APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
A. ROBERTS, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 20, 1961.
This is a direct appeal by the defendant city of Chicago from a declaratory decree entered by the circuit court of Cook County holding a city zoning ordinance unconstitutional as applied to certain property owned by plaintiff Elmhurst National Bank, as trustee. The constitutionality of this ordinance depends upon whether the residential classification of this property, which bars plaintiff's proposed construction of a supermarket with a 70-car parking lot, is arbitrary and unreasonable.
The sequence of events appearing in the record shows that on December 28, 1956, plaintiff acquired title to the subject premises located at 6834 Northwest Highway, Chicago, through a deed which did not disclose the amount of plaintiff's investment and was marked "no taxable consideration." At that time the property was zoned residential. It had been so classified in 1923 and again in 1942. On May 29, 1957, the city of Chicago perpetuated that classification in a comprehensive zoning ordinance adopted after extensive hearings and research. A few weeks prior to the adoption of that ordinance, plaintiff, on May 2, 1957, leased the property to Samuel H. Krom, to operate a retail shopping center. The lease provided that the parties were aware of existing zoning limitations restricting the property to residential uses, that application for rezoning would be made, and that the proposed lease would take effect only when the rezoning was accomplished. Krom, in turn, had an agreement with the National Tea Company to lease the property if commercial zoning were obtained.
On July 11, 1957, plaintiff filed an application to change the zoning from residential to restricted commercial (B2-1) in order to construct a large food store and several additional stores with an estimated 70-car parking arrangement with entrances and exits on Northwest Highway and Ozark Avenue. After hearings before the building and zoning committee, the city council on April 8, 1958, following the recommendations of the building and zoning committee, unanimously denied plaintiff's application. Plaintiff, nevertheless, ordered a survey, prepared plans for the development of the property, and instituted this declaratory judgment proceeding.
From the evidence adduced in this action, it appears that the subject property, which is on the southeast corner of Northwest Highway and Ozark Avenue, is near the western boundary of the city of Chicago, and approximately 650 to 800 feet from Park Ridge. The block in which this property is located is bounded on the north by Northwest Highway, on the west by Ozark Avenue, on the south by Olmstead Avenue, on the east by Overhill Avenue, and is bisected from east to west by an alley. The north boundary of the subject property itself runs some 288 feet along Northwest Highway. It is directly across the street from a two-year-old apartment building containing 27 apartments, built at a cost of $350,000 and charging rentals of $145 to $190 a month, which bring a total gross annual income of approximately $50,000. The west boundary of the subject property runs some 145 feet along Ozark Avenue, and is across the street from another new apartment building, built since the commencement of trial, and other single family dwellings. The south boundary of the subject property is the alley, beyond which are older but well preserved single-family residences on large lots which face Olmstead Avenue. On the east the subject property is bounded by a 35-year-old L-shaped apartment building, which faces both Northwest Highway and Overhill Avenue and which contains some 18 apartments. It is undisputed, therefore, that there are no commercial uses in the block in which the subject property is located.
With respect to the surrounding area, the record shows that the property both northward and southward is residential, with predominantly single-family dwellings. Westward along both sides of Northwest Highway to the city limits some two blocks away there is only residential property, including single-family dwellings on 50-foot lots and some new apartment buildings. Westward beyond the city limits, and in Park Ridge, there is also residential property along Northwest Highway. According to plaintiff's witness Koerner, there is a 4-flat building on the southwest side of the street, constructed within the last four years, several newer 2-flat buildings, and some single-family dwellings. However, about 1/4 mile westward from the subject property, along Northwest Highway in Park Ridge, there is a new General Mills office building which is set back from the street and landscaped. Further westward along the highway the area has been rezoned for office buildings by Park Ridge authorities.
Eastward, Overhill Avenue has been for many years the designated dividing line between the residential and commercial areas. East of Overhill Avenue there is the Edison Park shopping center, which includes a gas station, an A. & P. Food Market, a cleaner, and other stores.
