Appeal from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding. Decree affirmed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT. Rehearing denied November 21, 1969.
Plaintiff, Mangel and Company, an Illinois Corporation, owner of certain real estate located in the Village of Wilmette, filed a declaratory judgment action against the Village, seeking a declaration that, the Village Zoning Ordinance, which classified the subject property in an R1 single-family residential category, was unconstitutional as applied to the subject property; and that plaintiff had the right to erect a 56-apartment building, a multiple-family use within the R4 residential category. On April 8, 1968, after a trial without a jury, the trial court found that the zoning ordinance was unconstitutional as applied to the subject property. The court further found that plaintiff's request to erect a 56-unit apartment building would be denied. Plaintiff appeals from the latter portion of that decree which denied it the right to erect the 56-unit building. Defendant has not filed a cross-appeal to that portion of the decree which held that R1 zoning was unconstitutional as applied to the subject property. In fact, defendant has filed a motion, asking that this court take judicial notice that the Village, after the entry of the decree by the trial court in the instant case, has passed an ordinance rezoning the subject property R3, a low density multiple-family type use. Consequently, in this court, the propriety of holding the R1 use unconstitutional as applied to this property is not an issue.
Certain owners of single-family residences abutting the instant property to the east were given leave to intervene in the suit; they filed a separate answer and participated in the trial. These intervenors have not filed an appearance or brief, and are in default in this court.
Subsequent to the presentation of evidence, but prior to the final decree of the trial court, plaintiff and defendant signed a stipulation and agreed that plaintiff be allowed to erect a 52-unit building on the property. When the stipulation was presented, the trial court, upon objection by the intervenors, denied plaintiff's motion for the entry of that order. Plaintiff's motion to amend its complaint and reopen proof so that evidence could be presented with respect to a specific plan for development of a B3 commercial use zoning category for the property was also denied by the trial court.
In its appeal, plaintiff contends that the trial court erred in leaving the property unzoned and in failing to frame its decree consistent with established principles; that the trial court's denial of permission to erect the 56-unit building was arbitrary and unreasonable; that the trial court erred in refusing to accept the stipulation between the plaintiff and defendant as to the use of the subject property for a 52-unit building; and that the trial court erred in refusing to allow plaintiff to amend its complaint and to reopen proof in order to present evidence as to a specific commercial use.
The subject property is located on the east side of Skokie Boulevard between New Glenview Road to the north and Old Glenview Road to the south. The western boundary of the property has a frontage of 432 feet on Skokie Boulevard, the eastern boundary is 400 feet, the northern boundary is 216 feet, and the southern boundary is 145 feet. The property is vacant and unimproved.
Directly south of the subject property is Mangel Florist, operated by plaintiff. Immediately east of the property is a residential development consisting of single-family residences. These homes are flush against the subject property with no alley between, and face Sunset Drive. Directly north is a vacant piece of land which runs to New Glenview Road and is zoned residential. North of New Glenview Road on Skokie Boulevard is a tract of land zoned R3 and developed with townhouses. North of the townhouses is a parking area. Directly east of the townhouses are single-family residences. Still further north at Wilmette Road are two service stations, vacant land and a drugstore. On the west side of Skokie Boulevard there is located a park, playground and a school. South of New Glenview Road is a single-family residential development with homes backed up to Skokie Boulevard, a Sinclair gas station, vacant land and a small development of stores. The southwest corner of Old Glenview Road, which is presently vacant except for an old home, runs down to the dividing line between defendant Village and the Village of Skokie. The property along the west side of Skokie Boulevard from the vacant land south has a strip commercial type of development. South of that is a major commercial development, and further down is the Old Orchard Shopping Center, containing a full complex of stores. Across the street from the shopping center on the east side of Skokie Boulevard is a cemetery. Starting from the northeast corner of Old Orchard Road and Skokie Boulevard, and coming north, there are various restaurants, a funeral home and a few other stores. To the east of these commercial enterprises, in Skokie, is an R4 area developed with condominiums and apartments.
