Appeal from the Circuit Court of Cook County; the Hon. EMMETT
MORRISSEY, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 28, 1968.
This appeal is taken from a judgment of the Circuit Court of Cook County overruling the findings of a master in chancery and holding that the zoning ordinance of the Village of Oak Park is null and void in its application to their property.
Plaintiffs filed their complaint at law, and the amendment thereto, for a declaratory judgment, seeking a declaration that the Village of Oak Park Zoning Ordinance, as amended (and so far as it applies to their property), be declared null and void, alleging that said ordinance violates the Constitution of the United States and the Constitution of the State of Illinois.
The defendant filed its answer, alleging that the action of the Village Board in passing the zoning ordinance in question did not operate to deprive plaintiffs of their property without due process of law, but rather constituted a valid exercise of its legislative power in that such power was exercised reasonably and equitably with the intent to promote and protect the public health, safety, comfort and general welfare. The matter was referred to a master in chancery before whom the following evidence was presented.
Plaintiff R. Busa & Sons, Inc., an Illinois corporation, is the owner in fee simple of Parcel 2 of the subject real estate located at 325 Oak Park Avenue, Oak Park, Illinois, having acquired title in 1958. Plaintiff Avenue State Bank of Oak Park, as trustee, holds the fee simple title to Parcel 1 of the subject real estate located at 319 Oak Park Avenue, Oak Park, Illinois, having acquired title in 1963. Plaintiff R. Busa & Sons, Inc. is the owner of the beneficial interest in the subject land trust. Now in existence (as it was when plaintiffs purchased the property) is the Village of Oak Park Zoning Ordinance, as amended, which classified plaintiffs' property as a "D" district, restricting its use to single and two-family dwellings. Mr. Busa, a building contractor with over 42 years of experience, testified that he purchased Parcel 2 under the mistaken belief that it was zoned for multiple units because the land was improved with what he thought was a rooming house. However, Richard Massell, a witness for the defendant, testified that Mr. Busa attended a meeting of the Zoning Commission on July 8, 1959, at which time a member of the commission asked him whether or not he had knowledge of the zoning of the property which he purchased on Oak Park Avenue prior to the time he purchased it, and Mr. Busa answered that he had. Mr. Busa knew of the zoning restrictions when he purchased Parcel 1.
Plaintiffs propose to build on their property a 3-story, 30-unit condominium apartment building of a total height of 29 feet. Facing another street to the south of plaintiffs' property and directly adjacent to it is a multiple-family "F" district in which there are apartment buildings with heights of over 40 feet. Bordering on the east of the subject property, with the exception of the First Methodist Church building, is an area of single and two-family dwellings zoned "A" and "D" respectively, extending for over a mile. The area immediately to the north of the property, with few exceptions, is also developed with single-family and duplex residences, as is the area to the west. The subject property is contiguous to these residential areas to the north and west. There is not even an alley which would separate the single and two-family dwellings directly abutting plaintiffs' property from the proposed apartment building which would undoubtedly be constructed should plaintiffs' prayer for relief be granted.
George Kranenberg, a witness for plaintiffs, in addition to establishing his extensive background and experience in the field of zoning and planning, testified that in his opinion the highest and best use of the subject property would be a 30-unit apartment building. He proposed that the property be rezoned to an "E" multiple-family district which would permit construction of apartment buildings having a lesser density of use than those in the "F" zone. He suggested that such a reclassification would provide a transitionary zone between the higher density of use existing in the buildings in the "F" zone to the south of plaintiffs' property and the single and two-family dwellings to the north. The witness admitted, however, on cross-examination, that in his opinion, since there were no multiple-family dwellings to the north of the property, any reclassification of the property to an "E" multiple-family district would have a detrimental effect upon the single and two-family dwellings in that area.
Harold Enright, a real estate appraiser and broker, also testified that in his opinion the highest and best use of plaintiffs' property would be the construction of apartment buildings. He stated that the Village of Oak Park had not yet approached the absorption point for apartments and that he felt both parcels were suitable for the construction of "F" multiple-apartment buildings. He suggested, however, that the northern half of the property be reclassified for less dense "E" multiple dwellings so as to act as a buffer area between the lesser and higher densities of the "D" and "F" zones to the north and south respectively. He further testified that the two-family dwelling immediately adjacent to the north of the subject property and the dwellings to the west would be adversely affected by his proposed reclassification. Beyond that he could see no further damage to property values. Mr. Enright appraised the present value of Parcel 1 at $24,000, and Parcel 2 at $45,825, but stated that if the property were reclassified and improved as proposed by plaintiffs, Parcel 1 would then be worth $48,000 and Parcel 2, $91,000.
Fred Allen, another of plaintiffs' witnesses, appraised the property at a somewhat higher value. In his opinion, the property would be worth about $150,000 when reclassified for multiple-family use. At any rate, defendant concedes in its brief that there will be an increase in value to plaintiffs' property if it is rezoned for any multiple-family use.
Defendant, contrary to the evidence presented by plaintiffs, offered the testimony of several experts as proof that the highest and best use of the property would be the construction of single or two-family dwellings in accordance with the present zoning classifications.
Richard Massell, Director of Building and Zoning for the Village of Oak Park, testified that the highest and best use of plaintiffs' property was for two-family dwellings. He based his opinion on the fact that there were no multiple dwellings other than two-family dwellings in the immediate vicinity to the north, east and west of the subject property; that any reclassification for multiple-family use would therefore be inconsistent with the existing character of the neighborhood; and finally, that there was not even an alley separating the back of plaintiffs' property from the back of the single-family homes abutting it on the west. (Note: in fact, the homes abutting plaintiffs' property on the west are two-family dwellings.) In addition, Mr. Massell testified that at present there are areas in Oak Park which are zoned for multiple-family dwellings which have not yet been developed.
Carl Gardner, employed as a zoning consultant, testified that the subject property was presently zoned for its highest and best use, and based ...