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Third Division
Filed: September 1, 2004

No. 1-03-1248

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, 1350 Lake Shore Associates (LSA), appeals from a circuit court order entered following a benchtrial, granting judgment in favor of the defendant, the City of Chicago, and the intervenors to this action on count IIIof LSA's fourth-amended complaint. At issue before the court was the constitutionality of a down-zoning ordinanceand subsequent height limitation ordinances which LSA claimed affected its right to construct a high-rise apartmentbuilding on its lakefront property. The circuit court ruled that the ordinances are constitutionally valid as applied tothe subject property and, for the reasons which follow, we affirm.

This case is before us for the third time on appeal. As a consequence, we will recite only the proceduralhistory and facts necessary to understand the issues presented in the instant appeal.

At all times relevant to this appeal, LSA owned the property located at 1320-30 Lake Shore Drive (theproperty). On November 14, 1978, the Chicago City Council approved LSA's application to change the property'szoning from an "R8 General Residence District" classification to "Residential Planned Development 196" (RPD 196),thereby permitting the construction of a 40-story, 196-unit apartment building on the property. It was not untilsometime in 1996 that LSA began investigating the possibility of developing the property in accordance with RPD196. On December 11, 1997, LSA's project architect submitted plans (Part II Submittal) to the Department ofPlanning and Development of the City of Chicago (Department of Planning), seeking the issuance of a Part II Approvalletter, which is a prerequisite to a zoning certificate and which, in turn, is a prerequisite to the issuance of a buildingpermit. The Commissioner of the Department of Planning, however, took no action on LSA's Part II Submittal. OnApril 29, 1998, the Chicago City Council approved an ordinance (hereinafter referred to as the "down-zoningordinance") which changed the property's zoning from RPD 196 to an "R6 General Residence District", under whichLSA's proposed building was not a permitted use.

The Chicago City Council later passed two ordinances (hereinafter referred to as the "height limitationordinances") which imposed height limitations on any new construction in the area in which the property was located. Specifically, on January 20, 1999, an ordinance creating the Near North Historic Areas I and II was enacted. Thisordinance imposed a 125-foot height limitation on any new construction located in these areas. On July 21, 1999, anordinance was enacted which imposed height limits depending on the underlying zoning classification. For propertylocated in an R6 zoning district, the height limitation is 90 feet or 8 stories, whichever is greater.

LSA filed its initial complaint in this action on August 25, 1998, naming as defendants the Commissionerof the Department of Planning (Commissioner) and the City of Chicago (City) (hereinafter referred to collectively asthe "City defendants"). Subsequently, Edward T. Joyce, Carl Hunter, John Stassen, John C. Mullen, Clark W.Fetridge, Respicio F. Vasquez, and Bernard J. Miller (hereinafter referred to collectively as the "intervenors"), all ofwhom own property located within 250 feet of the subject property, were granted leave to intervene.

LSA amended its original three-count complaint numerous times during the proceeding. In count I of its first-amended complaint, LSA sought a writ of mandamus directing the Commissioner to issue it a Part II Approval letter. Count II sought a declaration that the down-zoning ordinance does not affect LSA's right to develop the property inconformity with RPD 196 and an injunction barring the City from enforcing the down-zoning ordinance against it. Count III sought a declaration that the down-zoning ordinance is void. The circuit court later granted LSA's motionto voluntarily dismiss count II.

The circuit court conducted separate bench trials on counts I and III of LSA's amended complaint. On March9, 2000, following the trial on count I, the court entered judgment in favor of the City defendants and the intervenors,thereby denying LSA's request for a writ of mandamus directing the Commissioner to issue it a Part II Approval. Onappeal, we reversed the court's judgment and remanded the case to the circuit court with directions that it issue a writof mandamus requiring the Commissioner to issue a Part II Approval to LSA. 1350 Lake Shore Associates v. Hill,326 Ill. App. 3d 788, 761 N.E.2d 760 (2001) (hereinafter referred to as "Lake Shore I").

On remand, LSA filed a "Motion for Entry of Final Judgment Order" in which it requested that the circuitcourt enter orders: (1) requiring the Commissioner to issue it a Part II Approval; (2) requiring the ZoningAdministrator, upon receipt of the Part II Approval, to issue a zoning certificate; and (3) "enjoining the City and itsagents from enforcing the provisions of the Chicago Zoning Ordinance insofar as any portion of that ordinance prevents[LSA] from any right to which it may be entitled by virtue of its Part II Approval and zoning certificate, including theright to have a building permit application processed without reference to the down-zoning ordinance that becameeffective in May, 1998." Thereafter, the intervenors filed a motion for a declaratory judgment, seeking a declarationthat LSA is entitled to neither a zoning certificate nor a building permit in connection with the plans for which thiscourt ordered that a Part II Approval be issued.

On March 12, 2002, the circuit court: (1) directed the Commissioner to issue a Part II approval; (2) deniedLSA's requests for orders requiring the Zoning Administrator to issue it a zoning certificate and prohibiting the Cityand its agents from applying any provision of the Chicago Zoning Ordinance which would prevent it from exercising"any right to which it may be entitled by virtue of its Part II Approval and zoning certificate, including the right to havea building permit application processed without reference to the down-zoning ordinance;" and (3) granted theintervenors' motion for a declaratory judgment. Thereafter, LSA filed a motion for reconsideration of the circuit court'sMarch 12, 2002, ruling and a motion requesting findings pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)) (hereinafter referred to as "Rule 304(a)"). On May 31, 2002, the circuit court denied LSA's motion forreconsideration and granted its request for Rule 304(a) findings. In its order, the court found that LSA had not madesubstantial expenditures in good faith reliance on the issuance of a Part II Approval. On June 10, 2002, LSA timelyappealed the circuit court's order of May 31, 2002.

