APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:
This is an appeal by the city of Chicago from a declaratory judgment and decree of the circuit court of Cook County, holding the amendatory zoning ordinance of the city, adopted December 3, 1942, unconstitutional and void insofar as it affected certain property belonging to plaintiffs. The trial judge has certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.
In 1944, plaintiff The Trust Company of Chicago, a corporation, as trustee, and plaintiffs Pierre De Mets and Thula De Mets, his wife, as beneficiaries of the trust, acquired the property herein involved, which is located at the southwest corner of South Shore Drive and Sixty-seventh Street, in the city of Chicago, and improved with a two-story mansion-type residence, erected in 1917. Sixty-seventh Street runs east and west and is the southern boundary of Jackson Park immediately north of plaintiffs' property. It is a major public highway in the city, is heavily traveled and both a streetcar and a bus line are operated thereon. Directly across from plaintiffs' property, adjoining South Shore Drive, are the grounds, buildings and golf course of the South Shore Country Club, which extend from Sixty-seventh Street southward to Seventy-first Street and eastward to the shores of Lake Michigan. South Shore Drive is a public highway in the city of Chicago, under the control and maintenance of the Chicago Park District. It is a part of U.S. Route 41 and is heavily traveled, being a connecting link in the highway system between Michigan, Wisconsin, northern Illinois and the Chicago Loop to the north and southern Illinois and Indiana to the south and southeast. Because of the heavy traffic upon Sixty-seventh Street and South Shore Drive at the corner of plaintiffs' property, the Park Board some time ago acquired a portion of the northeast corner of plaintiffs' property and widened the turn there to permit the traffic to move more freely around the corner, and about two years ago erected an overhead ramp or pass across South Shore Drive at this corner for the use of pedestrians because of the heavy vehicular traffic at this corner.
In 1923 the city of Chicago adopted a comprehensive zoning ordinance, and in 1942, the amendatory ordinance involved in this proceeding was adopted. Under the original zoning ordinance, enacted in 1923, the area lying between South Shore Drive on the east, Jeffery Avenue on the west (which is seven blocks west,) Sixty-seventh Street on the north and Seventy-first Street on the south, which area includes the property now owned by plaintiffs, was zoned or classified as an apartment district, with the exception only of one block in the southeast corner which was zoned for commercial use. The amendatory ordinance of 1942 made no change in the zoning of any of this territory, except only as to the half block fronting on South Shore Drive between Sixty-seventh and Sixty-eighth Streets and abutting on the west upon the alley running north and south midway between South Shore Drive and Oglesby Avenue, which is the first street west of the Drive. This half block, which includes plaintiffs' property, was by the amendatory ordinance changed from an apartment use to that of a single-family residence use.
This half block, so rezoned, is divided into six parcels or lots, fronting on South Shore Drive, one being vacant and the other five each being improved with a mansion-type single-family residence, and each being occupied by a single family. Plaintiffs' property has a frontage of 166 feet on South Shore Drive, the vacant lot a frontage of 75 feet, two of the other lots a frontage of 125 feet each, one a frontage of 75 feet, and one a frontage of 50 feet. The house immediately adjoining plaintiffs' property on the south was erected in 1914 and purchased in 1944 by its present owner and occupant. The next house south was built in 1915. The next one south was erected in 1926, and purchased in 1944 by its present owner and occupant. The next tract south is the vacant lot, and immediately south is a house erected in 1922.
It is undisputed that the area lying between South Shore Drive on the east and Jeffery Avenue on the west, Sixty-seventh Street on the north and Seventy-first Street on the south is an intensely developed residential area commonly known as the South Shore District of Chicago, and is characterized by its numerous apartment buildings, ranging in height from three to sixteen stories, and its numerous dwelling units, ranging in size from one-room hotel type kitchenette apartments to ten-room suits, that it is generally regarded as a very fine and highly desirable apartment district, and that interspersed on almost every street in the area there are located a number of single-family homes, most of which were erected prior to 1923.
Defendant's expert witness, Arthur Kruggel, testified that this area, except only the portion thereof affected by the amendatory ordinance, is "essentially an apartment area." It is also undisputed that this rezoned half block, considered as a block under the provisions of the rezoning ordinance, in which plaintiffs' property is located, is an exceptionally fine residential block, and that the homes thereon are luxurious and attractive residences, with spacious, beautiful, well-kept lawns.
It is defendant's contention that the restrictions imposed upon this block by the amendatory zoning ordinance of 1942 are a valid exercise of the police power of the city in an attempt to preserve this block as an oasis of gracious family living in a locality of unique natural beauty.
The contention of plaintiffs is that the restrictions imposed upon their property by the amendatory ordinance are so unreasonable and discriminatory that the same constitutes an unlawful invasion of their private rights guaranteed by the constitution.
