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Kluse v. City of Calumet City

OPINION FILED NOVEMBER 29, 1977.

MICHAEL KLUSE ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF CALUMET CITY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE PUSATERI DELIVERED THE OPINION OF THE COURT:

This is an appeal from the decision of the circuit court of Cook County, which denied plaintiffs' complaint for declaratory judgment. Plaintiffs, owners of vacant realty, zoned single-family residential, sought a declaration that the zoning ordinance of the City of Calumet City was unconstitutional and void in its application to their property. Plaintiffs also sought an order that the Building Commissioner of the City of Calumet City be directed to issue a building and occupancy permit for the erection of a six-flat apartment building.

The subject property is located on the northwest corner of Hirsch Street and Forest Lane. All the properties on Hirsch from Forest Lane to Michigan City Road are zoned Class A Residential, single-family, with the exception of that portion on the north end of the block which is part of a two-acre tract.

The triangular tract on the north side of Michigan City Road; the two-acre tract bounded by Michigan City Road, Burnham and Hirsch; the properties on the east side of Burnham, south of the two-acre tract are all zoned for apartment and commercial use. All are on Michigan City Road and Burnham Avenue which are main thoroughfares. There is a 16-foot alley between the east side of Burnham and the west side of Hirsch.

Of all the properties described only three have been developed for apartments: the triangular tract on the north side of Michigan City Road; the two-acre tract; and, the parcel to the west of the subject property on Burnham and Forest Lane. All of the other parcels, even those on the east side of Burnham which are zoned for commercial or apartments, have been developed with single-family residences, with the possible exception of an old frame house on the corner of Michigan City Road and Hirsch, which is a legal nonconforming use.

Plaintiffs' witnesses testified that the property was purchased in 1947; that the present trend in the area is to apartments; that they wished to erect a six-flat with off-street parking; that this was the highest and best use; that the property would be worth $15,000 for apartment use and only $8,000 or $9,000 as presently zoned; and that it would not have any effect on the other Hirsch Street properties.

Defendants' witnesses testified that the utilization of the subject property would cause traffic and safety hazards; that since the purchase of the property by the plaintiffs in 1947 the property on Hirsch Street has been developed for single-family homes; that the last building erected in the area (Lot 18 directly across from the subject property) was a single-family home; that the highest and best use is as presently zoned; and that the proposed improvement would adversely affect the value of the single-family homes on Hirsch Street.

• 1, 2 Our courts> have repeatedly held a presumption exists in favor of the validity of an existing zoning ordinance, and to overcome this presumption it must be established by clear and convincing evidence that, as applied to the subject property, the ordinance is arbitrary and unreasonable and without substantial relation to the public health, safety, or welfare. (Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 180-81, 354 N.E.2d 899; La Salle National Bank v. City of Evanston (1974), 57 Ill.2d 415, 428, 312 N.E.2d 625; La Salle National Bank v. County of Cook (1st Dist. 1977), 52 Ill. App.3d 76, 367 N.E.2d 131.) Such proof must establish not merely that the property could reasonably be classified as the owners wish, nor indeed that the court would classify it otherwise; rather, it must be established that the legislative decision as to the property is "clearly unreasonable." (Zenith Radio Corp. v. Village of Mount Prospect (1st Dist. 1973), 15 Ill. App.3d 587, 592, 304 N.E.2d 754; Jans v. City of Evanston (1st Dist. 1964), 52 Ill. App.2d 61, 68, 201 N.E.2d 663.) In this regard, the United States Supreme Court recently stated in a case dealing with rezoning: "* * * In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts> refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. * * *" Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), 429 U.S. 252, 265, 50 L.Ed.2d 450, 97 S.Ct. 555.

• 3, 4 It has been stated by our supreme court that among the matters to be considered in our determination are the following:

1. The existing uses and zoning of nearby property;

2. The extent to which property values are diminished by the particular zoning restrictions;

3. The extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public;

4. The relative gain to the public as compared to the hardship imposed upon the ...


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