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Northbrook T. & Sav. Bk. v. County of Cook

OPINION FILED APRIL 7, 1977.

NORTHBROOK TRUST & SAVINGS BANK, TRUSTEE, PLAINTIFF-APPELLEE,

v.

THE COUNTY OF COOK, DEFENDANT-APPELLANT.



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

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 5, 1977.

This litigation arose out of a complaint for declaratory judgment in which the plaintiff, Northbrook Trust & Savings Bank, sought a declaration that the Cook County zoning ordinance was unconstitutional as it pertained to the subject property. After a bench trial in the circuit court of Cook County, the court declared the zoning ordinance to be unconstitutional as applied to the subject property and held that the proposed use of a general service plan development was a reasonable use of the subject property.

The issues presented for review are (1) whether the plaintiff overcame the presumption of validity attaching to the zoning ordinance, (2) whether the trial court's finding that the classifications of the zoning ordinance intervening between the existing R-3 and the proposed B-4 classification was unreasonable, (3) whether the trial court's restriction in cross-examination was reversible error, and (4) whether the plaintiff exhausted its administrative remedies.

The plaintiff is Northbrook Trust & Savings Bank as trustee for Ernest F. Schultz, Jr., Jens J. Jensen, and E.N. Maisel and Associates, developer of K-Mart Shopping Centers; the defendant is the County of Cook; and the intervenor-defendants are the Village of Northbrook, the Village of Glenview, the La Salceda Homeowners Association, and the American National Bank representing the residential developer of an adjoining parcel of land.

The subject property consists of 17.9 acres located in unincorporated Cook County, contiguous to the corporate limits of the Village of Northbrook. It lies northwest of the intersection of Willow Road and Shermer Road and fronts upon both Willow and Shermer except where separated from the intersection by an intervening parcel approximately 200 feet square which is used as a service station. At the time of trial, the subject property was in an R-3 single-family residence district under the 1960 Cook County Zoning Ordinance and has been operated as a commercial nursery by the sellers of the property, Robert Gould and Pauline Gould, his wife. The Goulds sold the property for $1,172,000 contingent upon the rezoning of the subject property to permit the uses sought in this section.

The plaintiff applied for reclassification of the subject property to the B-4 General Service District with a special use of a planned development. After a hearing by the Zoning Board of Appeals, the Board of Commissioners denied the application. Immediately prior to trial, the plaintiff proposed a modified site plan. The plaintiff's counsel contended the alterations were insubstantial and asked leave to file an amendment to the complaint to conform with the specifications of the revised site plan. The court entered an order providing that upon agreement of the parties the plaintiff would petition the Cook County Zoning Board of Appeals to obtain a determination as to whether the changes in plaintiff's plan would alter the Board's previous recommendation.

The Board found that there had been no substantial changes in the revised plan and stated that the change in plans would not alter their recommendation. The trial court then proceeded with the trial based upon the amendment to the complaint which contained the modifications to the site plan. The County of Cook and the intervenor-defendants objected and moved to dismiss the complaint for failure to exhaust administrative remedies, but the motion was denied.

Subsequent to the entry of the final judgment order in favor of the plaintiff in this action, the Board of Commissioners of Cook County adopted the comprehensive amendment to the Cook County Zoning Ordinance on January 19, 1976. Under the amendment, the subject property was reclassified to C-4, general commercial district, subject to a special use and to R-6, general residential district, subject to a special use. The zoning district lines correspond exactly to the areas set forth in the plans approved by the trial court and the classifications permit the uses proposed by the plaintiff.

On January 28, 1976, the Village of Northbrook filed a complaint in the circuit court of Cook County against the County of Cook contesting the validity of the comprehensive amendment insofar as it reclassified the subject property to permit plaintiff's proposed development and a number of other commercial uses. Northbrook was thereafter joined in that action by the La Salceda Homeowners Association and the Village of Glenview.

On appeal some of the parties contend the questions in this case are moot because of the change in zoning and others dispute that contention, but we are determining the case on the merits.

Under the modified site plan, the plaintiff proposed to improve the subject property with a combination commercial and multiple-family development. Approximately 14.7 acres would be improved with 163,000 square feet of commercial building area and the westerly portion of the subject property consisting of 3.2 acres would be improved with one multiple-family building 2 1/2 stories tall consisting of 31 dwelling units. The principal tenants in the commercial area will be K-Mart, a supermarket, other retail operations, and either a bank or a restaurant.

It is proposed that the site will be buffered on the north and the west by a landscaped area 10 feet wide and by a stockade fence 5 feet high. The commercial development will include a parking lot for 910 automobiles and the multifamily portion of the proposed development will include parking 62 cars. There will be three exits onto Willow Road from the development, one from the residential portion, and two from the shopping center. In addition, there will be one exit from the shopping center onto Shermer Road.

The subject property is bounded on the north by the La Salceda Del Norte residential development, an apartment complex of four multifamily structures zoned in the R-6 general residence district of Northbrook. The apartments rent from $240 to $440 per month.

The Villas Salceda, a 61-unit residential development zoned under the R-8 special development district of Northbrook, borders the subject property on the west. The villas, some of which directly abut the subject property, range in price from $79,500 to $96,250.

To the south the subject property borders on Willow Road, and to the south of Willow Road is a presently undeveloped 37-acre tract of land, classified in the R-3 single residence district under the county zoning ordinance.

The area to the east of the subject property across Shermer Road is classified M-1, restricted manufacturing district, except for the northeast corner of the intersection which is zoned B-2, and improved with a service station and a carwash. The M-1 area is improved with the United Parcel Service distribution center which also accommodates parking for many large truck trailers from 40 to 60 feet in length. North of the United Parcel Service facility is Borden-Wyler Foods, a manufacturing and processing plant. La Salceda Del Norte is directly across the street from United Parcel Service and Wyler Foods.

The southeast corner of Willow and Shermer Roads was classified for B-4 general service district under the Cook County Zoning Ordinance and improved with a service station, a restaurant, and a small shopping center known as the Will-Sher Center.

To the southwest of the subject property lies the La Salceda development consisting of 98 four-bedroom homes, the average price of which is $88,000.

Willow Road at this point is a major east-west artery, running from the Edens Expressway on the east to the Toll Road intersection, 2 miles to the west. It has a speed limit of 50 ...


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