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Exchange Nat. Bank v. Village of Skokie

SEPTEMBER 11, 1967.

THE EXCHANGE NATIONAL BANK OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 17922, AND THE PURE OIL COMPANY, AN OHIO CORPORATION, PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF SKOKIE, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. Defendant, Village of Skokie, appeals from a judgment which found that its zoning ordinance is null and void as applied to plaintiffs' property and which enjoined defendant from interfering with plaintiffs' construction of a gasoline station.

Suit was initiated by the Main Building Corporation and the Pure Oil Company, the latter having purchased the property from Main Building Corporation subject to the condition that it be rezoned to permit the construction of a gasoline station. The complaint prayed that defendant be enjoined from preventing the use of plaintiffs' property as a gasoline station. *fn1 The cause was referred to a master in chancery who held hearings and took testimony and made a report of his findings to the court. The court entered its judgment overruling defendant's objections and exceptions to the master's report, approving the report and entered the judgment appealed from. During the proceedings before the master, Main Building Corporation was dissolved and its interest transferred to a nominee and then to The Exchange National Bank of Chicago, as Trustee, which was substituted as a plaintiff in lieu of Main Building Corporation.

Plaintiffs' vacant property consists of about 15,825 square feet and is located on the southwest corner of Church Street and East Prairie Road in Skokie. The property fronts approximately 168 feet on Church Street; has a straight north and south line of 125 feet in length for its west boundary; runs east some 85 feet along the first east-west alley south of Church Street and has its eastern boundary along diagonal East Prairie Road for some 150 feet.

Traffic on Church Street is described as moderately heavy. It is a collector road and funnels traffic into main routes. The speed limit on Church Street is 30 miles per hour. Traffic on East Prairie Road is moderate to light. It has four lanes but narrows to two poorly paved lanes north of its intersection with Church. The intersection has stop signs on all corners but no stoplights. The master described the general area and its zoning as follows:

Starting several blocks to the west of the property, and going east, the streets running north and south are Lawndale Avenue; then Central Park, Drake, Lincolnwood, Forest View, Ewing, Morgan and then McCormick Boulevard in that order. Starting from a point north of the subject property, and going south, the streets are Emerson, Lyons, Church, Arcadia, Davis and Grove. East Prairie Road runs diagonally across the area, from south west to north east.

About in the center of this entire large area, the Village has created a B-1 zoning district. This B-1 category is designated as a Neighborhood Shopping District and permits various retail or service uses such as book stores, dry goods stores, meat market, parking lot, etc. . . .

Except for this B-1 area, the zoning ordinance of the Village of Skokie has designated the entire large area above described as being zoned R-1 or R-3. R-1 is the Skokie designation which permits only single-family dwellings. R-3 permits construction of two-family units.

Since 1930, the subject property has been part of the area zoned B-1 Neighborhood Shopping District from which gasoline stations are explicitly excluded. Main Building Corporation purchased the subject property in 1946 or 1947.

The actual land uses in the B-1 area at the time of the decree and immediately thereafter *fn2 are as follows: Immediately west of the subject property along Church Street is Motive Parts of America (which sells auto parts and has small lathes and other machines for adjusting and fitting the auto appliances). To the west of Motive Parts, across Lincolnwood Drive, and fronting on Church Street are seven townhouses, each containing four living units. Crossing Church Street at this point, on the north side, there is a vacant lot. Proceeding to the east is a building occupied by United Rent-All and A. and W. Lawn Mower Service. United rents trailers and small trucks and party equipment such as tables and dishes. A. and W. fixes trucks as well as lawn mowers. Both use the parking lot for storage purposes. The next use to the east is Haggerty and Associates, commercial artists who also do offset printing. To the east of this, on the northwest corner of the intersection, is a vacant lot comprising 140,000 square feet. On the east side of East Prairie Road, starting at the northeast corner of the intersection, is the Garry Honduras Restaurant. North on East Prairie are the Heinz Landscaping and Evanston Landscaping companies. Further north are Lennox Heating and Air Conditioning and Pelfacs, Inc., an assembler of metal products.

Proceeding east from the intersection on the north side of Church Street next to the Honduras Restaurant is the Whitehouse grocery and package liquor store. East of this is a store building recently erected (in compliance with B-1 zoning) containing an art studio and a dictaphone sales and service store. Crossing to the south side of Church Street there is Murphy's grocery and package liquor store. To the west, on the southeast corner of the intersection, is a shopping center containing a small grocery store, a barbershop, a beauty shop and the Presentation Furniture Store.

The basis of plaintiffs' complaint is that the land uses in the B-1 area were largely inconsistent with B-1 zoning and that therefore the B-1 classification was unreasonable and discriminatory. Plaintiffs' expert testified on February 22, 1965, (prior to the effective date of a 1965 amendment to the zoning ordinance) that 87% of the B-1 district was devoted to nonconforming uses and that 13% was devoted to conforming uses. *fn3 Defendant's expert (after explaining his strict usage of the word "non-conforming") testified that 28.7% was vacant, 13.3% nonconforming residential, 6.5% nonconforming commercial, 30% illegal use and the balance (about 21.5%) conforming. The master found 28.7% vacant, 14% conforming and the balance (57.3%) nonconforming.

After the master submitted his report, proofs were reopened to permit the introduction into evidence of exhibits showing a disuse of premises formerly used in contravention of the zoning ordinance. Two uses (Acorn Motors and A. & M. Towing) were restrained by court order in another proceeding and the premises comprising 12% of the B-1 area were vacated. Another use (Zera Construction) was abandoned and the property vacated; other non-complying uses were rectified by the removal of stored mechanical equipment. Therefore by taking into account these changes *fn4 (and the abandonment by Bix Furniture after decree) we find that at least 40% of B-1 was unoccupied, 13.3% nonconforming residential, 6.5% nonconforming commercial and about 11% nonconforming.

According to plaintiffs, the principal violator of the zoning ordinance is Motive Auto Parts. It sells auto parts and adjusts automotive parts to specific sizes for its customers. Two small lathes are used. Plaintiffs urge that this use is of the same classification as a gasoline station and that therefore under the finding in Colvin v. Village of Skokie, 54 Ill. App.2d 22, 203 N.E.2d 457, it is mandatory that both uses be given equal treatment. In Colvin, the abutting use was a gasoline station and therefore it was held unreasonable to preclude another gasoline station.

In Exchange Nat. Bank v. Village of Skokie, 86 Ill. App.2d 12, 229 N.E.2d 552, we held that a combined automatic car wash, gasoline service station, accessory store and automobile diagnostic center was similar to and compatible with a gasoline service station ...


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