{ "id": 5301868, "name": "Bertha Malman and Phyllis Breger, Executors of the Estate of Samuel A. Malman, Hubert G. Hansen and Marie Hansen, His Wife, Edward R. Brady and Lilly V. Brady, His Wife, Plaintiffs-Appellants, v. Village of Lincolnwood, a Municipal Corporation, Defendant-Appellee. Harold Weinstein, Intervenor", "name_abbreviation": "Malman v. Village of Lincolnwood", "decision_date": "1965-06-30", "docket_number": "Gen. No. 50,195", "first_page": "55", "last_page": "64", "citations": [ { "type": "official", "cite": "61 Ill. App. 2d 55" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "131 NE2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "7 Ill2d 589", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2713246 ], "year": 1956, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/7/0589-01" ] }, { "cite": "332 US 791", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 365249, 365026, 365420, 365461, 364985, 364858 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/us/332/0791-02", "/us/332/0791-04", "/us/332/0791-01", "/us/332/0791-03", "/us/332/0791-05", "/us/332/0791-06" ] }, { "cite": "73 NE2d 412", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "397 Ill 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2464503 ], "year": 1947, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill/397/0141-01" ] }, { "cite": "182 NE 762", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1932, "opinion_index": 0 }, { "cite": "350 Ill 104", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5303033 ], "year": 1932, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill/350/0104-01" ] }, { "cite": "153 NE2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "15 Ill2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2766732 ], "year": 1958, "pin_cites": [ { "page": "31, 32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0026-01" ] }, { "cite": "133 NE2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2715739 ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0104-01" ] }, { "cite": "195 NE2d 643", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826616 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0170-01" ] }, { "cite": "206 NE2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "56 Ill App2d 472", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5285551 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/56/0472-01" ] }, { "cite": "185 NE2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "25 Ill2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352519 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/25/0434-01" ] }, { "cite": "177 NE2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1961, "opinion_index": 0 }, { "cite": "22 Ill2d 485", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791012 ], "weight": 4, "year": 1961, "pin_cites": [ { "page": "494" }, { "page": "494" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0485-01" ] }, { "cite": "176 NE2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "22 Ill2d 396", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2787518 ], "year": 1961, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0396-01" ] }, { "cite": "118 NE2d 629", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "2 Ill App2d 80", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5124145 ], "year": 1954, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/2/0080-01" ] }, { "cite": "61 NE2d 562", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "390 Ill 412", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2509352 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/ill/390/0412-01" ] } ], "analysis": { "cardinality": 741, "char_count": 14210, "ocr_confidence": 0.531, "pagerank": { "raw": 7.27330006011632e-08, "percentile": 0.4332018970990201 }, "sha256": "289b188fc34539f89955b8feac82d0a960028866a6d3613e31df7acde7e10a87", "simhash": "1:c442b4d4a9243ca7", "word_count": 2342 }, "last_updated": "2023-07-14T20:34:57.681685+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN, P. J. and KLUCZYNSKI, J., concur." ], "parties": [ "Bertha Malman and Phyllis Breger, Executors of the Estate of Samuel A. Malman, Hubert G. Hansen and Marie Hansen, His Wife, Edward R. Brady and Lilly V. Brady, His Wife, Plaintiffs-Appellants, v. Village of Lincolnwood, a Municipal Corporation, Defendant-Appellee. Harold Weinstein, Intervenor." ], "opinions": [ { "text": "ME. JUSTICE MURPHY\ndelivered the opinion of the court.\nPlaintiffs seek a declaratory judgment that a Lincolnwood zoning ordinance is void as it applies to plaintiffs\u2019 premises. Plaintiffs\u2019 direct appeal to the Illinois Supreme Court from an order which dismissed their cause at the close of plaintiffs\u2019 case has been transferred to this court for disposition.