APPEAL from the Circuit Court of Cook County; the Hon.
ARTHUR L. DUNNE, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The city of Chicago appeals from a determination by the trial court that a R-1 zoning classification is arbitrary and unreasonable as applied to the plaintiff's property. We affirm the trial court's determination, particularly in view of the fact that the loss to the plaintiffs was not shown to result in any enhancement of the public welfare. We also hold that this court's affirmance in La Salle National Bank v. City of Chicago (1972), 4 Ill. App.3d 266, 280 N.E.2d 739, of a prior refusal to find the zoning classification invalid is not res judicata in light of the change of circumstances.
The beneficial owner of the property (hereinafter plaintiff) acquired title in 1958. At that time the property was part of the unincorporated area of Cook County and was zoned F for farming. However, at the time of the purchase, the plaintiff was informed by one of the county officials that the property would soon be zoned R-5 (Multi-family residential) and in fact, in 1960 the property was so rezoned under a comprehensive zoning plan. The property, however, was later annexed, without the plaintiff's consent, into the city of Chicago and zoned R-1. This classification would only permit two single-family dwellings to be built on the presently vacant land. The plaintiff, by this suit, seeks to have the property rezoned R-4 in order to allow him to build a 17-unit, three-story apartment building with 17 parking spaces.
The property in question is located at 4505 North Cumberland Avenue in the city of Chicago. It has 100 feet of frontage on the west side of Cumberland Avenue and a depth of 150 feet. Cumberland Avenue is a four-lane divided highway with holding patterns, left-turn bays and various center traffic controls, leading to a cloverleaf at the Kennedy expressway about a mile and a quarter north of the subject property. Needless to say, it is an extremely heavily traveled highway. The subject property is approximately in the center of a square mile bounded by Lawrence Avenue on the north, Irving Park Road on the south, River Road on the west and Canfield Avenue on the east. The west half of the square mile is in Chicago, and the northeast half is in the village of Norridge. Since Cumberland Avenue separates the two municipalities, the village of Norridge is directly across the street to the east of the property.
The area on the west side of Cumberland Avenue facing Lawrence Avenue, is all zoned for business and general services (B5-1) except for a small area west of the corner which is zoned for multifamily residences. The corner contains a large shopping center. South of that along Cumberland, still in an area zoned B5-1, is a large complex of apartment buildings, one building being seven stories high and four others being five stories high. Together they contain a total of nearly 300 apartments. There is also a bank. Wilson Avenue meanders along the south edge of the complex. From Wilson Avenue to the next street to the south lies the only R-1 zoned land on the west side of Cumberland until one reaches the forest preserve. The land facing Cumberland is all vacant. The particular property at issue lies about 250 feet south of Wilson. Immediately to the south and west of it lies the other piece of land zoned R-1. Located thereon is a large commercial wholesale greenhouse. According to the defendant's witnesses this is not a nonconforming use but a permitted use under R-1 zoning. Heavy trucks go from Cumberland Avenue along the street lying south of the subject property to the greenhouse. To the west of the B5-1 property, the subject property and the greenhouse lies in an area zoned R-2. The land nearest these properties is all vacant, the nearest construction being several blocks away. To the south of the greenhouse lies a subdivision zoned R-2. None of the homes face on Cumberland but back up to it. South of this lies Montrose Avenue and then the forest preserve.
On the east side of Cumberland, in Norridge, there is, as there is on the west side, a large shopping center at the corner of Cumberland and Lawrence. South of that on Cumberland lies a stable which used to be a nonconforming use. However, the land has recently been rezoned for a shopping center. South of this lies a bowling alley. Immediately south of that lies a subdivision zoned R-1. Like the subdivision on the west side of Cumberland, the lots, with a few exceptions, do not face Cumberland but back up to it. This subdivision runs from an area just northeast of Wilson nearly down to the forest preserve. It is interesting to note, however, that while nearly all the lots in the subdivision have homes on them, the five next to Cumberland and across the street from the property zoned R-1 on the west are vacant. These are the only lots in the subdivision which face Cumberland. Between the subdivision and the forest preserve is another stable. It is not clear from the zoning maps submitted by the city whether this is still a nonconforming use or whether that property has also been rezoned for business.
