Forest Pres. Dist. of Cook Cnty. v. Kercher

• Decision Date: 21 May 1946
• Docket Number: No. 29256.,29256.
• Citation: 66 N.E.2d 873,394 Ill. 11
• Parties: FOREST PRESERVE DIST. OF COOK COUNTY v. KERCHER et al.
• Court: Illinois Supreme Court

394 Ill. 11

66 N.E.2d 873

FOREST PRESERVE DIST. OF COOK COUNTY

v.KERCHER et al.

No. 29256.

Supreme Court of Illinois.

May 21, 1946.

Appeal from Circuit Court, Cook County; D. J. Normoyle, Judge.

Suit by the Forest Preserve District of Cook County against Anton Kercher and others to condemn four contiguous parcels of realty. From a judgment awarding what plaintiff considered was excessive compensation, the plaintiff appeals.

Judgment affirmed.

George A. Basta, Herbert C. Paschen, and L. A. Wescott, all of Chicago, for appellant.

Arthur R. Seelig, of Chicago, for appellees.

THOMPSON, Chief Justice.

The Forest Preserve District of Cook county filed a petition in the circuit court of that county to condemn four contiguous parcels of property, alleging as owners and parties in interest, Anton Kercher and Marie Kercher, his wife, Anny Baelz and and Max Baelz, her husband, Chicago Title & Trust Company, as trustee, Anny Baelz, as trustee, and unknown owners.

The property involved is located on the east side of Skokie highway, in Northfield township, Cook county, Illinois, west of the village of Glencoe, approximately 23 miles north of the Chicago loop. The property consists of four separate parcels of land which are contiguous. One of the parcels is vacant and the other three are improved. The jury returned a verdict upon which judgment was entered finding the just compensation for parcel No. 1 to be $23,600; for parcel No. 2, $3,600; for parcel No. 3, $13,000; and for parcel No. 4, $42,500. The cause was submitted to the jury on their view of the premises, the testimony of three expert witnesses for appellant, the testimony of Anton Kercher and four expert witnesses for the appellees. The witnesses on behalf of appellant testified as to the existence of a nonconforming use as to parcel No. 4, which was improved with a restaurant building, and gave as their opinion the highest and best use for parcels 1, 2 and 3 was permissible farming use as limited under, and strictly defined by, the Cook county zoning ordinance.

Witnesses for the appellees testified that the highest and best use of parcels 1, 2 and 3 was for permissible use and development as residential and farming zone property plus parking to the extent that the parcels were being used. The appellant's witnesses disregarded the best use of parcels for parking and present use incidental to the restaurant located on parcel No. 4, while appellees' witnesses testified that the highest and best use of parcels 1, 2 and 3 was for permissible use and development as residential and farm zone property and was augmented by the parcels now being used for parking purposes in connection with the restaurant located on parcel No. 4. As to parcel No. 4, both sides are agreed that the present use for restaurant purposes constitutes the highest and best use. The range of evidence on the valuations on parcel No. 1 vary from $12,750 of a witness for the appellant to $24,900, testified to by a witness for the appellees; for parcel No. 2, from $1,650 to $4,250; for parcel No. 3, from $7,700 to $16,700; and for parcel No. 4, from $27,000 to $43,000.

Five errors are assigned as grounds for reversal, namely: Error in the admission of evidence of sales of property made prior to the adoption of the Cook county zoning ordinance; improper admission of testimony of a witness not qualified to testify as to use and value of the lands; improper testimony of witnesses in behalf of appellees as to the highest and best use of parcels 1, 2 and 3 which was prohibited by the Cook county zoning ordinance, and that the valuations for such use were false values which misled the jury; that the jury failed to give proper consideration to the testimony of appellant's witnesses, and returned a verdict that is grossly excessive and against the manifest weight of the evidence; and that counsel for appellees was guilty of misconduct in making prejudicial, improper and inflammatory argument to the jury.

A brief description of the parcels of land is necessary, as certain controverted questions arise by reason of the evidence being proper as to certain tracts and, it is contended, improper as to others.