According to the testimony of plaintiff's witnesses, the subject property, as presently zoned (which is the same as it was at the date of plaintiff's purchase), has a value of $200 per front foot, whereas it would bring $350 to $400 per front foot if rezoned commercial. This increase in valuation is stressed by plaintiff's expert witnesses in urging that the highest and best use of the property is for commercial purposes. Other factors supporting their opinion include the traffic conditions, which were characterized as medium and varying at different times of the day; the proximity to the commercial boundary line on Overhill Avenue; the fact that the bus line terminates at Ozark Avenue and buses might be waiting across the street from plaintiff's property for as long as seven to nine minutes; and the rezoning for office buildings in Park Ridge.
While plaintiff's city planning consultant stated that the proposed retail shopping center would benefit the surrounding residential property, which he characterized as outmoded and of low value, defendant's expert witnesses claimed the supermarket and stores would lower the value of the residential property, particularly the new $350,000 apartment building across the street. The extent of such loss to the owners of residential property was estimated by one of defendant's witnesses to be between 10% and 20%. A realtor, Leland McCabe, explained that tenants do not want to be "on top of" commercial property and that noises and traffic of a supermarket would make the apartments less desirable. In this connection he pointed out that even though he kept his building rented, it brought lower rentals because of the gas station beyond Overhill Avenue, built after his building was constructed.
The realtors testifying for defendant further stated that the property is more suitable for residential purposes. They relied upon the fact that not only is all the property surrounding and across the streets from the subject property residential, including the new costly apartment building on Northwest Highway, but the entire area is residential in character northward, southward and westward from the subject property up to and beyond the Park Ridge boundary line for 1/4 mile, and that the only commercial property is eastward beyond the long-standing boundary line on Overhill Avenue. They also testified that there is no need of further shopping facilities in view of the accessibility of the Edison Park shopping center beyond Overhill Avenue, and that a supermarket on the subject property would only aggravate traffic and increase danger for pedestrians.
On the basis of substantially the foregoing evidence, as well as certain exhibits of the area submitted by both plaintiff and defendant, the master recommended, and the circuit court held, that the ordinance was unconstitutional and void in its application to plaintiff's property.
In reviewing that judgment we note the great bulk of cases reiterating the rules that a zoning ordinance is presumed valid; that the burden is upon the person attacking its validity to establish by clear and affirmative evidence that it is arbitrary; that the courts should not overrule the decisions of municipal authorities where the reasonableness of the classification is detabable, and the action of the municipal authorities is not capricious; and that the validity of each zoning ordinance must be determined on its own facts and circumstances. Dalkoff v. City of Rock Island, 17 Ill.2d 342; La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40, 46; Krom v. City of Elmhurst, 8 Ill.2d 104; Liberty Nat. Bank v. City of Chicago, 10 Ill.2d 137, 145; Williams v. Village of Schiller Park, 9 Ill.2d 596, 598; Bullock v. City of Evanston, 5 Ill.2d 22.
In determining the reasonableness of zoning ordinances the cases have also enumerated as relevant factors the extent to which the value of the property is diminished by restrictions (Dalkoff v. City of Rock Island, 17 Ill.2d 342); the extent to which the removal of the restriction would depreciate the value of other property in the area (People ex rel. Alco Deree Co. v. City of Chicago, 2 Ill.2d 350; Liberty Nat. Bank v. City of Chicago, 10 Ill.2d 137); the reliance on existing zoning ordinances (Liberty Nat. Bank v. City of Chicago, 10 Ill.2d 137; Kennedy v. City of Chicago, 11 Ill.2d 302); the suitability of the property for the zoned purpose (Krom v. City of Elmhurst, 8 Ill.2d 104, 112; Myers v. City of Elmhurst, 12 Ill.2d 537, 544); the existing uses and zoning of nearby and surrounding property (People ex rel. Alco ...