That is, a variance will not be struck down unless it is found to be arbitrary, unreasonable, and bearing no substantial relation to the public health, safety, morals, comfort, or general welfare. Kleidon v. City of Hickory Hills, 120 Ill. App. 3d 1043, 1053, 458 N.E.2d 931, 940 (1983); Lapp, 359 Ill. App. 3d at 170, 833 N.E.2d at 998, citing La Salle, 12 Ill. 2d at 46, 145 N.E.2d at 68. Accordingly, a legislative body passing on a variance or other zoning ordinance is not strictly required to conform to its own standards as long as it meets this reasonableness test.
A legislative enactment also carries a presumption of validity that cannot be overcome unless a plaintiff establishes by clear and convincing evidence that it is arbitrary, unreasonable and without substantial relation to the public health, safety, morals, comfort or general welfare. LaSalle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40, 46 (1957); Kleidon v. City of Hickory Hills, 120 Ill. App. 3d 1043, 1047 (1983). There are eight factors that may be considered when determining if the party challenging a legislative enactment has met the applicable burden.
1982); Taylor v. City of Little Rock, 266 Ark. 384, 583 S.W.2d 72 1979. We find to be particularly persuasive the case of Kleidon v. City of Hickory Hills, 120 Ill. App.3d 1043, 76 Ill.Dec. 277, 458 N.E.2d 931 (1984). In Kleidon, the City of Hickory Hills adopted a variation ordinance.
¶ 80 Turning to consideration of the factors, we must bear in mind that the trial court is in a superior position to assess the credibility of witnesses and to determine the weight to be accorded the evidence, and we will not disturb the trial court's findings unless they are against the manifest weight of the evidence. Kleidon v. City of Hickory Hills , 120 Ill. App. 3d 1043, 1053, 76 Ill.Dec. 277, 458 N.E.2d 931 (1983). Additionally, "[w]here testimony is contradictory and it appears that there is only a fair difference of opinion as to the reasonableness of a zoning classification, the legislative judgment will prevail."
The enactment of an ordinance is a legislative act. See Kleidon v. City of Hickory Hills, 120 Ill. App. 3d 1043, 1046 (1983). So, too, is the refusal of a legislative agency, whether a municipality or a county, to amend its ordinances.
Matters relating to the credibility of witnesses or the weight to be accorded the evidence are within the province of the circuit court to decide. Kleidon v. City of Hickory Hills, 120 Ill.App.3d 1043, 1053, 76 Ill.Dec. 277, 458 N.E.2d 931 (1983). We first turn the to the circuit court's finding as to the date on which LSA knew or should have known that it was probable that Bernardini would introduce a down-zoning ordinance.
They contend that West Dundee did not publish proper notice of the public hearing and did not mail notice of the public hearing to all persons residing within 250 feet of the subject property as required by ordinance. West Dundee responds that, under Kleidon v. City of Hickory Hills, 120 Ill. App.3d 1043, 1048-49 (1983), plaintiffs cannot raise any defects in the notice of public hearing because they had actual notice of the hearing, did not object to the notice at the hearing, and did not suffer any prejudice from the allegedly defective notice. The record reveals that both plaintiffs attended and participated in the public hearing.
Zoning is primarily a legislative function ( Cosmopolitan National Bank v. County of Cook, 103 Ill.2d 302, 313, 469 N.E.2d 183 (1984)), and therefore it is subject to court review only for the purpose of determining whether the exercise of zoning powers involves an undue invasion of private constitutional rights without a reasonable justification with respect to the public welfare. Kleidon v. City of Hickory Hills, 120 Ill. App.3d 1043, 1046, 458 N.E.2d 931 (1983). A zoning ordinance is presumed valid, and a party challenging its validity must show by clear and convincing evidence that the application of the ordinance is arbitrary and unreasonable and bears no substantial relation to public health, safety, or welfare. Racich v. County of Boone, 254 Ill. App.3d 311, 314, 625 N.E.2d 1095 (1993); see also La Salle National Bank v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65 (1957).
However, this court should consider the suitability of the property for the purposes permitted by the new zoning rather than for its previous zoning. (See Kleidon v. City of Hickory Hills (1983), 120 Ill. App.3d 1043, 1055, 458 N.E.2d 931, 941.) This property is currently bordered by two major thoroughfares, and will be bordered by three when Iles Avenue is completed, as well as being near other commercial developments.
Zoning is a legislative function. A zoning ordinance is presumed valid and the party challenging the ordinance must show by clear and convincing evidence that the ordinance, as applied, is arbitrary, unreasonable and bears no relation to the public health, safety or welfare. ( Kleidon v. City of Hickory Hills (1983), 120 Ill. App.3d 1043, 1053, 458 N.E.2d 931.) In order to be entitled to a variance, an applicant must satisfy all of the requirements stated in the ordinance.