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Seith v. City of Wheaton

DECEMBER 12, 1967.




Appeal from the Circuit Court of DuPage County; the Hon. WILLIAM C. ATTEN, Judge, presiding. Judgment affirmed.


This is an appeal from judgments of the Circuit Court of DuPage County. Plaintiffs commenced this action seeking a declaratory judgment that the zoning ordinance of the City of Wheaton, classifying plaintiffs' property to a Class A, single-family residence district, was unconstitutional and invalid. Plaintiffs seek the right to improve their property with an automobile service station.

After trial before the court, a judgment was entered finding the zoning ordinance as applied to plaintiffs' property valid, and further, that the proposed use as an automobile service station would violate certain ordinances of the City forbidding the storage of flammable materials within 200 feet of a high school grounds. From this decree, entered on August 2, 1966, plaintiffs filed a notice of appeal on August 31, 1966. On November 29, 1966, plaintiffs filed a petition under section 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72) to vacate the decree on the grounds that the ordinance concerning the storage of flammable liquids was invalid, in that it had not been published.

The trial court denied this petition on the basis that it had lost jurisdiction with the filing of notice of appeal from the first decree upholding the validity of the zoning ordinance and the storage of flammable liquids ordinance. Both appeals were consolidated for hearing in this court.

The subject property is situated in the City of Wheaton on the northeast corner of Roosevelt Road, which runs east and west, and Naperville Street, which runs north and south. It has frontage of 216 feet on Roosevelt Road and 200 feet on Naperville Street. The site is improved with a 16-room frame residence. Although zoned single-family residential, this residence has been divided in recent years into five apartments. Naperville Street is a two-lane thoroughfare carrying approximately 4,450 vehicles per day north of Roosevelt Road and approximately 5,000 vehicles per day south of Roosevelt Road. Roosevelt Road, also known as Route 30, is a major four-lane state highway carrying approximately 15,000 vehicles per day past this intersection. The intersection is protected by traffic signals that operate throughout the day and night. The predominate use within a quarter mile or more of the subject property is residential; to the north and south properties are residential with the exception of the residence of Dr. Moss which also contains his dental office; west to the city limits it is residential with the exception of:

(a) Wheaton Central High School, located immediately west of the subject property, which school has an enrollment of 1710 students;

(b) A park at the west end of the high school grounds;

(c) A small YMCA building west of the park;

(d) A small retail business area five blocks west of the subject property at the northwest corner of Roosevelt Road and Sunnyside Avenue; and

(e) Two gas stations, six blocks away at the northwest and southwest corners of Roosevelt Road and Delles Road;

To the east it is residential for more than a quarter of a mile with the exception of a chiropractic home occupation use and a church building, both on the south side of Roosevelt Road.

Numerous witnesses were presented by both parties. The plaintiffs presented evidence that, subject to rezoning, Texaco, Inc. had entered into an agreement to purchase the property for the sum of $118,000; that under the single-family residence zoning the appraised valuation would not exceed $26,000 and that a fair market value for a nonconforming use would be approximately $32,000. All of the witnesses for plaintiff agreed that in recent years there had been a marked increase in the volume of traffic along Roosevelt Road. One real estate appraiser for plaintiff testified in his opinion that the use of the property for an automobile service station would not cause any adverse effect on the adjoining property in the immediate neighborhood. An appraiser for the City testified that in his opinion the proposed gas station would depreciate the residences to the north of the subject property by between 15% and 20% and to the east by 10%. Depreciation would be less as the properties were more remote from the subject site. Several experts testifying on behalf of the City agreed that the highest and best use of the subject property is for multifamily and not single-family residences as it is presently zoned. The City also presented evidence that there was no need either from an economic standpoint or from a community convenience standpoint for a gas station in the immediate area of the subject property.

[1-7] A decision in this case as to the validity of the zoning ordinance presents no novel legal problems. It requires only the application of well settled rules of zoning law to the facts. So well established are the general rules applicable to zoning cases and so often have they been reiterated that we will not again state them. This court has long considered of paramount importance the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform as established. Zoning lines must begin and end somewhere and, if the most that can be said as to whether the property should be characterized as residential or commercial is a fairly debatable question, then the question should be determined by the legislative authority of the Village and not by the courts. LaSalle Nat. Bank v. City of Chicago, 6 Ill.2d 22, 31, 126 N.E.2d 643. In LaSalle Nat. Bank v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65 the court ruled:

"It is well established that it is primarily the province of the municipal body to determine the use and purpose to which property may be devoted, and it is neither the province nor the duty of the courts to interfere with the discretion with which such bodies are vested unless the legislative action of the municipality is ...

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