Atkins v. Cook County

• Decision Date: 22 January 1960
• Docket Number: No. 35228,35228
• Citation: 18 Ill.2d 287,163 N.E.2d 826
• Parties: Ozzel ATKINS, Appellee, v. COUNTY OF COOK, Appellant.
• Court: Illinois Supreme Court

Page 826

163 N.E.2d 826

18 Ill.2d 287

Ozzel ATKINS, Appellee, v. COUNTY OF COOK, Appellant.

No. 35228.

Supreme Court of Illinois.

Jan. 22, 1960.

Benjamin S. Adamonwski, State's Atty., Chicago (Francis X. Riley and Edward J. Hladis, Asst. State's Attys., Chicago, of counsel), for appellant.

Martin Handelman, Chicago (Melvin E. Levinson, Chicago, of counsel), for appellee.

BRISTOW, Justice.

The county of Cook appeals directly to this court from a decree of the circuit court of Cook County in a declaratory judgment action holding the county zoning ordinance unconstitutional and void as applied to the property of the plaintiff.

The trial court having certified that the validity of a municipal ordinance is involved and that public interest requires an appeal directly to this court, this court properly has jurisdiction under section 75(1)(c) of the Civil Practice Act. Ill.Rev.Stat.1957, chap. 110, par. 75(1)(c).

All evidence was heard by the master, who found that the zoning ordinance as applied to plaintiff's property was void and recommended a declaratory judgment as prayed. The trial court entered a decree in accordance with the master's recommendations after overruling defendant's objections thereto. The plaintiff has exhausted all of his administrative remedies. No questions are raised on the pleadings. The defendant appeals on the theory that refusal of the trial court to overrule the master's report was erroneous because the evidence failed to support the master's conclusions. The plaintiff takes direct issue with its contentions.

The findings of the master, while only advisory, are to be accorded due weight on review, but since the chancellor did not hear any testimony in open court, the findings of the chancellor, who adopted the master's findings, may be overruled if this court is inclined to find otherwise. Kolze v. Fordtran, 412 Ill. 461, 107 N.E.2d 686; Layton v. Layton, 5 Ill.2d 506, 126 N.E.2d 225; Maley v. Burns, 6 Ill.2d 11, 126 N.E.2d 695; Cook County v. Glasstex Co., 16 Ill.2d 72, 156 N.E.2d 519.

The property in question is located at the northwest corner of Des Plaines River Road and Euclid Avenue. It contains approximately 42,000 square feet, slightly less than one acre. It measures 144 feet frontage on Des Plaines River Road and 299 feet frontage on Euclid Avenue.

Plaintiff acquired title to the property on August 10, 1956. At that time the property was in an 'F,' or farming district, of the Cook County zoning ordinance which had been adopted August 20, 1950. In an 'F' district classification an R3 residential use, with a minimum of 20,000 square feet, is permitted, and in addition the following: animal farms, apiaries, mushroom barns, greenhouses, nurseries, dog kennels, sale of products from any of the above uses, storage of farm products, recreational camps, riding stables, veterinary establishments, filling of holes, picnic grounds, athletic fields, skeet or trap shooting, radio stations, and temporary carnivals and circuses. Through a specified proceeding, there may also be the following uses: institutions, radio and television towers exceeding 100 feet, stadiums, auditoriums, race tracks, fair grounds, removal of soil, stone and gravel, trailer camps, drive-in theatres, motels and junk yards.

The subject property is in the northwest part of Cook County, bounded on the east by the Des Plaines River Road, east of which is a narrow but substantial strip of forest preserve land. West of the subject property are residential and farm areas. All witnesses agree that the current trend in the area is residential.

From the subject property north to Camp McDonald Road and beyond to the intersection of Des Plaines River Road and Milwaukee Road is approximately two miles. For about an eighth of a mile north of the subject property the frontage is vacant. Then appear a series of dwellings, one of which is used for a construction company office and another for a nursery office. The area is then vacant up to Camp McDonald Road. North of Camp McDonald Road the area is vacant for half a mile. Then there is a new 37-unit motel, cocktail lounge and restaurant, and a gas station at the intersection with Milwaukee Avenue. West of this junction are five or six fairly new residences. North of Milwaukee Avenue to Palatine Road are about ten commercial uses.

