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La Salle Nat. Bk. v. Vil. of Harwood Heights

NOVEMBER 17, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.


This is an appeal by the defendant, Village of Harwood Heights, from a judgment of the circuit court which (1) declared the Village's zoning ordinance void as it applied to the plaintiffs' property, (2) enjoined the Village from interferring with the construction of a proposed National Food Store on the plaintiffs' land, (3) ordered the Village to remove a sidewalk curb, and part of Narragansett Avenue from plaintiffs' land, and (4) enjoined collection of the unpaid portions of a special assessment levied to recover the cost of widening Narragansett Avenue and installing a sidewalk. No questions are raised on the pleadings.

The subject property is located in the Village of Harwood Heights and consists of two adjacent parcels of land which in combination form a rectangular tract of land. The total area is approximately 100,000 square feet of which Parcel One has about 20,000 square feet, and is located in the northwest portion of the subject property. It is held in a land trust by the La Salle National Bank for the benefit of the National Tea Company. Parcel Two consists of the remaining portion and is owned by Mar-Rue, Inc., and leased to National Tea.

The combined premises have a basic frontage of approximately 275 feet along Gunnison Street, its northern boundary, and approximately 365 feet along both Nagle Avenue and Narragansett Avenue, its western and eastern boundaries, respectively. Both Gunnison and Nagle are section-line streets, and the flow of traffic at the intersection of the two is regulated by traffic signals.

To the north of the subject parcel, across Gunnison, is a row of twelve one-story brick retail stores and offices. North of these buildings there are single-family dwellings that extend for a distance of about four blocks. To the west, across Nagle, is the Ridgemoor Country Club golf course. To the east, across Narragansett, are single-family residences, with the exception of four or five two-family residences, which extend for many blocks. Immediately south of the subject site are single-family homes.

The record discloses that National Tea purchased Parcel One in 1967 for $125,000. At that time it was zoned commercial. There was a tavern and an ice cream parlor on Parcel One until the early 1960's when those buildings were demolished. At the time the instant suit was filed, it was still zoned for commercial use, but two months after the commencement of this action, the Village rezoned this parcel to residential. The remaining larger portion, referred to as Parcel Two, was purchased by Mar-Rue, Inc., in April of 1966 for $185,000 and leased to National Tea. This latter portion is and has always been zoned for single-family residential development and has remained unimproved.

In the complaint filed on June 10, 1968, plaintiffs seek to have the entire subject premises zoned commercial in order for National Tea to erect thereon a retail food store with off-street parking. They contend that this is the highest and best use for the subject tracts, that there is a great community need for the food store, and that its presence would not seriously affect either the value of the surrounding property or the health, welfare and safety of the neighboring residents. The defendant Village, on the other hand, contends that plaintiffs have not overcome the presumption of validity which attaches to the legislative act, that the existing zoning is in conformity with the character of the surrounding property, that the premises can be put to the use for which it is zoned, that the fact that the property may be more valuable if zoned for uses other than those permitted under the existing zoning ordinance is not decisive and that plaintiffs' purchase of the property in the face of the existing zoning restriction thereon is a factor to be considered as well as the neighborhood property owners' reliance on the zoning of the subject site.

The trial court found that:

"From the evidence presented to the court relative to the character of the general area in which plaintiffs' premises are located, the existing use of land in said area, the fact that the above described property is surrounded on three sides by streets, two of which are section line traffic arteries, the fact that the evidence clearly indicates that the highest and best use of the above described property is for a business use, such as that proposed, and that the demand and value of plaintiffs' premises, if improved as proposed, are substantially greater than as restricted by the zoning ordinance of the VILLAGE OF HARWOOD HEIGHTS, and that the adverse effect on neighboring properties, if any, would be small, and that the gain to the public from the development and existence of such use would be great, * * * it would be unreasonable to require the plaintiffs to utilize their premises aforesaid as restricted by the existing zoning ordinance of the VILLAGE OF HARWOOD HEIGHTS."

The court further found that the public health, safety, comfort and welfare did not require the restriction.

