APPEAL from the Circuit Court of Cook County; the Hon. JACOB
M. BRAUDE, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
The village of Skokie appeals from a judgment of the circuit court of Cook County declaring unconstitutional a 1957 amendment to its zoning ordinance, as applied to the property in dispute. The appeal is direct to this court, the trial judge having certified that the validity of a municipal ordinance is involved and that the public interest requires direct appeal.
Plaintiffs are owners of vacant land fronting on the west side of Skokie Boulevard between Jerome Street and Birchwood Avenue. They desire to erect a motel thereon. Their property is situated in a B-2 Commercial District, in which motels were permitted under the Skokie zoning ordinance as it existed prior to October 1, 1957. On that date the amendment in question was adopted whereby motels were removed from the list of permitted uses in a B-2 district and placed in a "Special Use" category. Under the ordinance as amended the use of land for motel purposes is prohibited except as may be authorized by special permit from the president and board of trustees.
It is provided that the plan commission may recommend a motel in cases where it finds (a) that a motel would be compatible with existing and possible usage in the immediate area, (b) that the proposal for routing traffic from the principal vehicle routes in and adjacent to the village to and from the proposed motel will not interfere with the flow of traffic on the designated streets, (c) that the area of land for the motel shall be not less than 500 square feet of land per unit and that no structure is within 50 feet of a residential district line, (d) that specified numbers of off-street parking, loading and reception spaces shall be provided, (e) that no structure be erected closer to the street line than 40 feet and no curb cut shall exceed 20 feet in width, (f) that all external and flood lights be so located and focused as not to shine beyond the limits of the property, and (g) that signs shall not be flashing or intermittent and shall conform to specified size and height limitations. In the present case, the plan commission recommended the proposed motel. The village board of trustees rejected the recommendation, and refused to grant permission.
Skokie Boulevard, on which the subject property is located, is a public street running in a north and south direction and is a heavily traveled traffic artery. Approximately 175 feet north of plaintiffs' premises Skokie Boulevard intersects with Lincoln Avenue. Lincoln Avenue is a public street running in a northwesterly and southeasterly direction and is also heavily traveled as a traffic artery and carries a large amount of vehicular traffic. Approximately 400 feet north of plaintiffs' premises, Skokie Boulevard intersects with Howard Street which runs in an east and west direction and also carries vehicular traffic. In the immediate vicinity of plaintiffs' property on the east side of Skokie Boulevard there is a cut-rate gasoline station with an auto mechanic repair shop. Directly across from plaintiffs' property is a drive-in restaurant and south of plaintiffs' property on the east side of Skokie Boulevard is a large office building containing the home offices of the Allstate Insurance Company. Immediately south of plaintiffs' property on the west side of Skokie Boulevard is an office building. North of plaintiffs' property on the west side of Skokie Boulevard is an animal hospital. At the intersection of Skokie Boulevard and Howard Street there is a Shell gasoline station on the northwest corner and a large restaurant on the northeast corner. There are many other commercial and manufacturing uses on Lincoln Avenue and Skokie Boulevard within a distance of one thousand feet of plaintiffs' property. To the west of the property there is an alley, beyond which is a highly developed residential area known as Fairview North.
George H. Kranenberg, a planning and zoning consultant, testified in behalf of the plaintiffs that the area in which the subject site is contained is a broad strip devoted to commercial and manufacturing uses, storage and warehousing, experimental laboratories, etc. He further testified that the whole broad area west of the site is a singe-family residential area. He stated that in his opinion the property if used for a motel would be compatible with the uses permitted in the district and would have no effect on the health, welfare and morals of the community.
Certain educators testifying for defendant expressed the opinion that the proposed motel might or could have an effect on the morals of students, in view of the fact that one of the high schools is located about 100 feet north of Howard Street on Lincoln Avenue, close to the subject property. A consulting engineer testified that in his opinion a motel would not be compatible with the residential district across the alley to the west.
The village contends that the reasonableness of the ordinance as applied here is fairly debatable, and that the circuit court erred in not finding that the subject property takes its character from the residential area to the west, with which a motel use would be incompatible. We cannot accept the contention. The commercial character of Skokie Boulevard in the vicinity of this property is beyond dispute, and on this record the presence of single-family residences to the west, and the nearby location of a school, do not make reasonable the prohibiting of a use entirely in keeping with such commercial character. Under circumstances undistinguishable in essence from those in the present case, we have recently held void this identical ordinance as applied to motel use of certain property along Skokie Boulevard. (Hartung v. Village of Skokie, 22 Ill.2d 485.) In answer to contentions similar to those advanced by the village here, we set forth the applicable rules of law and the factors to be considered in determining validity. It is unnecessary to repeat them here. As we observed in the Hartung case, "the evidence adduced of a detrimental aura surrounding the existence of a motel and restaurant upon the subject premises is far too uncertain or minimal" to sustain a restriction so completely out of keeping with the character of adjacent uses and of those to which the property and its location are suitable.
The action of the village board of trustees in denying the proposed use was unreasonable, and the circuit court correctly held the amendatory ordinance arbitrary and void as applied to plaintiffs' property.
The judgment of the circuit court of Cook County is affirmed.
Mr. JUSTICE KLINGBIEL, specially concurring:
I cannot accept the court's opinion, which I think misses the issue in the case. Ignored are the provisions of article XVII of the ordinance, making every use of land for motel purposes subject to special permission by the village board. The case is decided as if these provisions were not present at all, the amendment consisting merely in changing article X so as to eliminate motels as one of the permitted uses in a B-2 commercial district. If such were the extent of the amendatory ordinance, and the usual issue were presented whether the general restriction, though valid in its terms, is invalid in the particular application, I would concur in the opinion of the court. For reasons stated therein the application of such a prohibitory ordinance to plaintiffs' property would be unreasonable and arbitrary.
But such are not the terms of this ordinance at all. The amendment does not merely prohibit motel use in a B-2 commercial district but makes it a subject of special permit on a parcel-by-parcel basis. What is involved here is the special permit procedure, or the attempt of a legislative body to assume a power, in its uncontrolled discretion, to grant or deny the right to this kind of land use whenever it is sought to be exercised. Section 1 of article XVII of the ordinance says that "The President and the Board of Trustees of the Village of Skokie may, by special permit and subject to such protective restrictions that are deemed necessary, authorize the location, extension or structural alteration of any of the following buildings or uses, or an increase in their height, in any district from which these are prohibited or limited by this Ordinance." There follows a list of fifteen different kinds of use, including motels. That ...