APPEAL from the Circuit Court of Cook County; the Hon. JAMES
C. MURRAY, Judge, presiding.
PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 10, 1982.
Plaintiff sought approval of a zoning change from the City of Chicago for property on the northwest corner of West Diversey Parkway and North Orchard Street. The City of Chicago denied plaintiff's request. Plaintiff then filed a complaint for declaratory judgment challenging the constitutionality of the Chicago Zoning Ordinance as applied to his property. The trial court held that the ordinance, as applied to plaintiff's property, was arbitrary and unreasonable and bore no substantial relationship to the public health, safety, comfort or general welfare, and was therefore unconstitutional. The City of Chicago appeals. The issue before this court on appeal is whether the judgment of the trial court was against the manifest weight of the evidence.
Oak Park Trust and Savings Bank, as trustee, holds title to a parcel of real estate located at 704-708 West Diversey Parkway in Chicago. The beneficial owner of the land trust is Thomas D. Flanagan, who purchased the property in 1975. The parcel contains a frontage of about 93 feet on Diversey and about 250 feet on Orchard. Approximately 85% of the property is zoned B3-3 (general retail district) with the remaining 15% zoned R5 (general residential district). When Flanagan purchased the property it was improved with two multi-unit residential buildings. Plaintiff had these buildings razed when he was unable to bring them into compliance with the city building code. The property is presently unimproved.
In 1979, plaintiff met with community groups to discuss a proposed residential building containing 120 units to be built on his property. Subsequent to these meetings the proposed number of units was decreased to 96. Of the 96 units in the proposed 13-story building, 84 would be two-bedroom units and 12 would be one-bedroom. The proposed structure would contain 96 parking spaces and two driveways. The first floor would be a lobby. There would be no commercial use in the building. Under the B3-3 and R5 zoning classification, a maximum of 70 or 71 dwelling units could be constructed on the property. Under the B3-4 zoning classification sought by plaintiff, a maximum of 144 units could be constructed.
The property directly east of the subject property, on the northeast corner of Diversey and Orchard, is zoned B3-4 and has a restaurant on the lower level and apartments above. The property on the southeast corner of Diversey and Orchard is zoned B5-4, a classification permitting higher density than B3-4, and is currently being used as a parking lot. Directly south of the subject property, on the southwest corner of Diversey and Orchard, the property is zoned R4 and is occupied by multiple family residences. Immediately to the west of the subject property is a seven-story building called the Diversey Parkway Hotel. That property is zoned B3-3. The property north of the subject property on the west side of Orchard is zoned R5. North of the subject site, on the east side of Orchard is a seven-story parking garage which services the Century Mall Shopping Center. All the property in the vicinity of the subject property is developed in compliance with their respective zoning classifications.
Real estate appraiser William McCann testified for plaintiff. He had attended the community meetings which resulted in lessening the number of units in the proposed development from 120 to 96. He testified that he inspected the subject property for the purpose of forming an opinion as to its highest and best use. After describing the properties and zoning in the vicinity of the subject property, he stated that in his opinion the highest and best use of the property would be a 96-unit condominium building. McCann testified that he based his opinion on the zoning change sought by plaintiff, the need and demand for the proposed use, its compatibility with the surrounding properties, trends of development in the area and neighborhood influences such as schools, shopping and transportation. In his opinion, the proposed use would not have a depreciatory effect on the surrounding properties but instead would tend to stabilize the immediate vicinity and encourage additional long term investment in permanent tenancy in the area. He testified that the property would be worth $1 million if rezoned for plaintiff's proposed use. If the property was not rezoned it would be worth between $700,000 and $750,000.
McCann believed that because of the seven-story garage which services the Century Mall, he would not recommend building new multi-family structures on the portion of the subject property zoned R5 (the north 15% of the lot). He also did not believe that the subject property could be feasibly developed for business use due to the substantial amount of commercial property available in the area. McCann also testified that under the existing B3-3 and R5 zoning, a building as tall or taller than the proposed use could be built on the subject property.
Rolf Campbell, a city planner and zoning consultant, also testified for plaintiff. He testified that a 13-story building could be built under either a B3-3 or R5 zoning classification, as well as under the B3-4 classification sought by plaintiff. There is also no difference between B3-3 and B3-4 classifications with regard to off-street parking, off-street loading, or side, front or rear yard set backs. The B3-4 classification, however, allows approximately twice the density permitted under B3-3 or R5. He testified that the purpose of the requested zoning change is to permit construction of family type units. He also stated that the requested change represents a logical extension of existing zoning classifications in the vicinity of the subject property. Campbell testified that in his opinion the highest and best use of the subject property would be for a residential structure allowing for family units and that the structure should not contain both residential and commercial uses. He also believed that the proposed 96-unit condominium structure would be beneficial to the surrounding area.
Al Swanson, a traffic engineer, testified for plaintiff that he was familiar with the area in question and had conducted a number of traffic counts on Diversey near the subject property. In his opinion the proposed development would not have an adverse impact on traffic in the area. Further, the two driveways in the proposed building were acceptable from a traffic engineer's standpoint.
Patrick Arnold, a city planner employed by the City of Chicago, testified for the City that he was familiar with the subject property. It was his opinion that the property's existing B3-3 and R5 zoning classification were proper and that any increase in the density would have a deleterious effect on the surrounding area. He based his opinion on the low density, residential nature of the buildings north of Diversey on the east sides of Orchard and Burling, the street one block west of Orchard. According to Arnold, the proposed development would have an adverse effect on the properties north of Diversey which are zoned and developed in conformance with the R5 zoning classification. He believed that Orchard was a reasonable boundary line between zoning classifications.
On cross-examination, Arnold acknowledged that a 13-story building could be constructed under the existing classification. He agreed that two-bedroom units would be more desirable for attracting families. He believed, however, that any project which would increase density by 40% to 50% over the existing zoning classification would have a deleterious effect on the area, which was already congested.
Real estate broker and appraiser John McNamara testified for the City that the highest and best use of the subject property was under the existing zoning. He also believed that the property could be feasibly and economically developed under the existing classification. McNamara testified that the value of the property as presently zoned was approximately $710,000.
The City then called three residents of the area. They objected to the proposed development because it would increase traffic and parking congestion in the area. One witness feared that the increase would pose a threat to neighborhood children and believed the development would diminish the value of his single family residence. Another witness agreed with the belief that his property would decrease in value because of the proposed structure and testified that he purchased his home in reliance on the R5 zoning of the subject property, which abuts his property to ...