Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. Edward J. Egan, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
This appeal by the plaintiff, Gerald Grobman, is from a judgment of the appellate court, with one judge dissenting (14 Ill. App.3d 996), reversing a judgment of the circuit court of Cook County which declared a zoning ordinance of the defendant, the City of Des Plaines, unconstitutional as applied to a lot of the plaintiff.
On May 3, 1971, at a tax sale Gerald Grobman satisfied delinquent real estate taxes totaling $178.37 for the years 1967, 1968 and 1969 and obtained a tax deed to an unimproved lot in the City of Des Plaines. He subsequently paid $700 to satisfy a special assessment that had been made against the property.
The plaintiff, who is an attorney, entered into a contract on July 23, 1971, to sell the lot for $4,000 to Leon Wexler, the performance of which contract was made contingent upon the obtaining from the defendant of a building permit to erect a single-family dwelling on the lot. In his application for the permit the plaintiff declared his intention to construct a house 20 feet wide and 56 feet long, and which would have 2 1/2-feet side yards and cover 48% of the lot. The defendant refused to grant the permit on the ground that the lot and the proposed structure would violate section 3.B.4.4 of the defendant's zoning ordinance. That section provides:
"[N]o dwelling hereinafter erected, relocated or reconstructed shall be located upon a lot having a smaller area than 6875 square feet or a narrower frontage than 55 feet. However, a dwelling may be erected, relocated or reconstructed upon a lot having a frontage of at least 49.5 feet if said lot: (1) is a lot of record * * * approved by the corporate authorities of the City of Des Plaines prior to July 1, 1960, and (2) contains an area of not less than 6875 square feet. No more than one single-family residence shall be erected, relocated or reconstructed on any one lot. No residential building, with its accessory buildings shall occupy in excess of 30% of an interior lot, nor in excess of 35% of a corner lot."
The plaintiff's lot is 25 feet wide, 126.1 feet long and has a total area of 3,150 square feet. The proposed building would occupy 48% of this interior lot.
Thereafter the plaintiff brought a declaratory judgment action to declare the zoning ordinance unconstitutional as applied to his property.
At trial, the plaintiff testified that he was not aware of the zoning ordinance when he obtained the tax deed. The plaintiff said that after learning of the ordinance he offered to sell the lot to John Truss, who owned one of the adjoining lots, for $4,000. He said that after discussions Truss agreed to pay $1,000, which he considered was unacceptable.
William McCann, a real-estate broker testifying for the plaintiff, said the proposed building would not interfere with either of the adjoining buildings and would not adversely affect the community. He was of the opinion that if a building permit could not be obtained to construct a single-family residence the lot would not have any value, but he said that if either of the owners of the adjoining properties bought it the value of his land would be increased approximately $4,000. On cross-examination he stated that the great majority of homes constructed in the City of Des Plaines within the preceding 15 years had been built on lots with a minimum frontage of 50 feet.
Henry McAlevy testified for the defendant using an aerial photograph he had taken of the area surrounding the lot and a map indicating the dimensions of the buildings shown. He stated that of the 83 improved lots shown in the photograph and on the map, the average lot frontage is 51.6 feet. Fifteen of the lots have a frontage in excess of 50 feet; ten lots have a frontage in excess of 60 feet; five have a frontage in excess of 75 feet; and only seven have a frontage under 50 feet, with the smallest having a frontage of 37 1/2 feet.
Rolf Campbell, a city planning and zoning consultant, was a witness for the defendant. He testified that the average lot in the neighborhood of the plaintiff's lot has 7,000 square feet and has a frontage of 60 feet. He said that in his opinion the construction of a single-family house on the plaintiff's lot would adversely affect the two adjoining houses and would be harmful to the area in general. He based his opinion on the consideration that the construction of a house covering 48% of plaintiff's lot would impede the flow of light and air and also affect adversely the liveability of the houses adjoining it. The new house itself also would be similarly and adversely affected. He said, too, the general area would also suffer aesthetically from a house "being squeezed between the two existing structures."
John Truss, the owner of one of the houses adjoining the plaintiff's lot, testified that Grobman originally offered to sell him the lot for $7,000. He said that Grobman had rejected his counter offer of $2,500 and testified that at the time of the trial he was willing to pay the plaintiff $1,500 for the lot.
Harold Keher, a real-estate broker, was a witness for the defendant. He testified that his opinion was that the plaintiff's lot had a value of between $1,500 and $2,000 in a sale to an adjoining owner. He further testified that the construction of the planned house on the lot would depreciate the value of the adjacent property north of plaintiff's lot by 15% to 20% and depreciate the value of the lot to the south by 10%.
The plaintiff's contention before this court is that the refusal by the defendant to grant him the building permit resulted in what was a confiscation of his property without just compensation, thus ...