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First Nat'l Bk. of Des Plaines v. Cty. of Cook

OPINION FILED MARCH 9, 1977.

THE FIRST NATIONAL BANK OF DES PLAINES, TRUSTEE, ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF COOK, DEFENDANT-APPELLANT. — (THE VILLAGE OF ARLINGTON HEIGHTS, INTERVENOR-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiffs, The First National Bank of Des Plaines, as trustee, and Rocco DePaul, as beneficial owner, filed a complaint for declaratory judgment against defendant, County of Cook, asking that the Cook County Zoning Ordinance be declared invalid as applied to certain real property. The Village of Arlington Heights was granted leave to intervene. After a trial, the trial court on July 21, 1975, entered judgment for plaintiffs from which an appeal was filed by defendant and intervenor. On appeal they contend that plaintiffs have not overcome the presumption of validity attaching to the existing classification of the subject property under the Cook County Zoning Ordinance, and that plaintiffs have failed to prove that the proposed use is reasonable.

We affirm. The pertinent facts follow.

The subject property is located on the east side of Arlington Heights Road in Elk Grove Township in an unincorporated area of Cook County. It is improved with a single-family home and circular driveway. Rocco DePaul made application to the Cook County Zoning Board of Appeals to rezone the property from R-3, a single-family residence district under the county zoning ordinance, to B-3, a general business district, to use the existing structure as a real estate office. The Zoning Board of Appeals found that the subject property is considered suitable for use under its present R-3 zoning, in view of its use as a single-family residence and the residential use of adjacent property. Accordingly, the Zoning Board recommended to the Cook County Board of Commissioners that the application for rezoning be denied. The Board of Commissioners concurred in the recommendation of the Zoning Board, and this suit followed.

The Village of Arlington Heights received notice of the proceedings and was granted leave to intervene. The municipal boundary of the Village is contiguous to the subject property to the west. The Village on September 9, 1974, amended its Comprehensive Plan to add territory to the Plan wherein the entire block inclusive of the subject property was designated as an Office Transitional District in the event of annexation to the Village. Such use permits professional offices when developed in accordance with an approved plan for a total site; however, the subject property does not meet the minimum frontage for such development.

The subject property is bordered on the west by Arlington Heights Road. It consists of one-half acre and the improvements are set back 96 feet from the road. Arlington Heights Road is a four-lane arterial highway, which was widened about 15 years prior to trial. About 10 years thereafter a new exit was constructed from the Northwest Tollway onto Arlington Heights Road. This new exit is about one mile south of the subject property. On the west side of Arlington Heights Road, across from the subject property, is a subdivision in which the homes front on the interior streets and their rear yards or side yards are located on Arlington Heights Road. A stockade fence provides a buffer from Arlington Heights Road for some of these homes. These properties on the west side of Arlington Heights Road are in the Village of Arlington Heights and are zoned R-3.

Approximately 450 feet to the north of the subject property is the intersection of Noyes Street and Arlington Heights Road. On the northeast corner, which is located in unincorporated Cook County, is a service station that is zoned B-2. East of the service station is the State of Illinois Highway Maintenance Yard and Garage which is zoned R-3. On the southeast corner of Noyes and Arlington Heights Road, the block on which the subject property is located, is a vacant parcel of land that has been annexed by the Village of Arlington Heights and zoned B-1. Approximately 300 feet north of the subject property is a farm stand. Single-family homes are interspersed among the subject property, the farm stand, and the vacant lot at the corner. Some are owner-occupied, and others are either vacant or rented.

Approximately 550 feet south of the subject property is the intersection of Council Trails Road and Arlington Heights Road. On the southeast corner is a new office building that is located in unincorporated Cook County. This property was rezoned in 1972 from R-3 to B-3. Directly south of the subject property up to Council Trails Road, the uses are residential and are either owner-occupied or rented.

The subject property is bounded on the east by property that is landlocked and zoned R-3.

At trial, witnesses were called to testify by plaintiffs and defendant, the County of Cook. The intervenor did not call any witnesses. The following is a summary of the testimony of the various witnesses.

Rocco DePaul, the beneficial owner of the subject property, is a real estate broker. He purchased the property in 1974 for $54,000. At that time and since the property has been zoned R-3, a single-family residential district. He requested the zoning change to B-3, a general business district, to allow him to use the property as a real estate office using the existing structure in its present condition. Prior to purchasing the subject property, the property at the north end of his block had been annexed by the Village of Arlington Heights and has since been rezoned from R-3 to B-1. A farm stand is located approximately 300 feet to the north of his property and has been in operation since before he purchased his property. Prior to purchase of the subject property, the property 600 feet south of the site had been rezoned from R-3 to B-3 by the County to permit construction of an office building. DePaul also testified that Arlington Heights Road is a "heavily-travelled" four-lane highway, and that although there are sidewalks on the west side of the road there are no sidewalks on the east side of the road on which his property is located.

On cross-examination DePaul stated that he has rented out the subject property for single-family use since he purchased it, and the rent at the time of trial was approximately $450 a month. The homes immediately adjacent to the south and north of his property are rented for single-family use, although the one to the north is vacant at present. The land just behind the subject property is landlocked. About 3000 feet to the north, also on the east side of Arlington Heights Road, there are commercial uses which are not located at an intersection. Although "quite a few" cars went to the fruit stand from spring through October, no cars did so in the out-of-season months.

Albert Gundelach and John McNamara, real estate appraisers, were called as witnesses on behalf of plaintiffs. They testified essentially as follows. The trend of development on the east side of Arlington Heights Road is for commercial use. Although the character of the neighborhood is single-family residential, a more natural use for the property is commercial. The highest and best use of the subject property is office use, based on the properties that exist along Arlington Heights Road, the size of the lots, and the fact that on the east side no homes have been built in the last 25 years which face Arlington Heights Road. A real estate office would have no depreciatory effect on the surrounding properties and would not affect the character of the neighborhood. The proposed use would conform to the character of the surrounding uses in size and shape and would "look the same" as the residential uses. The property is not suitable for a single-family residence. It is located on Arlington Heights Road, a "heavily-travelled" arterial highway leading into the heart of the Village of Arlington Heights. It is just one mile north of a recently constructed tollway exit onto Arlington Heights Road. The constant traffic on Arlington Heights Road has a depreciatory effect on single-family residences. Because there are no sidewalks on the east side of the street, there is no ingress or egress from a pedestrian standpoint. The homes on the east side near plaintiffs' property are older than those across the street. The fact that the homes on both sides of plaintiffs' property are rented indicates a deterioration of the residential character of the area and a change toward commercial use of the property. The homes directly across Arlington Heights Road from plaintiffs' property face interior streets, and a privacy fence runs part of the way along Arlington Heights Road. Whereas the current market value for the subject property is about $50,000-$56,000 under the present zoning, the market value of the property if zoned B-3 would be $75,000.

John Lundquist, an area resident, testified for defendant. He lives two doors, or about 200 feet, to the north of the subject property. He did not know the general classification when he purchased his property in 1936, because "there was no zoning at the time." However, he relied on the general zoning classification when he built his home in 1940. He would not have bought the property or built the home had the subject property been zoned B-3 at that time. He had ...


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