\nThe sole question for review is the sufficiency of plaintiffs\u2019 evidence to establish a prima facie case for a declaratory judgment against the defendant Village of Lincolnwood. As said in Anderson v. Board of Education, 390 Ill 412, 61 NE2d 562 (1945), at p 428:\n\u201cA motion to find for the defendant in a trial before the court without a jury concerns solely the sufficiency of the evidence to sustain a finding against the defendant and, therefore, raises only a question of law. The allowance of the motion, however, is not an adjudication of the issues of fact.\u201d\nSee, also, Kovac v. Ducharme, 2 Ill App2d 80, 82, 118 NE2d 629 (1954).\nThe subject property is ten adjoining vacant lots in the Village of Lincolnwood, Illinois. The lots, numbered 1 to 10, are located along the north side of Touhy Avenue, between Tripp Avenue on the east and Kildare Avenue on the west, with an east-to-west Touhy frontage of 262 feet, extending 125 feet to a 16-foot wide public alley on the north, or rear property line, containing approximately 32,750 square feet.\nThe record reveals that the north side of Touhy Avenue, on which the subject property fronts, is developed as follows. The block directly west of the subject property is unimproved. To the west of that block, commencing at Lowell, is an automobile filling station, to the west of which is a card shop, followed by a flower shop at the corner of Touhy and Kostner Avenues. The block further west, between Kostner and Lincoln Avenues, is occupied by a large restaurant. Continuing westward along the north side of Touhy Avenue, west of Lincoln Avenue, is the Hyatt House, a motor hotel and restaurant, to the west of which is the E. I. DuPont DeNemours Photo Products Company, a one-story structure housing offices and storage facilities.\nTo the north of the subject property, across the 16-foot public alley, and for four blocks to the east of the subject property on the north side of Touhy Avenue, are single family residences.\nOn the south side of Touhy Avenue, directly across from the subject property, is the Ansco Photo Products Company, a large factory-type, ranch structure, housing office, storage, and distribution facilities. On the-east side of this structure are three loading docks. Directly west of the Ansco plant, on the south side of Touhy Avenue, is the Interstate Vending Company, an office and wholesale distribution facility. The next use to the west, running to Kostner Avenue, is a miniature golf course. On the southeast corn\u00e9r of Touhy and Lincoln Avenues is an automobile filling station. Continuing westward on the south side of Touhy Avenue, to the west of Lincoln Avenue, is a vacant lot followed by the Haynes Lithographing Company plant.\nOn the south side of Touhy Avenue, extending east from the Ansco plant, are single family residences.\nThe record indicates that Touhy Avenue is a \u201cheavy-traffic\u201d section line street, running- from Lake Michigan on the east, through the City of Chicago, through Lincolnwood, Niles, Park Ridge and Des Plaines, until it reaches its western terminus at O\u2019Hare International Airport. The evidence shows that the principal uses on Touhy Avenue are business or commercial, with some manufacturing, 75% of its total length devoted to these uses; 25% is residential, \u201cvery little\u201d of which is devoted to single family use.\nUnder the original zoning ordinance adopted by the Village of Lincolnwood in 1927, plaintiffs\u2019 property was within a \u201cC\u201d single family dwelling district. On December 20,1962, a comprehensive amendment to the zoning ordinance of the Village of Lincolnwood was adopted, and the subject property was placed in an R3 single family residence district, within which it is presently situated. (While this amendment was being considered, plaintiffs\u2019 petition for rezoning of their property from the \u201cC\u201d single family dwelling classification to the \u201cF\u201d commercial classification was pending. This petition was subsequently denied.)\nUnder the 1962 amendment, the vacant property fronting on the north side of Touhy Avenue, immediately to the west of the subject property, and the property for many blocks further west, is zoned \u201cBl Restricted Business District.\u201d The property immediately south, across Touhy Avenue, and for many blocks west, is also zoned \u201cBl.\u201d The property to the east and to the north of the subject property is zoned \u201cR3 Single Family Residence District.\u201d The plaintiffs\u2019 .business or commercial uses are not permitted in. the R3 district, but are permitted in a Bl district.