The opinion
Mr. PRESIDING JUSTICE BURMAN dissenting: I would affirm the decision of the trial court. In my opinion the plaintiff established by clear and convincing evidence that the ordinance in question is unconstitutional as applied to his property. Under the present zoning scheme there is no lawful use to which the vacant lot may be put. This is tantamount to a forfeiture of the land and, in effect, transfers it to public use without compensation.
To begin with, I believe that the majority is mistaken in implying that the plaintiff is in a position different from that of other types of property owners because he purchased the subject property at a tax sale and could have discovered the zoning restriction in advance had he chosen to. At this point in the development of our law it has become well established that one who purchases property in the face of a pre-existing zoning classification may attack the validity of the classification and reap the benefits of its removal. (Chicago Title & Trust Co. v. Village of Wilmette (1963), 27 Ill.2d 116 , 188 N.E.2d 33 ; People ex rel. Chicago Title & Trust Co, V. Reiter (1962), 25 Ill.2d 41 , 182 N.E.2d 680 ; Wolfe v. Village of Riverside (1965), 60 Ill.App.2d 164 , 208 N.E.2d 833 .) Therefore I believe that the plaintiff is in the same position as any other property owner and should be viewed accordingly.
The record reflects that the plaintiff obtained the subject property by paying delinquent real estate taxes in the amount of $178.37. Subsequently he also paid a special assessment of $700. In so doing he provided the municipality with revenue which it otherwise would not have received and returned the property to the active tax base of the community. I believe that such a practice is to be encouraged rather than condemned.
Secondly, I disagree that the plaintiff did not satisfy the requirements set forth in Mangel v. Village of Wilmette (1969), 115 Ill.App.2d 383 , 253 N.E.2d 9 , and other decisions. As the majority correctly points out, a party challenging a zoning ordinance must establish by clear and convincing evidence that the ordinance is confiscatory as applied to his property and thereafter prove by a preponderance of the evidence that his proposed use is reasonable. In the present case the plaintiff met this burden.
The plaintiff’s evidence clearly established that the subject property has dimensions of 25 feet by 126.1 feet and is vacant. It is situated between two larger parcels which are improved with single family dwellings. There has never been common ownership between the plaintiff’s property and either of the two adjacent properties. These conditions prevailed in 1960 when the zoning ordinance presently under attack was enacted. Thus it is apparent that neither the plaintiff nor his predecessor in interest ever had the opportunity to consolidate the subject property with one of the adjoining lots and thereby produce a parcel of sufficient size to allow construction of a residence that would comply with the ordinance. The effect of the ordinance was virtually to insure that the land would remain vacant. In essence the lot became dedicated to public use without compensation to its owner.
The majority points out that the plaintiff’s investment in the lot was approximately $900 and that he could have sold it to John Truss, one of the adjoining property owners for $1500. Therefore, the majority states, he could have realized a profit on his investment and thus failed to prove that the ordinance worked a confiscation of his property. In taking tins approach I believe that the majority is mistaken for two reasons.
The trial court after hearing the testimony of Mr. Truss and observing him on the witness stand concluded that he had no intention of buying the property from the plaintiff. As the court observed, the ordinance had the effect of insuring that the lot would remain vacant, and Truss "could have all the use of [the] property, the light and air and what have you so long as it remained vacant.” This is a reasonable conclusion supported by evidence in the record and it should not be overturned by this court.
Assuming arguendo that Trass would have been willing to purchase the property for $1500, the majority has taken an improper approach to determining the effect of the ordinance upon the plaintiff. It is of no consequence that the plaintiff may be able to sell the land for some $600 more than he paid for it. The test to be applied in such cases is whether the ordinance unreasonably diminishes the value of the plaintiff’s property when compared to the gain accruing to the public. La Salle National Bank v. County of Cook (1963), 28 Ill.2d 497 , 192 N.E.2d 909 ; Midland Electric Coal Corp. v. County of Knox (1953), 1 Ill.2d 200 , 115 N.E.2d 275 ; Wolfe v. Village of Riverside (1965), 60 Ill.App.2d 164 , 208 N.E.2d 833 .
In the present case the record reveals that without the restrictions imposed by the ordinance the plaintiffs property would have a value of approximately $4000. Several real estate experts estimated its value as such, and this was the price at which David Wexler, a contractor, had agreed to purchase the lot if the plaintiff succeeded in obtaining a building permit. As restricted by tire zoning ordinance the lot was worth little or nothing. Thus the effect of the ordinance was to diminish the value of the property to the plaintiff by approximately $4000.
Although the hardship imposed upon the plaintiff is substantial, the benefit accraiug to the public from the operation of the ordinance upon the subject property will be slight. David Wexler testified that it wa.s his intention to construct a single family residence on the property providing a building permit could be obtained. In its final order the court authorized construction of a bi-level residence with dimensions of 20 by 49 feet. The record establishes that this structure would extend no further back into the lot than the residences on either side. Its side walls would be 2% feet from each lot line, but would be 10% feet and 12% feet respectively from the side wall of each of the residences to the north and south. Thus the intervening side yards would be greater than the minimum of 10 feet (five feet from each lot line) allowed in the municipality.
It was established that nearly all of the lots in the vicinity of the plaintiff’s property contain single family residences. These are built on frontages of varying widths and are of the general type which the court authorized to be constructed on the plaintiff’s land. Therefore the use proposed by the plaintiff appears to be harmonious with the general character of the neighborhood and the corresponding benefit to the surrounding property owners of preventing it appears slight.
It may be that the other property owners deem it beneficial to maintain the plaintiff’s property as open land. If this be the case it is they, not the plaintiff, who should bear the cost. As stated in Tews v. Woolhiser (1933), 352 Ill. 212 , 185 N.E. 827 : “If it be of public benefit that property remain open and unused, then certainly the public, and not private individuals, should bear the cost of reasonable compensation for such property under the rules of law governing the condemnation of private property for public use. It lies not within the power of a municipality to so zone property as to render it worthless. Such is not zoning — it is confiscation.” I believe that the plaintiff presented clear and convincing evidence that the ordinance is confiscatory as applied to his property and that his proposed use is reasonable. The gain or hardship to nearby property owners is minimal and presents no justification for confiscation of the involved land. In light of this evidence the decision of the trial court is proper and should be affirmed.