APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Plaintiff, as trustee for the owners of the property in issue, applied to the Cook County Zoning Board of Appeals for a reclassification of its property from M-1 (Restricted Manufacturing) to R-6 (General Residential) *fn1 with a special use to build a multiple-family residential development. The Board of Appeals, after public hearings, recommended that the request be denied. The Cook County Board of Commissioners (County) denied the request. Thereupon plaintiff filed a complaint in the circuit court for a declaratory judgment challenging the constitutionality of the Cook County Zoning Ordinance (ordinance) as applied to plaintiff's property and requesting that the circuit court declare that plaintiff has the right to use its property for a residential planned development consisting of 1,533 units, 17 units per acre, in buildings from two to eight stories in height. After an answer by the County of Cook, the nearby Villages of Glenview, Northbrook and Northfield were allowed to intervene as defendants (County and Villages hereafter defendants). Judgment was entered for defendants after a bench trial with the court holding that the applicable ordinance, as applied to the subject property, was valid and constitutional in all respects.
Plaintiff, on appeal, raises the following issues: (1) may the County enforce height restrictions for airspace approaches to the Glenview Naval Air Station (Station) which are different than those of the Federal Aviation Agency (FAA); (2) is the "County Airport Zoning Ordinance" *fn2 void because it deprives the plaintiff of the use of its property without compensation and thus is an unconstitutional taking; and (3) as applied to plaintiff, does the ordinance violate due process of law. In addition to these issues defendants have properly raised the following additional issue: (4) whether plaintiff's failure to argue on appeal the unconstitutionality of the County's refusal to change the classification of the subject property precludes this court from reviewing the merits of that claim.
During the trial of this case, plaintiff presented evidence to attack the two provisions of the ordinance which prevent plaintiff's proposed development. First, the M-1 Restricted Manufacturing zoning classification prevents the erection of the residential planned development consisting of 1,533 residential units, and secondly, the restrictions set forth in section 4.11 of the zoning ordinance limits the height of buildings surrounding certain airports including the Glenview Naval Air Station which is nearby plaintiff's property. *fn3 However, as we understand plaintiff's briefs and oral argument, this appeal challenges the trial court's judgment only so far as section 4.11 prohibits plaintiff from obtaining the relief requested. Accordingly, our summary of the evidence will address itself primarily to plaintiff's theory with such additional evidence as is necessary to dispose of all the issues before this court.
The subject property, owned by the Lutter family and one Carl Lembrick, was used by them for the excavation of clay to manufacture bricks from about the turn of the century to 1941. It was thereafter used until about 1963 to 1965 as an uncontrolled garbage dump. From that time until the trial, it was used for the dumping of clean fill, such as clay and cement. The evidence tended to establish that due to the uncontrolled nature of the dumping on the property for 20 years, the site was "undesirable" due to the absence of both daily compacting and insertion of layers of clean fill.
The subject property is presently vacant, irregularly shaped, consists of approximately 91 acres in an unincorporated area of the county and is generally adjacent to the Village of Glenview. To the north is more vacant land, a portion of which at the time of the trial was being developed as a golf course. Adjoining the property to the east is the north branch of the Chicago River and east of the river is a planned development residential area known as Valley Lo with a density of three units per acre. Immediately adjoining the subject property at the southeast corner is the Immanuel Lutheran Church and school; Chestnut Avenue borders the property on the south and on the south side of Chestnut Avenue is a cemetery and a mixture of residential, commercial and industrial uses and zoning. Further south and east of Chestnut is the Tall Trees residential development containing single-family residences with an average value of $90,000. Adjoining the property to the west, the land is zoned and partially developed with manufacturing uses, the right-of-way of the Chicago, Milwaukee and St. Paul Railroad, Lehigh Avenue, then across Lehigh a mixture of manufacturing, commercial and residential uses in a manufacturing zoned district and then the Naval Air Station.
Plaintiff sought the zoning change to satisfy a condition precedent to a $4,000,000 contract it had entered into, on behalf of the Lutters, with Kenroy, Inc., for the sale of the property. Kenroy intended to build the proposed development which was to consist of nine buildings of varying heights and accompanying facilities. The height of the tallest building was to be 72 feet. The height of the buildings would exceed the height allowed under the ordinance in varying amounts from 10 feet to 38 feet.
At trial, plaintiff introduced a letter it received from the FAA indicating the proposed construction did not violate the height restrictions imposed by FAA on buildings in military airport approach zones. *fn4 (14 C.F.R. § 77.28(b)(3).) In support of its contention that section 4.11 of the ordinance was arbitrary and unreasonable, plaintiff called an airspace consultant who had, prior to 1953, worked for the Civil Aeronautics Administration (predecessor to the FAA) mainly in the area of utilizing airspace near airfields so as to avoid hazards. The consultant, Frank Lappas, stated his opinion that none of the proposed buildings constituted an air hazard within the FAA definitions and that the zoning ordinance has no reasonable relationship to safety, health or welfare; he further testified that an eight-story building on the subject site would not constitute an air navigation hazard under FAA standards.
