Appeal from the Circuit Court of Cook County, County
Department, Law Division; the Hon. CHARLES S. DOUGHERTY, Judge,
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
This is a zoning case involving the validity of the Village of Palatine's zoning ordinance as it affects certain property held in trust by the plaintiff. The trial court declared the ordinance unconstitutional and void in its application to the property and the Village appeals.
The plaintiff's land consists of three adjoining lots located at the southeast corner of the intersection of Palatine and Quinten Roads. Palatine runs east to west and Quinten north to south. The land is vacant, is slightly depressed, and has approximately 150 feet of frontage on Palatine Road and 157 feet on Quinten.
This corner is also the extreme northwest corner of both the Village and a twelve-block subdivision which is classified as an R-2 single-family dwelling district under the Village's zoning ordinance. This subdivision contains 240 lots of which, at the time of trial, 222 had been developed with single-family residences. Of the remaining 18 vacant lots, two lie immediately east of the subject property on Palatine Road and one is directly south on Quinten Road.
The property faces unincorporated areas of Cook County on both the west and north. To the north is a forty-acre tract of land which, with the exception of one dwelling, is entirely vacant and has a ditch running through a portion of it. This tract is zoned R-5 (multiple dwelling) under the County zoning ordinance. To the east of this tract are multifamily dwellings.
To the west of the plaintiff's property is a wooded area and to the west of this there is a tavern housed in a residential-type structure. The tavern is on a four-hundred foot deep lot, is situated approximately 250 feet from Quinten Road, and has its entrance on Palatine Road. Slightly southwest of the tavern is a lot which is used for the parking of trucks; the entrance to this parking lot is on Crescent Avenue a block to the west of Quinten. North across Palatine Road from the tavern is a yard used by a construction company for the storage of material and equipment. It has a row of evergreens fronting on Palatine Road and it appears that only the back portion of the lot is devoted to storage purposes. All of these uses are nonconforming, the land being zoned R-4 (single-family residence) under the County zoning ordinance. East of the storage yard, near the northwest corner of the Palatine-Quinten intersection, is a single-family residence.
In an unincorporated area a mile or two south of the property on Quinten there are two industrial complexes. Approximately three-quarters of a mile north of the property on the east side of Quinten is a manufacturing company situated upon property so zoned. According to a comprehensive land use plan adopted by the Village in 1964, if it should ever annex the unincorporated acreage north of the plaintiff's property on Palatine Road it would zone part of the acreage abutting on the east side of Quinten for manufacturing purposes. If it should ever annex the unincorporated acreage on the west side of Quinten, part of the area fronting on Quinten would be developed as a shopping center.
If the present zoning is invalidated the plaintiff will sell the property to an oil company which plans to erect a modern, landscaped service station on the site with four pumps and underground facilities for the storage of 16,000 gallons of gasoline. Both Palatine and Quinten Roads are two lanes wide. The average weekday traffic at the intersection according to a 1963 count was 5,000 vehicles on Palatine and 2,000 on Quinten. The closest gasoline stations are at least one mile distant. There are two at this distance to the east and one to the north. The nearest station to the west is five miles away; the record does not show whether there is a station to the south.
The expert witnesses for the plaintiff testified that the highest and best use of the property would be for a gasoline station because: there were no other stations within a mile of the property; the property was situated at a major intersection; the nonconforming uses in the unincorporated area lent a commercial aura to the property; the Village's comprehensive plan revealed a shopping center might be erected directly west of the site; the land had remained vacant for years, and the lots were part of an older type subdivision.
The beneficiary of the land trust purchased the property in 1963 and was aware of its residential zoning at that time. He testified that the property could be developed for residential purposes, but that it would not be the best use. There is no indication in the record as to how much he paid for the property, but one of the plaintiff's witnesses testified that its market value was $9,000 for single-family residence use. The oil company agreed to pay $35,000 for it if rezoning would permit its use for a gas station.
The expert for the Village testified that the surrounding area was primarily residential in nature; that a gasoline station would be an unwarranted intrusion into the vicinity which would retard residential growth and violate sound planning principles; that the roads intersecting at the corner of the property were "collector" streets serving the surrounding expanding residential districts, and that the best use would be to convert the present three lots into two single-family residence parcels. Two nearby homeowners testified in substance that they had purchased their property in reliance upon the residential zoning of the area and that both the value of their property and the desirability of residing on it would be diminished by the existence of a service station on the corner lots.
The plaintiff injected another factor into this case. Its evidence disclosed that two of the corner lots were subject to a restrictive covenant limiting the ownership and use of the property to members of the Caucasian race. This covenant was inserted in two deeds executed in 1928 and one executed in 1931. It does not appear in deeds thereafter although there were subsequent transfers. In addition to the above covenant, the aforementioned deeds also contain the following:
"Subject to the following restrictions:
"Zoning and building ordinances.
"Above described lots shall be known as ...