Testimony as brought out at trial pertinent to the use of the property for a 56-unit apartment building was as follows:
John Mangel, II, testified that he was vice-president of Mangel and Company, plaintiff and owner of the property involved. The property was presently the subject matter of a contract with Ontario Contracting Company. Plaintiff was to sell the property to Ontario for the sum of $200,000 if successful in obtaining the necessary zoning to allow the erection of an apartment building. There are no R4 multiple dwellings in the immediate vicinity in Wilmette, but there are some nearby in the Village of Skokie.
Alan Friedman testified that he was secretary-treasurer of Ontario, and that he had negotiated the contract to buy this property. The R4 zoning requirements of the defendant Village would allow one apartment unit for each 1,000 square feet of land space. The subject property contained about 71,000 square feet. Ontario originally had planned to build a 71-unit building, but in an effort to compromise with defendant, was planning to erect a 56-unit building. The building would be a four-story masonry and concrete building, consisting primarily of 2 and 3 bedroom units, with 112 parking spaces. Since the subject property was flush against the lot lines of individual homes on the east, with no alley, they planned to build a stockade fence on the east line to obstruct the visibility. There would be 4 entrances or exits from the property to Skokie Boulevard.
Ralph Martin, a realtor and appraiser, testified for plaintiff that the highest and best use of the land in question would be an R4 use, considering the location and shape of the property. An R4 use would not have an adverse effect on the surrounding properties. This property, based on an R4 development, would be worth $280,000. If zoned for an R3 use, the value of the property would be $96,000. If zoned R1, it would be worth $50,000. However an R3 use, a low density multiple-family use, would not be a desirable use for the property because more children would be living in the townhouses than in the proposed use. There is only one existing R4 development in Wilmette, several miles east of the property in question.
Ralph C. Campbell, a city planner and zoning consultant, testified for plaintiff that he was familiar with the area and the proposed use. R4 would be a proper use for the property because it is physically suited for such a use and would be compatible with adjacent uses. It would make a good transition between the commercial uses and the adjoining single-family residences. While R4 would have a detrimental effect on the adjacent single-family area, it would have less of an adverse effect than any of the proposed uses, other than R1. An R3 use could be developed, but this would not be the highest and best use for the property. Maintenance by one owner under R4 would be better than maintenance by many owners under R3. An R3 use would call for apartment or townhouse uses that would be sold to individual families, more apt to have children, creating problems along Skokie Boulevard. Mr. Campbell stated that there was "no real true thing as spot zoning." If a use is in conformity with the land use pattern, then it is not spot zoning.
For the defense, John Scapin, a civil engineer and director of planning, zoning and building for defendant Village, testified that he was familiar with plaintiff's proposed construction. In his opinion, the proposed R4 use would have an adverse effect, and the best use would be an R3 development. There are no apartment buildings similar to the one proposed on Skokie Boulevard, and the only other R4 use in Wilmette is located several miles away near Lake Michigan. He was familiar with the proposed development at the time the matter was pending before the Village Zoning Board, and did not have an opinion as to its desirability at that time. The zoning board recommended to the Village Board that plaintiff's proposed R4 development be allowed.
Carl Gardner, a city planning and zoning consultant, testified that he had been retained by defendant some eight months before to prepare a long-range comprehensive plan and an analysis and recommendation for the use of property along Skokie Boulevard. The highest and best use of the subject property would be an R3 classification. The property in question consisted of 1 3/4 acres. He would recommend a low density multiple-family type use of 12 to 18 dwelling units per acre. These would be one or two story buildings. The redistricting of the subject property for R4 would not be a suitable use. The only R4 use permitted in Wilmette was an extensive lake front acreage suitable for such a development. The particular needs of an R4 district would be an area of sufficient size to create a character of its own, and that it have accessibility from a major thoroughfare as well as extensive view, light and air. The subject property did not meet these necessary requirements. After his retention by defendant as a consultant he had made a report to the Village that an R4 classification would be ...