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 April 20, 1965.
Plaintiff, after exhausting his administrative remedies, sought a declaratory judgment to effectuate a change in use classification of his property from "B-1 Neighborhood Shopping District" to "B-3 Business District." The decree of the Circuit Court held that the classification of plaintiff's property as B-1 was unreasonable and void and ordered that plaintiff be permitted to construct a gasoline service station on the property. Defendant appeals.
Defendant contends that the classification of the "B-1 Neighborhood Shopping District" as applied to plaintiff's property and the exclusion of the gasoline station therefrom was a valid exercise of legislative judgment and must be sustained unless clearly shown to be arbitrary. Plaintiff argues that the zoning classification cannot be sustained where there is nothing inherently different in the character of the business which the plaintiff seeks to establish on his property from other permitted business uses.
Plaintiff testified that he "was aware that an automobile service station could not be erected on the subject premises" when he purchased the property for $50,000 in January 1963; that the purchase price "might have included some fees in addition to the price of the property"; and that at the time he purchased the property he had "a verbal agreement with Shell Oil Company" that he would "build the station and lease it back to Shell for approximately $9,000 or $10,000 a year with a fifteen year lease."
The subject property, 125 feet by 127 feet, comprised five vacant lots located on the southwest corner of Crawford Avenue and Church Street in the Village of Skokie. Directly south of the subject property is an alley, south of the alley are four vacant lots; south of these lots are "residential properties"; at the southeast corner is a vacant tract extending 500 feet south from Church Street (zoned B-1); extending south and southeast of the tract is Timber Ridge Subdivision which is "built up with residential parcels." At the northeast corner are seven small stores *fn1 comprising the Crawford-Church Shopping Center; a restaurant is situated on the northwest corner; north of the restaurant is a residence; and north of the residence is a trailer court (one-half block from the intersection). West of the subject property on Church Street is a two-story building, a barber shop and beauty salon occupy the first floor, an "apartment or an office" are on the second floor.
The subject property is zoned B-1 Neighborhood Shopping District. The ordinance permits the following uses relating to automobiles: *fn2
8. Garage, public, except that the portion of such building which is used for repairing or servicing shall occupy not more than sixty (60) per cent of the total floor area and no lot or portion thereof shall be used for the display of used cars.
15. Parking space and lots for the parking of automobiles.
The B-1 regulation also permits: "accessory buildings and uses customarily incident" to the permitted uses, and a sign or bulletin board. *fn3
A "filling station" (permitted under B-3 but not under B-1 classification) is defined *fn4 as:
Any building, structure, or land used for the dispensing, sale or offering for sale at retail, of any automobile fuels, oils or accessories. When such dispensing, sale or offering for sale is incidental to the conduct of a public garage, the premises are classified as a public garage.
The plaintiff requested a change in the use classification to B-3 Business District. Defendant's witness, M. Eugene Baughman, a city planning ...