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Georgen v. Village of Mount Prospect

OPINION FILED OCTOBER 18, 1978.

RICHARD GEORGEN ET AL., PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF MOUNT PROSPECT, DEFENDANT-APPELLANT. — (WEDGEWOOD TERRACE HOMEOWNERS ASSOCIATION, INTERVENING-DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding. MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

This appeal stems from a declaratory judgment action by the plaintiffs, Richard Georgen (Georgen), and Poppin Fresh Pies, Inc. (Poppin), alleging that single-family residential zoning applicable to a parcel of real estate consisting of four lots owned by Georgen in the Village of Mount Prospect (the Village) was unreasonable and void. The plaintiffs sought an order permitting Poppin, a restaurant chain which is the contract purchaser, to construct a 3,900-square-foot restaurant on part of the subject property, and to use the balance of the property generally for business purposes. The proposed restaurant site would cover two of the lots and a portion of a third; no specific use was proposed for the balance of the third lot and the fourth lot (the remaining portion of plaintiffs' property). The village's zoning board of appeals' recommendation that the plaintiffs' application for rezoning be denied was followed by the board of trustees. The plaintiffs then filed this action, which was contested by the village and an intervening defendant, the Wedgewood Terrace Homeowners Association (the Association), representing homeowners in the area surrounding the four lots.

After a full hearing in which the Association participated, the trial judge entered an order declaring that the Village's zoning of the subject property for single-family residence use was invalid. The order permitted Poppin to build its proposed restaurant without interference by the Village, and allowed it to use the remaining portion of the plaintiffs' property for any activity permitted under the Village business zoning classification.

The property in question is a rectangular parcel of approximately 81,400 square feet located on the east side of Rand Road at the northwest corner of its intersection with Wedgewood Lane. Rand Road is a four-lane divided State highway with a median running in a northwest direction; Wedgewood Lane is a local, blacktopped street running southwesterly. The parcel is part of a large triangular residential area (the Wedgewood triangular area) bounded by Rand Road on the south and west, Euclid Avenue — a four-lane road — on the north, and Elmhurst Road, a four-lane highway, on the east. The parcel has a frontage of 400 feet on Rand Road.

The Wedgewood triangular area consists entirely of property zoned for single-family residential use, except for a small parcel at the southeast corner where Rand and Elmhurst Roads intersect, and another small portion at the northwest corner, in Arlington Heights, where Euclid Avenue meets Rand Road. The parcel at the southeast corner is a retail and service district and has a furniture store, a fast-food restaurant and a gas station. The subject property is separated from this parcel by Wedgewood Lane and seven residential lots. The parcel at the northwest corner also has some small business uses; it is approximately 1,400 feet on Rand Road from the subject property. Wedgewood Lane is one of two principal roads in the Wedgewood triangular area and the only road running through it which exits on Rand Road. The Wedgewood triangular area has narrow macadam streets, no sidewalks and open-ditch drainage. It has about 90 single-family homes.

Two of Georgen's lots are vacant, while the other two contain single-family homes constructed in the middle 1950's. The homes are one story in height, with brick construction and detached garages. Immediately behind the subject property going away from Rand Road and along the north line of the subject property, as well as to the east of the subject property and across Wedgewood Lane to the south, are substantial single-family homes, many of them located on 1/2-acre parcels. To the northwest of Georgen's property is a private residence fronting on Rand Road, where the owner and occupant sharpens and repairs lawn mowers by appointment only. He has no signs on his property advertising his lawn mower business.

Directly across from the subject property on the west side of Rand Road there is an automobile sales agency in an area zoned as a business retail and service district. A shopping center, miniature golf course and baseball-hitting range are directly southeast of the auto agency. The land northwest of the agency is zoned for single-family residential use. Randhurst, a major shopping center, commences on the east side of Elmhurst Road and is separated from the subject property by many single-family residences.

A Poppin restaurant has a full-service limited menu, is open from 11 a.m. to 11 p.m. and features pies, including take-home pies, soup, salads and sandwiches. It is a sit-down restaurant with a capacity of 136 to 138, employing waitresses and keyed into a commissary which guarantees daily delivery of food and pies. Seventy-five parking spaces were planned for the restaurant, 36 more than required by the Village ordinance. The proposed restaurant was to have two major access points to the parking area from Rand Road and one from Wedgewood Lane. Five restaurants which offer a short-order menu similar to a Poppin restaurant are located within 1 3/4 miles from the proposed site. However, the Poppin real estate manager testified that there were many differences between the existing restaurants in the area and a Poppin establishment.

