dissenting :
I am unable to agree with the majority of the Court that the R-l, single family zoning classification applicable to the subject property, which property was used for a single family residence by the plaintiffs between 1940 and 1962, should now be declared void and that the plaintiffs should be permitted to erect a high rise building on the premises. Such reclassification is, in my opinion, unreasonable, unjust and discriminatory to all the other single residence property owners in the same situation as the plaintiffs.
The rules governing our disposition of this case are well settled. Zoning ordinances are presumed to be valid. Whoever attacks such ordinances has the burden of overcoming the presumption by proving with clear and convincing evidence that, as applied to him, it is unreasonable and without substantial relation to the public health, morals, safety and welfare. Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96; Jans v. City of Evanston, 52 Ill App2d 61, 201 NE 2d 663. In cases where there is room 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; Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201; Minkus v. Pond, 326 Ill 467, 158 NE 121; Jans v. City of Evanston, 52 Ill App2d 61, 201 NE2d 663.
Underlying these rules are sound concepts of the proper relation between the courts and the municipal legislative bodies which were well expressed in the Minkus case cited above; there the Supreme Court said: “It is primarily the province of the municipal body to which the zoning function is committed, to draw the line of demarcation as to the use and purpose to which property shall be assigned or placed, and it is neither the province nor the duty of courts to interfere with the discretion with which such bodies are invested, in the absence of a clear showing of an abuse of that discretion.” (326 111 at page 480.)
I believe that the plaintiffs have not met their burden of proof by clear and convincing evidence and that there is clearly room for differences of opinion concerning the reasonableness of the R-l zoning classification. The record indicates that the subject premises is a part of a single family residential enclave located between a high-rise, high density residential development on the east and a commercial area on the west. The 500 block of Hawthorne, on which the subject premises is located, runs between Lake Shore Drive and Broadway and is zoned R—1 on both the north and south sides of the street. A small western portion of the north side of the street which is contiguous to a B 4-4 area on Broadway was rezoned R-7 to allow the construction of two townhouses containing only eight dwelling units, rising only thirty feet above ground and beautifully landscaped with patio arrangements. There is only one non-conforming use on the block: a high-rise apartment building to be built fronting on Lake Shore Drive which will extend only fifty feet into the block. All the other structures are single family residences and which were being so used at the time plaintiffs purchased the subject premises.
The plaintiffs argne that the present classification is unreasonable because it prevents them from constructing the proposed high-rise apartment building at a substantial economic gain to themselves and at the same time the classification does not bear any relation to the public welfare. I cannot agree that the present classification bears no relation to the public welfare or, at the very least, that on the evidence in the record there can be no room for difference of opinion on this matter. The record contains equally believable expert testimony for and against the proposition that, should the plaintiffs’ proposed building be built, the value for residential use of the other property in the enclave would fall. Moreover the defendant’s city planner testified without contradiction that from his knowledge of experiences in Chicago and other cities he believed that the residential character of the enclave may be lost within a decade if the plaintiffs’ building is constructed. Clearly the public welfare is involved should the construction of the plaintiffs’ high-rise, high density apartment building cause depreciation in the residential land values on Hawthorne. Moreover, should construction of this building lead to destruction of this enclave, a positive public benefit may be lost in that the enclave provides a charming, quiet area within a predominantly high density residential complex. Where most of the single family residential owners desire to maintain their property as such, it is a public benefit to preserve these quiet residential enclaves as a contrast to the tendency toward uniformity, impersonality and intensity of high-rise apartment development.
It is clear that the facts that the plaintiffs will be unable to reap a substantial return from their property, unless the zoning classification is changed, and that their property would be worth more if greater intensity of development were permitted, are not alone sufficient to invalidate the ordinance. LaSalle Nat. Bank v. City of Chicago, 27 Ill2d 278, 189 NE 2d 273. Such facts are not themselves determinative. Hoffmann v. City of Waukegan, 51 Ill App2d 241, 201 NE2d 177; citing Wehrmeister v. County of Du Page, 10 Ill2d 604, 141 NE2d 26, and First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 130 NE2d 267.
For these reasons, I believe that there is room for a difference of opinion concerning whether the R-l classification of the plaintiffs’ property is reasonable. In such a case, I do not believe this Court should substitute its judgment for that of the municipal authorities.