The following is a copy of the court's ruling in the city's favor concerning the Danville casino
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, DANVILLE, VERMILION COUNTY, ILLINOIS
MERVIS INDUSTRIES, INC.,
Plaintiff,
).
V.
THE CITY OF DANVILLE,
a municipal corporation,
FILED
1
AUG 16 2023
Melissa Quick
Clerk of the Circuit Court Vermilion County, Illinois
MEMORANDUM OPINION AND
JUDGMENT ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This cause having come before the Court on the parties' Motions for Summary Judgment, and, the Court now having considered the pleadings, submissions and arguments FINDS and ORDERS as follows:
I.
HELD: Zoning Amendment #279 is not an unconstitutional violation of Plaintiff's due process rights, and, is not illegal spot zoning;
HELD: Zoning Text Amendment #288 is not an unconstitutional violation of Plaintiff's procedural or substantive due process rights.
BACKGROUNd
Plaintiff, Mervis Industries, as owner of property located at 222 Eastgate in Danville, IL, originally filed a Complaint for Declaratory Judgment challenging Zoning Amendment #279 which rezoned neighboring property at 204 Eastgate Drive from General Industrial (1-2) to General Business (B-3). This rezoning would have purportedly allowed for development of a casino on that parcel. Mervis argued that #279 was unconstitutional as-applied to Plaintiff's property and that it was illegal spot zoning.
During the litigation over #279, Danville passed Zoning Text Amendment #288 which defined the term "casino" and provided that a "casino" would be a permitted use for properties zoned either I-2 and B-3. Mervis then filed an Amended Complaint for Declaratory Judgment, renewing its initial challenges to #279, and also challenging the constitutionality of #288,
arguing both procedural and substantive due process violations. Mervis averred, in part, that Danville passed #288 in an effort to moot the litigation as it relates to #279.
Danville denied the material allegations and denied that its actions were unconstitutional.
RELEVANT PLEADINGS
1.- FIRST AMENDED COMPLAINT (Filed October 6, 2022)
In its First Amended Complaint Mervis seeks declaratory relief pursuant to 735 ILCS 5/2-701(a) as to both # 279 and #288, pleading the following counts:
Count I - Declaratory Judgment #279 – As-Applied Violation of
Substantive Due Process;
Count II - Declaratory Judgment #279 - Illegal Spot Zoning;
Count III - Declaratory Judgment #288 - Violation of Procedural Due Process;
Count IV - Declaratory Judgment #288- Facial Violation of Substantive -Due Process;
Count V-Declaratory Judgment #288- As-Applied Violation of Substantive Due Process.
Mervis did not make a jury demand.
ANSWER & AFFIRMATIVE DEFENSES
In its Answer to the First Amended Complaint, Danville denied the material allegations, denied that Mervis was entitled to the relief sought, and denied that the ordinances were unconstitutional and invalid.
Danville also asserted affirmative defenses including standing and mootness.
Danville did not make a jury demand.
:
(CROSS) MOTIONS FOR SUMMARY JUDGMENT.
The parties conducted extensive discovery and have now filed cross-motions for summary judgment as to the five-count First Amended Complaint.
In anticipation of the completion of discovery the Court sought input from the parties as to how this matter would be resolved, i.e. submission of depositions, exhibits and argument, or, an actual trial. While it was not specifically stipulated by the parties, it was concluded that each side would submit all applicable evidence and briefs, and the Court would rule based upon the information submitted. The Court notes that at oral argument counsel for Mervis argued that based upon
emails received very late in discovery, a trial may be necessary for the court to evaluate the credibility of certain witnesses. The Plaintiff is seeking a declaration of rights between the parties, namely the constitutionality of two zoning actions. All of the facts are before the Court in the form of pleadings, affidavits, depositions and exhibits.
When a matter before the trial court can be decided as a question of law, the case is proper for summary judgment. Whether a zoning ordinance is constitutional is a question of law; accordingly, this case is proper for summary judgment consideration.
II. SYNOPSIS
In order to provide context to this Court's ruling, the Court finds it necessary to provide a synopsis of the facts which have spawned this litigation.
The Plaintiff, Mervis Industries, is a corporation which has done business in the City of Danville for a number of years. Without dispute, Mervis has long been a benefactor to the City, as reflected in the jobs, revenue and numerous contributions it has provided to the community.
For decades, the city of Danville and its business persons, including the Mervis family, wanted a casino in its city. In 2019 the state of Illinois passed legislation which allowed additional casinos to be developed - including one in Danville. Almost immediately, businessmen, politicians, developers and investors lined-up to get a piece of the proverbial casino pie.
From the City's stand point, negotiations began with various developers. Ultimately Wilmorite (Danville Development) was chosen as the casino developer. On August 18, 2020, the Danville City Council approved a Host Community Agreement with Danville Development, LLC as its casino operating partner to pursue development of a casino.
