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La Salle Nat'l Bk. & T. v. County of Cook





APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND BERG, Judge, presiding.


Following the denial of its application for rezoning, plaintiff, La Salle National Bank & Trust Company, as trustee, brought this action against the county of Cook, seeking declaratory and injunctive relief from the county's zoning ordinance as applied to the property that is the subject of the land trust. The village of Arlington Heights, which borders the subject property, sought and was permitted, unopposed, to intervene as a defendant. After a bench trial in the circuit court of Cook County, the court granted plaintiff the relief requested. Only the intervenor-defendant village has appealed.

Plaintiff, as trustee under a land trust, is the legal owner of the subject property, in which Kenneth Tucker and Roy Gottlieb each have a 50% beneficial interest. The property is a 56.68-acre vacant tract of land located in an unincorporated area of Wheeling Township in the County of Cook. The village of Arlington Heights adjoins the property on its east and south borders and the major part of its west border. The property is rectangular in shape, and is traversed by Buffalo Creek on the south and east sides of the property. Bounded on the west by Wilke Road and on the north by Nichols Road, the property lies approximately 2000 feet northeast of the interchange of Dundee Road and Illinois Route 53.

The subject property is zoned R-4 under the county's zoning ordinance, which contemplates single-family residences on 20,000-square-foot lots. Plaintiff has proposed to build a residential planned unit development (PUD) in conformity with the R-7 (PUD) standards of Cook County. The proposed PUD consists of 576 dwelling units in 96 three-story brick buildings, 6 units in each building. A typical building will contain five two-bedroom units and one three-bedroom unit. (The judgment order of the trial court provided for not more than 1248 bedrooms with a maximum of 96 three-bedroom units and with 480 one-or-two-bedroom units.)

At present, only 20 to 25 acres of the property are buildable. Plaintiff has proposed relocating Buffalo Creek farther to the south and east, resulting in 36 acres of buildable property and 20 acres of open space usable to the residents of the project, including bicycle and walking paths, tennis courts>, and a barbecue pit. The proposed development will contain its own internal system of streets, while ingress and egress to the site will be provided through two drives at Wilke Road to the west of the site and one drive at Nichols Road to the north. Two parking spaces, apparently either clustered around the buildings or located on the development's streets, will be available for each of the 576 residences. The Ferndale Heights Utility Company will service the site with sewer and water connections. Police protection will be the responsibility of the Cook County sheriff's police, while primary fire protection will come from the Long Grove rural fire protection district.

The subject property is located in the northeast quadrant of the interchange of Illinois Route 53 and Dundee Road. Land uses and zoning in that quadrant are diverse. Immediately to the east of the site, the land is zoned P-1 Public Land District in the village of Arlington Heights. The land was used as a landfill until 1973, and Arlington Heights has plans to develop it as a park. The property immediately to the south of the subject site in Arlington Heights is zoned M-1A Industrial Office and Research under the Arlington Heights zoning ordinance. That parcel, which borders on Dundee Road and Route 53, is improved with a Honeywell plant. Immediately west of the subject property, between Wilke Road and Route 53, is a vacant tract known as the Muss property, which is also zoned M-1A in Arlington Heights. Immediately north of the Muss property and north and northwest of the subject property is an R-5 PUD located in unincorporated Cook County (the Tiburon PUD). As approved, the major portion of that parcel is being developed with single-family residences on 8500-square-foot lots; its northernmost section, which borders on the extension of Lake-Cook Road, is zoned commercial. A smaller parcel north of part of the Tiburon PUD but south of Lake-Cook Road is zoned R-4 single-family under the County ordinance and is vacant.

Still within the northeast quadrant, to the west of the Tiburon PUD and bordering on the right-of-way of Route 53 are two incipient developments on land zoned R-8 multiple-family in Cook County, both of which were approved through declaratory judgment actions. Also west of Tiburon and bordering on the Route 53 right-of-way is a 12-acre vacant parcel known as the Bestmann property, which the record reveals was rezoned as R-7 PUD by Cook County, over Arlington Heights' objection, just prior to the trial of this cause. To the northeast of the subject site is a large tract in Arlington Heights, bounded by Lake-Cook Road on the north, Arlington Heights Road on the east, and Schaeffer Road on the west. This parcel is being developed by the Kennedy Brothers under recent rezoning by Arlington Heights to an R-3 designation, which permits single-family residences on 8750-square-foot lots.

