Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
This is a zoning case involving a parcel of unimproved land located at the southwest corner of Dempster Street and Crawford Avenue in the Village of Skokie. This parcel extends 150 feet west of Crawford Avenue on the south side of Dempster Avenue and 125 feet south of Dempster Avenue on the west side of Crawford Avenue. It was acquired by the plaintiff, as trustee, its sole beneficiary, by various conveyances between 1942 and 1954.
On May 7, 1946, Skokie adopted a zoning ordinance, commonly known as the Zoning Ordinance of 1946. Under this ordinance the subject parcel of property was placed in a Class E Commercial District. Gasoline filling stations were one of the uses permitted in that district. In 1956, Skokie amended the Zoning Ordinance of 1946 and divided all land lying within the limits of Skokie into eleven "use" districts. The parcel here involved was placed in a B-2 Commercial District which permitted gasoline filling stations. On September 15, 1959, Skokie amended the Zoning Ordinance of 1956 deleting gasoline filling stations as a permitted use in a B-2 Commercial District and placed filling stations within a B-3 Business District.
On November 15, 1961, plaintiff petitioned the Village of Skokie to reclassify this property from a B-2 Commercial District zone classification to a B-3, for the purpose of erecting a gasoline filling station. The Village denied it. Thereafter plaintiff filed a complaint for declaratory judgment seeking to adjudge the 1956 Zoning Ordinance and the amendment of September 15, 1959, arbitrary, discriminatory, confiscatory, unconstitutional, invalid and void. Subsequently, plaintiff filed an amended complaint and a supplemental complaint for injunction to enjoin Skokie from enforcing its zoning law as amended, as it affects the parcel here involved.
During the course of the proceedings before the trial court in July, 1965, the Corporation Counsel of Skokie requested the Village Board of Trustees to reconsider the reclassification of a portion of the plaintiff's property from a B-2 district zone to a B-3 district zone, for the purpose of allowing a filling station on the west 150 feet of the subject parcel. This matter was referred by the Board of Trustees to the Plan Commission which, after holding public hearings, recommended that the request be denied. The President and the Board of Trustees concurred.
The trial court referred this cause to a Master in Chancery who after holding extensive hearings reported his findings to the court and recommended that a decree be entered granting relief. The trial court, after overruling Skokie's objections and exceptions to the Master's report, decreed on June 15, 1966, that the Skokie zoning ordinance as amended, insofar as it affects the subject property, is unconstitutional and issued an injunction restraining Skokie from enforcing it.
On appeal, the defendant contends mainly that (1) plaintiff did not overcome the burden of the presumption of validity of the ordinance by clear and convincing evidence and (2) the legislative judgment must be conclusive where there is a fair difference of opinion concerning the reasonableness of a classification.
Defendant relies on Jans v. City of Evanston, 52 Ill. App.2d 61, 201 N.E.2d 663.
"A presumption exists in favor of the validity of a zoning ordinance and the one who attacks such an ordinance has the burden of overcoming the presumption by proving with clear and convincing evidence that as applied to him, it is arbitrary and unreasonable and is without substantial relation to the public health, morals, safety and welfare."
Crawford Avenue runs in a north-south direction. It is not a State highway, but it is one of the important north-south streets in the Village of Skokie. Dempster is an Illinois highway route running from Lake Michigan on the east through the Village of Skokie and farther to the west. Dempster Street acts as a feeder for motor traffic to Edens Expressway which is approximately one and one-half miles west of the subject property and also to the Illinois Tollway which is six miles further west. The actual land uses of the immediate area surrounding the subject property are as follows:
The northwest corner is occupied by a gasoline station. Proceeding west on Dempster Street for five blocks we find a medical office, a food mart or supermarket and a drugstore, a parking lot for the supermarket, another parking area, a Chinese restaurant, a bakery, a drive-in cleaning establishment, vacant parcels, a chemical company, a tile company, a vacant area, a medical office building, a conveyor company, a gasoline station and eight single-family residences.
At the southwest corner and proceeding west we have 250 feet of vacant, a Chinese carry-out restaurant, a travel agency, a vacant store formerly used for a beauty shop, another vacant store formerly used for retail sale of ice cream, a dentist's office, vacant, a real estate firm (beneficial owner of subject property), and vacant zoned R-2 and R-1 for residential uses.
At the southeast corner and proceeding east there are a large garden and patio center, a butcher shop, a Community Center, a parking area, three blocks zoned R-2 for single-family residences; a parking area, a drive-in restaurant and another restaurant.
The northeast corner is occupied by a restaurant including a parking area, and proceeding east there are 480 feet of vacant zoned B-2, a donut shop, a hamburger shop, a parking lot, a snack shop, a barber shop and beauty parlor, a meat market and grocery, vacant, electrical supply office, automobile supply store, a bicycle shop, hardware store, a chop suey restaurant, a pizza restaurant, a beauty shop, drugstore, barber shop, a billiard room and a real estate office.
There are large areas to the north and south of Dempster Street classified in the R-1 and R-2 category and limited to single-family dwellings. Dempster Street is in the B-2 zone for several blocks in either direction from Crawford ...