Hamann v. Sumichrast

• Decision Date: 16 December 1991
• Docket Number: No. 2-91-0248,2-91-0248
• Citation: Hamann v. Sumichrast, 584 N.E.2d 847, 222 Ill.App.3d 962, 165 Ill.Dec. 413 (Ill. App. 1991)
• Parties: , 165 Ill.Dec. 413 Walter C. HAMANN, Plaintiffs-Appellants and Cross-Appellees, v. Jozef SUMICHRAST, et al., Defendants (The City of Lake Forest, Defendant-Appellee and Cross-Appellant).
• Court: Appellate Court of Illinois

Page 847

584 N.E.2d 847

222 Ill.App.3d 962, 165 Ill.Dec. 413

Walter C. HAMANN, Plaintiffs-Appellants and Cross-Appellees, v. Jozef SUMICHRAST, et al., Defendants (The City of Lake Forest, Defendant-Appellee and Cross-Appellant).

No. 2-91-0248.

Appellate Court of Illinois Second District.

Dec. 16, 1991.

Ardath A. Hamann (argued), Lake Bluff, for Walter C. and Lila T. Hamann.

Murray R. Conzelman (argued), Conzelman, Snarski & Stepanich, Waukegan, Semmelman & Bertucci, Ltd., John E. Helander, O'Hallaran, Kosoff and Miller, Northbrook, for Jozef and Susan Sumichrast et al.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiffs, Walter Hamann and Lila Hamann, appeal from the judgment of the circuit court of Lake County finding that the subdivision in which plaintiffs reside is not a common-law subdivision and that the Lake Forest zoning ordinance pertaining to the 20,000-square-foot minimum lot size requirement for single-family residences is not unconstitutional as applied to their lot. Additionally, plaintiffs appeal from that portion of the judgment rendering moot the issue of whether Lake Forest's lot-in-depth subdivision section of the zoning ordinance is reasonable as applied to plaintiffs' lot. Defendant City of Lake Forest (city) cross-appeals from the trial court's determination that plaintiffs have easement rights in streets that have been partially vacated. Defendants Jozef and Susan Sumichrast and John and Jane Carpender are not parties to this appeal.

In 1956 plaintiffs purchased lot 4 in unit 2 of the Whispering Oaks subdivision and had a single-family residence constructed upon it. At the time of their purchase plaintiffs knew their property was zoned "R-2," single-family dwellings on lots of not less than 20,000 square feet. Plaintiffs' lot measured 100 feet wide by 377.6 feet long and was, therefore, 37,760 square feet in area.

Plaintiffs' lot is bordered on the east by a dedicated, but unimproved and wooded, right-of-way, Western Avenue. Immediately to the east of Western Avenue are the Chicago and North Western railway tracks. On the west, lot 4 is bordered by Beverly Place, an improved street, on the north by lot 3 of the same subdivision, and on the south by lot 29, a lot in unit 3 of the Whispering Oaks subdivision. Lot 29 and 19 other lots lying to the south of plaintiffs' property have substantially the same size and configuration as plaintiffs' property. Each lot is occupied by a single residence.

Defendants John and Jane Carpender own lot 3, which measured 377.6 long by 117.78 feet wide, or 44,466 square feet in area. Lot 3 is bounded on the north by a dedicated street, Briar Lane. Briar Lane connects Beverly Place with Western Avenue and, until 1990, was unimproved. On the north side of Briar Lane is lot 2, owned by defendants Jozef and Susan Sumichrast and measuring 377.6 feet long by 130 feet wide, or 49,000 square feet in area. To the north of lot 2 is lot 1, which was subdivided into two lots in 1974 and is now known as Black's subdivision. A house located on the western half of lot 1 fronts on Beverly Place. Another house, located on the eastern half of the lot, has access to Beverly Place by means of a long driveway. The eastern half of lot 1 is known as a lot-in-depth or flagpole lot.

The Sumichrasts purchased lot 2 in 1987 and soon thereafter began proceedings with the city to divide the property into two lots. The original proposed plan of subdivision, plan A, provided that Briar Lane be improved from Beverly Place to Western Avenue. The city's planning staff recommended, instead, plan B, which provided for the improvement of Briar Lane from Beverly Place east approximately 250 feet and ending in a cul-de-sac. Under plan B, the northern half of Briar Lane and east from the end of the cul-de-sac to Western Avenue was to be vacated and incorporated into the Sumichrasts' rear lot. Plaintiffs objected to plan B at meetings of the planning commission, urban and environmental affairs committee, and city council. Plaintiffs claimed they had easement rights in Briar Lane under the covenants running with the land as recorded in the declaration of restrictions and plat for unit 2 of the subdivision. Plaintiffs maintained that these rights would be blocked under plan B. The planning commission and the city council eventually approved plan B.