On August 12, 2002, while the judgment entered on count I of LSA's amended complaint was being appealed,LSA filed its fourth-amended complaint containing three counts. Count I appears to be nothing more than arestatement of count I contained in LSA's third-amended complaint for purposes of preserving the claim on appeal.⁽¹⁾ See Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 154, 449 N.E.2d 125 (1983) (anamended complaint must replead or incorporate by reference a claim raised in a prior complaint in order to preservethat claim on appeal). In the place of count II, LSA indicated that the claim had been voluntarily dismissed onSeptember 1, 1999. Count III sought a declaration that both the down-zoning ordinance and the height limitationordinances are void as arbitrary and capricious and because they place an undue burden on LSA's property rights. Commencing on November 4, 2002, the circuit court conducted a bench trial on count III of LSA's fourth-amendedcomplaint.

On April 22, 2003, after hearing extensive testimony by the parties, the circuit court issued a writtenmemorandum opinion and order in which it entered judgment in favor of the City and the intervenors on count III ofLSA's fourth-amended complaint, finding that the challenged ordinances are constitutionally valid as applied to theproperty. On April 28, 2003, LSA filed the instant appeal from that judgment.

On May 21, 2003, after LSA filed the instant appeal, we rendered our decision with respect to the circuitcourt's order of May 31, 2002. In that decision, we: (1) affirmed the portion of the circuit court's order denying LSA'srequest for an order requiring the Zoning Administrator to issue a zoning certificate; and (2) reversed those portionsof the court's order denying LSA's request for an order enjoining the City and its agents from applying any provisionof the Chicago Zoning Ordinance which would prevent it from developing the property in accordance with the termsof RPD 196, and granting the intervenors' motion for a declaratory judgment. Finally, we remanded the cause to thecircuit court with directions that it make specific factual findings with respect to LSA's vested rights claim. 1350 LakeShore Associates v. Mazur-Berg, 339 Ill. App. 3d 618, 791 N.E.2d 60 (2003) (hereinafter referred to as "Lake ShoreII").

In this appeal, LSA contends that the circuit court's April 22, 2003, ruling that the challenged ordinances areconstitutionally valid as applied to the property is against the manifest weight of the evidence. However, beforeaddressing the specific arguments raised by LSA, we must address a preliminary matter raised by the intervenors. Theintervenors argue, as they did in a motion to dismiss before this court, that the April 22, 2003, order is not appealableand, as a consequence, the appeal must be dismissed for lack of jurisdiction.

The intervenors argued in their motion to dismiss that, in the absence of a Rule 304(a) finding, we lack jurisdiction because, after LSA filed its notice of appeal with respect to the judgment entered on count III, we reversedthe judgment entered on count I and remanded the matter to the circuit court. Relying on the portion of Supreme CourtRule 301 (155 Ill. 2d R. 301 (hereinafter referred to as "Rule 301")) which states that "[a]n appeal is a continuationof the proceeding", the intervenors claimed that our reversal of the judgment entered on count I "negated whateverfinality that judgment had". We rejected the intervenors' argument in this regard and denied their motion to dismiss. In Illinois Founders Insurance Co. v. Guidish, 248 Ill. App. 3d 116, 120, 618 N.E.2d 436 (1993), we noted that,although Rule 301 provides that an appeal is a continuation of the proceeding, "nowhere does it provide that theprosecution of an appeal renders a final judgment non-final pending the disposition of the appeal. The pendency ofan appeal has no effect on the finality of the order appealed from." Because we had yet to reverse the circuit court'sjudgment on count I at the time judgment was entered on count III, the judgment entered on count III disposed of thelast remaining claim and was, therefore, appealable under Rule 301.

The intervenors also argued in their motion to dismiss that, although counts I and III were "severed" by thecircuit court, a Rule 304(a) finding was necessary to appeal from the judgment entered on count III because, as thesupreme court held in Carter v. Chicago & Illinois Midland Railway Co., 119 Ill. 2d 296, 518 N.E.2d 1031 (1988),such a finding is required if the circuit court does not clearly and unequivocally state in its order that the severed claimshall proceed thereafter separate from the other claims. However, regardless of whether the circuit court merely severedcounts I and III for purposes of trial or ordered the claims to proceed as separate actions, we rejected the intervenors'argument in this regard for the same reason that we rejected their first argument. At the time the circuit court enteredjudgment on count III of LSA's fourth-amended complaint, judgment on count I had already been entered.

In their brief on appeal, the intervenors argue for the first time that we lack jurisdiction over the instant appealbecause the circuit court never ruled on its amended counterclaim when it entered judgment on count III of LSA'sfourth-amended complaint. Again, we disagree.

The record shows that, on May 29, 2002, the intervenors filed their amended counterclaim for declaratoryjudgment, seeking a finding that the challenged ordinances are constitutionally valid on their face and as applied tothe property. LSA filed its answer to the intervenors' amended counterclaim on June 14, 2002. During the course oftrial, on January 31, 2003, the intervenors filed a motion seeking judgment on their amended counterclaim, whereinthey argued that LSA did not make a facial challenge to the height limitation ordinances, but rather, merely challengedthe constitutionality of the ordinances as applied to the property. As a consequence, the intervenors sought adeclaration that the height limitation ordinances are "valid, enforceable and permissible on [their] face under Art I,Section 2 of the Illinois Constitution." After LSA rested its case at trial, the intervenors presented their motion seekingjudgment on their counterclaim. The trial judge, however, responded that she would "enter and continue" the motion. The record reveals no express ruling on the counterclaim or the motion. Nor does the circuit court's writtenmemorandum opinion and order reflect a ruling thereon.

The intervenors now argue that, because their amended counterclaim and subsequent motion seeking judgmentthereon were never ruled upon by the court, judgment was entered on fewer than all the claims and, therefore, a findingpursuant to Rule 304(a) was necessary in order to render the court's order of April 22, 2003, appealable. LSAresponds that, once the circuit court entered judgment in favor of the City and intervenors on count III of LSA'samended complaint, "[t]here was nothing left for the trial court to do on [LSA's] claims or [the] intervenors'counterclaim, explaining why [the] intervenors -- in the nine months that have passed since the trial court entered itsjudgment -- still has [sic] not asked the trial court for some further ruling."

Neither party has included the relevant case law necessary to decide the precise issue before us; namely, theeffect of a defendant's pending counterclaim on the appealability of a judgment entered on a plaintiff's underlyingcomplaint. Our independent research, however, has revealed Lynch Imports, Ltd. v. Frey, 200 Ill. App. 3d 781, 558N.E.2d 484 (1990), a case which is instructive on the issue at hand.

