Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 16, 1965.
This involves an appeal from a declaratory judgment entered in the circuit court of Cook County declaring that a B-2 commercial zoning of the property involved was arbitrary and unreasonable.
The plaintiff herein prior to the filing of the action unsuccessfully sought administrative relief from the village.
The defendant contends in this appeal that the classification of the subject property as B-2 commercial was a proper legislative determination of the village, and that the plaintiff had failed by clear and affirmative evidence to prove that the zoning of plaintiff's property was arbitrary or unreasonable.
The subject property fronts on Dempster Street at the northeast corner of Lockwood Avenue and Dempster. It lies just east of the four-leaf clover interchange of Edens Expressway at Dempster Street in the village of Skokie. According to one of defendant's exhibits the Dempster Street frontage is approximately 103 feet and runs to a depth of 113 feet on Lockwood Avenue. Dempster Street through the village of Skokie is a primary arterial thoroughfare with six lanes of traffic. To the east of the subject property on the north side of Dempster lies a vacant parcel of ground with 50 feet of frontage on Dempster. To the east thereof is a parking lot with approximately 300 feet frontage on Dempster, which lot extends north to an alley located approximately halfway between Enfield and Dempster Streets. The parking lot is used in conjunction with a bowling alley, restaurant and cocktail lounge which extend east from said lot to the intersection of Dempster and Laramie Avenue, one block from the subject property, and north on Laramie to Enfield Street, one block north of Dempster Street. East of Laramie on the north side of Dempster there is a Standard Oil Service Station, a parcel of vacant land, and then a Chrysler Motors dealer offering automobiles for sale and service. Continuing east for a distance of approximately 3/4 of a mile from the subject property the uses on the north side of Dempster are all business, and the zoning is classified as B-3. To the west of the subject property, across Lockwood Avenue, there is the Dempster-Edens interchange. To the west of the interchange, continuing into the village of Morton Grove, there is a Shell Station on the north side of the street at the corner of Central Street, and for a distance of two miles west to Waukegan Road the uses are business. On the south side of Dempster Street, immediately across from the subject property, there is a public park which extends east to Laramie. East of Laramie, on the south side of Dempster, there is a cleaning establishment, then two forty-year-old residences, to the east of which is a business building containing an electrical contractor, then a pizza pie dispensary, an automobile parts company, and a Bulko Service Station, which is located on the corner of LeClaire and Dempster. Continuing east on the south side of Dempster Street there is unbroken business zoning and uses extending to Skokie Boulevard. Going west of the subject property on the south side of Dempster there is the interchange, and approximately 800 feet west of the subject property is Central Road, at which point there is a Sinclair Service Station. Continuing west for about two miles to Waukegan Road there is unbroken business use and zoning, except for a small parcel devoted to public use which is a forest preserve. The first street to the north of the subject property is Enfield, which runs between Laramie and a point approximately 200 feet west of Lockwood, where it comes to a dead end at Edens Expressway. This street is improved on both sides with homes of an average value of approximately $25,000. Between Skokie Boulevard and Waukegan Road, on Dempster Street, the two residences previously described are the only residential uses presently in existence, and these two homes are situated on property zoned for B-3 use.
At the time plaintiff instituted this declaratory judgment action the subject property was zoned R-2 in the single family residential classification. After the plaintiff had completed its case before the master, to whom this case had been referred, and prior to the offering of proof by the defendant, the village rezoned the subject property, as well as the entire north and south sides of Dempster between Laramie and Edens Expressway, to a B-2 commercial classification. A real estate witness for the plaintiff characterized Dempster Street as a business street on both sides for a distance of approximately 2 1/2 miles. The subject property is located on one of the busiest interchanges in the metropolitan area of Chicago. The parking lot to the east of the subject site is lighted with mush-room-shaped fixtures because the bowling alley and restaurant are open twenty-four hours a day. The evidence does not disclose how long the cocktail lounge is open each day. That lighted parking lot is separated from the subject site by only 50 feet. The traffic on Dempster Street is between 20,000 and 25,000 cars per day.
The plaintiff sought by this action and obtained by the judgment entered below the right to construct a gasoline filling station on the subject site. The testimony for the plaintiff showed that if the zoning were changed to permit the property to be used for a gasoline filling station it would have a value of approximately $56,000. The plaintiff paid $37,500 for the property. There is evidence that the property zoned for B-1 or B-2 use is worth approximately $200 per foot. Under B-2 zoning a gasoline station is not a permissive use, however, at the time of the construction of the bowling alley, cocktail lounge and restaurant, in the years 1956 and 1957, a gasoline filling station was a permitted use under the B-2 commercial district zoning ordinance of the village of Skokie. The property occupied by the bowling alley, cocktail lounge and restaurant was zoned B-2 at that time. On September 12, 1959 the gasoline filling station use was taken out of the B-2 commercial district use and transferred to a B-3 business district use.
This is not a case in which the court is asked to invade a residential area with a nonresidential use. The municipality has already invaded this area by changing the residential zoning to a B-2 commercial district. A city planner who testified for the defendant stated that Dempster Street through Skokie is a primary arterial thoroughfare and that the highest and best use of the subject property would be an extension of the use which lies to the east, namely, off-street parking.
A real estate witness for the defendant testified that there were in the B-2 classification, in which the plaintiff's property had been placed before his testifying, permitted uses which might be considered deleterious to the area, such as an animal hospital, a dry cleaning plant, taverns, music schools, dancing schools, laundries, tire repair shops and used car lots, subject to special requirements. He further testified that it seemed to him that those uses generate enough noise and enough other nuisances to be not particularly advisable for a site that adjoins a good quality single family residential area such as that on Lockwood Avenue. Despite the opinion of this real estate appraiser, the village of Skokie had by its own ordinance rezoned the subject property to permit those uses.
Another defense witness testified that he lived at 5235 Enfield, Skokie, which is located immediately behind the bowling alley parking lot. He further testified that he had been subjected to nuisances from the standpoint of noise, the opening and closing of doors of cars and car trunks, and litter from the parking lot being cast over the fence into his property. He further testified that the lights on the bowling alley are so bright that he had been forced to put up awnings, because his bedrooms face the alley. He further stated that a gasoline station, in his opinion, would not help the situation. Apparently his chief complaint is against the operation of the existing parking lot, the noise and the lights from the bowling alley.
Several of the neighbors living on Enfield testified for the defendant to the effect that when they purchased their homes they did so relying upon the existing zoning on Dempster Street. This zoning, however, has been changed by the legislative authority of the village of Skokie in apparent disregard for the feelings of the owners of property on Enfield Street.
The evidence showed that there is very little pedestrian travel on Dempster Street at this location, and that no business could, in effect, rely upon the pedestrian travel.
There was the usual testimony that the installation of a gasoline filling station at this location would do damage to some property in the neighborhood, and there was evidence offered by the plaintiff that any deleterious effect on surrounding properties has already occurred because of the commercial establishment built to the east of the property, the parking lot, the ...