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Cleys v. Village of Palatine

OPINION FILED OCTOBER 10, 1980.

FLORIAN CLEYS, JR., PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF PALATINE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding. MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 12, 1980.

Defendant appeals from an order of the trial court which granted plaintiff the use of 35 feet of a buffer zone in contravention of defendant's zoning ordinance, enjoined defendant from enforcing the provisions of the ordinance, and provided for certain other relief. Defendant contends that (1) plaintiff failed to prove by clear and convincing evidence that the ordinance was invalid; (2) the trial court's finding was against the manifest weight of the evidence; (3) the trial court's conclusion that the ordinance as applied to plaintiff's property constituted a taking of property without due process was erroneous.

Plaintiff is the owner of a piece of property located in Palatine and commonly known as 734 South Vermont Street. According to Palatine's zoning ordinance, plaintiff's property is in a manufacturing zoning district (M zone). The north and south boundaries of the lot are approximately 343 feet in length and adjoin other M zone properties. The east and west boundaries are each about 120 feet long. The east fronts on Vermont Street and also faces M zone property. The west boundary faces California Street, which is about 40 feet in width, and has been dedicated but is unimproved. California Street separates the M zones on its east from the residential land on its west. Most of the land to the west is unincorporated but is indicated in the Village Comprehensive Land Use Plan (the Plan) as and is used for residential use. The remaining land to the west is in Palatine and is zoned R 1 single-family dwelling. Currently, there is no single-family residence closer than 250 feet from plaintiff's lot.

The zoning ordinance includes the following provision:

"7.01 General Conditions.

The uses of premises in a Manufacturing District shall be subject to the following regulations: * * *

(4) Where an M District adjoins land (hereinafter referred to as `residential land'):

(a) Within the Village limits zoned as residence district by this ordinance, or * * *

(c) Which is unincorporated and for which the Village Comprehensive Land Use Plan indicates residential land use

that portion of the M District lying within 200 feet of such residential land shall not be devoted to any use unless a fifty foot wide landscaped planting strip has been installed in the M District along any boundary in common with residential land. Such planting strip shall contain no building, structure, parking lot, street or use other than a planting strip, and shall be installed in accordance with plans prepared by a landscape architect and approved by the Village Board * * *."

When plaintiff acquired the subject property, an office building was located near the front of the lot toward Vermont Street. In 1973, defendant issued a building permit to plaintiff for the construction of an office warehouse with dock loading facilities. The new building extended to approximately 74 feet from the western lot line, leaving about 24 feet between the loading docks and the planting strip.

In 1977, plaintiff received a notice of violation of the foregoing zoning provision and applied for a variance to permit him to use a portion of the planting strip for the ingress and egress of trucks used in his business. The Palatine Village Board denied plaintiff's request, and he brought this action.

Plaintiff alleged that the strict interpretation of the zoning ordinance caused him difficulty and hardship since he was unable to provide semi-trailers with sufficient maneuvering space to permit access to his loading docks and that the subject property could not yield a reasonable return. He further alleged that the ordinance as applied to his property was unconstitutional in several respects and deprived him of his property without due process of law. Plaintiff sought a declaratory judgment giving him the right to use a portion of the planting strip necessary to maneuver trucks, an injunction preventing enforcement of the ordinance, and a decree that the zoning as applied to his property was unconstitutional and void.

The following additional pertinent testimony was adduced at trial. Plaintiff testified that he used part of the planting strip for ingress and egress of trucks used in his electrical contracting business. He estimated that there was five feet between the rear of his building line and the planting strip and that he needed about 40 feet of the planting strip to allow the various trucks use of the loading docks. He stated that if the ordinance were strictly enforced, the trucks would be unable to use the docks. His alternative would be to remove 50 feet of the building and build new docks at a cost of $75,000 to $100,000 and a loss of about 20 percent of his warehouse space.

Plaintiff attempted to introduce affidavits of two neighboring landowners in which they stated that plaintiff's activities over the past three years had not disturbed their enjoyment of their property or caused any air pollution. The ...


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