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Paschen v. Pashkow

SEPTEMBER 16, 1965.

LILLIAN PASCHEN, AS TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF HENRY PASHEN, DECEASED, PLAINTIFF-APPELLANT,

v.

AARON D. PASHKOW AND ROSE L. PASHKOW, HIS WIFE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. JOSEPH A. POWER, Judge, presiding. Judgment affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from a declaratory judgment in favor of the defendants entered at the close of plaintiff's case declaring that a covenant entered into in 1896 restricting Castlewood Terrace in the city of Chicago to single family residences was binding and enforceable. Plaintiff had sought the removal of the restriction in order to construct high-rise apartments.

Castlewood subdivision was subdivided and platted in 1896. The boundaries were, at the time of the platting of the subdivision, Ainslie on the north, Lake Michigan on the east (now Marine Drive), LaFayette on the south (now Gunnison) and Sheridan road on the west. Castlewood Terrace bisected the Castlewood subdivision and ran east from Sheridan road to Lake Michigan. The subdivision plat shows 21 lots on the north side of Castlewood Terrace and 22 lots on the south side. The rear of the lots on the south side of Ainslie and the north side of LaFayette abutted the rear of the Castlewood Terrace lots.

Plaintiff's lot 22 was on the north side of Castlewood Terrace and the east side adjoined Lake Michigan. Plaintiff's lot 64 was on the south side of Castlewood Terrace and the east side of said lot was Lake Michigan. Immediately to the west of plaintiff's lot 64 was plaintiff's lot 63. All of the deeds to the Castlewood Terrace lots contained the following pertinent restrictions:

"(1) That no building, except bay windows, porches porticos and front door steps shall be built or maintained upon said lots between the building line laid down and designated on the recorded plat of said subdivision and any part of the street designated on said plat as Castlewood Terrace or said Castlewood Terrace as extended.

"(4) That no apartment or flat building or structure built, used or adapted for the separate housekeeping of more than one family shall at any time be built or maintained upon said premises."

The lots facing Ainslie and LaFayette (now Gunnison) only had a ten foot building line restriction which expired in 1931. These lots have been improved with three and six flat apartments, and back up to the Castlewood Terrace lots. The lots on either side of Castlewood Terrace, except for plaintiff's lots and the lots abutting Sheridan road, were improved with single family residences. Many of these residences were constructed prior to 1920; however, they are well maintained. Since the platting of the subdivision, Marine Drive has been built and is presently the east boundary of the subdivision. The east terminus of Castlewood Terrace is now Marine Drive and its west terminus is Sheridan road. Castlewood Terrace is 50 feet wide and its length is 1200 feet. No streets intersect it.

Since the construction of Marine Drive plaintiff's lot 22 has a frontage of 189' 1 1/4" on Castlewood Terrace, and its easterly boundary line is 117' 2" on Marine Drive. Plaintiff's lot 64 since the construction of Marine Drive has a frontage of 150' 8 3/4" on Castlewood Terrace, and its easterly boundary is 118.41' on Marine Drive.

The building line restriction which provides for a setback of 25 feet from the street line of Castlewood Terrace includes plaintiff's three lots, as does the restriction to single family residences. Some of the homes are on single lots and some on two lots. Castlewood Terrace is substantially a homogeneous area, different in character from what was described by one of plaintiff's witnesses as "the blighted apartment district around it."

The number of vehicles travelling north and south at the intersection of Marine Drive and Lawrence avenue two blocks south of Castlewood Terrace on December 24, 1959, totaled 2467, and the total of vehicles travelling north and south at Marine Drive and Margate Terrace two blocks north of Castlewood Terrace on June 2, 1961 was 3202. The record does not disclose a traffic count of vehicles passing the intersection of Marine Drive and Castlewood Terrace.

Plaintiff acquired title to the lots in question in 1916. Between 1930 and 1935 Lincoln Park was extended from Montrose to Foster by reclaiming submerged land. Marine Drive was constructed along what was previously the water's edge. There have been 14 high-rise buildings erected on Marine Drive between Irving Park and Foster avenue, which streets are respectively 12 blocks to the south of and five blocks to the north of Castlewood Terrace. At the southwest corner of Ainslie and Marine Drive an 8-story high-rise apartment has been erected, and on the northwest corner of Gunnison and Marine Drive the Fairview Hospital has been constructed. At the northeast corner of Castlewood Terrace and Sheridan road an elementary school has recently been erected. The three lots upon which the school is located were condemned by the city of Chicago in trust for use of schools.

One of plaintiff's witnesses testified that the erection of a school at the northeast corner of Castlewood Terrace and Sheridan road has reinforced the residential homogeneous character of Castlewood Terrace. The fact that it has been erected at the west edge of the single family home enclave tends to create a wall between it and the "blighting influences on the western side of Sheridan road." It does not destroy the residential character of Castlewood Terrace but actually reinforces it. At the southeast corner of Castlewood Terrace and Sheridan road there is presently located a recreational and parking area for the McCormick Boys' Club. The club building is located at the northeast corner of Gunnison and Sheridan road. The portion of the boys' club's land located at the southeast corner of Sheridan road and Castlewood Terrace and fronting on Castlewood is improved by a fence, some landscaping with benches and a paved parking area for about six or seven cars which is under the exclusive control of the people who operate the boys' club.

The use to which the land fronting on Castlewood Terrace is devoted is not prohibited by any restrictive covenant involved in this case.

The evidence shows that there was a marked difference between the level of maintenance of the single family residences and property on Castlewood Terrace and that of Gunnison street to the south and Ainslie street to the north, and that the level of maintenance on Castlewood Terrace is superior to that of the other two named streets.

One of plaintiff's witnesses, who is a planning and zoning consultant, testified that he wholeheartedly agreed with the following statement in the report written by Jack Meltzer and Associates for the Community Renewal Program:

"Castlewood Terrace stands out as another single street of residences distinct from its surroundings. Again having a physical and visual terminus at both ends, it is unique by virtue of the housing types found here. Amidst an area which is solidly built up with apartment buildings and high-rise structures, this street exists as a segment of single-family dwellings.

"The balance between open space and buildings creates a visual contrast to the dense surrounding blocks. The abundance and maturity of the landscaping provides a sense of nature and freshness in juxtaposition to adjacent brick and asphalt environment, and a secluded atmosphere is thus achieved. Although abruptly defined by an institutional use and high-rise buildings at its end, the homogeneous composition within the major portion of the block retains the clarity of this area as an environment. Thus a quality of identity as a spatial unit exists for the block which is more than the sum total of each building and lot. The observer is impressed with the image of a style of life carried on at a relaxed pace."

This same witness testified that he did not know whether the covenant was essential to maintaining the previous described condition. This witness also testified that some of the residences are on 100-foot wide properties with gracious gardens, and that everything Mr. Meltzer has stated is true from the point of view of gracious living. However, he also testified that the use of the subject property for high-rise residences would in no way detract from the gracious living that now exists there. He likewise testified that his testimony had to do with the two corner properties, the subject properties, and their ...


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