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Du Page Trust Co. v. Vil. of Glen Ellyn





APPEAL from the Circuit Court of Du Page County; the Hon. HELEN C. KINNEY, Judge, presiding.


Plaintiffs, Du Page Trust Company, as trustee under a certain trust agreement known as Trust No. 1413, and Donald Nichols and Patricia Nichols, as beneficiaries of said trust, hereinafter the plaintiffs, brought a declaratory judgment action against the village of Glen Ellyn, hereinafter the village, seeking a declaration that the village's zoning ordinance which restricts the use of their property to R-2, single-family dwellings, is void, and further seeking permission to erect an apartment building as permitted under the village's R-4, multiple-family-use classification.

The trial court found that the restriction of this property to single-family residences was reasonable and not arbitrary; that the village's zoning ordinance as applied to the subject property was constitutional and valid because plaintiffs failed to overcome the presumption of validity attaching to such ordinance as applied to their property by clear and convincing evidence; and that plaintiffs failed to show that the prohibition of the proposed use is unreasonable.

On appeal, plaintiffs contend that the trial court's findings in regard to the present and proposed use were against the manifest weight of the evidence and that the court in its findings erroneously adopted the village's argument that the plaintiffs had the burden of demonstrating that all intervening zoning classifications were unreasonable.

Plaintiffs' property is a substantially rectangular lot located on the south side of St. Charles Road, approximately 150 feet east of Main Street in Glen Ellyn, Illinois. The parcel has a frontage on St. Charles Road of 128.6 feet and a depth of approximately 217 feet. Improvements on the property include a residential structure, small out-buildings, and a gravel driveway. The residential structure has been operated in non-conformity to the village's single-family zoning ordinance as a two-rental unit for at least 12 years. Plaintiffs, Donald Nichols and Patricia Nichols, purchased the property in 1972 for $33,500 for the purpose of redeveloping the property by removing the existing structure and constructing a new multifamily apartment building.

The subject property is bordered on the east by R-2 single-family homes which extend to the village's limits. The homes in the immediate vicinity of this area are valued at approximately $50,000. Directly south of the subject property are other single-family residences, zoned R-2 and valued from $40,000 to $50,000.

The property directly north of the subject property fronting on St. Charles Road is a converted single-family home which is presently utilized as a craft and boutique establishment. This property is annexed to unincorporated Milton Township. The use of this land is controlled by the zoning ordinance of Du Page County and is currently zoned as a B-4 Business District. Immediately adjacent to the east, along St. Charles Road, the property in the county is designated R-3, single-family residence, with a permissible lot area of 10,000 square feet.

Adjoining plaintiffs' property to the west and extending to the east side of Main Street is a gasoline service station that was erected in 1971 and is open nightly until 11 p.m. This station is part of a C-2 Community Commercial District in Glen Ellyn zoning ordinance which stretches to the south for one block on Main Street and includes the frontage property at the intersection of Main Street and St. Charles Road. The area west and south of this C-2 district, however, is zoned and developed for single-family purposes.

Donald Nichols, one of the plaintiffs and a real estate broker in Glen Ellyn, testified that he would like to build 11 units, either as townhouses or an apartment building, on the subject property. He planned to build four three-bedroom units and seven two-bedroom units, and these multiple-family units would conform to the village's zoning code in regard to parking, height, and other restrictions. Mr. Nichols, however, did not have a specific plan or other specifications for his proposed building.

Donald Sutte, a real estate appraiser, testified for the plaintiffs that, in his opinion, the value of the subject property was:

(1) $27,000 — as a nonconforming two-family residence.

(2) $15,000 — as one single-family lot, and $20,000 as two single-family lots. In each of these instances, he had considered the demolition cost of the existing structure.

(3) $44,000 — if the property was rezoned for an 11-unit apartment building, which again included the demolition cost.

In Mr. Sutte's judgment, the highest and best use of the property after a consideration of the size and location of the site, the adjacent and surrounding zoning and use, traffic, and the condition of ...

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