Maywood Proviso State Bank v. Village of Berkeley, Cook County

• Decision Date: 07 January 1965
• Docket Number: Gen. No. 49672
• Citation: 55 Ill.App.2d 84,204 N.E.2d 144
• Parties: MAYWOOD PROVISO STATE BANK, as trustee under trust #1195, not personally and Warren Swiech, Plaintiffs-Appellees, v. VILLAGE OF BERKELEY, COOK COUNTY, Illinois, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 144

204 N.E.2d 144

55 Ill.App.2d 84

MAYWOOD PROVISO STATE BANK, as trusteeunder trust #1195 not personally and Warren Swiech, Plaintiffs-Appellees, v.VILLAGE OF BERKELEY, COOK COUNTY, Illinois, Defendant-Appellant.

Gen. No. 49672.

Appellate Court of Illinois, First District, Third Division.

Jan. 7, 1965.

John P. Murray, Vincent Pascucci, Chicago, for appellant.

James E. Noland, Edmund M. Tobin, Chicago, for appellees.

DEMPSEY, Presiding Justice.

The defendant, Village of Berkeley, appeals from a judgment which declared the village's zoning ordinance unconstitutional and void in its application to certain property held in trust by the plaintiff, Maywood Proviso State Bank, under which trust the plaintiff, Warren Swiech, has the sole beneficial interest.

The plaintiff's complaint raised constitutional questions which were sustained by the trial court's decision and the appeal, accordingly, was first directed to the Supreme Court.The court evidently was of the opinion that the case presented no substantial or fairly debatable question arising under the constitution and transferred it here.First National Bank & Trust Co. v. City of Evanston, 30 Ill.2d 479, 197 N.E.2d 705(1964).

Warren Swiech purchased the property in question in January 1962.He was an experienced real estate builder and broker and had full knowledge that the property had an 'A' zoning classification which permitted single-family residences.On May 4, 1962, the plaintiffs petitioned the Zoning Board of Appeals of the village for reclassification to a 'B' use, which would permit multiple-family dwellings.The Board of Appeals agreed with the plaintiffs and made such a recommendation to the Board of Trustees.The village trustees rejected the proposed reclassification and this action for declaratory judgment followed.

The property consists of two vacant, irregularly shaped parcels of land, one of which lies southeast and the other southwest of the intersection of Taft and Maple Avenues.Taft Avenue, a north and south street, and Maple Avenue, an east and west street, are both improved with single-family residences.The parcel to the east of Taft and south of Maple is bounded on the west by Taft Avenue, on the north by the dwellings along Maple Avenue, on the east by the Village of Hillside and on the south by the elevated right of ways of two railroads: the Chicago and Great Western and the Aurora, Elgin and Chicago.The latter railroad is inoperative and its tracks have been removed.The parcel to the west of Taft and to the south of Maple is bounded on the east and north by the homes along Taft and Maple Avenues, on the west by vacant land which extends to the Illinois Tri-State Tollway and on the south by the railroad right of ways and by Railroad Avenue, a dedicated but unbuilt street.

The residences on Taft Avenue are quite old, those on Maple are both old and new.The entire area north of Maple is 100 per cent residential with the exception of three or four legal, nonconforming uses.The residences in this area are from five to fifty years old and many of them have large, deep lots.That part of Hillside which adjoins the property in question on the east is also 100 per cent residential; the homes are new and are built up to and along the railroad right of ways.

South of these right of ways, which are six to eight feet above the street level and each 100 feet wide, commercial use is permitted in both the villages of Berkeley and Hillside.In Berkeley this area is heavily residential and many of the homes face the railroad tracks.

In their complaint the plaintiffs asserted that the subject parcels were not suited for single-family residences because of their size and the character of the property adjacent to them, specifically the railroad tracks.They further asserted that if the parcels were rezoned 'B' their value would be ten times greater than under the present 'A' zoning and that they would be utilized for their highest and best use.

A realtor, a real estate appraiser and the secretary of the Zoning Board of Appeals of Berkeley, who is also a builder of homes, testified for the plaintiffs before the master in chancery to whom this case was referred.They supported the assertions in the complaint that the railroad tracks were an impediment to the sale of single-family homes and that the highest and best use of the property would be for multiple housing.The appraiser gave his opinion that the value of the property under single-family zoning was $86,000.00 and under multiple zoning would be $250,000.00.Swiech testified in his own behalf but was not asked what he paid for the tracts.He told his plans for developing the property, and exhibits were introduced into evidence showing the type of apartment buildings he intended to erect.He testified that he had built several homes on the property.He said that, up to the date of his testimony [February, 1963], he had been unable to sell two of the homes which had been completed in June 1962.However, he also said that within the last two months he had built three other homes which had been sold.

A trustee of the village and the chairman of its zoning committee testified that the majority of the people in the vicinity of the property were against the proposed rezoning.Another witness, a real estate broker and a member of Berkeley's Zoning Board of Appeals(who had not participated in the hearing before that board) testified that if the property were zoned for multiple dwellings it would depreciate the value of the single-family residences and would decrease the desire of the people to live in that neighborhood.He agreed that the value of the property would be greater if it were rezoned.

The principles of zoning law which apply to a case of this kind have been frequently enunciated.La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65.There is a presumption that a zoning ordinance is valid (Martin v. City of Rockford, 27 Ill.2d 373, 189 N.E.2d 280) and the burden of overcoming the presumption is upon the person who assails it.Skrysak v. Village of Mt. Prospect, 13 Ill.2d 329, 148 N.E.2d...