No. 2--00--0368

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

TERRY THORNBER, RUTH THORNBER,) Appeal from the Circuit Court of

JACKIE LeBLANC, DONALD KNEPP,	) Lake County.

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.                            )  No. 97--CH--800        

                    		) 

THE VILLAGE OF NORTH   		)                  

BARRINGTON; AMERITECH MOBILE  ) 

COMMUNICATIONS, n/k/a Chicago )

SMSA Limited Partnership;     )

SPRINTCOM, INC.; AT & T 		)

WIRELESS P.C.S,., INC.,		) Honorable Wallace B	

						) Wallace B. Dunn,

	Defendants-Appellees.    ) Judge, Presiding

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:	

	Plaintiffs, Terry Thornber and Ruth Thornber and other owners

of residential property located in North Barrington, Illinois,

filed a complaint against the Village of North Barrington;

Ameritech Mobile Communications, n/k/a/ Chicago SMSA Limited

Partnership; SprintCom, Inc.; and AT & T Wireless P.C.S., Inc., seeking invalidation of an amendment to North Barrington's zoning

ordinance that allowed construction of a cellular 

telecommunications monopole at the village hall.  Plaintiffs

challenged the validity of the ordinance on the grounds of improper

zoning, spot zoning, and contract zoning.  The matter proceeded to

a bench trial.   At the close of plaintiffs' case, the trial court

entered a directed finding in favor of defendants on the contract

zoning claim and dismissed as moot the portion of the complaint

seeking to enjoin construction of the cell tower at the village

hall, since it had already been completed.  At the close of all the

evidence, the trial court entered judgment in favor of defendants

on the counts of plaintiffs' complaint for improper zoning and spot

zoning.  On appeal, plaintiffs contend that the directed finding on

the count for contract zoning and the judgments in favor of

defendants on the counts for unlawful 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 a small community comprising five square miles. 

It is composed of approximately 2,500 residents living in 1,000

households.  Plaintiffs are a group of homeowners who reside in the

vicinity of the North Barrington village hall.  They organized an

entity known as "NOPE," an acronym for "Neighbors Opposed to Pole

Encroachment."  Plaintiffs live within one-half mile of the village hall and purchased their homes prior to March 1998, when a cellular

facility was erected on the village hall property. 

	The zoning ordinance at issue is known as the Village of North

Barrington Ordinance No. 724.  Village of North Barrington, Ill.,

Zoning Ordinance Amendment, Ordinance No. 724 (eff. July 21, 1997).  The zoning ordinances for the village 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 and research district;

and a business district.  In 1997, the official zoning map of the

village identified the location of various zoning districts within

the village boundaries.  Although the village provided for zoning

in the above categories, the property within the village had no

zoning districts for business, commercial, or industrial uses.  The

entire village was zoned for residential uses.

	In 1991, the village amended its zoning ordinance to permit,

by special use, the construction and operation of a municipal

government facility on property owned by the village and zoned for

residential uses.  The village hall was constructed in 1992 on a

10-acre parcel pursuant to the special use ordinance.  The village

hall property encompasses a municipal government building where

employees are situated and public meetings are conducted, a 50-car

asphalt parking lot, and parking lot pole lighting. Although zoned

residential R-1, the village hall property has not been used for

residential purposes since the construction of the municipal

government facility in 1992. 

	Defendants include the Village of North Barrington and

providers of cellular communication services, Ameritech, SprintCom,

and AT & T Wireless.  Cellular and personal wireless communications

are provided to subscribers through an integrated network of cell

facilities.  The cell facility includes an antenna mounted 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 network and sought to erect a wireless facility at the

village hall site.  At the time, the village's zoning ordinances

did not contain any provisions specifically addressing the

placement or construction of cell facilities within the village. 

It did address the use of antennae, which were permitted uses in

all zoning districts but contained a height restriction.  Thus,

Ameritech sought a height variance for the antenna required of its

planned cellular facility.  The village zoning board of appeals

held a public hearing on September 14, 1993, and voted to deny

Ameritech's request. As a result, Ameritech withdrew its

application.

	Instead, Ameritech constructed a cellular facility on

residentially zoned property on the border of North Barrington in

unincorporated Lake County.  At the time of the construction, there

were no ordinances prohibiting or regulating the construction of

cell facilities in Lake County.  Village officials considered the

site of the Ameritech tower to be a major gateway to the village 

that was readily visible to many residents.  Since the Village of

North Barrington was unable to prevent the construction of the

Ameritech tower, it passed Resolution No. 980, disapproving of the

cell facility at that location.

