Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Reversed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 9, 1966.
This is a zoning case. The defendant Village appeals from a chancery order which granted permission to plaintiffs to construct a multiple dwelling on vacant lots zoned for single-family dwellings and directed defendant to issue the necessary permits.
The subject site is zoned R-2, Single Family Residential. Plaintiffs seek to rezone the site to R-4, Multiple Dwelling, so as to erect on it a 17-unit apartment building, consisting of ten 1-bedroom and seven 2-bedroom apartments.
The subject property consists of four vacant lots at the southeast corner of Niles Center Road and Davis Street in the Village of Skokie. The address is 9057-67 Niles Center Road, a secondary arterial thoroughfare. The tract is irregular, with an 108 foot frontage on Niles Center Road, a depth of 125 feet on the south, and a frontage of 100 feet on Davis Street on the north. It contains approximately 16,000 square feet and has a grade change of from 8 to 10 feet to an alley on the east.
The entire block immediately to the south is zoned for single-family residential and so developed. The blocks immediately to the west and north of the subject property are improved with multiple dwellings. The blocks to the east, with the exception of the immediate block, are zoned for single-family dwellings.
Plaintiffs' complaint in chancery alleged the ordinances of the Village of Skokie prevented the "highest and best use" of the subject land and deprived plaintiffs of its "highest and best economic use," and that the ordinances "have no reasonable or substantial relationship to the public health, safety, comfort, or welfare and are a cloud upon the plaintiffs' title and destructive of the value of the property. . . ." Plaintiffs prayed that the zoning ordinances "be declared null and void" and removed as a cloud on plaintiffs' title to the subject property. Plaintiffs additionally sought a permanent injunction restraining the Village from enforcing the ordinances.
The matter was referred to a master in chancery, and the record contains a report of the proceedings before the master. The master found "that the highest and best use of the property in question would be for multiple apartment development," and that such development "would not in any degree be contrary to the public welfare" and "would not adversely affect the property owned by the objectors, who appeared before the Master, to any appreciable extent." The master further found that plaintiffs had "overcome the presumption of validity of the zoning ordinance and have proved by clear and convincing evidence that the zoning restriction is invalid in its application to the subject property," and recommended that a decree be entered in accordance with the prayer of plaintiffs' complaint.
The decree overruled objections to the master's report and adopted the findings. The decree granted plaintiffs "the right and permission" to use the subject property "to its highest and best use by improving said vacant property with seventeen (17) apartments, all in accordance with the applicable multiple zoning requirements of the Village of Skokie," and directed the Village to issue the necessary construction permits. The decree also taxed the master's fees and charges against the defendant, and the court retained jurisdiction for the purpose of enforcing the decree. The decree further found that "there is no just reason for delaying enforcement of or appeal from this Decree."
Plaintiffs' witnesses consisted of the two plaintiffs, a planning and zoning consultant (George H. Kranenberg), and a real estate broker (Ben Friend). Plaintiffs, in the business of constructing and selling family dwellings, purchased the subject property in August or September of 1963 and paid $19,000 for it. They knew it was zoned for single-family use and intended to build three single-family homes on it. They had plans drawn and, after receiving bids which indicated "a cost of twenty-five thousand dollars per house without including the price of the land," it was decided that the cost of each house would be more than the value of the houses on the rest of the block, and "that multiple would be a better thing."
Plaintiffs' witness George H. Kranenberg testified that in his opinion "the highest and best use from a planning and zoning standpoint of the subject site is for multiple family dwellings." He further testified, "In the immediate area of the subject site on Niles Center Road and in all directions except to the south the property is zoned for multiple family and so improved. . . . These uses are all uniform and established as they relate to the subject site so on all sides we have apartment zoning, apartment use which is the use that is uniform and established in this location, the only exception is the property directly to the south of the subject site and extending for two blocks south thereof. . . . Also the subject property has been vacant and has never been developed while the other property in the area is developed. For all of these reasons, it is my opinion that the property is best suited and best developed for multiple-family dwellings. Niles Center Road is one of the principal thru streets north and south street in the Village of Skokie. The residences that have been erected south of this property on Niles Center Road are not a proper use for this area."
On cross-examination, he stated, "I see nothing wrong with having two different zoning districts in the same block. . . . The predominant character for the subject property is reflected from the northeast and west rather than from the south."
Plaintiffs' witness Ben Friend, a real estate broker, who had represented owners of some of the single-family residences in the subject block to the south, testified that "in the general area on Niles Center Road approximately seventy-five to eighty per cent of the area is multiple dwellings." In his opinion "the value of the subject property for multiple dwelling purposes would be between thirty-four to forty thousand dollars. . . . I would say that the property would not depreciate any single family dwelling residences in the area because of the multiple dwelling across the street, the multiple dwelling on each corner, also multiple dwelling east of there and I believe that the proposed development would enhance the valuation of the property in the neighborhood."
Defendant's witnesses were a city planning expert (Rolf C. Campbell), a real estate broker and appraiser (Roy Gottlieb), a Village traffic engineer, ...