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Cornell v. County of Du Page

OPINION FILED DECEMBER 29, 1977.

SAMUEL CORNELL ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF DU PAGE ET AL., DEFENDANTS-APPELLEES. — (THE VILLAGE OF LISLE, INTERVENOR-APPELLANT.)



APPEAL from the Circuit Court of Du Page County; the Hon. JAMES E. FITZGERALD, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 17, 1978.

This is an action for declaratory judgment and injunctive relief originally brought by 41 individual plaintiffs, joined by the Village of Lisle as a separate intervening plaintiff, against the County of Du Page and Riley and Helen Riedy. The plaintiffs sought to have a special use permit ordinance, passed by the County to allow the construction of a miniature golf course, parking facilities and a lighted golf driving range upon a tract of land beneficially owned by the Riedys, declared void. The plaintiffs also sought to have a portion of the Du Page County Zoning Ordinance declared unconstitutional. Finally, the plaintiffs requested that a permanent injunction be entered to prevent the construction of the golf facility upon the Riedy's land. After a bench trial judgment was entered for the defendants and the complaints of both the Village of Lisle and the individual plaintiffs were dismissed. The various plaintiffs have appealed.

The property here involved is a tract of riverfront land located in unincorporated Du Page County but surrounded on the west, north and east by the Village of Lisle. This roughly rectangular tract is approximately 21 acres in size. The southern boundary of the tract runs for 520 feet along Maple Avenue, a major thoroughfare. Across Maple Avenue from the subject property are several single family residences as well as a sewage treatment plant operated by the Du Page County Public Works Department. Southwest of the property is Four Lakes Village, a multifamily residential planned unit development. The western boundary of the property runs for 1300 feet along the east bank of the East Branch of the Du Page River. Directly across the river is an area zoned for community business district (B-2) by the Village of Lisle, which is presently vacant except for a temporary sewage treatment plant. Northwest of the property, across the river, is vacant farmland and land reserved for the Lisle Senior High School. The northern boundary of the property runs for 725 feet parallel to the backyards of two private residences. To the north of the property beyond the above mentioned backyards is a presently vacant area zoned for multifamily use. The eastern boundary of the property runs for 1380 feet along the rear property lines of 11 single-family residences and two vacant lots. Further to the east of the subject property are generally extensive developments of single-family residences or schools, with the exception of an area located at the intersection of Route 53 and Maple Avenue, which has a rather extensive commercial use. This area of commercial development is within approximately 350 feet of the eastern boundary of the subject property. The property itself is zoned for single-family residential use (R3) under the zoning ordinances of the County of Du Page. Approximately 80% of the tract of land at issue is located within the Du Page County floodplain and thus, under ordinary circumstances, cannot be used for construction purposes. Until recently the subject property was utilized as a sod farm.

Fourteen of the 21 homes owned by the plaintiffs to this action lie within a subdivision known as Riley Riedy's Lisle Villa Wooded Acres, of which the subject property is Lot 34. These plaintiffs, or their predecessors in title, purchased their lots from the defendant Riedys. Included in some of the deeds to these lots was a covenant running with the land restricting the use of these lots to residential purposes, however, no such covenant appeared in the plat of subdivision or in the deed to the 21-acre Lot 34.

In April 1970 the Riedys filed a petition with the County of Du Page for the issuance of a special use permit to construct and operate a lighted golf driving range with 15 to 20 tees; a miniature golf course and parking facilities for 100 cars. The Village of Lisle filed a written protest to this petition with the county clerk. A hearing was held before the Zoning Board of Appeals of the County of Du Page on May 14, 1970. As a result, that body found that the proposed special use would depreciate adjacent residential property and deter the development of surrounding vacant property and recommended that the petition be denied. On April 23, 1971, the Board of Supervisors of Du Page County passed an ordinance disagreeing with the findings and recommendation of the Zoning Board of Appeals and granting the special use permit with restrictions. The restrictions imposed were as follows:

"(1) There shall be no buildings, structures or activity areas within 100 feet from the east residential property line.

(2) That the miniature golf course be moved to the westerly portion of the property.

(3) That there will be no development or structures within the flood plain area unless an area equal to that which is filled is provided on the site.

(4) The hours of operation shall be limited to 10:00 A.M. and 10:00 P.M., Monday through Thursday, and between 10:00 A.M. and 12 midnight on Friday, Saturday and Sunday."

As a consequence of that legislative action this suit was filed.

Four issues have been raised by the plaintiffs for our consideration on this appeal. First, whether the legislative procedure followed by the Du Page County Board of Supervisors was improper or illegal. Second, whether the Riedys are barred from utilizing the subject property for any use other than residential by their insertion of restrictive covenants into the deeds to certain lots in the same subdivision when those lots were sold by the Riedys to some of the plaintiffs or their predecessors in title. Third, whether the Du Page County Zoning Ordinance, which allows golf driving ranges as a special use in certain single-family zoning districts, is improper. Fourth, whether the special use permit involved here is arbitrary, capricious or unreasonable and without any relation to the public health, safety or welfare.

• 1 We turn initially to the propriety of the legislative procedure utilized in the passage of the special use permit ordinance here. We need not, however, consider the merits of the plaintiffs' contention in this regard. As we stated in the case of First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App.3d 131, 137, 361 N.E.2d 832, 837:

"It is fundamental that a party may not urge for the first time on appeal, and for the purposes of overturning the decision below, an argument or theory ...


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