In Lynch Imports, Ltd., the circuit court entered summary judgment in favor of the plaintiff on his complaintseeking to recover the purchase price of an automobile. The court, however, failed to rule on the defendants' pendingcounterclaim, which sought damages resulting from the plaintiff's alleged failure to deliver an "acceptable" car. Onappeal, this court considered, sua sponte, the question of whether we had jurisdiction over the appeal given that thecounterclaim was never ruled upon and a Rule 304(a) finding was not obtained. We first noted that the defendants'counterclaim was predicated upon the same grounds as their defense to the plaintiff's complaint, and then found that"the order granting summary judgment in favor of the [plaintiff's] complaint, necessarily entailed the disposition ofthe issues raised in the counterclaim as well." Lynch Imports, Ltd., 200 Ill. App. 3d at 785. Accordingly, weconcluded that, because the circuit court's order necessarily disposed of the issues raised in the defendants'counterclaim, a Rule 304(a) finding was not required. Lynch Imports, Ltd., 200 Ill. App. 3d at 785; see also Salemiv. Klein Construction Co., 266 Ill. App. 3d 110, 114, 639 N.E.2d 629 (1994); A.F.P. Enterprises, Inc. v. CrescentPork, Inc., 243 Ill. App. 3d 905, 911, 611 N.E.2d 619 (1993); International Industrial Leasing, Ltd. v. H.J. Colemanand Co., 66 Ill. App. 3d 884, 890, 384 N.E.2d 1 (1977); Andros v. Hansen Realty Co., 44 Ill. App. 3d 635, 358N.E.2d 664 (1976).

We believe the holding in Lynch Imports, Ltd. applies equally to the jurisdictional question before us. Theintervenors sought a declaration in their amended counterclaim that the height limitation ordinances are valid andconstitutional on their face and as applied to the subject property. While it is true that the circuit court did not formallyrule on the counterclaim or the motion seeking judgment thereon, by ruling that the height limitation ordinances wereconstitutionally valid as applied to the subject property, the court implicitly ruled that the ordinances are constitutionalon their face. Similar to the situation in Lynch Imports, Ltd., the order entering judgment in favor of the City and theintervenors on count III of LSA's fourth-amended complaint necessarily entailed the disposition of the issues raisedin the intervenors' counterclaim. Accordingly, a finding pursuant to Rule 304(a) was not required in this instance. In so holding, we are mindful that there is a line of cases in which this court has held that, absent a Rule 304(a)finding, an order entering judgment is not appealable when a defendant's counterclaim remains pending. See Bell v.Home Federal Savings and Loan Ass'n of Elgin, 38 Ill. App. 3d 652, 654, 348 N.E.2d 527 (1976); see also HighwayIndustries, Inc. v. Trailer Leasing Co., Inc., 48 Ill. App. 3d 235, 236-37, 363 N.E.2d 60 (1977); Cascade Heating andAir Condition Co., Inc. v. Westbrook, 177 Ill. App. 3d 387, 389-90, 532 N.E.2d 377 (1988). We find these casesdistinguishable, however, as the counterclaims in those cases set out new facts, prayed for affirmative relief, andshowed "grounds by which the jurisdiction of the court may be upheld independently of the original complaint." Bell,38 Ill. App. 3d at 654.

For the foregoing reasons, we find that we have jurisdiction over the instant appeal. We now turn to themerits of the appeal. As noted earlier, LSA contends that the circuit court's finding that the challenged ordinances areconstitutionally valid as applied to the property is against the manifest weight of the evidence.

At trial, the parties presented expert testimony in support of the factors which a court must consider inevaluating the validity of a zoning ordinance, as set out by our supreme court in La Salle National Bank v. County ofCook, 12 Ill. 2d 40, 145 N.E.2d 65 (1957) and Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370, 167N.E.2d 406 (1960). The relevant factors (hereinafter referred to as the "LaSalle/Sinclair factors") include: (1) theexisting uses and zoning of nearby property; (2) the extent to which a particular zoning restriction diminishes propertyvalues; (3) the extent to which diminishing the plaintiff's property values promotes the health, safety, morals, or generalwelfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individualproperty owner; (5) the suitability of the subject property for the zoned purpose; (6) the length of time the subjectproperty has been vacant as zoned in the context of land development in the vicinity; (7) the community's need for theproposed use; and (8) the care with which the community has undertaken to plan its land use development. LaSalleNational Bank, 12 Ill. 2d at 46-47; Sinclair Pipe Line Co., 19 Ill. 2d at 378.

In LSA's case-in-chief, Allen Kracower, an expert in land use and zoning, opined that the property developsits character from the buildings immediately surrounding it and others along the lakefront. Lawrence Okrent, an expertin zoning and land use planning, testified as to the history of zoning in the area, and opined that the down-zoningordinance is inconsistent with the history of zoning and with rational planning considerations. George Kisiel, an expertin zoning and land use planning, testified as to the appropriateness of the height-limitation ordinances as applied tothe property, and opined that the height-limitation ordinances do not fit the existing development in the area. Alsotestifying for LSA was Gary DeClark, an expert real estate appraiser, who opined that the loss in value from thechallenged ordinances is several million dollars. John Buenz, LSA's expert architect, testified that he was retained byLSA to design a building on the property in conformity with RPD 196. LSA's expert in real estate marketing, EugeneW. Stunard, opined that there is a strong need and demand for a high-rise development on the property. Finally, DavidMiller, an expert in traffic engineering, testified as to the effect that increased traffic would have on the area.

Testifying for the City was Timothy Samuelson, an expert in Chicago's architectural history, who describedthe history of development of the relevant area, and opined that the challenged ordinances advance the goal of historicpreservation. Thomas Smith, Assistant Commissioner in the City's Department of Planning and an expert in urbanplanning and zoning, testified as to the City's land use planning and his own involvement in the passage of the height-limitation ordinances.

