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Bass v. City of Joliet

MARCH 30, 1973.

MORTON BASS ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF JOLIET, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. JOHN VERKLAN, Judge, presiding.

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

Rehearing denied April 25, 1973.

Defendant, the City of Joliet, here appeals from a decree of the circuit court of Will County, finding the City's zoning ordinance to be invalid in its application to property owned by plaintiffs, and also restraining defendant from interfering with the use of the property as a medical clinic. It is contended that plaintiffs were not entitled to judicial relief because they had not exhausted their administrative remedies, and, alternatively, that the decree should be reversed because plaintiffs failed to meet the burden of proof requirements imposed upon one who seeks to overcome the presumptive validity of a zoning ordinance.

The property in question consists of 12 vacant, platted lots, each having dimensions of approximately 44 X 140 feet and in total consisting of about 1.7 acres of land. Generally speaking, they are located in the easternmost part of a block bounded on the south by Glenwood Avenue; on the west by Springfield Avenue; on the north by West Acres Road; and on the east by Madison Street. Glenwood and Springfield are major traffic arteries. The lots are so situated that six of them front on Glenwood for a total distance of 266 feet, while the other six front on West Acres for the same distance. The east boundary lines of the two most easterly lots run parallel with Madison for a distance of 280.5 feet. Again speaking generally, land in the immediate area to the north of Glenwood has a residential classification of one sort or another, while the land immediately south of Glenwood is zoned R-B, a classification which permits business and professional offices and multiple family residential dwellings.

To the west of plaintiffs' lots, and within the block in which they are located, the land fronting on West Acres is improved with single family dwellings, while the land fronting on Glenwood, between the lots and Springfield Avenue, is improved with multiple family, town house dwellings. On the northwest corner of the Glenwood-Springfield intersection, a block west of plaintiffs' lots, there is a medical clinic which accommodates seven doctors, but the remainder of the immediate area to the west and north of the intersection is improved with single family dwellings. West of the intersection along the south side of Glenwood are several businesses, including a gasoline station and shopping center. The area to the west of plaintiffs' land, across West Acres, and the area to the east, across Madison, are improved with single family dwellings for the most part.

St. Joseph Hospital and its appurtenant power plant and parking facilities are located on the south side of Glenwood directly across from plaintiffs' lots. The hospital, housed in a nine-story structure, is a full service general hospital wherein various specialized diagnostic and treatment centers are also located, and which has teaching programs for nurses and high school and junior college students. It has 463 beds, admits from 20,000 to 21,000 in-patients a year and sees about 77,000 outpatients annually, 36,000 of which are emergency room patients. On the staff are 160 doctors and 28 dentists. There are 1200 employees, of which 825 are full time. It was estimated that about 2000 persons visit hospital patients in the course of a week. All told, counting doctors, nurses, students, patients, visitors and deliverymen, some 3500 people come to the hospital each day. Under plans which were to be put into operation shortly after this case was tried, a basement and four-story addition is being constructed which will increase patient capacity by 100 beds. This expansion will require a minimum of 200 additional employees, will generate an additional 25 to 30 nursing students and will increase the number of persons coming to the hospital by approximately 400 to 500 per day. Private and public transportation to the hospital and its parking facilities are oriented to Glenwood, and the entrance to the emergency room is also off Glenwood.

The hospital property is zoned R-B, as is the land located to the south, east and west of plaintiffs' property. Along the south side of Glenwood, east of Madison, there are three medical clinics in the nearby vicinity, one of which is on the southeast corner of the Glenwood-Madison intersection diagonally across from plaintiffs' property. Also, east of the hospital is a high school. West of the hospital, along the south side of Glenwood for a distance of half-mile are uses by various businesses and institutions. South and east of the hospital, along Madison, are two nursing homes, two high-rise apartment buildings and a veterinary clinic.

While we do not find the exact date in the record, it appears that plaintiffs' lots were zoned R-2 in 1958 and that such classification was continued by a revised ordinance enacted in 1968. Under such classification, both before and after the revision of the ordinance, permissible uses are: one family residences; general education or religious schools; churches and parish houses; social and recreational facilities; public parks and playgrounds; public libraries and the public cultural uses; essential public services such as water towers; and farms, private stables, nurseries; truck gardens or greenhouses.

Plaintiffs purchased their lots from an estate in 1966 at a cost of $20,000 and in 1967 sought to have the land rezoned to a classification which would permit its use for multiple family town houses. The application was denied. Several years thereafter, plaintiffs entered into an option to sell the property to a group of orthopedic surgeons, subject to suitable rezoning which would permit its use for a medical clinic. As is frequently the case, the burden of procuring the rezoning was placed upon the optionees. Accordingly, on November 2, 1971, an application was filed in the names of the plaintiffs for rezoning to an R-B (medical complex) classification. After a public hearing on December 2, 1971, the Plan Commission recommended to the city council that the application be denied. The council did not act on the recommendation, but, instead, recommended that the commission be petitioned to reconsider the application under the City's Planned Unit Development ordinance. This suggestion was followed and such a petition was filed in plaintiffs' behalf on December 23, 1971. A second public hearing was held on March 2, 1972, at which time the optionees presented their site plan, but the commission again recommended that the application be denied on the ground that plaintiffs' tract (1.7 acres) lacked the five or more acres necessary to bring the project within the purview of the planned development ordinance. Completing the dilatory circuitry of negative action, the council, on April 11, 1971, voted to concur in the recommendation of the Commission. The action of plaintiffs for declaratory and injunctive relief from which this appeal stems soon followed. At the trial it appears that a site plan was introduced in evidence which differed in some respects from the plan submitted to the Commission.

