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Continental Homes v. County of Lake

OPINION FILED APRIL 23, 1976.

CONTINENTAL HOMES OF CHICAGO, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF LAKE, DEFENDANT-APPELLEE. — (THE VILLAGE OF MUNDELEIN, INTERVENOR DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from a judgment which upheld the existing zoning of their 331-acre tract classified partly Agricultural and partly Suburban Residential. They contend that the court erred in refusing to grant their request for an amendment to the UR-3 A classification with a Conditional Use permit for a Planned Unit Development. They also contend that the court erred in permitting the Village of Mundelein to intervene as a party to the litigation involving the validity of the County Zoning Ordinance and in permitting the County to withdraw an admission of fact.

The proposed development lies between Route 176 and Hawley Road approximately a quarter of a mile west of the westerly boundary of the Village of Mundelein. Under the present Lake County zoning classification building lot sizes are restricted to a minimum of 200,000 square feet in a portion of the property and 40,000 square feet in other portions. Plaintiffs' proposed planned unit development consists of approximately 1,500 dwelling units including 31 homes to be constructed on one-acre lots, 37 homes to be constructed on one-half acre lots, 326 homes to be constructed on 7,200 square foot lots, 780 town houses and 359 apartments. In addition, a community center with enclosed shopping facilities is provided as well as at least 72 acres of open space and for school sites.

On March 13, 1973, plaintiffs filed the application to amend the present zoning and for the issuance of the conditional use permit. They submitted an outline development plan and a preliminary development plan to the Lake County Regional Planning Commission (LCRPC) as provided in the Lake County Zoning Ordinance. The LCRPC approved plaintiffs' proposal conditioned on their satisfying 23 stated conditions. The plaintiffs agreed to the conditions.

Following a public hearing, the Lake County Zoning Board of Appeals unanimously accepted the recommendations of the LCRPC and approved plaintiffs' development plan subject to 18 stated conditions. Plaintiffs agree to satisfy all conditions set forth by both the Regional Planning Commission and the County Zoning Board of Appeals.

Thereafter the Village of Mundelein filed a written protest which mandated a three-fourths majority vote of the Lake County Board of Supervisors for approval of the application (Ill. Rev. Stat. 1973, ch. 34, par. 3158). The Lake County Board voted to approve the special use permit by a vote of 15 to 7. Since this was short of the three-fourths majority the application was denied. This suit followed.

On the date the action was set for trial the Village of Mundelein filed a petition to intervene. The Village was permitted to intervene as a party defendant over the plaintiffs' objections, but on the conditions that it not raise any new issues and that it stand on the answer filed by the defendant County of Lake.

At trial Norman Drummond, an expert planner, testified for the plaintiffs. He stated that to the northeast of the subject property a commercial development was being undertaken on 35-50 acres; that the remainder of the land surrounding the subject property is vacant and unimproved except for the Countryside Golf Course to the east; that a small commercial shopping development had been constructed in the vicinity near the intersection of Routes 83 and 176; and that other vacant property in the vicinity was being proposed for development for various types of housing. He admitted that the only concentration of housing in Fremont Township presently is around Sylvan Lake other than the part which lies in the Village of Mundelein. He noted that the one-acre lot deed restrictions which covered the Countryside area also applied to a part of the proposed development which fronts on that area. On cross-examination he admitted that the one-acre lot deed restrictions cover an area of four or five hundred acres in the vicinity. He testified that none of the proposed developments could be undertaken under the existing zoning category. He further testified that the subject property could not be developed feasibly under the existing zoning, which required on-site sewage disposal systems, because the soil was not suitable. He also stated that development of one-acre lots on approximately one-fourth of the property and 5-acre lots on the balance would be a wasteful use of land. He gave his opinion that the property should be developed as a planned development rather than a conventional subdivision; and that the highest and best use would be for a residential development preferably of mixed housing types at approximately the density proposed. He described the design of the proposed development and stated that it would have no adverse effect on the living conditions in the area because it related with it and because it would include a complete system of utilities and public facilities which are presently absent from the area generally. He noted that the development had been designed to discourage through traffic and stated that the traffic generated by the development would have no impact on traffic on the local streets in the Village of Mundelein. He also noted that a proposed expressway, Route 53, was to be built about three-fourths of a mile from the subject property.

