clear and convincing evidence" justified overturning the municipality's decision.

Comment 2: One response by the court to the city's argument that various nearby uses were inconsistent with the residential zoning on this parcel was that the city then should rezone the whole area. This, of course, signficantly reduces the ability of a city to make narrowly defined zoning decisions, something that likely would be far more available in other jurisdictions.

Comment 3: The editor lacks the experience to comment upon the validity of the court's position that encouragement of competition is not a valid purpose for zoning. The court cites authority that states that the "control or restriction of competition is not a proper or lawful zoning objective." But here the avowed purpose of the city was not to restrict competition, but to encourage it. The court responds that to permit the location of this gas station so as to compete with another one nearby nevertheless gives this station a privilege denied to others who own property zoned residential. So every act to "promote competition" by altering zoning necessarily, in the view of the court, prefers the given competitor as against others, and thus restricts competition. Both the accuracy and validity of the court's analysis, as well as the general notion that zoning authorities cannot take competitive factors into account, seem worthy of further analysis.

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