Appeal from the Circuit Court of Cook County; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 9, 1966.
The defendant, The Village of Wilmette, appeals from a decree in chancery, based upon the recommendation of the Master in Chancery, declaring that its zoning ordinance is arbitrary, oppressive, prohibitory, discriminatory and confiscatory as regards plaintiffs' property. Defendant in appealing directly to the Supreme Court urged that a substantial constitutional issue was presented and in particular that the following novel issues were involved:
"(a) Whether despite an admitted lack of need for change, such change may be imposed by a court.
(b) Whether an owner whose property is successfully devoted to a conforming use, may join with neighboring owners differently circumstanced, in order to devote their collective properties to a common use.
(c) Whether this court [the Supreme Court] should hold this case because of its 1963 decision approving service station use on the opposite corner."
The Supreme Court transferred the case to the Appellate Court.
Plaintiffs filed a petition with The Village of Wilmette by which they sought the rezoning of three separately owned parcels of land from an R-3 Group House classification to B-2 General Business to permit the erection and construction of a gasoline service station. Pursuant thereto a hearing was held by the Special Zoning Committee of the Village which denied plaintiffs' request. The decision of that committee was affirmed by the Village Board after which this action was instituted. The subject property, considered as one tract, lies at the southeast corner of the intersection of Lake Avenue and Skokie Boulevard within the Village of Wilmette. It is almost a truncated triangle in shape, having a frontage of 151.16 feet on Lake Avenue, 237.36 feet on Skokie Boulevard, a southerly line of 68.75 feet and an east line of 247.43 feet. One of the corners has been rounded off where a traffic curve from Skokie Boulevard to Lake Avenue was installed. Parcel 1 is vacant and consists of the southeast corner of Skokie Boulevard and Lake Avenue; parcel 2 is also vacant and has frontages on Lake Avenue and Skokie Boulevard; parcel 3 is improved with an old frame residence which fronts on Lake Avenue and has an old frame garage, 12' 2" x 18' 1 1/2", on the easterly side of its lot about 119 feet south of Lake Avenue. Plaintiffs propose leasing the subject parcels, which taken together consist of approximately 31,500 square feet, *fn1 to the Standard Oil Company.
The block in which this property is located is itself triangular in shape with frontages on Lake Avenue, Skokie Boulevard and Hibbard Road and is zoned as an R-3 Group House district. Within that block, to the east of parcel 3, is a group house containing six dwelling units situated at a right angle to Lake Avenue so that its front faces west across parcel 3. Proceeding east there are located three old single family residences which face Lake Avenue and at the southeast corner of Lake Avenue and Hibbard Road there is a new group house consisting of four units facing Hibbard Road. South on Hibbard Road facing Hibbard is a Public Service Substation, two group houses situated at right angles to Hibbard Road, then unimproved land followed by three group houses situated on a triangular parcel formed by the crossing of Skokie Boulevard and Hibbard Road; none of these buildings fronts on Skokie Boulevard; they are either at right angles to Skokie Boulevard or face Hibbard Road. Proceeding northwesterly along the east side of Skokie, north of the last mentioned group houses, there is an old residence facing Skokie Boulevard, then "Hammond Gardens" where vegetables and nursery products are sold (a nonconforming use), then group houses siding on Skokie Boulevard. There is a community of parking and recreation facilities between the group houses on Hibbard Road and those on Skokie Boulevard which are adjacent to one another. Next is the subject property.
Approximately two blocks west of the subject property Lake Avenue crosses over the Edens Expressway at right angles, via an overpass. Cloverleafs constructed at the overpass connect Lake with the expressway and it appears that this is the only point of access to and egress from the expressway in the village. The result has been extremely heavy traffic on Lake which is building up year by year. Running northwesterly from its intersection with Lake, Skokie Boulevard also intersects Edens Expressway a quarter of a mile away at the northern village limit.
On the northwest corner of Skokie and Lake there is a large tract of land which is occupied by the Edens Plaza Shopping Center which fronts on the west side of Skokie Boulevard and the north side of Lake Avenue and has about 23 retail businesses and parking facilities for over 1,000 cars. The stores in the area operate each day except Sunday, and three nights a week. Throughout the parking area, which is the specific part of the business district diagonally across from plaintiffs' land, there are lights which are illuminated on nights the center is open.
At the southwest corner of the intersection of Skokie Boulevard and Lake Avenue there is a triangular parcel of land which has about 180 feet of frontage on Skokie Boulevard and is improved with a gasoline service station which sells Marathon brand gasoline. Adjoining the Marathon station on the south, and extending along the west side of Skokie for about 1,500 feet, is a residential development known as Wilcrest Manor, which has been built since the development of the shopping center and the heavy traffic pattern at Lake and Skokie. The residences in this subdivision are all constructed so as to face away from Skokie Boulevard and are shielded from Skokie by a seven foot stockade fence. At the intersection of Skokie Boulevard and Wilmette Avenue, approximately one-half mile south, three of the corners are occupied by gasoline stations and the fourth is occupied by a retail drugstore.
At the northeast corner of the intersection of Skokie Boulevard and Lake Avenue there is an eight acre tract which is occupied by the Thalmann Nursery, also called the Chalet Gardens, which is in part improved with a building in which nursery products, gardening supplies and tools, gifts, pet supplies and the like are displayed and sold, has outdoor display of articles for sale, parking facilities for about 70 cars, and outdoor nurseries. To the north of the Thalmann property along the east side of Skokie Boulevard is the Skokie Valley Baptist Church. Next are some residences, all of which back up to Skokie Boulevard and front on interior streets to the east of Skokie Boulevard and have high stockade fences along Skokie Boulevard. On the easterly portion of the Thalmann property, facing the north side of Lake Avenue and across the street from a portion of the subject premises, there is a single family residence building which is also used by Thalmann as an office. Next (east) there are six single family residences, the most easterly of which is at the corner of Hibbard Road.
Evidence was introduced by both parties as to the effect on the group houses adjacent to the subject property if a service station were built thereon. Plaintiffs' witness, Manke, testified that the group house to the east would not be adversely affected because its recreation area is to its east and there is and will be effective screening, that these are rental units and tenants are less selective than owners. Plaintiffs' other witness, Edelberg, testified that the depreciatory effect on the town houses had already taken place when they were developed with the commercial uses and traffic patterns in the area, that the group house to the east already looks out on the Marathon gasoline station, the shopping center, the nursery and a considerable amount of traffic movement at the intersection. Defendant's witness, Witkowsky, testified that the proposed service station would adversely affect the entire group house to the east and two units of the group house to the south. He stated that a gasoline station on the subject property would depreciate the row house to the east 20% of its present value, and the one to the south, 5 to 10%. Defendant's witness, Farr, testified ...