On cross-examination he admitted that the traffic pattern coming from the proposed development onto either Route 176 or Hawley Road would be essentially going east and very little traffic would be generated to the west; that the railroad station for commuter trains, the tollroad, the Hawthorn shopping center and the shopping areas in Mundelein and Libertyville are to the east of the proposed development; that the great majority of traffic would move east along Hawley Road and Route 176 for at least as far as Routes 83 and 60 and then would go either north or south or directly through Mundelein along Hawley Road or Route 176.

Joseph W. Rezek testified for plaintiffs after being qualified as an expert consulting civil engineer. He said that an adequate water supply could be obtained from the wells constructed within the development and that a proper sanitary sewer system could be constructed which would meet all requirements. He said that the runoff from the land in its developed state would not exceed an equivalent runoff in its present state and stated that the subject property has no flood problems. He concluded that there would be no adverse effect on the public health and safety.

Edward F. Havlik, qualified as an expert witness in the area of marketing and sale of housing, testified on behalf of plaintiffs. He said that the population generated by the proposed development would be between 3,850 and 3,931 persons and that after the development had matured over a period of years the population would be between 5,800 and 5,900 persons. He said that the population generated by the development would equal between 2.7% and 4% of the total population growth of the Libertyville and Mundelein township areas and that the student population would not reach the maximum projected by the school district for a substantial period of time.

Edward J. Greenberg and Larry Mayer, both licensed real estate brokers, also testified for the plaintiffs. Greenberg stated that two pieces of property adjacent to the subject property, referred to as the "Campbell" property and the "Miller" property, are proposed to be developed but not under the existing zoning. He testified that the subject property is surrounded by farm land, a golf course, a residential subdivision and "a strip shopping center." He gave his opinion that the highest and best use would be a moderate density residential development somewhere between seven to nine units per acre, taking into account the cost of bringing in sewer and water and utilities as well as the configuration of the property. He testified that the value of the property as presently zoned is between $1,100 and $1,400 per acre and that its value if rezoned as requested would be $12,000 per acre. In his opinion the proposed development would increase the value of nearby property and would not hinder farming on adjacent properties.

Mayer testified that none of the properties in the area were being developed on the existing zoning; that the highest and best use was a middensity residential development as proposed, and that the logical density would be somewhere in the area of six to eight units per acre. He described the proposed development as a transitorial density between the "Aspergen" development 2- and 4-acre estates) and the existing density as zoned in Mundelein of the "Huntington" development and the requested "Miller" development. He said that the proposed development would increase the value of nearby property. He also placed the value of the subject property between $1,100 and $1,300 per acre as presently zoned. He concluded that Fremont Township is no longer a farming township and that the property being purchased in that area was primarily for future near-term development to some extent and for investment for long-term future development.

The County of Lake presented the testimony of Nels Havens, the Superintendent of the Mundelein High School District. Havens testified that the school district had signed an agreement with plaintiffs providing for a donation of land, or cash in lieu of land for a high school and an amount of money to be paid to the school district at the time of occupancy. The school district valued the property to be donated at $14,000 per acre. Ludwig H. Koepke, Superintendent of the Fremont School District, also testified for the County and stated that his district had signed an agreement similar to the high school site agreement. He stated that the agreement reduced the impact of the school population generated by the proposed development.

The intervenor, Village of Mundelein, called Allen Kracower who was qualified as an expert city planning consultant. He did not agree with the planning of the proposed development. Particularly he testified that the proposed development contained an inadequate amount of usable recreational space and that the density in certain portions was too great. He acknowledged that the proposed development is in accord with the open space standards of the National Recreational and Park Association and that these standards are accepted by most planners but said that he did not accept them. Over objection he testified that the proposed development was not coordinated with other proposed developments in the area. He said he agreed with the conclusion of the Lake County Soil and Water Conservation District that the proposed development was not in conflict with the proper use of natural resources. He said that he had no opinion as to whether the subject property could be economically developed under the existing zoning. He stated ...


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