One issue that needed to be resolved was where this casino would be located. Downtown? On the river? On the east side of town? In that regard, Mervis Industries owned a parcel of property on the east side of Danville at the I-74/Lynch Road interchange that many felt to be a great location, with excellent visibility for travelers. Mervis gave an option to a developer to sell two parcels for casino development. Ultimately, the parties could not reach an agreement as to a purchase price for the property.
Unable to reach an agreement to purchase, the Mervis property at the I-74 location, Danville Development had to look elsewhere. It chose 204 Eastgate Drive - which happened to be immediately adjacent to Mervis' recycling business at 222 Eastgate Drive. This property is located approximately one mile away from the same parcels where Mervis had given an option to develop the very same casino.
In 2020, both 204 Eastgate and 222 Eastgate were zoned I-2 (General Industrial). Specifically, 204 Eastgate was being used as a warehouse for heavy machinery storage. Mervis used 222 Eastgate for a metal recycling operation.
On August 12, 2020, Danville Development filed a petition to rezone 204 Eastgate from I-2(General Industrial) to B-3 (General Business), for proposed use as a gaming and entertainment facility.
On September 3, 2020 the Planning and Zoning Commission met to consider the petition.. Mervis appeared before the Zoning Commission and voiced an objection to this petition. The Commission voted 5-1 not to approve this petition and sent this recommendation to the City Council. (It was later noted by some aldermen that a Mervis employee on the Zoning Commission participated in discussion and voted against #279 rather than abstaining.)
The petition then went before the City Council for consideration on September 20. The City Council rejected the Commission's recommendation and voted unanimously to approve the Petition and passed #279, effectively rezoning 204 Eastgate to B-3 General Business.
Mervis initiated this litigation to challenge the City's zoning ordinance amendments.
In 2021 and 2022 the parties conducted discovery. During this process, attorneys for Danville Development communicated with Danville representatives concerning the progress of the litigation. Mervis asserts that the City-thru the mayor, corporate counsel and litigation counsel - then colluded to have zoning ordinances amended for the sole benefit of the developer, Danville Development. In that regard, Danville Development encouraged Danville to pass a text amendment which would have the purported effect of mooting the litigation over
# 279, to wit: By adding "casino" as an allowed use in 1-2 zoned properties, the casino would still be able to operate at 204 Eastgate if Danville lost the suit over #279.
/
Ultimately, Text Amendment #288 which defined "casino" and added it as a use to I-2 and B-3 properties was approved by the Zoning Commission on August 4, 2022, and the City Council on August 16, 2022.
While each party questions the motives and/or tactics of their counterparts, this Court notes that the actions that are most relevant to its analysis are those of the voting alderpersons, as it is their decisions that this Court is being called upon to scrutinize. The Court notes that there is no evidence that any council person was ever involved in discussions with the casino developer, nor have any indicated that they were unduly influenced by them. It should also be noted that the COVID-19 pandemic was very prominent at the time these matters were being addressed, and it had had an adverse impact on Danville's economy. With this backdrop, the Court analyzes the decisions made by the Danville City Council in approving #279 and #288.
III. ISSUES
CROSS-MOTIONS FOR SUMMARY JUDGMENT
The following issues are before the Court:
1. Whether Zoning Ordinance #279 is unconstitutional as-applied to Mervis Industries and its property at 222 Eastgate;
2.
Whether Zoning Ordinance #279 is invalid as unconstitutional spot-zoning;
3.
Whether Text Amendment #288 violated Plaintiff's procedural due process;
4.
Whether Text Amendment #288 violated Plaintiff's substantive due process (facial challenge);
5.
Whether Text Amendment #28 violated Plaintiff's substantive due process as-applied to its property;
IV. LEGAL STANDARDS
The parties have filed (Cross) Motions for Summary Judgments, each arguing that there exist no genuine issues of material fact and that they are entitled to judgment on each respective count. Alternatively, Plaintiff argues that there are certain issues of material fact that should otherwise be resolved after trial.
In considering the cross-motions for summary judgment, the Court is mindful of a number of legal principles applicable to these proceedings.
As Plaintiff is seeking declaratory judgment concerning the validity of the City's zoning ordinances, this Court must adhere to the legal principles applicable to the review of legislative decision making.
The City of Danville, as a home-rule unit under the Illinois Constitution, may exercise any power and perform any function pertaining to its government, including but not limited to the authority to enact zoning ordinances. A home-rule municipality may enact any zoning ordinance it chooses so long as it complies with regular constitutional safeguards, such as the rights to procedural and substantive due process.
A municipality's enactment of a zoning ordinance is entitled to great deference and is considered presumptively valid. LaSalle Nat. Bank of Chicago v. Cook County, 12 III. 2d 40, 69 (1957). The presumption of constitutional validity can only be overcome, and a due process violation can only be established, when the party challenging the zoning ordinance proves by clear and convincing evidence that the ordinance is arbitrary, unreasonable, and bears no substantial relation to the public health, safety, or welfare.