	The Lake County facility did not solve Ameritech's coverage

problems in North Barrington.  On April 11, 1997, Ameritech's

outside counsel corresponded with the village attorney, expressing a renewed desire to locate a cell facility on village property. 

The village officials met to discuss Ameritech's renewed request

and the village's lack of any ordinance specifically governing cell

facilities.  The village determined that there was a need to

address the future placement and construction of cell facilities

within the village boundaries by way of amendments to its zoning

ordinances.

	Under village procedures, the plan commission makes

recommendations concerning amendments to zoning ordinances.  Those

recommendations are then sent to the village board for decision. 

The plan commission met to discuss a proposed amendment to the

zoning code to make cellular facilities a special use in areas

zoned residential R-1 and a permitted use on municipal property and

to amend the height restrictions on antennae to allow for the

cellular facility monopole.  After consideration of public comment

on the proposed text amendment, the plan commission recommended

consultation with experts and consultants before revision of the

proposed ordinances.  The proposed amendments were rejected by the

plan commission.

	After consideration of the recommendations of the plan

commission, and two meetings with public comment, the village board

passed a comprehensive wireless ordinance, known as Ordinance No.

723 (Village of North Barrington, Ill., An Ordinance Amending the

Village of North Barrington Municipal Code by Adding Title XILI,

Telecommunications, Chapter 1 "Personal Wireless Service

Facilities," Ordinance No. 723 (eff. July 21, 1997)), and Ordinance

No. 724 (Village of North Barrington, Ill., Ordinance Amendment, Ordinance No. 724 (eeff. July 21, 1997.))))., a text amendment to section ZR--6--2 of the zoning ordinances.  The protection of the

roadway vistas on village gateways and minimizing the visibility of

future wireless facilities from the greatest number of residents

were paramount considerations.  Without any regulation, the village trustees  believed that cellular providers would continue to locate

on village borders as Ameritech had done in 1993.   If the towers

were located on their own public site, the village would obtain and

maintain control over the construction of cellular towers. 

Further, the location of the tower on village property would enable

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 regulations for cellular facilities. It also

mandates the co-location of cellular facilities, to prevent against

the construction of numerous monopoles by various cellular

providers.  The village board also passed Ordinance No. 724, a text

amendment, that allowed cellular communication facilities to be a

permitted use on 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 cellular facility on village hall property, and negotiations

for the terms of a lease ensued.  On August 11, 1997, the village

board met and approved a lease with Ameritech for the cellular tower on village property.  However, the lease was not executed

until November 1997.

	Ameritech's cellular monopole was constructed on village hall

property and became operational in 1998.  Later, defendants Sprint

and AT & T obtained permission to co-locate antennae on Ameritech's

cellular monopole.

	Plaintiffs filed their original complaint against the Village

of North Barrington and Ameritech on July 13, 1997.  In count I,

plaintiffs sought a declaratory judgment that the portion of

Ordinance No. 724 allowing cell facilities as a permitted use on

the village hall property was unconstitutional because it was

arbitrary, capricious, and bore no reasonable relationship to the

public health, safety, or welfare.  Count II sought a declaratory

judgment that the same portion of Ordinance No. 724 constituted

illegal spot zoning.  Count III sought an injunction preventing the

construction of the Ameritech cell tower on village property. 

Later, the complaint was amended to add a fourth count that

Ordinance No. 724 was passed by the village in exchange for an

agreement with Ameritech to enter into a lease and, therefore,

constituted illegal contract zoning.  Thereafter, the complaint was

amended to name Sprint and AT & T as additional defendants. 

	The case proceeded to a bench trial.  Twenty-three witnesses

testified in plaintiffs' case in chief:   nine plaintiffs, five

village trustees, the village president, the president of the

zoning board of appeals, two Ameritech employees,  Ameritech's

outside consultant, the Cuba Township assessor, and three opinion

witnesses.  The opinion witnesses testified on alternate sites for

the Ameritech facility, property values, and land planning issues. 

At the close of plaintiff's case, the trial court entered a directed finding in favor of defendants on the count of the

complaint for contract zoning.  It also dismissed as moot the

portion of the complaint that sought an injunction against the

construction of the cellular tower, since the tower was already

constructed and operational.

