APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. COVELLI, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
The original complaint of J. Beidler Camp and Carmen T. Camp ("plaintiffs" herein) sought a declaratory judgment declaring their right to maintain a multiple-dwelling unit in a single-family dwelling district and enjoining the City of Evanston ("defendant" herein) "from taking any steps whatsoever to prevent plaintiffs from using aforesaid third-floor dwelling unit together with the sink, gas stove and refrigerator in such unit. In a second complaint the City of Evanston brought a quasi-criminal action against J. Beidler Camp for violation of the City's zoning ordinances by maintaining a multiple-dwelling unit in a single-family dwelling district. The complaints were consolidated and proceedings were had under the title of "Camp, et. al. v. City of Evanston."
After evidence on both causes was heard by the trial court, the court found the use of the third-floor unit to be a legal non-conforming use and the City's ordinance as applied thereto to be unconstitutional. Plaintiffs' right to maintain the unit was declared and defendant was enjoined from interferring with its use. The quasi-criminal complaint against plaintiff was dismissed. The City appeals from the judgments entered on both complaints, contending that the evidence established neither a legal non-conforming use nor the unconstitutionality of the ordinance.
The subject property is located at the southwest corner of Asbury Avenue and Dempster Street in Evanston. The buildings on the property, a house and garage, were built in 1908. There is a housekeeping unit over the garage which is a permissible use under the zoning ordinance and is not in question. The property has been classified for single-family use since the first zoning ordinance was adopted by the City of Evanston in 1921.
Immediately south of the subject property along the west side of Asbury Avenue are six single-family homes. Immediately west of the subject property along the south side of Dempster Street are a single-family residence, a legal non-conforming two-family dwelling, and another single-family residence. Lying to the north along the north side of Dempster Street are several single-family homes and an old factory building being converted to a single-family residence. On the east side of Asbury Avenue are single-family residences with the Loudy Educational Center and a synagogue on the southeast corner of Asbury Avenue and Dempster Street. At the northeast corner of Asbury and Dempster is the district headquarters building for School District 65 with an adjacent building used for storage of District supplies and for repairs to District equipment.
Seven witnesses testified for the plaintiffs.
J. Beidler Camp, one of the plaintiffs, testified that he resides on the subject property at 1250 Asbury Avenue, Evanston, Illinois and that he is presently engaged in the real estate management business. He acquired ownership of the subject property in 1948 for the sum of $46,500, and at the time he purchased the property the third-floor dwelling unit was being rented out for $75 a month. Camp stated that there is presently a dwelling unit on the first and second floors of the property, a second dwelling unit above the garage, and a third dwelling unit on the third floor of the premises.
On cross-examination, Mr. Camp stated that in 1961 he filed an affidavit with the City of Evanston that the subject property was being used as a rooming house, which affidavit mentioned only the garage apartment. Subsequently in 1965, Mr. Camp filed another affidavit with the City of Evanston indicating that a sink, refrigerator and range were then on the third floor of the premises.
Mr. Harvey Kushner, a plumber, testified that he examined the plumbing fixtures in the third-floor dwelling unit, and that, based upon the materials used, his opinion was that the plumbing was installed prior to 1920.
Richard C. Phalen, a real estate broker, testified that the traffic volume in the City of Evanston has increased substantially since 1920 and that the traffic pattern on Dempster and Asbury Streets is now regulated by traffic signals and lane controls. He testified that the present value of the subject property is about $55,000, and that the value of the subject property if used without the presence of the sink in the third-floor dwelling unit would be $50,000. He further testified that the original owner of the property, Dr. Black, a dentist, occupied the premises from the time it was constructed in 1908 until 1942.
John Schraw, an architect, testified that he inspected the third-floor dwelling unit, examining the construction material, and that in his opinion the rooms on the third floor were installed at the same time the house was constructed. On cross-examination, Mr. Schraw testified that he did not know whether or not the kitchen facilities on the third floor were put in when the house was constructed.
Harry C. Kowatz, an electrician, stated that he inspected the third-floor dwelling unit at the subject property and that in his opinion the electrical wiring in and around the third floor dwelling unit was the same as in the residence generally.
Robert C. Wheeler, Director of Planning and Conservation for the City of Evanston, was called by plaintiffs as an adverse witness. He testified as to the surrounding uses and zoning. He testified that the subject property is in an R-1 zoning classification and that there are several legal non-conforming uses in the area.
Carmen T. Camp, one of the plaintiffs, testified as to the effect of the use of the repair shop owned by the School District, which was at the opposite corner of Asbury and Dempster Streets from the subject property. She testified that at certain times, noises were emitted from that building. On cross-examination, Mrs. Camp testified that such noises were heard ...