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Oak Park Nat. Bank v. Vil. of Norridge

MAY 17, 1971.

OAK PARK NATIONAL BANK, AS TRUSTEE, PLAINTIFF-APPELLEE,

v.

VILLAGE OF NORRIDGE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 8, 1971.

This was an action brought by plaintiff, Oak Park National Bank, as Trustee under a land trust, seeking a declaratory judgment that the zoning ordinance of the defendant Village of Norridge was invalid as applied to property in the Village to which plaintiff holds title. After a trial the court entered a "final judgment order" enjoining the Village from enforcing its ordinance to prevent the use of the property as proposed by the plaintiff. Defendant appeals, contending that the evidence adduced by the plaintiff failed to overcome the presumption of validity attending the Village's zoning ordinance and further that plaintiff failed to show that the Village's ordinance was unreasonable and therefore invalid.

The subject property is situated at the northeast corner of Montrose Avenue and Cumberland Avenue in the Village of Norridge. The property is irregular in shape, has a frontage along Montrose Avenue of 572 feet, a frontage of 304 feet along Cumberland Avenue, and contains approximately 4.39 acres. The property lies within an area zoned R-1 single family purposes but is presently improved with a horse riding stable, used for the boarding and exercising of horses, which was erected prior to the incorporation of the Village in 1948 and which presently exists as a valid nonconforming use.

The beneficial owner of the property is Larry J. Pontarelli and Sons, Inc., a construction firm, which acquired the property in 1966. Pontarelli desires to construct a multiple-family development on the property consisting of three 10-story buildings, each building having a height of 95 feet with an additional 9 feet allocated for an elevator penthouse. All three buildings combined would contain a total of 72 single-bedroom units and 144 two-bedroom units. Also proposed for the development is a swimming pool and a parking lot to accommodate 324 automobiles.

As stated, the subject property is zoned R-1 single family purposes. Under such zoning classification in the Village the following uses are permitted: single family dwelling units, public libraries, churches and temples, private and public schools and colleges, public parks, police and fire stations, home occupations and accessory buildings. There is a height limitation of 26 feet, except that public buildings, churches, and the like, may be erected to a height not exceeding 60 feet provided they are set back from the property line one foot for each additional foot they are erected over 26 feet. The minimum lot size in the R-1 district is 5,000 square feet with a minimum lot width of 40 feet. Multiple dwellings are permitted in the Village's R-3 zoning districts, but are restricted to buildings 26 feet in height, or two stories.

Pontarelli applied to the Village for a re-zoning of the property from R-1 to R-3, together with an application for variations from the height and density restrictions connected with the Village's R-3 zoning in order to construct the proposed development. After a public hearing the Zoning Board of Appeals of the Village recommended to the President and the Board of Trustees of the Village that the request be denied, and the Village Board concurred. This action was thereupon instituted to enjoin the Village from enforcing its ordinance against the plaintiff.

Cumberland Avenue is a heavily traveled four-lane highway running in a north and south direction; a concrete divider separates the northbound traffic and southbound traffic. At the location of the subject property Cumberland Avenue is the corporate dividing line between the Village on the east and the City of Chicago on the west. Montrose Avenue is a two-lane highway running east and west, except that at a point approximately 750 feet to the east and to the west of the intersection with Cumberland Avenue, Montrose Avenue widens to a four-lane highway. Montrose Avenue at the location of the subject property is also the corporate dividing line between the Village on the north and forest preserve grounds lying within the corporate limits of the City of Chicago to the south and southwest. Cumberland Avenue connects with the Kennedy Expressway three miles to the north of the Montrose Avenue intersection.

The forest preserve area in Chicago to the south of Montrose Avenue, both to the east and to the west of Cumberland Avenue, is zoned single family residence, although it is improved with some public recreational facilities. Immediately to the west of the subject property in the City of Chicago, on the northwest corner of Montrose and Cumberland Avenues, lies a vacant tract the approximate size as the subject property; the area in which the vacant tract lies is zoned single family residence and is generally improved as such. Adjoining the subject property on the lower portion of its eastern boundary is a Commonwealth Edison Company transformer station, and immediately east of the subject property are four vacant lots zoned single family purposes.

Immediately north of the subject property are single family residences backing on the subject property. To the north of that area the land is developed single family residence for several blocks. Within that area is another riding stable, a real estate sales office and a bowling alley. To the north of the R-1 district in which the subject property lies is a general business district. To the west of the subject property, about two and one-half blocks to the north and in the City of Chicago, a 200-unit, five story apartment building was under construction at the time of trial.

At trial Larry Pontarelli testified that his company was the beneficial owner of the subject property and that he had been engaged in the construction business since 1929. He testified that he had constructed numerous residential units in and around the Village, and that he constructed many of the single family residences within the zoning district in which the subject property lies. He testified that the subject property was not suitable for a single family development due to the existence of Cumberland Avenue, a busy thoroughfare. Pontarelli testified that he did not purchase the property within the intention of developing it as a single family development, and that upon his purchase of the property he canceled the lease running to the stable operator.

John Heinrich testified for the plaintiff that he was an architect and was retained by Pontarelli to prepare plans for the proposed development of the subject property. He estimated the cost of construction of the apartment complex to be between five and six million dollars. Heinrich testified that he took into consideration in the drafting of his plans the surrounding land uses, the location of the Kennedy Expressway, and the nature of the traffic in the area; he felt that the property was suitable for "medium-size" construction. He also testified that he studied the shadows which would be cast by the proposed buildings and determined that only one building would cast shadows on a nearby garage during the spring and fall months of the year between the hours of 10:00 A.M. and 2:00 P.M.; during the winter months shadows would be cast on residences to the north of the proposed buildings about one and one-half hours of the day.

Heinrich testified that there would be two driveways from the parking lot area running on to Montrose Avenue and that there would be no driveways constructed on to Cumberland Avenue nor any of the other surrounding streets. He stated that 33 percent of the total subject property would be covered by the buildings and the parking area. He also testified that the proposed construction would have no effect on the value of the single family homes in the area. Heinrich stated that the impact upon the local schools would be only five children per one hundred apartment units, since the construction would be most appealable to young couples having either no children or young children and to persons whose children have grown. He also testified that the development of business uses to the north of the subject property will create a demand for such housing in the area.

Richard Manke testified for the plaintiff that he was a real estate broker, appraiser and developer. In his opinion the highest and best use of the subject property was as the use proposed by the plaintiff, a medium-sized apartment dwelling. His opinion was based upon the busy intersection at Cumberland and Montrose Avenues; the changes in the property to the north of the subject property, and to the west in Chicago; the stable on the property being a legal non-conforming use, and the Village's zoning ordinance not containing an amortization clause; the forest preserve to the south and southwest and a cemetery to the southeast of the property, giving rise to an extremely low density of population in the "overall area"; and the fact that a cul-de-sac would have to be built if the property were developed single family residence. The witness placed the value of the real estate under its present use at $400,000; as a single family residence ...


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