APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Following a trial in the Circuit Court of Cook County, a judgment order was entered declaring the zoning ordinance of the defendant, City of Park Ridge, invalid and void with respect to certain property upon which the plaintiffs, La Salle National Bank, as trustee, and McDonald's Corporation, seek to develop a McDonald's restaurant. The order also enjoined the City of Park Ridge and its officials from enforcing the ordinance with respect to the subject property and from interfering with the plaintiffs' development and use of the property according to the plans which had been submitted to the City and to the court. Park Ridge appeals from the order, contending that (1) the trial court erred in applying the standards for judging the validity of the zoning ordinance; (2) the plaintiffs failed to overcome the presumptive validity of the ordinance, and (3) the order is against the manifest weight of the evidence.
The order of the trial court granted relief with respect to count I but denied the relief requested in counts II and III of the plaintiffs' three-count amended complaint. By way of cross-appeal, however, the plaintiffs urge that judgment also be entered in their favor with respect to counts II and III, wherein they sought a declaratory judgment that the zoning ordinance is not only invalid as applied to the subject property, but also void on its face in that it totally excludes carry-out restaurants from the City's B-1 (retail business) district (count II), and that it also totally excludes carry-out restaurants from the entire City of Park Ridge (count III).
In the mid-1950's, La Salle National Bank acquired title, as trustee, to the subject property, an irregularly shaped parcel of land with frontage on Northwest Highway and Oakton Street, which property is part of a triangular section of land formed by the intersections of Northwest Highway, Oakton Street and Fortuna Avenue, in the City of Park Ridge. The property measures approximately 49,000 square feet and at the time of its acquisition by the bank, it was a vacant lot zoned primarily for commercial use. The property was leased to the National Tea Company, and an 11,000 square foot, one-story brick and stone building was erected along the Northwest Highway frontage of the property. By April 1, 1958, the lessee began operating a National food store from the premises. The remaining portion of the Northwest Highway frontage was developed to provide off-street parking for the food store. The Oakton Street frontage was also developed for off-street parking in connection with the store use pursuant to a zoning variance which changed the status of this portion of the property from its previous residential zoning. For 15 years the property continued to be used as a National food store; throughout this period 94 illuminated off-street parking spaces had been located on the property.
In September 1972 the National Tea Company gave notice to the owners of the property that it was going to close the food store and vacate the subject property by April 1, 1973. Subsequent to the receipt of this notice, the real estate brokerage firm dealing with the property sought to secure another business tenant for the premises. Contacts were made with representatives of various retail businesses in the effort to lease the store building and the adjacent parking facilities. After the National food store closed, a "for rent" sign was posted on the property. Attempts by the management to obtain a new business tenant proved unsuccessful. Therefore, the owners decided to raze the structure and sell the vacant land for redevelopment. The store was demolished in December 1973.
Through "for sale" signs posted on the subject property, inquiries concerning the purchase of the property were invited. The brokerage firm also sought to sell the property through telephone contacts with various parties. Advertisements for the sale of the property were not placed with either print or electronic media, and no listing of the property through outside real estate firms was attempted, except in those instances where a listing was arranged upon the solicitation of an outside broker. An associate of the brokerage firm testified that it was the firm's practice to market its commercial property in the manner applied to the subject site. Prior to the offer by McDonald's Corporation to purchase the property, only one other offer had been made. The sale was not consummated, however, because financing could not be arranged.
In May 1974 the plaintiff entered into a written agreement whereby McDonald's agreed to purchase the property for use as a McDonald's restaurant. The contract set $210,000 as the purchase price of the property and provided that the agreement be subject to "restrictions of record which do not interfere with Purchaser's proposed use of the premises." At the time of the contract for sale the zoning ordinance of the City of Park Ridge classified the subject site in such manner as to allow its use for a restaurant, but only upon the grant of a special use permit. In the fall of 1974, the plaintiffs made application for a special use permit with the plan commission of the City of Park Ridge. In October the commission recommended that the application be denied. In December 1974 the City's zoning board of appeals also recommended that the permit be denied and the City Council concurred in denying the permit.
Exhausting all remedies available under the municipality's zoning ordinance, the plaintiffs filed this action for declaratory judgment and injunctive relief in March 1975. On September 2, 1975, the City of Park Ridge enacted a new comprehensive zoning ordinance; thereafter, the plaintiffs amended the complaint to reflect the provisions of the new ordinance.