The judiciary's role is an extremely narrow one when evaluating a substantive due process challenge to a zoning ordinance, but it is not to be a rubber stamp. A court is not allowed to inquire into the wisdom or soundness of a legislative determination or to substitute its judgment for that of the legislature. If there is any conceivable basis for finding a rational relationship, the ordinance will be upheld. A court can hypothesize reasons for legislation, even if the reasoning advanced did not motivate the legislative action. If the validity of the legislative classification for zoning purposes can be fairly debatable, then the legislative judgment must be allowed to control. A legislature is to be the guardian of public needs rather than the judiciary.
V. SUMMARY OF FACTS
The following is a summary of undisputed facts which is intended to provide a context to the Court's ruling. This is not intended to be an exhaustive list of the Court's fact findings. Additional facts may be cited in the Analysis infra.
The City of Danville is a home-rule unit with the constitutional authority to enact zoning ordinances.
Danville has Zoning Ordinances enacted pursuant to 65 ILCS et seq. and Article III Section 6 of the Illinois Constitution. The purpose of the Ordinances is to foster use and development of land in an orderly manner and in accordance with the goals, policies and objectives of the city's Comprehensive Plan.
Danville has a Comprehensive Plan that was adopted in 2006. This was intended to be a master plan for future growth and development of the city. The Comprehensive Plan designates the future use of the land, while zoning ordinances regulate the present use of the land. Among the goals of the Comprehensive Plan is to provide logical locations for land use types in order to minimize incompatible land uses.
On June 28, 2019, the Illinois Gambling Act was amended to allow the Illinois Gaming Board to issue a license for the operation of a casino in the city of Danville.
Shortly thereafter, potential casino developers and potential locations for the casino were being contemplated by the city.
Wilmorite a/k/a Danville Development became the agreed casino developer. On August 18, 2020, the Danville City Council approved a Host Community Agreement with Danville Development, LLC as its casino operating partner to pursue development of a casino.
There were various locations considered for the location of the casino. Initially there were discussions of placing the casino at property near the junction of 1-74 and Lynch Road. The Mervis family owned property at this location that was considered to be an excellent location for a casino. A developer was given an option on two parcels of property in 2019 for this purpose. The developer attempted to sell the property to Danville Development, but the parties were unable to reach an agreement as to a purchase price.
Danville Development then chose to use a parcel of property at 204 Eastgate Drive as the casino location.
The property at issue has an address of 204 Eastgate Drive and is located on the east side of Danville, IL. In 2020 it was zoned I-2 General Industrial. The property is located just over 1⁄2 mile north of the Interstate-74 and Lynch Road interchange, the first Illinois exit along 1-74 for motorists travelling west from Indiana.
The maps submitted by the parties present the best evidence of zoning and the properties located in this area. The maps show both the zoning in this area, as well as the nature and types of business uses in the area.
Lynch Road generally runs north and south. North of the I-74 interchange, Lynch Road is connected to Eastgate Drive by a very short connector road. Eastgate Drive is a frontage type road that runs north-south, parallel to Lynch Road. Lynch Road is a larger, primary highway, while Eastgate is a narrower, more winding type road. The roads are separated by a narrow strip of grass or ditch area.
204 Eastgate is located approximately 1⁄2 mile north from the I-74 interchange and sits on the west side of Eastgate. Immediately to the south of 204 Eastgate is 222 Eastgate, a property owned by Mervis Industries where it conducts metal recycling operations.
The area north of these properties is zoned I-2 and contains properties of various types of industrial use. There is, however, a credit union banking type facility less than 500 feet north of the subject property.
To the south of Mervis' property there are a number of hotels located immediately off the exit ramp. These hotels are just 1/4th mile from Mervis' property at 222 Eastgate. There are eight hotels at this location with five being located along Eastgate a short distance down from 222 Eastgate, and, three hotels being located along Lynch Road, just east across Lynch Road from the other hotels.
In August 2020, the owner of 204 Eastgate Drive was Shaheen & Co. Shaheen owned 204 Eastgate until 2021. Shaheen rented the warehouse at 204 Eastgate to a heavy machinery manufacturer for use as a warehouse until 2021.
On August 12, 2020, in contemplation of placing a casino at 204 Eastgate, Danville Development submitted Zoning Petition #279, which sought to reclassify 204 Eastgate Drive's zoning classification from 1-2 General Industrial to B-3 General Business in order to construct a "Gaming and Entertainment Facility".
After the City received the zoning petition, the City's Community Development Administrator did an analysis of whether the proposed rezoning of 204 Eastgate was constitutional under LaSalle and whether it complied with the City's Zoning Code and Comprehensive Plan. The city staff determined in a written report that the petition failed on these three accounts. This report was presented to the Zoning Commission.
On September 3, 2020, the Zoning Commission considered #279. A representative of Mervis appeared and voiced an objection to the petition. The Commission voted to deny Zoning Petition # 279 by a 5-1 vote with one member of the Commission abstaining. In doing so, it made specific findings about denying the proposed rezoning of 204 Eastgate Drive.
On September 15, 2020, the Danville City Council met to consider the rezoning petition and the Zoning Commission's recommendation.
