Appeal from the Circuit Court of Cook County, County
Department, Law Division; the Hon. THOMAS C. DONOVAN, Judge,
presiding. Judgment reversed.
Rehearing denied March 19, 1970.
Plaintiffs filed a declaratory judgment action to change the zoning classification of plaintiffs' property from its present M1-1 Restricted Manufacturing classification to a C4 Motor Freight Terminal District, so as to permit the building of a refrigerated storage plant with loading docks. Fifty-four adjacent single-family residential owners were granted leave to intervene. The trial court entered judgment for the plaintiffs, finding that the existing zoning classification unreasonably restricted plaintiffs in the use of their property and was, therefore, void and unenforceable insofar as it prohibited plaintiffs from proceeding with their plans. The city appeals.
The subject property, an irregularly shaped area of approximately fourteen and one-half acres, is located at the southwest corner of 70th Street and Pulaski Road. On the north it extends west along 70th Street, which ends one block west of Pulaski, then further due west to a point 725 feet west of Pulaski. Including some unimproved land at the west end of the lot, the depth of the lot at its deepest is 936 feet from Pulaski. On its eastern boundary it extends two blocks north and south along the west side of Pulaski Road, past 70th Place, which ends on the east side of Pulaski, to a point opposite 71st Street which also ends on the east side of Pulaski. From this point, the southern boundary runs west to the easterly right-of-way of the Belt Line Railroad, and then along the right-of-way, in a northwesterly direction through unimproved land to the northwest corner of the property described above.
The eastern portion of the property is improved with a one-story brick office and garage-type building, approximately 125 X 200 feet. The western portion is raw land and is the area sought to be improved. All but the extreme western portion is enclosed with a six-foot high cyclone fence.
Immediately to the north of the subject property is an area zoned R2 Single-Family Residence, but the frontage along Pulaski is zoned C1-1 Restricted Commercial. This is a well-developed residential area and extends from Mid-West Emery's plant to 63rd Street on the north and from Pulaski on the east to Cicero on the west. The south boundary of this residential development is irregular due to the northwesterly curve in the Belt Line Railroad, and the industry located along its right-of-way. The most immediately affected residences are located in a three-block area between 69th and 70th Streets and from the alley west of Pulaski, across Komensky and Karlov, to Kedvale, three blocks to the west. These are lightly traveled residential streets; however, Pulaski is a heavily traveled, four-lane through street. One twelve-hour traffic count exceeded 22,000 vehicles. This area was first subdivided in 1916, but failed to develop until after World War II. Until 1941 there were only five frame houses in the area. At that time the area was rezoned from manufacturing to residential and has since developed completely with single-family brick houses ranging in value from $18,000 to $20,000. The business properties along this area on the west side of Pulaski, 70th Street to 69th Street, include a parking lot and two-story office building, both owned by Mid-West Emery, a single home and an automobile body shop.
On the east side of Pulaski, beginning at 69th Street and going south to 70th Street, there is a drive-in restaurant, gas station, vacant lot and office building. Continuing from 70th Street to 70th Place, there are three buildings now owned and used by Mid-West. These buildings on the east side of Pulaski are in a B4-2 Restricted Service District, while those on the west side are in C1-1 Restricted Commercial District. South of 70th Place the frontage along Pulaski is vacant to the overpass which is just beyond 71st Street. Across the overpass is J.L. Trucking warehouse facility and Robinson Steel Company, but these uses cannot be seen from Mid-West Emery's location. The area to the east of the frontage just described is zoned R2 and R3 from 63rd Street on the north to 71st Street on the south and is a homogeneous residential community built around Marquette Park.
Immediately south of the subject property, contiguous with Pulaski and the Belt Line right-of-way, is a catalyst plant of the Nalco Chemical Company. This is a heavy industrial use which is zoned M2-2 General Manufacturing District.
West and southwest of the subject property and Nalco, across the Belt Line tracks and freight yards is the expansive Ford City Development which extends to 77th Street on the south and from Pulaski to Cicero on the west. Ford City encompasses a shopping center, industrial park and freight terminal uses, zoned B5-2, M1-1, M2-2 and C4, respectively. The area zoned C4 for motor freight terminals has been expanded periodically so that the east edge of that C4 district is only several hundred feet across the tracks from the west edge of Mid-West Emery's plant. The entrances to these operations are a mile apart, however.
Abutting plaintiff's property on the west, there is an alkali plant with track spur and trucking facilities in an M1-1 district which is apparently in compliance with that classification. It is a lighter manufacturing use than the Nalco Chemical plant to the south of the subject property and is adjacent to the residential area first described.
Mid-West Emery is an interstate motor freight carrier operating between Denver and the east coast. It maintains several terminals throughout this area, and has four facilities in the Chicago area, including the subject property. It owns about 325 tractors and 650 trailers, and its net income for 1964 was approximately $4,000,000. Sixty percent of its operation is carrying meat.
At present Mid-West Emery employs approximately 190 drivers and 50 mechanics at the Pulaski location. Sixty to seventy tractors and trailers enter or leave the facility each day. Approximately 150 trailers and 100 tractors are parked there over the weekend, as well as the junk equipment stacked behind the garage. In addition, about 100 cars belonging to employees are parked on the premises each day. The garage is open 24 hours a day, and 20% to 25% of the traffic in and out is after 6:00 p.m.
