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Du Page Trust Co. v. County of Du Page

SEPTEMBER 15, 1975.

DU PAGE TRUST COMPANY, TRUSTEE, PLAINTIFF-APPELLANT,

v.

THE COUNTY OF DU PAGE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This is a declaratory judgment action, brought to permit certain property located at the northeast corner of Butterfield Road and Park Boulevard, in Du Page County, Illinois, to be used for a neighborhood shopping center, consisting of a supermarket, retail stores, a restaurant, an automobile service station, and an office building. The property is zoned R-3 Single Family Residence District with a special use permit allowing the construction of multiple-family dwellings. In a bench trial the Circuit Court of Du Page County ruled against the plaintiff, Du Page Trust Company as Trustee under Trust No. 500, and in favor of the defendant, the County of Du Page. It held the County's zoning ordinance to be valid as applied to the plaintiff's property, and enjoined the proposed use of the property. The plaintiff has appealed.

The property consists of 8.89 acres with a frontage of 705 feet on Butterfield Road and 848 feet on Park Boulevard. The highest point is at the intersection of Butterfield Road, which slopes down to the east, and Park Boulevard, which slopes down to the north, and the lowest point, in the middle of the east boundary, is 27 feet lower than at the intersection. The proposed shopping center would be screened from adjacent property by existing trees as well as additional trees to be planted.

Butterfield Road is a two-lane highway east and west of Park Boulevard, with four-lane approaches from both the east and the west at the intersection. It has a right-of-way of 200 feet and a posted speed limit of 55 miles per hour. It is a major highway, crossing the county. In 1972 the traffic on it averaged approximately 13,900 vehicles per day east of Park Boulevard and 11,000 vehicles per day west of Park Boulevard.

Park Boulevard has a right-of-way of 100 feet, and has four traffic lanes and a posted speed limit of 50 miles per hour north of Butterfield Road, but only two traffic lanes and a posted speed limit of 40 miles per hour south of Butterfield Road. The traffic on it averaged approximately 4,000 to 5,000 vehicles per day.

The intersection of Butterfield Road and Park Boulevard is controlled by stop-and-go lights. At that intersection there were 18,000 to 20,000 vehicle movements per day.

At the southeast corner of the intersection, directly across Butterfield Road from the plaintiff's property, there is a gasoline service station, and next to that, a food store. At the southwest corner of the intersection there is an existing home occupation. At the northwest corner of the intersection there is a vacant tract of land, and north of that a structure used by a theatrical group, and farther to the north and west, Glenbard South High School and the College of Du Page.

On the east side of Park Boulevard, north of the plaintiff's property, there is a single-family home, and east of that another single-family home. On the north side of Butterfield Road, east of the plaintiff's property, there is a vacant tract and then there are some single-family homes. On the south side of Butterfield Road, east of the gasoline service station and the food store, there are some semipublic uses, including two churches, and then some single-family homes.

A half a mile east on Butterfield Road, at its intersection with Route 53, there is a shopping center consisting of a supermarket, six retail stores, and an automobile service station, at the southwest corner of the intersection. Another automobile service station is located at the northeast corner. Property at the northwest corner may be used as an automobile service station pursuant to Moist v. County of Du Page, 10 Ill. App.3d 473, for reasons therein stated.

At the southeast corner of the intersection of Butterfield Road and Park Boulevard, where the service station and food store are located, the area is zoned for business uses, but farther south and east the land is zoned residential. At the southwest corner of this intersection and beyond, the land is zoned residential. North of the plaintiff's property the zoning is residential. The area to the west of the plaintiff's property, on the west side of Park Boulevard, is zoned residential. The tract of land at the northwest corner of the intersection, we have just recently decided, is validly zoned residential and may not be used for a service station. Gulf Oil Corp. v. County of Du Page, 24 Ill. App.3d 954.

The property owned by the plaintiff as trustee was originally acquired by the trust beneficiary, Arnold Kramer, an attorney, in 1968 and 1969. The County's zoning ordinance had been in effect since 1935. When the property was purchased by Mr. Kramer, the College of Du Page and Glenbard South High School, both now lying to the west across Park Boulevard, had not yet been constructed, nor had the gasoline service station at the southeast corner of Butterfield Road and Park Boulevard, nor the shopping center at the southwest corner of Butterfield Road and Route 53, nor the gasoline service station at the northeast corner of Butterfield Road and Route 53. The property is unimproved, but is zoned to permit 120 multiple-family dwelling units to be constructed. Mr. Kramer testified that it would be difficult to market a multiple-family residential development on the site because it is not large enough to allow providing amenities such as tennis courts, putting greens, and swimming pools. He also testified that he had earlier attempted to improve the property with the 120 multiple-family dwelling units that were permitted, but was unable to secure the necessary financing because of the 1969-1970 tight money situation.

The architect who had prepared the plans for the proposed neighborhood shopping center described the buildings he had planned, the parking areas, the driveways, and the arrangements for drainage. He indicated that the highest point of the major buildings would be level with or just slightly higher than the crown of the intersection of Butterfield Road and Park Boulevard. He stated that his firm had previously made a site plan for multiple-family residential use of the property.

A real estate representative for Mobil Oil Corporation testified as to the traffic count he had taken, the number of homes nearby, the plans for a full convenience type service station and the car wash it was to contain, and the location of other service stations in the vicinity. Within a mile and a half of the property, he said, there were from 2700 to 2800 homes, and several hundred additional homes were under construction.

An urban planner testified for the plaintiff regarding the uses and zoning in the area which he described as constituting the sphere of influence on the plaintiff's property. This included uses and zoning south across Butterfield Road, west across Park Boulevard, and east at the intersection of Butterfield Road and Route 53. He testified also regarding a traffic study of the area which he had made. It was his opinion that the use proposed for the plaintiff's property was the highest and best use for that property, by reason of its location at a busy intersection, its size, the tree cover at its north end, the trend of development near the property, the existing uses in the area of influence, and the existing zoning which permitted business uses south of Butterfield Road at Park Boulevard and at Route 53. On cross-examination he stated that he did believe Park Boulevard was a buffer, and that Route 53 could be but was not a buffer. He granted that the land use to the north, northeast, and east of the plaintiff's property north of Butterfield Road was all ...


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