Lappas testified that section 4.11 of the zoning ordinance was arbitrary in that it pertains to distances from the boundary of an airport without consideration of runway configurations, clearances in approach zones and the conduct of safe operations. He based his opinion on calculations he had completed from published information on the approaches at the Station and from his observations on the one visit he made to the site on a Monday or Tuesday. Lappas admitted he neither observed the flight patterns in and out of the Station on weekends or discussed the proposed construction with anyone at the Station. When questioned as to emergency situations in relation to buildings as air hazards, Lappas at first contended he could not conceive of an emergency situation developing in which a one-story building would be less of an air hazard than an eight-story building. He asserted he would not change his opinion upon being informed emergency situations at the Station occur on a weekly basis. Additionally, though Lappas initially believed only one missed approach zone existed near the subject property, he said it would not bother him "in the least" to find that many missed approaches fly over the property. Lappas acknowledged he had no personal experience either in piloting a plane or in air traffic control.
Defendants presented Captain Paul Gene Merchant, Commanding Officer of the Station, and Lieutenant Tom Baker, Air Traffic Control Facility Officer at the Station in support of their contention the ordinance was not arbitrary and was reasonably related to public safety. Captain Merchant testified the weekend air traffic was the heaviest and that he considered the proposed development to be located in a heavy hazard zone. He further asserted that the FAA standards do not properly consider the different circumstances involved in an emergency situation and that, during such situations, all structures are hazards, especially those over 50 feet. Lieutenant Baker testified he believed the restrictions of the zoning ordinance were necessary for the safety of both pilots and the citizens of the community and that missed approaches definitely take airplanes over the subject property. He also asserted that in emergency situations, pilots cannot hold to the approach limitations expected of them though the expectations are the basis of the Federal regulations at issue here.
At various times in the course of the trial, a 1968 airplane crash near the subject property was referred to and the trial court commented on the crash orally at the end of the trial.
As to the zoning classification change requested, plaintiff presented a transportation planner who testified the proposed development of 1,533 units would have 2,700 cars with approximately 9,000 trips in and out per day; that the only access to the site is from the two-lane Chestnut Avenue which borders the property on the south; that Chestnut Avenue which has outlets on Lehigh and Waukegan Avenue would have to be widened to four lanes with additions to Lehigh and Waukegan Avenue, all necessary to accommodate the increase in traffic; and that the proposed changes had not been discussed with the State and county which have jurisdiction over the roadways.
A city planner testifying for the plaintiff projected the proposed development would generate 627 elementary and 144 high school students; that he did not know if the existing schools could accommodate the increase; and, after considering the estimated costs and revenues for the elementary school, the project would generate an annual tax surplus of $433,852.
Plaintiff presented a soil engineer who testified that the soil borings on the site indicated the soil consists of a garbage type fill anywhere from 8 to 15 feet thick with the deepest point approximately 60 feet deep; that methane gas was found in one of three borings with gas in a ratio of 32 parts per million. A professional engineer, Dr. David J. Hagerty, testified on behalf of the plaintiff regarding methane gas as produced in a garbage dump and the problems of building on such a site. Hagerty, retained by the plaintiff only to testify, stated that methane gas, which is odorless, invisible and potentially highly flammable or explosive, will be produced, that it would be necessary to provide venting or air space and that the dangers presented by the potentiality of methane gas could be forestalled only by the most careful construction and maintenance, including apparent freedom from future negligence by maintenance personnel as well as complete and continuing ventilation of the proposed buildings.
Plaintiff's witness, Carl Kupfer, President of Site Planning and Civil Engineering Corporation, testified that the condition of the soil creates two problems: foundation support and methane gas; that no architectural or structural plans were prepared for the site; that the FAA notified the plaintiff the proposed development is within an area where noise pollution is generated by aircraft operated at the Station and will present a serious problem; and that the proposed development would be serviced by a two-well water system.
Defendants' witnesses testified the methane gas would seep into even the most carefully constructed buildings. Harold Schneider, an architectural and structural engineer, testified on behalf of the defendants that methane gas may be generated in the subject site for decades; that on a long-term basis, the feasibility of developing the proposed use in a safe manner is such that it cannot be done; and that in his opinion the most practical use of the subject site is one that does not involve closed buildings wherein the danger of explosion due to methane gas would be very possible.
Marvin A. Salzenstein, a consulting engineer, testified that there are two problems, gas generation and soil shrinkage, created by construction over a landfill. He also asserted that extraordinary air pollution problems would result from the proposed use with no effective method of treating the soil to avoid the air pollution, but that if the site were to be used as a park, the air pollution would not exist. In addition, defendant presented testimony concerning the existing traffic in the nearby Valley Lo and Tall Hills residential subdivisions and the possible increase in traffic in the Tall Trees area which would develop with the implementation of the instant proposal. Defendants' witnesses also alleged the amount of pupils generated by the proposed development would not be paid for by the property taxes expected from the residents of the development and that the then existent school facilities were either at their maximum capacity or overcrowded and not able to accommodate existing needs much less those created by the proposed development.
Plaintiff's experts testified that the property as zoned and in its present condition has a market value of between $900,000 and $1,100,000; that its highest and best use was for a multiple-family development of some kind and on that basis the market value of the property would be approximately $3,800,000; that if the property remained as zoned it could be successfully developed for industrial purposes; and that the proposed project would not have a deleterious effect on surrounding property. On the same subject defendants' experts testified that the property under its present zoning and with the soil conditions has a market value of approximately $2,000,000 and if rezoned as plaintiff requested the market value would be approximately ...