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Bright v. City of Evanston

APRIL 1, 1965.

MICHAEL BRIGHT, PLAINTIFF-APPELLANT,

v.

CITY OF EVANSTON, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. Affirmed. MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This appeal is brought by the plaintiff from an adverse decision by the trial court in a declaratory judgment action seeking the court to declare unconstitutional and void the zoning ordinance of the city of Evanston restricting certain property to R-1 single-family use. The testimony of the many witnesses can be summarized as follows:

The subject property is located on the southwest corner of Davis Street and Judson Avenue in a R-1 zoning classification in the city of Evanston. Under R-1 zoning only single-family dwellings may be constructed on the premises.

The plaintiff testified that he is the owner of the beneficial interest in the subject property; that he is a realtor; that he buys and sells property for his own benefit, and that he had been engaged in that business since 1940. Plaintiff acquired the property in November 1954, for $12,515.48 with the knowledge that the property was zoned for single-family dwelling purposes, and that litigation had been pending since 1952 to enable an eight-story multiple dwelling to be built. At the time of the purchase of the property he had no intention of building a single-family residence, and he purchased the property to put a high-rise building on it.

The property has a total frontage of 100 feet on Davis Street and 138.5 feet along Judson Avenue. It has been zoned for single-family purposes since 1921, when the first zoning ordinance was adopted by the city. The R-1 single-family residence district wherein the subject property is located has an irregular western boundary. Directly behind the subject property the western boundary is the alley between Hinman and Judson. On the east the district is bounded by Lake Michigan, which is approximately two blocks from the subject property, on the south by Lee Street, some six blocks to the south, and on the north by Clark Street, two full blocks to the north of the subject property. The subject property is surrounded on all sides by property zoned and used for R-1 purposes. Immediately to the west is a large single-family residence in excellent condition and well kept. To the west of this residence and approximately ninety feet from the west edge of the subject property is the alley which forms the zoning district boundary. The Georgian Hotel building, which was built in 1926, and which the record indicates was to become an old peoples home on January 1, 1964, lies west of the alley in an R-7 district which fronts on Hinman Avenue. South of the subject property is a single-family residence purchased in 1952 for $27,500, and thereafter improved by an additional $5,000 expenditure. Its present value is estimated at $34,000. The remainder of the block south of the subject property on both sides of Judson is improved with single-family residences. South of Grove Street the single-family district runs west to Hinman Avenue. Directly across Davis Street to the north of the subject property is a large single-family residence. Just west of that residence are two single-family lots which are vacant. Two residences which were located on these lots have been torn down. Most of the area of these lots is landscaped but there was a small parking area on the north end at the time of the trial. The evidence discloses that this was an unlawful and unauthorized use and steps were being taken to eliminate it. Northward on both sides of Judson are well maintained single-family residences. Across Judson Avenue directly to the east of the subject property is a single-family residence built in 1955, and purchased in 1956 for $49,500. Directly to the east of that building is another residence fronting on Davis Street which was purchased for more than $50,000 some ten years ago, and further improved by the expenditure of an additional $10,000. On both sides of Davis Street to the east are comparable structures. To the west of the alley between Judson Avenue and Hinman Avenue on Davis Street is the Mather Home having a height of eight stories, and is situated at the northeast corner of Davis and Hinman. The Georgian Hotel on the southeast corner of Davis and Hinman is likewise eight stories high, and has a restaurant on the ground floor, the windows of which face on Davis Street. It extends from the alley to Hinman Avenue. The balance of the west half of the block south of the Georgian Hotel is devoted to multiple-family buildings. The balance of the west half of the block north of the Mather Home is devoted to multiple-story buildings.

This property has been in litigation since 1952, and the plaintiff purchased his interest while litigation in a previous case was pending and became the plaintiff in that case. The title of that case is Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270. The Supreme Court in that case instructed the trial court to dismiss the complaint for summary judgment for the reason that the plaintiff had not exhausted his administrative remedies. The plaintiff then sought administrative relief and upon denial brought the present suit.

An architect for the plaintiff testified as to the details of the 7-story 32-apartment building which the plaintiff proposed to erect on the subject property. It would be 62 feet 8 inches high, masonry exterior walls and concrete floor slab construction, with two elevators, three stairways, and air-conditioned. It would comply with all the Evanston Code provisions applicable to an R-7 use district. There would be offices, two dwelling units and 12 parking stalls, in addition to the lobby, on the ground floor. The entrance would be on Judson, with a driveway to the basement garage on Davis at the west end of the building. The R-1 height limit for residential buildings is 35 feet. The architect who had drawn plans for this building testified that in his opinion the most suitable use for the subject property was a seven-story 32-apartment building. That the zoning and uses to the west of Hinman Avenue are business and commercial for more than a half-mile. He felt that the influence on the subject property of the 85 foot high Georgian Hotel, even though more than 90 feet to the west of the subject property, was greater than the single-family 60 year old building immediately west of it.

The plaintiff also testified that he was the owner of a 7-story 120-apartment building and a 3-story 25-apartment building in Evanston, and that in his opinion the highest and best use for the subject property was a high-rise building.

The real estate witnesses called by the plaintiff testified that the value of the property for residential purposes was from $10,000 to $12,500, and for a multiple-story building the same property would be worth $50,000. One of these witnesses testified that he had examined the land east of the alley between Judson and Hinman to the lake and all of that property was residential. That the value of the homes was substantial, particularly east of Judson, with a minimum of $25,000 or $30,000 and running up to $60,000 to $75,000.

