Chapter 30 Conduct of the Trial

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 30 Conduct of the Trial

A. Elements of Proof

As with any other kind of litigation, the attorney should develop a very clear theory of the case. In the older zoning cases, the proofs were relatively simple. Ownership would be proved, and there would be a description of the present use of the property and of its surrounding neighborhood. Then there would be real estate valuation testimony from both sides, and the municipality would also produce some neighbors who would testify that they were worried about the impact that the proposed use would have on the value of their investments in their homes.

The elements of proof are not so simple any more. Cases such as Bauske v. City of Des Plaines,¹ Chicago & North Western Ry. v. City of Des Plaines,² and Camhoni's, Inc. v. County of DuPage,³ indicate how complex the record in a zoning case may become. However, when the issue is only one of how the zoning ordinance should be interpreted, testimony with respect to the nature of the surrounding uses has been held irrelevant.⁴

Zoning decisions stress that the paramount consideration in determining the validity of a zoning restriction is whether the property is zoned in conformity with the classification and use of surrounding property.⁵ However, in some instances the trend of development may be more important than the existing use.⁶

The plaintiff's burden of proof is a heavy one. The conventional judicial wisdom is that there must be clear and convincing proof of the unreasonable and arbitrary nature of the zoning restrictions.⁷ The burden of proof in a zoning case is twofold. The property owner must prove both that the existing zoning is unreasonable and that the proposed use is reasonable.⁸ The Illinois Supreme Court has linked these two aspects by saying that the validity of the existing restrictions depends on the nature of the proposed use the restrictions prohibit.⁹ The failure of the defendant to produce evidence does not require a finding and judgment for the plaintiff because the plaintiff's evidence may prove the defendant's case.¹⁰

When there are zoning classifications that intervene between the one in which the property is classified and the one that would permit the proposed use, the plaintiff does not have to prove that all the intervening classifications would also be unreasonable.¹¹ The earlier contrary view expressed in First National Bank of Lake Forest v. Village of Northhrook,¹² appears to have been rejected. However, even when the court finds the existing zoning to be invalid, it may consider the defendant's evidence of the reasonableness of an intervening classification in connection with the plaintiff's claim that the proposed use is reasonable.¹³

B. Expert Testimony

The importance of expert testimony in land use litigation cannot be overemphasized. In all but a few cases in which the land use restrictions are blatantly arbitrary, expert testimony is necessary for both the plaintiff's and the defendant's proofs.

The key witness will ordinarily be the city planner, whose role is to prepare a detailed land use inventory and analysis of the area involved. The planner should be asked to analyze the site with a view to determining how it may best be developed and what influences impinge on the site, both manmade and environmental. It is the planner's function to explain any special circumstances about the site that influence the way in which a site plan is developed for it. The planner also evaluates the feasibility of using the site either as it is zoned or as it is proposed to be used. How the proposed use will impact the neighborhood is also the province of the planner. Frequently, the planner also provides an analysis of the respective costs and benefits of alternative development possibilities. In addition, the plaintiff's planning consultant should always review and verify any data that has been collected by the town. It is always effective to be able to show that the municipality has relied on inadequate or incorrect data.

Appraisal testimony is essential in most land use cases. Effective appraisal testimony cannot usually be secured from a real estate broker giving an opinion as to value based on his or her many years in the real estate business in the locality. This testimony will be accepted by many courts, but it may not be persuasive. Valuation testimony is always more persuasive when given by a trained appraiser, preferably a member of the Appraisal Institute. Most land use litigation involves vacant property, and for practical purposes, the only reliable way of valuing vacant property is to form an opinion of its fair market value based on comparable sales duly adjusted for time, size, location, and other circumstances. There may be instances in which other methods of valuation, such as capitalization of an income stream or estimates of replacement cost new less depreciation, will be appropriate, but they are rare.

An increasing number of knowledgeable and sophisticated appraisers are beginning to insist that it is difficult, if not impossible, to form any reliable, quantified opinion with respect to the impact that a particular use of a parcel of land will have on the value, use, and enjoyment of adjacent property. Some impacts are obvious. A tannery does not make a good neighbor for residences. But the far more common problem, that of estimating the impact that multiple-family dwellings will have on the value, use, and enjoyment of single-family dwellings, presents very complex issues.

The land economist also deals in land values but from a somewhat different standpoint. By analyzing the market for a particular type of land use, such as retail stores, offices, or multiple-family...