One of the plaintiffs' witnesses, a planning and zoning consultant, testified there was a need for a Poppin restaurant in the area. The owner of the lawn mower sharpening business referred to above also testified he felt a need for such a restaurant. A neighbor of the lawn mower sharpener testified she would like to have a new restaurant in the neighborhood, although she never has eaten at a Poppin restaurant. She did not think that such a restaurant would have any adverse effect on properties in the area. Three other homeowners who lived on the opposite side of Rand Road and two who lived on the same side as the subject property testified they would have no objection to the proposed restaurant. However, a large number of residents of the Wedgewood triangular area called as witnesses by the Village opposed the restaurant. In general, they feared that it would depreciate their property values and attract additional traffic through their streets presenting a safety hazard to the numerous children and adults who play, walk or ride bicycles along those streets. They added that there is no difficulty in finding adequate restaurants in the Mount Prospect-Arlington Heights area.

The plaintiffs' expert witnesses supplied the following testimony. The highest and best use of the property would be for B-3 or B-4 commercial uses, including the specific proposal for a Poppin restaurant. One of the plaintiffs' experts, a planning and zoning consultant, testified that it was not feasible to develop Georgen's property for single-family homes. The plaintiffs' real estate expert conceded, however, that there is a need in the area for single-family residences, that there is sufficient lot area for residences, and that although it would be difficult to market such residences, it could be done.

On the west side of Rand Road, opposite the subject parcel, the Village has zoned for commercial use property contiguous to single-family areas, and the plaintiffs' experts expressed the opinion that both the business and residential uses have existed without a depreciatory effect. In addition, the plaintiffs' experts testified that the trend of development on Rand Road is "going more toward intensive commercial developments." About the only things that break up the commercial development are a few interspersed residences and two golf courses at Euclid Avenue. Otherwise it is essentially a commercial street from Palatine all the way down to Des Plaines. The site planned for the Poppin restaurant would not have an adverse effect on adjoining or nearby properties even if traffic through the Wedgewood triangular area increased. Neither would the remaining portion of the plaintiffs' property have such an adverse effect even if it were developed with any use permitted under the B-3 zoning classification. The restaurant improvements would increase the value of adjacent homes, particularly because of landscaping planned for the rear line of the restaurant property. That landscaping would include a 10-foot bicycle path, a public sidewalk to be constructed on Wedgewood Lane and a proposed fence treatment approximately 8 feet high along the rear lot line. The Village's comprehensive plan designates the subject property as single-family, but the Village has consistently granted rezoning contrary to its plan.

The plaintiffs' zoning and planning expert testified on direct examination that the Wedgewood triangular area contained approximately 45 acres, but on redirect his testimony was that it contained almost 55 acres.

The plaintiffs' experts also testified that a 1975 traffic count showed Rand Road carried 21,700 vehicles on an average daily basis; this makes it a heavily traveled road. A local road such as Wedgewood Lane was used by residents to get to or leave their homes. Based on a traffic count, Wedgewood Lane could be described as very little used. A Poppin restaurant on the subject site would have no effect on the traffic on Rand Road and only a minute effect on the traffic on Wedgewood Lane. The traffic volumes on Rand Road were not so heavy that traffic exiting from or entering the proposed restaurant would affect or endanger anyone. Traffic for the proposed restaurant would come from driveways on Rand Road into the restaurant parking lot, rather than from and to Wedgewood Lane. All of the plaintiffs' experts assumed that automobiles going to or departing from the restaurant would not go through the residential portions of the Wedgewood triangular area.

The value of the subject parcel under its present zoning would be $90,000, apportioned $32,500 to each of the two residences and $12,500 to each of the two vacant lots. With a B-3 zoning classification, which would permit development of any of the commercial uses permitted under that classification, the value of the parcel would be approximately $320,000. The homes located in the residential subdivision in back of the proposed restaurant site range from the low $40,000's to mid $50,000's in value. The two homes on the subject parcel are in a state of disrepair, with peeling paint, broken windows, gutters and sashes, and messy yards cluttered with equipment and automobiles.

Other testimony by the plaintiffs' witnesses referred to a site plan relating to the restaurant's construction which they testified complied with all engineering standards for storm water retention, run-off, sewage and water. To provide such a plan for any single-family homes that might be built on the subject parcel would involve prohibitive costs. These witnesses agreed that the on-site retention plans proposed would not necessarily be adequate for all the uses to which the remaining portion of the plaintiffs' property might be put. They also said that it would not be possible ...


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