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Chi. Title & Trust Co. v. Vil. Wilmette

OPINION FILED FEBRUARY 1, 1963.

CHICAGO TITLE AND TRUST COMPANY, TRUSTEE, APPELLEE,

v.

THE VILLAGE OF WILMETTE, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. B. FAIN TUCKER, Judge, presiding.

MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:

The village of Wilmette has perfected this appeal from a judgment of the circuit court of Cook County which declared its zoning ordinance unconstitutional and void as applied to a certain parcel of land, title to which is in the plaintiff, Chicago Title and Trust Company, as trustee, and authorized the use of the property for the construction and operation of a gasoline filling station, subject to enumerated restrictions relating to the structure, advertising devices, illumination and business hours. Although we find no certification by the trial judge that the validity of an ordinance is involved and that the public interest requires a direct appeal to this court, (see: Ill. Rev. Stat. 1961, chap. 110, par. 75(I)(c),) a constitutional question is involved so as to give us jurisdiction to entertain the appeal. La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40.

The subject property is located at the southwest corner of the intersection of Skokie Boulevard and Lake Avenue which is near both the northern and western village limits. Lake Avenue runs due east and west, while Skokie Boulevard, at this point, runs diagonally in a general southeast to northwest direction and intersects Lake at an angle of approximately 30 degrees. Both carry four lanes of traffic and, at the intersection, traffic lights, cut-offs and islands have been installed at all four corners. Plaintiff's parcel is, roughly, triangular in shape, with most of its frontage (300 feet) abutting on the west side of Skokie, and consists of the east half of lot 6, cut-off and rounded at the north end, and a fragment of lot 5 of Butler's Subdivision, which lots, at one time, were rectangles fronting on Lake. Their fragmentation occurred in 1934 when the State of Illinois condemned land diagonally through the western half of the village for the construction of what is now Skokie Boulevard. Since that time the subject property, as well as the land at the southeast corner of the intersection, has been vacant. Both lots comprising the irregular tract, (which contains about 28,000 square feet,) were formerly zoned for single-family residence purposes but, by a comprehensive ordinance adopted October 20, 1959, their classification was changed to that of a "group house district." The real parties in interest, whose title is held by the plaintiff-trustee, purchased that portion of lot 6 which makes up the disputed tract in May, 1955, and the portion of lot 5 in August, 1957.

About two blocks west of the subject property Lake Avenue crosses over the Edens Expressway at right angles, via an overpass. Cloverleafs constructed at the overpass connect Lake with the expressway and it appears that this is the only point of access to and egress from the expressway in the village. The result has been extremely heavy traffic on Lake which is building up year by year. Skokie is also a heavily traveled thoroughfare and traffic counts taken in 1959 and 1960 showed that in the neighborhood of 25,000 vehicles pass through the Lake-Skokie intersection in the course of 24 hours. For the years 1957 through 1960 there have been, respectively, 25, 14, 25 and 19 accidents at the intersection.

Running northwesterly from its intersection with Lake, Skokie Boulevard also crosses over the Edens Expressway a quarter of a mile away at the northern village limit. Within the confines of the triangle formed by Lake, Skokie and Edens there is a tract of land the extreme southeast portion of which is directly opposite, across Lake, from the rounded northern end of plaintiff's land which abuts on Lake. Located in the latter triangle is one of the cloverleafs for the Edens-Lake intersection, and occupying the balance of the 23-acre tract is the Edens Plaza Regional Shopping Center composed of 23 to 25 retail businesses of varying sizes and parking facilities for approximately 1200 cars. The stores in the area operate all day each day, except Sunday, and three nights a week. Throughout the parking area, which is the specific part of the business district across from plaintiff's land, there are lights which are illuminated on nights the center is open. Until February 16, 1954, this land was also zoned for single-family residence purposes but, on the day named, the village enacted an ordinance withdrawing it from such classification and granting to Carson, Pirie, Scott & Company, the privilege of operating a shopping district thereon.

At the northeast corner of the intersection, "kitty-corner" from plaintiff's land, there is an 8-acre tract occupied by the Thalmann Nursery, from whence there is sold and displayed various kinds of nursery products, gardening supplies and equipment, gifts, pet supplies and the like. In addition, the tract has a parking area to accommodate 70 cars. This business has been conducted there at least since 1945 and while the record is silent as to its zoning history, the village, on the same night it enacted the Carson ordinance, passed another ordinance granting to Thalmann and his wife, their heirs, executors, devisees and assigns, the right to use the 8 acres for agricultural purposes as a nursery, for the sale of nursery products and for the operation of a landscape business. We note in passing, however, that by the comprehensive zoning ordinance adopted in October, 1959, the Thalmann property was included in an area zoned for single-family residences, so that its present status is apparently that of a legal nonconforming use.