To the west of Route 53, in the northwest and southwest quadrants of the Dundee Road/Route 53 interchange, much of the land is zoned for and has been developed with varying intensities of multiple-family development under the Cook County zoning ordinance, including R-7 and R-8 PUDs and conventional apartment developments. In the southeast quadrant, in Arlington Heights, land bordering the south side of Dundee Road is zoned commercial, while land directly south of there is zoned light industrial under the Arlington Heights M-1A zoning classification. Much o33 that land is vacant, but one parcel bordering on Route 53 has been developed for light industrial use by Shure Brothers, Inc.

The county zoning board of appeals recommended denial of plaintiff's rezoning request, and the county board denied the rezoning, whereupon plaintiff filed the instant action. The following pertinent testimony was adduced at trial.

Roy Gottlieb, president of Kenroy, Inc., a real estate development firm, testified as a beneficiary of the land trust in interest. Gottlieb has been in the business for 22 years and participated in the development of residential, commercial, industrial, and office uses, including the Honeywell and Shure Brothers parcels south of the subject property. The land trust purchased the land as part of a 150-acre parcel in 1969. He was aware the property was zoned for single-family residences on 20,000-square-foot lots at the time of acquisition. Gottlieb testified generally that he attempted to market the property "as is" through brokers and by contacting potential purchasers directly. Between 1975 and 1977, Kenroy also distributed 2000 brochures advertising the property as part of a larger parcel for industrial purposes. He thought the property was not suitable for manufacturing or light industrial or office use, first, because of its location. The property does not abut a major highway or freeway, unlike the Honeywell property, and large industrial users prefer prominent locations on major roads. The only feasible industrial use would be smaller sites of one to three acres. The location also affected access to the property as industrial traffic would be required to go through residential areas. The existence of flood plain made the property less suitable for industrial uses because even after creek relocation, 20 acres of open space unusable by industry would remain. Gottlieb further testified to the lack of need and demand for industrial property in the area. No other industrial development had taken place in the northeast quadrant in the 10 years since construction of the Honeywell plant, and much land zoned industrial remained vacant south of Dundee Road in the southeast quadrant, including 30 acres Gottlieb owned. He also stated generally that he did not think the subject property would be suitable for single-family residences.

On cross-examination, Gottlieb testified that the property advertised in the brochures was a 525-acre parcel, 158 acres of which were not zoned for industrial use, but for single-family. In 1969, there was a mortgage of $1,075,000 on the 158-acre tract. In 1978, there was a contract price of $1,700,000 for a 74-acre parcel, which is being developed for single-family housing (the Tiburon R-5 PUD). If the subject property were developed as proposed, the open space would be maintained by Gottlieb's company, by a condominium association or possibly by a park district. The individual buildings on the site might be sold to individual owners, in which case a property owners' association would be formed to apportion maintenance responsibilities, as in another development in which Gottlieb participated. No one to whom Gottlieb mentioned the property ever intended to build houses on half-acre lots in that area. Single-family housing is being built on 8500-10,000-square-foot lots in the Tiburon PUD, contiguous to the subject property, but Gottlieb was not sure whether he had ever offered the subject property specifically for that use.

Wilke Road, which runs along the west boundary of the property, now ends at Nichols Road. It contains 24 feet of pavement in a 100-foot right-of-way. Gottlieb knew of no plans to widen the pavement. From Nichols Road north, however, the builder of the Tiburon PUD intended to extend Wilke Road to the extension of the Lake-Cook Road. Gottlieb reiterated that the property was not suitable for a major industrial user because it is not visible on main roads. Smaller industrial users usually locate farther back from the freeway, but they would not be in a position to maintain the open flood plain area, he said. In his opinion, multiple-family development was in more demand than single-family or industrial and would serve as a transition between the single-family and industrial uses in the area. He conceded major industrial users might want to maintain an open landscaped area.

