APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Cook County, defendant in the trial court, has appealed directly to this court from a declaratory judgment of the circuit court of Cook County holding that the Cook County zoning ordinance, insofar as it applies to plaintiff's property, is unconstitutional and invalid.
Plaintiff's motion to transfer the appeal to the Appellate Court, First District, because the trial judge has not certified that in his opinion the public interest requires a direct appeal, was taken with the case and must be disposed of first.
An examination of the record reveals that plaintiff's complaint challenged the validity of the zoning ordinance as depriving plaintiff of its property without due process of law, as a taking of private property for public use without just compensation, and as denying equal protection of the laws, all of which questions involve a construction of the constitution as well as challenging the unreasonableness of the ordinance. The decree appealed from based its finding on those constitutional issues.
Section 75(1)(c) of the Civil Practice Act, as amended, (Ill. Rev. Stat. 1955, chap. 110, par. 75,) provides for a direct appeal to the Supreme Court in cases in which the validity of a municipal ordinance or county zoning ordinance or resolution is involved and in which the trial judge certifies that in his opinion the public interest so requires. The comments of the Joint Committee on Illinois Civil Procedure on the 1955 amendment to this particular section indicates a legislative intention to place county zoning cases on a parity with cases involving the validity of a municipal ordinance. Smith-Hurd Ill. Anno. Statutes, chap. 110, par. 75, p. 66.
Numerous cases decided by this court have held that a certificate that a municipal ordinance's validity was involved is not necessary to give the Supreme Court jurisdiction on direct appeal if it appears from the record that a constitutional question is involved. (City of Watseka v. Blatt, 381 Ill. 276; City of Monmouth v. Lawson, 408 Ill. 284; City of Chicago v. Cuda, 403 Ill. 381; Pringle v. City of Chicago, 404 Ill. 473.) In Whitsell v. Cook County, 4 Ill.2d 269, which involved a case comparable to this arising prior to the current amendment, the court held the appeal proper where the record disclosed that a constitutional question was not only presented to, but decided by the trial court. In our opinion section 75 (1) (a) of the Civil Practice Act (Ill. Rev. Stat. 1955, chap. 110, par. 75,) authorizing direct appeals in all cases in which a construction of the constitution is involved, warrants the present appeal and plaintiff's motion is not well taken.
The property in question is owned by plaintiff as trustee, and is situated in unincorporated territory near Des Plaines at the southeast corner of the intersection of Dempster Road and Rand Road. Both roads are heavily traveled four-lane arterial highways with traffic exceeding 15,000 vehicles per day. The property is a vacant, low-lying triangular-shaped piece of land, the blunted apex of the triangle at the road intersection measuring about 55 feet. The base of the triangle is a drainage ditch about 356 feet long running between Dempster and Rand roads. The tract has approximately 566 feet frontage on Dempster and about 368 feet on Rand Road.
The zoning ordinance of Cook County zones the subject property as R-4, which restricts the use thereof to single family residences, each one on a building plot or lot not less than 60 feet average width and 10,000 square feet in area, and to those uses permitted in R-3 districts.
Two experts and one of the beneficial owners testified for plaintiff, while one expert was the sole witness for defendant. From this testimony it appears that west of the property on Dempster Road are a factory and office building of Singer Sewing Machine Company; an old foundry used partly as a warehouse and garage and partly for commercial and industrial purposes; a plant of Precision Tool Company; a Veterans of Foreign Wars recreational building; a park district civic center; a General Box Company factory, and the Little Fuse Company factory. On Rand Road to the northwest of the property are a tavern and package goods store; a wholesale greenhouse, and residences converted to real estate offices and photographic studios. East on Dempster Road are a vegetable and fruit stand; a church, and a small farm. To the south on Rand Road is a 40-acre tract zoned for a shopping-center use. Interspersed along the roads in each direction are various houses and vacant lots. The Forest Preserve District area is north of the property. The plaintiff desires to erect a gasoline service station on its property.
Plaintiff's expert witnesses testified that the highest and best use of the property was for commercial purposes; that if used for residences according to current zoning the property was worth $8000 to $10,000; that if used for business purposes it would be worth $30,000 to $40,000; that the property is not suitable for homes because it is at a heavy-traffic intersection, is low, irregularly shaped, adjacent to two four-lane heavy-traffic roads and to a deep ditch; that there are no sidewalks in the area; and that there has been no residential development in the section. It was also testified that commercial improvement would have no harmful effect on neighboring property but would benefit it from increased taxes, additional light on the corner, elimination of some traffic hazards and increased income to the community. Existing residential uses would not be adversely affected, according to plaintiff's witnesses. The property has not been improved with water, sewers, or sidewalks, and no plans exist to provide the same, and has been vacant for the entire period it has been zoned for residences, even though the general area has enjoyed a substantial building boom. The tendency of the area is to go commercial.
Defendant's sole witness was a city planner who testified, in substance, that four or five houses could be built on the property and that if commercial use was permitted it would be inharmonious with residential development, attract additional traffic, create additional light glare, create a different atmosphere, attract billboard advertising and be detrimental to the nearby communities of Des Plaines and Park Ridge. He did not touch the question of value.
The master's report found that the zoning ordinance ignored the intermixed character of the neighborhood, surrounding uses, the traffic situation, and the highest and best use of the property; that there would be little gain to the public by limiting the use to residential purposes and a great financial loss to the plaintiff and that there are presently adverse factors to residential development; that the denial of nonresidential use to plaintiff's property was discriminatory since the ordinance classified for business use other properties at similar intersections; and that the ordinance was confiscatory, unreasonable and void as to the subject property.
On the basis of the master's report, a declaratory judgment, as prayed, was entered. Defendant urges as ground for reversal that the trial court's judgment and findings as to the highest and best use of the property and the effect of the proposed use on the neighborhood and surrounding territory are not supported by the ...