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Hutson v. County of Cook

JANUARY 16, 1974.

WILLIAM F. HUTSON ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF COOK ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

The County of Cook, intervenor-defendants, Villages of Northbrook and Glenview, St. Peter United Church of Christ and Max A. and Florence S. Hart, have appealed from a declaratory judgment of the circuit court of Cook County holding that the Cook County zoning ordinance, insofar as it applies to plaintiffs' property, is unconstitutional and invalid.

On appeal, the appellants argue that plaintiffs failed to overcome the presumption of validity of the zoning ordinance, that the findings were against the manifest weight of the evidence and that the trial court erred in restricting intervenors' right to cross-examination.

Plaintiffs filed a complaint for a declaratory judgment that the zoning ordinance of the County of Cook is unconstitutional as it pertains to their property. Plaintiffs had unsuccessfully requested the Board of Commissioners of Cook County to reclassify the subject property from the R-3 single-family residence district to the R-4 single-family residence district and the B-4 general service district as a planned development. They then filed this action against the County of Cook to declare the R-3 single-family zoning of the property invalid and unconstitutional; to declare that plaintiffs have a right to use approximately one half of their property as a single-family planned development, and the remaining portion of the property as a general service district planned development, providing for a national chain food store, local shops and a restaurant; and to restrain the county and its officials from interfering with that use.

After a bench trial on the merits, judgment was entered for the plaintiffs and against the defendants. In the final judgment order entered on June 13, 1972, the trial court specifically found that the highest and best use of the subject property was for the residential single-family planned development and the general service planned development of the type and character proposed to be erected by the plaintiffs. It further found that the zoning ordinance of the county, as applied to the subject property, insofar as it prevented the use of the subject property as proposed, is unreasonable, arbitrary, confiscatory, unconstitutional and void, and bears no reasonable relationship to the public health, safety, morals and welfare. The court found that the proposed use of a residential single-family planned development, consisting of 29 single-family lots, which range in area from 12,000 to 15,000 square feet, and a general service planned development providing for a national chain food store, offices, local retail shops and a restaurant, as indicated on the plans submitted to the court, was a reasonable use of subject property. The court found that with respect to the one half of the subject property with 950 feet on Willow Road and having a depth of 600 feet on Pfingsten Road, the application of the provisions of the Cook County zoning ordinance contained in the R-3, R-4, R-5, R-6, and B1, B-2 and B-3 districts would be unreasonable, arbitrary, confiscatory, unconstitutional and void. With respect to that portion of the subject property to be utilized for the residential single-family planned development, the application of the R-3 district of the Cook County zoning ordinance would be unreasonable, arbitrary, confiscatory and void. The court declared that the plaintiffs, or any persons claiming by, through and under them, were entitled to use the subject property for a residential single-family planned development and a general service planned development in substantial compliance with the plans submitted in evidence, and enjoined the county from interfering with such use of the subject property.

The Cook County zoning ordinance is involved. The detailed provisions of that ordinance are not at issue in this case. Under that ordinance, single-family dwellings are the principal permitted use in the R-3 and R-4 single-family residence districts. In the B-4 general service district, various commercial developments are permitted.

The plaintiffs herein are the owners of a certain tract of land located on the southeast corner of Willow Road and Pfingsten Road in the unincorporated area of Northfield Township in Cook County. The property consists of approximately 27.6 acres and is rectangular in shape. It is vacant except for a single-family residential structure owned and occupied by the plaintiffs, William and Anna Hutson, on the southeasterly portion of the property. Harold Anderson, one of the witnesses for the plaintiffs, is a builder and developer and one of the owners of the subject property. His property was held in trust with Bernice Stege as Trustee and consisted of 13 1/2 acres. It was consolidated with the property owned by Dr. and Mrs. Hutson for the purposes of development. He proposed a shopping center for the frontage along Willow Road and the southern portion of the property would be developed for single-family homes in the $50,000 to $60,000 price category with a minimum lot size of 12,000 square feet. He purchased the property seven or eight years ago for $300,000. The area was logical for commercial development because of the high speed of traffic on the road. He also indicated the long distance you have to go for shopping.

Peter Salinas, the developer's architect, also testified for the plaintiffs. He identified the subject property as a parcel of 27 1/2 acres, with a frontage of 948 feet on Willow Road and 1,270 feet on Pfingsten. He had, in conjunction with Lawrence and Associates, prepared the plan of development consisting of a complex of retail stores and offices and 29 single-family lots. The retail business on the north section consists of a 44,000 square foot food and drug facility, retail stores, a three-story 21,000 square foot office building and a 22,000 square foot restaurant.

Paul Spies, a consulting engineer, testified for the plaintiffs. He was of the opinion that available utilities are adequate for the proposed development, and the developer had an agreement with the owners of the sanitary sewer system in the area permitting hookup.

