Zilien v. City of Chicago

• Decision Date: 24 September 1953
• Docket Number: No. 32682,32682
• Parties: ZILIEN et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

Page 717

114 N.E.2d 717

415 Ill. 488

ZILIEN et al. v. CITY OF CHICAGO.

No. 32682.

Supreme Court of Illinois.

Sept. 24, 1953.

John J. Mortimer, Corporation Counsel, Chicago (L. Louis Karton and Arthur Magid, Chicago, of counsel), for appellant.

McKay & Krulewitch and Wolfberg & Kroll, Chicago, for appellee.

DAILY, Justice.

The city of Chicago here appeals from a judgment of the circuit court of Cook County holding section 10 of the 1942 amendment to the city zoning ordinance unconstitutional and void in its application to certain property either owned or leased by appellees. The trial judge has certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.

The property involved consists of several parcels of land which front on the west side of South Ashland Avenue between Ninetieth and Ninety-second streets and upon which appellees operate used-car sales lots. The original zoning ordinance of 1923 zoned the property for commercial use, a use which permitted the open-yard storage of cars under certain conditions; by the 1942 amendment, however, the same property was rezoned for business use. The latter use did not permit used-car lots, it appearing, rather, that the amendment clarified and continued the classification of such lots as a commercial use. Appellees did not start to operate their lots until dates which progress from 1946 and, it was not until 1952 that they initiated this action. Their complaint, after alleging that the city threatened to enforce the amended ordinance as to their properties, charged that the rezoning was unreasonable and void as applied to their lands, that it violated divers of their constitutional rights and prayed for appropriate legal and equitable relief. The city filed an answer putting in issue all the material allegations of the complaint and, after a hearing on the pleadings, the court held the amendatory ordinance void in its application to appellees' property, as being an unreasonable exercise of the police power which arbitrarily restricted the use of such property without any substantial bearing on the public health, safety, comfort, morals or welfare. In reaching this result the record reflects that the trial court found from the evidence that no change had occurred in the area between 1923, when it was zoned commercial, and 1942, when it was rezoned for business, and concluded that since there had been no change, there could be no real or substantial public need for the area to be rezoned and therefore no relation to the public welfare.

On this appeal the city urges that appellees have failed to overcome the presumption of validity which attaches to zoning legislation and, in addition, insists that there is affirmative proof in the record that the rezoning was related to the public good. Appellees contend that the determination of the city council of the need for rezoning is not conclusive but is subject to judicial review; that in this instance there were no changes bearing a reasonable relation to the public need which justified the rezoning; that the rezoning of their property constituted 'spot' zoning and that the proper zoning of the blocks in question is controlled by the adjoining commercial property in the blocks to the north and south.

The facts show that Ashland Avenue is an important public thoroughfare running directly north and south through the city of Chicago from 9500 south to 7600 north. It is a major traffic artery bearing both streetcars and busses and serves as a connecting link to main highways running east and west. Under the zoning ordinance of 1923, both sides of South Ashland Avenue, from Ninety-fifth to Eighty-seventh streets, were zoned for commercial use. By the amendatory ordinance of 1942, the three blocks from Ninety-fifth to Ninety-second streets were continued as commercial; the two blocks from Ninety-second to Ninetieth streets were rezoned to business use; the block between Ninetieth and Eighty-ninth street was continued as commercial, and the two blocks from Eighty-ninth to Eighty-seventh streets were rezoned to business use. The leap-frogging pattern pursued thus caused appellees' lots lying between Ninetieth and Ninety-second streets to be rezoned for business use while the property in the blocks flanking them was continued as commercial. It should be noted at this time that the original zoning ordinance divided the city into four use districts as follows: (1) residence, (2) apartment, (3) commercial, (4) manufacturing. The 1942 amendment, however, created nine use districts, namely: (1) single-family residence, (2) duplex residence, (3) group houses, (4) apartment houses, (5) specialty shops, (6) business, (7) commercial, (8) manufacturing, (9) industrial. Because of this refinement in classifications, many uses originally classified as 'commercial' were classified as 'business' uses under the amendatory ordinance. This feature becomes significant in view of the city's argument that the rezoning was justified and reasonable, the 'business' uses which presently exist in the blocks of Ashland Avenue being considered. In that respect, the record shows that the lots on Ashland Avenue between Ninety-fifth and Eighty-seventh streets were largely vacant properties when first zoned 'commercial' in 1923 and, for the most part, remained so when the rezoning took place in 1942. Since the latter date the properties in these blocks, excepting the used-car lots of appellees, and other isolated properties, have largely been utilized for uses classified as 'business' by the 1942 amendment.

Other pertinent facts show that under the 1923 ordinance all property for more than a mile east of Ashland Avenue between Ninety-fifth and Eighty-seventh streets was zoned for apartment use while the property for more than a mile west of the same area was zoned for...