The rules of law applicable to cases involving the validity of zoning ordinances are so well established and have been so frequently and recently set forth in the opinions of this court, (Galt v. County of Cook, 405 Ill. 396; Metropolitan Life Ins. Co. v. City of Chicago, 402 Ill. 581; People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321; Quilici v. Village of Mt. Prospect, 399 Ill. 418; 2700 Irving Park Building Corp. v. City of Chicago, 395 Ill. 138,) that it may seem unnecessary to refer, even briefly, thereto.
Every owner has the right to use his property in his own way and for his own purposes, subject only to the restraint necessary to secure the common welfare. (Village of La Grange v. Leitch, 377 Ill. 99.) This privilege was not created by the constitution but existed before its adoption and is guaranteed by it. (2700 Irving Park Building Corp. v. City of Chicago, 395 Ill. 138; State Bank & Trust Co. v. Village of Wilmette, 358 Ill. 311.) This privilege of a citizen to use his property according to his own will is both a liberty and a property right, (Village of La Grange v. Leitch, 377 Ill. 99; People ex rel. Schimpff v. Norvell, 368 Ill. 325,) subject always, however, to the police power of the State, under which new burdens may be imposed upon property and new restrictions placed upon its use when public welfare demands. (2700 Irving Park Building Corp. v. City of Chicago, 395 Ill. 138; Bjork v. Safford, 333 Ill. 355.) The constitutional declaration that private property shall not be taken for public use without just compensation or without due process of law is subordinated always to the interests of the public welfare as expressed through the exercise of the police power of the State. Ehrlich v. Village of Wilmette, 361 Ill. 213; Forbes v. Hubbard, 348 Ill. 166.
The police power of the State is that power required to be exercised in order to effectually discharge within the scope of the constitutional limitations its paramount obligation to promote and protect the public health, safety, morals, comfort and general welfare of the people. (County of Du Page v. Henderson, 402 Ill. 179. Zoning laws are enacted in the exercise of the police power. (58 Am. Jur., Zoning, #2, #3, #18.) A city possesses no inherent police power and cannot legislate upon or with reference to that, or any other subject, unless authorized by the General Assembly to do so. (Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246.) The enactment of article 73 of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1949, chap. 24, pars. 73-1 to 73-11,) by the legislature, is an express delegation of police power, under which municipalities are authorized to adopt and enforce zoning ordinances, thereby imposing reasonable restraints upon the use of private property.
While cities and villages have statutory authority for the enactment of zoning ordinances, nevertheless the governmental power so conferred to interfere by zoning regulations with the general rights of property owners is not unlimited, and such an ordinance, to be valid, must have a real and substantial relation to the public health, safety, morals, or general welfare. (People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321; 2700 Irving Park Building Corp. v. City of Chicago, 395 Ill. 138; Village of La Grange v. Leitch, 377 Ill. 99; Johnson v. Village of Villa Park, 370 Ill. 272; People ex rel. Kirby v. City of Rockford, 363 Ill. 531; Western Theological Seminary v. City of Evanston, 325 Ill. 511.) Whether the restraints imposed by a zoning ordinance upon the use of private property do, in fact, bear a real, substantial relation to the public health, safety, comfort or welfare, or whether they are essentially capricious and unreasonable is a question subject to judicial review. (People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321; Quilici v. Village of Mt. Prospect, 399 Ill. 418; Offner Electronics, Inc. v. Gerhardt, 398 Ill. 265; Harmon v. City of Peoria, 373 Ill. 594.) However, it is primarily the province of the municipal body to which the zoning function is committed to draw the line of demarcation as to the use and purpose to which property shall be assigned or placed, and it is neither the province nor duty of courts to interfere with the discretion with which such bodies are vested, unless the legislative action of the municipality is shown to be arbitrary, capricious and unrelated to the public morals, safety and general welfare. (People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321; 2700 Irving Park Building Corporation v. City of Chicago, 395 Ill. 138; Morgan v. City of Chicago, 370 Ill. 347.) Ordinances duly enacted lie behind the bulwark of presumptive validity and the burden is upon the one assailing them to overcome that presumption. (Rothschild v. Hussey, 364 Ill. 557.) The presumption obtains that a zoning ordinance is valid and the burden of proof is upon the party attacking the ordinance to show affirmatively that it is arbitrary and unreasonable. (Galt v. County of Cook, 405 Ill. 396.) Where there is room for a legitimate difference of opinion concerning the reasonableness of an ordinance governing the use of private property or where such question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. (People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321; Burkholder v. City of Sterling, 381 Ill. 564; Harmon v. City of Peoria, 373 Ill. 594; Ehrlich v. Village of Wilmette, 361 Ill. 213; Forbes v. Hubbard, 348 Ill. 166.) In ascertaining whether a particular zoning ordinance is in the interest of the public, each case must, of course, be determined on ...