\nThe only evidence offered and received in this case was that introduced by plaintiffs. Alan I. Rubens, a licensed real estate broker, manager and appraiser on the north side of Chicago and in the northern suburbs, testified f.or the plaintiffs, in substance, that the subject property and the block to the west are quite similar in character; that the highest and best use of the subject property would be a business use; that if the subject property were used for business purposes it would have a value of $450 per front foot (or $117,900), but if restricted to single family residence purposes, the value of the property would be $200 per front foot (or $52,400); and that a business use on the property would have no adverse effect on nearhy residential properties.\nAlso testifying for plaintiffs was George H. Kranenberg, a zoning and planning consultant who had participated in the practice of city planning at the Federal, State and local levels, serving as Deputy Director and as Technical Director of the Chicago Plan Commission. He was familiar with the area in which the subject property is located and had personally examined the land uses in the vicinity, having prepared a land use zoning map for plaintiffs (Plaintiffs\u2019 Exhibit 25). He testified that the subject property and the block directly to its west are of the same character. In his opinion, the highest and best use of the subject property would be for business-type uses. He testified: \u201cThe subject site is an integral part of this business, commercial, manufacturing complex that we find on Touhy Avenue, both on the north and south sides, running from Tripp on the east, down the length as it proceeds to the village limits .... To literally carve the subject site out of this complex and put it into a single family district is not rational planning or rational zoning as it relates to the uses. ... In my opinion, the subject property zoning should be for retail and business-type use.\u201d\nOn cross-examination, Kranenberg testified: \u201cThe subject property is identified with the commercial development across the street and not the single family development, because this block forms an integral part of the commercial business district to the south and to the west of the subject site. . . . This block is an integral part both by relationship of use and planning of the area to the west.\u201d\nEdward Brady, one of the plaintiffs, testified that in 1959 he began acquiring the various lots of the subject property which he now owns. He knew when he bought the property that he could not build his proposed use, a restaurant, on it, \u201cnot under the present zoning.\u201d\nOther evidence submitted by plaintiffs consisted of deeds, plats of survey, photographs, and use and zoning maps.\nAt the close of plaintiffs\u2019 case, defendant\u2019s and an intervenor\u2019s motion to dismiss the action was granted. From this judgment plaintiffs appeal.\nPlaintiffs contend that the evidence they introduced \u201cdissipated the presumptive validity of the Lincoln-wood Zoning Ordinance and that said evidence demonstrates that the ordinance bears no substantial relation to the public health, safety, morals and welfare . . . . There being no evidence offered in support of the Lineolnwood Zoning Ordinance, the trial court erred in dismissing the action.\u201d\nPlaintiffs pray, alternatively, that the judgment order be reversed and relief granted plaintiffs in accordance with the prayer of their amended complaint, or that the judgment be reversed and the cause remanded with instructions to vacate the judgment order, to reinstate plaintiffs\u2019 case, to allow plaintiffs\u2019 evidence to stand, and to proceed with the trial of this cause.\nThe defendant, Village of Lineolnwood, contends that \u201c[t]he Court below properly held that the plaintiffs had failed to prove that the ordinance in question was arbitrary and capricious,\u201d citing, among other, Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 401, 176 NE2d 771 (1961), and Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328 (1961), and that \u201ctaking the plaintiffs\u2019 proofs at full value and all reasonable inferences from them, at most it shows that the action of the legislative body was debatable,\u201d citing Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill2d 434, 185 NE2d 250 (1962).\nAs was said in Kanefield v. Village of Skokie, 56 Ill App2d 472, 206 NE2d 447 (1965), at p 476:\n\u201cThe rules which govern the validity of zoning ordinances are clearly settled. Zoning ordinances are presumed to be valid. Those who challenge the validity of a zoning ordinance must show by clear and convincing evidence that the ordinance is arbitrary, unreasonable and that it does not bear a reasonable relation to the public health, safety, comfort or welfare. \"Where it appears from all the evidence that room exists for a difference of opinion concerning the reasonableness of the zoning classification, the legislative judgment must be conclusive. Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643. Krom v. City of Elmhurst, 8 Ill2d 104, 133 NE2d 1.\u201d\nAs was said in Hartung v. Village of Skokie, 22 Ill2d 485, 494, 177 NE2d 328, cited by both parties:\n\u201cEqually well established are these significant factors in determining the validity of a given zoning of limitation: the character of the neighborhood; the extent to which the value of the subject property is diminished by the limitations; the extent to which the removal of the limitation would depreciate the value of other property in the area; the suitability of the property for the zoned purposes; existing uses and zoning of nearby property; the length of time under the existing zoning that the property has remained unimproved, considered in the context of land development in the area; the relative gain to the public as compared to the hardship imposed on the individual property owner; and the extent to which the ordinance promotes the health, safety, morals or general welfare of the public. ... No one factor is controlling but each must receive due consideration. . . .\u201d\nWe believe that the plaintiffs in this case have sustained their burden of producing the \u201cclear and convincing\u201d evidence necessary to establish, as a prima facie matter, the invalidity of the ordinance in question as .it applies to the subject property. The plaintiffs introduced evidence as to the character of the neighborhood, the existing uses and zoning of nearby property, the effect of the present zoning on the subject property\u2019s value, and as to the other \u201csignificant factors\u201d employed in determining the validity of a zoning restriction. (Hartung v. Village of Skokie, 22 Ill2d 485, 494, 177 NE2d 328.) This evidence demonstrates, in the absence of contrary proof, that the relative gain to the public is slight as compared to the hardship imposed on the plaintiffs, the individual property owners, and also demonstrates, in the absence of contrary proof, that the ordinance, as it applies to the subject property, does not substantially promote the health, safety, morals or general welfare of the public. (Hartung v. Village of Skokie, 22 Ill2d 485, 494, 177 NE2d 328; First Nat. Bank & Trust. Co. of Evanston v. County of Cook, 15 Ill2d 26, 31, 32, 153 NE2d 545 (1958).) Although the defendant availed itself of the opportunity of cross-examination of plaintiffs\u2019 witnesses, it did not introduce any evidence to controvert that of the plaintiffs.\nWe hold, therefore, as a matter of law, that it was improper in this case to dismiss plaintiffs\u2019 action after hearing their evidence only. Consequently, the trial court\u2019s judgment must be reversed and the cause remanded for further proceedings. John Deere Plow Co. of Moline v. Carmer, 350 Ill 104, 108, 182 NE 762 (1932); Reiter v. Ill. Nat. Cas. Co., 397 Ill 141, 152, 73 NE2d 412 (1947), cert den 332 US 791; Wiedrich v. Howard, 7 Ill2d 589, 591, 131 NE2d 508 (1956). As is stated in 3 ILP, Appeal and Error, \u00a7 998, p 249:\n\u201cOn remand after reversal of a judgment or decree for defendant on his motion at the close of plaintiff\u2019s case for a finding in his favor or for a dismissal, defendant is entitled to offer testimony in defense of the action.\u201d\nSee, also, 3 ILP, Appeal and Error, \u00a7 955, p 200 et seq.; Ill Rev Stats c 110, \u00a7 64(4).\nWe have not commented extensively on plaintiffs\u2019 evidence so that the trial court\u2019s determination of the merits of this cause not he restricted by our view of the factual circumstances from a record in which only the plaintiffs\u2019 evidence appears.\nFor the reasons given, the judgment of the trial court is reversed, and the cause is remanded to the trial court \u201cwith directions to proceed as though the motion had been denied by the trial court or waived.\u201d\nReversed and remanded with directions.\nBURMAN, P. J. and KLUCZYNSKI, J., concur.", "type": "majority", "author": "ME. JUSTICE MURPHY" } ], "attorneys": [ "Maurice J. Nathanson and Joseph J. Witry, of Chicago (Allen Hartman, of counsel), for appellants.", "Louis Ancel, of Chicago (Ancel, Stonesifer & Eiley, Francis X. Eiley, of counsel), for appellee." ], "corrections": "", "head_matter": "Bertha Malman and Phyllis Breger, Executors of the Estate of Samuel A. Malman, Hubert G. Hansen and Marie Hansen, His Wife, Edward R. Brady and Lilly V. Brady, His Wife, Plaintiffs-Appellants, v. Village of Lincolnwood, a Municipal Corporation, Defendant-Appellee. Harold Weinstein, Intervenor.\nGen. No. 50,195.\nFirst District, First Division.\nJune 30, 1965.\nMaurice J. Nathanson and Joseph J. Witry, of Chicago (Allen Hartman, of counsel), for appellants.\nLouis Ancel, of Chicago (Ancel, Stonesifer & Eiley, Francis X. Eiley, of counsel), for appellee." }, "file_name": "0055-01", "first_page_order": 67, "last_page_order": 76 }