APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Exchange National Bank (plaintiff), after a hearing without a jury, obtained a judgment against the City of Des Plaines (defendant) declaring invalid, as applied to plaintiff's property, defendant's single-family zoning regulation and a private subdivision restriction.
This appeal presents two major issues: first, concerning the private subdivision restriction: (a) did defendant have standing to raise the deed restriction; (b) was the restrictive covenant abrogated by the agreement of the lot owners of the subdivision to allow the construction of a church within the restricted area; and (c) did the evidence presented show such a change in the neighborhood as to negate the purpose of the restrictive covenant. The second issue involves the trial court's holding that as to the subject property, the present zoning is null and void. We find it unnecessary to consider the second issue in light of our disposition of the issues regarding the restrictive covenant.
Plaintiff, as trustee, is the titleholder of three lots in A.T. McIntosh & Co.'s Des Plaines Acres, a subdivision in the City of Des Plaines. The property, zoned R-2 single-family residence, is located in a 25-lot subdivision subject to a 1938 restrictive covenant restricting the use of the property for single-family residence purposes only. This matter is before this court for the second time. The first trial court held the restrictive covenant valid and entered judgment against plaintiff. The propriety of the existing zoning was not determined in the first trial. In the first trial, the Church of the Master-United Church of Christ (hereinafter Church) and 14 individuals (hereinafter intervenors), all property owners in the 25-lot subdivision, intervened, represented by their own attorney, and counterclaimed for a declaration that the use restrictions set forth in the subdivision were valid and enforceable as applied to plaintiff's lots. The first trial court considered this issue and after certain oral stipulations and argument on the issues, it entered an order upholding the restriction. No evidence was submitted other than that included in the oral stipulation.
Upon appeal, this court reversed and the cause was remanded to the trial court with directions to allow plaintiff to present evidence showing any change in the character and environment of the area in order to determine the validity of the restrictive covenant in the subdivision plat; and if invalid then to determine the invalidity of the zoning as applied to the property. (Exchange National Bank v. City of Des Plaines (1st Dist. 1970), 127 Ill. App.2d 122, 262 N.E.2d 48.) Upon remand the trial court considered the pleadings and evidence presented by the parties. The intervenors were no longer represented by separate counsel; however, they continued as parties and their position was asserted by counsel for the defendant. *fn1 In fact, Charles E. Fidler, one of the intervenors, testified for the defendant, and it was stipulated that if the two other intervenors along with three other individuals present at the hearing were sworn, their testimony would be similar to that given by Fidler.
The evidence at the second trial developed the following pertinent facts. In 1938 property, consisting of 25 lots, was subdivided and known as the A.T. McIntosh & Co.'s Des Plaines Acres. The plat of subdivision contained, amongst other provisions, certain use restrictions for said property. The pertinent provisions in said use restrictions are:
"All lots in this Subdivision shall be subject to the following restrictions
(1) The building erected on each such lot shall be for residence purposes only.
(2) Each lot to have one (1) single family residence only.
(6) The area of the first floor of any main dwelling shall not be less than 600 square feet.
(7) All plans for the main dwelling shall be prepared by a licsensed [sic] architect.
(8) Any main dwelling erected in this subdivision shall cost not less than $3500.00 and said cost shall be exclusive of land cost."
In 1961 the owners of 14 of the 25 lots signed an "AGREEMENT IN RE RESTRICTIVE COVENANTS" which referred to the 1938 restrictions, and stated that said single-family residence restriction "prohibits and/or prevents the erection of a church building" upon lots 9 and 10, and that the signers abrogate and declare null and void the restrictions as to a church on said lots, and that the signers do "irrevocably approve and consent to the construction, use and maintenance by the Church of such church buildings as is or may hereafter be proposed." This agreement was recorded with the recorder of deeds of Cook County, and thereafter a church building with school was built on lots 9 and 10 fronting on Central Road. The Church also owns a third lot lying in a southerly direction from lots 9 and 10. A residence is maintained on the third lot.
The 25-lot subdivision is basically triangular in shape. It is bounded on the north by Central Road, on the southerly border by Rand Road. Plaintiff's three lots (No.'s 11, 12 and 13) are at the west end of the 25-lot tract, are unimproved and adjoin the Church property. The property on the west side of plaintiff's is not within the City of Des Plaines, and at the time of the trial contained a gasoline filling station and a drive-in restaurant. There is no commercial development or zoning within the 25-lot subdivision, and except for the church, the lots are either developed with single-family residences or vacant. The single-family residences front on either Rand Road or Central Road.
The 25-lot subdivision is zoned under the defendant's zoning ordinance for R-2 single-family residence use which requires lot sizes of 6,875 square feet. Included within the permitted uses of the R-2 district are churches, parks, schools and other uses generally found in single-family districts. The zoning ordinance also provides in section 7A.3 the following provision:
"7A.3. This zoning ordinance is not intended to abrogate any easement, covenant, or any other private agreement provided that where the regulations of this zoning ordinance are more restrictive (or impose higher standards or requirements) than such easements, covenants or other private agreements, the requirements of this zoning ordinance shall govern."
Under the defendant's zoning and subdivision regulations, plaintiff's three lots could be resubdivided into four single-family lots and not be in violation of the 1938 restrictive covenant.
Rand Road, also known as U.S. Highway 12, runs in a northwesterly-southeasterly direction and is heavily traveled. Central Road, also heavily traveled, runs for a number of miles both east and west of the 25-lot subdivision.
Since 1938 the area surrounding the 25-lot subdivision developed as follows. Across Central Road, to the north, is approximately 40 acres of land in the Village of Mt. Prospect, zoned for and used as a large shopping center containing over 30 stores with large customer parking facilities. To the east of the shopping area on the north side of Central Road are lots upon which single-family residences are located. Across Rand Road in a southwesterly direction, the property is within the City of Des Plaines which changed the zoning from residential to C-3 Commercial Use. That area is improved with a new and used car dealership, a car wash, a gasoline service station, a restaurant, and an enclosed junk yard. To the south of the commercial property is an area zoned and used for single-family residences, some of which border on Rand Road with a large stockade fence blocking the property from Rand Road.
One of the owners of the property in question testified that the three lots were purchased in 1964 for $26,000 with the understanding the zoning was for single-family purposes and the property contained a restriction understood to be a covenant for single-family dwellings, although he believed the restriction broken by the church development; that when application for rezoning was made to the defendant, the site was to be used for a lumber company to display homes on the site, but that now the owners desired to build a shoe store on the location, but that the size of the building or plans had not been finalized; that the site was considered suitable for single-family purposes with an asking price of $7,000 to $10,000 per lot; and that no written offers for single-family purposes had been received. Testimony was also offered by an architect that plaintiff proposed for the site a 7,700 square foot building with 80 parking spaces.
At the time plaintiff purchased the property, the church was located on the property to the east of plaintiff's three lots, and the large 40-acre ...