APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
This appeal is taken by certain intervenors and the village of Niles from a declaratory judgment finding that the R5 Single-Family Residence classification of the Cook County Zoning Ordinance is arbitrary, unreasonable and unconstitutional as it applies to plaintiffs' property. The principal issue raised is whether plaintiffs fulfilled their burden in demonstrating with clear and convincing evidence that the zoning ordinance was invalid as applied to their property. For the reasons which follow, we reverse.
The subject property is a 1.5 acre, L-shaped tract located on the southwest corner of Elm Drive and Greenwood Avenue within the County of Cook. Elm Drive is a residential street interposed between the subject property and Golf Road, and is separated therefrom by a landscaped median strip planted with trees and shrubbery. The subject property is part of a single-family home development located south of Elm Drive, west of Greenwood Avenue, north of Emerson Street and east of Western Avenue. Seventy-four residential lots have been improved with 72 single-family residences within that area. The subject property is itself improved with single-family homes on each lot. The entire property within the above-described development is currently zoned R5 Single-Family Residence under the Cook County Zoning Ordinance, which permits single-family detached residences to be constructed on individual lots of 10,000 square feet or more in area.
When the development began in 1939, a corporation was formed by the homeowners, entitled the Golf-Greenwood Gardens Improvement Association. This Association owns, maintains and, through a contractor, operates a private water and sewer system and is involved in civic activities in the area. The Association has actively objected to commercial zoning both within the above-described boundaries and outside of its limits. Thus far, there has been no commercial intrusion within the Association's boundaries.
The area north of Golf Road to the west of Greenwood has been strip zoned by Cook County as a C4 General Commercial District and contains shopping and restaurant establishments, as well as an automobile service station at the northwest corner of Golf and Greenwood. The C4 strip extends westward from Greenwood approximately two-thirds of the distance to Western. The balance of the property north of Golf and west of the C4 strip is zoned R7 General Residence District and is improved with residential and apartment uses. North of the C4 strip is located an R8 General Residence District, improved with apartment structures. To the west of Western, south of Golf Road, is an R1 Single Family Residence District located within the village of Niles and is developed with apartment, park and single-family residence uses. To the south of Emerson between Western and Greenwood is an R1 Single-Family Residence District within the village of Niles and is so improved. At the east side of Greenwood Avenue both north and south of Golf Road is the village of Niles, which has zoned the properties therein contained for B1 Retail Business District and C8 Intensive Commercial District uses, which have been improved with the Mill Run Playhouse and Golf Mill Shopping Center to the south of Golf Road, and an automobile service station, a motel and a restaurant to the north of Golf Road east of Greenwood.
The subject property consists of three lots. One lot, at the southwest corner of Elm and Greenwood, faces Elm and has its east side yard along Greenwood. The other two lots, adjacent and south thereof, face Greenwood, thus forming a short stemmed, long based, L-shaped parcel. The homes constructed on the three subject lots are typical of the construction generally found in the subdivision, but show evidence of deferred maintenance and require repairs. The home on the northernmost lot was purchased in 1962 and was boarded up at the time of trial. The middle lot was purchased in the late 1960s and is rented to a family. The third home was purchased one year prior to trial, in 1978, and is boarded up. The property owners purchased the property with knowledge of the R5 residential zoning classification and the trend of development north and east of the property for commercial uses. Plaintiffs also twice previously applied for zoning changes to commercial zoning, which were denied. No effort was made by plantiffs to sell any of the properties under the existing zoning.
The most recent application for change in zoning made by plaintiffs sought to set aside the R5 Single Family Residence District and to impose a C4 General Commercial District upon the subject property. Hearings were held before the Cook County Zoning Board of Appeals on January 19, 1979, at which the villages of Niles and Glenview, the cities of Park Ridge and Des Plaines, and the North Main Fire Protection District filed objections. The Zoning Board of Appeals heard evidence relative to the existing zoning and uses in the area, the suitability of property for permitted uses, the trend of development and the issues of property values and concluded that "* * * the commercial development proposed would be a proper and reasonable use of the subject property, but because of the unified objections of the neighboring homeowners' association and nearby villages, the Zoning Board of Appeals unanimously recommends to the Board of County Commissioners that the application be denied."