Richard Stern, an urban planner, testified on behalf of plaintiff. In the past, he had been employed by both the village of Arlington Heights and the county of Cook, and had participated in preparing their comprehensive land use plans as well as the county zoning ordinance. Stern testified that land uses decrease in intensity in concentric zones as one moves away from the interchange of a limited access expressway and a major arterial highway such as the Route 53/Dundee Road interchange. Within the range of influence of such an intersection, land should be intensively zoned and developed, either for PUD, multiple-family, industrial, or commercial purposes. The subject property is one of the least intensively zoned parcels in the four quadrants of the interchange, but it is within the range of influence of the interchange and therefore should be developed for comparably intensive purposes as the land in the other quadrants.

Stern's definition of highest and best use was the use which can be incorporated into the scheme of community development without adversely affecting Cook County and which affords a fair economic return to the owner or developer of the property. The highest and best use of the subject property, according to Stern, was multiple-family use at the density proposed with open space along Buffalo Creek. The most significant factors he considered in arriving at that opinion included the surrounding land uses and zoning; local, county, and regional development trends; the need for and marketability of the proposed use; the economic return to affected government units from the proposed use; the location, size, shape, and topography of the subject property; and the urban infrastructure necessary to serve the proposed use.

With regard to land use, Stern emphasized the predominance of multiple-family development north of Dundee Road on both sides of Route 53 and its extended right-of-way. He considered the location of the subject site between the single-family construction to the north and the Honeywell facility to the south, and adjacent to the Arlington Heights landfill. The development would serve as a transitional land use, intervening in intensity between the single-family and industrial uses. He testified to the recent rezonings in that area of unincorporated Cook County, including the rezoning of the Tiburon property from R-4 to R-5 PUD; the very recent rezoning of the Bestmann property, from R-4 to R-7 PUD; the 1975 rezoning of the property being developed as Edinborough Apartments and Arlington Country Apartments, along the right-of-way of Route 53, to an R-8 special use; and of single-family and multiple-family uses on a golf course to exclusively single-family. He also considered the Muss property west and south of the subject site, within Arlington Heights, which is zoned M-1A and is vacant. Finally, he considered the uses in the other quadrants of the interchange.

With regard to local, county, and regional development trends, Stern considered the comprehensive plans of Cook County and Arlington Heights, both adopted in 1976. He was the principal author of the text of the county plan. In Stern's opinion, the proposed development conformed to both the map and text portions of the county plan. He believed it also conformed to the text of Arlington Heights' comprehensive plan, although that plan's land use map designates the property as suitable partially for manufacturing, research and development and partially for open space. His belief was founded on two statements in the text of the plan, which he thought made the plan ambiguous: first, that conditions would favor residential growth through low-density developments of 6 to 8 units per acre and moderate density multiple-family developments of 14 to 20 units per acre; and second, that substantial housing developments were anticipated in the Buffalo Creek area. Stern's opinion was also influenced by the village apartment policy, which states that additional apartments could serve a limited function in Arlington Heights by acting as a buffer between single-family residential districts and commercial or manufacturing districts, thoroughfares and railroads and other areas or facilities that conflict with single-family development, although not if single-family development could take place without a buffer. Furthermore, a multiple-family development would be consistent with the village's policy of a residential use ratio of 66% single-family to 33% multiple-family overall. He thought the text of the Arlington Heights plan conflicted with the plan's map because the only parcels in the Buffalo Creek area depicted as multiple-family on the map (the Kennedy Brothers site) had been rezoned to single-family.

Stern also considered the tax return to affected governmental units from the proposed use in formulating his opinion. He prepared a revenue generation analysis which projected a total of $307,085 in real estate tax revenue. The Long Grove rural fire protection district would receive $8976 annually, while the county would receive $18,686 annually as a result of the development.

As to the location, size, shape, and topography of the site, Stern reiterated the property's location near the interchange and between the single-family and industrial uses. The topography of the site was generally rolling, dropping 30 feet from west to east, which he believed made it difficult to develop for any use but residential. He believed the economic burden of relocating the creek could only be borne by a multiple-family development. For these reasons, Stern considered the existing R-4 zoning unreasonable. In addition, there had been no development of property zoned R-4 in the area in the last four years. Single-family development on lots smaller than 20,000 square feet would be undesirable for the same reasons. As for industrial use, he felt the cost of creek relocation would be prohibitive and the rolling land would be unsuitable. The marketability of the site for industrial purposes would be impaired because it is across from single-family residences. ...

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