Miller Bros. Lumber Co. v. City of Chicago

• Decision Date: 22 January 1953
• Docket Number: No. 32579,32579
• Citation: 111 N.E.2d 149,414 Ill. 162
• Parties: MILLER BROS. LUMBER CO. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

Page 149

111 N.E.2d 149

414 Ill. 162

MILLER BROS. LUMBER CO. v. CITY OF CHICAGO.

No. 32579.

Supreme Court of Illinois.

Jan. 22, 1953.

Rehearing Denied March 24, 1953.

Brown Dashow & Ziedman, of Chicago (Albert Langeluttig, Chicago, of counsel), for appellant.

John J. Mortimer, Corp. Counsel, of Chicago (L. Louis Karton and Sydney, R. Drebin, Chicago, of counsel), for appellee.

DAILY, Justice.

This appeal, which has been duly certified to this court by the circuit court of Cook County, involves the frequently recurring question of the validity of the Chicago zoning ordinance, as amended, in its application to an individual tract of land.

The city of Chicago enacted its zoning ordinance in July, 1923, and, by its provisions, a triangular area bounded by West Argyle Street on the north, the Milwaukee Railroad right of way on the east, West Lawrence Avenue on the south, and North Lavergne Avenue on the west, was zoned for manufacturing use. Five years later, Peter Miller purchased four lots along the southern boundary of the area at the site now commonly known as 4918 West Lawrence Avenue, and started a lumber business. At the time he made his purchase, the Lawrence Avenue property was adjoined at the rear, or north, separated only by a platted alley, by four vacant lots facing on Gunnison Street, which were also within the above-described area. In 1932, the lumber business was incorporated, the Lawrence Avenue property was conveyed to the corporation and it has continued in business at that site. In December, 1942, the city of Chicago made extensive amendments to its zoning ordinance, with the result that the triangular area previously described was rezoned for single-family residence use, with the exception of the lots at the southern boundary facing on Lawrence Avenue which were rezoned for commercial use. The platted alley between Lawrence Avenue and Gunnison Street thus became the boundary line between the two uses.

Despite the change of zoning, the corporation, in 1946, purchased the vacant lots on Gunnison Street intending to expand its lumber business thereon by erecting additional buildings, bins, and sheds. In March, 1952, the corporation started this action in the circuit court of Cook County seeking a declaratory judgment that the ordinance, as amended, is void in its application to the Gunnison Street lots. The complaint filed alleged that the city's action in rezoning the property from manufacturing to single-family residence use was unnecessary, capricious, unrelated to the public health, safety, morals or welfare, and that it contravened divers constitutional rights of the corporation in its property. The circuit court entered judgment adverse to the corporation's contentions and this appeal has followed.

In seeking reversal appellant assigns the following errors: (1) That the city council abused its legislative discretion in rezoning the Gunnison Street property in view of its highest and best use; (2) that the ordinance, as amended, deprives appellant of property without due process of law to the extent of the difference in its value for manufacturing use as compared to residential use, and, (3) that the amendment was unreasonable in that it inflicted financial injury upon appellant without tending in any way to benefit the public.

The evidence relating to these issues shows that the property here involved is in the southeast corner of the triangular area with the eastern boundary being the railroad right of way and the southern boundary being the alley between Lawrence Avenue and Gunnison Street. The railroad at this point is approximately sixteen feet above ground level, is fenced for many miles and has no commercial outlets or sidings in the immediate area. In the area zoned for single-family residence purposes there are ninety-two parcels of land, thirty-five of which have residences on them, and two of which have new residence foundations on them. There is no manufacturing within the area and but two business uses, one being a grocery store on Lavergne Avenue, and the other a small trucking company which is being operated from a garage at the rear of a residence on Argyle Street adjacent to the railroad track. Gunnison Street itself is an asphalt road with little but residential traffic and comes to a dead end at the railroad. Starting from the tracks and moving west along the south side of Gunnison Street to Lavergne Avenue are located the four vacant lots here in controversy, which lie about two feet below road level, then follow eight frame residences interspersed with seven vacant lots. One witness estimated many of thes dwellings to be about fifty years old but stated that they were in good repair and neatly kept, which facts are borne out by photographic evidence. On the north side of Gunnison Street, running from the tracks to Lavergne Avenue, are five vacant lots, a three-apartment brick building, two new residential foundations, and five frame residences. A witness testified that there are twenty-four families living in the residences on the block and that included in them were about sixteen children under eighteen years of age.

Evidence introduced by appellant concerning immediately surrounding areas indicates that both sides of Lawrence Avenue, from the west side of the railroad to Lavergne Avenue, are used exclusively for commercial and manufacturing purposes, included in which are appellant's lumberyard, two cement contractors, a shoe store, a dairy building now used for storage, a barbershop, a machine shop, a tavern, a factory making mining equipment and one making electronic parts. Lawrence Avenue itself is shown to be a busy thoroughfare which bears much automobile and truck traffic and a two-way electric bus line. On the east side of the railroad and south of Lawrence Avenue is located a large lumberyard adjacent to the railroad, while to the north, along the east side of the railroad, is located still another cement contractor, a dilapidated residence at the corner of Ainslie Street and Lamon Avenue where the owner sells black soil, and nearby on Lamon, a small grocery store. It was also shown that the Mayfair Pumping Station is located about two blocks south of Lawrence Avenue on the west side of the railroad track. With these exceptions, however, the evidence introduced shows that the areas surrounding the property and the zoning area in question are almost exclusively used for residential purposes.

Harold B. Miller, general manager for appellant, testified as to the volume of the corporation's business, to its need for more storage space and facilities, and told of the difficulties engendered by the traffic congestion on Lawrence Avenue. He also described the manner in which his company planned to use the Gunnison Street property and how it would alleviate their problems. Both he and his father testified that when the Gunnison Street lots were purchased they did not actually know of the rezoning.

William H. Brinkman, a real-estate man with experience as a member of a zoning board of appeals, testified that he had conducted a survey of the area in question in 1939 to ascertain if it were possible to buy sufficient property to locate industry adjacent to the Milwaukee Railroad tracks. He did not, however, testify as to the results of his survey. He further testified that he had re-examined the area prior to testifying and had formed the opinion that the highest and best use for the Gunnison Street lots is for manufacturing purposes. It was also his opinion that the highest and best use, and proper zoning, for the whole triangular area from the railroad tracks to Lavergne Avenue is for manufacturing purposes and that such use would not prove detrimental to the surrounding areas. In both instances he based his opinion upon a study of the property, a study of the immediate and surrounding areas, and upon the general industrial development along the Milwaukee Railroad tracks throughout the city of Chicago and into the northwestern suburbs. The witness was also of the opinion that the construction proposed by appellant would not be detrimental to the residence owners on Gunnison Street and that...