Lot 2 was subdivided into two parts. The western half fronted on Beverly Place and included the original house in which the Sumichrasts resided. The eastern half fronted on the northern side of Briar Lane at the end of the cul-de-sac. At the time of trial no house had yet been constructed on the eastern half.

Subsequent to the approval of plan B by the city, plaintiffs brought an action for permanent injunction and declaratory judgment against the Sumichrasts. Plaintiffs asserted that unit 2 of the Whispering Oaks subdivision was a common-law subdivision and, as such, their lot was large enough to divide into two lots. As access to the rear half of plaintiffs' lot would be by Briar Lane to Western Avenue, plaintiffs would be irreparably damaged if the Sumichrasts built on the Briar Lane right-of-way. Plaintiffs further asserted that such construction would deny them access to the rear half of their lot and would breach the covenants running with the land. Plaintiffs sought a permanent injunction preventing the Sumichrasts from building on the Briar Lane right-of-way and a judgment declaring their rights of ingress and egress in Briar Lane.

After plaintiffs had instituted their litigation against the Sumichrasts, plaintiffs received a certified letter from defendant Jane Carpender notifying them that she had filed an application with the city requesting a subdivision of her property (lot 3) into two buildable lots. As a result, the court determined that the city and the Carpenders were necessary parties to the plaintiffs' litigation and ordered that they be joined as party defendants. Shortly thereafter, the city granted the Carpenders' request for subdivision and also approved a plan to vacate and incorporate to the southern half of Briar Lane east from the end of the cul-de-sac to Western Avenue into the Carpenders' lot.

The western half of lot 3 fronted on Beverly Place and included the original house in which Jane Carpender resided. The eastern half fronted on the southern side of Briar Lane at the end of the cul-de-sac. No house has yet been built on the eastern half.

At trial plaintiffs placed into evidence the 1955 official plan of the city, the city's zoning ordinance of 1923 as amended in 1955, a blueprint of the original plat of unit 2 of the Whispering Oaks subdivision, and a declaration of restrictions pertaining to the subdivision, all of which plaintiffs relied upon in purchasing their property. Walter Hamann testified that he particularly relied upon the information on the blueprint pertaining to the location of plaintiffs' lot on Beverly Place and the dedication of Western Avenue and Briar Lane. Hamann stated that he read the declaration of restrictions prior to purchasing lot 4. According to the declaration, the restrictions, or covenants, were to run with the land until January 1, 1980, at which time they would be automatically extended for successive periods of 10 years unless a majority of the lot owners voted to change the covenants.

While testifying, both Lila and Walter Hamann opined that the value of the rear portion of their lot, if subdivided and built upon, would be $300,000, whereas, if not subdivided, it would be worth $20,000 or $30,000. Plaintiffs also opined that subdivision of their property would not damage property values in the city or harm the public health, safety, morals, or general welfare of the community.

On cross-examination, Lila Hamann acknowledged that the square footage of the Sumichrasts' and Carpenders' lots was large enough to accommodate two 20,000-square-foot lots and that plaintiffs' lot, measuring 37,760 square feet, was not sufficient.

On cross-examination, Walter Hamann agreed that the Sumichrasts' and Carpenders' lots were more than 40,000 square feet in area. Mr. Hamann acknowledged that the 20 lots south of his lot were substantially the same in size, 100 feet by 377.6 feet, and in configuration as his lot. He would not admit that his lot was smaller than 40,000 square feet in size, stating only that in his opinion it measured more than 40,000 square feet.

Norman Drummond, a city planner consultant, testified on behalf of plaintiffs. Drummond recounted the various documents he reviewed in preparing for his testimony, including the city's 1955 comprehensive plan, the city's 1955 and current zoning ordinances, and the plats of units 2 through 5 of the Whispering Oaks subdivision. Drummond stated that in 1955 the dedicated streets in unit 2 were Beverly Place, Briar Lane, and Western Avenue. At the time, Western Avenue and Briar Lane east of Beverly Place were not improved. Western Avenue remains unimproved but the western half of Briar Lane east of Beverly Place was, according to the witness, being currently improved.

Drummond stated that he knew of no health, safety, moral or general welfare concerns which would prevent subdividing lots 1, 2, 3 or 4 in unit 2. According to Drummond, the only difference between lots 1, 2, 3 and lot 4 was that lot 4 was an interior lot. The three other lots were corner lots and slightly larger. Drummond testified that he calculated the buildable area of the rear half of lot 3, the Carpenders' lot, and lot 4, plaintiffs' lot. If the vacated portion of Briar Lane north of lot 3 was not considered in the calculations, i.e., if it was considered as originally platted, the buildable rear area of the Carpenders' lot was smaller than the buildable rear area of the plaintiffs' lot.

Drummond testified that a flag lot and a lot-in-depth were essentially the same thing. Both required a greater width than normal. In an R-2...