Appeal from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 15, 1970.
Mrs. John R. Siegel, James Ward, Johanna Walsh Ward and Mrs. E. Page Townsley, plaintiffs, are owners and/or residents of property situated on Eugenie Street between Wells Street and North Park Avenue, in Chicago. The defendants will be referred to as the Stein defendants; the property in question as the Stein property; and the City of Chicago as the City.
The Stein property is presently vacant and is being used as a parking lot and gas station. The frontage on Wells Street is approximately 163 feet, and the lot size is between 54,000 and 55,000 square feet. The property is located on the west side of Wells Street between Eugenie and North Avenue, with North Park Avenue the first street to the west. When the Stein defendants first became involved in the property, approximately three years prior to 1968, it contained several structures which were demolished to make way for the parking lot at 1638-1646 North Wells Street which the Stein defendants now own.
Planning to build a high-rise apartment on the property, with a higher density than allowable under their old zoning classification, the Stein defendants sought and obtained a rezoning of their property by an amendment to the Chicago Zoning Ordinance which was passed on May 28, 1968. It had been zoned C1-3 and C1-4 Restricted Commercial Districts; the amendment placed the property in a B4-5 Restricted Service District. Four property owners adjacent to the subject property instituted an action for declaratory judgment seeking to nullify the amendment. After the plaintiffs' complaint and first and second amended complaints were struck on defendants' motions, the case was tried on the plaintiffs' third amended complaint, and the trial court struck plaintiffs' jury demand. At the end of plaintiffs' evidence, the judge entered judgment for all the defendants. The plaintiffs have brought this appeal from that judgment.
The Stein defendants had filed a counterclaim which alleged in substance that Count II of plaintiffs' suit amounted to an abuse of process. The trial judge dismissed that counterclaim and from that order of dismissal the Stein defendants have filed a cross-appeal. They further cross-appeal the trial court's ruling in permitting plaintiffs to file their amended notice of appeal after the original notice of appeal was struck on defendants' motion.
We shall first consider the appeal of plaintiffs. Their primary argument is that the amendment which was allowed to the defendants constituted an act of spot zoning and it was, therefore, erroneous for the trial court to have entered judgment for the defendants. Much of plaintiffs' argument is based on their assertion that the amended zoning classification of the subject property was not in accord with the comprehensive zoning plan of the area enacted in 1957, and in support of this position the following is contained in the plaintiffs' brief: "The last comprehensive zoning ordinance was enacted by the City in 1957. There were no physical land use changes in the specific block where the Stein property was located in the 11 years after the 1957 comprehensive ordinance."
Philip Zeitlin, a city planner for the City of Chicago, testified at the trial that he had visited the area in question, and he was asked if he recalled seeing any changes of physical land uses on the west side of Wells Street near Eugenie. He said that although he could not recall specific changes, there had been some. This court's attention has been directed to Zeitlin's testimony, which was alleged to have supported plaintiffs' assertion of "no changes" in the block where the Stein property is located. However, it appears to us that Zeitlin's testimony stands for precisely the contrary proposition.
Jared Shlaes, a Chicago real estate developer and one-time resident near the Stein property, described the area of Wells Street involved in the litigation as an old commercial street of specialty shops and night clubs. He testified that since the passage of the 1957 comprehensive plan, there had been no material changes between Eugenie Street and North Avenue except the removal of several structures to make way for parking. He further testified that Eugenie was an unusually attractive residential street, characterized by elegant Victorian structures. It was his opinion that the construction of a high-rise apartment building on the Stein property, with the allowed density of the amendment, and with parking facilities for 500 automobiles, would decrease the property values on Eugenie by ten to fifteen percent. Shlaes admitted that he had served as broker and developer of a 24-unit apartment building at the southeast corner of Eugenie and North Park Avenue.
Mrs. Johanna Walsh, the only plaintiff who testified, stated that she lives at 225 West Eugenie Street; that Mrs. Townsley, a plaintiff, lives two doors west of her; and that Mrs. Siegel lives four doors east across the street from her. She said that she and her husband had purchased their home several years ago, and at the time of trial had lived there a little over two years.
A summary of all testimony heard at the trial regarding the ownership interest of plaintiffs is Mrs. Walsh's statement that she and her husband had "purchased" their home, her declarations that Mrs. Siegel and Mrs. Townsley "live" on the same block, and one statement that Mrs. Siegel "owns property" on Eugenie. In the trial court no objection was made to the lack of proof of ownership sufficient to satisfy standing requirements, so we will not dwell on that point. Plaintiffs' assertion in their brief before this court that they "are adjoining landowners" is rather extreme in the light of the "proof" offered to verify the matter. See Clark Oil & Refining Corp. v. Evanston, 23 Ill.2d 48, 177 N.E.2d 191.
