Appeal from the Circuit Court of Cook County; the Hon. EDWARD
J. RYAN, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Plaintiffs instituted this declaratory judgment action challenging the constitutionality of the Zoning Ordinance of the City of Chicago, as it applies to their subject property, and requesting that the trial court enter a decree permitting them to construct a gasoline filling station on the premises. *fn1 The trial court, sitting without a jury, entered a final judgment order finding the ordinance valid in its application to plaintiffs' property and entered judgment for the defendant. Plaintiffs appeal. No questions are raised on the pleadings.
The subject property, consisting of three lots, is located at the southeast corner of 71st Street and Vincennes Avenue in Chicago. *fn2 The parcel is irregular in shape, having frontages of approximately 154 feet along Vincennes Avenue and 137 feet along 71st Street. Vincennes Avenue is a major six-lane highway with dividers running northeast and southwest and intersecting 71st Street about 300 feet west of the interchange of the Dan Ryan Expressway. Seventy-first Street, which abuts the property on the north, is a major six-lane thoroughfare running east and west. The Shell Oil Company has options to purchase the subject property if it is rezoned to allow an automobile service station.
The subject property is included in and is within the jurisdiction of the Southeast Englewood Conservation Project. The plan of the urban renewal project contemplates that the property shall continue to be used for low density residential purposes. The boundaries of this project are 67th Street on the north, the Dan Ryan Expressway on the east, 75th Street on the south, and on the west an irregular boundary formed by the Chicago and Western Indiana Railroad tracks and by Yale and Princeton Avenues. Counsel for plaintiffs do not deny the validity of the Urban Community Conservation Act or the power of the City to designate conservation areas pursuant thereto. Nor do they have any disagreement with the purpose of urban renewal.
The threshold question in the case at bar is what scope of review is afforded to owners of property within a conservation district who contest a zoning restriction. The Supreme Court of Illinois was first confronted with the question as part of a broad scale attack on the constitutionality of the Urban Community Conservation Act (Ill Rev Stats, 1953, c 67 1/2, pars 91.8-91.16) in the case of People ex rel. Gutknecht v. City of Chicago, 3 Ill.2d 539, 121 N.E.2d 791. In approving the Act the Court stated that "[i]f the action taken by said [city] council in adopting a conservation plan be deemed unreasonable, oppressive, capricious or discriminatory, resort to the courts is available." People ex rel. Gutknecht v. City of Chicago, 3 Ill.2d 539, 549, 121 N.E.2d 791, 797. The scope of review under the Act was further clarified in Westfield v. City of Chicago, 26 Ill.2d 526, 187 N.E.2d 208. There the Court stated:
"a conservation plan is not sacrosanct, and the right to test the validity of zoning regulations included in such a plan is not destroyed, although the comprehensive study and planning involved in the creation of an urban renewal district is certainly a factor entitled to special consideration."
Westfield v. City of Chicago, 26 Ill.2d 526, 530, 187 N.E.2d 208, 211. Thus, it seems clear that the plaintiffs in the instant case are not precluded from seeking judicial review of the Zoning Board's denial of their application for a zoning change merely because their property is within a conservation district.
[2-5] In considering the validity of the zoning ordinance in its application to a particular site, each case must necessarily be decided on its own particular facts. The court must take into consideration the use and zoning of nearby property, the character of the neighborhood, the extent property values are diminished and the relative gain to the public as compared with the hardship imposed upon the owner. A zoning classification will be upheld if it bears a substantial relation to the public health, safety, comfort, morals and welfare. Where the question of its reasonableness as applied to a particular parcel of property is subject to a fair difference of opinion, the legislative judgment of the zoning authority should be followed. The presumption of validity is overcome, however, when it is shown that the ordinance results in the destruction of property values with an absence of any reasonable basis in the public welfare requiring the restriction and resulting loss. Wolfe v. Village of Riverside, 60 Ill. App.2d 164, 208 N.E.2d 833; La Salle Nat. Bank v. County of Cook, 28 Ill.2d 497, 192 N.E.2d 909.
The subject property is located in a R-3 residential district which is bounded by Vincennes Avenue on the west and 71st Street on the north. Lot 11, in the center of the subject site, is improved with two two-flat buildings. Lot 10, which is the southern portion of the subject site, and lot 12, the northern portion abutting 71st Street, are vacant. The entire area to the immediate east and south of the subject property, and bounded by South La Fayette Avenue to the east, 75th Street to the south, Perry Street and Vincennes Avenue to the west is zoned and developed as a R-3 general residential district. All of the properties from 70th Street to 79th Street along the east side of Vincennes Avenue except for the plaintiffs' property and the large majority of those on the west side of Vincennes are zoned for business, commercial and manufacturing uses.
Directly west from the subject site, across Vincennes Avenue, at the southwest corner of the intersection of Vincennes and 71st Street, is a Standard Oil Service Station which was built 16 years ago. On the southeast corner of 71st Street and Wentworth Avenue, about one block from the Standard Station, is a Texaco Service Station. Directly north of the subject site, across 71st Street, at the northeast corner of the intersection of 71st Street and Vincennes, is a high-rise building containing 196 apartments on the upper floors and business uses on the ground floor.
The plaintiffs' witnesses testified that the fair cash value of the subject property under its current zoning classification is about $35,000. If the zoning classification is changed to allow an automobile service station the property would be worth $125,000. There was also testimony to the effect that since the Dan Ryan Expressway had opened, the traffic on 71st Street and Vincennes Avenue had increased markedly. Lastly, several of the plaintiffs' witnesses stated that the highest and best use of the subject property was for a filling station, while a witness for the defendant testified that from a city planning viewpoint the highest and best use of the subject property would be medium density residential.
As stated above, a presumption of validity attends a zoning ordinance adopted pursuant to legislative intent. Urann v. Village of Hinsdale, 30 Ill.2d 170, 195 N.E.2d 643. It is our opinion that the plaintiffs, as the parties attacking the R-3 classification, failed to sustain their burden of proving by clear and convincing evidence that the ordinance is arbitrary and unreasonable and that it is without substantial relation to the public health, morals, safety, and welfare, and that, therefore, they did not overcome the presumption of validity that attaches to a zoning classification.
Firstly, the fact that there would be an enhancement of the value of the subject property, if it were zoned to allow an automobile service station, while a factor to be considered is not decisive in determining the reasonableness of the existing classification. River Forest Bank and Trust Co. v. Village of Maywood, 23 Ill.2d 560, 179 N.E.2d 671; Jacobson v. City of Evanston, 10 Ill.2d 61, 139 N.E.2d 205. The plaintiffs maintain that the courts of this State have consistently held that where the loss to the property owner caused by the zoning restriction is shown and there is no reasonable basis in the public welfare for the plaintiffs to suffer such a loss, the presumption of the ...