APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Plaintiff brought this action for a mandatory injunction against defendant to enjoin the enforcement of a zoning ordinance against certain real estate owned by plaintiff. The case was referred to a master-in-chancery who, after hearing testimony and argument, issued a report recommending that a decree be entered according to the prayer of plaintiff's complaint. Defendant filed exceptions to the master's report. Subsequently the judge overruled the recommendations of the master and entered a decree in favor of defendant, holding that the zoning ordinance as applied to plaintiff's property was legal, valid and enforceable. On appeal plaintiff contends that the ordinance of the City of Chicago as applied to the subject property is unconstitutional.
The beneficial owner of the property acquired title in 1958. At that time the property was part of the unincorporated area of Cook County and was zoned F for farming. The 1960 comprehensive amendment to the County zoning ordinance changed the zoning of the property to R-5, multiple-family dwellings. The property was annexed to Chicago later in 1960, and the zoning was changed to R-1, single-family dwellings. That classification would permit two single-family dwellings to be built on the presently vacant land. A house and stable had stood on the land, but were torn down in 1966. By this suit, plaintiff sought to attain an R-4 zoning, under which it wished to build a 17-unit two-story apartment building with 17 parking spaces.
This property is located at 4505 North Cumberland Avenue in the City of Chicago. It has 100 feet of frontage on Cumberland Avenue and a depth of 150 feet. Cumberland Avenue, characterized as a major arterial highway in the master's report, was described by the witnesses as a busy, heavily traveled street. The property is approximately in the center of a square mile bounded by Lawrence Avenue on the north, Irving Park Road on the south, River Road on the west, and Canfield Avenue on the east. The west half of the square mile is in Chicago, and the northeast half in the Village of Norridge. Cumberland Avenue separates the two municipalities, and the Village of Norridge is across the street to the east of the subject property.
The entire square mile, with few exceptions, is zoned single-family. Most of the southern half consists of forest preserve, zoned R-1 or 2, both classifications allowing single-family residences. The southeast part of the mile is zoned for single-family use, excepting a business district at Irving Park Road. The northeastern quarter-mile, with the exception of business and duplex districts on Lawrence Avenue, is zoned R-1 by Norridge. The northwestern quarter-mile, in which the subject property is located, is primarily R-2, except for a section of R-1, including this property, and a B5-1 general service district at the intersection of Lawrence and Cumberland Avenues.
As to surrounding uses, the subject property is on the eastern boundary of a quarter-mile of land bounded by Cumberland on the east, Lawrence on the north, Montrose on the south and River Road on the west, all in the City of Chicago. The entire quarter-mile is developed for single-family zoning, except for two nonconforming uses. The southern and western portions of the quarter-mile are developed with a subdivision of single-family homes. It contains about 200 homes, and extends for four blocks west of the subject property and several blocks south. There is a shopping center in the B5-1 zone at the northeast corner of the quarter-mile at Lawrence and Cumberland. The southern boundary of the B5-1 zone is 335 feet north of the boundary of the subject property. To the south of the shopping center, partly in B5-1 and partly in R-1, is one of the nonconforming uses, a small hot-dog stand. The remainder of the land between the shopping center and subject property is vacant. The other nonconforming use in the quarter-mile is a wholesale greenhouse located to the west and a little south of the subject property. Immediately to the west and south of this quarter-mile is forest preserve. To the east of the quarter-mile is the Village of Norridge. For a depth of several blocks, including the east side of Cumberland Avenue, the Norridge land is improved by single-family residences. None of the single-family homes face Cumberland, but back up to it. In addition to the single-family homes, there are also several nonconforming uses on the Norridge side of Cumberland Avenue. There are two riding stables, a bowling alley, a single-family home used as a real estate office, and several vacant lots. Multiple-family dwellings nearest to the subject property are located in Norridge, and are several blocks away.
Jerry B. Wack, a real estate appraiser and savings and loan executive, and George H. Kranenberg, a planning and zoning consultant, both testified for plaintiff that in their opinion the highest and best use of the property was as a multiple-family dwelling. They believed that the property, as zoned, had a market value of $14,000; rezoned as R-4, the property would be valued at $50,000. William A. Alter, the beneficial owner and a real estate developer and broker, testified that the subject property was acquired through trade for another piece of real estate. He did not recall the value of the other property, but the tax stamps on the deed indicated that the subject property was worth $14,500 at the time of purchase. He also testified that plaintiff had been attempting unsuccessfully for some time to sell the property. No "for sale" sign was placed on the premises, but Alter had circulated word of the property's availability among acquaintances in the building business.
Richard J. McKinnon, a city planner, and Donald Crilly, a real estate appraiser and builder, both testified for defendant that the highest and best use of the subject property was as single-family residences. Crilly testified that the value of the surrounding single-residence homes in Chicago ranged from $32,000 to over $40,000; the value of the neighboring Norridge homes ranged from $28,000 to $30,000. He also testified that if plaintiff were granted R-4 zoning, each single-family residence in the area would suffer a reduction of value of two or three thousand dollars per unit because of the increased density. On cross-examination he testified that the decrease in value of the surrounding homes would be based on the number of apartment buildings erected in the area. The first would have little effect, and each would add to the diminution of value.
• 1-5 In an action to enjoin the enforcement of a zoning ordinance as to a particular property, the moving party faces the burden of proving by clear and convincing evidence that the application of the ordinance is arbitrary and unreasonable, and that it has no substantial relation to the public health, safety and welfare. (Exchange National Bank of Chicago v. County of Cook, 25 Ill.2d 434, 185 N.E.2d 250.) The enactment of the ordinance is always presumed to be valid. (Jacobson v. City of Evanston, 10 Ill.2d 61, 139 N.E.2d 205.) In order to determine whether the application of the ordinance is arbitrary and unreasonable, the court determines whether "* * * it appears from all the facts that there is room for difference of opinion concerning the reasonableness of the classifications." (Krom v. City of Elmhurst, 8 Ill.2d 104, 107, 133 N.E.2d 1.) Where a reasonable difference of opinion exists as to the classifications, the court will without exception acknowledge the existence of the validity of the legislative function of zoning. The courts will not interfere with that legislative function unless the action of the municipality is shown to be arbitrary, capricious, or unrelated to the public health, safety and morals. (Wechter v. Board of Appeals, 3 Ill.2d 13, 119 N.E.2d 747.) The six familiar factors to be considered by a court in determining the validity of zoning were set forth by the Supreme Court in La Salle National Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65.
1) "The existing uses and zoning of nearby property;
2) The extent to which property values are diminished by the particular zoning restrictions;
3) The extent to which the destruction of plaintiff's property values promote the health, safety, morals or general welfare of the public;
4) The relative gain to the public as compared to the hardship imposed on ...