There was a thorough discussion of #279 by the alderpersons at the City Council meeting. Multiple council persons stated that they had in fact considered Mervis' objection in making their decision. The council members also noted the following to be benefits of the rezoning: Economic and community development for both the city and that area, jobs, enhancement of that area which had been experiencing a decline, improved quality of life for residents (recreation and leisure), and that 204 Eastgate not being fully utilized. There was also deposition testimony that the alderpersons felt it was a suitable property because of the proximity to I-74 and hotels, and because the property was easily convertible for use.
No other property owners objected to #279.
The Council overruled the Zoning Commission and voted unanimously to approve Zoning Petition # 279, rezoning 204 Eastgate Drive from 1-2 General Industrial to B-3 General Business.
This litigation ensued, with Mervis filing suit in December 2020.
In 2021 and early 2022, discovery was conducted in this case.
During the course of this litigation, the developer, Danville Development, through its attorneys, communicated with the City concerning this litigation. This included providing guidance and information for the city to propose a text amendment which would further fortify the zoning issue and possibly moot the #279 litigation.
The City filed a petition proposing Text Amendment # 288 which purported to add the term "casino? along with a definition to the Zoning Ordinance, and made "casino" a permissible use for both B-3 General Business and I-2 General Industrial properties.
9
·
On July 15, 2022, Danville published notice of Zoning Petition # 288 in the Champaign News-Gazette, stating that the Danville Zoning Commission would be holding a public hearing on August 4, 2022. The disclosure stated that the City was petitioning to define "casino" and add casinos to the permissible uses in B-3 and 1-2 Zoning Districts and that a copy of the proposed change was available at Danville's Community Development offices.
Danville published notice in the Champaign News Gazette, which was a local newspaper of general circulation, but did not publish notice in Danville's local paper the Commercial News, nor did Danville directly notify Mervis Industries or other property owners of the proposed text amendment.
On August 1, 2022, the Planning and Zoning Commission received a City Staff Memorandum in support of # 288 from the City's Corporation Counsel, James Simon and Community Development Administrator, Logan Cronk. The Staff Memorandum provided an analysis of several facts in support of the proposed text amendment. Plaintiff points out that there were various inaccuracies contained in the Memorandum.
At its meeting on August 4, 2022, the Planning and Zoning Commission voted unanimously to recommend the passage of the text Amendment in # 288:
On August 5, 2022, the day after the Zoning Commission approved the City's petition to amend the Zoning Ordinance, Mervis Industries learned of Text Amendment #288 through an article in the Danville Commercial News.
On August 15, 2022, Mervis Industries submitted a letter objecting to the proposed amendment to Danville City Council. In the letter, Mervis Industries addressed the lack of notice and public awareness of Text Amendment # 288. Mervis also set forth the reasons for objecting to the amendment.
On August 16, 2022, Danville's City Council considered the petition to
amend the Zoning Ordinance. Prior to the meeting, the alderpersons had received a meeting agenda and packet of information that included the zoning petition, the Staff Memorandum, and the Planning and Zoning Commission's recommendation for # 288. They also received the letter from Mervis' attorney objecting to the petition.
Danville's Corporation Counsel made a presentation to the City Council prior to its vote. He explained the Staff Memorandum and the reasons why the alderpersons should vote in favor of #288. As Plaintiff points out, he also made certain misstatements as he had done in the Memorandum.
No other property owners objected to #288.
The City Council voted unanimously to approve the Petition. Text Amendment #288 passed, providing a definition of the word "casino", and allowing casinos as an approved use in both 1-2 and B-3 zoned properties.
VI. ANALYSIS
A.
APPLICATION
This Court will analyze each count of the First Amended Complaint. In performing the analysis, this Court notes it must follow the legal principles cited above which apply to review of zoning laws, namely to ensure that the City of Danville's decisions were rational and not arbitrary and capricious. The Court must adhere to the high deference which is to be afforded said decisions.
The Court summarily finds that Mervis, as a neighboring property owner, has standing to bring these actions. The Court will also summarily deny the mootness defense Danville asserted, and, will analyze all claims.
1.
COUNT I - #279 As-Applied Challenge
Holding: The Court finds that the Plaintiff has failed to prove by clear and convincing evidence that the city council's approval of #279 was arbitrary and capricious. The Court finds that #279 is not unconstitutional as-applied to the Plaintiff.
In Count I Plaintiff argues that Zoning Amendment # 279 was an unconstitutional violation of its substantive due process rights as applied to its property at 222 Eastgate Drive. Plaintiff alleges that the City's enactment of #279 was arbitrary and capricious and that it was not reasonably related to a legitimate government interest.
In an "as-applied" challenge, the plaintiff objects to how an enactment was applied to the plaintiff and its property. In order to determine if a zoning action violates a plaintiff's as-applied due process right, a court looks at the factors the Illinois Supreme Court set forth in La Salle National Bank. Through LaSalle and its progeny, it's been established that courts are to consider several factors in order to determine constitutionality. The factors to be considered, known as the LaSalle factors; are itemized in the analysis that follows. The purpose of the LaSalle factors is to determine whether the zoning action was reasonably related to a legitimate
government interest and whether it was a reasonable method to achieve that purpose. No one factor is controlling and courts should therefore review these factors cumulatively and not individually.
