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Tomasek v. City of Des Plaines

FEBRUARY 13, 1975.

VIRGINIA TOMASEK ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF DES PLAINES, DEFENDANT-APPELLEE. — (ROY H. MICHALSON ET AL., DEFENDANTS-INTERVENORS-APPELLEES.)



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

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

Rehearing denied April 2, 1975.

The plaintiffs, Virginia Tomasek, John Rogers, and Wm. L. Kunkel & Co., brought this declaratory judgment action in the Circuit Court of Cook County against the City of Des Plaines, a municipal corporation. Twelve persons who own seven parcels of land near the subject property were given leave to intervene as parties defendant. The plaintiffs sought to have the zoning ordinance of the City of Des Plaines declared invalid insofar as it classifies their properties as R-2 single-family residential. The trial court entered judgment for the defendants.

The issue presented for review is whether the judgment of the trial court was contrary to the manifest weight of the evidence.

The plaintiffs, owners of three pieces of property in the City of Des Plaines in Cook County, all seek to have their property zoned as C-2 commercial. The subject properties are located in a strip of land between Busse Highway and the Chicago and North Western Railroad's three-track line serving Chicago's northwest suburbs. Busse Highway is a four-lane road connecting Des Plaines and Park Ridge, and at the point in question is separated from the railroad right-of-way by 140 to 150 feet. The Tomasek property (1.7284 acres) is closest to downtown Des Plaines and is adjoined by the Rogers property (2.0046 acres), which is improved with the owner's single-family residence. An irregularly shaped plot of .7691 acres, not involved on this appeal, separates the Rogers property from the Kunkel property (2.555 acres).

The three properties have a frontage of 2242.72 feet along Busse Highway and rear boundaries of 2382.95 feet along the railroad right-of-way. At the southeastern end, the Kunkel property narrows and comes to a point as Busse Highway curves to adjoin the railroad right-of-way.

The strip of land between the highway and the railroad tracks to the northwest of the subject properties is zoned M-2 general manufacturing and contains such uses as a machine shop, a millwork shop, two engineering offices and an automobile dealership.

The north side of Busse Highway across from the Tomasek and Rogers parcels is zoned R-2. The portion opposite the northern and central sections of the Kunkel parcel is zoned R-1, and it is in this area that the intervenors reside. Across from the easterly end of the Kunkel property is a forest preserve.

Across the railroad tracks to the south of the adjoining M-2 district and a small portion of the northern end of the Tomasek property is a forest preserve. This is adjoined by the Methodist Campgrounds and Summer Assembly, which extends past the northern end of the Kunkel property. The area to the southeast of this is used by the City of Des Plaines as a public-works maintenance garage, and to the southeast of that is additional forest preserve.

Virginia Tomasek testified that she is the owner of a wholesale tobacco company located in Des Plaines, and she has owned the subject property since 1959. In 1962 she tried to rezone the property and in 1964 listed the property with a broker for sale as single-family, but got no offers in 2 or 3 years.

Rogers testified that he lives in the only house on the subject property which he bought in 1954. At that time there were three single-family homes across the railroad tracks, which have been torn down by the City in order to erect a garage to store heavy machinery. He purchased the property for $27,500 and tried unsuccessfully to sell it 10 years later for $50,000.

Ralph H. Martin testified he is a vice-president of Wm. L. Kunkel & Co., which owns the third parcel of land. He stated the company has not attempted to develop the property for residential use because the character of the property has changed with the development of the city garage across the tracks and because it backs up to the railroad tracks.

The plaintiffs introduced into evidence an exhibit showing 12 one-story buildings of the kind they proposed to construct, but there were no detailed plans presented.

William S. Lawrence, M. Edward Smith, and William A. McCann testified as expert witnesses for the plaintiffs. Lawrence, a city planning and zoning consultant since 1947, testified that, in his opinion, the highest and best use of the subject property would be office, wholesaler, or jobber facilities, as allowed by C-2 zoning, uses which would attract very little of the public. The factors he considered in arriving at his opinion were the commercial and manufacturing uses west of the subject property, the North Western Railroad which carries 70 commuter trains and 7 or 8 freight movements each day. The property is closely related to the central area of Des Plaines and would provide wholesale and office facilities to complement the downtown retail area. He also found that Busse Highway, a four-lane, hundred-foot wide road, constituted a reasonable boundary for a change in zoning between the residential uses to the north.

M. Edward Smith testified that he is a realtor, appraiser, and developer with an office in Arlington Heights. He stated the highest and best use of the property would be a commercial use of offices or wholesale buildings. In reaching his conclusion, he took into consideration the fact that the subject property is the only piece of property along the entire length of Busse Road which has not been developed in either commercial or industrial use. He stated that if the property was satisfactory for single-family use, it would already have been purchased and used in that manner because of the strong demand for single-family property in Des Plaines. He stated he had done an economic study as to the value of the property for single-family use, and he estimated the value at $90,000. If it were zoned as C-2 commercial, the value would be approximately $248,000.

William A. McCann testified he is a licensed real estate broker, primarily engaged in the profession of real estate appraising and consulting. In his opinion the property as presently zoned would have a value in the range of $100,000 and if rezoned would have a value in the range of $250,000. In his opinion the highest and best use would be in accordance with the C-2 zoning classification.

The defendant presented two expert witnesses, Arthur Sheridan and Gerwin Rourbach. Sheridan testified he is a real estate developer, licensed broker and appraiser and consultant in zoning. He constructed the automobile service center at the intersection of Busse and Miner, which is less than a quarter of a mile from the subject property. In his opinion the essential character of the area is single-family residence, and that is the highest and best use of the site. He concluded that the railroad embankments buffered the area from any influence from the south, and that the traffic along Busse Highway is minimal. Willard Blume, the Police Captain of the City of Des Plaines, ...


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