APPEAL from the Superior Court of Cook County; the Hon. U.S.
SCHWARTZ, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
This is an appeal by the plaintiffs, Arthur T. Galt and Ida Cook Galt, his wife, from a decree of the superior court of Cook County sustaining the validity of the Cook County zoning ordinance to the extent it classifies part of a certain tract of land owned by plaintiffs in a residential district. The defendant, the county of Cook, prosecutes a cross appeal from the remaining part of the decree invalidating and enjoining the enforcement of a special building-line restriction in its application to all of the same tract of land. The trial judge has certified that the validity of a municipal ordinance is involved and that the public interest requires an appeal to this court.
The property in question is approximately one-half mile long and 275 feet deep and adjoins the south side of North Avenue between First Avenue and Ninth Avenue in the unincorporated area of the county. It is intersected by only one public road, Fifth Avenue. By the Cook County zoning ordinance adopted August 20, 1940, except for both corners at Fifth Avenue, which are zoned in a B-2 (business-tavern and amusement) district, all of plaintiffs' land between First and Fifth avenues is zoned in an I-1 (industry-light) district, and the land from Fifth Avenue west to Ninth Avenue is zoned in an R-4 (residential-10,000 square feet) district. Only single-family residences on building lots at least 10,000 square feet in area and having a minimum average width of 65 feet are permitted in an R-4 district. North Avenue, in the vicinity of plaintiffs' property, is a heavily traveled four-lane State-bond-issue and section line road having a right of way 66 feet wide. Instead of a setback of 80 feet from the center line of the highway, of general application to lands adjoining Federal-aid, State-aid, State-bond-issue and section line roads, plaintiffs' land is burdened with a special building line 130 feet from the established center line of North Avenue. Plaintiffs have challenged both the residential classification of part of their land and the special building line applicable to all their property as being arbitrary, unreasonable and confiscatory, and, hence, unconstitutional and void. The defendant county denied that the restrictions attacked are unreasonable in their application to plaintiffs' property.
The cause was heard before the chancellor and the relevant facts are not disputed. All of plaintiffs' land zoned for residential purposes is vacant, although the south 100 feet is leased to the Maywood Park Trotting Association for use as a parking lot and there is a gasoline station at the corner of Fifth Avenue where the land is zoned in a B-2 district. Apartment buildings not being permitted in any district higher than a B-1 (business) district, plaintiffs, in 1946, petitioned the zoning board of appeals and the county board of commissioners to reclassify this land into a B-1 district so that they could improve the property with a building containing both stores and apartments. The petition was denied and plaintiffs thus exhausted their administrative remedies before instituting the present action for injunctional relief.
The land immediately west of plaintiffs' property along the south side of North Avenue lies in Melrose Park and is zoned for business purposes all the way to Twenty-fifth Avenue. Although the land is largely vacant, there are some businesses, among them a milk processing and distribution plant at Fifteenth Avenue. Beyond Twenty-fifth Avenue there is an industrial area. The land adjoining the north side of North Avenue is under the jurisdiction of the county and, while there is no affirmative showing as to how it is zoned, the record discloses it is not zoned for residential purposes and some of the property is used for business purposes, as, for example, the large florist and nursery establishment with numerous greenhouses located just west of Ninth Avenue.
The property directly across North Avenue from plaintiffs' residentially zoned tract is classified in an F (farming) district and in a B-2 (business-tavern and amusement) district. There is a large vegetable stand on part of the property and a tavern at the corner of Fifth Avenue.
As related, plaintiffs own the land adjoining the south side of North Avenue between Fifth and First avenues. Although there is a gasoline station, some vacant property and a railroad right of way near First Avenue and a milk bar on the corner of Fifth Avenue, this land is occupied for the most part by the Maywood Park Trotting Association under a long-term lease. The trotting association maintains a harness race track where pari-mutuel betting is conducted and a large stable area adjacent to Fifth Avenue. The property on the north side of North Avenue in the same area is variously zoned in B-1, B-2, and I-1 districts and is occupied by a roller skating rink, a midget golf course, the railroad right of way and amusement places for children.
From First Avenue east one-half mile to Thatcher Road, the entire north side of North Avenue is used for forest preserve purposes. On the south side of the highway, the first 600 feet is zoned in an I-1 district. There follows an R-4 district and then more forest preserve land. The corner at Fifth Avenue is occupied by a fruit stand. The land zoned in an R-4 district is the only property along North Avenue for several miles in either direction from plaintiffs' land which is zoned for residential purposes. It is occupied, in part, by two houses and is subject to the following nonconforming uses: an exercise track and barn for horses, a restaurant and tavern, a wholesale and retail poultry business, a golf driving range and amusement places. East of Thatcher Road, North Avenue runs through Elmwood Park, River Forest, and Oak Park and all the land on both sides of the road is zoned for business use.