The Court notes at the outset that #279 allowed for rezoning of 204 Eastgate to B-3 General Business, and it did not specifically reference a "casino". Nonetheless, the parties have framed their arguments in contemplation of the property being used as a casino, and the Court will analyze as such.
In this case the Court finds that, after considering the LaSalle factors, the Plaintiff has failed to show by clear and convincing evidence that the rezoning of 204 Eastgate was arbitrary and capricious, and that it was not otherwise reasonably related to a legitimate government interest. An analysis of the individual factors to determine the reasonableness of granting #279. supports this finding.
1. Existing uses and zoning of nearby property. The Court must first consider whether the subject property was zoned in conformity with the surrounding existing uses and whether those uses were uniform and established. A zoning amendment may be upheld as valid if the subject property's new zoning classification is compatible with the existing uses and zoning of nearby property.
The record shows that at the time that #279 was enacted, the area nearby the subject property was zoned for both I-2 and B-3 uses. While it is true that the properties on either side of 204 Eastgate were zoned I-2, as was all of the land to the north of it along Eastgate, it must also be noted that there were B-3 zoned properties and uses a short distance away. While the Eastgate corridor, especially to the north and west, was industrial, there was also commercial/general business properties nearby (e.g. if one looks within a mere 1⁄2 mile radius, you would encounter five hotels; also nearby are a credit union, a marijuana dispensary and B-3 zoned property) The Court finds this very significant as a general business property, like a casino, would be compatible with these properties – namely the hotels-
- and that they would complement one another as both would likely draw travelers and motorists off of the interstate, or others seeking recreational activities. Additionally, across Lynch Road, there is a B-3 zoning district. It should also be noted that there is no residential zoned property nearby.
In LaSalle, the Supreme Court framed its analysis in relation to nearby properties. In this case the Court makes note of how each side carefully tailors the terminology concerning the zoning and uses of nearby properties. Mervis references commercial uses "some distances away" and "a sea of property" zoned
I-2. On the other hand, Danville focuses on the general business zones and mixed-uses nearby including the several hotel properties proximate to this property. (Mervis' own argument that customers would walk from the hotels to the casino evidences the actual proximity of the properties to one another, and how the properties could complement one another.) The Court finds it reasonable to consider the nearby hotel properties in determining that a casino at 204 Eastgate would be compatible in this area.
The alderpersons who voted in favor of the zoning were generally familiar with the area surrounding 204 Eastgate at the time of their vote. They testified to the existing mixed-use nature of the surrounding area, including hotels and a credit union, and described how this familiarity with the area led them to conclude that having the casino at 204 Eastgate would not be incompatible with the current uses of the surrounding properties. The alderpersons observed that the nature of the business of a casino would not be problematic to other properties in that area. Accordingly, it was not arbitrary and capricious to conclude that the rezoning would be compatible with other property in this area.
In sum, the Court finds that it was reasonable to conclude that the proposed zoning would conform to other uses nearby. The proximity of these properties to the I-74 interchange and the existing hotels are significant in assessing this first factor.
2. The extent to which property values are diminished. There was very little evidence presented to show that the City's adoption of # 279 would in any way diminish the value of Plaintiff's property. It can be noted that some witnesses, including voting aldermen, thought the rezoning would only enhance the value of the surrounding properties. Nonetheless, this factor carries little weight in the overall analysis, Extent to which diminishing the plaintiff's property values promotes the health, safety, morals, or general welfare of the public & Balancing the hardship imposed upon the Plaintiff by the zoning ordinance against the degree to which it promotes the public welfare. The 3rd and 4th LaSalle factors are best analyzed together, comparing the proposed benefits to the community with the alleged harm caused to the Plaintiff. The Court finds that Plaintiff has failed to show by clear and convincing evidence that any hardships to the Plaintiff outweigh the benefits to the City. It is to be noted that no other owners objected or even sought to be heard.
It is evident that the primary reason most aldermen voted for this action was the financial benefit the city would experience from a casino. However, there were a number of other benefits cited, to wit: the casino at 204 Eastgate would improve the public's quality of life by providing new recreational, leisure, and entertainment activities, it would provide additional jobs, tax revenues, and economic opportunities in this area and to the city as whole, and it would provide tangential benefits to public safety including allowing the hiring of additional police and fire personnel. These were reasonable benefits to both this area and the entire city for the alderpersons to consider.
On the other hand, Plaintiff claims that rezoning the subject property from I-2 to B-3 (for a casino) would impose hardships in the form of increased vehicular and pedestrian traffic as well as a potential increase in crime. Mervis neither alleges nor does it provide evidence that its day-to-day business operations (i.e. metal recycling process) will be directly impacted, with the exception of increased traffic on Eastgate. Notably, multiple alderpersons stated at the Council meeting that they considered Mervis' arguments, and some even expressed difficulty in making the decision to approve #279. As it concerns increased traffic, it's reasonable to conclude that increased traffic can be annoying, and potentially troublesome to truck traffic frequenting Mervis' business. However, increased traffic is not a significant hardship. One could argue that it suggests progress and development which would benefit the community. Additionally, this purported hardship could as likely be imposed on Plaintiff if an I-2 type business began to do more vigorous business at 204 Eastgate.
