Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. WILLIAM ATTEN, Judge, presiding.
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The plaintiff brought this action seeking a declaratory judgment that the property in question could be used for multifamily purposes even though located within a single-family zoning classification of the defendant village. The plaintiff's complaint was based upon two grounds: first, that the existing zoning ordinance was void as applied to its property, and second, that the defendant was estopped by its action to deny the multifamily use. The plaintiff has appealed from an adverse decree of the trial court.
Jaroslav Sedlak, the beneficial owner of the land in question, is a civil engineer. He received his formal education in Czechoslovakia in the 1920's and obtained his license as an engineer from the State of Illinois in 1960. He purchased the property in 1959. At that time it was improved with a single-family residence which was, however, in a state of disrepair. He lived in the house for a short period of time and then began to repair and remodel it. He continued with the remodelling until he was stopped by the village building inspector and told that he must obtain a permit.
Sedlak then submitted plans for the remodelling, and a permit was issued to him in August of 1960. The permit was, on its face, for a single-family residence, and Sedlak was told that while the plans which he submitted were such that the building could be converted to multiple-family use, the existing zoning permitted only single-family use. Sedlak informed the village inspector that he had hoped to use the building for his large family.
Sedlak proceeded with his remodelling and by the spring of 1962, he had spent approximately $25,000 in so doing. At that time, he petitioned for a change of zoning to permit multiple-family use, and this was denied. He continued with his construction, and in 1966 he again applied for rezoning, which was denied. Later in the spring of 1966, he completed his remodelling at a total cost of approximately $55,000.
Civil engineers and architects testified on behalf of Sedlak that the building was constructed substantially pursuant to the plans that had been submitted to the village. They further testified that in their respective opinions the plans called for a multiple-family, as opposed to a single-family, dwelling. Their opinions were based generally on the following facts: there were two stairways in the building; it had the appearance of two distinct units on each of the two floors, with access from each unit to a stairway; and there were bathrooms for each unit. Thus, there appeared to be four independent units.
The finished building had kitchen facilities for each unit. These were not, however, disclosed in the plans submitted to the village. The plans submitted by Sedlak to the village called for an addition to the existing building of two rooms, plus a bath on the first floor, and two rooms, plus a bath on the second floor.
All of the surrounding property is zoned single-family residential. The property fronts on Highland Avenue; all of the land adjoining it in this area is zoned and used for single-family residential purposes. Also, adjoining or in near proximity to the property in addition to the new single-family subdivision across the street are other uses permitted under the single-family zoning ordinance: a church, a school, and across a street to the north, a proposed hospital.
The plaintiff's expert witnesses testified that the highest and best use of the subject property under normal conditions would be in conformity with the existing zoning; however, with the existing building, which had been converted into four apartments, its highest and best use would be as an apartment building. They testified that such use would be compatible with the neighborhood; and that for single-family purposes, the property had a value of approximately $30,000, and for multiple-family purposes, it had a value of between $50,000 and $55,000.
The various factors which are relevant to the determination of the validity of a zoning ordinance as applied to specific property are well known. Tillitson v. City of Urbana, 29 Ill.2d 22, 27, 193 N.E.2d 1 (1963); Myers v. City of Elmhurst, 12 Ill.2d 537, 543, 544, 147 N.E.2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40, 46, 47, 145 N.E.2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill. App.2d 241, 244, 201 N.E.2d 177 (1964). All of the surrounding area is zoned single-family residential and is so used, except for the school, church and such uses as are permitted under this zoning classification.
One of the basic inquiries to be made when a zoning classification is challenged as being arbitrary is whether the particular property in question is zoned in conformity with the surrounding uses. Bluhm v. City of Chicago, 110 Ill. App.2d 136, 141, 142, 249 N.E.2d 108 (1969).
The surrounding zoning and single-family residential use renders the plaintiff's burden of overcoming the presumption of validity of the existing ordinance rather substantial. Bennett v. City of Chicago, 24 Ill.2d 270, 273, 274, 181 N.E.2d 96 (1962); Kellett v. County of Du Page, 89 Ill. App.2d 437, 443, 231 N.E.2d 706 (1967). It is not enough for the plaintiff to show that the property could reasonably be classified for a multifamily use, nor even to convince this court that it might so classify the property. Merchants Nat. Bank of Aurora v. City of Aurora, 119 Ill. App.2d 179, 255 N.E.2d 609 (1970). If there is room for a legitimate difference of opinion as to the reasonableness of the ordinance, then the legislative judgment of the municipality is conclusive. Vedovell v. City of Northlake, 22 Ill.2d 611, 615, 177 N.E.2d 124 (1961); Merchants Nat. Bank of Aurora v. City of Aurora, supra; Mutz v. Village of Villa Park, 83 Ill. App.2d 1, 10, 11, 226 N.E.2d 644 (1967).
The plaintiff's argument that since the property has remained vacant for a great length of time, the court would be warranted in considering that this was due to improper zoning is not persuasive for two reasons. First, we are not convinced that the facts in this case establish that the property has remained vacant and undeveloped. When the plaintiff bought the property there was a single-family residence constructed thereon, which he lived in for awhile. Thus, the land had not been vacant and totally undeveloped for a great number of years as is found in most cases where this factor is discussed.
Second, the cases do not hold that evidence that the land has remained vacant, necessarily means that the zoning is improper. The courts have only stated that the length of time that the property has remained vacant, as zoned, as compared with the development of surrounding land, may be one factor to take into consideration in determining the validity of the existing zoning. Treadway v. City of Rockford, 28 Ill.2d 370, 377, 192 N.E.2d 351 (1963). Also, as stated in Bluhm v. City of Chicago, supra, 145, 146, a party urging this contention must establish that the property is unsaleable, vacant or undeveloped because of the zoning classification. In the case at bar, the plaintiff has failed to prove such circumstance. Absent such proof, we would have no more reason to hold that the vacancy of the property was occasioned ...