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Reskin v. City of Northlake

JANUARY 20, 1965.

MARVIN RESKIN AND SHIRLEY RESKIN, PLAINTIFFS-APPELLEES,

v.

CITY OF NORTHLAKE, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



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.

The defendant, City of Northlake, appeals from a judgment declaring its zoning ordinance unreasonable and void as regards plaintiffs' property. *fn1

The plaintiffs desired to erect an automotive service station on the property which has been made the subject matter of this litigation. Prior to the commencement of this suit, plaintiffs' application for a variation was rejected by defendant's Zoning Board of Appeals and by its City Council. Plaintiffs commenced a declaratory judgment action on November 28, 1961, asking the court to declare the zoning ordinance invalid insofar as it prohibited plaintiff from erecting the gasoline station.

Lot 32 of plaintiffs' property fronts on the northeast corner of North Avenue and Railroad Avenue, and lots 31 and 30 adjoin it to the east, facing on North Avenue. Lot 32 is presently zoned as a "Class B" manufacturing use, which use permits a gasoline station. Lots 31 and 30 are zoned residential and a gasoline facility is not permitted. Each lot is 60 feet wide and 125 feet deep; lots 30 and 32 are vacant, lot 31 is improved with a one-story residence. Plaintiffs acquired title to the property about five months before commencement of the declaratory judgment proceeding. Plaintiffs had given the American Oil Company an option to purchase the three lots for $50,000 conditioned on their use as a gasoline station.

The findings of the master indicated that:

The northeast corner of North and Railroad Avenues, (lot 32) and north on Railroad Avenue on the east side of Railroad Avenue for 300 feet is vacant; the northwest corner of North and Railroad Avenues, having a 300 foot frontage on North Avenue and running northerly along Railroad Avenue about 200 feet until cut off by a railroad embankment, is also vacant; both of these areas are classified "Class B" manufacturing; the southwest corner of North and Railroad Avenues, having a frontage of approximately 300 feet on North Avenue and extending southerly about 500 to 600 feet, abutting the railroad embankment, is vacant and zoned "Class B" manufacturing; and the southeast corner of North and Railroad Avenues and extending east for one block is zoned "Class A" manufacturing and on it is situated a bowling alley and a parking lot utilized by patrons of the alley. *fn2 Turning from the zoning and use of the property surrounding the intersection, the findings of the master showed that within the one block east of the subject property there are six single family houses on the north side of North Avenue; that northward of the subject property is a large manufacturing district which includes the "large plant" of the Automatic Electric Company; *fn3 that northeast and a short distance to the rear of the subject property are three residences which front on Westward Ho Drive; and that west of the railroad abutment are manufacturing uses and the Tri-State Tollway. The findings of the master indicated that the uses and zoning of the nearby area are oriented toward a commercial-manufacturing use and/or development.

The master concluded that the zoning ordinance was invalid insofar as it prevented the use of the east 120 feet (lots 31 and 30) for a filling station. The Circuit Court adopted the master's recommendation that judgment be rendered for the plaintiffs.

According to the master's report, his conclusions were based on the following: the financial advantage which would accrue to plaintiffs; the disadvantage to the area of the subject property related only to the immediate block and not to the entire community; the depreciation in value of the proximate dwellings was considered nonexistent or nominal by plaintiffs' witnesses and of varying amounts by defendant's witnesses; *fn4 the west 60 feet of the subject property was zoned to permit a filling station and accordingly all of the depreciating factors attributable to a filling station would exist by virtue of the presently permitted use on the west 60 feet; the area of the subject property was presently, by zoning ordinance and actual use, burdened with commercial and manufacturing uses; the proposed use of the property for a filling station was compatible with public welfare and the extension of the use would not materially change the burdens which the residences in the area are presently shouldering.

From our examination of the evidence (which included an aerial photograph submitted in response to this court's request for a plat of the area, and stipulated as accurate by the parties) it is apparent that a comprehensive, almost fully built-up, residential development encompassing approximately 200 residences extends for three blocks *fn5 east of lot 32, and from North Avenue north for four blocks. The perimeters of this development are a major thoroughfare, North Avenue on the south, and a private road, Railroad Avenue, on the west and the manufacturing plant on the north. The installation of the private road from North Avenue to the plant created a very narrow strip of property (about 60 feet in width) zoned for manufacturing on the east side of the private road, which strip includes lot 32 and runs north of it, with its eastern boundary forming a straight line from North Avenue to the manufacturing plant. All the property east of this strip is zoned and developed "residential."

The master found that the proposed use of lots 30 and 31 would not constitute "spot zoning." *fn6 However, we believe that the effect of declaring defendant's residential zoning ordinance invalid as it applies to lots 30 and 31 would have the same consequence as "spot zoning" by permitting this two-lot encroachment of the manufacturing zone into an otherwise solid and regularly rectangular residential zone. To constitute spot zoning (in the sense of an illegal exercise of power on the part of a zoning authority) the two requisites which must coexist are: a change of zone applicable only to a small area, and a change which is out of harmony with comprehensive planning for the good of the community as a whole. 101 CJS Zoning § 34; 51 ALR2d 267; Dunham, Modern Real Estate Transactions, 74-84 (2d ed 1958). This type of zoning ploy is generally viewed with disfavor: . . . because . . . such practice has been employed in order to aid some one owner or parcel or some one small area, rather than being enacted for the general welfare, safety, health and well-being of the entire community.

(Metzenbaum, The Law of Zoning, ch X-m-5.)

Defendant's zoning ordinance and consequent classification of the subject property (lots 31 and 30) bears a reasonable relation to the public health, safety and comfort of the City of Northlake. The subject property had been zoned residential since 1954; moreover, the 1956 zoning amendments perpetuated this classification. *fn7 Plaintiffs' acquisition of the property in 1961 must be considered to have been made with knowledge of these enactments by the City. No evidence was adduced to indicate that the subject property's value has been diminished. *fn8 The possibility that rezoning the property might readily double its monetary value does not mean that the zoning ordinance is confiscatory. This has been discussed in Elmhurst Nat. Bank v. City of Chicago, 22 Ill.2d 396, at page 402, 176 N.E.2d 771:

Viewing the instant case in the light of these guiding considerations, it is evident that the subject property has been residential since the original zoning in 1923, that the suitability of this use was reviewed and perpetuated by the municipal authorities in 1942 and again in 1957, and that plaintiff purchased the property with full knowledge that it was zoned residential. Although there is no evidence of plaintiff's investment, it is not unreasonable to suppose that the price paid was commensurate with that purpose. Under these circumstances, it can hardly be found that the ordinance has diminished the value of plaintiff's property or is confiscatory. Nor does it become confiscatory by virtue of plaintiff's evidence that the property as zoned residential has a value of $200 per front foot, whereas if it is rezoned commercial it will bring $400 a front foot, for ...


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