2700 Irving Park Bldg. Corp. v. City of Chicago

Decision Date20 November 1946
Docket NumberNo. 29376.,29376.
Citation69 N.E.2d 827,395 Ill. 138
Parties2700 IRVING PARK BLDG. CORPORATION v. CITY OF CHICAGO.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Cook County; John P. McGoorty, judge.

Action by 2700 Irving Park Building Corporation against the City of Chicago to have two ordinances amending the 1923 zoning ordinance of the city declared invalid. From a decree restraining the city from enforcing the ordinances so far as they purport to apply to property owned by the plaintiff, the city appeals, and the plaintiff cross-appeals.

Decree affirmed.

Barnet Hodes, Corporation Counsel, of Chicago (J. Herzl Segal and Herman Smith, both of Chicago, of counsel), for appellant.

Perry John Ten Hoor, of Chicago, for appellee.

SMITH, Justice.

This suit was brought by the 2700 Irving Park Building Corporation against the City of Chicago, seeking to have two ordinances, amending the 1923 zoning ordinance of the city, declared invalid. An injunction was asked restraining the city from enforcing the ordinances insofar as they purport to apply to the property owned by the plaintiff.

Plaintiff's property is located on the north side of West Irving Park boulevard at about the 2700 block in the northwest section of the city of Chicago. It fronts 210 feet on Irving Park boulevard and extends north 400 feet. It is a part of a larger tract of approximately 53 acres, extending north from Irving Park boulevard to West Montrose avenue, bounded on the east by the north branch of the Chicago river and on the west by North California avenue. Some years ago a partial dedication was made of a street bisecting this larger tract from east to west, being an extension of Berteau aveenue. This street, however, has never been opened or improved. The larger tract is located in the 40th ward of the city of Chicago, the east boundary of the ward being the above-mentioned river. This property is in the southeastern portion of the 40th ward.

For some time prior to 1923, the north half of the 53-acre tract was occupied by the Bach Brick Company, and the south half, which includes the land here involved, by the Lake View Brick Company. Both companies were engaged in the manufacture of brick. They excavated and operated extensive clay pits on the property from which they obtained clay used in making brick. The old worked-out clay pits were used by the city of Chicago as places in which rubbish was dumped from approximately 1924 to 1937. As a result these old pits have been refilled with rubbish until their present levels are slightly above the street grades. The brick companies ceased their manufacturing operations about 1938. The premises have not been used for manufacturing brick since that time.

In 1940, the Ace Fastener Corporation and The Triangle Tool & Manufacturing Company, which were operating in Chicago, outgrew their factory facilities and were compelled to locate new and larger quarters. The tract here involved appeared suitable. They organized the 2700 Irving Park Building Corporation for the purpose of purchasing and developing the property for and on behalf on the other two corporations. The land was purchased by the building corporation, but, before the factory could be started, shortages in structural materials occurred which made the immediate erection of suitable buildings impossible.

Under the original zoning ordinance passed by the city of Chicago in 1923, four types of districts were created, namely residence, apartments, commercial and manufacturing. The 53-acre tract was then occupied by the brick companies. This tract, except the north 125 feet and the south 125 feet, was zoned as a manufacturing district. A strip 125 feet wide across the north end, and a strip of equal width across the south end, were zoned as commercial districts. This zoning was in effect at the time the plaintiff purchased the premises in question. On December 3, 1942, however, the 1923 zoning ordinance was amended so as to rezone a strip 125 feet wide off the west side of the 53-acre tract and lying immediately along the east side of California avenue, as an apartment district. On July 14, 1943, another amendment to the 1923 ordinance was passed rezoning the entire 53-acre tract, including the property here involved, to apartment use. These ordinances amending the ordinance of 1923, are the ordinances here involved. By the last-mentioned amendment the plaintiff is prohibited from using the property for the purpose for which it was purchased, i.e., the erection of a factory.