Under the new ordinance the zoning of the subject property was redesignated in such manner as to alter the posture of this case and to provide the basis for the relief requested by the plaintiffs in counts II and III of the amended complaint. The portion of the property fronting on Northwest Highway is now classified as B-1, retail business district. The portion fronting on Oakton Street is now classified R-2, two-family residential. However, the variance previously obtained for this portion of the property allowing it to be used for off-street parking in connection with a retail use of the highway frontage remained intact. Sixty-six retail uses are permitted as a matter of right within the new B-1 classification. Included among these uses are bakery shops, candy stores, ice cream stores, funeral homes, hardware stores, self-service automatic laundries, dry-cleaning establishments, music schools, dance schools and indoor theatres. Restaurants are still allowed within the B-1 zone, but only under special use permits. However, restaurants which "package and serve foods in disposable wrappers and/or containers to be consumed on the premises or in a parked motor vehicle, when such services are a principal part of the business operations" have been excluded. (Park Ridge, Ill., Zoning Ordinance, § 8.02, Sept. 2, 1975.) The total exclusion of carry-out type restaurants, such as the contemplated McDonald's restaurant, applies not only to the B-1 district, but to all the zones of the City.
As already noted, the subject property is an irregularly shaped parcel located on the triangle formed by the intersections of three streets. Two of the streets, Northwest Highway and Oakton Street, are major four-lane arterial highways. Along Northwest Highway the property has a frontage of 253 feet and extends southwest at right angles to the highway for a depth of 128 feet; 134.3 feet of the rear line of the Northwest Highway parcel adjoins the parcel running through to Oakton Street. The remaining 118.7 feet of the rear line of this highway parcel abuts residential properties fronting on Fortuna Avenue. The Oakton Street parcel has a 100-foot frontage and it extends north for 209.82 feet along the west line and 117.09 feet along the east line to adjoin the Northwest Highway parcel.
One of plaintiffs' exhibits depicts the land use and zoning in the vicinity of the subject property. As indicated on that exhibit, 32 separate service and retail business uses are situated along Northwest Highway between Fortuna and Seeley Avenues. Among these uses are three automobile service stations, a grocery store, a pharmacy, and three restaurants. Five of the 32 uses, including two of the restaurants, one of these being a Chicken Unlimited carry-out type restaurant, are situated on the block where the subject property is located. Along Oakton Street, immediately east of the subject property, are six additional commercial type uses. Just west of the property on Oakton Street are a single-family home and two two-family residences. Adjacent to the property and fronting on Fortuna Avenue are three single-family homes. Another carry-out restaurant is located two blocks west of the subject site. The property opposite the site on Oakton Street belongs to the local public school district; however, this property is leased to the Jeanine Schultz School, a private residential school for emotionally handicapped children.
The zoning map introduced into evidence indicates that the surrounding area is predominantly a residentially zoned neighborhood with a mixture of single-family (R-1) and two-family (R-2) parcels. However, most of the property fronting either Northwest Highway or Busse Highway has been zoned for retail business (B-1, B-2) and commercial (B-3) use. As a result of the business and commercial designation of the properties along the two highways, the zoning ordinance contemplates business uses that encroach upon several streets having primarily residential frontage, including Oakton Street and Fortuna Avenue. The zoning map also indicates that several of the existing uses do not conform to the present zoning restrictions. For example, the three automobile service stations and three restaurants at or near the intersection of Northwest Highway and Oakton Street are all nonconforming uses which predate the September 2, 1975, zoning ordinance. Also, the multiple-family apartment houses directly across the highway from the subject site do not appear to conform to the B-1 zoning applicable to that property.
One of the plaintiffs' exhibits depicts McDonald's Corporation's proposed development of the subject property. The restaurant building itself is to be a one-story structure of modern design constructed of masonry with face brick on each of the four sides and contain a mansard style roof of slate shingles. Seating for 125-30 patrons will be provided within the 3400 square-foot building, and 73 off-street parking spaces will be developed on the remainder of the site. Access to the restaurant will be available through two driveways on the Northwest Highway frontage and one on the Oakton frontage. The plan calls for illumination of the property in a manner which will direct the lighting away from the neighboring residential properties. The restaurant will be open for business between 7 a.m. and 11 p.m., except for Fridays and Saturdays when it will remain open until midnight. The peak hour of operation for the restaurant is anticipated to be between noon and 1 p.m.
