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Murphy v. City of Countryside

OCTOBER 1, 1969.

FRANK MURPHY AND HARRIET A. MURPHY, PLAINTIFFS-APPELLEES,

v.

CITY OF COUNTRYSIDE, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding. Reversed in part; affirmed in part.

MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 24, 1969.

Plaintiffs brought a declaratory judgment action seeking a declaration that defendant's zoning ordinance which restricts the use of their property to R-1, single-family dwellings, is void, and further seeking permission to erect apartment buildings as permitted under the R-5 (multiple-family) use classification.

The court, adopting the recommendations of the master, declared the ordinance void as applied to the southern half of plaintiffs' property and rendered a decree allowing plaintiffs to use the southern half of their property for the "uses permitted in the R-5 use districts" of the City of Countryside; the ordinance was declared valid as to the northern half of plaintiffs' property.

Defendant appealed, contending that its zoning ordinance is valid as to the whole of plaintiffs' property; plaintiffs cross-appealed, asserting that the ordinance is void as to the whole of their property.

Plaintiffs' property is a rectangular shaped parcel of vacant land (722 feet by 330 feet) located on the south side of 57th Street a few hundred feet west of LaGrange Road. The parcel has a 722-foot frontage on 57th Street. Immediately to the east of plaintiffs' property and contiguous to it is an automobile agency which extends to and fronts on LaGrange Road. That property formerly belonged to plaintiffs but was sold to Chrysler Motors after having been rezoned for commercial use with plaintiffs' participation and assistance. South of the Chrysler property and along LaGrange Road is a hotel followed to the south by residential property, and then three houses which front on 58th Street.

Directly to the south of plaintiffs' property and just to the west of the property along LaGrange Road hereinabove described is unimproved land for two blocks to 59th Street, with the exception of a single-family home at 58th Street. 58th Street does not extend all the way across the section of unimproved land, rather it extends only 700 feet west off of LaGrange Road (the depth of the commercial zoning classification along LaGrange). South of 59th Street is a drive-in movie theater; and south of that there is vacant land for about two blocks to Route 66.

Immediately to the west of the plaintiffs' parcel is the plaintiffs' own dwelling, and to the west of that there are two homes fronting on 57th Street. Farther west there are medium single-family homes ranging in price from $18,000 to $32,000. To the north the parcel is bounded by single-family homes that front on the north-south streets running north from the plaintiffs' parcel.

Plaintiffs' experts testified that the highest and best use of the subject property was for multiple-family residences. Defendant's experts testified that the highest and best use would be for continued single-family development. The latter based their opinion upon the fact that (1) with multiple-family zoning there would be an increase in density of families per acre from two per acre to almost thirty family-dwelling units per acre on the subject property; (2) a multiple-family use would decrease the land value of the adjoining properties, some by as much as ten percent; and (3) the existing development within the City of Countryside is for single-family use and a rezoning to R-5 would have a detrimental effect on an established single-family area by disturbing the balance of the remaining vacant land which could be developed for single-family residences.

The defendant contends that the trial court erred in dividing the property for zoning purposes. We agree. In Exchange Nat. Bank of Chicago v. City of Waukegan, 85 Ill. App.2d 461, 229 N.E.2d 562 the plaintiff desired to build apartments on its property. He sought to rezone the property and the trial court, upon review of the City's denial to rezone, split the property in half, finding the City's zoning ordinance invalid as to the "East Portion" of the subject property but valid as to the "West Portion." Upon appeal the lower court decree was reversed. The court stated:

"The Trial Court has no authority to divide the property. As the Supreme Court said in the case of Bredberg v. City of Wheaton, 24 Ill.2d 612, at page 624, 182 N.E.2d 742:

"`We may say at once that nothing in our decisions in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d 370, and Illinois Nat. Bank & Trust Co. v. County of Winnebago, 19 Ill.2d 487, was intended to permit a Trial Court to constitute itself as a zoning authority by carving out and rezoning a portion of the land in litigation.'"

"The court found that the `East Portion' of the property in question should be zoned as R-5; it then ordered the property divided for zoning purposes. Such order usurped the powers of the legislative governmental body, and the order was contrary to the principles of law established by the foregoing authorities. Because the court divided the property for zoning purposes, the proper administrative agencies of the defendant city were never called upon to consider the question of changing the zoning of that particular property as is required by law. See: Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270."

For the reasons set forth above, we find that the trial court erred in dividing and rezoning the property. The judgment declaring the southern half of ...


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