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Bauske v. City of Des Plaines

OPINION FILED NOVEMBER 20, 1957.

OTTO A. BAUSKE ET AL., APPELLEES,

v.

THE CITY OF DES PLAINES, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY M. FISHER, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 20, 1958.

The defendant, city of Des Plaines, appeals directly to this court from a declaratory judgment of the circuit court of Cook County declaring void the city's zoning ordinance classifying plaintiffs' property for residential use. Two cases were originally filed by the separate plaintiffs, owners of adjacent and ajoining tracts of real estate. The cases were consolidated in the trial court below and referred to a master in chancery for hearing. The master heard the evidence and reported his findings in favor of the plaintiffs and recommended the entry of a judgment for plaintiffs, after overruling objections to his report. Such objections stood as exceptions, were heard by the trial court, and were overruled. The master's report was approved, and judgment entered in both cases in accord therewith.

The trial judge certified that the cause involves the validity of a municipal ordinance and that, in his opinion, the public interest requires an appeal directly to this court. We entertain this direct appeal under section 75(1)(c) of the Civil Practice Act, as amended.

The record is voluminous. In addition to many lay and expert witnesses, the record includes exhibits consisting of aerial and ground photographs, land-use and zoning maps and many other visual aids in the form of graphs, charts, and projections. The master in chancery in his report, consisting of 91 pages, required almost 50 pages to abstract the evidence heard. A summary will suffice here.

Plaintiffs own approximately 138 acres of land. It is situated generally in the southernmost portion of the city of Des Plaines. It is bordered on the north by Howard Avenue, and on the south by Touhy Avenue. Touhy Avenue is a two-lane, paved, main county highway. The greater portion of property is bordered on the west by Mannheim Road. Mannheim Road is a heavily-traveled, four-lane, Federal through highway. A segment of the subject property is located west of Mannheim Road and south of Howard Avenue. The subject property is traversed from north to south by the main line of the Wisconsin Central Railroad, commonly known as the Soo Line.

For more than 25 years and up to the present time, the subject property has been used by the plaintiffs in the business of growing, producing, packaging and marketing flowers and plants. Its facilities consist of 25 large greenhouses covering 17 acres. Attendant thereto are large boiler plants equipped with chimneys 125 feet and 180 feet in height. The plant facilities are such as to require servicing by the Soo Line Railroad. To meet this need, the railroad has extended spur and switch tracks from its main line to the plaintiffs' plants to handle plaintiffs' volume of freight. Portions of the plaintiffs' property not actually occupied by productive facilities are used by the plaintiffs for the storage of quantities of coal, manure, water and the like. A large portion of the subject property is vacant and unoccupied, and for at least 40 years has not been used. These unused portions tend to be low and swampy. Aside from those land improvements serving the greenhouse area, the property is completely unimproved.

The adjacent property running north from the subject property is largely residential. It is built up with duplexes and single-family residences, which would be generally classified as moderately priced. Those dwellings which face the property immediately on the north were constructed during and after World War II as emergency shelter, were intended as temporary construction, and sold for $6,500 per unit. Some of these dwellings were modernized as to plumbing and heating, though all of them are of inferior construction. Also immediately north of the subject property is a small area which is zoned as commercial. At the southeast corner of Howard Avenue and Mannheim Road is a public service substation. Across the railroad and highway to the northwest from the subject property is an elevated water storage tank belonging to the city of Des Plaines, and a company which manufactures and repairs saws.

Northeast of the property is a scattered residential area, some of which is vacant. The defendant adduced testimony of a proposed building development, on part of the vacant area, to contain 55 single-family residences to cost from $25,000 to $35,000.

Due east from the property in question, running for a distance of about one-half mile, are several streets improved by new residence buildings in the moderate price class. To the southeast of the property is scattered residential development.

There is almost no residential development adjacent to Touhy Avenue, which borders the subject property on the south. There are but six houses on the south side of Touhy Avenue across from the subject property. The evidence indicates that in this area the land is generally not well suited for residential development, owing to the fact that the water level is but three feet from the surface. But farther south therefrom exists an extensive residential development of moderately-priced, single-family dwellings. A gasoline service station is located at the southwest corner of Touhy Avenue and Mannheim Road. Immediately south of the station is a vacant 33-acre tract. West of Mannheim, along Touhy Avenue, the land is vacant save for an occasional dwelling. About one-half mile west of the intersection of Mannheim Road and Touhy Avenue is an academy for girls.

That area adjacent to the premises in question which is north of Touhy Avenue and west of Mannheim Road has been vacant and unoccupied for many years. The defendant produced testimony that a development for 55 single-family residences was proposed to occupy about 40 acres of that land, the residences to be priced from $21,000 up.

O'Hare International Airport, as it is presently expanded, almost adjoins the subject property at the southeast corner. Its runways are less than a mile away from the property. As a result, planes must fly directly over the subject property at low altitudes in taking off and landing from the field.

The defendant city is a residential suburb located northwest of the city of Chicago. At the present time, 5.39 per cent of its area is zoned for industrial purposes. A new city plan, approved by the city planner but not officially adopted by the city, discloses a proposal to annex territory south and west of the present residential area, and to allocate therefrom 13.6 per cent to industrial uses. Those proposed additional industrial areas are beyond the present city limits. Under the existing ...


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