Forbes v. Hubbard

• Decision Date: 23 April 1932
• Docket Number: No. 21268.,21268.
• Citation: 348 Ill. 166,180 N.E. 767
• Parties: FORBES v. HUBBARD et al.
• Court: Illinois Supreme Court

348 Ill. 166

180 N.E. 767

FORBES

v.HUBBARD et al.

No. 21268.

Supreme Court of Illinois.

April 23, 1932.

Petition by George S. Forbes for a writ of mandamus to G. W. Hubbard and others, as officials of the village of River Forest. From a judgment granting a peremptory writ, respondents appeal.

Affirmed.Appeal from Circuit Court, Cook County; Thomas Taylor, Judge.

Cavender, Milchrist & Kaiser and Bryant, Roberts, Hwass & Lewe, all of Chicago, for appellants.

Tenney, Harding, Sherman & Rogers, and Frank T. Murray, all of Chicago (S. Ashley Guthrie, of Chicago, and William W. Miller, of Chicago, of counsel), for appellee.

STONE, C. J.

Appellee filed a petition in the circuit court of Cook county seeking mandamus against certain officials of the village of River Forest to compel them to issue to him a permit for the construction of a two-story brick and terra cotta store building upon real estate owned by him in that village. It is conceded that the proposed plans and specifications strictly comply with the requirements of building ordinances of the village, but the defense was made that to use appellee's premises for commercial or business purposes,was in violation of the zoning ordinance of the village. The village officers on that ground refused to issue a building permit. The cause was heard by the court, and the peremptory writ of mandamus was issued as prayed in the petition; the court holding that the zoning ordinance as applied to appellee's property was an unreasonable invasion of it, and therefore void. The cause comes here on certificate of the trial judge that the validity of an ordinance is involved, and that public interest requires that the same be passed upon by this court.

Appellants seek reversal of the judgment order on the ground that it is contrary to law and the evidence, and for errors in the rulings of the chancellor as to the admissibility of certain evidence.

On April 3, 1922, the village passed a comprehensive zoning ordinance, creating thereby four different use districts: A restricted to single family dwellings; B restricted to apartment buildings and those permitted in A district; C restricted to stores or commercial buildings and those permitted in the A and B; and CC, industrial or unlimited use district. Appellee's property is included by the zoning ordinance in the ‘A use’ district. The ground of appellee's petition is that in so far as the ordinance purports to prevent the proposed structure on his property it is arbitrary, unreasonable, and void.

