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Schmidt v. City of Darien

SEPTEMBER 2, 1975.

CHARLES C. SCHMIDT ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF DARIEN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. GEORGE W. UNVERZAGT, Judge, presiding.

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

Rehearing denied September 26, 1975.

In this appeal the owners and developers of a 10.98 acre tract located in the City of Darien challenge the validity of the city zoning ordinance which restricted their property to residential use. The plaintiffs sought to invalidate the zoning ordinance as applied to the subject property and to permit its development for a commercial use, and appeal from the denial of declaratory relief. The proposed use included an Eagle discount food store covering approximately 28,500 square feet, a convenience center of smaller stores covering approximately 31,600 square feet, a savings and loan association covering 5,000 square feet, and the reservation of an acre of land for future expansion for stores or offices, together with parking.

The subject property is the southern half of a vacant lot in the R-2 zone (single-family residential district) in the City of Darien. It is bounded on the south by Plainfield Road, on the north by the balance of an approximately 22-acre total tract of which it is a part, and on the west by five lots improved with single-family residences. The houses on four of the lots face west with their backyards bounding the subject property; on the remaining lot the house faces south and fronts on Plainfield Road. The eastern boundary of the subject property is bounded in the northerly half by Clarendon Hills Road and in the southerly half by a gas station and a site on which a Commonwealth Edison electric transformer had been located. *fn1

The subject property fronts approximately 220 feet on Clarendon Hills Road and approximately 581 feet on Plainfield Road. It surrounds two lots near the intersection of Clarendon Hills Road and Plainfield Road. A gas station is on the corner lot and next to the gas station to the west is the Commonwealth Edison property. The zoning for the filling station was obtained from the county of Du Page prior to the annexation of the property to the City of Darien. Both of the surrounded lots wore nonconforming uses at the time of the annexation and the passage of the Darien zoning ordinance.

Plainfield Road to the south of the subject property is a county highway that extends from Will County on the west through Du Page County and the Village of LaGrange in Cook County on the east. On the south side of Plainfield Road beginning at the south west corner of the intersection of Plainfield Road and Clarendon Hills Road the first 230 feet extending west from said corner is improved with a single-family residence, the next 200 feet is vacant, and the next 200 feet is improved with a single-family residence. The next 200 feet is in the Village of Willowbrook and is zoned and improved with a high density multiple-family project. The commercial uses in Darien are approximately three-quarters of a mile to the west.

The testimony offered by the plaintiffs established that the Schmidts, the owners of the property, had entered into a contract for the sale of the property with the plaintiff Osadjan and that Osadjan and Yale Development Company were to be the joint developers of the property. The president of the development company testified that he was a senior member of the National Association of Independent Fee Appraisers and gave his opinion that the best use for the subject property was commercial. He based his opinion on the presence of the gas station and the transformer next to the property and the fact that Plainfield Road and Clarendon Hills Road were both substantially traveled, 100-foot right-of-way thoroughfares and the further fact that the shopping center included plans for screening against the residential property located on the western boundary.

The president and managing officer of the proposed savings and loan association testified to Darien's need for the facilities because at that time in Darien there were no savings and loan associations. He said that other potential sites in the city were objectionable.

A real estate analyst for the Eagle food stores, which would be the supermarket in the proposed shopping center, testified with reference to his study of the area. He concluded that the neighborhood would be a good site for a supermarket because of the substantial population in the vicinity and the good access roads.

A realtor in the area testified that in his opinion the subject property was unfit for residential use and was better suited for commercial development because of the gas station, the transformer, the need in the area for a shopping center, and because of the traffic patterns in the area. He said that the presence of the shopping center would not depreciate the value of homes located on the western boundary.

A traffic engineer concluded that there would be no detrimental effect upon public safety. The city planning and zoning consultant testified that the best use for the subject property would be the proposed shopping center and that it would not "unduly adversely effect" the surrounding properties but would be compatible with the area. He also based his conclusion on the fact that the gas station and transformer were located adjacent to the property, the need for the services that would be provided, and the extra revenue it would bring to the community. He said that the proposed fencing to the west of the project would adequately screen the residences from the shopping center and that the vacant lot to the north could be developed into a transitional type development to separate the residences to the north from the shopping center.

The plaintiff also offered testimony of a real estate broker and appraiser who also concluded that the highest and best use would be for the proposed development and that this would only offer minimal depreciation to surrounding properties if proper screening were erected. It was his opinion that the property as presently zoned was worth $80,000 but for the proposed commercial development it would be worth $400,000. He stated that the land was not desirable for single-family residence use because of the busy streets and the other commercial uses in the area. Finally, the developer Osadjan testified that other land available in Darian for development of a shopping center was either tied up in estate litigation or was too small.

Charles Schmidt, one of the plaintiffs, was called as an adverse witness by the defendant and testified that he sold the property on which the gas station was located about 10 years before and the property on which Commonwealth Edison located its transformer about 15 years before.

Defendants offered the testimony of several homeowners in the area who stated that the value of their homes would depreciate if the shopping center were allowed to be built, and who testified to various flooding problems which would be caused by the building of the parking lot in connection with the project. It was stipulated that there were at least nine ...


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