Appeal from the Circuit Court of Cook County; the Hon. THOMAS
C. DONOVAN, Judge, presiding. Decree reversed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 26, 1968.
This was an action in the Circuit Court of Cook County for a declaratory judgment brought by plaintiffs, Lawrence Weber et ux., against the defendant, Village of Skokie, Illinois (hereinafter referred to as the Village) to contest the validity of a particular zoning ordinance which had been in force in that community since 1946. Plaintiffs, by such proceedings, sought an adjudication of their right to construct a single-family dwelling upon an individual parcel of property held by them in joint tenancy, which parcel, subsequent to its acceptance as part of an overall plat of subdivision in 1924, was rendered inadequate by ordinance of 1946 as to both the width and total area minimum standards made requisite for the construction of a single-family dwelling.
After hearing considerable testimony and argument in the matter, the court below, on June 28, 1966, entered a decree which, among its other terms, concluded that the aforementioned standards of the ordinance were unconstitutional as applied to plaintiffs, amounting to a taking of their property without due process of law. The court thereinafter perpetually enjoined the Village from either enforcing such provisions of the ordinance against plaintiffs or from interfering with them in their utilization of the premises for the construction thereon of a single-family dwelling. It is from the entry of this decree that the Village brings its appeal.
There would thus appear to be presented by the instant appeal the single question of whether a subsequently enacted zoning ordinance, which purports to restrict the construction of residential structures to property sites meeting certain minimum space requirements, may override or supersede the width and area specifications of a previously accepted and recorded plat of subdivision, to the detriment of one who claims by it.
As indicated, the facts giving rise to the present dispute were first set in motion in June of 1924 when a plat of subdivision (commonly known as the Knenn & Dato's Oakton-Kostner "L" Subdivision), the authenticity of which is not questioned, was accepted and duly recorded in the Office of the Recorder of Deeds of Cook County, Illinois as Document No. 8456626. Said plat, as recorded, purported to subdivide the subject general tract into 59 consecutively numbered lots of somewhat varying sizes. We might interject that such individual lots, by the test of the subsequently enacted ordinances of the Village, would have been, with but minor exception, substandard to both the frontage and area requirements for single-family dwelling construction purposes. To a considerable extent, controversies, such as the one at bar however, have been avoided because adjoining parcels in the plat were initially acquired and disposed of in common ownership. Such was the case of plaintiffs' predecessor in title.
For the purposes of brevity, we will limit our examination of the plat to those parcels fronting upon the 7900 block of Lowell Avenue, which rest in closest proximity to the subject site. That block runs north and south between Oakton and Kirk Avenues and is depicted by the plat as representing 26 subdivided lots of approximately equal dimensions. Save two larger parcels on that block at the corner of Kirk Avenue, all of the lots within this limited sector of the plat (including the subject property), front 33 feet upon Lowell, have depths of approximately 123 feet, and afford slightly in excess of 4,000 square feet in total area.
As accurately as we can discern from the record, plaintiffs' immediate predecessor in title, in or about the year 1928, purchased three such contiguous lots each of which abutted on the east side of Lowell at 7929 and 7925 respectively. These lots were numbered from north to south as parcels 11, 12 and 13 and provided a total frontage on the street of 99 feet with in excess of 12,000 square feet. Two structures were erected at that approximate time; i.e., a residence home upon parcel 11 which partially protruded over the south lot line onto parcel 12, and a garage set off and to the back of that residence upon the rear portion of said parcel 12. These two parcels taken together are known as 7929 Lowell Avenue. The aforesaid structures are still standing and being utilized. Parcel 13 adjacent the garage, subsequent to its acquisition, was left vacant, it being commonly known as 7925 Lowell Avenue.
The three properties remaining in the common ownership of the original purchaser, the Village in 1946 first enacted the zoning ordinance which has been made the object of our attention. Such ordinance prohibited the construction of single-family dwellings upon lots within the present classification of R-2 (Single-Family Residence District) not meeting the minimum standards set forth of 40 feet in width and 4,800 square feet in overall area. This same prohibition continues to be in force in amended form to date. (Amended Zoning Ordinance of the Village of Skokie (1965) Article VIII, Section C, subsection (2) and (3).)
In February of 1951, plaintiffs purchased lots 11, 12 and 13 from the aforesaid common owner, those parcels, continuing to answer to their heretofore narrated description. Plaintiffs resided in the home at 7929 Lowell for some 13 years without making any substantial additions or alterations thereto, and until April of 1964 when they jointly conveyed lots 11 and 12 to a Mr. and Mrs. Robert Noesen. The subject parcel, lot 13, however was not so conveyed, the Noesens testifying that they twice refused plaintiffs' offers to sell it separately for prices of $5,000 and $5,500. Said lot 13 being substandard to minimum specifications, plaintiffs, on June 30, 1965, filed an application for a variation with the Zoning Board of Appeals of the Village, manifesting their desire to construct a single-family dwelling on the site. After full hearings, the Board, in November of 1965, unanimously denied plaintiffs' application, no review pursuant to the Administrative Review Act having ever been taken therefrom by plaintiffs.
It is plaintiffs' theory that the questioned ordinance contravenes the recorded plat upon which they had a right to rely to the extent that the restrictions thereby imposed are so arbitrary and capricious so as to amount to a deprivation of their property without just compensation. In response, it is the Village's theory that the enforcement of minimum frontage and area requirements to substandard lots of record bears a substantial and rational relationship to the legitimate exercise of its powers as a municipality; to wit, the preservation of the public health and safety.
We do not take plaintiffs to contend that the minimum lot width and area requirements per dwelling unit of the ordinance were per se beyond the realm of authority of the Village to enact, but rather that the restrictions thereby imposed are unreasonable and unconstitutional as applied to their particular property. With citation to Galt v. County of Cook, 405 Ill. 396, 91 N.E.2d 395 (1950), plaintiffs acknowledge the presumption which obtains and prevails in favor of the validity of the ordinance, absent an affirmative showing that its provisions are clearly arbitrary and unreasonable. Plaintiffs submit however, that their theory is such that, if sustained, would transcend any otherwise legitimately exercised and rational objective of that ordinance. While we have no quarrel with that supposition, the argument which professes to support it is an untenable one.
By their contention that the mere acts of approval and recordation of a plat of subdivision operate so as to secure and vest rights in and to the property designated for private ownership, plaintiffs must necessarily rely upon the provisions of our Plat Act (Ill Rev Stats (1965), c 109, par 1 et seq.) which admittedly antedate the general laws of zoning. That statute, however, purports to extend no such sanctions over lot sizes within the private aspect of the subdivision so platted. It is evident from the Act that the purpose to be served in requiring the submission of plats to governmental approval is to insure that adequate provision has been made for streets, alleys, parks and other public facilities indispensable to the particular community affected. Bluett v. County of Cook, 19 Ill. App.2d 172, 153 N.E.2d 305 (1958). Such a design becomes manifest by the provisions of that statute which hold a dedication by plat to be a conveyance in fee simple of those portions so noted to facilitate that end (as contrasted with the common-law rule which treated a dedication as creating an easement only with the fee remaining in the adjoining lot owners; Lambach v. Town of Mason, 386 Ill. 41, 53 N.E.2d 601 (1944)), exempt from its requirements proposed subdivisions not involving new streets or easements of access, and which impose a penalty for noncompliance therewith.
Of particular insight in this regard is the case of Highland Oil Corp. v. Lathrup Village, 349 Mich. 650, 85 N.W.2d 185 (1957), where responding to a similar theory which claimed the benefit of the area specifications of a plat adversely affected by a ...