In the intervenors' case-in-chief, Thompson Dyke, an expert in urban planning, zoning, and landscapearchitecture, opined that, given the history and trend of land use in the neighborhood, the challenged ordinances arereasonable as applied to the property. Peter Land, an expert in light and shadows, gave his opinion as to the impactof shadows cast by LSA's proposed high-rise building, while Thomas Corke, an expert in wind patterns and currents,gave his opinion on the effect of increased winds as a result of the construction of a high-rise building on the property. Also testifying for the intervenors was Carl Hunter, an expert in architecture and one of the intervenors in the case, whostated that he designed an eight-story building which was compatible with the current zoning. Herbert Halperin, anexpert in real estate investments, opined that Hunter's proposed building could be developed in an economicallyfeasible manner.

In entering judgment in favor of the City and the intervenors on count III of LSA's fourth-amended complaint,the circuit court applied the LaSalle/Sinclair factors and concluded that LSA failed to demonstrate by clear andconvincing evidence that the challenged ordinances are arbitrary, capricious, or unreasonable. For the reasons whichfollow, we find that the circuit court's judgment on count III is not against the manifest weight of the evidence.

A zoning ordinance, as a legislative judgment, is presumptively valid. State Bank of Countryside v. City ofChicago, 287 Ill. App. 3d 904, 911-12, 679 N.E.2d 435 (1997). As stated, a court must consider the LaSalle/Sinclairfactors in evaluating the validity of a zoning ordinance. However, before turning to the individual factors, we addressLSA's argument that the circuit court applied the incorrect burden of proof in this case.

It is well-settled that a party challenging the validity of a zoning ordinance must show, by clear andconvincing evidence, that the application of the ordinance is arbitrary and unreasonable, and bears no substantialrelation to the public health, safety, or welfare. Tomasek v. City of Des Plaines, 64 Ill. 2d 172, 179-80, 354 N.E.2d899 (1976); La Grange State Bank v. County of Cook, 75 Ill. 2d 301, 307-08, 388 N.E.2d 388 (1979); CosmopolitanNational Bank v. Village of Northbrook, 138 Ill. App. 3d 967, 973, 487 N.E.2d 55 (1985); State Bank ofCountryside, 287 Ill. App. 3d at 912. LSA, however, cites to a line of cases which hold that the presumption ofvalidity is substantially weakened where the municipality lacks a comprehensive plan. Forestview Homeowners Ass'n,Inc. v. County of Cook, 18 Ill. App. 3d 230, 240, 309 N.E.2d 763 (1974); Rodriguez v. Henderson, 217 Ill. App. 3d1024, 1034, 578 N.E.2d 57 (1991). We have no quarrel with this proposition. However, even if the presumption ofvalidity is weakened in the absence of a comprehensive plan, the burden of proof remains on the party challenging theordinance to establish its invalidity by clear and convincing evidence. Consequently, we hold that the circuit courtproperly applied the clear and convincing standard in this case.

We now turn to the first LaSalle/Sinclair factor, which requires consideration of whether the property is zonedin conformity with the surrounding existing uses and whether those uses are uniform and established. See La GrangeState Bank, 75 Ill. 2d at 309. The relevant question under this factor is whether LSA's property takes its characterfrom the uses of nearby land, which is a question of fact to be resolved by the trier of fact. Wakeland v. City ofUrbana, 333 Ill. App. 3d 1131, 1140, 776 N.E.2d 1194 (2002). The parties agree that, although no oneLaSalle/Sinclair factor is controlling, this first factor is of "paramount importance". See State Bank of Countryside,287 Ill. App. 3d at 913.

LSA first contends that the challenged ordinances are clearly out of character with the well-establishedpatterns and trends of development and zoning in the area. In making its argument, LSA concentrates on the areaimmediately surrounding the property and the area along Lake Shore Drive. It maintains that the property issurrounded on the north, south, and west by high-rise, high-density uses, and the area along Lake Shore Drive is zonedto create almost a solid block of permitted high-density R8 zoning. According to LSA, notwithstanding this evidence,the circuit court erred by giving considerably more weight to the more distant uses extending many blocks inland fromthe property. Resolution of this issue turns on defining what constitutes the relevant study area or "nearby land".

At trial, LSA's expert in land use and zoning, Kracower, stated that, in his opinion, the relevant study areahaving the "greatest impact" on the property is the immediate block on which the property is situated and the area alongthe lakefront, which he termed the "Lakefront Corridor". According to Kracower, immediately surrounding theproperty is a 22-story building to the north on Banks Street; a 30-story building to the west on Ritchie Court; a 41-story building and 27-story building to the south along Goethe Street; and twelve lanes of traffic on Lake Shore Driveto the east. He further testified that the Lakefront Corridor contains mostly high-rise, multi-family residentialdevelopments. Kracower stated that he did not consider the relevant area to include the area further inland from theproperty because it was "too removed from the site" and inconsistent with the land usage to the east. According toKracower, the property is the only site located within the confines of the R6 zoning district and, therefore, "stands outas an island onto itself".

The intervenors' planning expert, Dyke, testified that, in determining from where the property takes itscharacter, he considered the surrounding land uses of the "neighborhood" instead of confining the relevant area, asKracower did, to the block on which the property is located. According to Dyke, the term "neighborhood" refers toa residential area that has parks, schools, homes, cultural institutions, and commercial facilities. It was Dyke's opinionthat the boundaries of the relevant area with respect to the property are Lake Shore Drive to the east, North Avenueto the north, Dearborn Street to the west, and Division Street to the south. Samuelson, the City's expert in architecturalhistory, testified that the property is located within the Gold Coast neighborhood, which he characterized as containinga mixture of single-family homes and row houses which have a distinctive scale and character.

