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Oak Park T. & Sav. v. Vil. of Palos Park





APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.


Defendant Village of Palos Park (Village) appeals from a declaratory judgment in favor of plaintiffs that the Village's zoning ordinance is unconstitutional as applied to plaintiffs' property development plan for multi-family housing units. The sole issue presented for review is whether the judgment of the trial court was against the manifest weight of the evidence.

It appears that the property in question, located on the western boundary of the Village, is rectangular and consists of about 19.6 acres fronting on a heavily travelled highway. To the north is forest preserve property; to the south is one single-family house, a riding stable and a restaurant; to the east are two single-family houses; and, to the west, more forest preserve. Plaintiff Samuel Libert, who is the beneficial owner of the property, submitted an application and plans to the Village plan commission for rezoning of the property from single-family to a planned unit development, pursuant to a Village zoning ordinance. The plans called for construction of 155 units in clusters of buildings two stories high, four units to a building. The development also was to contain a recreation center, a clubhouse, an on-site sewage treatment plant, and areas of open space. Water was to be provided by well, and access to the site was to be from the highway. The plan commission vote was tied on plaintiffs' application, and thereafter the Village council rejected it. Plaintiffs then filed a complaint for declaratory judgment.

At trial, Libert testified that the property was formerly in unincorporated Cook County; that in 1963, the county granted him a special use permit for construction of a nursing home which was never built; *fn1 that the Village subsequently annexed the property and zoned it for single-family homes; that from the time he purchased the property in 1959 to the present, he received no inquiries for use of the property for single family homes and never listed it as such; and that he received offers for more intensive uses of the property.

In plaintiffs' case-in-chief, Rolf Campbell, a city planning and zoning consultant, testified that the proposed plan would be the highest and best use of the property based on such factors as its physical condition, availability of urban services such as fire and police protection, access to a major thoroughfare, adjacent uses such as single-family dwellings, open spaces and commercial establishments, and the need for the development relative to its "nominal adverse effect"; that another policeman would not be needed to provide service to the additional people; that although he made no study of Village expenditures for the proposed development, it would have a positive tax impact on the Village and generate tax revenues of about $276,000 per year and would yield a net increase in the tax base for each school child in the district as compared to a net decrease for a single-family development; and that, while the development appeared to conflict with the Village's comprehensive plan, such plan was subject to future interpretation and change. On cross-examination, he testified that the existing character and trend of development in the immediate area is single-family residential.

Louis Narcisi, a registered architect who designed the planned development, testified that from an architectural standpoint, the development was the highest and best use of the land; that his conclusion was based on subsoil investigations which revealed that the costs of foundation construction would be better distributed in a multi-family development; that soil permeability favors a sewage disposal plant over septic tanks for each lot; and that, if developed for single-family uses, some lots would have "objectionable views" and others would be adjacent to the highway.

John Morris, a registered engineer who provided the engineering design for the property, testified that site plans for drainage, sewer, water, lighting, streets and parking were submitted to the Village and not objected to; that adequate water supplies and storm drainage exist for the development, although he had not assessed the impact on water supplies of surrounding property owners; that after studying various features of the site and the requirements of Village ordinances and State law, he submitted a report for proposed sewage treatment facilities to the Illinois Environmental Protection Agency (IEPA), which it approved subject to specified changes in the final plan; that the type of sewage treatment plant — called the rotating biological disc sewage treatment system — planned for the development would conform to IEPA and Metropolitan Sanitary District (MSD) requirements, although the specific plan had not been submitted to the IEPA; that effluent produced by the on-site sewage treatment plant would be discharged into Mill Creek and could improve the condition of the waterway; and that septic tanks would be unsuitable for the property because of poor soil conditions.

Terrence O'Brien, a real estate appraiser, testified that the highest and best use of the property was the proposed development; that he based his conclusion on such factors as the transition of the area from rural to urban, the proximity of a major thoroughfare, forest preserve and commercial establishments, the capacity of the site to accommodate a multi-family development and the need for it, the lack of adverse impact on surrounding properties and the lower fair market value of the site as now zoned as compared to the value if rezoned, and that, as zoned, the property is worth $300,000 but as rezoned it would be worth $515,000.

Paul Box, a traffic engineering consultant, testified that based on certain data, the highway which adjoined the property would accommodate the additional traffic from the development with the addition of a planned left-turn lane, so that the proposed development would have no adverse impact on traffic; that traffic would flow more efficiently from the proposed development with the added lane than in a single-family development with no left-turn lane even though less traffic would be created if the site were developed for single-family homes. On cross-examination, he testified that the cul-de-sac or dead-end design of the planned roadways was longer than usual because emergency exits were included; that the roadway system was comprehensible to drivers of emergency vehicles; and that adequate interior parking, sidewalks and walkways were planned.

In the Village's case-in-chief, Mayor Rosemary Kaptur testified that public sentiment was against the project; that the proposed development would require the Village to expand its police force, create traffic hazards and sanitation problems and discourage children from playing in Mill Creek because of pollution; that the development would cause increased expenditures for the Village, although she was unsure of the amount; that the basic objection of the Village to the development was its inconsistency with the Village's comprehensive plan; that she did not know if there had been previous deviations from the plan which itself stated that changes are expected, although she believed no deviation from the plan should be allowed to permit the development in question; and that the number of units for the development fell within the number allowed by the Village's planned unit development ordinance.

Walker Findley, a former chairman of the Village plan commission, testified that meetings were held between 1974, when preliminary plans for the development were first presented, and 1977 when the final plan was submitted to the Village; that the final plan contained many suggested revisions which were made at those meetings; that the plan commission, in adopting the Village's comprehensive plan, determined that the subject property would be best suited for single-family residential, with multiple-family residential on the east side of the Village; and that it did not recommend rejection of the plan, as there was a tie vote.

Richard Bailey, current chairman of the plan commission, testified that the Village had not received acceptable answers for sewer, storm water, and water supply problems.

Gerald Lindgren, a traffic engineer, testified that the internal roadway plan for the development was not "comprehensible" particularly for emergency access; that if cars were illegally parked on the street, emergency and snow removal vehicles would be impeded; that the Village ordinance prohibits cul-de-sacs of more than 500 feet, while those in plaintiffs' plan are more than 1,000 feet; that the proposed streets are narrower than required by ordinance; that because of foliage, access to the highway would be difficult; and that such traffic problems would not occur with existing zoning.

William McCann, a real estate appraiser, testified that consistent with the present trend in the area, an economical viable use of the property would be as a single-family development "geared to an equestrian type of setting"; that the value of the property if rezoned would be worth between $480,000 and $560,000, but if zoned for single-family homes, the value would be $400,000 and less if extraordinary engineering costs were incurred; and that if the property were subdivided and roads were built, its value could increase substantially. On cross-examination, McCann testified that if an on-site sewage treatment plant met "EPA standards," a density of greater than one single-family home per acre would be appropriate; that the development would have "minor impact" on homes adjacent to the property; and that an appraiser from his office had previously testified in favor of another planned unit development in the Village which was inconsistent with the comprehensive plan.

Raymond Bliss, the Village engineer, testified that his firm made several comments and recommendations to the plan commission concerning various aspects of the site; that plaintiffs' plans did not indicate how the wells would be situated or connected to the main water system; that the Village might have to be a co-permittee for the on-site sewage treatment plant and would be ultimately responsible to the MSD; and that no contingency plan exists for containing the raw sewage at the site in the event of a power outage. He stated on cross-examination that he did not have objections ...

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