	Defendants called eight witnesses: an employee of the Lake

County sheriff's office, who testified on the manner in which

cellular services benefitted citizens of the county; employees of 

Ameritech and Sprint, who testified on the manner in which the cell

facility enhanced public access to emergency services; a Sprint

engineer, who testified concerning gaps in coverage; two real

estate appraisers concerning the impact of the tower on adjacent

property; and two land planners, who testified that the ordinance

was based on reasoned land planning principles.

	After 16 days of testimony, the trial court entered judgment

in favor of defendants on the count for spot zoning and the count

that challenged the constitutionality of the ordinance as arbitrary

and capricious.  On appeal, plaintiffs contend that the directed

finding on the count for contract zoning was against the manifest

weight of the evidence.  They further assert that the judgment on

the counts concerning the constitutionality of Ordinance No. 724

and for spot zoning was against the manifest weight of the

evidence. There are no issues raised concerning the

constitutionality of Ordinance No. 723 or the dismissal as moot of the count of the complaint seeking to enjoin the construction 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 of Boone, 263 Ill. App. 3d 274, 278-79 (1994).  Evidence of the municipality's careful, comprehensive

planning of development bolsters the validity of the zoning

restrictions.  Racich v. County of Boone, 254 Ill. App. 3d 311, 316 (1993).  The presumption of validity is overcome when the party challenging the zoning ordinance proves, by clear and convincing

evidence, that the ordinance is unreasonable, arbitrary, and bears

no substantial relationship to the public health, safety, morals,

or welfare.  Chavda, 188 Ill. 2d at 398; Cosmopolitan National Bank v. County of Cook, 103 Ill. 2d 302, 310 (1984); County of Cook v. Priester, 62 Ill. 2d 357, 368 (1976).   The trial court's ruling on a challenge to a municipal ordinance will not be reversed on appeal

unless it is against the manifest weight of the evidence.  Racich, 254 Ill. App. 3d at 314.

	We first address the trial court's judgment in favor of defendants on the count of the complaint challenging the

constitutionality of Ordinance No. 724.  The due process clause

prevents the arbitrary and unreasonable exercise of a

municipality's police power to zone.  The touchstone of

constitutionality of any regulation is whether the regulation bears

a reasonable relationship to the public 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 is rationally based.  City of Carbondale v. Brewster, 78 Ill. 2d 111, 115 (1979).  Under this test, the court must determine whether

the regulation is rationally related to a legitimate governmental

interest.  If the regulation bears a rational relationship to the

public health, safety, or welfare and is neither arbitrary nor

discriminatory, the requirements of due process are met.  City of Wheaton v. Sandberg, 215 Ill. App. 3d 220, 227 (1991). 

	To invalidate the ordinance on constitutional grounds,

plaintiffs had the burden of proving, by clear and convincing

evidence, that the ordinance is arbitrary, unreasonable, and bears

no relation to the public health, safety, or welfare.  La Grange State Bank v. Village of Glen Ellyn, 227 Ill. App. 3d 308, 316 (1992).  If there is any conceivable basis for finding a rational

relationship, the ordinance will be upheld.  On appeal, plaintiffs

must illustrate that the trial court's ruling upholding the

constitutionality of the village ordinance was against the manifest

weight of the evidence.  Cosmopolitan National Bank v. County of Cook, 103 Ill. 2d 302, 310 (1984); Village of Algonquin 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 comprehensive plan, was based on

generally accepted planning principles, was consistent with the

preservation of residential densities, and that there was no

significant financial impact to adjacent properties.  The trial

court further found that the ordinance contributed to the public

health, safety, and welfare by allowing the improvement of wireless

communications and access to emergency services and was consistent with the special nonresidential use granted to the village hall

property.  Additionally, the trial court found that the ordinance

was the product of reasoned and principled decision-making on the

part of village officials.  For these reasons, the trial court

found Ordinance No. 724 to be constitutional on its face.

	There is sufficient evidence to support the trial court's

finding that the cellular facility promoted the public welfare. 

The defendants presented unrebutted testimony that the village hall

cellular facility serviced hundreds of emergency 911 calls and

provided service for the reporting of highway-related emergencies. 

Further, there was evidence that the cellular facility was used to

enhance the ability of the Lake County sheriff's office to provide

emergency services within the county. 