In resolving this issue, the circuit court expressly considered the conflicting expert testimony given on theboundaries of the relevant study area. It placed significant weight, however, on Kracower's admission that opinionsmay differ as to what constitutes the relevant area. The court refused to confine the relevant area to the immediateblock on which the property is located or the portion of Lake Shore Drive containing predominantly high-rises. Rather,the court concluded that the relevant study area is the surrounding neighborhood in which the property is located,namely, the portion of the Gold Coast neighborhood referred to as the Near North Historic Area (NNHA), as definedby Dyke. In doing so, the court credited Dyke's opinion that the study area encompasses those elements that arenecessary in making a neighborhood, such as schools, parks, residences, and businesses. Having defined the relevantarea as the surrounding neighborhood, the court found that the nearby area is characterized by a mixture of differenttypes of buildings, historic districts, and landmarked properties. Specifically, the court noted that four of the singlefamily residences that comprise the Seven Houses on Lake Shore Drive Historic District are located less than a blocksouth of the property, while the remaining three houses are located further north of the property, and the low-risetownhouses that make up the Astor Street Historic District are located only two blocks west of the property. The courtfurther noted that the NNHA is comprised primarily of R5 residential property, with 75% of the structures in the areabeing protected by Chicago Landmark Ordinances.

With respect to this first factor, LSA further maintains that the circuit court ignored three important considerations; namely: (1) spot zoning; (2) changes to the character of an area as supporting a zoning change; and(3) the existence of nonconforming uses. We will address each argument in turn.

LSA claims that the down-zoning ordinance only affects the property and the practical effect of the heightlimitation ordinances is likewise limited to the property and, therefore, constitute spot zoning. Spot zoning is a changein zoning applied only to a small area which is out of harmony with comprehensive planning for the good of thecommunity and which violates a zoning pattern that is homogeneous, compact, and uniform. Hanna v. City ofChicago, 331 Ill. App. 3d 295, 307, 771 N.E.2d 13 (2002). At trial, Kracower opined that the property is the onlysite located within the confines of the R6 zoning district, which is inconsistent with land use patterns and, therefore,"would resemble something very close to spot zoning." However, both Samuelson and Dyke testified that the zoningchange is consistent with the City's zoning trends since the 1970's. Specifically, Samuelson testified that, after a periodof high-rise construction in the 1950's, the City began efforts to preserve the history of the area by landmarking suchareas as the Astor Street Historic District and the Seven Houses on Lake Shore Drive Historic District, andlandmarking individual buildings. Both he and Dyke stated that, in the 1970's, the City began down-zoning the areato protect the character of the neighborhood. Further, the height limitation ordinances were imposed, not only on theproperty, but on any new construction located in the R5, R6, R7, and R8 districts, with specific height limitationsdefined for each district. Although the circuit court did not explicitly discuss the spot zoning challenge in its writtenmemorandum opinion, the court heard Kracower's opinion in this regard and, by resolving this factor in favor of theCity and the intervenors, implicitly rejected LSA's argument as to spot zoning.

LSA next argues that there has been no change in the character of the area which would support a zoningchange. We reject this argument for the same reason we rejected LSA's last argument. Although Kracower testifiedthat there has been no significant change in land use patterns in the area since 1975, the City and the intervenorspresented expert testimony to the contrary. As stated in our prior discussion, Samuelson and Dyke both testified thatthere was a trend toward historic preservation and down-zoning since the late 1970's. Further, Dyke stated that hedisagreed with Kracower's opinion that there were no changes in the neighborhood on the basis that Kracowerconcentrated only on the area in the immediate vicinity of the property instead of looking at the neighborhood as awhole. Conflicts relating to the credibility of witnesses and the weight to be accorded their testimony are matters whichthe trier of fact is in a superior position to resolve. Firstbank Co. v. City of Springfield, 253 Ill. App. 3d 844, 849,625 N.E.2d 804 (1993). Accordingly, the circuit court's election in this instance to find the opinions given by theexperts of the City and the intervenors to be more credible is not a matter that we will disturb on appeal.

Finally, LSA agues that the substantial number of nonconforming structures that resulted from the heightlimitation ordinances weighs in favor of LSA on this first factor. While the mere presence of non-conforming usesin an area zoned for a particular purpose does not automatically invalidate a zoning ordinance (LaSalle National Bankv. City of Park Ridge, 74 Ill. App. 3d 647, 660, 393 N.E.2d 623 (1979)), the existence of such nonconformity shouldbe considered in evaluating the total character of the area in question (Harvard State Bank v. County of McHenry, 251Ill. App. 3d 84, 86, 620 N.E.2d 1360 (1993)). In the instant case, the circuit court was also presented with thetestimony of LSA's expert in zoning and land use planning, Kisiel, who stated that the height limitation ordinancesmake a number of existing structures in the NNHA II non-conforming to the height requirements. Although the courtdid not specifically discuss the nonconforming uses in its written order, the court apparently gave it minimal weightin resolving this factor in favor of the City and the intervenors. As the existence of nonconforming structures is justone of the many considerations a court must consider in evaluating the total character of the area, we do not find thatthe court erred in giving minimal weight to the nonconforming uses. See Zeitz v. Village of Glenview, 304 Ill. App.3d 586, 596, 710 N.E.2d 849 (1999) (court did not err in giving minimal weight to nonconforming uses in evaluatingthe total character of the area in question).

For the foregoing reasons, we believe that the circuit court's finding that the property derives its character fromthe mixture of buildings, historical districts and landmarked properties, and the history of the neighborhood, as definedby the witnesses testifying for the intervenors and the City, is sufficiently supported by the record. Accordingly, weconclude that its determination on the first factor is not against the manifest weight of the evidence.

The next factor for consideration is the extent to which property values are diminished by the particular zoningrestrictions. LSA contends that it presented the testimony of DeClark, its expert real estate appraiser, who stated thatthe loss in value from the challenged ordinances is in the range of $6.7 and $9.8 million, whereas the City andintervenors failed to present any testimony to the contrary.

The fact that property would be worth more if an ordinance restriction was not imposed is not determinativein deciding the validity of a zoning ordinance because, in almost all rezoning cases, the subject property would beworth more if the restriction was not imposed. Glenview State Bank v. Village of Deerfield, 213 Ill. App. 3d 747,761, 572 N.E.2d 399 (1991); State Bank of Countryside v. City of Chicago, 287 Ill. App. 3d 904, 915, 679 N.E.2d435 (1997). Accordingly, this second factor is usually not considered persuasive. Northern Trust Bank/Lake Forest,311 Ill. App. 3d 332, 339, 723 N.E.2d 1269 (2000). As our supreme court stated in La Grange State Bank v. CookCounty, 75 Ill. 2d 301, 309, 388 N.E.2d 388 (1979): "It is not the mere loss in value which is significant. Rather,the loss in value to the plaintiff must be considered in relation to the public welfare. Only where the public welfaredoes not require the restriction and resulting loss does the loss in value become significant."

