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Ziman v. Village of Glencoe

SEPTEMBER 2, 1971.

HANNAH ZIMAN, PLAINTIFF-APPELLEE,

v.

VILLAGE OF GLENCOE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

The Village of Glencoe appeals from an order of the Circuit Court entered pursuant to a declaratory judgment which held Article VI, § 4, Village of Glencoe Amended Zoning Ordinance of 1959 unconstitutional as applied to plaintiff Ziman's property. The ordinance in question would require 5-foot sideyards in the event that plaintiff would construct a residence on her property commonly known as 482 Park Avenue, Glencoe, Illinois. This property measures 25 feet by 198 feet, and, therefore, a residence erected pursuant to the ordinance could measure 15 feet in width at maximum. The order of the Circuit Court would enable plaintiff to construct a residence 19 feet wide with sideyards of 3 feet.

The reason for the court's ruling was stated in the order as follows:

"[T]he sideyard requirements * * * as they apply to the plaintiff's property are void for the reason that it is a sub lot of record."

Defendant argues on appeal that: (1) Plaintiff's property is not exempt from the provisions of a zoning ordinance because the lot was platted and recorded prior to the enactment of the ordinance. (2) The plaintiff failed to overcome the presumptive validity of the zoning ordinance by clear and affirmative evidence. (3) The fact that when plaintiff purchased her lot it was subject to the 5-foot sideyard restriction places here in an unfavorable position to challenge the reasonableness and validity of the ordinance.

We affirm.

In December of 1965, plaintiff acquired real estate at 482 Park Avenue in Glencoe with a lot dimension of 25 feet by 198 feet. This lot was platted and recorded in 1883. The Village of Glencoe enacted a zoning ordinance in 1921 which provided for a 3-foot sideyard restriction. The ordinance was amended in 1959 to require 8-foot sideyards in all properties platted and recorded after 1921 and 5-foot sideyards for those platted and recorded prior to 1921.

In July of 1966, plaintiff applied for a building permit which specified 3-foot sideyards. The permit was refused by the Building Commissioner, and his decision was upheld by the Glencoe Zoning Board of Appeals. Plaintiff thereafter filed a declaratory judgment action in which she asked that the Amended Zoning Ordinance of 1959 be declared null and void as applied to her property.

The property neighboring plaintiff's lot is described as follows: Immediately east and adjacent to plaintiff's property is 480 Park Avenue. This lot is 35 feet wide and has a 20-foot wide house upon it. The sideyard between the house and the west lot line measures 3 feet 5 3/4 inches. Immediately to the west and adjacent to plaintiff's property is 488 Park Avenue. This lot is 48 feet wide and has a house 31 feet wide built upon it. The sideyard between this house and the east lot line is 16 feet, and the sideyard between this house and the west lot line is 1 foot. The lot west of the adjacent to 488 Park Avenue is 490 Park Avenue. This lot is 27 feet wide and is improved with a home built on the east lot line but toward the rear portion of the lot. If this home were to be moved forward, it would touch that built at 488 Park Avenue.

At trial plaintiff testified that she is the owner of the property in question but was unable to inform the court of the purchase price of the property. She stated, "My husband handled all my financial affairs. As to whether I have any idea at all what the amount was, I really can't recall."

James Kruger, a real estate broker of some 23 years with offices in Winnetka, Skokie and Chicago, testified on behalf of plaintiff. He testified that a home with a 15-foot exterior floor plan would not be economically feasible, for it could not be built with a floor plan functional to the purchaser. As a result, enforcement of 5-foot sideyards would render the property non-salable, for it could only be used for a single family residence. He further testified that a 15-foot wide home would aesthetically have an adverse effect on the surrounding property. In 23 years Mr. Kruger had neither seen nor heard of a 15-foot wide house in suburban Cook County. His opinion of the present value of the property is $2500 to $3000.

Robert Goodin, a civil engineer, testified for the defendant as to the neighboring property and its dimensions.

Lawrence Helke, the Glencoe Building Commtssioner who has worked for the Village for 24 years, testified for defendant as follows: He felt that a 15-foot wide home could be built and that it would be salable. However, on cross-examination, he testified (as abstracted):

"I have never in my experience seen a fifteen foot wide house in the Village of Glencoe. I have never had plans submitted to me for a fifteen foot wide house in Glencoe. I know of no fifteen foot houses ...


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