Parcel No. 1 contains 4.7 acres, with a frontage on Skokie highway of 260 1/2 feet and a depth on the north line of 802 feet, with an irregular south line, and an east north-and-south line of 300 feet. It is improved with a four-room frame residence. Parcel No. 2 is one acre in size, unimproved, with a frontage of 86 feet on Skokie highway and a depth on the north line of 584 feet and on the south line of 546 feet. This parcel of land has been filled up to grade to a depth of approximately 150 feet and is located to the south if parcel No. 3. Parcel No. 3 is immediately south of parcel No. 1 and contains 1.68 acres and lies between parcels 1 and 2. It has a frontage of 81 feet on Skokie highway and a depth on the south line of 584 feet and is improved with a three-and-one-half room frame residence and two-car garage. Parcel No. 4 contains 0.61 acre and has a frontage of 148.4 feet on Skokie highway. The land has been filled to provide a parking area and is improved with a story-and-a-half frame and brick building especially built for the purpose of a restaurant and tavern in which the Chalet restaurant is being operated. Parcel No. 4 was purchased in 1937 and the Chalet building was constructed in the spring of that year. The kitchen was enlarged in 1938, and again in 1939, and the north or second dining room was added in the spring of 1938. Surrounding the Chalet restaurant building is a white crushed-stone-surfaced parking area which covers all of parcel 4 and proceeds southward entirely through parcel 3 and about to the south limit of parcel 2, which is the south limit of the group of the four parcels. The type of architecture of the three buildings located on the parcels is of Swiss Chalet design, and the central portion of the parcels, surrounding the residences and lake particularly, is most heavily landscaped, forming a park or grove. All of the buildings were erected and the restaurant and beverage business was conducted prior to the effective date of the Cook county zoning ordinance, which went into effect on August 20, 1940. Section 8 of said ordinance, which is material here, is as follows:

‘Section 8. F Districts (Farming)

‘In the F Districts the only uses which may hereafter be established are those permitted in the R-3 Districts and in addition the following: (1) specialized poultry, pigeon, rabbit and other animal farms, but not including the feeding or disposal of community or collected garbage, (2) apiaries, (3) mushroom barns, (4) greenhouses, (5) nurseries, (6) dog kennels, (7) removal of black dirt or top soil, stone, gravel and clay (sites of fixed plants for processing such materials shall be classified in the 1-2 District,) (8) sale of products from any of the above uses, (9) storage of farm products, (10) recreational camps, (11) riding stables, (12) veterinary establishments, (13) racing establishments, (14) filling of holes, pits, quarries or lowland with non-odorous and non-combustible material free from garbage and food wastes, (15) picnic grounds or groves but not including taverns and commercial eating places, (16) athletic fields, (17) skeet or trap shooting if not nearer than 800 feet to any residence other than the lessor or owner of the site, (18) radio stations, (19) institutions, (20) cemeteries, (21) temporary carnivals and circuses, operating not longer than 10 days.’

The properties of the appellees were all purchased prior to the adoption of the Cook county zoning ordinance and, at the time of the adoption of said ordinance, it also contained (which is pertinent here) a section as to nonconforming uses, as follows:

‘Section 16. Nonconforming Uses and Buildings

‘Any use, building or structure lawfully existing or under construction on the adoption date of this ordinance or of a later amendment thereto, which does not conform to the provisions of said ordinance or amendment, shall be known as nonconforming. Such nonconforming use, building or structure may be continued, maintained, or changed to a conforming use; but a nonconforming use shall not be (a) changed to a use of a lower class, nor (b) expanded, nor (c) re-established if discontinued or changed to a conforming use for one year or more, nor (d) continued if the building or structure be destroyed or damaged to the extent of 50 per cent or more of its value. Exceptions: A nonconforming B-1 or B-2 use surrounded on two or more sides by land classified in the F or lower districts may be permitted to expand once not over 50 per cent in area and may be re-established if destroyed or damaged to any extent.

‘A building or structure for a nonconforming use under construction on the adoption date of this ordinance or of a later amendment thereto creating the non-conformity shall be completed within one year. A complete record of the location, value, nature and extent of all nonconforming uses shall be made and kept by the enforcing officer.’

It is first urged by appellant that the trial court committed error in admitting in evidence sales of property made prior to the adoption of said ordinance with its accompanying provision for nonconforming use. It is the contention of appellant that the passage of this ordinance so changed the character and use of the properties involved that the value of the property was affected thereby, and as the sales testified to were made prior to the passage of the zoning ordinance they were not a fair criterion of value.

The controversy arose in the testimony of appellee's witness Dodds, who testified relative to sales made to parties by the name of Weidner and Booth. The sales were made in April, 1940, and were two acre tracts, one back of the other, lying about 300 feet north of the Chalet property, designated as parcel No. 4, and were contiguous to the northern boundary of...