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Schmitt v. Village of Skokie

MAY 5, 1972.

ANTHONY SCHMITT ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF SKOKIE, DEFENDANT-APPELLEE.



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

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 25, 1972.

Plaintiffs appeal from a judgment upholding the validity of defendant Village's zoning ordinance as it applies to the subject property and denying plaintiffs' prayer for relief that the property be used as a site for a multiple dwelling development.

Plaintiffs in this action are Anthony and Dorothy Schmitt, the present owners of the property, and Katz-Weiss Construction Corporation which has contracted to purchase the property subject to the condition that it be rezoned to permit the construction of a multiple dwelling unit.

On appeal plaintiffs contend that the court's decision was against the manifest weight of the evidence.

The subject property is located on the northeast corner of Church and Drake Streets in Skokie. Church Street runs east and west, and Drake Street north and south. The property is about 85,000 square feet (about two acres) and rectangular in shape, the longer sides running parallel to Drake Street. It is presently zoned B-1 Neighborhood Shopping District, except for a narrow rectangular piece along the western border which is zoned R-1 Single Family Residential. There is currently a single family structure and a garage on the B-1 portion of the site. The R-1 portion is vacant. Plaintiffs seek approval to construct thereon a four story apartment building, 36 feet high, with 131 parking spaces of which 38 will be inside the building. There would be 93 apartments consisting of 61 one-bedroom apartments and 32 two-bedroom apartments. The building would cover one-third of the total ground space and would have sufficient plantings and screenings to preclude visibility from adjacent properties. There would be a circular driveway with the entrance and exit on Church Street and no driveways on Drake Street. It is unquestioned that the proposed structure would comply with the requirements under the defendant Village's R-4 Multiple Dwelling zoning classification.

The land uses and zoning districts surrounding the subject property are as follows: Immediately to the north and west are R-1 Single Family Districts, occupied by single family dwellings. To the south, directly across Church Street, are seven multiple family structures (townhouses) each containing four dwelling units; these units are non-conforming uses in the B-1 district. Beyond the townhouses to the south is an R-1 district containing single family dwellings. The subject site and the most western townhouse in effect form the western boundary of the B-1 Neighborhood Shopping district. The remainder of the B-1 district lies to the east of the subject property and the townhouses and runs for about three blocks. The land uses within the B-1 district are as follows: Directly east of the subject property is Latex Rent-All, a leasing business occupying 54,000 square feet. It is a non-conforming use under the B-1 classification. The business rents trailers, mixers, chain saws and other moving equipment. Equipment of the mentioned type is kept outside and abuts the subject property. There is also a two-car garage at the rear (north) of the property. East of the Latex Rent-All is a large, almost completed shopping center. It extends eastward to East Prairie Street, a diagonal street running southwest to northeast. The total area of the shopping center is 138,000 square feet of which 41,000 square feet has a one-story masonry building thereon. Twenty-seven thousand square feet of the building will contain a National Tea food store; the remaining area will be occupied by two to five small retail stores. East of the shopping center, on the northeast corner of Church and East Prairie, is a neighborhood shopping center composed of a series of small stores. They include Honduras Inn, White House Beverage Store, Horejs Decorating and Trilling Tiles. Just north of the White House Beverage Store is a landscaping enterprise and Pellfacs, Inc.

On the south side of Church Street, beginning at the seven multiple dwelling units across from the subject property and running east, there is a commercial enterprise and then a piece of vacant property which extends to the northwest corner of Church and East Prairie. Continuing east, across East Prairie, there is another series of small retail establishments, i.e., Al's Foods, Skokie Harem, Presentation, Drapery Magic, Apparel Shop, Devonshire Corp., a vacant store and Murphy's Food and Liquor. These stores lie directly south of the series of small retail establishments noted above.

East of the B-1 district are areas zoned R-3 Two Family Residence and R-1 Single Family Residence. With only an occasional exception both areas are built up in compliance with their respective zoning classifications.

The testimony given at the trial is as follows:

Benjamin Weiss testified for the plaintiffs. He is a licensed real estate broker and a builder-developer associated with Katz-Weiss Construction Corporation, one of the plaintiffs in this action. The monthly rental for the one-bedroom units in the proposed structure will be $200; for the two-bedroom units $250 to $300. The Katz-Weiss Construction Corporation has contracted to purchase the property for $200,000, subject to rezoning to R-4 Multiple Dwelling District.