As it concerns the risks posed by pedestrians, it's also reasonable to conclude that this could be troublesome to Mervis' truck traffic, and that it is a potential source of liability. However this argument first assumes that there will be a number of gamblers that will be walking from the hotels to the casino during operational hours, as opposed to driving or using other forms of transportation. It also does not take into account possible remedies including shuttle buses and sidewalks being utilized. This is not a significant hardship on Plaintiff either. Lastly, as it regards Plaintiff's claim that casino patrons may enter on to its property to commit thefts of scrap metal, the Court finds this purported hardship to be remote and speculative.In sum, this Court finds that it was not unreasonable for one to conclude that the rezoning at 204 Eastgate offered significantly more benefits to the area and the city than hardships to the Plaintiff.
The suitability of the subject property for the zoned purpose.
Mervis challenges the suitability of the property arguing that the property was located amongst other 1-2 type properties, that the property was too small for developing a casino, that it was not visible from I-74 and that the noise and aesthetics of the recycling operations were disfavorable.
The alderpersons and city staff cited multiple factors which suggest that 204 Eastgate was suitable as a B-3 property. Those factors include the following: it was able to be converted easily into a casino, it was not located near a residential area, and it was located in an area such that it was easily accessible via Interstate-74 and several hotels.
It was not unreasonable to conclude that the subject property was suitable to be rezoned from I-2 to B-3 for the development of the casino. (The Court notes that one of the zoning commissioners commented that it would be a good development in that area, yet she ultimately voted no to approving #279.) While the factors Mervis cites may make the location less desirable to users of the casino, the developer assuredly considered these in selecting the location and these factors do not in and of themselves make the property unsuitable.
The length of time which the subject property has been vacant. In 2020, 204 Eastgate was not vacant; rather, it had been used as a warehouse for storage. Nonetheless, many aldermen còncluded that it was vacant as they had not witnessed any activity on occasions when they had been in this area. While the property was not entirely vacant, it was reasonable to conclude that it was underutilized, depriving the City of the benefits of a fully operational business. Rezoning the subject property from 1-2 to B-3 allowed the City to transform an underutilized property to a casino, fostering economic development, revitalization, and commerce in the area.
8.
Evidence of community need for the proposed use. As it concerns the need for the proposed use at this location, it was reasonable to conclude that this location was appropriate, due in part to its proximity to I-74 and the hotels as well as the lack of residential zoning nearby.
The City of Danville, and many of its citizens - including the Mervis family- wanted a casino for decades. All of the financial, employment and tangential benefits discussed above - especially in the context of the COVID-19 pandemic - addressed this need. It is noted the issue was not whether Danville needed a casino, it was whether it needed a casino at this location. For reasons stated supra, it was reasonable to conclude that this location would fulfill this need.
The care with which the community has planned its land use and development. This factor relates to whether the challenged ordinance rezones a property in a manner consistent with the municipality's use and development of land within its boundaries.
Danville had a Comprehensive Plan that was adopted in 2006, and prepared pursuant to the Illinois Municipal Code, 65 ILCS 5/11-12-5. Danville's Comprehensive Plan was described as the master plan for the future growth and development of the City of Danville' and guided planning and development policy for the city. The Plan itself states that it does have inherent limitations and does not represent it to be the end result. Further, it does not attempt to thoroughly analyze every aspect of community development.
In their respective arguments, the parties are careful to select excerpts from the Plan which support their respective arguments. Having reviewed the Plan in its entirety, the Court finds that Plaintiff has failed to show by clear and convincing evidence that #279 would be in violation of the Plan.
The Court notes that the Plan itself states that it should be re-evaluated every 5-10 years in order to address changes and accomplishments taking place along the way. In 2020, the Plan was fourteen years old and since its adoption Illinois gaming laws had evolved significantly, the COVID-19 pandemic was adversely impacting the local economy and by some accounts, the industrial development in the Eastgate area had become stagnant. These factors should be considered in applying the Plan to the zoning decisions. Significant to this Court's review of the Plan were the passages which addressed this specific area of Danville, and the Plan's position regarding mixed-uses. Concerning this area, the Plan notes that this area along the Indiana border has helped spur growth of the community. The Plan also states that commercial development at the I-74/Lynch Rd. area should not be a problem and should be allowed so long as it does not compromise industrial use properties. Mervis suggests that mixed-uses, e.g. B-3 within 1-2, is prohibited under the Plan. The Plan states that mixing uses should be avoided, but different uses are not necessarily incompatible so long as major conflicts are avoided. While Mervis has alleged various hardships that it may endure with rezoning, the Court does not believe these would be major conflicts as contemplated by the Plan. The Court finds that, under this factor, rezoning of 204 Eastgate was not unreasonable.
