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Doherty v. City of Des Plaines





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


The plaintiffs brought this action for a declaratory judgment in the Circuit Court of Cook County against the defendant, City of Des Plaines, to have the court declare the R-2 single-family zoning invalid as it applies to the subject property and permit the use of the subject property for office purposes. The plaintiffs are Thomas and Constance Doherty, the owners of the property, and Jack L. Kemmerly, the contract buyer of the property.

After the appeal was taken in this case the property was again sold by the Dohertys for $68,000, with Jack L. Kemmerly acting as the broker. An affidavit signed by one of the new purchasers indicated the purchase was largely predicated upon its potential commercial use, and it is the intent of the purchasers to use it for limited office use at this time.

The issue for review is whether the R-2 single-family zoning applicable to the subject property is arbitrary and discriminatory and bears no relationship to the public welfare.

The subject property is located on the east side of Elmhurst Road, Illinois State Highway Route 83, approximately one-half mile north of the Northwest Toll Road and Elmhurst Road interchange. The property is approximately eight-tenths of an acre in size and has a frontage of 174 feet along Elmhurst Road and a depth of 200 feet. The property is improved with a large, six-bedroom house which was originally a farmhouse. The house is 40 to 60 years old and is structurally sound and reasonably well maintained. There are two outbuildings: a large frame barn and a smaller frame garage.

The property is surrounded on three sides by the Devonshire subdivision and is abutted by nine homes. The subdivision contains over 100 homes and covers 40 acres. The house on the subject property is set back farther from the road than the adjacent houses, but unlike the subdivision homes which front on side streets, the only access to the property is from Elmhurst Road.

Elmhurst Road is a busy four-lane highway with a mountable median. At a distance of 350 feet to the north and 325 feet to the south of the property there are commercial districts with such uses as restaurants and gas stations. The property immediately across the road to the west is vacant, but it is zoned for business by the Village of Mount Prospect. The property to the southwest is zoned R-X residential, which is the highest residential use designated by Mount Prospect. However, R-X zoning is automatically assigned to property which has been involuntarily annexed, and in that case the zoning may be subject to change. There was no evidence with respect to which of these circumstances existed.

Jack Kemmerly, a real estate broker who owns ten offices in the northwest suburbs, contracted with the Dohertys to buy the subject property for $82,500 contingent upon obtaining commercial zoning. He testified the proposed use of the property is for general office use, mainly real estate. He would use the six bedrooms as private offices for sales persons and brokers, and the outbuildings would be used for parking and the storage of equipment. There is a stockade fence approximately six feet high on the north and east sides of the property, and he proposed to continue the fencing for the south side. He would asphalt the existing gravel driveway, and make other cosmetic improvements, but he also intended to construct a 10- or 12-foot sign with neon lighting if local ordinances permitted. The offices would be open from 9 a.m. to 9 p.m. seven days a week. Kemmerly testified Mr. Doherty was in the plumbing business and operated his business out of the house.

The property was put on the market for six months in 1974 at a price of $85,500. There were some inquiries but no written offers, and no specific attempt was made to advertise the property for single-family use.

Gerald Estes, an architect and city planner, testified for the plaintiff. He stated the subject property takes its character from its frontage along Elmhurst Road, and the dominant character of this stretch of road is one of high commercially oriented uses that draw on the traffic pattern in the area. He stated the subject property under its current zoning would be an isolated piece of residential development fronting on Elmhurst Road. The subject property does not have any direct connection to the residential development which surrounds it, and the property is more suited for a commercial use. The highest and best use for the site would be for a limited professional use of an office type and would not create a detrimental effect on the surrounding residences.

He testified it is possible to develop the property into three lots with variations in lot size or frontage, but even if it were possible to develop the lots without variations, the property would still be most suitable for a professional or commercial type use. Estes recommended placing a stockade fence along the south side of the property to screen the three residences which abut the property at that location because of their shallow back yards.

William A. McCann, a real estate appraiser and consultant, testified on behalf of the plaintiff. He stated the character of the area has changed from rural residential to that of highway oriented commercial. In his opinion the subject property was not physically worked into the Devonshire subdivision because there is no means of ingress or egress except for Elmhurst Road. McCann stated the highest and best use would be for highway oriented commercial office use, particularly of the type proposed in this lawsuit. The buildings on the site could be adapted for the type of use proposed, and it would be a far less extensive use than has been made of many of the parcels fronting on Elmhurst Road.

He testified the value of the property under the current zoning is in the range of $45,000 to $50,000, and the value of the property for the proposed use is in the range of $100,000. He stated the proposed use would not be deleterious to the uses, trends, or values of the surrounding property and it would not impede the orderly development of the area in which it is located.

Theodore Kowalski, a real estate appraiser and consultant, testified on behalf of the defendant. He said the subject property is worth $60,000 as currently zoned, and as proposed for office purposes would have a value of $80,000. Even though the property is not a preferred residential location, he stated the highest and best use is for single-family residential zoning with the interim use of the existing buildings until such time as the property were subdivided and sold as individual residential sites. He stated the nine single-family residences which abut the subject property most, influence the property, and if the proposed use were granted, ...

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