Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Defendant appeals from a judgment declaring invalid, and restraining enforcement of, the Village Zoning Ordinance insofar as it classified plaintiff's property as B-1 (Neighborhood Shopping) and B-2 (Commercial), and thereby prevented its use for a combined automatic car wash, gasoline service station, accessory store and automobile diagnostic center.
The subject property (approximately 75,000 square feet in total area) fronts 180 feet on the west side of Skokie Boulevard, a six-lane primary arterial thoroughfare, just south of Emerson Street. Proceeding northward from the subject site on the west side of Skokie Boulevard to Simpson Street are: the Old Orchard Theatre and parking area; a bowling alley complex known as Orchard Twin Bowl, including an indoor tennis court, cocktail lounge, restaurant and parking area; Estee Sleep Shop (a retail store); an area of vacant land; three more retail businesses (a refreshment stand, a fish store, and the Olson Rug Company); and, at the southwest corner of Simpson Street and Skokie Boulevard, the Vogue Tire and Accessory store. North of Simpson Street on the west side of Skokie Boulevard and extending to Old Orchard Road, is the large Old Orchard Shopping Center.
South of the subject site, along the west side of Skokie Boulevard, are the Homer Bros. Furniture store, Dominic's supermarket, Polk Bros. discount store, and, at the corner of Gross Point Road and Skokie Boulevard, Mr. Ricky's Restaurant.
Northward, along the east side of Skokie Boulevard from the intersection with Gross Point Road, are a Shell gasoline service station (which also manually washes and services cars and does minor repair work), a B.F. Goodrich Auto Accessories store (which sells tires and parts, and has a series of service bays where mufflers, brakes and other auto parts are installed), a Howard Johnson's Motor Lodge and Restaurant (directly opposite the subject site), a Turnstyle Discount Center (which includes a garden center and a Firestone automotive center), a Kiddieland amusement center and golf driving range, and on the southeast corner of Simpson Street and Skokie Boulevard, Henry's Restaurant. North of Simpson, on the east side of Skokie Boulevard and extending to Old Orchard Road, is the Memorial Park Cemetery.
To a depth of 125 feet the frontage property along the west side of Skokie Boulevard running about two-thirds of the way from Gross Point Road to Simpson Street, is zoned B-1 and the rest of the area in question is zoned B-2. The dividing line passes through the buildings of Homer Bros. Furniture store and Estee Sleep Shop, and across the subject property and that of the Old Orchard Theatre and the Orchard Twin Bowl, the actual structures of which are in the B-2 zone. Proceeding north of the Sleep Shop there is a small area fronting on Skokie Boulevard which is part of, and leads west to, a much larger area, the balance of which fronts on Simpson Street opposite the south side of the Old Orchard Shopping Center, and is zoned for multiple-family apartment buildings. Continuing north, the B-1, B-2 pattern is resumed with the dividing line crossing the fish store, refreshment stand, and through the Olson Rug Company building. The last plot on the west side of Skokie Boulevard, immediately south of Simpson Street, was changed by defendant to B-3 (a few weeks after denial of plaintiff's application) to accommodate the Vogue Tire and Accessory store under construction at the time of this appeal.
The area along the east side of Skokie Boulevard from Gross Point Road to Foster Avenue, is zoned B-3. This includes the properties directly across the street from the subject premises. From Foster Avenue north to Simpson Street (on the east side of Skokie), the Kiddieland and golf driving range is zoned R-1, but represents a non-conforming use, and the Henry's Drive-in Restaurant at the southeast corner of Skokie Boulevard is zoned B-1.
In 1965 plaintiff applied to defendant to rezone the property in question to B-4, or to B-3 with special use permission to install the car wash operation as described above. The application was referred to the Village Plan Commission which held a hearing and thereafter filed its report with the Village Board, unanimously recommending a change to the B-3 classification with a special use permission to install the requested improvement. In its report the Commission found that the proposed use would be consistent and compatible with the surrounding zoning and existing uses. Despite this recommendation, however, the Village Board, by a vote of 4 to 2, denied plaintiff's application, thereby exhausting plaintiff's administrative remedies, and this declaratory judgment action was filed soon thereafter.
Defendant contends that plaintiff has not met the burden of overcoming the presumption of validity which attaches to legislative determinations; that the proposed use would have an adverse economic impact upon competing businesses in the area, and that the trial court erred in striking testimony on this issue; that the present zoning classification imposes no burdens on plaintiff or its property that are not common to hundreds of other property owners and properties; and that the proposed use will aggravate already overburdened traffic facilities.
In its judgment order the trial court referred to the uses excluded under B-1 and B-2 (e.g., service stations, automobile accessories stores and automobile laundries) and then found: . . . . . .
"5. Uses similar to said excluded uses are found along Skokie Boulevard in the area between Simpson Street and Gross Point Road, and other similar uses are permitted in B-2 zones. In addition, the principal uses found in said area are permitted uses within the B-4 Regional Shopping District in which said excluded uses are permitted.
"6. Said excluded uses are compatible both with the uses presently found in said area, and with the uses permitted therein.
"8. The action of defendant in refusing to rezone the said premises into the B-3 Commercial Zone with special use permission to install the said [proposed] uses, or to rezone said premises into the B-4 Regional Shopping District in which the requested uses are permitted, was discriminatory, arbitrary and capricious.
"9. The classification of uses contained in the B-1 Neighborhood Shopping, and B-2 Commercial Districts are discriminatory, capricious and arbitrary, in denying plaintiff the right to use its premises for an automobile care and service center, including a car wash, while permitting other similar uses ...