Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Reversed and remanded with
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Plaintiffs seek a declaratory judgment that a Lincolnwood zoning ordinance is void as it applies to plaintiffs' premises. Plaintiffs' direct appeal to the Illinois Supreme Court from an order which dismissed their cause at the close of plaintiffs' case has been transferred to this court for disposition.
[1-3] The sole question for review is the sufficiency of plaintiffs' evidence to establish a prima facie case for a declaratory judgment against the defendant Village of Lincolnwood. As said in Anderson v. Board of Education, 390 Ill. 412, 61 N.E.2d 562 (1945), at p 428:
"A motion to find for the defendant in a trial before the court without a jury concerns solely the sufficiency of the evidence to sustain a finding against the defendant and, therefore, raises only a question of law. The allowance of the motion, however, is not an adjudication of the issues of fact."
See, also, Kovac v. Ducharme, 2 Ill. App.2d 80, 82, 118 N.E.2d 629 (1954).
The subject property is ten adjoining vacant lots in the Village of Lincolnwood, Illinois. The lots, numbered 1 to 10, are located along the north side of Touhy Avenue, between Tripp Avenue on the east and Kildare Avenue on the west, with an east-to-west Touhy frontage of 262 feet, extending 125 feet to a 16-foot wide public alley on the north, or rear property line, containing approximately 32,750 square feet.
The record reveals that the north side of Touhy Avenue, on which the subject property fronts, is developed as follows. The block directly west of the subject property is unimproved. To the west of that block, commencing at Lowell, is an automobile filling station, to the west of which is a card shop, followed by a flower shop at the corner of Touhy and Kostner Avenues. The block further west, between Kostner and Lincoln Avenues, is occupied by a large restaurant. Continuing westward along the north side of Touhy Avenue, west of Lincoln Avenue, is the Hyatt House, a motor hotel and restaurant, to the west of which is the E.I. DuPont DeNemours Photo Products Company, a one-story structure housing offices and storage facilities.
To the north of the subject property, across the 16-foot public alley, and for four blocks to the east of the subject property on the north side of Touhy Avenue, are single family residences.
On the south side of Touhy Avenue, directly across from the subject property, is the Ansco Photo Products Company, a large factory-type, ranch structure, housing office, storage, and distribution facilities. On the east side of this structure are three loading docks. Directly west of the Ansco plant, on the south side of Touhy Avenue, is the Interstate Vending Company, an office and wholesale distribution facility. The next use to the west, running to Kostner Avenue, is a miniature golf course. On the southeast corner of Touhy and Lincoln Avenues is an automobile filling station. Continuing westward on the south side of Touhy Avenue, to the west of Lincoln Avenue, is a vacant lot followed by the Haynes Lithographing Company plant.
On the south side of Touhy Avenue, extending east from the Ansco plant, are single family residences.
The record indicates that Touhy Avenue is a "heavy-traffic" section line street, running from Lake Michigan on the east, through the City of Chicago, through Lincolnwood, Niles, Park Ridge and Des Plaines, until it reaches its western terminus at O'Hare International Airport. The evidence shows that the principal uses on Touhy Avenue are business or commercial, with some manufacturing, 75% of its total length devoted to these uses; 25% is residential, "very little" of which is devoted to single family use.
Under the original zoning ordinance adopted by the Village of Lincolnwood in 1927, plaintiffs' property was within a "C" single family dwelling district. On December 20, 1962, a comprehensive amendment to the zoning ordinance of the Village of Lincolnwood was adopted, and the subject property was placed in an R3 single family residence district, within which it is presently situated. (While this amendment was being considered, plaintiffs' petition for rezoning of their property from the "C" single family dwelling classification to the "F" commercial classification was pending. This petition was subsequently denied.)
Under the 1962 amendment, the vacant property fronting on the north side of Touhy Avenue, immediately to the west of the subject property, and the property for many blocks further west, is zoned "B1 Restricted Business District." The property immediately south, across Touhy Avenue, and for many blocks west, is also zoned "B1." The property to the east and to the north of the subject property is zoned "R3 Single Family Residence District." The plaintiffs' business or commercial uses are not permitted in the R3 district, but are permitted in a B1 district.
The only evidence offered and received in this case was that introduced by plaintiffs. Alan I. Rubens, a licensed real estate broker, manager and appraiser on the north side of Chicago and in the northern suburbs, testified for the plaintiffs, in substance, that the subject property and the block to the west are quite similar in character; that the highest and best use of the subject property would be a business use; that if the subject property were used for business purposes it would have a value of $450 per front foot (or $117,900), but if restricted to single family residence purposes, the value of the ...