25 N.E.2d 62 | Ill. | 1939
Lead Opinion
Clarence J. Taylor and Sigred Taylor filed a complaint for an injunction to restrain the village of Glencoe from enforcing its zoning ordinance against the property of the plaintiffs. The provisions of the ordinance prohibited the *508 use of this property for other than residential purposes. The plaintiffs further sought to restrain interference with the use of their property for certain commercial uses permitted in the commercial district as designated by the ordinance. The reasonableness of the zoning ordinance, as it is applied to the property of the plaintiffs, is attacked because it is claimed to be an arbitrary discrimination and does not bear any relation to the public health, comfort, safety or welfare. This matter was referred to a master who recommended that the complaint be dismissed for want of equity. The trial court approved the finding of the master, and the case is now before us on direct appeal, the trial court having certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.
Glencoe is a residential suburban village, directly north of the village of Winnetka, having a population of about 7000 inhabitants. The zoning ordinance of Glencoe was adopted in 1921. It designated the land upon which the Taylor property is located, and several adjoining pieces, as "C" residential, permitting the use of the property for single-family dwellings only. The property in question was purchased many years ago by the father of the plaintiffs. After his death it passed to his children who mortgaged the property and subsequently lost it through foreclosure. The plaintiffs acquired the property in 1931 by redemption from the foreclosure sale. In 1937, they filed a request with the board of trustees of the village of Glencoe seeking to have the property in question rezoned as commercial or business property. This petition was denied.
When this suit was commenced the property of the Taylors was divided by a diagonal line in such a way that a small triangular section was located in the village of Winnetka and the remainder in the village of Glencoe. Prior to the hearing before the master, proceedings were taken by both villages to disconnect the triangular section *509 from the village of Winnetka and annex it to the village of Glencoe. Under this reestablishment of the village boundary lines, all the Taylor property is now situated within the boundaries of the village of Glencoe.
The following plat shows the location of the property in dispute, as well as the location of and uses to which property adjoining it is now put.
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.]
The property in question is located on the northeast corner of Glencoe road and Scott avenue. South of Scott avenue, in Winnetka, Glencoe road becomes Linden avenue. The residence of the Taylors is on the corner on lot 10. Lot 9, also owned by the plaintiffs, is vacant and unimproved. Directly east of lot 9, on lots 7 and 8, is located *510 the ice plant of the North Shore Ice Company. Directly north of the Taylor property, facing on Glencoe road on lots 5 and 6, there are other buildings of the North Shore Ice Company. The lumber yard of the Mercer Lumber Company is located on lots 2, 3, 4, 5 and 6, north of the ice company's property on Glencoe road. Both of these industrial uses were in existence when the ordinance was adopted. On the southeast corner of Linden avenue, across the village line in Winnetka, a gasoline and greasing station now operates. Diagonally across the same intersection to the southwest, likewise in Winnetka, is another gasoline station. The northwest corner of Scott avenue and Glencoe road is, at present, vacant. Immediately west of this vacant property, fronting on Scott avenue, there are residences. Directly north of this vacant property, facing on Glencoe road, there is a commercial florist shop. The Chicago and Northwestern Railroad's main line lies just east of the ice company's plant, and its switch-track facilities extend into the yards of the Mercer Lumber Company. Glencoe road and Linden avenue are part of a through highway, extending out of the city of Chicago. The evidence indicates that during a 36-hour traffic count, 26,000 vehicles passed the property in question.
This court has established the right and the power of cities and villages to enact zoning ordinances as an exercise of their police power. (City of Aurora v. Burns,
It is apparent from an examination of the map and the photographs in evidence, that the property in question is virtually surrounded by commercial and industrial uses. The plant of the North Shore Ice Company, with its accompanying industrial processes, completely encloses the residence of the plaintiffs to the east and to the north. The lumber yard directly north of the ice company's property constitutes a further industrial use in the near vicinity of the plaintiffs' property. These industrial uses do not conform to the residential tenor of the property as established by the original zoning ordinance. The commercial character of the surrounding property is further emphasized by the presence of two gasoline stations directly across the street from plaintiffs' property and located in the village of Winnetka. This situation makes this case similar on its facts to Forbes v.Hubbard, supra, and Reschke v. Village of Winnetka, supra. What this court said in those cases is controlling in this one, and the zoning ordinance, as applied to this particular piece of property, is arbitrary and unreasonable. It bears no substantial relation to the public health, safety, morals or welfare, and, as such, amounts to a capricious invasion of the property rights of the plaintiffs.
There is no question in the case before us of the contemplated commercial or industrial use of plaintiffs' *512 property encroaching upon the nearby residential property. These encroachments have been present for many years and any damage that may be caused by an additional commercial or industrial use is negligible. The value of the Taylor property for residential purposes has constantly depreciated while at the same time, and by the same process, it has been enhanced in value for commercial uses. The evidence varies as to the value of the property for residential or commercial purposes but it is admitted by the appellee that the property of the plaintiffs is four times as valuable for commercial uses as it is for residential purposes. The plaintiffs claim that the commercial value is ten times greater than any possible residential worth. While the effect of the ordinance on the valuation of the plaintiffs' property is not necessarily controlling it is, nevertheless, a factor that must be taken into consideration. Forbes v. Hubbard, supra; Reschke v.Village of Winnetka, supra.
