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First Division

JUSTICE TULLY delivered the opinion of the court:

Plaintiffs, Norman M. Zeitz, Helen Zeitz, Norman D. Zeitz, Richard M. Zeitz and Lakewoods Development Corporation, brought an action seeking declaratory and injunctive relief from zoning ordinances enacted by defendant, Village of Glenview. The remaining defendants were neighboring property owners who were the beneficiaries of restrictive covenants which limited development on the Zeitzes' property. Plaintiffs sought to have Glenview's re-zoning of 10 acres of land declared invalid, and alleged damages for inverse condemnation and improper taking of the Zeitzes' property. After the trial court dismissed plaintiffs' action, we remanded the case for trial in Zeitz v. Village of Glenview, 227 Ill. App. 3d 891, 592 N.E.2d 384 (1992) (Zeitz I). Following a bench trial, the trial court entered judgment in favor of defendants. Plaintiffs appeal the judgment, and this court has jurisdiction pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons that follow, we affirm.

Plaintiffs presented a development plan to Glenview to build 10 homes on the 10-acre property. Glenview later rezoned the property to limit the number of homes allowed on the property to five. Zeitz I set forth the facts in this case before we remanded it for trial and we need not repeat them here. We will address the additional facts which are relevant to this appeal. The following evidence was presented at trial.

I. Plaintiffs' Evidence

Norman M. Zeitz bought the property in separate parts between 1961 and 1966. Since then, he had received several offers to buy the property, one of which was for $1.6 million. Zeitz rejected that offer. In 1989, Lakewoods paid him $25,000 for an option contract to buy the property. After signing the option contract, Zeitz paid $4,000 for the preparation of an environmental plan for the property. The option was extended 10 times.

Steven Balek, an attorney, licensed real estate broker and one of the Lakewoods principals, negotiated the option agreement with Norman M. Zeitz. When Balek signed the option agreement, he knew about the Illinois Supreme Court doctrine which stated that there is no vested right in the continuation of a zoning ordinance. Before signing the agreement, he reviewed Glenview's ordinances and zoning map, and was aware that the Zeitzes' property was entirely within the environmentally sensitive area (ESA) and partially within the primary area (PA). Balek met with Glenview officials after signing the option agreement. He knew that the Village Board of Trustees would ultimately decide whether any subdivision plan Lakewoods submitted would be approved. Balek also knew that any subdivision plan would have to be submitted to the Village Plan Commission (Commission) before going to the Board. Lakewoods presented its plan to the Commission. Balek attended the hearings on the ordinance which placed a moratorium on subdivision applications and approvals. He knew that the Zeitzes' property would be covered by the moratorium, and that Glenview was considering whether to re-zone the property to the R-E classification. Before the moratorium ordinance was passed, Lakewoods spent over $9,000 on its proposed development.

James Pieczonka, a lawyer and real estate broker, and Balek optioned the Zeitzes' property on Lakewoods' behalf, based on the fact that it was zoned R-1 (one-acre minimum lot size). In 1993, under the fourth extension of the option agreement, Lakewoods had the option to buy the property for $1.923 million. At the same time, Pieczonka's real estate company listed the property for sale under the R-E (two-acre minimum lot size) zoning classification for $1.8 million. Lakewoods was not obligated to buy the property under the option agreement.

Thompson Dyke, a private planning consultant and landscape architect, testified that it was not significant that the ESA ordinance did not have a legal description of the ESA. The map of the ESA, attached to the ordinance, provided adequate notice of the area covered by the ESA. In addition, the fact that the PA covered part of the Zeitzes' property was "like a red flag," giving notice to anyone planning a development on the property. The Grove's⁽¹⁾ location near the property was also a warning sign that extra care and environmental sensitivity were required in preparing a development plan.

According to Theodore Kowalski, a real estate appraiser, the value of the Zeitzes' property, if developed with 10 lots under the R-1 zoning, was $1.9 million. If zoned R-E, with a minimum lot size of two acres, the value was $1.2 million.

II. Defendants' Evidence

Jacques Gourguechon, an urban planner and landscape architect, testified that the "overall sphere of influence" on the property was the ESA, and that the Grove and open space controlled by the Glenview park district were the predominant land uses in the ESA. Gourguechon described the ESA as an "overlay zone," which is a set of regulations overlaid on the basic zoning classification, such as R-1 or R-E, to cover specific unique attributes of the area. According to Gourguechon, Glenview implemented a sophisticated and comprehensive land management system to protect the Grove from high levels of urban development. In his opinion, plaintiffs' 10-lot 10-home development would have had a detrimental impact on the area.

Thomas Slowinski, an environmental scientist, conducted a wetlands delineation for the Zeitzes' property. He concluded that there were three wetland areas covering 1.61 acres on the 10-acre property. Plaintiff's proposed development would have harmed the wetlands due to filling and grading the land, constructing roads, and changing their natural hydrology. In addition, Slowinski testified that plaintiffs' proposed development would have been subject to the Army Corps of Engineers' jurisdiction, and it would not have met the criteria for an Army Corps of Engineers permit.

Mary Bak, the Director of Development for Glenview, testified that the village did not promise Lakewoods approval of its 10-home development plan. Glenview requested more information on the development plan at their plan commission meeting, but did not vote on the plan. The Village Board approved the moratorium approximately six weeks later.

