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Lubershane v. Village of Glencoe

OPINION FILED AUGUST 15, 1978.

RUTH LUBERSHANE, PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF GLENCOE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN P. HECHINGER, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 19, 1978.

In this action plaintiff seeks to compel the Village of Glencoe to issue to her a permit to build a single-family residence on property owned by her within the Village. The issue on appeal is whether the plaintiff's 35-foot by 190-foot lot is exempt from the minimum area and width requirements of the local zoning ordinance for the construction of a single-family residence in an area zoned as a "C" residential district. Plaintiff appeals from an order of the trial court on May 3, 1977, dismissing her complaint for want of equity.

In a plat of survey dated April 1, 1883, and recorded in the office of the recorder of deeds of Cook County, Illinois, on October 11, 1883, lot 32 in Browne's Subdivision of the Southwesterly 450 feet of Block 20 in the Village of Glencoe, Illinois, was established as a parcel of real estate 50 feet in width by 190 feet in depth, a total of approximately 9,500 square feet.

On May 9, 1921, the Village of Glencoe adopted a zoning ordinance classifying lot 32 and the surrounding area as a "C" residential district. Under the ordinance, a minimum lot size for single family dwellings in a "C" residential district was established to be 1/5 acre (8,712 square feet). On August 10, 1922, Ida Isabel Browne, the owner of lot 32 and contiguous lots 30, 31, and 33, conveyed lot 33 and the northerly 15 feet of lot 32 to the Cunninghams, who subsequently constructed thereon a house and a garage. A portion of the garage rests on the portion of lot 32 conveyed to the Cunninghams.

On April 9, 1931, the Village amended its zoning ordinance to establish 8,700 square feet as the minimum lot size for single family dwellings in a "C" residential district. The amended ordinance further provided:

"[E]xcept that a single family dwelling may be erected on any lot of less area provided that such lot shall have been duly recorded in a plat or deed prior to the passage of this amended ordinance."

In 1940, the ordinance was again amended to add the requirement that "C" residence district lots have a minimum average width of 50 feet. The amended ordinance retained the exemption for lots "duly recorded in a plat or deed prior to April 9, 1931."

In 1941 and 1942, Ida Browne and subsequently her estate, conveyed lots 31 and 30, respectively. Houses were then constructed on each, leaving the remainder of lot 32 as the only vacant parcel of the four lots originally owned by Ida Browne. Lot 32 remains vacant to this day. The remainder of lot 32 has a 35-foot frontage on Vernon Avenue and a total depth of 190 feet. The area of lot 32 today, therefore, is 6,650 square feet.

The present zoning ordinance of the Village of Glencoe, adopted on August 20, 1959, still classifies lot 32 in a "C" residential district. Property within this classification may be used for single-family dwellings, places of public worship, public grade or prekindergarten schools; private elementary schools; private secondary schools and colleges; parks, playgrounds, municipal buildings and uses, including public libraries; railroads or railroad passenger stations; and temporary construction buildings. The current ordinance establishes a minimum lot area for a single-family dwelling of 10,000 square feet, and a minimum average width of 60 feet. As with previous amendments, the current ordinance exempts lots recorded in a plat or deed prior to April 9, 1931.

In March of 1972, plaintiff became the owner of lot 32. She applied for, and was denied, a permit to construct a single-family residence thereon. The basis for the denial of the permit was that the lot met neither the minimum frontage and area requirements, nor was it a lot of record prior to April 9, 1931.

Plaintiff then commenced this action seeking to enjoin the Village from enforcing its zoning ordinance. Her original prayer for relief sought a decree that certain specified sections of the Glencoe zoning ordinance were unreasonable, discriminatory, confiscatory, and invalid; an injunction against the enforcement of the ordinance to prohibit use of her lot as a building site; and for such further relief as equity may require. Plaintiff later amended her prayer for relief. The amended prayer sought a decree that the preference shown by the ordinance for lots of record prior to April 9, 1931, over her lot is unreasonable, arbitrary, and a denial of equal protection of the laws. Plaintiff sought an order that defendants treat her lot as if it were "a lot duly recorded in a plat or deed prior to April 9, 1931."

Defendants answered the complaint, denying its material allegations and setting forth, as affirmative material, the history of lot 32 and the Glencoe zoning ordinance. Defendants alleged that the provision in the ordinance exempting lots of record prior to April 9, 1931, was nothing more than a "grandfather clause" which was not a denial of due process or equal protection. Defendants also alleged that plaintiff's predecessor in title rendered the lot substandard as a building site in 1922 by conveying the northerly 15 feet thereof to the grantees of lot 33; that plaintiff could not acquire rights greater than those of her predecessor in title; and that any hardship to plaintiff was self-created, as she purchased the lot in 1972 with notice of the zoning restrictions.

A hearing on plaintiff's complaint was held on May 3, 1977. Following that hearing, the trial court granted the Village's motion to dismiss the complaint for ...


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