• 1-3 The principles which must be applied in determining whether a zoning ordinance is void as applied to a specific piece of property are well established. The zoning ordinance, as a legislative determination of the restrictions which may reasonably be placed for the public good upon the use of a parcel of land, is presumptively valid, and one who seeks to challenge the ordinance as applied to a specific parcel must overcome this presumption of validity by clear and convincing evidence that the ordinance is unreasonable and unrelated to the public health, safety and welfare. (Urann v. Village of Hinsdale, 30 Ill.2d 170, 195 N.E.2d 643; Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96.) The basic factors which must be considered in determining whether the ordinance as applied is unreasonable are (1) the existing uses and zoning of nearby property, (2) the reduction in property value resulting from the particular zoning restriction, (3) the extent to which the destruction of property values of the site promotes the general health, safety and welfare of the public, (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, (5) the suitability of the particular property for the zoned purposes, (6) the length of time the property has been vacant, as zoned, considered in the context of land development in the area where the property is located. See Exchange Nat. Bk. v. Cook County, 25 Ill.2d 434, 185 N.E.2d 250.

• 4, 5 It is well settled that one who attacks the validity of a zoning ordinance has the burden of overcoming the present plan of legislative validity by clear and convincing evidence, and when there is room for a legitimate difference of opinion concerning the reasonableness of a zoning ordinance, the determination of the legislative body will not be disturbed by the courts. (Exchange Nat. Bk. v. Cook County, 25 Ill.2d 434, 185 N.E.2d 250.) Nevertheless, the fact that conflicting testimony has been produced from lay and expert witnesses does not necessarily render the plaintiffs' evidence unbelievable or require a finding that the reasonableness of the ordinance is fairly debatable. (La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65.) In cases of this type, it is natural for differences of opinion to exist, but it is for the court to determine whether those differences are reasonable and justifiable. (Myers v. City of Elmhurst, 12 Ill.2d 537, 147 N.E.2d 300.) No single factor is controlling, however, and each case must be judged on its own facts and circumstances. La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; Peo. ex rel. Larsen & Co., Inc. v. Chicago, 24 Ill.2d 15, 179 N.E.2d 676.

• 6 The defendant Village first contends that the zoning of the subject site for single-family residences is in conformity with the existing uses of zoning of the surrounding area and the proposal by plaintiffs to use the site for commercial purposes would be out of conformity with the existing uses. Great reliance is placed on Elmhurst Nat. Bk. v. City of Chicago, 22 Ill.2d 396, 176 N.E.2d 771, where the plaintiffs proposed construction of a supermarket. We note that in Elmhurst a factor that was considered was that there was no commercial use in the entire block in which the subject property was located and that the subject site did not face any such commercial use. The facts in the instant case are sharply different. Here, a portion of plaintiffs' property was zoned commercial at the time it was purchased and when the suit was commenced. The entire block across Gunnison, facing the northern boundary of plaintiffs' property, is devoted to commercial uses. The premises in question are uniquely surrounded by three streets, two of which have heavy traffic. The golf course across Nagle Avenue, although classified residential, can be considered quasi-public property.

• 7-9 The Village next contends that purchasers who acquire property in the face of existing zoning restrictions should not be heard to complain that the property would increase in value if the restriction was removed. We agree that the purchase of the larger portion by plaintiffs in the face of the existing zoning ordinance is a factor to be considered. (Treadway v. City of Rockford, 28 Ill.2d 370, 192 N.E.2d 351.) This does not mean, however, that a purchaser of property upon which a restriction had previously been imposed by a zoning ordinance may not attack the validity of such restriction. (Trust Co. of Chicago v. City of Chicago, 408 Ill. 91, 96 N.E.2d 499.) As we stated, Parcel One of the subject property had continuously been zoned commercial before the suit was commenced. John McNamara, a real estate and appraisal expert, testified that National Tea paid $6 per square foot for that parcel, a price which he said was almost three times the going rate for property zoned single-family residential. It is undisputed that the value of the subject plot for business purposes far exceed its value for residential development. We hasten to agree with defendant that this fact is not decisive as it exists in nearly every case where the intensity with which property may be used is restricted by ...

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