Where the most that can be said is that the reasonableness of the ordinance is fairly debatable, the decision of the municipal authorities must be upheld, and the trial court is not justified in substituting its judgment for that of the municipal authorities. ( Cosmopolitan National Bank v. City of Chicago (1961), 22 Ill.2d 367, 372-73, 176 N.E.2d 795.) In cases of this type, it is natural for differences of opinion to exist, but it is for the court to determine whether those differences are reasonable and justifiable.
Where the most that can be said is that the reasonableness of the ordinance is fairly debatable, the decision of the municipal authorities must be upheld and the trial court is not justified in substituting its judgment for that of the municipal authorities. Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill.2d 367, 372, 176 N.E.2d 795 (1961). [4] Plaintiff contends that the present M1-1 zoning classification is not in conformity with existing uses in the area, and defendant asserts that it is. Illinois courts have consistently stated that the question whether or not a zoning classification is in conformity with surrounding existing uses and the zoning classification of nearby property is of paramount importance.
Except for this strip of land, which we do not find determinative of the character of either the general residential area or of the subject properties, the rest of the industrial uses to the north are within a well-defined area bounded by the railroad tracks on the west, by 94th Street on the south, and by Sangamon Street on the east, north to 92nd Street. Outside of these boundaries, the character of use is markedly single-family and low-density multiple-dwelling, and it is from these uses that the character of both the area and the subject properties is derived. Cosmopolitan Nat. Bank v. City of Chicago, 22 Ill.2d 367, 373, 176 N.E.2d 795; American Nat. Bank Trust Co. of Chicago v. City of Chicago, 30 Ill.2d 251, 253, 195 N.E.2d 627. Of further significance in determining the character of the area is the factor of newly constructed "R-2" and "R-3" housing in addition to the large number of such dwelling units already in existence.
[1] In City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784, the court upheld the validity of a zoning ordinance although there were 12 nonconforming grocery stores scattered throughout the district. In Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill.2d 367, 176 N.E.2d 795, the court upheld the validity of an R3 zone although adjacent to the subject property was a nonconforming garage. In Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill.2d 434, 185 N.E.2d 250, the court upheld the validity of the zoning ordinance although 31 nonconforming town houses were recently built within 600 feet of the subject property.
Plaintiffs further contend that such interpretation of the ordinances would have an adverse effect upon their property by virtue of the abutment on the lot line of a portion of defendants' west wall because the adequacy of light and air to ten windows in their property is impaired; essentially the nature of such argument is to challenge the reasonableness of the subject ordinances as applied to plaintiffs' property and constitutes a challenge of the validity of these ordinances. [2-4] Plaintiffs had the burden, therefore, to overcome the presumption of validity that attaches to duly enacted zoning and building ordinances by clear and affirmative evidence, that such ordinances as applied to their property were arbitrary, unreasonable and discriminatory or that they had no relation to the promotion of public health, safety, morals or welfare. Cosmopolitan Nat. Bank of Chicago v. Chicago, 22 Ill.2d 367, 372, 176 N.E.2d 795 (1961); Exchange Nat. Bank v. Village of Niles, 24 Ill.2d 144, 147, 180 N.E.2d 462 (1962); Bennett v. City of Chicago, 24 Ill.2d 270, 273, 181 N.E.2d 96 (1962). This burden plaintiffs failed to sustain.
The State's police power provides the sole justification for the enactment of zoning ordinances which limit a property owner's privilege and right to use his property as he desires. ( Pioneer Trust Savings Bank v. County of McHenry (1968), 41 Ill.2d 77; City of Loves Park v. Woodward Governor Co. (1958), 14 Ill.2d 623; HannifinCorp. v. City of Berwyn (1953), 1 Ill.2d 28.) Although a zoning ordinance is presumed valid, this presumption may be overcome by a property owner who shows by clear and convincing evidence that the ordinance as applied to him is arbitrary and unreasonable and bears no substantial relation to the public health, morals, safety or welfare. ( Westfield v. City of Chicago (1962), 26 Ill.2d 526; Cosmopolitan National Bank of Chicago v. City of Chicago (1961), 22 Ill.2d 367; La Salle National Bank of Chicago v. County of Cook (1957), 12 Ill.2d 40.) Stated somewhat differently, the presumption of validity of an ordinance is overcome when it is shown that there is no reasonable basis requiring the restriction imposed and the gain to the public is small as compared to the hardship imposed on the property owner. ( Pioneer Trust Savings Bank v. County of McHenry; Marquette National Bank v. County of Cook (1962), 24 Ill.2d 497.)
This court has recognized that minimum lot area limitations can be constitutionally imposed. Galpin v. Village of River Forest, 26 Ill.2d 515, 520; First National Bank of Skokie v. City of Chicago, 25 Ill.2d 366; Cosmopolitan National Bank of Chicago v. City of Chicago, 22 Ill.2d 367; Reitman v. Village of River Forest, 9 Ill.2d 448; see 95 A.L.R.2d 716, 720, 722-724 (1964); 94 A.L.R.2d 398, 402 (1964); 96 A.L.R.2d 1367, 1371 (1964). In Reitman v. Village of River Forest, 9 Ill.2d 448, the plaintiffs acquired a lot 42 feet wide and 185 feet deep. Their application for a building permit was rejected because the total area of the lot was 11% less than the minimum one-fifth of an acre which was required by ordinance in order to construct a single-family residence.
The general principle of limitation upon intensity of use as embodied in the Chicago zoning ordinance of 1957 was upheld by this court in a case quite similar to this. Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill.2d 367. It is clear that except for the commercial strip along the west side of Kedzie Avenue the general area around the subject property is low density residential in character.
Neither the facts nor the law in the present case are in substantial dispute. We have upheld the general principle of a limitation on the intensity of use as embodied in the Chicago zoning ordinance of 1957. ( Cosmopolitan National Bank v. City of Chicago, 22 Ill.2d 367.) We must, therefore, presume that the general legislative purpose of such requirements is valid, and bears a reasonable relation to the public health, safety and welfare.
To justify the validity of its effort to rezone plaintiffs' tract to a B2-1 classification, the city states that the 1957 comprehensive amendatory zoning ordinance introduced a new concept in the zoning of business districts, which it sees as bearing a substantial relation to the public health, safety and welfare, and insists that the rezoning is necessary to conform the property to this new concept. While we do indeed recognize and give effect to new zoning principles where constitutionally possible, (see: Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill.2d 367, 369,) the difficulty with affording much weight to the present contention lies in the fact that the comprehensive ordinance, which was passed only after a period of study and hearings in excess of one and one-half years, did not classify the property as B2-1, but permitted it to retain its B4-1 classification. While it must be agreed that the city is possessed of the power to amend the comprehensive ordinance of 1957, the power is not an arbitrary one, but one which may be exercised only when the public good demands or requires that amendment be made. ( Phipps v. City of Chicago, 339 Ill. 315, 327; Kennedy v. City of Evanston, 348 Ill. 426, 433.