Moving westward on Palatine Road to Wolf Road, a distance of one mile, the north side of Palatine is used by the Palwaukee Airport. The south side is essentially vacant with only a few houses. At the northwest corner of Palatine and Wolf Roads is an automobile service station. Southward on Wolf Road from this intersection to Camp McDonald Road the area is residential with 40 or 50 $25,000 to $30,000 homes, both on the east side of Wolf Road and the north side of Camp McDonald Road.

Moving south on Wolf from Camp McDonald Road, the land on the east side is vacant until a large nursery is reached at the intersection of Euclid and Wolf. The west side of the road in this area is devoted to a new subdivision development of $25,000 to $30,000 homes. Proceeding south on Wolf Road from Euclid to Foundry Road, the east side is used for a nursery and the west side is vacant. From Foundry Road south to Central Road the east side is vacant, flat, well-drained and suitable for construction. On the west is an old subdivision of modest homes.

East on Central Road to Des Plaines River Road the land is vacant except for the Maryville Academy for girls which fronts on Des Plaines River Road. Moving north on Des Plaines River Road from Central, there is a small cemetery, two or three single-family dwellings, two taverns, and then Foundry Road. Back of this area on the south side of Foundry is a large subdivision with a sprinkling of development, and a single-pump gasoline station. The north side of Foundry is vacant.

From Foundry Road to Euclid Avenue on Des Plaines River Road, the south half is vacant and the north half has four or five single-family dwellings. On the southwest corner of Euclid and Des Plaines River Road, directly south of the subject property, a dwelling is being used as a combination excavating company office and living quarters. Tractors, trailers and equipment are stored on this property. On Euclid west of Des Plaines River Road, immediately west of the subject property, are 21 single-family dwellings built during the past 12 years, with three presently under construction, valued from $15,000 to $25,000. The nearest residence to the subject property is about 245 feet on the north of Euclid, and each residence is spaced about every 200 feet. West of these residences the land is vacant.

The interior of the area bounded as above described is a level area suitable for construction, most of which is vacant and being used for farming purposes.

The proposed buisness use for the subject property is a gasoline service station without a repair shop. The uncontradicted evidence is that it is worth $30,000 as commercial property and $3,500 in its present classification.

The first witness for plaintiff was of the opinion that the subject property could not be used for the various permitted uses because of size or incompatability of such uses with the surrounding area, that it was not suitable for a residence because of the traffic at this intersection (4478 vehicles on Euclid and 8621 on Des Plaines River Road between 8:00 A. M. and 11:00 P. M.), that it was suitable for a service station, that such use would not diminish the value of the surrounding property, and that the highest and best use of the property north and south of the subject property was residential.

The other witness for plaintiff was of substantially the same opinion.

Defendant's witness was of the opinion that the highest and best use of the subject property was residential, that the traffic situation would be compounded as to congestion and hazard by a service station, that such use would be incompatible with the adjoining residential uses, would depreciate the same, would have an adverse effect on the residential trend in the area and would constitute spot zoning.

From the numerous cases over the past several years questioning the validity of zoning ordinances certain general principles have been evolved which have been well stated in the recent decisions of this court in First National Bank and Trust Co. v. Cook County, 15 Ill.2d 26, 153 N.E.2d 545, and Cook County v. Glasstex Co., 16 Ill.2d 72, 156 N.E.2d 519. In the First National Bank case, where the present zoning ordinance in issue was held unconstitutional as to the property involved, we said 15 Ill.2d at page 31, 153 N.E. at page 548: 'The question whether a zoning restriction is arbitrary and unreasonable in its application to particular property is a judicial one, and each case must necessarily be decided on its own particular facts. Among the factors to be given consideration are the use and zoning of nearby property, the character of the neighborhood, the extent property values are diminished, and the relative gain to the public as compared to the hardship imposed upon the owner. Krom v. City of Elmhurst, 8 Ill.2d 104, 133 N.E.2d 1. A zoning classification will be upheld if it bears a substantial relation to the public health, safety, comfort, morals and welfare. Bolger v. Village of Mount...