The restaurant will provide a limited menu of fast food items, hamburgers, french fries, shakes, and soft drinks, and will be operated in a self-service manner from an inside service counter. No service will be provided directly to patrons waiting in their cars. For patrons wishing to consume their purchases outside the restaurant building or in their cars, items will be provided in disposable wrappers and containers. Waste containers and clean-up crews will be provided by the restaurant, and security personnel will be stationed on the premises. A fence and landscaping will separate the restaurant premises from the residential properties on the block. The single-family home on the 25-foot lot adjacent to the Oakton Street frontage will be buffered by a 29-foot-wide planting of trees and lawn.
Besides the testimony of two of the adjoining homeowners objecting to the proposed development, expert testimony in the areas of planning, appraising, traffic engineering and environmental technology was introduced. Thomas Buckley, a city planning and zoning consultant, testified for the plaintiffs that he was retained by them to review the Park Ridge zoning ordinance and the subject property and its vicinity, and to consider the question of the proposed development in relation to the other uses which might be permitted on the property as a matter of right. Buckley indicated his opinion that the site was characterized by the commercial uses currently existing in the area and by the fact the property itself contained the remnants of a former commercial use. It was also his opinion that the proposed McDonald's would be consistent with the established commercial character of the immediate area and that such use of the property would be the highest and best use.
Buckley considered the Park Ridge B-1 zoning restrictions unreasonable in application to the subject property in that they exclude the McDonald's restaurant while allowing for an extensive list of uses permitted as a matter of right. It was his opinion that some of the permitted uses would have a greater detrimental impact upon the character of the area than the McDonald's. A bakery would generate more odors than the proposed restaurant; a theatre would generate more traffic during certain periods of the day. Buckley also thought it unreasonable to allow an ice cream store on the premises but deny a McDonald's. He noted that an ice cream store also provides food in disposable containers.
The witness noted that in contrast to the 3400 square foot structure proposed by the plaintiffs, a building up to three stories high and as large as 16,000 to 20,000 square feet could be built on the site under the existing ordinance. Such permitted developments could be built within 20 feet of neighboring residential lots, while the McDonald's building would be no closer than 40 feet at any point. It was his opinion that any adverse impact resulting from the commercial development of the property had already taken place due to the previous commercial use of the land and the existing zoning which contemplated continued commercial utilization. Furthermore, Buckley indicated that the off-street parking and lighting improvements suggested in the McDonald's plan would create no problem and would comply with the standards and requirements of the City applicable to any commercial use of the premises.
The defendant presented the testimony of Gerald Estes, a registered architect and land-use planner. It was this witness' opinion that the proposed restaurant should not be permitted because the through traffic pattern between Northwest Highway and Oakton Street contemplated by the establishment of a McDonald's restaurant would open the way for continued commercial development of the neighboring residential properties. He submitted a site plan of his own for the subject premises which, unlike the McDonald's plan, conformed to the existing restrictions imposed by the zoning ordinance. However, this plan, also unlike the McDonald's plan, called for the closing of existing streets, the condemnation of existing residential buildings and a division of the subject property between office and residential use. The witness' plan had not been submitted to the City for approval, and Estes acknowledged that he had not considered the economic factors involved in developing the site according to his plan. Estes further acknowledged that existing offices in the area were already vacant and that he had not studied the demand for additional office space apart from his general familiarity with the neighborhood.
Ralph Martin, a realtor and real estate appraiser, testified for the plaintiffs that the value of the property under the existing zoning restrictions would be $125,000, and that the value of the property at its highest and best use, which would be the proposed development, would be between $200,000 and $250,000. Martin also testified that his survey of the neighborhood indicated vacancies of existing office space and that the subject site would not be the most desirable location for additional offices.
William McCann, another real estate appraiser, also testified for the plaintiffs. It was his opinion that the value of the property under the existing B-1 restrictions was between $140,000 to $150,000. If the property were developed at its highest and best use, it was his opinion that the value of the property would be $220,000 to $240,000. McCann testified that the development of McDonald's at this location would not result in any additional adverse effect on the value of the adjoining residential properties because they had been developed while the site was being utilized as a National food store. He further indicated that the nature of the restaurant would minimize any adverse effects in the nature of continued commercial ...