The circuit court specifically noted that, although the City and the intervenors failed to call an expert to testifyas to the reduction in value, "it would be wholly counterintuitive to think that the value of the Property would not bereduced in these circumstances." The court went on to state that, "while the percentage of reduction is great and thenumber which that percentage represents is also great, the remaining value is also huge and represents an appreciationof at least $3.9 million from the time of purchase." Although it is true, as LSA suggests, that the confiscatory effectof zoning is not determined by the amount originally paid for the piece of property, but rather, is evidenced by thedifference between the fair cash market value of the property as zoned with what that value would be if the propertywere put to the proposed use (see DeMarie v. City of Lake Forest, 93 Ill. App. 3d 357, 363, 417 N.E.2d 641 (1981)),it is also well-settled that proof of a large difference in value is insufficient by itself to overcome the presumption ofvalidity of a zoning ordinance. See Oliver Construction Co., Inc. v. Village of Villa Park, 257 Ill. App. 3d 750, 754-55, 629 N.E.2d 199 (1994) (change in value from $10,000 with existing zoning to $125,000 to $320,000 with priorzoning); State Bank of Countryside, 287 Ill. App. 3d at 914-15 (change in value from $250,000 to $750,000);Wakeland, 333 Ill. App. 3d at 1138 (change in value from $68,000 to $320,000); Northern Trust Bank/Lake Forest,311 Ill. App. 3d at 339 (change in value "millions of dollars").

The third and fourth LaSalle/Sinclair factors are frequently considered together. St. Lucas Ass'n v. City ofChicago, 212 Ill. App. 3d 817, 827, 571 N.E.2d 865 (1991); State Bank of Countryside, 287 Ill. App. 3d at 915. These factors require a court to consider the hardship the restriction imposes on an owner in light of the extent to whichthe existing zoning promotes the general health, safety, and welfare of the public. St. Lucas Ass'n, 212 Ill. App. 3dat 827. Only by comparing these two factors can a court determine whether the relative gain to the public outweighsany hardship imposed on the owner. Michalek v. Village of Midlothian, 116 Ill. App. 3d 1021, 1036, 452 N.E.2d655 (1983). It is well-established that preserving historic and architecturally significant areas is beneficial to thepublic. Grobman v. City of Des Plaines, 59 Ill. 2d 588, 595, 322 N.E.2d 443 (1975) (preserving aesthetics of areacan justify zoning restrictions); see also LaSalle National Bank v. City of Evanston, 57 Ill. 2d 415, 432, 312 N.E.2d625 (1974); City of Champaign v. Kroger Co., 88 Ill. App. 3d 498, 419 N.E.2d 661 (1980) (same). However, theless substantial the relationship of the zoning to the public health, safety, comfort, morals and welfare, the more likelythe zoning is invalid and the more significance the diminution in value is given as one of the criteria of invalidity. OakPark Trust and Savings Bank v. Village of Palos Park, 106 Ill. App. 3d 394, 404-05, 435 N.E.2d 1265 (1982). Again, the burden was on LSA to prove by clear and convincing evidence that the challenged ordinances "bear[] noreasonable relation to the public health, safety or general welfare". Tim Thompson, Inc. v. Village of Hinsdale, 247Ill. App. 3d 863, 617 N.E.2d 1227 (1993).

LSA maintains that there was uncontested evidence of the benefits that would result from its proposeddevelopment, and the circuit court noted that the added population density, traffic, wind, and shadows as a result ofits proposed building "would not outweigh the loss to the owner". LSA argues that, notwithstanding, the court basedits ruling on "vague notions of personal taste" and incorrect assumptions about the challenged ordinances byconcluding that the public health, safety, and welfare are promoted by "preserving vistas, furthering and enhancing thehistoric preservation accomplishments, responding to the goals of the community, promoting the aesthetic quality ofthe neighborhood, and preserving the character and architectural fabric of the Near North Historic Area." Accordingto LSA, the circuit court's finding was against the manifest weight of the evidence as lakefront views are not protectedby zoning law absent a view corridor easement, there is nothing historic on the property that requires preservation, andthe challenged ordinances do not remotely affect the "character" or architectural style of any new development.

At trial, Kracower opined that the development of a high-rise building on the property in conformity with theprior zoning designation would provide employment opportunities in terms of the construction, maintenance, andoperation of such a building; provide more diverse housing options for the community as a whole; generate greater realestate tax revenues to the City; and cause more secondary income expenditures as a result of its proximity to MichiganAvenue. Okrent, LSA's expert in zoning and land use planning, opined that the down-zoning ordinance produces nodiscernible public benefit and diminishes the value of an extremely limited resource; namely, the last undevelopedproperty on Lake Shore Drive. With respect to the height limitation ordinances, Kisiel, another expert in zoning andland use planning, opined that, applying a height limitation to the property does not advance the purposes of theordinances because, inter alia, the property is not located within the boundaries of the Gold Coast Historic Districtand a height limitation would not protect the architectural character of a building in an area where 75% of the buildingsare already landmarked. Kracower similarly opined that the height-limitation ordinances do not provide any historicpreservation benefit, as there are no historic structures surrounding the property.

The City's expert, Samuelson, however, opined that the down-zoning ordinance encourages the protection ofolder buildings by decreasing the incentive to demolish historic buildings and replace them with high-rise buildings. He further opined that the height-limitation ordinances advance the goal of historic preservation by ensuring that anynew development will be at a scale that is in harmony with the historic fabric of the neighborhood. It was Samuelson'sopinion that constructing a high-rise building on the property would create a "wall" along the lakefront, which wouldtake away from the original character of the neighborhood. Smith, the City's expert in urban planning and zoning, wasof the opinion that the height-limitation ordinances serve the public good because they provide consistency andpredictability with respect to how to develop the community. Finally, Hunter, an expert in architecture and one of theintervenors in the case, stated that there is currently a balance of low-rise and high-rise buildings in the neighborhood,but, in his opinion, one more high-rise building would "tip the scale" to where the quality of life in the neighborhoodwould be greatly reduced. Hunter further testified that LSA's proposed high-rise building would close off vistas bothinto and out of the neighborhood.