The plaintiff, an experienced developer who qualified as an expert appraisal witness, testified that the highest and best use of the property as of 1975 was multifamily, R-4. He estimated that the fair cash market value of the property as presently zoned was $25,000 whereas its value if rezoned R-4 would be $102,000. He has had, over the years, signs on the property advertising it for sale, although such signs were often vandalized or knocked down. He also advertised in various journals and circularized the availability of the lot to all builders whose names he had on a mailing list but has been unable to sell the property as zoned.
Francis S. Lorenz and Duane Linden, both acknowledged experts, also testified for the plaintiff. Both agreed that the highest and best use of the property was as a multifamily development in conformity with the development to the north. Both also agreed that the proposed use would not have a depreciating effect on other surrounding uses. As pointed out by Lorenz, the single-family residential developments are all orientated toward side streets and away from the noise and pollution of Cumberland Avenue. This differs from the subject property where any construction must face Cumberland. Lorenz also testified that only two houses could be built on the property under the present zoning. He estimated the value of the property as presently zoned was $30,000; as rezoned it would be worth $100,000.
Two witnesses testified for the defendant. The first, Richard J. Mckinnon, had been employed by the city as a city planner for the last 19 years. He testified that when the property was taken into the city it was given the most restrictive zoning (R-1) because they did not know what the development would be. In 1960 he felt the owner should have a holding pattern on the property until they had firmer indications as to what the development of the area would be. In 1975, the time of the trial, he still felt there should be a holding pattern on the property and that it, therefore, should remain R-1.
The other witness for the city, John McNamara, testified that he believed the highest and best use of the property would be its development as presently zoned but he gave no explanation as to why he believed this. He agreed with Lorenz that the value of the property as presently zoned is $30,000. However, he estimated its value if zoned R-4 to be $85,000. When asked on cross-examination if there would be any depreciatory effect on any other property he announced "there would be that depreciatory effect on the property that has already been established by the highway of Cumberland Avenue." We must conclude therefore that the defendant's witnesses do not disagree with the testimony of the plaintiff's witness that the proposed apartment would have no depreciatory effect of its own on the surrounding property.
There were no other witnesses.
The trial judge concluded that Cumberland Avenue directly to the east of the property was a natural zoning buffer. He found that the value of the subject property was diminished by the particular zoning classification. He also found this diminution did not promote the health, safety and welfare of the general public and that there was little or no gain to the public from the particular zoning restriction. Considering this and other factors, he held the R-1 zoning to be unconstitutional as applied to the property in question and found that the highest and best use would be in accordance with an R-4 classification.
• 1-3 Every property owner has a right to use his or her property in any way, subject only to the restraint necessary to secure the public welfare. (Columbus Park Congregation of Jehovah's Witnesses, Inc. v. Board of Appeals (1962), 25 Ill.2d 65, 182 N.E.2d 722; First National Bank v. County of Cook (1977), 56 Ill. App.3d 677, 360 N.E.2d 1377.) Zoning laws which limit that right are enacted pursuant to the police power of the State and when that power is delegated to a city or village to permit them to interfere with property rights by means of a zoning ordinance, such ordinance to be valid must have a real and substantial relationship to the public health, safety, moral or general welfare. (Columbus Park Congregation of Jehovah's Witnesses, Inc. v. Board of Appeals (1962), 25 Ill.2d 65, 182 N.E.2d 722; Kovack v. Village of La Grange Park (1959), 18 Ill.2d 233, 163 N.E.2d 451.) Although a presumption of validity attaches to an existing zoning ordinance (Jacobson v. City of Evanston (1956), 10 Ill.2d 61, 139 N.E.2d 205), where it is shown that no reasonable basis of public welfare requires such a restriction, the ordinance falls and the presumption of validity is dissipated. (La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 145 N.E.2d 65; First National Bank v. County of Cook (1977), 46 Ill. App.3d 677, ...