Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Reversed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 21, 1964.
The defendant, City of Evanston, appeals from a judgment declaring that its zoning ordinance is unreasonable, arbitrary, confiscatory, unconstitutional and void as regards plaintiffs' property.
The action was commenced by the filing of a complaint seeking a declaratory judgment and other relief in June of 1962. Plaintiffs Charles and Anna Jans and Michael Leider alleged that the were the owners of certain property within the corporate limits of the defendant city and plaintiffs Roy Gottlieb and Kenneth Tucker alleged that they were contract purchasers of this land from the above-mentioned owners. The complaint further stated that on November 21, 1960, the city adopted a zoning ordinance which classified the property of the plaintiffs as "R-2" or a single-family residential district but which permitted the operation of nurseries and greenhouses as "special uses"; that the property was and is being used for greenhouse purposes as it had been for the past forty years; and that this use of the property was highly profitable to the plaintiff owners and accordingly that "the value of the property to the plaintiff owners in relation to the continued operation of the property for greenhouses, is great."
The plaintiff owners then alleged that a sale of the property under the applicable zoning could not possibly net them a return consistent with the present value of the land as used for greenhouse purposes. They alleged that the use was in fact commercial and that the price a builder could reasonably afford to pay for the property for use for single-family construction "would be wholly inadequate to interest the owners to discontinue their present commercial and wholesale business."
The complaint then set out a detailed description of the property in question, which consists of approximately 300,000 square feet (or slightly less than seven acres) on the south side of Oakton Street between Florence Avenue and Asbury Avenue, and further alleges that the owners, Mr. and Mrs. Jans and Leider, entered into a contract with plaintiffs Gottlieb and Tucker wherein they agreed to sell the property for a price *fn1 substantially in excess of that which they could receive if the property were to revert exclusively to R-2 zoning.
The complaint further set forth plaintiffs' attempt to secure a change in zoning before the Evanston Zoning Amendment Committee on December 14, 1961, and the Committee's unanimous recommendation that the application be denied. This ruling was subsequently confirmed by the City Council. The complaint averred that plaintiffs had thus been deprived of their property without due process of law and without compensation, contrary to the provisions of the United States and Illinois constitutions.
The answer of defendant admitted the zoning ordinance and the area, location and dimensions of the subject property. It alleged that the land east of the subject property, improved with a supermarket, has been zoned commercially since 1921 and that for more than forty years the area surrounding the subject property has been maintained as a single-family use with the exception of several two-family uses which existed prior to the adoption of any zoning ordinance. Defendant's answer further stated that it was not familiar with any contract of sale between the owners and Roy Gottlieb and Kenneth Tucker and asserted that contract purchasers did not have standing to challenge the constitutionality of a zoning restriction.
Finally, the answer of the city denied that there had been a deprivation of property without due process of law and further denied that "highest and best use" of the subject property was for multiple dwellings (R-6) as alleged by plaintiffs.
The issue having been joined on the question of whether the R-2 classification of this property subject to the special use for greenhouses was confiscatory and void, the matter was referred to a master for his factual determinations and legal conclusions. The master heard evidence during July of 1962 and also viewed the subject property and the surrounding area pursuant to stipulation by the parties.
The master found, inter alia, that the northern boundary of the subject tract is Oakton Street, a heavily trafficked thoroughfare carrying a flow of approximately 10,000 vehicles every day; that the property immediately to the east of subject site between it and Asbury Avenue is devoted to commercial uses, consisting of a supermarket, gasoline station and cleaning establishment; that the northeast corner of Oakton Street and Asbury Avenue is devoted to single-family residential use; that the northwest corner is the situs of a three-story L-shaped nursing home; that the north side of Oakton is devoted to single-family use except for five two-family dwellings; that both sides of Florence Avenue, between South Boulevard (one block north of Oakton Street) and Kirk Street (one block south of Oakton), except for the subject site, are improved with single-family residential dwellings; that both sides of Ashland Avenue between the subject site and Kirk Street are improved with single-family residences except for one two-family dwelling; that Wesley Avenue between the subject site and Kirk Street is improved with greenhouses and nurseries and six single-family residential structures; that the "general area beyond the area immediately surrounding the subject premises" for a radius of at least several blocks is devoted primarily to single-family residential improvements, with certain exceptions.
The master further found that the proposed development as described in the testimony of plaintiffs' architect contemplates twelve separate buildings consisting of twenty dwelling units in each building; that the units would be broken down into twelve two-bedroom apartments and eight one-bedroom apartments; that there would be two entrances on Oakton Street and one entrance on Florence Avenue; that the project would include 260 parking spaces and approximately 30% of the area would be covered by buildings.
The master further found that under the general classification scheme of the Evanston Zoning Ordinance the land immediately in the vicinity of the subject tract was classified as follows: Both sides of Asbury Avenue (the eastern boundary of the property in question) are zoned for two-family dwellings. The north side of Oakton and the south side of South Boulevard, between Asbury and Wesley Avenues, are zoned for two-family dwellings. The southeast and southwest corners of Oakton and Asbury are zoned for commercial use; and all the remaining area between Asbury Avenue, South Boulevard, Mulford Street and Dewey Avenue, is zoned for R-2 single-family residential use.
After setting forth in detail the evidence of the witnesses for plaintiffs and defendant, the master concluded that "to restrict the plaintiffs from erecting the project which they propose would constitute an invalid exercise of the police power." The master stated that in reaching this conclusion he considered that the owner could not build single-family residences with any reasonable expectancy of a profit; that considering the surrounding physical area and the size of the greenhouse operation presently maintained on the premises, the distinction between the permitted "commercial operation" (the greenhouses) and the forbidden residential one (multiple family dwelling units) is unreasonable; that on the particular tract in question he thought it unreasonable to permit greenhouses and forbid multiple dwelling units; that the combination of factors including, but not limited to the nature of Oakton Avenue, the commercial uses adjacent to the property, and other nonresidential uses in the area, "militate against a finding that R-2 restrictions are reasonable"; that the plan of multiple family dwellings ...