The circuit court concluded that the loss of character of the neighborhood outweighs any loss to LSA. In sofinding, the court was again charged with resolving the conflicting opinions given by the experts. The court expresslycredited the expert testimony presented by the City and the intervenors with respect to the significance of maintainingthe character of the neighborhood. See Michalek, 116 Ill. App. 3d at 1034 (where opinions may differ with regardto the reasonableness of the existing zoning classifications, the legislative judgment becomes conclusive). Further,in considering the public benefit derived from enhancing the historic preservation of the area, the court did not considerthe property in isolation, but rather, as part of a larger neighborhood. With respect to maintaining the character of theneighborhood, it is true, as LSA suggests, that the challenged ordinances do not dictate architectural style; however,as Samuelson opined, they do define the scale of conforming structures. This is especially important in a neighborhoodthat contains a mixture of both low-rise and high rise buildings, townhouses, and historic buildings. See Wakeland,333 Ill. App. 3d at 1141 ("We are aware of no case holding that a city must designate houses on a street as historicallandmarks before passing a zoning ordinance protecting the historical appearance or ambiance of the street"). Becauseit is the circuit court's function to determine the credibility of witnesses and the weight to be accorded their testimony,we will not disturb its decision in this instance to credit the expert testimony presented by the City and the intervenorsin support of these factors. It is also for this reason that we reject LSA's reliance on Harris Trust & Savings Bank v.Duggan, 105 Ill. App. 3d 839, 435 N.E.2d 130 (1982), aff'd Harris Trust & Savings Bank v. Duggan, 95 Ill. 2d 516,449 N.E.2d 69 (1983), a case in which the invalidity of a down-zoning ordinance was upheld on review based on thedeference given to the circuit court's resolution of conflicts in expert testimony and the weight to be given theiropinions.

For the foregoing reasons, we conclude that the circuit court's findings that, the challenged ordinances promotethe health, safety, or general welfare of the public, and the burden imposed on LSA does not outweigh the gain to thepublic, are not against the manifest weight of the evidence.

We must next consider the suitability of the property for the zoned purpose. The focus of our examinationof this factor is on whether the property is suitable for the proposed use, and not the suitability of its use under the priorzoning. Homeowners Organized To Protect The Environment, Inc. v. First National Bank of Barrington, 167 Ill. App.3d 714, 729, 521 N.E.2d 1202 (1988). LSA contends that it established through expert testimony that the propertyis more suitable for high-rise development than low-rise development

At trial, Kracower, Buenz, and DeClarke opined that the property is suitable for high-rise developmentbecause of its proximity to Lake Shore Drive and Lake Michigan, its rectangular shape and its proximity to other high-rise development. Hunter, however, testified that he had designed an eight-story building that would be a suitable usefor the property. The intervenors' expert in real estate investments, Halperin, opined that Hunter's proposed buildingcould be developed in an economically feasible manner. In rebuttal, LSA offered Kisiel's opinion that Hunter's designdoes not comply with the Chicago Zoning Ordinance because it lacks a 30-foot setback. The circuit court expresslyconsidered the testimony of LSA's experts as to the suitability of a high-rise building on the property, along withHunter's testimony about his proposal for a low-rise development. The could further considered LSA's claim thatHunter's proposal does not comply with the relevant ordinance, but stated that "these minor concerns do not detractfrom the fact that the property is suitable for the development as presently zoned." Again, it is the function of thecircuit court to make credibility determinations and decide the weight to be given the evidence. Moreover, the courtnoted that there is a low-rise development which is similar in concept located at 65 East Goethe Street, a mere twoblocks from the property. We believe there was sufficient evidence in the record to support the circuit court'sconclusion that the property is suitable for development under its current zoning. See Zeitz, 304 Ill. App. 3d at 597;Wakeland, 333 Ill. App. 3d at 1144.

The sixth LaSalle/Sinclair factor requires us to consider the length of time the property has been vacant. "Forthe fact of vacancy to be significant there must be proof that improper zoning caused the vacancy, not that the propertyremained vacant merely because no one attempted to develop it or because of some other reason not zoning related." Bossman v. Village of Riverton, 291 Ill. App. 3d 769, 684 N.E.2d 427 (1997).

LSA contends that this factor is usually considered in a zoning case where a landowner who is denied a zoningchange claims the existing ordinance is unconstitutional because it leaves the owner with no ability to develop theproperty. See St. Lucas Ass'n, 212 Ill. App. 3d at 832. LSA maintains that, because this case concerns a challengeto down-zoning, and not the pre-existing zoning, this factor is, therefore, "of little relevance." We note, however, thatthe court considered this factor in Wakeland, a case which also involved down-zoning. Wakeland, 333 Ill. App. 3dat 1144; see also Zeitz, 304 Ill. App. 3d at 597. Here, the evidence is uncontroverted that LSA has chosen to use theproperty as a parking lot since purchasing it in 1952, and continues to derive economic benefit from using it in thismanner. It is also clear that LSA has not elected to pursue development until the last few years, even though the RPD196 zoning permitted LSA's desired development for nearly twenty years. Under these facts, we conclude that thecircuit court's finding that LSA failed to prove that the vacancy of the property is related to the challenged ordinancesis not against the manifest weight of the evidence.

