Appeal from the Circuit Court of Lake County; the Hon. JAMES
COONEY, Judge, presiding. Judgment reversed.
MR. JUSTICE O'SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 28, 1967.
This is a declaratory judgment action to test the validity of R-2 Single-Family Zoning of a tract of approximately five acres of land in the City of Waukegan in Lake County. Plaintiff desires to build apartments on the property. The Trial Court found the single-family zoning invalid as to the "East Portion" of the subject property but valid as to the "West Portion."
Plaintiff is the owner of an L-shaped, unsubdivided tract, comprising fifteen acres on the north side of the City of Waukegan in Lake County. The entire tract is zoned R-2 single-family residential. Plaintiff originally petitioned the Zoning Board of Appeals of the City to rezone the entire tract for apartment use. The Zoning Board approved the Petition, but the City Council denied relief. Plaintiff then petitioned for a rezoning of the easterly five acres for apartment use. Both the Zoning Board and the City Council denied plaintiff's Petition. This suit was then filed, concerning only the zoning of the easterly five acres.
The intervenors-appellants are property owners, who reside in single-family homes adjacent to the subject property on its south boundary in the Marycrest Subdivision.
The property in question is approximately five acres in size and vacant. It measures 780 feet from east to west and 328 feet from north to south. The property on the east is zoned for commercial purposes and is developed with the Topps and Bells Discount Stores. The property on the south is zoned R-3 for single-family residential purposes and is completely developed with single-family homes in the Marycrest Subdivision. Slightly south and east of the subject property is a small tract, zoned R-5 for apartment purposes. The only improvement on that property is one single-family home. The property to the west is vacant, zoned R-2 single-family, and owned by plaintiff. Southwest of the subject property is the Berry's Fair Oaks Subdivision, zoned R-2 and developed with single-family homes. Directly north of the subject property is the Clearview Apartments, zoned R-5 and developed with apartment buildings. West of the Clearview Apartments are a public school, an Army Reserve Training Center, and public housing units. All of these uses are zoned R-5.
The property in question is unsubdivided. Berwick Avenue dead-ends at both the north and south side of the property approximately 120 feet east of the west edge of the subject property.
The court entered a Judgment Order in the matter, finding among other things: That Berwick Avenue terminates at both the north and south boundaries of the subject property and if continued through, a straight connecting course would bisect the subject land, and said subject land is for the purpose of this Order divided into two parts one called the "East Portion," being that part east of a line drawn straight between the easterly side of the termini of Berwick Avenue, both north and south of the subject property, and the balance of the subject land being herein called the "West Portion"; and that said property is zoned R-2 District, single-family residence district, under the Zoning Ordinance of the City of Waukegan, Illinois, as amended April 24, 1961.
In said Order the court found (1) that the "East Portion" of the subject land is adversely affected, by the commercial development along Lewis Avenue and abutting it on the east, for uses permitted under R-2 Residence District Classification, and (2) that its highest and best use is for multiple-family dwellings; that said Ordinance, as it purports to restrict the "East Portion" to R-2 single-family residence use, is unreasonable and accordingly invalid; that the refusal to grant the change of classification, requested by plaintiff, as to the "East Portion" is unreasonable; and that as to the "West Portion" and its removal from the Lewis Avenue uses, and its being the gateway to the ten acres to the west with the single-family uses to the south, the application of the present authorized uses is in keeping with the uses, surrounding it, and that such application is not unreasonable or invalid.
Defendants contend that the zoning classification of the subject property is presumed valid; and that where a fair difference of opinion exists, the court has no power to rezone the property. They also contend that the Trial Court erred in dividing the property for zoning purposes. The Trial Court in effect cut Berwick Avenue through, held the single-family zoning on that part of the subject property east of Berwick to be invalid and held such classification valid on that part of the property west of Berwick. In Fiore v. City of Highland Park, 76 Ill. App.2d 62, at page 67, 221 N.E.2d 323, the court said:
"It would serve no useful purpose to reiterate here the oft-repeated factors to be considered in determining whether a given zoning ordinance is invalid as applied to particular property. See: Myers v. City of Elmhurst, 12 Ill.2d 537, 543, 544, 147 N.E.2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40, 46, 47, 145 N.E.2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill. App.2d 241, 244, 201 N.E.2d 177 (1964). Such factors will be referred to herein insofar as they are relevant to the determination of this case."
Such procedure will be followed in this opinion.
The Trial Court has no authority to divide the property. As the Supreme Court said in the case of Bredberg v. City of Wheaton, 24 Ill.2d 612, at page 624, 182 N.E.2d 742:
"We may say at once that nothing in our decisions in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d 370, and Illinois Nat. Bank & Trust Co. v. County of Winnebago, 19 Ill.2d 487, was intended to permit a Trial Court to constitute itself as a zoning ...