As to North Avenue itself, State traffic engineers, testifying for defendant, reported that the average volume of traffic on North Avenue at Fifth Avenue was 11,000 passenger cars and trucks per day in 1941 and had increased to 15,000 automobiles and trucks per day in 1947.
An experienced and highly qualified real-estate broker, who lived in the vicinity of plaintiffs' property, testified that the land between Fifth Avenue and Ninth Avenue, zoned in an R-4 district, was worth $15 a front foot and that, if classified in a B-1 district, it would be worth from $150 to $250 a front foot. A second witness for plaintiffs, a realtor and builder with twenty-seven years' experience in the Chicago area, stated that the property, as then zoned, was worth from $15 to $20 a front foot and that, if zoned for business purposes, its value would range from $350 a front foot at the corner of Fifth Avenue, down to $175 a foot in the center of the tract and then up to $275 or $300 a front foot near Ninth Avenue. In addition, the president of the oil company occupying the southwest corner of Fifth Avenue and North Avenue testified he had offered to lease this tract, having a frontage of 200 feet on North Avenue, for a period of twenty-five years at a monthly rental of $400.
The principal witness for defendant was Robert Kingery, manager of the Chicago Regional Planning Commission since 1924, chairman of the Cook County Zoning Commission which drafted the county zoning ordinance, and chairman of the county zoning board of appeals since its creation in 1940. Much of Kingery's testimony dealt with the zoning and actual use of the land adjoining North Avenue, already recounted. Kingery further testified that early zoning ordinances had improperly allocated too much space to business and commercial uses; that zoning surveys revealed a standard ratio between population and land actually used for business purposes, and that, in drafting the ordinance, the zoning commission had allowed for the future increases in the population of the unincorporated area of the county by providing for three times the amount of business property actually required at the time the ordinance was adopted. On cross-examination, when asked if he would consider living or building on property such as plaintiffs, Kingery replied, "I would if I had no other place to go."
The facts pertinent to a determination of the validity of the special building-line restrictions applicable to plaintiffs' property may be briefly stated. Section 17 of the Cook County zoning ordinance ordains that no part of any building or structure shall be located within 80 feet of the established center line of any Federal-aid, State-bond-issue, State-aid and section line road, or within 70 feet of the center line of any half section road, or within 63 feet of the center line of any other road or street, provided that special setbacks, where noted, shall be observed. When the ordinance became effective in 1940, special setbacks of 130 feet were imposed on parts of five highways, including North Avenue from Thatcher Road west to Du Page County.
As previously stated, North Avenue is a State-bond-issue road having a right of way 66 feet wide. To sustain the special setback of 50 feet in excess of the usual building-line restrictions applicable to State-bond-issue roads, thus depriving plaintiffs of the use of their land within 97 feet of the south line of the highway right of way, the defendant, the county of Cook, relied upon the then existing and long contemplated preparations to widen North Avenue. In 1925, the Chicago Regional Planning Commission adopted a plan for a system of highways having rights of way from 160 to 300 feet wide and North Avenue was one of the highways so designated. At that time, there was no road on parts of the line of North Avenue in the western part of the county. Moreover, regional planning commissions did not receive official recognition until 1929, (Laws of 1929, p. 308,) and their powers are still advisory, only. (Ill. Rev. Stat. 1949, chap. 34, par. 152d.) In 1927, the county board of commissioners adopted a special resolution declaring that North Avenue had a right of way 200 feet in width, stating the land would be acquired eventually, and requiring the dedication of 200-foot rights of way in all new subdivisions adjoining the highway. In February, 1930, the county board passed a second resolution noting the broad right of way did not exist until the land was subdivided, declaring, "it is in the interest of public convenience and welfare to protect these potential rights of way against the encroachment of permanent improvements," and establishing a building line 100 feet back from the center line of North Avenue. Although the existing highway was completed in the same year, it was not until 1933 that a statute was passed authorizing counties to establish building lines "to the end that adequate safety may be secured and the congestion of public roads * * * may be lessened or avoided." Laws of 1933, p. 421; Ill. Rev. Stat. 1949, chap. 34, par. 152e.
In 1940, the setback was increased to 130 feet from the center line of the highway by the county zoning ordinance. In the same connection, Kingery, who was chairman of the commission which drafted the ordinance, testified that one of the four principal purposes of a building-line restriction is "in the interest of the public, [so] that when an improvement does come along as is planned in this case, the State or the county will not be obliged to pay excessively for removing improvements which are in the way of ultimate highway improvement." Plans of the proposed widening were introduced in evidence showing a six-lane highway with a center parkway and a side parkway, service drive and sidewalk area on either side. It was also established that all plans for the new highway had been approved by the necessary public ...