APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Plaintiff herein brought this declaratory judgment action seeking a declaration that the Village of Winfield's zoning ordinance was unconstitutional as it applied to her property. The sole issue involved is whether the trial judge erred in finding the Winfield zoning ordinance was unconstitutional as it applied to plaintiff's property.
The property in question was zoned in R-1 Single Family Residence and the provisions of the Winfield zoning ordinance provide for a minimum lot width of 85 feet and for a minimum lot area of 13,000 square feet.
There is no argument but that the plaintiff owned a parcel of land containing more than a 200-foot frontage after the effective date of the ordinance and that when she conveyed out the northerly portion of her lot she retained only a 75-foot frontage. The Village of Winfield contends that she is prohibited from challenging the ordinance on the basis of hardship when she, in fact, created the hardship by her own act of conveying away a portion of her lot leaving a frontage on the remaining lot of less than the ordinance requires.
There is no question about the lot in question meeting the ordinance's minimum area requirement of 13,000 square feet as the lot, in fact has an area of approximately 22,000 square feet. As indicated above, the sole issue relates to the constitutionality of the 85-foot frontage requirement contained in the zoning ordinance of the Village of Winfield. It is also to be noted that at the time of the sale by Mrs. Podmers of that portion of the lot except the southerly 75 feet, there was no survey made. Also, the record is unclear as to the exact dimensions of the property originally owned by Mrs. Podmers. Originally the plaintiff owned all of Lot 78 except the north 85.6 feet. The plat of survey introduced into evidence discloses that Lot 78 has a frontage of 305.6 feet on Summit Street. Subtracting the north 85.6 feet, this leaves a lot dimension on Summit Street of 220 feet. Subtracting the south 75 feet from this figure would leave a frontage of 145 feet on Summit Street. However, the plaintiff testified that she sold "about 120 feet" on Summit Street. The difficulty in determining the amount sold by the plaintiff is further compounded by the fact that apparently the deed wherein Mrs. Podmers conveyed a portion of the whole owned by her described the land conveyed as:
"Lot 78, except the north 85.6 feet thereof, and except the south 75.0 feet thereof, in Winfield Farms * * *."
It is, therefore, impossible for this court, from the record submitted to us, to determine the actual frontage of that portion of the lot sold by Mrs. Podmers, retaining the south 75 feet of Lot 78.
The first contention of the Village of Winfield is that, any hardship which the appellee may have suffered was self-imposed by her actions in selling off the property as indicated above and retaining only 75 feet and that she can, therefore, not challenge the constitutionality of the zoning ordinance. The provisions of the Village of Winfield ordinance, as found in E. VARIATIONS, 5. Standards, b(4) specifically provides, with reference to standards for granting a variation:
"that the alleged difficulty or hardship has not been created by any person presently having an interest in the property; * * *."
At the outset it is to be noted that the Village of Winfield's zoning ordinance was enacted in 1962. The record does not disclose when Mrs. Podmers acquired the property in question nor does the record disclose when she sold that portion of the lot, retaining only the south 75 feet thereof nor does the record disclose that Mrs. Podmers did not know of the 85-foot frontage requirement.
Several cases have been cited by the Village of Winfield relative to the sale of a portion of premises wherein the owner retained a less than buildable lot under pertinent zoning restrictions. Most of these cases deal with the situation where it was clear that the owner knew factually of the restrictions in the zoning ordinance. In Weber v. Village of Skokie (1968), 92 Ill. App.2d 355, 235 N.E.2d 406, plaintiffs therein purchased three lots and subsequently conveyed out two, retaining the third lot which failed to meet the minimum lot size requirement of the Skokie zoning ordinance. The court, in finding the zoning ordinance constitutional as applied to the plaintiff's property therein, held that,
"Any financial disadvantage resulting to the Webers was due to their failure to convey all three lots as one parcel." (Klehr v. Zoning Board of Appeals (1974), 24 Ill. App.3d 512, 516, 320 N.E.2d 498, 501.)
In Szeliga v. City of Des Plaines (1972), 4 Ill. App.3d 257, 260, 280 N.E.2d 767, 770, the plaintiff contended that the zoning ordinance restrictions of the City of Des Plaines were unconstitutional as applied to his 40-foot lot where the zoning ordinance required a 55-foot frontage. The court, recognizing that the owner of the property had been engaged in the purchase and sale of real estate, stated:
"* * * plaintiff's assertions of hardship are substantially undermined by his admitted failure to determine the pertinent zoning ...