Taylor v. Village of Glencoe , 372 Ill. 507 ( 1939 )

Again, a carefully considered zoning ordinance of a residential suburban community has been declared invalid as applied to a particular parcel of property. In my judgment, the ordinance is not vulnerable to constitutional assault and the decree of the circuit court should be affirmed. Since 1921 when the village of Glencoe adopted its zoning ordinance, a substantial number of persons, relying upon the residential restrictions of the ordinance, have purchased or improved properties for use as homes within a radius of five hundred feet from the property owned by plaintiffs. To grant the latter the privilege of converting their property to commercial uses will greatly depreciate, if not actually destroy, the value of other residential properties within the five-hundred-feet radius. In order to rectify what may be deemed an injustice to the owners of a single parcel of real estate, the property of others and the character of the village itself are to be subjected to irreparable injury. The majority opinion determines the reasonableness of the zoning restrictions by applying them to plaintiffs' property, alone, instead of to all the property in the district. In short, the conclusion that plaintiffs are entitled to an injunction restraining the defendant village from enforcing its zoning ordinance against their property rests upon the premise that the ordinance is unreasonable as to this solitary tract of land. Recourse to the Illinois Zoning act discloses that the premise is fallacious. Section 1 of that act (Ill. Rev. Stat. 1939, chap. 24, par. 66, p. 393) describes the objectives of the statute, as follows: (1) the securing of adequate light, pure air and safety from fire and other dangers; (2) the conservation of the taxable value of land and buildings throughout the municipality; (3) the lessening or avoidance of congestion in the public streets, and (4) the promotion otherwise of the public health, safety, comfort, morals, and welfare. The first section further provides that all ordinances passed conformably to the authority of the act shall make due allowance for (1) existing conditions; (2) the conservation of the property values; (3) the direction of building development to the best advantage of the entire city, village or incorporated town, and (4) the uses to which property is devoted at the time of the enactment of the ordinance. These controlling considerations, and particularly the provision of the zoning law concerning the conservation of the taxable value of land and buildings throughout the municipality, are ignored by the opinion of the court. No contention is made that the ordinance of 1921 failed to satisfy the applicable statutory provisions when enacted. Where a general zoning ordinance is passed and persons buy property in a certain district they have a right to rely upon the rule of law that the classification will not be changed unless the change is required for the public good. (Kennedy v. City of Evanston, 348 Ill. 426;Phipps v. City of Chicago, 339 id. 315.) Here, the requisite showing simply has not been made.

The majority opinion declares that the presence of two gasoline stations in the village of Winnetka reflects the commercial character of the surrounding property. The fact that property in the north end of the neighboring village may be devoted to industrial uses, it is submitted, furnishes no reason for invalidating the zoning ordinance of Glencoe applying solely to the property within its own territorial limits. Nor is the alleged fact that plaintiffs' property may be four times as valuable for commercial uses as it is for residential purposes decisive. (Evanston Best Co. v. Goodman, 369 Ill. 207;Rothschild v. Hussey, 364 id. 557.) Although plaintiffs' property may be more valuable if devoted to business purposes, the fact remains that the value of their property has not decreased since the enactment of the ordinance but, on the contrary, has actually increased in value since 1921. In the recent case of EvanstonBest Co. v. Goodman, supra, which, in my opinion, closely parallels the present case, we said: "Petitioner emphasizes the fact that its property would be more valuable if zoned for commercial purposes, but this fact exists in every case where the intensity with which property may be used is restricted by zoning laws. While the extent to which property values are changed by a zoning ordinance is a proper consideration in determining the validity of the ordinance, [citation] the profit that would accrue to individual property owners if zoning restrictions were removed must be weighed against the detriment to the public welfare that would result from such action. * * * Where * * * it is shown that restrictions imposed by such a law protect the health, safety and welfare of the public, they must be sustained, even though private interests are to some extent impaired." A recurrence to the following apt language used by this court in City of Aurora v. Burns, 319 Ill. 84, is perhaps necessary: "Zoning necessarily involves a consideration of the community as a whole and a comprehensive view of its needs. * * * No general zoning plan, however, can be inaugurated without incurring complaints of hardship in particular instances. But the individual whose uses of his property may be restricted is not the only person to be considered. The great majority, whose enjoyment of their property rights requires the imposition of restrictions upon the uses to which private property may be put, must also be taken into consideration."

Although this court has recently proclaimed that it is not a zoning commission and that all questions with respect to the wisdom or desirability of particular zoning restrictions must be addressed to the legislative bodies specifically created to determine them, (Evanston Best Co. v. Goodman, supra;Rothschild v. Hussey, supra;) it is manifest that the decision in the case at bar is a departure from this sound and salutary rule. In Morgan v. City of Chicago, 370 Ill. 347, we stated that a decision of the cause depended primarily on the facts which had been passed upon by five different agencies created for the purpose, namely, the board of appeals, a sub-committee of the city council, the council itself, the master in chancery, and the chancellor, pointing out that these agencies all concurred in a finding of ultimate fact. The principle followed in Morgan v.City of Chicago, supra, sustaining a variation in a zoning ordinance to permit the erection of a gasoline filling station in a neighborhood zoned for residence or apartment purposes, is applicable to the converse situation which obtains here where the board of appeals, the master and the chancellor have successively made a finding of ultimate fact in favor of the village's zoning restrictions. The master reached the proper conclusion that the reasonableness of the ordinance in controversy and of the advisability of the proposed change of zoning was a debatable question, "the latitude of which is considerably limited in scope, in view of the testimony submitted that the value of properties belonging to a large number of nearby residential owners would be substantially lessened if a change in zoning were made."

Plaintiffs owned a one-sixth interest in the property in controversy when the zoning ordinance of 1921 was passed. They made no objection and interposed no protest with respect to the zoning restrictions and continued to use their property for sixteen years thereafter until an application for rezoning was filed in 1937. The remaining outstanding title to the property was purchased in 1931. A that time plaintiffs obviously were aware of the zoning restrictions and of the surrounding physical conditions, including the non-conforming uses near their property. During this period of sixteen years, as previously stated, other persons moved into the neighborhood, bought land, built and improved residences in reliance upon the restrictions of the ordinance of 1921, which, it must be remembered, applied to their property as well as to property owned by plaintiffs.

For the foregoing reasons, among others, I am constrained to record my dissent.

Mr. JUSTICE JONES, also dissenting.