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Ward v. County of Cook

OPINION FILED JANUARY 8, 1979.

HAZEL WARD ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF COOK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

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

This zoning litigation, instituted by Hazel Ward and Forest Hills Development Company (plaintiffs), against County of Cook (defendant) resulted in a judgment for defendant. Plaintiffs have appealed.

The vacant subject property is located in Lyons Township, an unincorporated area of Cook County. The property is a regular rectangle. Its eastern and western boundaries are each 258.90 feet. Both its northern and southern boundaries are 942.21 feet. The tract contains approximately 5 1/2 acres. The eastern boundary fronts upon Willow Springs Road. The remaining boundaries of the tract abut upon other properties.

Proceeding to the west of the subject tract, we find Howard Avenue, then Franklin Avenue and Wolf Road in order. To the east of the property, across and east of Willow Springs Road, we find Edgewood Avenue, a number of shorter streets and then Brainard Road. To the south of the property the streets are numbered 60th Street, 62nd Street and 63rd Street. To the north of the property, 59th Street is not a through street and the next street is 59th Place. Plainfield Road, running north and west of the subject property, is a diagonal from southwest to northeast.

At the present the property is zoned R-4 by defendant's ordinance. This category permits single-family residences on lots of at least 20,000 square feet, which is one-half an acre. The property has been zoned under these requirements since 1968. When this zoning originated, water and sewer connections were not available to the property. At present such facilities are available.

The zoning of the surrounding area is best discerned by a view of the map. The property is abutted and surrounded on all sides by R-4 zoning. There is a small area of five lots developed under R-5 zoning, which permits single-family homes on a lot not less than 10,000 square feet in area. The parcel is located approximately 450 feet south of the southeast corner of the subject property. It is an irregularly shaped tract of about four lots fronting upon Willow Springs Road for about 600 feet. About 700 feet to the southwest of the subject property is a golf course also zoned R-5. There are a church, school and fire station under P-1 zoning fronting upon and across Plainfield Road, about 200 feet from the subject property. The map also shows some areas of R-1 zoning which are within the City of Countryside and the Village of Indian Head Park. *fn1 The entire balance of the surrounding zoning is predominantly R-4. The areas within a radius of one-quarter of a mile from the subject property are developed with single family homes on half-acre lots. A land use and planning expert called by plaintiffs described this as the established land use trend in the area of the subject property.

The subject property is owned by plaintiff Hazel Ward who acquired it by inheritance. On January 2, 1974, she entered into a written agreement giving plaintiff Forest Hills Development Company an option to purchase for $120,000; subject to accomplishment of rezoning. This price was $20,000 less than the initial purchase price suggested by the owner when she first listed the property for sale. About that time a sign indicating that the property was for sale was posted thereon. There is no evidence that Mrs. Ward or the previous owner took any other action to sell or develop the property for the 5 years prior to the option.

When the option was executed the parties thereto were aware of the zoning ordinance. There is evidence that the configuration of the property would restrict the improvement thereon to eight homes. Theoretically there is room for 11 homes under R-4 zoning. Any residential development would require an access street through the property. The Zoning Board of Appeals and the Board of Commissioners of defendant denied an application by plaintiffs for rezoning of the tract to R-5.

Plaintiffs offered expert testimony and a site plan reflecting the use to which they would put the property. There would be an access street within the development running west from the Willow Springs Road entrance, close to the southern Boundary. This road would curve up to about the center of the tract and continue west. A turnabout would be constructed close to the western boundary.

The site plan reflects 26 single-family residence units, varying from two stories, single stories and trilevels. Buyers of homes would have a choice of three building types all consistent with homes already erected in the area. Each home would have a one-car garage and each would be provided with a driveway some 30 to 40 feet in length. No two homes would be closer than 14 feet. No building would be closer than 10 feet from the lot line.

There would be an open area in the eastern portion of the property which would enable construction of eight single-family homes in a cluster. This would permit an open park area of approximately one acre in the center of the tract and other open spaces as required for proper drainage of storm waters.

The theories of the parties were brought out by the testimony of qualified experts. Plaintiffs called the builder and prospective developer of the tract; an architect and planner; a student of land use and planning; an engineer and two real estate appraisers. Defendant called a planning and zoning expert and a real estate and appraisal expert. We will not summarize the testimony of each of these witnesses separately. We will state a summary of their testimony concerning the various factors here involved.

The architect and land planner called by plaintiffs defined the term "highest and best use" of land as meaning the development of real estate to produce the highest economic return consistent with social and economic standards and without depreciation of surrounding properties. He expressed the opinion that lot areas of 20,000 square feet were no longer necessary since availability of water and sewer connections at the subject site had eliminated the need for individual wells and septic fields to serve each home. He testified that, in his opinion, the proposed planned development of the property as suggested by plaintiffs, with single-family residential use under R-5 zoning, would be the highest and best use of the tract. This opinion was supported by testimony from two real estate appraisers. The real estate expert and the planning and zoning expert called by defendant both expressed the opinion that the highest and best use of the property was single-family residential development under the present R-4 zoning.

Both sides offered proof regarding the effect of the proposed planned development upon the surrounding area. One of the real estate experts called by plaintiffs testified that the current trend and demand in building was for smaller sites. In his opinion, the proposed use was compatible and consistent with existing zoning and uses in the area. He felt the difference in density between that permitted by the present zoning and the proposed development would not alter compatibility as this type of varying density was not unusual. He testified the effect on property values in the neighborhood would not be different in either situation.

One of the expert planners called by plaintiffs testified virtually to the same effect. He expressed the opinion that the proposed development would not adversely affect public health, safety and welfare in the community and the proposed use would be no different in its effect than development under the present zoning. In his opinion, the proposed use was consistent and compatible with the uses in the area of the subject property.

Another expert appraiser called by plaintiffs testified to the same effect concerning the present demand for homes of lower cost. He expressed the opinion that, because the proposed use was a single-family residential improvement, it would have no deleterious effect on surrounding property uses or values. He explained that the area in question had already been substantially developed. He testified that the proposed use would have no adverse effect on public health, safety or welfare but that development under present zoning would increase traffic in the area.

On the contrary, the planning and zoning expert called by defendant expressed the opinion that the proposed planned development would impair the ability of adjoining residents to use and enjoy their property. In this concept, he included aesthetic enjoyment of the surrounding area and of the scenic view. He testified that traffic would be increased under the proposed use. He based this opinion concerning traffic upon the proposition that more houses meant more automobiles. In his opinion, the trend of development in the immediate area of the subject property was for single-family homes on one-half acre lots.

The real estate expert called by defendant was familiar with sales of vacant lots in the area of the property. Based upon his knowledge and experience in real estate values, he stated that the proposed use of the subject property would cause an approximate depreciation of $10,000 each as to existing family homes immediately to the north. In his opinion, two homes on Howard Avenue, immediately to the west of the property, would also be adversely affected in value to the extent of ...


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