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Schiffer v. Village of Wilmette

JANUARY 13, 1969.

VICTOR E. SCHIFFER AND DONNA E. SCHIFFER, HIS WIFE, MATTIE D. TIGHE, AND TEXACO, INC., A CORPORATION, PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF WILMETTE, A BODY POLITIC AND CORPORATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Defendant Village appeals from a declaratory judgment order, which found that the provisions of the Wilmette Zoning Ordinance (as amended) constituted an "unconstitutional deprivation of the plaintiffs' property." The Village was ordered to issue necessary permits for the construction of a gasoline station subject to all of the applicable Village ordinances.

On appeal, the Village contends:

1. Defendant was not afforded a fair and impartial hearing in that the trial court at the opening of the trial stated that the case had been decided.

2. The plaintiffs failed to overcome the presumption of validity attaching to the zoning ordinance of the Village of Wilmette.

3. The increase in value if used for gas station purposes does not render the ordinance invalid.

4. Based on the evidence in the record there was room for a fair difference of opinion on the reasonableness of the restriction placed on the plaintiffs' property by the ordinance and it should have therefore been upheld.

5. The lack of community need is highly relevant in the refusal to zone the property to permit another gasoline service station.

6. Dangers created by traffic moving in and out of the proposed gasoline service station is a reasonable basis for the exercise of the defendant's police power in zoning the subject property for R-3 use.

The subject property consists of two parcels, which have a total frontage of 259.04 feet on Lake Avenue in the Village of Wilmette, commencing at the southeast corner of the intersection of Lake Avenue and Lavergne Avenue. Parcel No. 1 is owned by the plaintiffs, Victor E. Schiffer and his wife. It has a front footage of 113.04 feet on Lake Avenue and approximately 126 feet on Lavergne Avenue, and its easterly edge abuts upon parcel No. 2. Parcel No. 1 is rectangular and contains in excess of 14,000 square feet. It is presently improved with a 1 1/2-story brick residence and attached garage, facing Lake Avenue.

Parcel No. 2, the westerly boundary of which is common to Parcel No. 1, has a frontage of 146 feet on Lake Avenue and a depth of 247 feet. This parcel is owned by the plaintiff, Mattie D. Tighe. It contains in excess of 36,000 square feet and at present it is vacant and unimproved.

The third plaintiff is Texaco Oil Company, which has an option to purchase Parcel No. 1 for $67,500 and Parcel No. 2 for $60,000, on the condition that the property be zoned for service station use. The options were entered into in November of 1964 and terminate in November of 1969.

The block in which the subject property is located is classified in the R-3 Group House District in the zoning ordinance of the Village. The R-3 District, as originally adopted in the 1959 zoning ordinance, includes all the frontage on the south side of Lake Avenue from Lavergne, east past Skokie Boulevard to Hibbard Road, and to a depth of some 247 feet south of Lake Avenue. East of Skokie Boulevard the R-3 District runs south to Washington Avenue and includes a triangular piece of property bounded by Skokie Boulevard, Lake Avenue and Hibbard Road.

The east end of the subject block on Lake Avenue is the southwest corner of the intersection of Skokie Boulevard and Lake Avenue. This corner is occupied by a "Marathon" gasoline station, which is about 500 feet east from the intersection of Lake and Lavergne Avenues. This gasoline station was installed in 1963 pursuant to a decree of the Circuit Court, which was ...


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