River Forest is a village of approximately 9,000 inhabitants. It is a suburb of Chicago, located about ten miles west of the loop district. Immediately adjoining River Forest on the east, between it and the city of Chicago, is the village of Oak Park, with a population of approximately 63,000. Harlem avenue extends north and south along the boundary line between the villages of River Forest and Oak Park. It is a through street, extending throughout the boundaries of these villages and for many miles north and south thereof, forming a part of one of the principal highways of Cook county. Appellee's property is located in the southwest corner of the intersection of Harlem avenue with Chicago avenue, likewise a through street, extending from the city of Chicago west and joining with highways extending west through the county. A branch of the Chicago & Northwestern railroad extends east and west through the village along Central avenue, which lies one-half mile south of Chicago avenue. Its tracks are elevated, but have no passageway under them for a distance of approximately one-half mile west of Harlem avenue. A railroad known as the ‘Soo Line’ extends north and south through the village something over a half mile west of Harlem avenue. Lake street is an east and west street paralleling Central avenue one block north thereof and is somewhat less than a half mile south of Chicago avenue. The zoning ordinance places all property between Lake street on the south, Chicago avenue on the north, Harlem avenue on the east, and the village limits on the west, with the exception of public property and a few lots fronting on Lake street, in the ‘A use’ or single family residence district. About the year 1905, the property included in these boundaries, then mostly vacant, was purchased for subdivision purposes, and in 1922, at the time of the passage of the zoning ordinance, all of this real estate had been sold, with the exception of 792 feet fronting on Harlem avenue. The deeds issued by the original subdividers as to all lots in the subdivision, except those fronting on Harlem avenue, contained a restriction limiting the use of such lots to a single family residence. Those fronting on Harlem avenue were sold without restriction. That portion of the village of River Forest lying north of Chicago avenue and west of Harlem avenue was for most part zoned for single family use. The roadway of Harlem avenue where it passes between the two villages is 38 feet in width and is now paved with brick. Proceedings to widen the roadway to 50 feet and to resurface it with heavy reinforced concrete ten inches in thickness have been authorized by both villages. A double track street car line extends on Harlem avenue from beyond the southern limits of River Forest north to Chicago avenue, where it turns east, connecting with the Chicago traction system at Austin avenue, one and one-half miles east of Harlem avenue. Cars pass over it at intervals of from seven to ten minutes, and busses are likewise operated on Harlem avenue at twenty minute intervals. Appellee's property abuts on Harlem avenue with a frontage of 100 feet, and has a depth along the south side of Chicago avenue of 183 feet. The property is vacant. There are at this intersection automatic electric traffic signals. The other three corners of Harlem and Chicago avenues are occupied by business buildings. On the northwest corner is a real estate office, conducted in a bungalow. This property was being so used when the zoning ordinance was passed, and is devoted to a nonconforming use. On the northeast corner there is a two-story terra cotta store and business building fronting 100 feet on Chicago avenue, with a depth of 150 feet north on Harlem avenue, and containing nine storerooms. Other business buildings extend east on both sides of Chicago avenue for more than a block. On the southeast corner a gasoline filling station and greasing place occupies approximately 100 feet on Harlem avenue. In 1921 the village of Oak Park by a zoning ordinance zoned this property for commercial use and the property south for three blocks for apartment buildings. By amendments to this ordinance in 1927 and 1929, the entire frontage on the east side of Harlem avenue from a point 150 feet north of Chicago avenue south to Lake street, a distance of nearly a half mile, was zoned for commercial use. In the neighborhood of Lake street, on Harlem avenue, in Oak Park, a large department store has been erected. North of this are apartment buildings and a number of old, low-grade frame residences, some of which have been converted into business uses. On the west side of Harlem avenue, at its intersection with Lake street and for a distance of approximately two blocks north, is a tract of ground belonging to the forest preserve district. There is an administration building on this tract. From this tract north to Chicago avenue the property fronting on Harlem avenue is vacant, with the exception of one lot at the corner of Quick avenue and Harlem avenue, across from the preserve district property, which contains a single family residence facing on Quick avenue. North of Chicago avenue, on the west side of Harlem avenue, are a number of single family residences. The first street west of Harlem avenue, and parallel thereto, is Bonnie Brae. This street from Lake street to Chicago avenue, and for some blocks north thereof, is built up with single family residences. The lots on the east side thereof and immediately opposite the property of appellee are of a depth of 183 feet and adjoin the west line of the property fronting on Harlem avenue. There is no alley between Bonnie Brae and Harlem avenue. The residences built on the east side of Bonnie Brae are on a building line about 100 feet from their rear lot line. The rear of these lots is occupied by private garages and a line of trees and shrubs. The original subdividers sold the premises here involved in 1918 for $6,000, or $60 per front foot. In October, 1922, appellee purchased all of the vacant property fronting on Harlem avenue, with the exception of the lot involved here, at $50 per front foot. In 1925 he purchased the lot involved for $35,000, or $350 per front foot.

There is little, if any, controversy as to the facts. It is conceded that the highest and best use of the property here involved is for commercial or business purposes. The evidence shows it worth from $350 to $500 per front foot for business purposes, and from $40 to $50 per front foot for single residence purposes. Harland Bartholomew, professor of civic designing at the University of Illinois, who qualified as an expert of wide experience in matters of zoning and preparation of zoning ordinances, described the method of his investigation of the zoning ordinance of River Forest and its application to the property of that village. He testified that the classification of the locus in question as ‘A use’ property is not a reasonable and proper classification, giving as his reason for that opinion the character of Harlem and Chicago avenues as main traffic thoroughfares, the use of three of the four corners for commercial purposes, and the presence of street cars and bus lines in front of the premises. Over objection he was permitted to state that in this case, as in all cases, he also gave substantial weight to the use and occupancy of the property across the street in the village of Oak Park, for...