APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
K. BERG, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiffs filed a complaint for declaratory judgment asking that the Village Zoning Ordinance which classified their property as single-family residential be declared invalid as applied to their property. They also sought a mandatory injunction permitting the construction of townhouse units on the subject property. After a bench trial, the trial court entered judgment for the plaintiffs and ordered that they be allowed to construct 12 townhouse units. On appeal defendant contends that: (1) plaintiffs failed to overcome the presumption of validity attaching to the zoning ordinance, (2) the trial court invaded the legislative function by allowing plaintiffs to construct townhouses in a manner inconsistent with the existing ordinances, and (3) plaintiffs failed to demonstrate that the proposed use was reasonable.
The subject property is an "L" shaped parcel of just under 28,000 square feet which is located between Theobold Road to the north and Lincoln Avenue to the south. It has frontages of about 41 feet on Theobold Road and 112 feet on Lincoln Avenue. Lincoln Avenue crosses the Edens Expressway about four blocks east of the property.
The property is presently zoned R-2 single-family residence district and is improved with a two-story single-family frame residence and a garage. To the north, northeast, east and southeast are single-family residences in the same R-2 district, while directly adjacent to the northeast is a large greenhouse complex presently existing as a nonconforming use. A single-family residence directly to the east of the subject property is approximately seven feet from the lot line. A B-2 commercial use district is located to the west and southwest. Adjacent to the west is an automotive repair shop with an automobile storage lot. Further west along Lincoln Avenue are a fruit market, an automobile parts store, an office building and other commercial uses. Directly across Lincoln Avenue to the southeast are 16 townhouses.
The following pertinent evidence was adduced at trial.
Zariak Rabin, an architect
His presentation to the Plan Commission included a building and landscaping plan for the property as well as feasibility and engineering reports. Plaintiffs planned to construct 14 two-story, three-bedroom townhouses. Each townhouse would have a two-car garage. The proposed use would act as a "screen" between the automotive shop and a residential area to the east of the subject property.
On cross-examination he testified that he was familiar with B-2 special use zoning, which related to apartments and under which each apartment unit may contain only two bedrooms rather than three as in the proposal. He admitted that B-2 zoning permitted a maximum of 60 per cent ground coverage while his proposal would result in coverage of 72.6 per cent and further that while the Code required 29 feet between buildings his proposal allowed for only 25 1/2 feet. He further admitted that his proposal failed to meet side yard requirements and he was not certain whether it met rear yard requirements since he was not able to "define a rear yard on this site." His proposal would not meet the B-2 special use requirements that noncombustible construction materials be used and that loading areas be provided. He conceded that under R-3 zoning, which is a multiple-family residential district, a maximum of 9.4 townhouses could be built. However, he did not know whether it would be "economically feasible" to build nine units.
The townhouses would be built about 10 feet from the east lot line, which he did not believe would be detrimental to the single-family residence to the east.
He is a professional real estate appraiser and consultant and is familiar with the general character of the area surrounding the subject site. A two-story "farm-type" house which is approximately 85 or 90 years old presently stands on the subject site. Although this house is in "fairly good condition, it is reaching the end of its useful and economic life." The value of the subject property including the building would not exceed $50,000. The value of the property with the development of 12 single-family townhouses would be approximately $7,000 per townhouse or approximately $84,000. The value of the property with development of a 22-unit apartment building would be approximately $5,500 per unit or "in the range of $120,000." In his opinion the highest and best use for the subject site would be the construction of an apartment building with approximately 23 units. A reasonable alternative would be a complex of 12 to 14 townhouses contained in three separate buildings. A multiple-family use, either an apartment building or townhouses, would act as a "buffer" or transitional zone between the intensive commercial use to the west and the single family use to the east. A development of 12 to 14 townhouses on the property would be "totally compatible" with the adjoining uses and would not introduce a new use into the neighborhood since there are 16 existing townhouses across Lincoln Avenue. The existing townhouses "have been accepted in this market" and have had no adverse effect on the nearby single-family residential use. The townhouses, acting as a buffer, would directly benefit the single-family homes to the east and would probably increase the marketability and market value of those homes.
He testified that the existence of Lin-Mar Motors, the automotive repair shop, to the west is detrimental to the development of an additional single-family residence. The market value of an additional single-family residence on the property would be less than the cost of construction. He further stated that the marketability would be impaired even if three single-family residences were constructed.
On cross-examination, he admitted that the property presently serves as a "partial buffer" between the single-family residences and Lin-Mar Motors. He admitted that the residents living in the house to the east of the subject property "may not like" the development of townhouses, but he did not believe such development would have an adverse effect on the market value of that house. He based his estimation that each townhouse unit would have a value of $7,000 on his "knowledge and experience," but he admitted he could not recall "the nearest comparable sale." He also admitted that it was possible that the village would require the property containing the greenhouses "to conform within a certain number of years" to ...