The operation is primarily involved with service and maintenance of equipment, including painting. There are no docking facilities or storage areas on the premises, only the office building and garage. Each trailer hauling perishable goods has a separate refrigeration unit. No transfer of freight *fn1 is made there unless it is necessary to make repairs. The trailers are loaded elsewhere and come into the plant to receive billing, manifesting and paper work. The open area is also used for parking the equipment. The operation has been essentially the same since Mid-West Emery came there in 1952. Apparently, the property has been put to similar use since before 1947 when the garage was built, except that the intensity of use has increased since that time.
In 1923 the entire area from 79th Street to 67th Street was zoned manufacturing. At that time the subject property was vacant, as it was until 1942 when a small trucking operation began. At the same time, the property was rezoned residential except for 125 feet of frontage which was zoned for business. In 1945 the property was rezoned to manufacturing. Plaintiffs' complaint states that a motor freight terminal was a permitted use under that classification, but there is no evidence in the record to that effect.
However, in 1953 and 1955 attempts were unsuccessfully made to have the property rezoned from family residence and business to a motor freight terminal district. The reason for the discrepancy could not be discovered. Nevertheless, as of 1957, the entire property was placed in an M1-1 Restricted Manufacturing District. A C4 motor freight terminal is not a permitted use in this classification.
The tentative proposal of Mid-West Emery is to construct a dock area and freezing room at the southwest corner of the property, approximately 82 feet by 100 feet and 20 to 25 feet high, at a cost of $300,000 to $400,000. Offices are planned for the upper level. It is projected that if the plan is carried out, the intensity of use of the property will increase significantly. The total business of Mid-West Emery is not expected to increase, but this plan will permit consolidation of the other three Chicago area facilities into a single operation.
Clearly, whether Mid-West Emery's operation is or is not now a motor freight terminal within the meaning of the C4 zoning classification, the proposed improvement, if allowed, would place it squarely within that classification.
Mid-West Emery applied to the City Council of Chicago for an amendment of the present M1-1 zoning classification to a C4 Motor Freight Terminal District, which would permit construction of the proposed facility. The Commissioner of City Planning recommended rezoning the property to C4, but with reduced boundaries, so the C4 district would not be contiguous with the R2 residential area lying to the north of the property along 70th Street. A hearing was held at which sixteen witnesses appeared in opposition and 200 objectors filed petitions. The City Council deferred final determination on the matter which both parties treat as a denial.
The trial court decreed that the present M1-1 restriction deprived plaintiffs of their property without due process of law in violation of both the United States and Illinois Constitutions and, therefore, was null and void and unenforceable. It based its decision on its findings that Mid-West Emery is and has been operating a motor freight terminal facility continuously for approximately twenty years either in its present or corporate predecessor structure; that prior to 1957, this use was a lawful use; that the 1957 comprehensive amendments which zoned the subject property M1-1 Restricted Manufacturing prohibits motor freight terminal uses; that, consequently, the existing use of the property is a legal nonconforming use which cannot be enlarged or expanded; that plaintiffs' proposed expansion would be permitted under the terms of a C4 classification; that the highest and best use of plaintiffs' property is for a motor freight terminal facility; that plaintiffs will suffer irreparable injury if prevented by the zoning ordinance from expanding the present use to its full extent; that such expansion would not adversely affect the residential property in the area; that the present restriction bears no relation to the public health, safety, morals, convenience and general welfare of the people; and, that plaintiffs have exhausted all available administrative remedies for relief.
[1-3] The applicable zoning principles are well settled that there is a presumption in favor of the validity of a municipal zoning ordinance, and the burden is upon the party attacking the validity of the ordinance to prove by clear and affirmative evidence that it is unreasonable and capricious and bears no reasonable relation to the public health, morals, safety and welfare. Martin v. City of Rockford, 27 Ill.2d 373, 374, 189 N.E.2d 280 (1963), Trendel v. County of Cook, 27 Ill.2d 155, 161, 188 N.E.2d 668 (1963). Where the most that can be said is that the reasonableness of the ordinance is fairly debatable, the decision of the municipal authorities must be upheld and the trial court is not justified in substituting its judgment for that of the municipal authorities. Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill.2d 367, 372, 176 N.E.2d 795 (1961).
Plaintiff contends that the present M1-1 zoning classification is not in conformity with existing uses in the area, and defendant asserts that it is. Illinois courts have consistently stated that the question whether or not a zoning classification is in conformity with surrounding existing uses and the zoning classification of nearby property is of paramount importance. Chicago Title & Trust Co. v. City of Harvey, 30 Ill.2d 237, 195 N.E.2d 727 (1964), River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill.2d 560, 179 N.E.2d 671 (1962), LaSalle Nat. Bank v. City of Chicago, 6 Ill.2d 22, 126 N.E.2d 643 (1956).
Plaintiff asserts that the character of the subject property is established by the Nalco Chemical plant on the south, zoned M2-2 General Manufacturing, the network of railroad tracks and freight yards to the southwest, across which is Ford City containing areas zoned B5-2, M1-1, M2-2 and C4, the small alkali plant to the northwest zoned M1-1, the heavily trafficked Pulaski Road to the east and the plaintiffs' own use zoned M1-1 which it claims is a motor freight terminal.
Defendant, on the other hand, points to the three-block, single-family residential area north of the subject property zoned R2 and the residential development zoned R2 and R3 located on the east side of Pulaski beyond the business uses which front on Pulaski. All of the above uses were existing when the 1957 ordinance was enacted. Plaintiffs' contention that the residential area to the north is only a small pocket of homes is contrary to fact. Map 16-K of the Chicago Zoning Ordinance shows that this residential area extends as far as 63rd Street on the north, but the area is narrowed on the south by the irregular north boundary of the subject property and of the M1-1 ...