APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Cook County in which certain zoning ordinances of the City of Evanston were held unconstitutional as applied to the plaintiffs. The plaintiffs are Ross S. Welch individually and Albert R. Welch and Walter S. Welch, both individually and as trustees under the last will of Ross H. Welch. They are owners of two adjoining vacant lots located on Central Park Avenue in the City of Evanston, the defendant in this case. Each of the two lots measures 50 feet in width by 130.68 feet in depth, or 6534 square feet. The plaintiffs' vacant lots are immediately south of Park Street. On the north side of Park is the Willard School.
This controversy arises from the fact that each of the lots lacks the required area for the construction of single-family houses under the terms of Evanston's Comprehensive Zoning Amendment adopted November 21, 1960. The amended ordinance requires a lot of 7200 square feet for a single-family dwelling. At the time the lots were purchased in 1954 by the plaintiffs' father, Ross H. Welch, the zoning laws would have permitted the construction of a single-family home on each lot, this being the ultimate use contemplated by the decedent. Under the present law, only if the two lots are combined is there sufficient square footage to allow the construction of one home.
The plaintiffs filed a petition for a variation with the Evanston Zoning Board of Appeals, seeking permission to build a home on each of the lots. Following a public hearing, the Board recommended to the Evanston City Council that the variation be granted, but the City Council rejected plaintiffs' application. The plaintiffs thereupon filed a complaint seeking a declaration of their right to build a house on each lot.
The plaintiffs alleged that they had a legal right to build a house on each of the lots and that the subdivision was platted, filed of record and approved long before the adoption of the 1960 zoning amendments. They alleged that they are being denied their property without due process of law under both the United States and the Illinois constitutions, and that the ordinances as applied are unconstitutional and void.
The City denied that the plaintiffs have a legal right to construct a house on each lot and stated plaintiffs have no vested rights merely by virtue of the fact that the lots were part of a subdivision filed prior to the adoption of the amended zoning ordinance. The defendant further denied the unconstitutionality of the ordinances as applied to the plaintiffs' property and also alleged that the plaintiffs had failed to plead any hardship other than the inability to make a greater profit if the variance were to be denied.
At the trial without a jury both parties presented expert testimony concerning the lots and neighborhood in question, and opinions as to the best use of the land. The plaintiffs' witnesses testified generally that the immediate neighborhood consists of single-family houses; that the homes are well-maintained; that the level of automobile traffic is minimal; that two additional houses would not have a material adverse effect on the traffic, public health, safety or morals of the area; and that the highest and best use of the land would be the construction of two single-family homes. The plaintiffs' experts also testified that the construction of a single home on the 100-foot combined lot would not be economically feasible, and that the public health, welfare, and availability of light and air would not be significantly enhanced if the plaintiffs were restricted to the construction of one house, rather than two.
The defendant's witnesses testified generally that the presence of two additional houses would lead to increased density, to a reduction in the amount of open space, to further congestion, to greater burdens upon the public schools, streets and public utilities and would lessen the amount of available yard space.
Evidence was also presented concerning the fair market value of the lots. The purchase price was $8500. Since the 1954 purchase, $10,105 has been paid in taxes, by the deceased father until his death in 1965, and then by the plaintiffs. One of the plaintiffs testified that the lots were worth a total of $40,000 if two houses could be built and $25,000 if a variance could not be obtained. One of the plaintiffs' expert witnesses testified that the lots were worth $24,000 and $26,500 separately, and that the total fair market value was $27,500 if only one house could be built. The lots are presently listed at $20,000 each or $40,000 for both. The circuit court found the land to be worth $27,500 if only one residence could be built and a total of $50,500 if a variance is obtained to allow the construction of two houses.
The circuit court also found that approximately 85% of the lots zoned residential and improved with single-family homes in the immediate neighborhood (consisting of the surrounding 110 residential lots) are less than 7200 square feet in area, and that the only other unimproved lot in the neighborhood is used as a side yard by its owner. Further, the court found that 14 of the 25 lots improved with single-family homes north and south of plaintiffs' lots on Central Park Avenue are only 30 to 40 feet in width (compared to plaintiffs' 50 feet per lot), and have areas of 5000 square feet or less (compared with the plaintiffs' 6500 square feet); and that in the square block on which the plaintiffs' lots are located, only two of the eight improved lots have the now required 7200 square foot area. Two single-family residences in that square block are on lots of approximately 5227 square feet.
The circuit court concluded that the City of Evanston acted unconstitutionally in adding the amendatory ordinances to its zoning act insofar as the ordinances apply to the plaintiffs' land; that the effect of the ordinances on the plaintiffs constituted the taking of property without due process of law in contravention of the fifth and fourteenth amendments to the United States Constitution and section II of article II of the Illinois Constitution. The court also found that the amendments deny the plaintiffs the equal protection of the law and are confiscatory. The City of Evanston was directed to issue permits for one home on each of the two lots. Evanston appeals from this order entered October 28, 1976.
On appeal, Evanston argues plaintiffs were not entitled to build on each of the substandard lots by reason of prior plat approval; that plaintiffs did not overcome the presumption of validity attaching to the Evanston zoning ordinance; and that plaintiffs were not entitled to a variation under the standards of the Evanston zoning ordinance.
1 The issue we address is whether the plaintiffs have overcome the presumption of validity attaching to the ordinance. To overcome the presumption, the plaintiffs must show the ordinance as applied to them was arbitrary, unreasonable and without substantial relation to the public health, welfare or safety and thus unconstitutional. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40, 349 N.E.2d 399.) This issue has been considered by the Illinois courts> on numerous occasions. The factors to be ...