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Whittingham v. Village of Downers Grove

NOVEMBER 21, 1968.




Appeal from the Circuit Court of DuPage County, Eighteenth Judicial District; the Hon. WILLIAM C. ATTEN, Judge, presiding. Judgment reversed.


The plaintiffs brought this suit to have the defendant's zoning ordinance declared invalid as applied to their property. The trial court, in a bench trial, entered judgment for the plaintiffs, from which the defendant appealed.

In support of their case, the plaintiffs offered two expert witnesses, in addition to the testimony of one of the plaintiffs. The defendant offered no evidence, other than one exhibit which showed the subdivision in question at the time prior to its resubdivision. Instead, it elected to rely upon the evidence presented by the plaintiffs, the presumption favoring the validity of its zoning ordinance, and its contention that the plaintiffs' proof was not sufficient to overcome this presumption.

The plaintiffs' proof indicated that they acquired the property in question in 1954, at which time it was zoned for single-family residence use. In 1965, it was rezoned R-5 for two-family residence use. On February 1, 1966, the plaintiffs filed an application requesting that the property be rezoned R-6 for multiple-family use, which was denied.

The property contains approximately 277 feet fronting on Lindley Street and is approximately 240 feet deep throughout most of the area. It was resubdivided into three lots fronting on Lindley Street in 1965 and at that time it was given a two-family residence zoning classification.

Presently, there is only one frame residence on said three lots. It is located on the middle lot and is used as a two-family residence. The plaintiffs seek to rezone only Lot 3, that being the southernmost lot, nearest Ogden Avenue. Lot 3 has a frontage of 95 feet on Lindley Street. The plaintiffs intend to build a twelve-family apartment building on this lot.

Immediately south of the property sought to be rezoned is an alley. A service station, with a large illuminated sign, is located south of the alley and on the corner of Lindley Street and Ogden Avenue. It fronts on Ogden Avenue — a main thoroughfare — which is developed commercially. To the east of the service station, in the same block and fronting on Ogden Avenue, is a florist shop; to the west, and across Lindley Street, is a pizza parlor. As indicated earlier, the two lots, immediately north of the one in question, are zoned two-family. The balance of the property to the north — on Lindley Street — is zoned single-family. The record is not clear as to whether the service station and the large illuminated sign were both in existence when the plaintiffs purchased the property; however, the other business uses were. The blocks to the east and to the west of Lindley Street are built up with single-family residences.

The plaintiffs' witnesses testified that the land in question, as presently zoned, had a value of approximately $7,500. They were of the opinion that if zoned for multiple-family use, it would then be worth up to $30,000. Both witnesses were of the opinion that the zoning sought by the plaintiffs would have no depreciating effect on the surrounding property. They testified that the single-family dwellings on Lindley Street were modest and well-maintained; that the street itself was asphalt with no curbs or walks; and that the homes in the immediate vicinity suffer a depreciating effect from the commercial developments along Ogden Avenue. It was their opinion that the multiple-family zoning — adjoining the two-family zoning immediately to the north — would provide a buffer from the commercial development along Ogden Avenue.

Both expert witnesses testified that the highest and best use of the premises was for multiple-family use. One of the experts stated that in reaching this conclusion, he regarded the highest and best use as that calculated to give the greatest net return to the owner, keeping in mind that such use must be compatible with the existing uses in the area and that no undue depreciation accrues to the adjoining owners. These witnesses also testified that there were multiple-family developments adjoining commercial properties elsewhere along Ogden Avenue; and that there was a need for apartment units in the Village.

The various legal principles and factors relevant to the determination of the validity of a zoning ordinance as applied to particular property are well known, have often been repeated, and need not be set forth in detail here. See: Exchange Nat. Bank of Chicago v. Cook County, 25 Ill.2d 434, 440, 185 N.E.2d 250 (1962); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill.2d 213, 224-227 incl., 130 N.E.2d 267 (1955).

The defendant stresses that the plaintiffs must prove by "clear and convincing evidence" that the zoning ordinance as applied to plaintiffs' property is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. Stemwedel v. Village of Kenilworth, 14 Ill.2d 470, 474, 153 N.E.2d 79 (1958). The plaintiffs concede that this is their burden and assert that their undisputed evidence is sufficient for this purpose.

Whether the plaintiffs' evidence is sufficient to sustain their burden does not rest on any one particular factor. It is the totality of the facts in each particular case that determines its outcome and the existing uses and zoning classifications of nearby property are the factors of paramount importance. Ryan v. City of Elmhurst, 28 Ill.2d 196, 198, 190 N.E.2d 737 (1963); First Nat. Bank & Trust Co. of Evanston v. County of Cook, 15 Ill.2d 26, 31, 153 N.E.2d 545 (1958); Kellett v. County of DuPage, 89 Ill. App.2d 437, 442, 443, 231 N.E.2d 706 (1967).

The plaintiffs' evidence was undisputed. Their witnesses stated that the requested zoning would have no deleterious or depreciating effect on the nearby properties; that the value of such properties as single-family residences had already been depreciated to the maximum because of the commercial uses in the area; and that the proposed use would have no adverse effect on the commercial uses to the south, to the east and to the west, or on the two-family use, immediately to the north.

The plaintiffs offered evidence to show that the denied rezoning would be beneficial to them and not harmful to the public, and, the defendant did not controvert the plaintiffs' evidence that the present zoning does impose a substantial hardship on the plaintiffs. In proper cases, our courts have held that undisputed evidence of a substantial hardship upon a landowner resulting from a zoning classification, without a gain of some significance resulting to the public therefrom, warrants a court to declare the zoning restriction unconstitutional. Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill.2d 116, 125, 126, 188 N.E.2d 33 (1963); Weitling v. County of DuPage, 26 Ill.2d 196, 199, 186 N.E.2d 291 (1962); Kovack v. Village of La Grange Park, 18 Ill.2d 233, 236, 237, 163 N.E.2d 451 (1960). These cases hold that it is not the owner's loss of value alone that is significant, but the fact that the public ...

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