Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Reversed and remanded with
This is an action for declaratory judgment wherein the plaintiff, Emil Johnson, sought to have declared invalid certain portions of the Chicago Zoning Ordinance as comprehensively amended May 29, 1957, to the effect that the ordinance prevents the use of lots providing 3,306 square feet of lot area for the erection of a single family dwelling under the R2 zoning and to have declared the plaintiff's right to build a family dwelling pursuant to a permit previously issued to him by the City of Chicago.
In 1954 the plaintiff and his wife acquired the following described property in joint tenancy:
Lot 5 in Block 1 in Murdock James and Company's Milwaukee Avenue Addition; a Subdivision of Lot 4 and part of the Northeast Quarter and part of the Northwest Quarter of Fractional Section 5, Township 40 North, Range 13, East of the Third Principal Meridian in Cook County, Illinois.
Lot 5 is a lot of record in said Block 1 in said subdivision. The block in which it is located is a triangular block bounded on the northeast by Indian Road, on the southeast by Miami Avenue and on the west side by Mason Avenue. Attached hereto is an appendix showing the blocks and lots therein. All lots numbered 1 through 14, being all the lots in Block 1 are lots of record. Lot 5 is a through lot, the southern portion fronting on Miami Avenue and the north portion on Indian Road. Its west side abuts the alley east of Mason Avenue and its east side abuts Lot 4. Lot 5 of record contains a total area of about 6,700 square feet. It is improved with a single-family residence and garage facing Miami Avenue. At the time of acquisition plaintiff was delivered a plat of survey of Lot 5 purporting to show that it had been divided into two parcels, by the drawing of a line at right angles to the west line of the lot at a point 120 feet (erroneously shown as 210 feet) North of the Southwest corner of the lot. The line extends 30 feet across the lot from an iron pipe on the west line to an iron pipe on the east line. The North parcel, 119.23 feet north and south adjoining the alley was designated as Parcel B, and the South parcel was designated as Parcel A. Neither are lots of record. Parcel B contains approximately 3,306 square feet while Parcel A contains approximately 3,442 square feet. The residence of plaintiff is located on Parcel A and Parcel B previous to 1962 contained trees and shrubbery and was used as a garden for the residence on Parcel A.
The parties stipulated that all lots in the same block abutting Mason Avenue are improved and all are lots of record providing 3,750 square feet and that the corner lots are larger than 5,000 square feet (at Miami and Indian Road intersections with Mason Avenue). The parties further stipulated that Lot 1 of Block 1, at the corner of Indian Road and Miami Avenue, now contains two single-family residences on portions of Lot 1 which are not lots of record. Both of the portions of Lot 1 on which these buildings are built are less than 5,000 square feet, but over 3,750 square feet in area. Lots 3 and 4 have been divided by metes and bounds into portions or parcels which are not lots of record. On the south portion of Lots 3 and 4, fronting on Miami Avenue, there is a single-family residence and garage. The lot area is 4,486 square feet. In 1958, John J. Jung bought the northern portions of Lots 3 and 4 fronting on Indian Road. Mr. Jung erected his single-family residence on this parcel which provides a lot area of 6,450 square feet.
The section of the Chicago Zoning Ordinance applicable to the present case provides as follows:
"7.5-2 Minimum Lot Area R2 Single-Family Residence District
"In an R2 District, there shall be provided not less than 5,000 square feet of lot area per dwelling unit, except that in cases where the predominant number of lots of record on the effective date of this comprehensive amendment, fronting on the same side of the street between the two nearest intersecting streets, have a lot area lot area less than that prescribed by the regulation of this district, then, and in that event, the lot area requirement shall be that of existing lot areas in the area previously described, but in no event shall the lot area requirement be less than 3,750 square feet." (Municipal Code of Chicago, c 194A, § 7.5-2, as amended.)
All uses in Block 1 in which Lot 5 is located, are single-family residence uses in compliance with the zoning designated as R2.
In 1961 plaintiff had a survey made of Tract B which showed the same dimensions as the survey delivered to him on acquisition, but corrected the earlier survey to show that the pipe in the west line of Lot 5 was 120 instead of 210 feet north of the Southwest corner of the Lot. Plaintiff then decided to erect a residence on Tract B and requested various building contractors to submit bids for varied work on the contemplated single-family residence over one story in height, and in 1962 applied to a city for a building permit.
On June 6, 1962, the plaintiff obtained the building permit and immediately began preparations for construction. The plaintiff removed the trees and shrubbery which had been growing on Parcel B and began the excavation of the Parcel and the installation of the footings. On June 14, 1962, the City notified the plaintiff to stop work in that the permit, issued on June 6, 1962, had been revoked because the land described in the application and permit did not conform to the requirements for minimum lot area as prescribed in the zoning ordinance. On March 4, 1963, the plaintiff filed this suit for declaratory judgment.
A City Planner employed by the City of Chicago testified that from his familiarity with the subject and surrounding property, his expert opinion was that from a City Planning and Zoning point of view, the highest and best use of the subject property is to remain a portion of Lot 5 of record upon which the existing single-family residence now exists. In arriving at his opinion, the City Planner concluded that if Lot 5 of record were divided, it would establish the subject property (Parcel B) as nonconforming to the ordinance, and would also make nonconforming the portion of Lot 5 upon which the plaintiff's residence is erected. (Parcel A.) The City Planner further testified that plaintiff's success in dividing Lot 5 into substandard lots would establish a legal precedent to permit other owners to erect houses in violation of the zoning ordinance on substandard lots. In his opinion the proposed use of subject property would adversely affect the surrounding communities of Norwood and Edison Parks.
A real estate appraiser for the City testified that he examined the subject and surrounding properties. He offered his expert opinion that all of the homes in the triangle block would be ...