One of plaintiff's real estate witnesses testified in addition to the foregoing that there is a preponderance of old frame homes, 60, 70 and 80 years old; that the newest home is across the street from the subject property at Judson and Davis and was built in 1954, and another to the east of it was built at about the same time but that all the rest were old. He also stated that when you start mixing new houses with houses 40 to 50 years old you are mixing the market. This witness testified that the only adverse effect of such a development would be a slight effect on the old house to the south. He testified that the construction of a 7-story building on the said property would cause no more detriment than had already been created by the Georgian Hotel.

The Director of Planning for the defendant testified that the subject property is oriented toward Judson Avenue; that all the residences in the area are well maintained and structurally sound; that the area is one of three in Evanston which contain the bulk of Evanston's high value single-family residences. That according to the 1960 census, the two blocks of Judson north of Davis average $42,000 value per home. The subject block and the one east contain homes with an average value of $37,000 to $38,000; that in his opinion the highest and best use of the property is for single-family use comparable to what immediately adjoins it, to retain the continuity in the neighborhood. The reasons he assigned for his opinion were the orientation of the subject property toward Judson; the high quality, well maintained single-family residences for over a block in each direction on both sides of Judson; that the residences in that area give Evanston its unique character, being some of the larger, older homes in the community which have been well maintained and steadily improved. The few remaining lots have been utilized in recent years. There was continued pressure to develop the area for single-family uses, even to the point of rebuilding existing structures for new single-family purposes. That for forty years the city has stated its policy to maintain this as a quality single-family neighborhood. That policy is reflected in the land use plans of the 1930s, 1940s, 1950s, and in the zoning revisions in 1930, 1940 and 1960. Judson Street has relatively little traffic, relatively narrow pavement, wide parkways and trees, and a higher density would increase traffic volume and ultimately result in widening the streets and loss of the trees in parkways. This would, in his opinion, adversely affect the area. Another consideration given by this witness is the principle common in current planning of having common uses face each other across the street rather than have incompatible uses on opposite sides of the street; that incompatible uses should adjoin at the rear rather than opposite at the front. Current planning has been to protect this area by discouraging through traffic on Church and Davis. The proposed improvement anticipates a density 32 times greater than the density upon which plans for the area for streets, use and public facilities have been based. That if the zoning on the subject property were to permit the proposed use it would become difficult to find a logical boundary line.

Another witness for the defendant was a planning and zoning consultant with years of experience in preparing plans and zoning recommendations for many municipalities. He described the area as a neighborhood of older homes, single-family, some of very recent construction; a neighborhood of fine architectural development, of considerable variety with considerable continuity of development; it was unique in terms of no adverse effect from traffic or noise. The maintenance and upkeep of the structures is excellent. That from a zoning and planning standpoint the highest and best use of the subject property was for single-family residential purposes. The area is unique in that it is convenient to many facilities yet removed from noise, congestion and nonresidential uses; it is a quiet residential area with a minimum of traffic even though close to a business district, and has not been intruded by nonresidential uses. That the alley zoning boundary line orients the Georgian Hotel and Hinman Avenue multiple uses to Hinman Avenue, and the subject property is oriented to Judson and the single-family area to the east. He expressed the opinion that the highest and best use was for a single-family home in the $40,000 to $50,000 class, plus the lot. In his opinion the 85-foot high Georgian Hotel had no effect on the subject property and was not the cause of its not being improved during all these years.

Other witnesses for the defendant, who were familiar with the area and had appraised properties in the area during the past fifteen years, were, likewise, of the opinion that the subject property was highly desirable for single-family purposes, and that the multiple use property west of the alley did not affect its desirability for such use because the property next to the alley to the west of the subject property was single-family and the alley was a zoning buffer.

One real estate appraiser for the defendant testified that in his opinion properties immediately to the south and west would be affected in loss of value as much as 25% and would taper down to the corner. The properties across the street would be depreciated because of the inharmonious use in a well established single-family area. Traffic would increase in and out of two entrances from Davis Street and Judson Avenue, and there would be additional cars and service trucks.

The evidence of the defendant further showed that there was a definite market for single-family residences in the area, and that an individual desiring to build a single-family home on the subject property would be justified in spending at least $40,000 to $55,000. To the knowledge of the defendant's witnesses the subject property had never been listed for sale.

Another real estate witness testified that this area was the number one residential area in Evanston, and that the market value of the property immediately adjoining the subject property would be depreciated by 25% and less as one went further away. This witness said that if the lot had been available for sale he knew at least three builders who would be interested in it.

The evidence further showed that the plaintiff had been offered for the subject property about $18,000 several years before the trial. He said that he had received an offer in 1955, in 1957 and the last one was in 1959. That a Mr. Lucas offered him $20,000 if he could resubdivide the property for two residences, but that he was not interested in selling at that figure. He also testified that he had put about $30,000 in the property and he wanted to get his money out. From the evidence it would appear that he arrived at the $30,000 figure by adding the cost of the property plus his costs of litigation, and taxes that are about $450 a year. The subject property is 600 square feet short of the requirement for two single-family units under the R-1 classification. Plaintiff refused to seek the variation, since he bought the property for multiple use and would not consider taking less than $30,000 for the parcel.

The real estate witnesses for the defendant testified that the subject property as presently zoned is worth from $20,000 to $25,000. Several property owners living in the immediate vicinity of the subject property testified for the defendant. All of them testified that they had investigated the zoning in the area before buying and would not have purchased their property if the subject property had been zoned or used for multiple-family purposes. All testified that the proposed use would be detrimental to their property. One such owner, who lives 200 feet from the subject property paid $42,500 for his two-story brick and stucco ...


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