Plaintiff rightfully points out that Danville's Community Development Administrator Logan Cronk prepared a Memorandum which did not recommend approving #279. The Court acknowledges that its analysis of LaSalle differs from that of the Community Development Administrator that was submitted to the Zoning Commission. Additionally the Zoning Commission voted it down 5-1. The Court finds that these were advisory in nature. The ultimate decision rested with the City Council which voted unanimously to approve #279. If the validity of the legislative classification for zoning purposes can be fairly debatable, then the legislative judgment must be allowed to control.
Based on this analysis, the Court finds that the Plaintiff has not shown by clear and convincing evidence that granting of the petition to rezone was arbitrary and capricious or that the zoning action was not reasonably related to legitimate government interests. In reviewing the decision of the city council to rezone this property, the Court must give deference to their actions. There is sufficient evidence to support the finding that # 279 was reasonably related to a legitimate government interest and was a reasonable method to achieve it. While one may initially question the logic of locating a casino next to a metal recycling business, it is also not for the Court to substitute its judgment as the City Council is best suited to make this decision.
Count II - Spot Zoning
Holding: The Court finds that the Plaintiff has failed to prove by clear and convincing evidence that the city council's approval of #279 was arbitrary and capricious. The Court finds that #279 was not illegal spot zoning.
In Count II of its First Amended Complaint, Plaintiff claims that the City's adoption of #279 constituted illegal spot zoning as it was not consistent with existing zoning and uses.
In general, spot zoning is a change in zoning applied only to a small area which is out of harmony with the comprehensive planning and which violates a zoning pattern that is homogeneous, compact, and uniform. Not every reclassification of a single tract of land constitutes illegal spot zoning. To invalidate a zoning ordinance, a plaintiff is required to present clear and convincing evidence that the amendments to the zoning ordinances violated a comprehensive plan for use of the property. As with a LaSalle analysis, the central question is whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.
In this case, the Plaintiff has not shown that the City's decision to rezone this property from 1-2 to B-3 was arbitrary and capricious. A reasonable person could conclude the rezoning was compatible with the mixed-use nature of the area surrounding the subject property. As explained above, the area near the subject property was already zoned for both I-2 and B-3 uses. Significantly, less than 1⁄2 mile from 204 Eastgate there are five hotels which are of a similar type or complementary use:
Mervis argues that this property has 1-2 properties all around it - an island in a sea of industrial properties. While this is in part true, there was also evidence indicating that the zoning was in conformity with the character of the nearby properties, namely the hotels and proximity to I-74. It was reasonable to rezone this property as General Business as it would not alter the general uses and zoning in this area. The Community Administrator and the Zoning Commission also concluded that this was not an entering wedge.
The Court finds that Plaintiff has failed to show that the rezoning of #279 would not conform to the existing character of the surrounding area; thus, the City is entitled to judgment on Plaintiff's claim for illegal spot zoning.
3. Count III - #288 Procedural Due Process Violation
Holding: The Court finds that the Plaintiff has failed to prove that the city council's adoption of #288 violated Plaintiff's procedural due process rights. The Court denies Plaintiff's request to declare #288 invalid.
In Count III Plaintiff claims that the City's adoption of # 288, making the operation of a "casino" a permissible use in areas zoned either 1-2 or B-3, violated its constitutional right to procedural due process. Specifically, Plaintiff alleges that the City did not give it proper notice, and that was not afforded an opportunity to object.
Plaintiff argues it was unaware of the Planning and Zoning Commission's meeting on August 4, 2022, and, therefore, did not have an opportunity to object to #288 because the City published notice of the meeting in an out-of-county newspaper with general circulation within Danville instead of in the local Danville paper, the Commercial News. Mervis also points out that the City did not directly notify Plaintiff of the public meeting despite its property interests and this ongoing litigation.
Danville's ordinance requires notice of the public hearing be published in a local newspaper of general circulation at least 15 days but not more than 30 days prior to the public hearing. The Court finds that the City did not violate Plaintiff's procedural due process rights by publishing notice of the Planning and Zoning Commission's meeting in the Champaign News-Gazette. Danville provided notice of presentation of #288 to the Planning and Zoning Commission's at its August 4, 2022 meeting by publishing notice of the meeting on July 15, 2022, in the Champaign News-Gazette. This publication satisfied the notice requirements. Plaintiff had a chance to, and did voice its objections to # 288 prior to its approval by the City Council. The Council in fact considered the objection before adopting #288. Thus, Plaintiff's procedural due process rights were not violated.
To the extent the Plaintiff claims it was entitled to more notice than publication, the Court finds #288 added a permitted use to the I-2 zoning classification, not a restriction, and notice by publication was therefore sufficient. While Mervis avers prejudice by not being able to object before the Commission, the Court again notes that the determinative vote is the Council's. The commission is merely advisory in nature. As evidenced by # 279, the Council is not required to accept the Commission's recommendations. Accordingly, Mervis's ability to present to the Council was the key. It is worth noting that Mervis did provide a written objection to the alderpersons, and, it had an opportunity to appear before the city council before the vote on #288 was made. Lastly, while defense counsel did not provide Plaintiff the courtesy of notice before #288 was presented to the Zoning Commission, lack of direct notice in this regard was not a constitutional violation.