As previously noted the southeast corner of the intersection is vacant and has always been vacant, the land consisting of a small triangle left by the diagonal construction of Skokie Boulevard in 1934.

On the south side of Lake Avenue, extending a block east from the intersection to Hibbard Road, there are four small, modest priced bungalows and then a vacant lot at the corner of Lake and Hibbard. Across the street, on the north side of Lake and extending east from the Thalmann land, is a group of six small bungalows, all of which have been erected since the shopping center was built. From Lake and Hibbard eastward, the Lake Avenue frontage is, with few exceptions, developed by single-family residences for several miles.

Going north from the Lake-Skokie intersection, the shopping district occupies the west side of Skokie all the way to the northern village limit while, on the east side, to the north of the Thalmann property, there is a church and then some residences, all of the latter being separated from Skokie by a high board fence and oriented in such a way as to have their back lots facing the highway and their front lots facing on streets away from the highway.

Immediately west of the subject property, along the south side of Lake Avenue, screened by trees, bushes and shrubs, is an old bungalow. Adjacent to this is a story-and-a-half 2-flat building owned by one Schulemann, who operates a landscaping business therefrom, and photographs show that the yard is used for parking trucks and kept in an untidy condition. To the west of the Schulemann property is a vacant lot, approximately 150 feet wide, and next to it is a single-family residence which abuts on Lavergne Avenue to the west and is directly opposite the Lake Avenue entrance to the shopping center. From that point on the west side of Lake is taken up by the Edens Expressway and one of the cloverleafs leading thereto; beyond the expressway, extending to the village's western limit, both sides of Lake are zoned and used for commercial purposes.

Adjoining the plaintiff's land on the south, and extending along the west side of Skokie for about 1500 feet is a residential development known as Wilcrest Manor, which has been built since the development of the shopping center and the heavy traffic pattern at Lake and Skokie. The residences in this subdivision are all constructed so as to face away from the subject property, from Skokie Boulevard, and from the Schulemann and other properties on the south side of Lake heretofore described. And apart from the "facing away," the subdivision is shielded from Skokie, the subject property and the other properties abutting on Lake by a 7-foot stockade fence which traverses the northern and eastern sides of the subdivision. It will be recalled that a portion of plaintiff's land is the east half of lot 6 and, if we interpret the exhibits properly, the stockade fence at this point passes along what would be the boundary between the east and west halves of lot 6. On the opposite side of the fence, where it is adjacent to plaintiff's land, there are the backyards of three residence properties. The purpose of the fence, according to the builder of the subdivision, was to isolate the subdivision from the property to the north, (i.e. the plaintiff's property and the properties along the south side of Lake,) which he considered inferior from a residential standpoint, and to protect children residing in the subdivision from the heavy traffic on Skokie.

The subdivision ends at Hibbard Road, and to the south of that point, along the west side of Skokie, there is a series of newly built "group houses," again oriented away from Skokie and separated by a high board fence; then about a block of vacant property to Central Avenue. Between Central and Wilmette Avenue is a series of new, small, modest priced houses, the only residential buildings in the village constructed to face on Skokie. The corner of Wilmette and Skokie is commercial, there being a drug store and a gasoline station on the west side thereof.

Going back to the Skokie-Lake intersection and proceeding south along the east side of Skokie there are: the small, vacant, triangular parcel previously described; a commercial property known as Hammond Gardens, another landscape garden business; a new "group house" development oriented away from Skokie and isolated by another high board fence; an animal hospital continuing for a considerable distance south of Hibbard Road; vacant property extending to Central Avenue, at which point there is one house on Central facing away from Skokie; and then vacant property extending to the Wilmette-Skokie intersection, where there is a gasoline station on the northeast corner.

It would unduly prolong this opinion for no beneficial purpose to detail the testimony of all the witnesses who testified in the case, or to describe the many helpful exhibits received into evidence. In substance, however, expert witnesses testified on behalf of the plaintiff that the subject property was unfit for residence purposes, and that its proper use would be for business and commercial purposes, due to its irregular shape, to the extreme traffic conditions at the intersection, and to the commercial uses already in existence at two corners of the intersection; that it would be economically unfeasible to improve the property with group housing; that the value of the subject property was approximately 5 to 7 times its value for residence purposes; and that, due to the other commercial uses in the area and the manner in which the subject property has been isolated from the residential development to the south, the commercial use of the property would have a minimal economic effect upon the surrounding properties. Defendant's experts, to the contrary, were of the opinion that the highest and best use of the property was for residential purposes; that traffic at the intersection, while dangerous, would not deter the residential use of the corner; that the greater public good requires the subject property to be developed with group housing so as to serve as a buffer between the single-family residences to the south and the business district to the north; and that ...


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