Thompson A. Dyke, a professional city planner, testified that he was familiar with the area in question and described it as having residential character with small structures of no more than four stories. He was of the opinion that a high-rise on the Stein property would not be in the best interests of the neighborhood.
Plaintiffs argue that the amendment is a departure from the normal zoning pattern of the area, and they point out that the adjacent property on both sides of the Stein property was not rezoned. The relevance of this fact of inaction is not clear to us. While it may be perfectly true that there have been no other zoning amendments in the area, it could also be true that no other property owners have ever sought an amendment. The mere statement that there have been no other amendments, without a showing that such had been applied for and denied, and without sufficient proof that the change is detrimental to the community, is without effect.
Plaintiffs seek to gain support from Zeitlin's testimony by asserting that it establishes that in the subject area no amendments had been made in the zoning pattern since 1957, and therefore, the amendment granted to Stein defendants was unjustified. This reasoning would suggest that once a zoning pattern has been established, it can never be altered, since any deviation therefrom would be arbitrary and, therefore, illegal. We will not approve such a view. Even the Constitution of the State is subject to amendment, and it would be absurd to say that a legislative enactment could be held to be forever binding upon the same terms as originally established within the four corners of the document.
We cannot be unmindful of the fact that the amendment granted to the Stein defendants carries with it a presumption of validity since the amendment was a legislative act. See Cosmopolitan Nat. Bank of Chicago v. Chicago, 22 Ill.2d 367, 372, 176 N.E.2d 795; Jans v. City of Evanston, 52 Ill. App.2d 61, 67-68, 201 N.E.2d 663. Before a legislative decision will be overturned by a court, the party seeking such court action must prove by clear and convincing evidence that the legislative action was unreasonable and arbitrary and bears no reasonable relation to the public health, morals, safety and welfare. Bennett v. City of Chicago, 24 Ill.2d 270, 274, 181 N.E.2d 96; Atkins v. County of Cook, 18 Ill.2d 287, 293, 163 N.E.2d 826. This burden is heavy and is not met by simply putting on witnesses who testify, in effect, that if they had had the authority they would not have granted the amendment.
In Reskin v. City of Northlake, 55 Ill. App.2d 184, 204 N.E.2d 600, the plaintiffs wanted to erect a gas station on their lots 30, 31 and 32, which were all adjacent to one another, each 60 feet wide and 125 feet deep. Lot 32 was zoned to permit the erection of a gas station, while lots 30 and 31 were zoned to disallow gas stations. The master had concluded that the city's zoning ordinance was unreasonable and void insofar as it prevented plaintiffs from erecting a service station on lots 30 and 31, and the Circuit Court adopted the master's recommendation, and entered judgment for the plaintiffs. This court reversed the judgment, finding [at page 189],
"that the effect of declaring defendant's residential zoning ordinance invalid as it applies to lots 30 and 31 would have the same consequence as `spot zoning' by permitting this two-lot encroachment of the manufacturing zone into an otherwise solid and regularly rectangular residential zone. To constitute spot zoning . . . the two requisites which must coexist are: a change of zone applicable only to a small area, and a change which is out of harmony with comprehensive planning for the good of the community as a whole." [Emphasis supplied.]
At page 193 of the opinion, the court again pointed out its concern with the encroachment into one zoning area of a different pattern: "The subject property (lots 30 and 31) is characterized by the homogeneous, compact and uniform residential area to the east and northeast and not by the commercial and manufacturing areas."
This leads us to inquire as to the character of the community involved in the present litigation. The first thing we would note is that there does not exist in this case the kind of "homogeneous, compact and uniform" zoning pattern as was involved in Reskin. Zoning maps which form a part of the Chicago Zoning Ordinance show that on the northernmost strip of the south side of North Avenue are B4-4 and B4-5 zoning districts around North Park Avenue, Wells Street and LaSalle. On the north side of North Avenue, one block east of the subject property, there is a large B4-5 zone; on the block of the subject property itself are two C1-4 and one C1-3 zones, while the northwest corner of Eugenie and North Park Avenue is R5.
Another feature which should not be overlooked is that even the prior zoning classifications of the Stein property would have permitted the construction thereon of a high-rise apartment building. The first statement in the permitted uses of the C1-1 to C1-5 districts, inclusive, is:
(1) Any use permitted in the B4-1 to B4-5 Districts inclusive, as set forth in Section 8.3-4B with the exception of day care centers unless otherwise set forth or superseded hereinafter.
Furthermore, there exist no height restrictions within the zoning classifications here under consideration. As previously noted, Thompson A. Dyke testified for the plaintiffs, and on cross-examination, he was asked whether the presence of a high-rise building on the Stein property would cut off light and air of the adjoining residence property. He first answered that it would, although he subsequently modified that by saying that a tall building on the subject property would be out of harmony with the Lincoln Park project. We find the following series of questions and answers instructive:
Q. "Are you familiar with the limitations under the C1-4 for a building business uses on the ground ...