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Schmidt v. City of Berwyn





Appeal from the Circuit Court of Cook County; the Hon. Arthur Dunne, Judge, presiding.


Plaintiffs are the owners of two vacant 50-foot by 125-foot parcels of land in Berwyn (hereinafter referred to as the Oak Park Avenue property and the 34th Street property). Both parcels, according to a 1966 Berwyn zoning ordinance, were zoned "A-1, single family residence." Plaintiffs sought to erect a multi-unit apartment building on each parcel of land. They submitted an application for a zoning variance to the Berwyn zoning board of appeals, which granted their request, but the Berwyn city council rejected the board's recommendation and by a unanimous vote denied the variance. Plaintiffs then appealed to the circuit court of Cook County, which affirmed the Berwyn city council's decision. The court reasoned that plaintiffs had purchased the properties subsequent to the 1966 zoning ordinance and were well aware of the residential zoning restriction and that they did not sustain their burden of proof that the ordinance was arbitrary, capricious and unreasonable.

On appeal to this court, plaintiffs contend (1) the single-family residential zoning of their land is arbitrary, unreasonable and void because it imposes a substantial economic loss and does not significantly further public welfare; and (2) the residential zoning is arbitrary and unreasonable when measured by well-established criteria. We affirm.


The evidence presented before the trial court concerning this parcel was first the testimony of plaintiff William Schmidt, who stated that prior to his ownership, the land was used for approximately 20 years by a lumber company as a parking lot for its employees. The land is blacktopped, and Schmidt presently rents the lot to the "Department of Army-Navy." Across the street from this lot, on the northeast side, is a 3 1/2-acre empty lot which is zoned for industrial use. At the south end of the block (Oak Park Avenue at 31st Street) on the same side of the street as plaintiffs' property, are two multi-unit apartment buildings. Schmidt testified that the Oak Park Avenue block has "a numerous mixture of buildings" with modern and older two-flats. Directly east of the property, on Euclid Avenue, are "two relatively modern two flats that were put in about 15 years ago. From there on you have a combination of older high residential type of buildings." Also, approximately 200 feet east of the property are the Berwyn water works department and an equipment garage. Schmidt said approximately one block south on Oak Park Avenue, the area was zoned "`general commercial' * * * [and] you have a church on the corner and then you have [a] various mixture of funeral home, hotel, large apartment building, tile and paint shop. It is a mixture of commercial." Schmidt agreed that the "primary residential district is in the area in which the subject property is located" and that "in effect it is surrounded by either industrial or commercial type properties."

Testifying further, Schmidt stated that he had decided not to construct a single-family building on the property because 8 inches of stone fill that was beneath 4 inches of blacktop would have to be replaced with dirt and because the building would be "across the road from industrial property which we don't know what will happen to it. * * *. A single family residence sure didn't seem to be appealing to any of the people that I showed it to who could have been future buyers * * *. They shied away from it right away." Schmidt described Oak Park Avenue as a heavily traveled street, with commercial vehicles and buses. He explained that he "just couldn't build a single family home there and sell it" because the price would be prohibitive. The factors he considered in this regard were clearing the lot, preparing it for construction and returning the property "to a single family residence type of an atmosphere, of lawn and shrubbery and the likes of that. [D]ue to the fact that it was used for a parking lot so long all of the sidewalks have to be replaced. They are totally ruined. And the curbs have to be installed because they knocked the curbs out when they put the curb parking in there." Schmidt stated that next door to his Oak Park lot was a 70- to 80-year-old building and that "down the block there are many aged buildings that still have stone foundation which puts them over 70 years old." He further testified that his proposed building would be "very comparable [in height] to all of the buildings in the block."

Under cross-examination, Schmidt explained that directly across the street, on the west side of Oak Park Avenue, were "mostly" single-family dwellings. Across the alley on Euclid Avenue was another residential street which was "probably pretty close to 50%" single family residential, "[b]ut the following block [on Euclid Avenue] is heavier to two flats and it is more than 50% of two flats." Schmidt agreed, however, that "a lot of the items mentioned, the two flats behind some of the multiple unit dwellings, pre-existed the 1966 ordinance." He also stated that it would be far less expensive to construct a commercial or apartment building "than with a single family who are looking for grassy yard. [I]n order for to put up a single family you have to remove everything. Whereas on [a multi-unit] building like this here I can leave the total back end for parking. I don't have to remove it. I would have to remove approximately half of the debris off the lot and the rest could remain because that would be a parking area." Schmidt also stated that "it is possible that 50%" of the block, from one end north to the other end south, would be single-family residences," but that "[i]t is hard to determine on some of these because you don't know how many [families] are in there unless you go in. The buildings are so large."