The appellee relies strongly on Rothschild v. Hussey,
364 Ill. 557 , and Evanston Best Co. v. Goodman, 369 id. 207. These cases are far different on the facts from the case at bar, and are not applicable to this situation.
The classification established by the zoning ordinance of the village of Glencoe, as applied to the plaintiffs' property, is arbitrary and unreasonable, and, failing to bear any relation to the public health, safety, morals and welfare, it cannot be sustained.
The decree of the circuit court is reversed, and the cause remanded to the circuit court, with directions to enter a decree in accordance with the views herein expressed.
Reversed and remanded, with directions.
Dissenting Opinion
Again, a carefully considered zoning ordinance of a residential suburban community has been declared invalid as applied to a particular parcel of property. In my judgment, the ordinance is not vulnerable to constitutional assault and *513
the decree of the circuit court should be affirmed. Since 1921 when the village of Glencoe adopted its zoning ordinance, a substantial number of persons, relying upon the residential restrictions of the ordinance, have purchased or improved properties for use as homes within a radius of five hundred feet from the property owned by plaintiffs. To grant the latter the privilege of converting their property to commercial uses will greatly depreciate, if not actually destroy, the value of other residential properties within the five-hundred-feet radius. In order to rectify what may be deemed an injustice to the owners of a single parcel of real estate, the property of others and the character of the village itself are to be subjected to irreparable injury. The majority opinion determines the reasonableness of the zoning restrictions by applying them to plaintiffs' property, alone, instead of to all the property in the district. In short, the conclusion that plaintiffs are entitled to an injunction restraining the defendant village from enforcing its zoning ordinance against their property rests upon the premise that the ordinance is unreasonable as to this solitary tract of land. Recourse to the Illinois Zoning act discloses that the premise is fallacious. Section 1 of that act (Ill. Rev. Stat. 1939, chap. 24, par. 66, p. 393) describes the objectives of the statute, as follows: (1) the securing of adequate light, pure air and safety from fire and other dangers; (2) the conservation of the taxable value of land and buildings throughout the municipality; (3) the lessening or avoidance of congestion in the public streets, and (4) the promotion otherwise of the public health, safety, comfort, morals, and welfare. The first section further provides that all ordinances passed conformably to the authority of the act shall make due allowance for (1) existing conditions; (2) the conservation of the property values; (3) the direction of building development to the best advantage of the entire city, village or incorporated town, and (4) the uses to which property is devoted at the time of the enactment of the *514
ordinance. These controlling considerations, and particularly the provision of the zoning law concerning the conservation of the taxable value of land and buildings throughout the municipality, are ignored by the opinion of the court. No contention is made that the ordinance of 1921 failed to satisfy the applicable statutory provisions when enacted. Where a general zoning ordinance is passed and persons buy property in a certain district they have a right to rely upon the rule of law that the classification will not be changed unless the change is required for the public good. (Kennedy v. City of Evanston,
The majority opinion declares that the presence of two gasoline stations in the village of Winnetka reflects the commercial character of the surrounding property. The fact that property in the north end of the neighboring village may be devoted to industrial uses, it is submitted, furnishes no reason for invalidating the zoning ordinance of Glencoe applying solely to the property within its own territorial limits. Nor is the alleged fact that plaintiffs' property may be four times as valuable for commercial uses as it is for residential purposes decisive. (Evanston Best Co. v. Goodman,
Although this court has recently proclaimed that it is not a zoning commission and that all questions with respect to the wisdom or desirability of particular zoning restrictions must be addressed to the legislative bodies specifically created to determine them, (Evanston Best Co. v. Goodman, supra;Rothschild v. Hussey, supra;) it is manifest that the decision in the case at bar is a departure from this sound and salutary rule. In Morgan v. City of Chicago,
Plaintiffs owned a one-sixth interest in the property in controversy when the zoning ordinance of 1921 was passed. They made no objection and interposed no protest with respect to the zoning restrictions and continued to use their property for sixteen years thereafter until an application for rezoning was filed in 1937. The remaining outstanding title to the property was purchased in 1931. A that time plaintiffs obviously were aware of the zoning restrictions and of the surrounding physical conditions, including the non-conforming uses near their property. During this period of sixteen years, as previously stated, other persons moved into the neighborhood, bought land, built and improved residences in reliance upon the restrictions of the ordinance of 1921, which, it must be remembered, applied to their property as well as to property owned by plaintiffs.
For the foregoing reasons, among others, I am constrained to record my dissent.
Mr. JUSTICE JONES, also dissenting. *517