The foregoing facts are undisputed. The property across the river to the east of plaintiff's premises is used primarily for industrial purposes. The area on the west side of the river, and within a block of the 53-acre tract, is not entirely industrial but does contain many manufacturing and commercial establishments, including a paint manufacturer, printing machine manufacturer, dairy distributing station, insulation storage warehouse, several filling stations and garages, several laundries or dry cleaning establishments, a refrigerator assembly plant, curtain factory, engineering and machine works, and many vacant lots and old dwellings. There are two factories, the type of which does not appear, which were completed in this area within one year of the time when this cause was heard.

The burden of the complaint is, that the plaintiff purchased the property in question in reliance on the zoning ordinance of 1923; that the amendment of 1942, which rezoned a part, and the amendment of 1943, which rezoned all of the 53-acre tract to apartment uses, are arbitrary and do not bear any reasonable relation to, or tend to promote or preserve, the public health, comfort, morals, safety or general welfare; that because the amendments of 1942 and 1943 are arbitrary, discriminatory and unreasonable, they are, therefore, invalid; that the amendments of 1942 and 1943, although invalid, constitute a cloud on plaintiff's title which depreciated the value of the premises, resulting in irreparable damages; and that plaintiff has no remedy except in a court of equity. By its answer, the city of Chicago denied that the amendments of 1942 and 1943 are arbitrary and invalid. Upon that issue that cause was tried.

On the hearing before the master the testimony of expert witnesses bearing upon the character of the property and the reasonableness of the rezoning ordinances was offered by both sides. On behalf of the plaintiff, Hyde W. Perce was one of the witnesses called. He qualified as an expert. It was shown that he had been engaged in the real-estate business as a broker and appraiser for fifty-four years; that he had built and sold apartment buildings and hotels throughout the city; that he had been an appraiser for the Chicago Real Estate Board and is chairman of its appraisal committee; that he served as manager of the real estate department of the Hibernian Bank for several years; that he had done appraisal work for the Home Owners' Loan Corporation, and had appraised property for two United States government housing projects; that he had appraised industrial sites throughout the city, and within the past year had done considerable industrial appraisal work in the vicinity of the property involved in this case; and that he had been familiar with the property here involved since about 1925, when he appraised the 53-acre tract for the Board of Local Improvements.

Mark Levy, who also qualified as an expert, was called by the plaintiff. It was shown that he had been engaged as a realtor and appraiser for thirty-eight years, during which time he had appraised all types of real estate representing a total in excess of $2,600,000,000 in value; that he had bought and sold property in excess of $100,000,000 in value; that he had appraised numerous large industrial concerns, including the Commonwealth Edison Company, People's Gas Light & Coke Company, Chicago Rapid Transit Company, and others; that he had done considerable appraisal work for the city of Chicago, the United States Army, the War Department, the Comptroller of the Currency, the Treasury Department, and the National Public Housing Authority; that he had been chairman of various committees, and held several offices, including that of president, of the Chicago Real Estate Board; that he had served on the valuation and zoning committees of the Chicago Real Estate Board; that he had been president of the Real Estate Market of Chicago, and of the Real Estate and Loan Division of the Chicago Association of Commerce; that he has been a member and officer of numerous State and national real estate and appraisers' organizations; and that he had appraised land in the general vicinity of the property in question.

Both of the experts testified that the 53-acre tract was unsuitable for apartment buildings, both because of the use made of the surrounding property and because of the physical nature of the soil on the premises which, being filled in, would require extensive foundation work if apartment buildings were to be constructed; that the trend of development in the immediate neighborhood for some years past has been industrial, which trend is continuing; that, based upon those factors, and the fact that the property is readily accessible to a large population of laborers, it was their opinion that the highest and best use to which the property of the plaintiff can be put is industrial use; and that the property has depreciated in value as a direct result of its being rezoned from industrial use to apartment use.

On behalf of the city, Elmer O. Dobroth and H. Evert Kincaid testified as experts. It was shown that Dobroth had been engaged in real estate and appraisal work in the 40th ward for more than 29 years; that he is a member of the Chicago Real Estate Board, the National Association of Real Estate Boards, and the Northwest Real Estate Board; that he had appraised several hundred properties for banks, real-estate boards and...

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