• 1, 2 Before considering the other issues raised by the appeal, and the evidence relating thereto, we deem it expedient to first consider the contention of defendant that plaintiffs were not entitled to judicial relief because they failed to exhaust their administrative remedies. (See: Bright v. City of Evanston, 10 Ill.2d 178; Reilly v. City of Chicago, 24 Ill.2d 348.) The rule of exhaustion of administrative remedies, unique to zoning cases, is no more than an expression of judicial policy which recognizes that zoning is primarily an administrative function, and is aimed at affording local authorities an opportunity to correct errors and settle disputes before there is judicial intervention. It is not jurisdictional, however, nor is it unreasonably employed, and to prevent needless delay, increase of costs and circuitry of action. It is not applied where the demonstrated attitude of the local authorities makes it clear that administrative relief, or further efforts to obtain it, will not be forthcoming. County of Lake v. McNeal, 24 Ill.2d 253; Van Laten v. City of Chicago, 28 Ill.2d 157.

• 3 The record here discloses, without dispute, that the city zoning officials had twice refused to rezone the property for use as a medical clinic before judicial relief was sought. Therefore, it would appear that the trial court was eminently correct in its finding that there had been an exhaustion of administrative remedies. Defendant reasons, however, that since it was the optionees who carried the burden of the proceeding before the city, it cannot be said that plaintiffs, the optionors, have ever sought administrative relief. Further, since the site plan introduced in evidence in this judicial proceeding was not precisely the same as the plan presented to the commission, it is urged that there can be no exhaustion of administrative remedies until the Commission is again permitted to consider the rezoning application in light of the altered site plan.

While it is questionable as to whether these contentions were in fact raised and passed upon in the trial court so as to be properly preserved for review, it is sufficient to say we do not find merit in the marginal distinctions defendant seeks to make. The commission's refusal was not based upon any inadequacy of the site plan presented, but on the ground that the site itself was not of sufficient size to permit its use for a planned unit development. Also, all the administrative actions were carried on in the names of the plaintiffs, and, more significantly, the issues presented to and decided by the local authorities are precisely the same issues raised in this judicial proceeding, viz., whether plaintiffs' property should be changed from an R-1 to R-B classification and permitted to be used for a medical clinic. The case of American National Bank & Trust Co. v. City of Chicago, 130 Ill. App.2d 24, upon which defendant principally relies is inapposite. There the property owner sought to have his land rezoned from R-1 to R-4 at the administrative level, but then altered his position and sought a change from R-1 to R-3 in the judicial proceeding which followed. Under these circumstances, which have no valid parallel in this case, it was held that the owner had not exhausted his administrative remedies. Apart from the shortcomings of defendant's theories, we are also constrained to observe that the history of the efforts to have such disputed property rezoned makes it apparent that it would be a fruitless gesture to again submit the matter to the local authorities. Cf. First National Bank of Skokie v. City of Chicago, 25 Ill.2d 366; Fiore v. City of Highland Park, 76 Ill. App.2d 62.

On the principal issue of whether the ordinance was invalid in its application to the disputed property, plaintiffs presented the testimony of Gerald R. Fahrner, a professional real estate appraiser. He testified that the twelve lots owned by plaintiffs were undersized for single family residences under standards fixed by the city's building code, and that because of this, only eight single family residences could be erected on the site. On this basis he testified that the value of the premises for single family purposes would be $56,000 or $7,000 per building site. Based upon comparable sales in the area, he estimated that the value would be $104,000 if the property was permitted to be used for a medical clinic. Further, the witness conceded there was a demand for residential lots in the general area north of Glenwood, but expressed the belief that plaintiffs' lots had nonetheless remained vacant and unsold because they were not suitable for single family residence purposes. Factors upon which he based his belief were the smallness of the lots, the dominating influence of the hospital (directly across the street) and the presence of the multiple family town house development in part adjacent to plaintiffs' lots on the west. The witness further testified that the highest and best use of the property would be for a medical clinic, and gave his opinion that such use would not reduce the value of the eixsting nearby residential uses, but would in fact enhance values and constitute a general improvement of the area.

Robert T. Van Treeck, a planning and zoning consultant, also testified for plaintiffs that the highest and best use of the property would be for a medical clinic. As grounds therefor, he stated that the property took its character from the hospital and that the location of a clinic in close proximity to the hospital would benefit the community, patients and doctors alike. As an experienced planner, he testified that the hospital and the traffic on Glenwood dictated that the north side of Glenwood, across from the hospital, should be developed as a transitional use zone which would serve as a buffer between the hospital and the single family residential zones on West Acres and west thereof. In this regard, he further testified that a medical clinic would be an ideal use in such a transitional zone. Additionally, he stated that a medical clinic would neither be incompatible with nearby residence properties nor decrease their value, and that a medical clinic would be no more incompatible with nearby residences than would other uses permitted under the R-2 classification, notably churches, schools, library or recreational facilities. The latter uses, he stated, would entail a site plan comparable to that for a medical clinic, and it was his opinion that the site plan admitted into evidence in the case would effectively and artistically screen the clinic from the nearby ...


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