The seventh LaSalle/Sinclair factor is the community need for the proposed use. LSA contends that the onlyexpert to testify as to this factor was Stunard, an expert in real estate marketing, who stated that there is a need for ahigh-rise residential development on the property. The circuit court, however, noted that Stunard also conceded thatthere is a need and demand for a development of any height, including an eight-story building. With respect to thisfactor, the court further credited Samuelson's opinion that a 400-foot high-rise building on the property would bedetrimental to the neighborhood. In light of Stunard's opinion that there is a need and demand for a building of anyheight on the property and Samuelson' opinion as to the impact of another high-rise building on the neighborhood, thecourt found that LSA did not satisfy its burden of proving that there exists a need for a high-rise building on theproperty. Again, the circuit court is charged with making credibility determinations and deciding the weight to begiven the evidence. As a consequence, we cannot say its decision in giving little weight to Stunard's opinion as to theseventh LaSalle/Sinclair factor is against the manifest weight of the evidence. The final LaSalle/Sinclair factor we must consider is the care with which the community has undertaken toplan its land use development. LSA contends that the City's lack of an official comprehensive plan substantiallyweakened the presumption of validity of the challenged ordinances.

The adoption of a comprehensive plan "that incorporates valid zoning goals increases the likelihood that thezoning of a particular parcel in conformity therewith is not arbitrary or unrelated to the public interest." Northern TrustBank/Lake Forest, N.A. v. County of Lake, 311 Ill. App. 3d 332, 340, 723 N.E.2d 1269 (2000). It is true, as LSAasserts, that the presumption of validity of an ordinance is substantially weakened where the municipality lacks acomprehensive plan. Forestview Homeowners Ass'n, Inc. v. County of Cook, 18 Ill. App. 3d 230, 240, 309 N.E.2d763 (1974); Rodriguez v. Henderson, 217 Ill. App. 3d 1024, 1034, 578 N.E.2d 57 (1991). However, acomprehensive plan is only a factor to be considered in determining the validity of an ordinance (see ForestviewHomeowners Ass'n, Inc., 18 Ill. App. 3d at 240), and is not itself dispositive (see Rodriguez, 217 Ill. App. 3d at1034). As stated in First National Bank of Highland Park v. Village of Vernon Hills, 55 Ill. App. 3d 985, 990, 371N.E.2d 659 (1977), "the truly important consideration in this regard is whether the community in question has givencare and consideration to the use and development of the land within its boundaries." See also Bossman v. Villageof Riverton, 291 Ill. App. 3d 769, 775. 684 N.E.2d 427 (1997); Michalek, 116 Ill. App. 3d at 1038 (despite absenceof formal comprehensive plan, court considered other elements of municipal planning, such as village's official map,specifications for street construction and paving, zoning ordinances, and subdivision control ordinances).

Although the Lakefront Plan of Chicago appears to be the sole officially adopted document that directlyaddresses the development of high-rise structures on Lake Shore Drive, the circuit court noted that the City effectuatesits planning by utilizing a number of other resources. First, the court found credible the testimony of the City's expert,Smith, who testified that the City's lack of a comprehensive plan does not mean that the City does not do any planning. According to Smith, the City does strategic planning, focusing on particular issues and adopting policies to addressthem. The intervenors' expert, Dyke, similarly testified that the City has taken great care in planning. Among otherdocuments, Dyke discussed the Burnham & Bennett plan published in 1909, the 1972 Lakefront Plan of Chicago, the1973 Lakefront Protection Ordinance, the 1995 Lincoln Park Framework Plan, and a 1987 document entitled "High-Rise High Density". Dyke stated that the City undertakes many planning studies which are periodically used by theCity staff, most of which are not adopted officially. We believe that there is sufficient evidence to support the circuitcourt's finding that the City performs land use planning even though it is not officially adopted into a single document.

With respect to the height limitation ordinances, LSA argues that there was no testimony as to the justificationbehind the ordinance imposing the 125-foot height limitation. As to the ordinance imposing the 90-foot heightlimitation, LSA maintains that there was no written analysis, narrative or planning document that explained how theCity decided on the ultimate height limits for the R6, R7, and R8 districts. Smith, however, testified in detail abouthow the height limitations were selected and his involvement in the process. He stated that he evaluated, critiqued,and suggested improvements to both height limitation ordinances. As to the ordinance imposing the 125-foot heightlimitation, Smith testified that, although the Department of Planning did not generate a written analysis to explain theevolution of the initial125-foot height limitation ordinance to the amended version, the ordinance was critiqued andthis information was conveyed to the alderman. Smith further stated that he did not approve of the 125-foot heightlimitation ordinance because it applied the same height limit to every property without regard to the underlying zoning. With respect to the ordinance imposing the 90-foot height limitation, Smith testified that the Department of Planningfirst gathered information about the building heights in the NNHA with the aide of "Sanborn" maps which providemeasurements of certain buildings and the use of a "Disto", a piece of laser equipment that measures building heights. According to Smith, after gathering the measurements, he participated in several meetings with the ZoningAdministrator and experts in the area to arrive at a logical approach to selecting the height limitations to ensure thatthey were appropriate for the permissible bulk of buildings in each zoning classification. Smith testified that the heightlimitation of 45 feet was selected for the R5 district because most of the buildings located within that district were ofthat height. He stated, however, that the same methodology was not used to select the other height limits because thegoal was to create a logical progression from the height limitation assigned to the R5 district. According to Smith,lot sizes, floor plates, and floor area ratios were used to determine how to allocate floor space in the remaining districtsin a manner that would reflect the horizontal and vertical bulk of the buildings. The court found Smith's testimony tobe credible in establishing that the City's choice of height limitations for the underling zoning classifications was notarbitrary or irrational. As the circuit court is charged with assessing the credibility of witnesses, we will not disturbits credibility finding in this regard. Therefore, we conclude that the circuit court's finding that the City takes effortsin planning its land use, despite its lack of an official comprehensive plan, is not against the manifest weight of theevidence.

For the foregoing reasons, we find that the record supports the circuit court's conclusion that LSA failed toprove by clear and convincing evidence that the challenged ordinances as applied to the property are arbitrary,unreasonable, and bear no substantial relation to the public health, safety or welfare. Accordingly, we conclude thatthe court's finding that the challenged ordinances are constitutionally valid as applied to the property is not against themanifest weight of the evidence, and we affirm the judgment entered on count III of LSA's fourth-amended complaint.

Affirmed.

SOUTH and KARNEZIS, JJ., concur.

1. The record before us does not contain a copy of LSA's first or subsequent amended complaints; only itsfourth-amended complaint is included in the record on appeal.