In corrected findings, the Board of Appeals observed that the villages of Niles and Glenview objected to the zoning change because the request was for spot zoning and they feared that the rezoning would lead to an extension of the strip commercial zoning along both Golf and Greenwood which would diminish the use and enjoyment of the abutting residential property. The board also noted that the city of Des Plaines based its objection on a restrictive covenant covering the property which limits the use of the land to single-family purposes, and expressed concern over traffic congestion. Although the city of Park Ridge objected, it did not include reasons for its objection. The North Main Fire Protection District objected solely on the basis that the plan presented called for a cul-de-sac on Elm Drive, which would cut off access for emergency vehicles from Greenwood Avenue.
The Board of County Commissioners denied the application for change in zoning. Plaintiffs thereafter filed this action for injunction and declaratory judgment. The villages of Niles and Glenview, the city of Park Ridge, and the Golf-Greenwood Gardens Improvement Association were permitted to intervene in the lawsuit.
The use proposed for the subject property is the construction of an office building to contain approximately 21,600 square feet with a height of from 24 to 25 feet. The proposed building structure would itself be L-shaped and would traverse portions of each of the three lots, substantially conforming to the L-shaped configuration of the parcel. There would be off-street parking provided to the north of the proposed building as well as to the south and west thereof. Two driveways would give the property access to Greenwood. In addition to office space, among the proposed uses would be banking, restaurant and banquet establishments, with or without a bar. For 40 feet of its length at its west side, the building would be within 10 feet of a neighboring residential lot. A six-foot-high solid fence is proposed to be constructed along the westerly and northerly lot line boundaries with landscaping.
Plaintiffs' evidence in the circuit court revealed that the subject property is owned by LaSalle National Bank and Trust Company and Elgin National Bank, as trustees, with George A. Moser, James Moser and the estate of George A. Moser as beneficiaries under both trusts. George A. Moser, an experienced builder-developer, testified that the extreme commercial development over the past 15 years in the area of the subject property has rendered it unsuitable for single family use. The northernmost house on the subject property was permanently damaged by tenants in 1968 or 1969 and has sustained frozen plumbing and is uninhabitable. The middle house is in fair condition and is occupied by tenants. The southernmost house is not tenanted, contains major structural defects and is uninhabitable. No repairs to these homes have been attempted, nor has any effort been made to sell them.
Thomas J. Buckley, an urban planner and zoning consultant, who is president and owner of Carl Gardner and Associates, described the proposed site plan. In his opinion the highest and best use of the subject property is for commercial development, taking into consideration the location of the property at the intersection of two major thoroughfares, the traffic situation, the presence of commercial uses on the other three corners of the intersection and the trend of development for commercial use in the general area. He believed that the proposed use would have no further adverse impact on surrounding properties than they had already sustained by virtue of the establishment of commercial uses along Golf Road, and a 12-story highrise to the west of Western Avenue. It was his contention that there would be no domino effect should the proposed commercial use be established on the subject property with respect to other single-family zoned properties in the area; however, he conceded that the uses to the south of the subject property on the west side of Greenwood might be developed commercially should the proposed use be allowed.
An appraiser, Terrence M. O'Brien, testified that in his opinion the highest and best use of the property is for an office-type building such as that proposed by plaintiffs, in consideration of certain factors: uses in the area are more intense than those permitted by the R5 zoning; the trend of development in the area has been for commercial and multiple-family uses; the site is located at the intersection of two major thoroughfares; the Cook County comprehensive plan calls for more intense use of the property than that which currently exists; the Cook County Zoning Board of Appeals findings; and his opinion that the subject property would be worth $400,000 if the proposed use were granted but was worth only $200,000 as presently zoned. He testified further that the homes situated on the subject property need only cosmetic repairs; if they were properly maintained their value would increase to as much as $275,000 to $300,000.
A traffic control consultant and civil engineer, Robert H. Miller, testified for plaintiffs that both Golf and Greenwood would be widened, which would eliminate some traffic problems. Golf carried 32,000 vehicles per day and Greenwood carried 23,000 vehicles per day. He gave no description of the points at which the studies were taken on either Golf or Greenwood. He predicted no adverse impact on the surrounding properties ...