	Plaintiffs assert that there was no evidence of public benefit by placing the cellular facility on village property rather than

another location.  Plaintiffs attempted to prove this negative fact by presenting evidence of a detrimental effect upon their

properties.  Such proof was  substantially diminished by the

homogeneous zoning in the village.  It is undisputed that all real property in the Village of North Barrington is zoned for

residential use.  Therefore, the construction of a cellular

facility at any other location within the village would cause

similar detrimental effects with all possible adjacent residential

landowners.  Plaintiffs failed to establish that there was

somewhere else in the village where the negative effects would be

minimized and the net benefits maximized so that there was little

or no public benefit by selecting the village property.  Furthermore, Ameritech submitted evidence that the monopole at the village site would, and did, remedy the coverage problems and was

the best location for the facility because it was more evenly

spaced between the surrounding cell sites and would optimize

coverage.  Likewise, Sprint submitted evidence that the village

hall site was almost directly in the center of its coverage gap and

provided optimum coverage. 

	There is ample evidence to support the trial court's finding

that the ordinance was not arbitrary and capricious but, instead,

the product of reasoned and principled decision-making by village

officials.  The ordinance at issue was passed only after intensive

debate and consideration by the village.  Further, the evidence

indicated that the village passed the ordinance in an effort to

gain control over the future placement of cellular facilities in 	 i tsit its

vicinity, which was a legitimate consideration given the history of

the placement of cellular facilities just outside the village

boundaries.  Based on the evidence presented at trial, the trial

court's ruling upholding the constitutionality of Ordinance No. 724

on its face was not against the manifest weight of the evidence.

	In their briefs, defendants assert that plaintiffs challenged

the validity of the municipal ordinances on their faces rather than

as applied.  In support of this proposition, defendants refer to

rulings on motions in limine wherein plaintiffs purportedly conceded that they made no challenge to the ordinances as applied. 

The record is devoid of any such concession by plaintiffs during

motions in limine.  Defendants further assert that no evidence was submitted to establish that the ordinance was invalid as applied or that this issue is waived on appeal.  Our review of the record

reveals that evidence was presented in an effort to establish that

the ordinances were unconstitutional as applied and that the trial

court considered the validity of the ordinance as applied in its

ruling.  During oral argument, defendant Ameritech conceded that

the issue of whether the ordinance was challenged on its face,

rather than as applied, was blurred.  Therefore, we will review the

issue on the merits. 

	Our supreme court has developed a list of factors to be

considered in determining the validity of a municipal ordinance:

(1) the existing uses and zoning of nearby property; (2) the extent

to which property values are diminished by the zoning restrictions;

(3) the extent to which the destruction of property values promotes

the health, safety, morals, or general welfare of the public; (4)

the relative gain to the public as compared to the hardship imposed

on the plaintiff; (5) the suitability of the property for the zoned

purposes; (6) the length of the time the property has remained

vacant as zoned (La Salle National Bank v. County of Cook, 12 Ill. 2d 40 (1957));  (7) the community need for the proposed use;  and

(8) the care with which the community has undertaken its

development plan. Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370, 378 (1960); Racich, 254 Ill. App. 3d at 314.  Although no one factor is determinative, a primary concern is

whether the property in question is zoned in conformity with

surrounding uses and whether those uses are uniform and

established.  La Grange State Bank v. County of Cook, 75 Ill. 2d 301, 309 (1979).  The validity of the ordinance in question will be determined in light of the circumstances of the individual

situation.  Lambrecht v. County of Will, 217 Ill. App. 3d 591, 594 (1991).  The trial court's ruling will not be reversed on appeal

unless it is against the manifest weight of the evidence. 

	With respect to the La Salle factors, the evidence established that the village hall property was zoned R-1 residential but used

for nonresidential purposes pursuant to a special use ordinance

since 1991.  The location of the cellular 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 cell facility.  However, they fail to balance their

loss against the public welfare, as required under the La Salle analysis.  The evidence established that there was a diminution in

the value of plaintiffs' properties due to the construction of the

cellular tower.  However, the degree of diminution ranged  from 2%

to 30%, depending on the particular parcel of land and the method

of calculation utilized by the expert witness.  	

	As plaintiffs acknowledge, there is no place in the confines

of North Barrington that a cell facility could be placed that is

not adjacent to residential uses.  Therefore, it is undisputed that

the placement of the cellular tower at any location within the

village would have some impact on adjacent residential property. 

Therefore, the trial court determined, under the La Salle analysis, that the public gain by the placement of the cellular facility on

village property outweighed the interests of the individual

plaintiffs.  

	There is ample evidence to support the trial court's finding. 

The evidence was unrebutted that the construction of the cellular

facility served the needs of the community at large.  Whatever

method of calculation was used, it is undisputed that the property

values of 8 homes of 1,000 in the village and 8,300 in the township

were affected.  The village accounted for the limited options it

had in locating wireless facilities by encouraging the location on

public property that offered the greatest setbacks, screening, and

municipal control while minimizing the number of residences

affected by the placement of the tower.  We determine that the

trial court's ruling upholding the constitutionality of Ordinance

No. 724 under the analysis of La Salle was consistent with the manifest weight of the evidence.