Plaintiffs' expert witness, Howard Stulgin, a real estate appraiser and broker whose office was located in Brookfield, next testified that he viewed the Oak Park Avenue property and observed that "the properties on the west side of Oak Park Avenue from 31st Street to 30th Street * * * [are] primarily a mix of 50-plus-year-old and 20 to 25-year-old, single-family residences. The area directly north of the subject property on the east side of Oak Park Avenue is about a three and a third acre, vacant site. It was formerly the location of the Berwyn Lumber Yard. It is now vacant. It is zoned industrial." Stulgin then identified several photographs he had taken of the area surrounding the Oak Park Avenue property which included a picture of the municipal garage and water storage tanks located approximately a half block away, and the vacant industrial lot northeast of the property. Stulgin said approximately 45% of the property located in the block where the Oak Park Avenue property is located is multi-family and 55% was single-family residential. The block behind this area between 31st and 30th Streets has two five-flat apartment buildings that are 15 to 17 years old, "one vacant site and the remainder are older two-flats."

Stulgin explained further that this area has three or four "50-year-old Bohemiam-style (octagon-type with a sunroom in front] bungalows and the others are maybe 20-year-old bungalows." The majority of the properties in this block are over 20 years old. Stulgin made an analysis of the Oak Park property as to its highest and best use. In making this analysis, he testified that he considered the size, shape and location of the lot, its proximity to a large, industrial vacant site, the traffic flow on Oak Park Avenue and on 30th Street and the other property within a block or block and a half in each direction as well as the requirements of the zoning ordinance and the building codes. He also stated that he considered the socio-economic factors to build "a marketable house on this lot that would meet the demand of the public." The land and building would have to be sold "as a package" at a price of $75,000 to $80,000. An additional construction expense to prepare the land as a single-family residence would be the removal of the ground below the asphalt paving "in order to have fill put in or to put in a lawn." Stulgin stated that some of the fill would still have to be removed to put in a lawn for a multi-unit building but the rest could be left for a parking area in the rear. He said the total price would not "meet the demand of the public" and the lot would therefore have to be sold at a lesser price, "possibly at a loss to the developer or contractor."

A multi-unit building would not have an adverse effect on the traffic flow, Stulgin testified, because the traffic entering the building's parking lot would not have to travel past any other homes and because Oak Park Avenue is a major street in the area. In Stulgin's opinion, the highest and best use of the Oak Park Avenue property would be a "multi-family development to a possible five-unit apartment building." The site as a single-family residence "would have a value probably within a range to fifteen thousand [dollars]." In appraising the value of the land, Stulgin further testified that he "made a search of the area" but could not find any sales of "vacant land which were used for development of single-family residences."

Cross-examination of Stulgin revealed that his photographs of the Oak Park Avenue area which plaintiffs introduced into evidence did not include photos toward the south end of the block, which would show that all the dwellings on Oak Park Avenue were single-family residences. Stulgin also stated that a multiple dwelling was "anything more than one unit." A structure could appear to be a house but, he explained, there would be "more than one [living] unit." Stulgin used this definition of a multiple dwelling to determine what percentage of homes in the area was single and which was multiple family.

Witnesses testified for defendants in opposition to a multi-unit building on the Oak Park Avenue property. Their testimony revealed that the house next to the property was not a single-family home but, according to Joann Smith, whose parents live in that house, "the whole area is filled with small type homes." Jeanie Ljungburg testified that she moved to south Berwyn because of a majority of single-family, "lovely, older homes" in the area. Ljungburg also testified that the alley behind the Oak Park Avenue property was "not that wide" and that in order to park, cars "would back up directly into our fence and into our garage." It was revealed on cross-examination, however, that Ljungburg's home had a separate bathroom, kitchen, sleeping quarters and means of egress. At one time her home was used as a four-family dwelling.

Next, Eileen Ping, who lived at 3031 South Oak Park Avenue, testified that she also disapproved of the proposed zoning for the Oak Park Avenue property because when she purchased her home "it was with the intention of getting in a residential area * * *." She also objected to a multi-unit building because it might aggravate the sewage system which occasionally backs up into her basement.

Arthur Rosecky, an appraiser, testified that he inspected the Oak Park Avenue property and that if a multi-unit building were erected, the depreciation of the surrounding buildings and land would be 10 to 20 percent. There was ...

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