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Berger v. Village of Riverside

APRIL 5, 1966.




Appeal from the Circuit Court of Cook County; the Hon. JOSEPH A. POWER, Judge, presiding. Judgment order affirmed. MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

This is an appeal from a declaratory judgment order entered June 23, 1964, in the Circuit Court of Cook County which contained findings that certain provisions of the zoning ordinance of the appellant Village of Riverside have no relation to the public health, morals, safety, comfort or welfare as applied to the appellees' property, and constitute an unconstitutional deprivation of the appellees' property. The court ordered that the Village permit the appellees to construct an eleven apartment building on the property in question, even though the Village had zoned it for two-family dwellings.

As shown by findings made in the judgment order, the appellees are the owners of certain real estate located in the Village of Riverside and extending from the southwest corner of York Road and Harlem Avenue to the northwest corner of Shenstone Road and Harlem Avenue. The length of the property along Harlem Avenue is 218 feet, 2 inches; it extends along York Road 133 feet, 7 3/8 inches; it has a length on Shenstone Road of 107 feet, 2 3/8 inches. The development along both Shenstone and York Roads has been in the character of single-family residences. Harlem Avenue, on the other hand, is a major traffic artery with multiple-family dwellings and light business and commercial uses on both sides of the street.

The argument of the appellant Village is that the classification of this property for two-family dwellings is proper transitional zoning and acts as a buffer between the commercial and apartment character of Harlem Avenue and the single-family residences on York and Shenstone Roads. The appellees insist that the character of the land is determined by Harlem Avenue and argue that they should be allowed to construct a multiple-family dwelling which use would be in keeping with the character of Harlem Avenue. They point out that there are single-family residences all through the area and that there is no transitional zoning provided for except for this parcel of land and the land immediately to the south, which extends less than a block along Harlem Avenue.

There is a map in evidence showing the property uses along Harlem Avenue for some distance in either direction from the subject property. Harlem Avenue is a north-south street and is in this area the dividing line between the Village of Riverside and the Village of Berwyn. The appellant Village of Riverside claims that the development on the Berwyn side of Harlem Avenue cannot be taken into account. It is argued that any zoning must begin and end somewhere and that a street is a perfectly good place to mark the end of one type of zoning and the beginning of another type. In support of this proposition, the Village cites Mundelein Estates v. Village of Mundelein, 409 Ill. 291, 99 N.E.2d 144 (1951). That opinion reads in part:

". . . Appellants' position is based largely on the decision in Forbes v. Hubbard, 348 Ill. 166, which stated that in zoning property of the character there involved, dividing lines should avoid making one side of a main artery of travel purely residential, where the opposite side is used as business property and has established its character as such. The Forbes case does not set any hard and fast rule as to the location of dividing lines along streets, and the decision was, as is true in all zoning cases, based on the peculiar facts of that case. The same facts do not exist here, nor are the properties and locations involved substantially similar. It is true, also, that some physical features of a street such as width, gradient, and its utilization by various means of transportation may make it desirable, reasonable and best for public safety and convenience, that one side be zoned for residence purposes and the other side for commercial use. For the most part, despite the decision in the Forbes case, we have held that where the question of whether property should be characterized as residential or as commercial is fairly debatable, it is a question to be answered by the city council and not by this court. (Wesermann v. Village of LaGrange Park, 407 Ill. 81; Neef v. City of Springfield, 380 Ill. 275.) Zoning must begin and end somewhere, and we cannot, in this instance, say that it was arbitrary or unreasonable to make Lake Street a dividing line between zoning districts. The question of the character which attaches to appellants' property is certainly debatable, and as the trial court must have felt, we see no purpose in changing the characterization fixed by the village of Mundelein." 409 Ill. 291, 296, 99 N.E.2d 144, 147, 148 (1951).

[1-5] It is a basic tenet of zoning law that each case must be decided on its own facts. There is no question but that a street can be a proper dividing line between zones; the only question is whether the zoning ordinance as applied to the parcel in question is reasonable. In determining this, the court must look to all the surrounding uses. The court should consider the uses on the other side of the street, even though that property is located in another Village. Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767 (1932). Of course, the fact that the property across the street is zoned for apartment houses is not conclusive of the question at bar, and does not foreclose the proper use of transitional zoning. It seems clear, however, that all the surrounding uses should be considered to determine whether a zoning classification is reasonable.

There is an exhibit in evidence showing the property uses along Harlem Avenue for some distance in either direction from the subject property. This map begins on the north with the Illinois Central Railroad tracks, and immediately to the south on the west side of the street — the side in Riverside — are four empty lots with a frontage on Harlem Avenue totaling 100 feet. Immediately south of these lots, Berkley Road intersects Harlem Avenue and the next block is devoted to business uses. The business uses as listed on the exhibit are a printing company, a drive-in, a cleaner and a gas station.

Across the street to the south of the gas station is another gas station, the next uses to the south being a beauty shop and a contractor's office. There then follows on this same block, 16 lots occupied by multiple-family residences. The next two lots are used for two-family residence purposes, and the following 13 lots are again occupied by apartment buildings. At the south end of this block are three lots occupied by a funeral home.

The next block to the south was originally zoned for two-family residence purposes, and the four southernmost lots on this block have been used for this purpose. Since the original zoning, however, the ordinance was changed to permit the development of the rest of the block for multiple-family residence purposes, and the land has been so developed. The land on Harlem Avenue in the following block is the subject property, which is vacant.

Immediately south of the subject property the land is zoned for two-family residence purposes, the same zoning as the subject property. This land is vacant except for a nonconforming use in the form of a four-story, 30 apartment building located on the southern 90 feet of that block. The first half of the next block is occupied by a single-family residence, the southern portion of that block containing a truck garage, a beauty shop, a delicatessen, and an insurance company office. The following block has a paint store, a restaurant, a florist, another beauty shop, a cleaner, a laundromat, a men's clothing store, a restaurant, a drug store and a drive-in restaurant. The short block at the southern end of the map shows a gas station.

Thus it can be seen that the west side of Harlem Avenue is devoted almost entirely to multiple-dwelling and commercial use. The entire area behind these lots, moreover, is used for single-family dwelling purposes.

On the east side of the street, located in the Village of Berwyn, immediately across the street from the subject property, are 10 lots devoted to multiple-family residence use. Of the 13 remaining lots on this block, 10 are being used for multiple-family residence purposes and three for single-family residences. The block north of this has nine lots used for multiple-family residences and 12 lots being used for business purposes including an auto repair shop and a restaurant and lounge. The block south of the block immediately across the street from the subject property has two lots used for multiple-family residence purposes and 33 lots devoted to business purposes.

It is unnecessary to discuss all the particular uses for this entire strip of land on the east side of Harlem Avenue. The exhibit shows that there are no more single-family residences on the east side of the street than on the west, and a greater proportion of the land is used for business purposes than on the west side of Harlem.

The question for determination here is whether the classification of the subject property as "B1 Residence District — Duplex" is a valid use of so-called transitional zoning. It is clear that a municipality may choose to place a buffer zone between business and commercial uses on the one hand and single-family residences on the other. The difficulty here is that the Village of Riverside did not see fit to use ...

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