William S. Lawrence, the city planning and zoning consultant who helped design the plan, testified as an expert witness for the plaintiffs. He testified that there is a single-family home directly adjacent eastward of the subject property and about 800 or 900 feet of vacant property before a single-family subdivision in the Village of Northbrook. To the east of that the area is vacant property to Shermer Road, where there is a gasoline service station and then a railroad on the south side of Willow Road. On the north side of Willow Road, west of the railroad and just east of Shermer Road is a sanitary landfill. Just west of the sanitary landfill is property zoned M-1. Proceeding from there in a westerly direction is an automobile service station and a car wash zoned in the county for B-4 as a result of a declaratory judgment suit. West of that is an additional gasoline service station on the west side of Shermer and surrounding that and to the north of it is a nursery and greenhouse facility. He also considered significant in the area, the office, research and manufacturing that is taking place west of the toll road both north and south of Willow Road. He indicated the Culligan plant, the Illinois Bell Telephone structure, the A.C. Nielsen office building, and the Allstate national offices. The toll road was one mile west of the subject property.

Lawrence's opinion of the highest and best use of the subject property from a planning and zoning standpoint was for a planned development for residential on the southern part and on the north one half for a community shopping facility. In arriving at that opinion he took into account the change in the characteristics of Willow Road from a two-lane low-volume traffic facility to a four-lane well-developed major thoroughfare serving the entire community. He considered the fact that the non-residential uses in and about the tollway play a significant part in generation of interest in the area of residential development, the fact that the intersection of Willow and Pfingsten is the intersection of two major streets and can provide a more intensive use because of the high efficiency of access that the intersection provided. He considered the fact that within this area, there is a need for shopping facilities, and within a 2 1/2-mile radius, there are 5,670 dwellings constituting some 22,500 population as of early 1972. Projecting this to 1980, the figures would project to some 36,000 people and some 9,800 plus dwelling units. He testified that 80% of the families within this 2 1/2-mile radius have a household income in excess of $10,000 per year. The existence of a retail establishment would serve as a screen and an insulation to the traffic and noise of Willow Road to the single-family area to the south.

Neal Kenig, a professional traffic engineer, testified for the plaintiffs. He had prepared an analysis of the traffic impact on the proposed development and the surrounding property. It was his opinion that the present thoroughfare would be adequate to accommodate the traffic to be generated by the proposed development. He assumed a primary trading area for the development of approximately two miles around the site.

Plaintiffs' real estate expert was F. Gregory Opelka, who held the MAI designation from the American Institute of Real Estate Appraisers and SREA from the Society of Real Estate Appraisers. He lived in Glenview and had served five years on the zoning board of Glenview. His qualifications were stipulated by the defendants. His opinion was that the highest and best use of the subject property from a real estate standpoint was the planned development proposed for the subject property. He had taken into consideration the general growth of housing developments in the area, the road systems that bring people in and about the area, and the fact that Willow Road is a four-lane highway with fast-moving traffic and the tollway exists to the west of the subject property. He referred to the remodeling of the interchange at Willow Road and the increase of the traffic in the area. He considered the fact that there is a large movement of non-residential vehicles into the area north of Willow Road and that the road system in the area of Willow Road moves into the industrial area. He considered that this intersection had lost its residential character. The starting and stopping of vehicles, the environmental problems of noise and exhaust, and the light generated by vehicles starting and stopping all made it hard to cope with the development of a residential community at Pfingsten Road and Willow Road. He could not remember a new home being built on Willow Road in the last five years except in the La Salceda Subdivision which lies to the east and the houses in that subdivision back up to Willow Road with a fence built along it to further insulate and isolate the development. He did not believe the highest and best use of the property would be a residential development because of the problems he described. The high priced homes were built prior to the widening of Willow Road. The home on the southwest corner of Pfingsten and Willow Road is 45 years old, and was built before the general development and character of the area was formulated.

Opelka was familiar with the plan offered by the plaintiffs. It fell within his definition of the highest and best use of the subject property. He was of the opinion that the development would not have any depreciating effect on any property whatsoever, including property to the east and west. He had appraised the property for R-4 purposes, as worth approximately $400,000. If it were one half R-4 and one half B-4 as the site plan exists, the value of the property would be approximately $1,200,000. In his judgment the highest and best use of the subject property was for one half B-4 and one half R-4.

Max Hart, the intervening property owner, lives west of the subject property. He purchased his property in 1955 for $80,000 for 8 1/2 acres. Willow Road was a two-lane street when he bought his house. The tollway was not there. The property immediately south of him was zoned R-4 some time ago by Cook County. R-4 is 10,000 square foot lots. He does not object to the single-family proposed for the south half of the planned development. Since he built his home, traffic on Willow Road increased due to the widening of Willow Road and with exit and entrance to the toll road. Truck traffic has also increased. A business was now operating on the northeast corner of Pfingsten and Willow Road, being a commercial nursery.

Arthur Funke lives on the north side of Willow Road. He purchased his property in 1944 and constructed his home the next year. His is a five-acre tract. He is next to St. Peter United Church of Christ, which is on a 7 1/2-acre site. His home is 135 feet back from the north edge of Willow Road, which is a four-lane state highway with a 100 foot right-of-way, so his house is 235 feet from the property line of the subject property. He built his home in 1945 at a cost of $50,000 for the house and $3,000 for the five acres. He testified that when he bought his property Willow Road was ...


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