Defendants also presented several witnesses who testified that the 10-lot 10-home plan was detrimental to the property. In addition, they testified that the "highest and best use" for the property was for one-home per each two-acre lot.

III. Trial Court's Findings of Fact, Memorandum of Law and Order

The trial court heard the testimony, made its credibility determinations, and set forth the following findings of fact and conclusions of law. The Zeitzes' property was densely forested, vacant and zoned R-E for two-acre minimum lot sizes. Since about 1989, the Glenview zoning map showed that the entire property was included in an ESA, and that some of it was within a PA, which indicated increased environmental sensitivity. The ESA was an "overlay zoning classification" which applied development restrictions in addition to those imposed by the underlying zoning classifications. The court found the testimony of defendants' experts about the value of the property to be credible, and found that plaintiffs suffered "no significant diminution in property values as a result of rezoning of the property from the R-1 to the R-E zoning classification." Moreover, the court found that plaintiffs were not deprived of an economically viable use of the property.

Before it signed the option agreement to buy the Zeitzes' property, Lakewoods knew that the property was within the ESA and partially within the PA. Even though the ESA ordinance did not contain a legal description of its boundaries, Glenview's zoning map and the map attached to the ordinance gave plaintiffs adequate notice of the ESA's relation to the property. Therefore, "neither Lakewoods nor Zeitz had a good reason to believe that there was a probability that the proposed [10-]lot subdivision would be approved." Lakewoods knew that it had no vested right to a continuation of existing zonings and the [Glenview] officials did not give any assurance to Lakewoods that its proposed subdivision would be approved.

In addition, the court found that the Grove was "a public resource of great ecological, historical and cultural significance and would be adversely impacted by plaintiffs' proposed subdivision." In particular, the proposed subdivision would harm the wetlands on and off the Zeitzes' property. The court found defendants' experts on the issue to be credible. Although there were other developments on the fringes of the ESA, they were consistent with Glenview's efforts to protect the Grove. Those developments were on property which was formerly agricultural or on main thoroughfares, and they mostly predated the ESA ordinance.

The court also found that even under the R-1 zoning classification, the Zeitzes' property was not large enough for 10 1-acre lots, unless the area of Portage Run Road was included within the lots. Glenview had never before allowed such an inclusion to meet minimum lot sizes, and plaintiffs' subdivision plan was not reasonable. Again, the court found defendants' experts on the issue to be credible.

In its memorandum of law, the trial court applied the factors for reviewing a zoning ordinance set forth in LaSalle National Bank v. County of Cook, 12 Ill. 2d 40, 145 N.E.2d 65 (1957) and Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370, 167 N.E.2d 406 (1960). The court concluded that plaintiffs did not show by clear and convincing evidence that Glenview's two-acre zoning classification of the Zeitzes' property was arbitrary and capricious. In addition, the court rejected plaintiffs' estoppel claim, noting the general rule that there is no vested right in the continuation of a zoning ordinance. The court also pointed out that Lakewoods' officers admitted that before they acquired the option to buy the Zeitzes' property, they knew that the ESA and PA existed and affected the property. Finally, the court rejected plaintiffs' claim of an unconstitutional taking. There was no evidence in the record that Glenview's six-month moratorium was defective and there was no proof that the re-zoning deprived plaintiffs of viable economic uses for the property.

The relevant issues on appeal are whether (1) Glenview's ESA applied to the Zeitzes' property; (2) plaintiffs had a vested right to proceed under the R-1 zoning classification and whether Glenview was estopped from applying the R-E zoning classification to the Zeitzes' property; (3) the R-E zoning ordinance was valid; and (4) there was an unconstitutional taking or inverse condemnation of the Zeitzes' property.

The issues on appeal present us with mixed questions of fact and law. We will not disturb the trial court's factual findings unless they were against the manifest weight of the evidence. See Pioneer Trust & Savings Bank, 71 Ill. 2d 510, 377 N.E.2d 21 (1978). Furthermore, credibility determinations are the province of the trial court. Harris Bank of Hinsdale v. County of Kendall, 253 Ill. App. 3d 708, 625 N.E.2d 845 (1993). In reviewing the trial court's conclusions of law, we apply the de novo standard of review. State Farm Insurance Co. v. Kazakova, No. 1-97-0125, slip op. at 2 (Ill. App. October 14, 1998). "Therefore, where a mixed question of fact and law is presented, the applicable standard of review should be 'between a manifest weight of the evidence standard and a de novo standard so as to provide some deference'" to the trial court. Chicago Transit Authority v. Amalgamated Transit Union, Local 241, 299 Ill. App. 3d 934, 941, 702 N.E.2d 284, 289 (1998). "Our supreme court has held that for such a mixed question of fact and law a clearly erroneous standard of review is appropriate." Chicago Transit Authority, 299 Ill. App. 3d at 941, 702 N.E.2d at 289, citing City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 692 N.E.2d 295 (1998).

"[T]he Illinois Constitution authorizes home rule units of government to adopt and enforce zoning ordinances." Village of Tinley Park v. Ray, 299 Ill. App. 3d 177, 178, 700 N.E.2d 705, 706 (1998). Glenview is a home rule unit. Village of Glenview v. Ramaker, 282 Ill. App. 3d 368, 668 N.E.2d 106 (1996). Article VII, section 6(a) of the Illinois Constitution of 1970 provides:

"Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare." Ill. Const. 1970, art. VII,