Daniel Lenoble testified for the plaintiffs. He is a licensed architect doing business in Skokie, and the company with which he is associated is the architect for the proposed structure. The building will be about 120 feet from the north boundary of the property with parking spaces up to ten feet thereof. The ten feet will be landscaped. The front yard will be 27 to 35 feet; the side yard, along Drake Street, will be ten feet; and the east side yard will be 44 feet.

George Kranenberg, a planning and zoning consultant for 36 years, was called by the plaintiffs. After describing the site and the surrounding zoning districts and land uses, he stated that in his opinion the highest and best use of the subject property is for a multi-family dwelling in the R-4 classification. In reaching his opinion he considered the surrounding uses and zoning as they related to the subject site. He noted that the subject property is directly across the street (north) from a series of seven structures having four dwelling units each; the land density of these structures is comparable to that permitted under R-4 zoning; these units are non-conforming uses in the B-1 district. He also noted that the subject site abutted the Latex Rent-All to the east, "a commercial use of the lowest nature with outdoor storage of equipment, * * *." He believed that the subject site was unsuitable for retail development; "All the retail uses * * * [are] more oriented around [the area to the east] East Prairie Street and Church rather than Drake and Church." The proposed structure would provide a good division between the shopping district to the east and the single family uses to the west and north, a "buffer" as used in modern zoning. The portion of the subject property zoned R-1 is unsuitable for single family residential development due to its proximity to the B-1 district and the fact that lot depths would be shallower than the single family homes to the north, 75 feet as opposed to 125 feet. On cross-examination Kranenberg stated that he didn't know where the nearest R-4 zoning classification in the Village was but that none was shown on the map he prepared which encompassed about six north and south streets and four east and west streets. In his opinion the subject property will never be developed for B-1 uses under existing circumstances; the Rent-All property lying between the shopping center and the subject property is a barrier for development, closing it off from the retail area to the east by a "heavy commercial use, which bears no relationship to the uses to its east, * * *." If the Rent-All were removed, Kranenberg would then be of the opinion that some of the property on the east portion of the site could be developed under B-1, "but as far as the rest of the area as it is related to Drake Street, * * * the establishment of dwelling units would be a better transition to the single family homes to the west." In 1967 Kranenberg testified as an expert witness in Exchange Nat. Bank v. Village of Skokie, 86 Ill. App.2d 408, 229 N.E.2d 913, wherein plaintiffs sought a declaratory judgment allowing them to construct a gasoline station on the southwest corner of East Prairie and Church. In Exchange Kranenberg stated that the highest and best use for that property was for a gasoline station even though it was a heavier use than permitted in a B-1 area. His opinion rested on the character of surrounding land uses which were largely heavy commercial (as opposed to retail) in nature. However, due to the construction of the National Tea complex and the elimination of certain nearby heavy commercial uses, Kranenberg would now be of the opinion that a gasoline station was not the best use for the southwest corner of Church and East Prairie.

Neil King, a licensed realtor in Skokie serving as a broker and appraiser for 12 years, testified for the plaintiffs. After describing the land uses surrounding the subject site, he gave his opinion that the highest and best use of the property "from a Real Estate and appraisal point of view" is R-4 Multiple Dwelling. He considered the townhouses across the street (to the south), the fact that the property lies between a retail district and single family residences, and the non-conforming use (Latex Rent-All) to the immediate east. Even if this non-conforming use were eliminated, his opinion would remain the same since the permitted uses under B-1 would affect the traffic, lighting and noise in the area and therefore adversely affect the single family residences to the west. In his opinion the property is worth $160,000 as presently zoned but would have a value of $320,000 if the declaratory judgment were granted; there is an exceedingly high demand for apartments in Skokie and at this location. There has been a large turnover in occupancy in the retail stores to the east during the past few years; several stores are currently vacant. "This has not been a strong retail location." The B-1 zoning near this area of Church Street has a depreciatory effect upon residential property in the area, partly due to the nature of some uses (two liquor stores) and the non-conforming uses; if the subject property were developed under B-1, it would continue this depreciatory effect. He believes that the portion of the subject site zoned B-1 "would be one of the last ...


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