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Kuiken v. County of Cook

OPINION FILED NOVEMBER 30, 1961.

JOHN J. KUIKEN ET AL., APPELLANTS,

v.

THE COUNTY OF COOK, APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. COURTNEY, Judge, presiding. MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:

This is a declaratory judgment action brought by plaintiffs, John and Laura Kuiken, against the county of Cook seeking a declaration that the county zoning ordinance, insofar as it prohibits the use of a portion of plaintiffs' property for a trailer park, is unconstitutional and void. After a hearing on the merits, the trial court dismissed the complaint, and plaintiffs have appealed directly to this court.

The property involved is a portion of a single tract located at 1913 Waukegan Road, Northfield Township, in Cook County. One portion of the tract has 205 feet frontage on Waukegan Road and a depth of 170 feet, and is in an area having a county zoning classification of "B-4." A trailer park is permitted as a prior nonconforming use by the ordinance. The portion now in issue is an area 110 feet by 159 feet adjacent and contiguous with the east boundary of said property and is zoned "R-2," or for single family residences, wherein trailer park use is prohibited. Plaintiffs purchased the entire tract on January 9, 1959, at which time the entire tract, including the property in issue, was used for a trailer park with a State permit for twenty trailers. Three trailers were located on the subject property in violation of the ordinance on concrete slabs. Seventeen trailers were located on the other portion. The subject portion is landlocked and can be reached only through the legal trailer park in front.

Shortly after the purchase, plaintiffs were advised by representatives of defendant that the subject property could be used only for residential purposes. Thereafter plaintiffs exhausted their local remedies and instituted the present suit.

The record discloses various and sundry business uses along Waukegan Road adjacent to or close by the subject property. On the same side of the street and just north of the subject property is Signo Furniture Company; then various apartments; then Ammer Road. Next to Ammer Road is a landscaping service. South of the subject property is a lot with apartments and a trailer located thereon. Next to that there is, in order, a motel, a restaurant, an older house, a dry cleaning establishment, a Sinclair gas station, another restaurant, an automobile parts store, and then a street known as Woodlawn Avenue.

Directly across the street on Waukegan Road from the subject property is the Hearth Fare Restaurant. Next to that there is a liquor store; to the north of the liquor store there is a dog kennel, which is being torn down and added to a trailer park which is just north of the dog kennel.

Going south and directly opposite the subject property on Waukegan Road is an auto parts store and, to the south, the Sail-In Tavern, Bill's Liquor and another trailer park. Behind the subject property to the east is residential construction of the singe-family type.

Three experts testified in the proceedings, Richard W. Manke, a real-estate broker who has been in the real-estate business in the area for some 15 years and a person experienced in the brokerage, building, subdividing, and development of property and appraisal of real estate. He testified that the value of the subject property as used for trailer park purposes was $17,000, whereas for residential purposes it was valueless. His valuation was determined on the basis that trailer spaces were worth $40 a month and, projecting that on an investment basis for three trailers, there would be $120 a month, or an annual income of $1,440 a year and, deducting $140 per year for maintenance, there would be a net return of $1,300 a year. His testimony as to monthly rental charges was substantiated by the manager of the plaintiffs' trailer park, which disclosed a monthly rental for each trailer space of $35. The manager also testified that he has applicants for the three sites located upon the subject property.

Manke testified that, in his opinion, there was loss to the value of the properties adjacent and surrounding the trailer park because of the present existence of a legal trailer park. His testimony is to the effect that whatever diminishment of value of the surrounding properties by reason of the subject property being used for trailer park purposes already exists by the very existence of the trailer park fronting on Waukegan Road. Building permits for neighboring properties were introduced in evidence by the plaintiffs disclosing that residences were constructed on adjacent or nearby properties at the time trailers were located upon the subject property.

Two experts testified on behalf of the county, William S. Lawrence and George H. Kranenberg. Both Lawrence and Kranenberg are zoning experts who assisted in the adoption of the new county comprehensive zoning ordinance or assisted in the adoption of zoning ordinances of various other municipalities. Neither of the experts of the county testified as to the value of the plaintiffs' property as zoned for residential purposes or as zoned for trailer-park purposes and neither testified as to any specific diminishment of value of surrounding properties by reason of the existence of a trailer park upon the subject property.

Kranenberg, who assisted in the adoption of the county zoning ordinance, testified that the subject property was of no value for residential purposes unless additional properties could be purchased, so that some access could be obtained to and from the property. Kranenberg stated that in the preparation and recommending of the Cook County zoning ordinance he did not consider the factors which the Supreme Court of Illinois has laid down to determine the reasonableness of the county zoning ordinance. As a matter of fact, he did not know them. He testified that the line of demarcation between business uses and residential uses was placed in this area predicated upon maintaining a straight line without regard to ownership of the property. He testified that the only variation from the straight line was made where the use of the property extended beyond the desired straight line. On cross-examination it was disclosed that the Signo Furniture Company, which owned the property immediately north of the plaintiff's property, had a business use and that part of their property was zoned for business purposes and the other part of their property for residential purposes. It was testified that the only standard used was the maintenance of the straight line, and that had the Signo Furniture Company used more of their property for their furniture building, the straight line would not have been maintained.

On this appeal the plaintiffs argue that they have been deprived of their constitutional rights in that the limitation of the zoning ordinance as applied to the subject property results in little or no gain to the public compared to an almost total confiscation of plaintiffs' property. They further argue that applied to other property the zoning ordinance bears no relationship to public health, safety, comfort, morals or welfare and is arbitrary and unreasonable and denies plaintiffs the right to use their property for a trailer park while it permits others in similar situations to use their property for such purposes.

On the other hand, the defendant states that the plaintiffs purchased the premises with full knowledge of the zoning ordinances and have failed to sustain their burden of establishing the invalidity of zoning ordinance in question.

The burden of proof is upon the property owner challenging the ordinance to show that, as applied to his property, the ordinance is arbitrary and unreasonable and without substantial relationship to the public health, safety, morals or general welfare. (Herman v. Village of Hillside, 15 Ill.2d 396; La Salle National Bank v. City of Chicago, 4 Ill.2d 253.) However, where it is clearly shown that the gain to the public is small compared to the hardship imposed upon an individual property owner by the zoning restriction, this burden may be sustained. Dalkoff v. City of Rock Island, 17 Ill.2d 342; Kovack v. Village of La Grange Park, 18 Ill.2d 233; Nott v. Wolff, 18 Ill.2d 362.

In the instant case the hardship to the plaintiff property owners is undisputed. The uncontradicted testimony of plaintiffs' expert witness sets the value at $17,000 for use as a trailer park, and as practically valueless for residential ...


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