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Moeller v. City of Moline

JULY 16, 1964.

ALTON W. MOELLER, APPELLEE,

v.

CITY OF MOLINE, A MUNICIPAL CORPORATION, APPELLANT.



Appeal from the Circuit Court of Rock Island County; the Hon. GEORGE O. HEBEL, Judge, presiding. Reversed and remanded.

ROETH, J.

This is an action for declaratory judgment brought by the plaintiff, Alton W. Moeller, against the City of Moline seeking a declaration that the R-4 two and single family residential zoning classification of his property was void and invalid, and seeking a declaration that he has the right to use the property for a truck terminal under an M-1 industrial classification. The trial court granted the relief requested, and entered the declaratory judgment from which this appeal is taken by the defendant, City of Moline.

The plaintiff's property is a tract of land in the City of Moline approximately 115 feet wide fronting on River Drive to the north, and with a depth of 225 feet on the east side, and 200 feet on the west. River Drive is as its name connotes a drive on the bank of the Mississippi River but is one of the ten most heavily traveled streets in the City of Moline with a 1960 average daily traffic count of 7,000 to 8,000 vehicles per day, although a number of other streets in the city have heavier traffic counts. River Drive is only 25 feet wide from curb to curb.

Immediately abutting the plaintiff's property to the rear, or south, is a railroad embankment, then a 200 to 250 foot railroad right-of-way, upon which eleven trains of the Rock Island Railroad run daily. Directly across River Drive to the north of plaintiff's property is the Mississippi River; the view of the river from plaintiff's is appropriately described as a fine view.

The plaintiff's property is located near the center of a compact, contiguous R-4 two and single family residential district extending for six blocks east and west along the River Drive north of the railroad right-of-way between 39th and 45th Streets. The plaintiff's property, and all others located in the R-4 zone, have a fine view of the river. The entire six-block area is built up solidly residential, with very few vacant lots. The homes in this area are generally well maintained, and with few exceptions, are well set back from the road.

River Drive west of 34th Street is primarily industrial, of all types. Commencing at 34th Street and moving east toward the R-4 area in question are the following (situated in an M-2 industrially zoned district): Western Transportation Company, a truck terminal, is located on 34th Street to the south of River Drive; in the 3500 block is Sportland Marine; in the 3600 block is a septic tank and concrete step company; 3700 block, a die making company, a TV service and a grinding service; 3800 block, a die casting company and a foundry; 3900 block, the Naval Armory; and then the subject six-block area. The Armory is 1050 to 1200 feet from the plaintiff's property and is separated from it by 13 residences.

Within the R-4 area there are six residences east of the plaintiff's property along River Drive covering a distance of approximately 750 feet — then proceeding east along River Drive, in an M-2 zoned district, are located the following; Harris Business Forms office; Axel Carlson Construction Company; several brick residences; Lincoln-Dixie Freight Company, a truck terminal, which is four or five blocks east of the plaintiff's property; several more residences; then a concrete step company; Henry Engineering Company; another trucking company; a fish market; Reed Fire Brick Company; a distributing plant across the railroad tracks; and, finally, at the corner of 55th Street, a motor cargo truck terminal.

The plaintiff's property is presently unoccupied, but has upon it at the rear a very small old house and shed. The house was last occupied about eight years ago.

Moline's first zoning ordinance was adopted in 1929, and under it the R-4 area in question was zoned industrial, as was the entire Moline river front. Under this zoning, the entire river front to the east and west of the six block area in question was developed industrially, but the area in question did not so develop, but rather developed residentially even though it was zoned industrial for 29 years. In 1958, as a result of two or three years of intensive study by professional engineers and a citizens advisory committee numbering about 100 persons, a master plan was adopted for the city. Out of this grew a new comprehensive zoning ordinance which was adopted by the City of Moline in 1958, and under this ordinance the six-block area was zoned R-4, and has remained so zoned up to this day.

The plaintiff bought the property in December, 1961, while it was so zoned and was aware of the residential restriction when he bought it.

The closest commercial establishment to the west of the plaintiff's property, the Armory, is 1050 to 1200 feet away. The closest such establishment to the east, the Harris Business Forms office is 750 feet away. No commercial or industrial establishment east or west along River Drive can even be seen from the plaintiff's property. The Mississippi River abuts the entire area to the north. To the south across the railroad right-of-way from the plaintiff's property is an industrially zoned area, but further to the east and across the right-of-way is a continuation of the R-4 zoning which adjoins the six-block area in question, and which is developed residentially. There is no means of access from the plaintiff's property to the industrially zoned property to the south. The closest railroad crossings are at 41st Street, 3 1/2 blocks west, or 55th Street, 10 1/2 blocks east.

The closest commercial or industrial establishment to the south is the Sandburg Foundry, which is straight south of the plaintiff's property and 20 to 30 feet south of the south line of the railroad right-of-way and thus some 225 to 280 feet separated from the nearest part of the plaintiff's property. East of the Sandburg Foundry is the Moline Forge Plant, located between 41st and 42nd Streets, and between Second and Fourth Avenues, and the closest part of the forge building to the plaintiff's property is some 250 to 300 feet away. The Lenox Photo Art Development building is located east of the Sandburg Foundry, and is about the same distance from the plaintiff's property as the forge building. These are the closest commercial or industrial establishments to any part of the plaintiff's property. They are all separated from plaintiff's property by the railroad right-of-way, across which there is no access.

In the R-4 area in question, there are six homes east of the plaintiff's property, and 13 homes west of it, with no commercial establishments or nonconforming uses whatever in the six-block area.

The homes in the R-4 area adjacent to plaintiff's property are not run down, but are well kept and well maintained, and none are vacant. In the immediate area, the following improvements have been made in the last two years: The residence six doors east of the plaintiff had new siding added; five doors east, a new family room and new siding; four doors east, modernization and remodeling of the interior, complete wiring job, new roof, and a new garage added; three doors east, remodeled front porch, new 3-car garage added; two doors east, rewired and new roof; next door to the east, a 15 x 28 foot addition with basement. Next door to the west, remodeled interior; two doors west, new home completed and first occupied only 30 to 40 days prior to the trial in this cause; three doors west, the former home ...


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