APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This is a declaratory judgment action brought by Fairfield Savings and Loan Association (hereinafter referred to as Fairfield) as nominee of the other plaintiffs seeking a declaration of plaintiff's right to develop a certain plot of land as proposed. Plaintiff's proposal consisted of a combination residential-business land use which was not in conformity with the existing R4, General Residence District, zoning classification of the subject property. After a trial, the trial court issued an order declaring that the R4 zoning classification was void as applied to the subject property and that plaintiffs shall have the right to erect the office building as proposed and a multiple-family development complying with the R4 zoning classification's density requirement. It is from this order that defendant appeals.
The City of Chicago makes the following contentions in this appeal: (1) that the judgment of the trial court invades the legislative function; and (2) that the City of Chicago reasonably exercised its legislative power in classifying the property R4 and that the public welfare does not require a change to office uses. In support of this latter contention the City argues (a) that plaintiffs have not overcome the presumptive validity of the zoning ordinance; (b) that business activities are properly excluded from a residential district; (c) that the residential uses and zoning of the surrounding area, their uniformity and long establishment are of paramount importance in determining the propriety of the zoning classification; (d) that the subject property can be developed economically under the existing R4 zoning classification; and (e) that plaintiff Fairfield acquired title with knowledge of the existing zoning restrictions.
Fairfield argues (1) that the trial court's order was framed with reference to the record before it and in accordance with what the record showed was a reasonable use in the public interest; and (2) that the trial court's decision was not against the manifest weight of the evidence.
We affirm in part and reverse in part.
The subject property, approximately eight acres in size and rectangular in shape, is located in the City of Chicago and bounded on the north by Catalpa Street, on the east by Cumberland Avenue, on the south by Catherine Street and on the west by Chester Street. On February 16, 1973, prior to the commencement of the instant suit, the property was acquired from the Skoufes estate by Fairfield at a cost of $2,000,000. Of this total cost $750,000 was for the western half of the subject property and $1,250,000 for the eastern half. The contract of sale provided that as to the eastern half of the subject property the purchaser's obligation to purchase was contingent upon the seller's securing zoning relief to allow business development.
Plaintiff Fairfield proposed to develop the eastern half of the subject property facing Cumberland Avenue with a 10-story office building at a cost of $7,000,000. The proposal indicated that this eastern section would be landscaped with a fountain and plaza in front off of Cumberland and would contain 569 parking spaces screened from the sight of passersby through special architecture and landscaping. On the western four acres of the subject property plaintiff proposed to build a 228-unit apartment complex consisting of three seven-story buildings of 76 units each with alternate proposals for parking consisting of 327 or 338 parking spaces. The proposal indicated that the residential parking would be underground and covered by a landscaped deck. The R4 zoning classification would permit a maximum of 194 units on this western four-acre plot with a minimum of one parking space per unit.
The subject property is located approximately three miles southeast of O'Hare International Airport, south of the Kennedy Expressway, and approximately 600 feet from the expressway exit at Cumberland Avenue. Immediately south of this exit, Bryn Mawr Avenue intersects with Cumberland Avenue. At the northeast corner of the Bryn Mawr-Cumberland intersection is an 11-story motel with a restaurant and structural parking. On the southeast corner is a service station which occupies 1.67 acres and has two sets of pumps, a parking area, a garage and service building. To the north of Bryn Mawr and west of Cumberland is a 10-story office building. East of this office building on the northwest corner of Bryn Mawr and Cumberland is a tract of vacant land. In 1969 the City of Chicago approved new zoning for this vacant tract which would allow Hilton Hotels to build on that tract two hotels with 1000 rooms, a convention center, a department store, an apartment complex and a parking structure. To the north of the above proposed convention center development, the City of Chicago proposes to build a parking facility to accommodate 800 automobiles, a Kiss-n-Ride facility and three bus terminals.
On the southwest corner of Bryn Mawr and Cumberland are residences which front on Bryn Mawr and comply with the applicable R4 zoning classification. These residences are separated from Cumberland by a street (the Bryn Mawr loop which extends from Bryn Mawr and merges into Cumberland south of these residences) and a two-lot depth of vacant land. Separating the subject property from the above residences is a vacant and unimproved lot which is zoned R4. Immediately west and northwest of the subject property the land is developed in accordance with the applicable R4 zoning classification.
Immediately south of the subject property and bordering on Catherine Street is the Catherine Courts complex. This complex consists of four seven-story buildings separated from Cumberland by a shopping center, zoned B4 and consisting of two buildings. The first building in the shopping center houses a liquor store, grocery store, beauty salon, barber shop and cleaners. The second building houses a drug store and offices. In front of one of these buildings is a parking lot which services the shopping center. Across from the shopping center is a newly built fire station and south of this fire station is residential property developed in accordance with applicable R3 zoning requirements. North and west of the fire station extending up to the gas station on the southeast corner of Bryn Mawr and Cumberland the property is zoned R2. A small portion of this property directly west and immediately to the north of the fire station has been developed in accordance with this R2 zoning requirement. A large portion of this property is undeveloped and has been designated by the Chicago Park District to be a park.
At trial, the alderman for that area testified that plaintiff's proposal would have a negative effect on parking, traffic and property values. Three residents of the area gave similar testimony concerning the congestion and traffic problems plaintiff's proposal would create if allowed to become a reality.
Plaintiff called as a witness, Mr. Donoghue, an expert on traffic who testified that the present parking situation was extremely congested, that he had studied the area in question and had made recommendations to the developer so that the proposed development would improve parking and traffic in the area. Mr. Donoghue testified that these suggestions were adopted by the developer.
Both plaintiff and defendant presented testimony of land use experts. Plaintiff's first expert, Mr. Zeitlin, testified that plaintiff's proposed use is the highest and best use of the subject property and that the present R4 zoning is arbitrary and capricious. Mr. Zeitlin reasoned that the property is situated on Cumberland, a regional arterial road, which provides ideal access to the Kennedy Expressway and Illinois Tollroad System and which gives the subject property a unique status especially favorable to commercial rather than residential development. Mr. Zeitlin further indicated that the trend of development in the area is in favor of larger and primarily commercial buildings and that plaintiff's proposal would provide more open space and a lesser density than that authorized under R4 zoning.
The City's land use expert, Mr. McKinnon, testified that the subject property is properly zoned R4, that all of the uses in the area conform to R4 zoning and that plaintiff's proposed construction of a 10-story commercial building would be an intrusion on the residential character of the neighborhood. Mr. McKinnon did not feel that the commercial construction around the Cumberland-Bryn Mawr intersection could have any effect on the subject property. He stated that streets were the basic dividing lines and that property lines have been used in isolated instances. Mr. McKinnon did feel that the Catherine Courts shopping center immediately south of the subject property could have an influence on the subject property. However, he deemed that shopping center as a mere auxiliary use for the Catherine Courts ...