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Bluhm v. City of Chicago

MAY 7, 1969.

JEROME B. BLUHM, PLAINTIFF-APPELLANT,

v.

CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS C. DONOVAN, Judge, presiding. Judgment affirmed.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Plaintiff, Jerome B. Bluhm, sought a declaratory judgment declaring the Chicago Zoning Ordinance as applied to the subject property to be void and unconstitutional. Plaintiff appeals from an adverse judgment entered by the trial court.

The property involved in this matter is a vacant parcel of land located on the south side of 90th Place between South Indiana Avenue and South Prairie Avenue, Chicago, Illinois. It is triangular in shape; bound on the south by the Belt Railway railroad tracks. The size is approximately 132.96 feet along South Prairie Avenue, approximately 355 feet along 9th Place, and runs northwesterly approximately 378 feet 7 3/4 inches along the Belt Railway tracks and consists of approximately 24,000 square feet. The Belt Railway tracks are elevated approximately fifteen feet in the rear of the property. The railroad embankment runs diagonally through the neighborhood with the industrial uses being located in an almost continuous band parallel to the embankment.

The area directly north and east of the subject property is improved with single family residences, and zoned R-2. South of and on the other side of the railway embankment the area is zoned R-3 and R-2. Southeasterly of the subject property and adjoining the north railroad embankment there is a group of factories. These include a paint factory, a truck terminal for storage of vehicles, a stone yard and other small factories. Various industries are clustered to the northwest directly across the street (Indiana Avenue) from the subject property.

The subject property has been zoned for manufacturing since the first Chicago Zoning Ordinances in 1923 and in 1947 it was classified to the present M1-1 zoning. Article 10, section 10-3 of the Chicago Zoning Ordinance, 1967, lists over twenty-six permitted uses in the M1-1 classification, such as drugstores, food stores, medical-dental clinics, contractor or construction offices, shops and yards, greenhouses, private clubs or lodges, etc.

Plaintiff is a developer of real estate property who took title to the property from the Belt Railway Company on April 13, 1962. Plaintiff on February 14, 1962, appeared before the Committee on Zoning of the Chicago City Council and requested a change in zoning from M1-1 to R-4, which relief was denied March 1, 1962, after a full hearing in which the intervening petitioners, being owners of the single-family residences in the area of the subject property, appeared.

Plaintiff proposed to build a three-story building containing six, two-bedroom units and twenty-one, one-bedroom units on the property. Plaintiff contends that the highest and best use of the land is for a multiple-dwelling unit under the R-4 classification rather than the present zoning classification which plaintiff charges is unconstitutional. The City of Chicago and intervening Petitioners contend that the ordinance takes into consideration the location of the property, its relationship to the other property in the area, the suitability of the property for the uses allowed, and that said classification is a reasonable, valid exercise of the governmental power of the city to provide for the public health, safety, comfort, morals and welfare of its citizens.

Plaintiff argues that the property has remained vacant, although efforts had been made to sell the property, but because of its present zoning classification the property is unsaleable. A witness from the Belt Railway testified on behalf of the plaintiff that the railroad embankment makes it difficult for the railroad to service the subject property; the railroad was unable to sell the property, because it was attempting to find a purchaser which it could track-serve. The railroad did not make any effort to sell but merely "put out word that it was available" for sale.

Plaintiff's two expert witnesses testified that the highest and best use of the property would be the proposed R-4 use. Defendants' expert witness testified that the highest and best use would be for single-family residences, and that the property could be used as it is zoned (M1-1) and the present zoning would not have a deleterious effect on the neighborhood, and that the proposed R-4 use would have a definite detrimental effect on the neighborhood. Eighteen witnesses testified on behalf of the intervening petitioners, Chatham Village Association, that as adjacent property owners they were opposed to the proposed R-4 zoning. These witnesses testified to the detrimental effects the proposed zoning would have upon the neighborhood: overcrowding of the schools and neighborhood, increased traffic and depreciation of property values. The president of the Chatham Village Association testified that presently the three public schools in the area were overcrowded and that one of the three was the most overcrowded in the city.

Plaintiff's two expert witnesses testified that the value of the subject property as presently zoned was $12,500 and this was the price plaintiff paid for it. Plaintiff adduced evidence that an R-4 zoning classification would increase the value of the property to $25,000-$30,000 and would be the best and highest use of the land. Defendants' expert testified the best use would be five or six single-family residences on the property, but that it could be used as zoned (M1-1) and that the present zoning does not have a deleterious effect on the single-family homes directly across the street. On cross-examination defendants' expert testified a multiple-family use of the property would impair surrounding property.

[1-5] The case of Village of Glenview v. Van Dyke, 98 Ill. App.2d 118, 123, 240 N.E.2d 354 (1968) discusses the guidelines to be applied in the determination of the reasonableness of a zoning ordinance:

"The question of whether a zoning ordinance is arbitrary, unreasonable or capricious in its application to a given parcel of land, or whether it is reasonable and bears a substantial relation to the public welfare, is subject to review by the courts. Running through the multitude of zoning cases appearing in nearly every volume of the recent reports are general rules for deciding this question which are consistent in their restatement and unvarying in their application. Briefly, these rules are as follows: There is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant; a person assailing such a validity has the burden of proving by clear and affirmative evidence that the ordinance is arbitrary, unreasonable or capricious, or bears no substantial relation to the public welfare; if it appears from all the facts that there is a difference of opinion concerning the reasonableness of the classification, the legislative judgment is conclusive; among the particular facts and circumstances to be taken into consideration in determining whether a zoning ordinance is so unreasonable and confiscatory as to constitute an unlawful invasion of private rights are the character of the neighborhood, the zoning classification and use of nearby properties; the extent to which property values are diminished by the particular zoning restriction involved, and the gain to the public compared to the hardship on the individual property owner." (Citing cases.)

A zoning classification is presumed valid and the party challenging the validity of the zoning classification has the burden of proving by clear and affirmative evidence that the zoning classification is arbitrary or unreasonable. Hartung v. Village of Skokie, 22 Ill.2d 485, 177 N.E.2d 328 (1962). The proof must establish that the zoning classification is arbitrary or unreasonable, not merely that the property could be reasonably zoned under a different classification, or that the court, if it sat as a zoning body, would classify it differently. Menolascino v. Village of Franklin Park, 106 Ill. App.2d 472, 246 N.E.2d 122.

In order to meet this burden of proof plaintiff argues that the present zoning classification is inconsistent with the uses and zoning of the surrounding property; the value of the subject property is diminished by the present zoning classification; the destruction of plaintiff's property value does not promote the health, safety, morals or general welfare; there is no gain to the public as compared to the hardship imposed on the plaintiff; the highest and best use of the subject property is the apartment building ...


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