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Gibson v. Village of Wilmette





APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.


A recently passed village of Wilmette ordinance prohibits the separation of ownership of legally separate but adjoining lots of record where the individual lot would be less than the minimum permissible area or frontage size. The issue in this case is whether that ordinance is valid as applied to property purchased before the passage of the ordinance where the lots as separated would be the same size as all of the surrounding lots and there was no showing that anyone would be damaged by the fact that the lot upon which plaintiffs wished to build was below the minimum size required by ordinance. The plaintiffs filed a declaratory judgment action alleging in count I that the ordinance was unconstitutional and in count II that the defendant was estopped from asserting that the lot was not a buildable lot. The trial court denied plaintiffs' claim of estoppel but found that the ordinance was unconstitutional as applied to their lot. The defendant appealed; the plaintiffs did not cross-appeal. We affirm.

The lot in question is located on the northwestern corner of Isabella and Seventeenth Street in Wilmette. Isabella, an east-west street, divides Wilmette from Evanston. The lot extends 50 feet along Seventeenth Street and 127 feet along Isabella. Before 1978 it and the lot to the north, along Seventeenth Street (52' x 127'), were treated as one lot — a house was built on the northern lot, none on the corner lot. However, while the vacant lot before 1978 acted as a side yard, both it and the northern lot were lots of record. Likewise, until 1975 both were buildable lots under the city ordinance since they qualified under the grandfather clause.

In 1972 the plaintiffs bought the two lots. Before they made the purchase they inquired of the village as to whether the vacant lot was buildable, explaining that they were either going to buy the house or the house and the vacant lot as a package. They received both oral and written assurances that the vacant lot was buildable, as indeed it was in 1972.

In 1975 the following ordinance was adopted by the village:

"Where two or more adjoining lots shown in a plat properly recorded with the office of the County Recorder are held or become held in common ownership at any time, subsequent to the effective date of this ordinance, and the use of such adjoining lots as separate parcels would not meet the requirements of this ordinance, the ownership of said lots shall not be separated nor shall any of the lots be used in any way to conflict with the regulations of this ordinance. No building permits shall be issued for the use of any lot or portion of lot sold, transferred or conveyed in violation of the provisions of this section, provided, however, that this provision shall not prevent the dividing of presently existing townhouse and other multiple family dwellings into separate ownership units."

Other ordinances provided that the lot area should not be less than 8,400 square feet and the width not less than 60 feet. The front yard depth should not be less than 25 feet, and the rear yard not less than 20 percent of the lot depth or 25 feet, whichever is greater, except that it need not be more than 40 feet. The total width of both side yards should be not less than 25 percent of the lot width; in no instance should the width of either side yard be less than 10 percent of the lot width or 4 feet, whichever is greater, nor need it be more than 15 feet. A side yard adjoining a street should not be less than 25 feet, except that the buildable lot width need not be reduced to less than 60 percent of the lot width. No changes were made in these requirements in 1975.

The buyer of the house contracted to buy the vacant lot on condition it was buildable, and contracted to resell it to a third party on the same condition. He did not want it as a side lot. The only offers the plaintiffs received for the vacant lot were based on its being buildable. In 1978 the plaintiffs sought a variation from the Zoning Board of Appeals. When this was denied, they filed this action for declaratory judgment.

The plaintiffs now live in Oak Park, 35 miles away from the Wilmette property. There is no one who can water or maintain the property for them although they are required to keep it up. They pay about $500 in taxes yearly on it. However, it can, under the ordinance, be used for nothing but open space. Even pitching a tent would be illegal.

The neighborhood is a fully developed north suburban community, consisting principally of middle-aged homes, owner occupied and well maintained. The subject site was the only vacant lot in the area.

The houses in the area are developed on sites with frontages ranging from 25 to 33 to 42 to 50 feet frontages; a few scattered sites are larger, perhaps up to 65 feet frontage. Specifically, on the west side of Seventeenth north of Isabella property lots are 50' x 127', the same as plaintiffs'; on the east side of Seventeenth north of Isabella they are 50' x 126'. On the east half of the east block, the lots facing the street to the east (Central Park) are 130 feet deep and 25-33 feet wide. About 20 percent of these are double lots but typically they are individually developed. East of that block the lots are the same size. South of the property, in Evanston, the lots are typically smaller. About 250-300 feet southeast of the property the lots vary from 35 to 42 feet frontage.

On the other side of the alley immediately west of the vacant property, the frontage of the lots which face Lawndale, the street to the west, is 50 feet. They have a depth of 244 feet. The two lots immediately behind the vacant lot face Isabella and are 145' x 81' and 100' x 81'. In Evanston the lots southwest of the subject property are 55 x 244 feet.

Most of the houses on the north side of Isabella are set back more than the minimum distance required. The house on the northwest corner of Isabella and Lawndale is set back 30 feet; and two houses west of the vacant lot are set back 25 feet and 37 feet. The house on the corner of Isabella and Central Park is set back 35 feet. However, the house on the lot across from the vacant lot, on the northeast corner of Seventeenth and Isabella, is only set back 8 feet.

Donald Engel, an appraiser, testified for the plaintiffs at trial. He testified that the market value of the lot at the time of the trial was $38,000 if the lot were buildable. He was not able to reach a specific value conclusion if the lot were not buildable since he was not able to locate any transactions with which he could document sales of nonbuildable sites. In his opinion, it could have only speculative value to perhaps one of two types of buyer: either someone who might purchase the property at a receiver discount on the speculation that someday it might become buildable, or on the speculation that it might be marketed to the adjoining owner to be developed as an additional side ...

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