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Dietz v. Village of Midlothian

OPINION FILED MAY 1, 1980.

CARL M. DIETZ ET AL., PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF MIDLOTHIAN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR DUNNE, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The trial court, in a declaratory judgment action, found that the annexation by the Village of Midlothian (the Village) of the subject property was valid, but that the Village's zoning classification of commercial and multiple family was arbitrary, capricious and unreasonable. On appeal, the defendants, the Village, Charles Keskel, the Heritage/Pullman Bank & Trust Company, as trustee of a land trust (the Bank), and Herman and Frances Ketelaar, argue the plaintiffs did not prove that the zoning of the subject property as multiple family and commercial was arbitrary, capricious and unreasonable. The plaintiffs, Carl M. Dietz, Fred Reigel, William McCarthy and Milton Gromenz, neighboring homeowners who are suing individually and as class representatives, and the Forest Ridge Home Owners' Association, argue the annexation was void and unconstitutional.

On November 26, 1976, the Ketelaars signed an application and petition for an annexation agreement. On December 22, 1976, they entered into a contract to purchase the property which is the subject of this appeal. On December 23, 1976, a legal notice was published stating that a zoning board of appeals hearing was to be held on January 6, 1977, on the requested annexation and proposed multiple family zoning. That meeting was held as scheduled and the zoning board recommended to the village board that the requested change to multiple family be allowed.

On July 1, 1977, the Ketelaars and the bank as trustee executed and filed a second petition to annex the subject property. In the annexation agreement accompanying the second petition the Ketelaars asked that a portion of the property be zoned commercial and the balance multiple family. On July 7, 1977, a legal notice was published stating that the village board would conduct a hearing on July 27, 1977, regarding the question of annexation and zoning. At the July 27 hearing three ordinances were passed: one authorized the village president to execute the preannexation agreement for the development of the property; a second annexed the property; and a third zoned the northern portion of the property commercial and the balance multiple family.

The property consists of approximately 12 acres of vacant land bounded by 147th Street on the north, LeClaire (5100 west) on the east, Laramie (5200 west) on the west and irregularly on the south to approximately 100 feet north of 149th Street. The property has approximately 300 feet of frontage on 147th Street. One Hundred and Forty-seventh Street is a four-lane street east of Cicero (4800 west), but it is a two-lane blacktop road, without sidewalks, curbs or gutters at the location of the subject property. The street extends to the west as far as Oak Park Avenue, 2 1/2 miles west of Cicero Avenue. Directly across 147th Street to the north of the subject property is the Midlothian Country Club's golf course.

To the east and across LeClaire on 147th Street is a parcel of land which extends to the south approximately one-half the distance of the subject property. This parcel, which is smaller than the subject property, is zoned multiple family. The site was vacant at the time of trial. To the south of that parcel are single family homes. To the east of these homes and the vacant land, extending along 147th Street, south to 151st Street and east slightly more than a quarter mile towards Cicero Avenue are single-family homes and vacant property which is zoned single family. The intersection of 147th Street and Cicero Avenue is a highly developed commercial area in Midlothian.

To the south of the subject property on the north side of 149th Street are single-family homes which are partly in Oak Forest and partly in an unincorporated area of Cook County. Across 149th Street are two schools and additional single-family homes.

On the west side of Laramie is a school play area, adjacent to the southern half of the subject property. North of the play area, and adjacent to the remainder of the western boundary of the subject property are single-family homes. To the west of these homes is an area zoned single family with some improved parcels and some vacant. West of these homes on Laramie facing 147th Street is a nursing home, and directly west of the nursing home is a property which is used as a construction office. About half a mile west of the subject property, at the intersection of 147th Street and Central Avenue (5600 west), is a highly developed area of mixed commercial and multiple family in Oak Forest.

The Ketelaars' proposed development consists of 33 six-flat apartments which would be in a row, with a 25-foot setback. Each building will be three stories high. Each unit will have two parking spaces.

Under the terms of the annexation agreement, the Ketelaars agreed to dedicate the east 33 feet and the north 17 feet of the property for streets and another portion of the property for 148th Street; agreed to fully improve both sides of LeClaire Avenue, from 147th to 149th Streets, including curb, gutter, sidewalks, street lights, sewer and pavement; and agreed to improve Laramie Avenue by patching and repairing it from 147th to 149th Streets and by installing water and sewer, fire plugs and sidewalks on the side of the street abutting their property. Sidewalks were also to be installed on 147th and 148th Streets. They also agreed to install a north-south access road; to landscape the property so that its appearance would not detract from the surrounding area with a minimum of $75 per unit to be spent for this purpose; and to construct appropriate water and sewer lines to serve the premises.

John Keblusek and William D. McCarthy, neighboring landowners, testified for the plaintiffs. Keblusek said the subject property was being used as a stud farm for raising and breeding horses at the time he bought his house. Later it became a horse stable. Keblusek testified that the only sidewalks in the area are on the property owned by the school district. He objected to the proposed zoning because of the high density, the congestion around the school area and the increase in traffic which would result. He said he expected the area to remain zoned single family. McCarthy said the buildings and fences on the subject property were in a bad state of repair when it was purchased by the Ketelaars. He said that if the property were left dormant it would depreciate the value of his property. He objected to the rezoning for various reasons including his belief that his home would be more difficult to sell if the subject property was zoned commercial and multiple family. He said the trend in the area was for single-family zoning.

Arthur Lange, the superintendent of the school district for the area, objected to the proposed use because there are no sidewalks other than immediately surrounding the school. He was also concerned about the increased traffic it would bring and about the safety of the children leaving school. He said there would be no difficulty in taking additional children into the school.

Rolf C. Campbell, a city planning and zoning consultant, said that in his opinion the character of the area and the subject property is single family. He said although the trend of development in the area was for single-family homes, he did not believe there had been any new single-family homes built in the area in the last five years. In reaching his opinion that the best use for the property was single family, he took into consideration the fact that the property immediately to the east of the subject property has been zoned multiple family. He thought this had a bearing on the zoning of the subject property. Campbell thought the proposed density of 23.2 units per acre was high.

James Jesk, mayor of Oak Forest, testified that the subject property should remain single family. He commented on the traffic problems which would result from the proposed development and possible flooding, and he also said the ...


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