4. Counts IV and V: Due Process Violations - Facial and As-Applied Challenges
Holding: The Court finds that the Plaintiff has failed to prove by clear and convincing evidence that the city council's approval of #288 wàs arbitrary and capricious. The Court finds that #288 is not unconstitutional either facially or as-applied to the Plaintiff.
In Counts IV and V, Plaintiff alleges that the City's enactment of # 288 making “casino" a permitted use in both I-2 and B-3 zoning districts amounted to both a "facial" and "as-applied" violation of its substantive due process rights. Plaintiff alleged that the passing of #288 was arbitrary and capricious and not reasonably related to a legitimate government purpose; rather, it alleges that it was passed for the benefit of the casino developer and in an effort to moot the litigation over #279.
The Court will first address the as-applied challenge, and then the facial challenge.
The effect of #288 on 204 Eastgate Drive was that it would specifically allow for "casino" as a use whether the property was zoned B-3 or 1-2. In order to determine the as-applied validity of this amendment, the LaSalle factors would again be analyzed, giving the City the benefit of the same deference and presumption discussed with #279. Without re-stating the entire analysis here, the Court notes that the same findings and conclusions regarding #279 would apply to #288. Most significantly, the Court finds that it would not be unreasonable to conclude that the benefits of a casino at this location would outweigh any burdens to neighboring properties, and that a casino at this location would not be incompatible with other properties in
the area.
The Court finds that Plaintiff has not shown by clear and convincing evidence that the passing of #288 was arbitrary and capricious or unreasonable. This Court finds that #288, like #279, was rationally related to a legitimate governmental interest and was not arbitrary or unreasonable.
Turning to the facial challenge of # 288, the Court notes that because the "as-applied" challenge fails, Plaintiff's "facial" challenge to #288 also fails as a matter of law. When an ordinance is held constitutional as applied to a party, a facial challenge will also fail.
The Court will nonetheless consider the merits of the facial challenge as argued by the parties. When assessing a facial challenge courts determine whether the ordinance is rationally related to the public welfare. To analyze whether the challenged zoning ordinance is rationally related to the public welfare, courts look to several factors, such as (i) whether the ordinance was passed for the exclusive benefit of one person or entity, (ii) whether municipality deviated from its standard procedures in adopting the ordinance, and (iii) the municipality's stated purpose for passing the ordinance. A review of these factors confirms the facial validity of # 288.
While # 288 was coordinated in part by the developer, it was ultimately requested by the city, and was not passed to only benefit Danville Development; rather, it potentially benefitted all B-3 and 1-2 properties in the city as the addition of "casino' as a use in both B-3 and 1-2 properties applies to all such properties throughout the City! This was considered significant by some because of potential opportunities it provided for future development. The city also viewed it as better positioning the city for developments in Illinois gaming laws. While #288 may have been proposed in part to benefit the development of a casino on this property, and, to moot the litigation over #279, there was also sufficient evidence of other benefits throughout Danville.
In adopting #288, Danville followed its standard procedures, including publishing notice of the Petition, presenting it to the Zoning Commission, and, then having discussion and vote before the Council. The alderpersons acted independently of the developer in this process. While Mervis was obviously frustrated by the lack of courtesics provided by the city and its personnel, this does not invalidate the city's actions.
The City stated reasonable purposes for passing #288. It was noted that Illinois gaming laws had changed, and were known to be fluid and that with the Illinois General Assembly's continued expansion of gambling, the text amendment positioned the city so that it could take advantage of new/future opportunities in gaming for municipalities. Additionally 204 Eastgate was originally considered as a temporary location for the casino. Thus, #288 purportedly would make relocation or placement of a larger casino facility within Danville much more practical. Lastly, the zoning ordinances simply lacked a definition and permitted use classification for "casinos" and this text amendment gave needed context and clarification to that terminology.as this was not brought up in 2020 when #279 was passed.
The Court concludes that the Plaintiff has failed to show that the adoption of #288 was facially unconstitutional or unreasonable.
VII. CONCLUSION
Based upon the above analysis the Court FINDS and ORDERS as follows:
As to Count I, the Court grants Defendant's Motion and finds that the passing of #279 was not arbitrary and capricious; and thus not a violation of Plaintiff's constitutional rights. Judgment is entered in favor of the Defendant;
As to Count II, the Court grants Defendant's Motion and finds that the passing of #279 does not constitute spot-zoning; Judgment is entered in favor of the Defendant;
As to Count III, the Court grants Defendant's Motion and finds that the passing of #288 did not violate the Plaintiff's procedural duc process rights; Judgment is entered in favor of the defedant;
As to Counts IV and V, the Court-grants:Defendant's Motion and finds that #288 is not a facial or an as-applied violation of Plaintiff's substantive due process right; Judgment is entered on each count in favor of the Defendant.
Entered this 16 Day of August, 2023
