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Harshman v. City of Dekalb

NOVEMBER 5, 1965.

DALE HARSHMAN, ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF DEKALB, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the Sixteenth Judicial Circuit, DeKalb County; the Hon. JOHN S. PETERSEN, Judge, presiding. Affirmed in part and reversed and remanded in part.

ABRAHAMSON, P.J.

Plaintiffs-Appellees, hereinafter called the "owners," brought suit in the Circuit Court of DeKalb County to declare that the existing zoning ordinance of the defendant-appellant, City of DeKalb, hereinafter called the "City," was unconstitutional and void as it affected their property and to permit them to use the property for business.

The subject property is two adjoining lots on the northeast corner of 13th Street and Sycamore Road in the City of DeKalb. The lots are each improved with single-family frame residences. Together they have a frontage of 194.2 feet on Sycamore Road and a depth of approximately 152 feet. The lots were annexed to the City in 1954 and zoned single-family residential. Sycamore Road is, at this point, a heavily traveled, four-lane highway.

Immediately adjoining the subject lots to the north is a shopping center known as DeKalb Market which includes a Jewel Tea store, a Spiegel's department store, a drugstore and several other, smaller, retail businesses. The front 120 feet, more or less, of the Market area is used for a paved parking area with the buildings themselves set behind. The Market area was taken into the City in 1958 in accordance with a preannexation agreement whereby the City agreed to zone it for business. North of the Market on the east side of Sycamore Road, the property is all zoned, and largely used, for business for over a mile.

The property on the west side of Sycamore Road is not in the City but commencing immediately opposite the Market and proceeding north it is extensively developed for small businesses.

There is a small alley separating the subject lots and the DeKalb Market and another alley directly across Sycamore Road marking the present boundary between residential and business uses on that side of the road.

13th Street is known as Hollister Street on the other side of Sycamore Road and continues for approximately a quarter mile before ending at the DeKalb Sanitary District Treatment Plant. There was some testimony that odors from the Plant could occasionally be detected at the intersection.

Sycamore Road south of the intersection with 13th and Hollister Streets is almost exclusively residential, except for an occasional nonconforming business use, into the heart of the City.

Two real estate experts testified for the owners and stated that in their opinion the property is worth between $27,500 to $29,000 for residential purposes and between $71,000 to $75,000 for business.

The City presented evidence that if the two lots were rezoned for business purposes there would be a significant increase in traffic at the intersection. This traffic increase, they urged, would be a hazard to school children in the area, create parking difficulties and result in a dramatic increase in the number of accidents. They also argued that the alley between the two lots and the DeKalb Market served as an admirable and natural boundary between the business use of the Market and the residences. They offered, as sound planning and a firm policy of the City, the theory that all four corners of any intersection should be similarly zoned. Acting on this theory, the change in the zoning of these lots would inevitably result in a further encroachment of business into the residential heart of the City.

At the conclusion of the hearing the trial court found that the existing zoning restrictions as they affected the owner's property were void in that they amounted to an unconstitutional confiscation without compensation and, in addition, ordered that they could make any improvements lawfully permitted under the present business classification of the City's zoning ordinance. A post-trial motion by the City to vacate the judgment order was denied and this appeal results.

It is well established that there is a presumption in the favor of the validity of zoning ordinances which can only be overcome by clear and convincing proof that the ordinance is arbitrary and unreasonable. Bennett v. City of Chicago, 24 Ill.2d 270, 273, 181 N.E.2d 96; Jans v. City of Evanston, 52 Ill. App.2d 61, 67, 68, 201 N.E.2d 663.

[3-5] It is also clear that the mere fact that property would be substantially more valuable if another use were permitted is not, in itself, sufficient reason to invalidate an existing zoning ordinance. Cosmopolitan Nat. Bank of Chicago v. Mt. Prospect, 22 Ill.2d 463, 470, 177 N.E.2d 365. A reviewing court, in determining the validity of a zoning ordinance, will consider a number of factors. The Supreme Court, in the case of Tillitson v. City of Urbana, 29 Ill.2d 22, at page 27, 193 N.E.2d 1, enumerated some of these factors as follows:

"In determining whether or not a particular ordinance serves the public interest, the court may consider the uses and zoning of nearby property, the extent property values are diminished by the restrictions, the benefits sought to be attained by the ordinance, the relative gain to the public as compared by the hardship imposed upon the property owner, and the suitability of the property for the zoned purposes. . . . If the public gain is small when compared with the hardship imposed upon ...


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