	Next, plaintiffs argue that the trial court erred by 

directing a finding in favor of the defendants on the count of the

complaint for contract zoning.  Plaintiffs assert that the Village of North Barrington amended the existing zoning ordinances to allow

the construction of a cellular monopole on village property in

exchange for a lease with Ameritech and that this constituted

impermissible contract zoning.  We disagree.

	In Goffinet v. County of Christian, 65 Ill. 2d 40 (1976), the Illinois Supreme 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 the traditional zoning factors enunciated in La Salle (La Salle National Bank, 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 already applied these factors to the ordinance at issue and determined that the trial court's finding of

validity was not against the manifest weight of the evidence.	

	Further, we have substantial doubt whether any issue of

traditional conditional 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 property owner are the same

entity.  Therefore, the fact that Ameritech later leased the

property from the village is not remarkable given that the village

owned the land that was subject to the rezoning. 

	In addition, in directing a finding in favor of the defendants on the count for contract zoning, the trial court also considered

the credibility of the witnesses and drew inferences from the

evidence presented.  It was reasonable for the trial court to infer

that the ordinances were passed by the village with the knowledge

of Ameritech's interest in the village hall site and the

possibility of municipal revenue under a lease.  However, a

municipal ordinance is not rendered invalid under a challenge based

on contract zoning merely because the municipality is aware that

the change may result in pecuniary benefit.  There is no

evidentiary support for plaintiffs' claim that the village engaged

in a nonuniform bartering of legislative discretion that applied

unequally throughout the village.  We determine that the trial

court's finding in favor of defendants on the count of the

complaint for contract zoning was not against the manifest weight

of the evidence and was consistent with the traditional

interpretation of contract zoning. 

	Finally, we address plaintiffs' appeal from the judgment in favor of the defendants on the count of the complaint for illegal

spot zoning.  Spot zoning is a change in zoning applied to a small

area.  Spot zoning is unlawful when the change violates a zoning

pattern that is homogenous, compact, and uniform.  Bossman v. Village of Riverton, 291 Ill. App. 3d 769, 775 (1997).  However, not every reclassification of a single tract of land is void.  The

test for determining unlawful spot zoning is whether the change is

in harmony with a comprehensive plan for use of property in the

locality.  Goffinet, 65 Ill. 2d at 54.  To invalidate the zoning ordinances, the plaintiffs were required to present clear and

convincing evidence that the amendments to the zoning ordinances

violated a comprehensive plan for use of the property in the

locality.  The trial court's ruling that the ordinances did not

constitute illegal spot zoning will not be reversed unless it was

contrary to the manifest weight of the evidence.   

	Plaintiffs confuse spotting an antenna with spot zoning. 

Ordinance No. 724 added wireless facilities as a special use in all property zoned residential R-1 and set the village hall property

aside as a permitted use for cellular towers.  Unlike the classic

case of illegal spot zoning where property is changed from one

zoning district to another, the changes here impacted all property

zoned R-1 by making wireless facilities either a special use or a

permitted use.  Plaintiffs take issue with the portion of the

ordinance that establishes wireless communications as a permitted

use on village hall property.  They do not take issue with the

remainder of the ordinance, which establishes wireless communication facilities as a special use on all property zoned R-1 residential.  Since Ordinance No. 724 covered the entire zoning

district, and not merely the village hall property, the changes did

not disrupt or change any existing zoning classifications. 

Therefore, the amendments to the zoning ordinances enacted by the

Village of North Barrington do not constitute spot zoning.

	Moreover, in rejecting the plaintiffs' claim of illegal spot

zoning, the trial court found that  the ordinances were consistent

with the village's comprehensive plan, with generally accepted

planning principles, and with the long-standing nonresidential

special use of the village hall.  In making this determination, the

trial court specifically found that the village was unique in that

it had no commercial, industrial, or business-zoned areas within

its confines.  Adopting plaintiffs' argument, if the antenna were

located anywhere in the village, it would constitute spot zoning; ergo, there is no place in the village where the antenna may be spotted.  This contention is inconsistent with the concept of spot

zoning.  The trial court's finding that Ordinance No. 724 did not

constitute illegal spot zoning is consistent with the manifest

weight of the evidence.

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

	Affirmed.

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