APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1951.
This is an appeal by the village of Oak Park, hereinafter referred to as the Village, from a declaratory judgment of the circuit court of Cook County finding the zoning ordinance of the Village unconstitutional and void as applied to the property of the Pioneer Trust & Savings Bank and John Kempston, property owners, hereinafter referred to as plaintiffs.
The plaintiffs are the owners of four parcels of real estate lying vacant on Harlem Avenue in the three blocks between LeMoyne Parkway and Division Street in the Village. Harlem Avenue is the west boundary of the Village and the property lies within a block of the north boundary. Across Harlem Avenue from the plaintiff's property is the village of River Forest.
It appears that by the original 1921 zoning ordinance the property in question was placed in a district where multiple-family apartment buildings of not more than fifty feet (three stories) in height were permitted, with space limitations of 450 square feet per family. The property to the east was zoned for single-family residences. At the time the original zoning ordinance was passed in 1921, the entire area, which encompasses the property in question, was undeveloped. Since that time the territory to the east of Harlem Avenue has been almost completely built up with single-family residences, while the property along Harlem Avenue in the area in question, including the plaintiffs' lots, has remained primarily vacant.
The property across the street in River Forest has been developed by three-story apartments and business property and has received comparatively wide usage for these purposes.
In 1947, after an extensive survey and a comprehensive report by one Harland Bartholomew, a recognized expert, a completely revised zoning ordinance was passed by the Village, whereby one substantial change was made in the regulations applicable to the district in which the plaintiffs' land lies. This change lowered the permissible height of apartment buildings that might be built thereon from 50 feet (3 stories) to 35 feet (2 1/2 stories,) and increased the minimum required lot area per family from 450 square feet to 1,000 square feet.
The evidence disclosed that on the Oak Park side of the area in question there had been built a filling station, a real estate office, and a greenhouse, while on the opposite side of the street in River Forest there are filling stations and 3-story multiple apartments to the south, none of which lie opposite plaintiffs' property. Further, on the River Forest side of the street there are some 2-story house developments and single-family residences, although the property is zoned for other use. In addition, there is the campus of the Dominican College.
It was testified to by the plaintiffs that they purchased the property in reliance on the 1921 zoning ordinance and had made specific inquiries as to the type of zoning embracing the property in question.
The court below found that under the 1921 ordinance there was a limitation on building height of 50 feet and an area of restriction of not less than 450 square feet per family, which was not applicable to hotels or apartment hotels. The court further found that prior to the purchase of the real estate the plaintiffs caused inquiry to be made of the building commissioner as to the zoning classification of the property in question. It was further found by the court that the purchase of the property was brought about with knowledge of and reliance on classifications of the 1921 ordinance. The court then found that in 1947 a new ordinance was adopted by the village of Oak Park, which re-classified the subject property into an "E" multiple-dwelling district, which permitted the uses of multiple dwellings with limitations that no building should exceed 2 1/2 stories or 35 feet, and a limitation of four apartments for four families in any single building with a lot area of not less than 1,000 square feet per family. The court further found that the highest and best use of the plaintiffs' property is for multiple dwellings of more than 2 1/2 stories, as is demonstrated by the zoning and use of the frontage at the northwest corner of Harlem Avenue and Le Moyne Street. The court then found that the value of the property for use under the zoning ordinance of 1921 was greatly in excess of the value of the property under the amended zoning ordinance of 1947 and that this latter ordinance ignored the use and zoning of the land on the opposite and contiguous frontage on the opposite side of the street, whereby the value of the land was depreciated. The court lastly found that the zoning ordinance of 1947 had no substantial relationship to the public health, safety, comfort, morals, and general welfare of the village of Oak Park. The court stated that there had been no change in the nature of the area in which the property was located between the original zoning ordinance and amendatory zoning ordinance of 1947, which had any bearing or relationship to the public health, safety, comfort, morals, or general welfare which justified the change, and that the plaintiffs had a right to rely on the original zoning. The court then found the amendatory ordinance void as to the property in question.
On behalf of the Village, the expert, Bartholomew, testified that the limitations imposed on this district constituted a reasonable restriction, taking into consideration the use and height of the buildings throughout the Village and the use and zoning of property across the street in River Forest. He had found in his survey that there was little occasion for a building development greater than two stories in height. He further stated that of the entire frontage of the east side of Harlem Avenue in Oak Park, 85 to 90 per cent was of 2-story construction and that the introduction of 3-story buildings on either side of Harlem Avenue was contrary to the proper development of Oak Park and that resulting increases in population would endanger the safety, health and character of the community. It was further stated that the development in the neighborhood of plaintiff's property to the east is one of the most desirable in Oak Park and that the allowance of 3-story structures would be detrimental to the Village. A member of the zoning board, one Erickson, stated that zoning of the property for 3-story apartments would injure the property to the east, introduce health and safety hazards, and affect taxable factors adversely.
One witness for the plaintiffs, Kincaid, testified that such use as advocated by the expert was not reasonable. Another witness for plaintiffs stated that plaintiffs' property was worth $150 a front foot if zoned for 3-story apartments and $80 a front foot if zoned for 2 1/2-story apartments accommodating not more than four families.
There is some question as to whether or not the zoning ordinance in question does limit the use of the property to 4-family buildings.
The principal issue involved here, however, and the question with which this court is faced is whether or not, under the law, any valid reason has been shown for changing the classification of 1921 by the ordinance of 1947. This also entails a consideration of whether or not there has been any substantial relation between the change in classification and the public welfare of ...