Appeal from the Circuit Court of Cook County, County
Department, Law Division; the Hon. CHARLES S. DOUGHERTY, Judge,
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 28, 1967.
In a declaratory judgment action, the trial court entered an order declaring invalid and restraining enforcement of defendant's Zoning Ordinance insofar as it presently classifies plaintiffs' property as "R-2" and "R-3" and thereby prevents development of the subject property within the "R-4" classification. Defendant appeals, contending: (a) plaintiffs failed to adduce clear and convincing proof that the ordinance is invalid as applied to the subject property; (b) the surrounding uses being of paramount importance, the subject property is logically a part of a low-density residential area, and is therefore properly zoned in part for single-family use and in part for low-density multiple-family use; (c) the plaintiffs have not sustained any hardship due to the present zoning, and mere loss of potential profit which might be realized through zoning change does not, in itself, justify nullification of the ordinance; (d) owners of single-family residences and low-density apartments in the neighborhood, who purchased or built their homes in reliance upon the existing "R-2," "R-3" classifications, have a right to rely upon their continuance.
The subject property, located in Chicago, has been divided into two parcels for analysis. Parcel #1 is bounded on the north by 94th Street, on the east by Morgan Street, on the south by 95th Street, and on the west by Genoa Avenue, a diagonal street which causes this parcel to be shaped somewhat like a triangle, with 95th Street as the base. The parcel contains about 86,000 square feet and is presently unimproved except for several old buildings, including a barn, a 2-story brick residence fronting on 95th Street, and 2 used-car sales office shacks.
Parcel #2 is across the street, immediately east of Parcel #1, at the corner of 95th and Morgan Streets, in the block bounded by 94th Street on the north and Sangamon Street on the east, with a frontage of 125 feet on 95th and a north-south dimension of about 139 feet along Morgan. It contains about 17,500 square feet and is presently improved with a 2-story frame dwelling facing 95th Street and a frame garage at the northeast corner of the tract.
In its frontage along the north side of 95th Street, Parcel #1 is zoned "R-3," General Residence, to a depth of 139 feet. The remainder of the parcel is "R-2," Single-Family Residence. Parcel #2 is zoned "R-3."
To the west, Parcel #1 is separated from the Chicago, Rock Island & Pacific Railroad, which runs at grade, by the property of the H. Lang & Son Coal Company and by the width of South Genoa Avenue. The 95th Street frontage of the coal company is improved with a building containing general offices, salesrooms, and a display of furnaces and other equipment. To the north of the building are the company's yards. North of 94th Street is a factory district facing directly across the street from Parcel #1 and immediately adjacent to the railroad. In this area are several large one-story industrial buildings. This industrially zoned area continues to the north and east of the subject properties in a triangularly shaped area, with 94th Street as the base, bounded by Sangamon Street on the east, diagonally on the west by the railroad tracks, and by 92nd Street on the north. The large area of two and one-half blocks adjoining to the east is zoned "R-2" and improved by single-family residences. Along the railroad tracks to the north of the triangular industrial area and north of the "R-2" zone are more industrially zoned uses.
To the east of Parcel #1, in the same block with and north of Parcel #2, on Morgan Street between 94th and 95th Streets, and facing west (across Morgan Street, Parcel #1 and Genoa Avenue to the coal yard) are eight new single-family dwellings in an "R-2" zone. In the same block and to the east of Parcel #2, in an "R-3" zone fronting on 95th Street, are a number of multiple dwellings, some of which are of recent construction. In the next block east, also fronting on 95th Street, are three more new "R-3" multiple dwellings.
To the south of the subject properties, across 95th Street, is the ten-acre Oakdale Park, an open space with recreational facilities, improved with a maintenance structure and conforming to the requirements of the "R-3" classification. Between Genoa Street, which bounds the park on the west, and the railroad tracks is a one-block-wide strip of industrial zoning, presently occupied by a gasoline service station. Except for a strip of restricted business zoning fronting on Halsted Street, three blocks to the east of Sangamon, and 103rd Street to the south, the entire area south of 95th Street, bounded by those streets and the railroad tracks to the west, is zoned "R-2" single-family residences.
Plaintiffs propose to raze the existing structures on both parcels and construct four 2-story apartment buildings with a total of 128 dwelling units distributed as follows:
Parcel #1 Building "A" near 95th Street: 57 Units Building "B" in center of block: 26 Units Building "C" toward 94th Street: 23 Units Parcel #2 Building "D": 22 Units
As the land is presently zoned, plaintiffs would be restricted to 22 dwelling units on the "R-3" portion of Parcel #1; to 7 separated single-family residences on the "R-2" portion; and to 12 dwelling units on the entirely "R-3" Parcel #2, for a total of 41 dwelling units, as compared with 128 which plaintiffs would build if the zoning were changed to "R-4."
We agree with defendant that the plaintiffs have not satisfied their burden of overcoming with clear and convincing proof the presumptive validity of the Zoning Ordinance as applied to the subject properties. In sustaining single-family residence zoning against a proposed multiple-family use, the court said in Urann v. Village of Hinsdale, 30 Ill.2d 170, at 174-175, 195 N.E.2d 643:
There is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant and one who attacks such an ordinance has the burden of overcoming the presumption with clear and convincing proof that the ordinance is arbitrary and unreasonable, and is without substantial relation to the public health, safety, morals and welfare. (Citations.) Whether a zoning classification bears a substantial relation to the public welfare depends upon a number of factors, among them being the character of the neighborhood and the suitability of the property for the zoned purpose, (citation) and it is plaintiffs' contention that the presence of the ...