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Nat'l Pride Equip., Inc. v. Niles

OPINION FILED SEPTEMBER 29, 1982.

NATIONAL PRIDE EQUIPMENT, INC., PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF NILES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant appeals from an order in a declaratory judgment action granting plaintiff's request for a special use permit to construct and operate a self-service car wash and declaring the zoning ordinance of defendant unconstitutional as applied to plaintiff's property.

It appears that plaintiff applied for a special use in a B-1 (retail business) zoning district for the purpose of constructing and operating a self-service car wash. The property involved has a frontage of 250 feet on Dempster Avenue and a depth of approximately 130 feet. To the immediate east of the property is a Ponderosa restaurant and adjoining thereto is a small shopping center; to the west of the site is a one-story brick building used as a construction office, next to which are an appliance store and a medical clinic; adjacent to the south are several three-flat apartment buildings; across Dempster to the northeast is a commercial center, and to the northwest is an area of singlefamily residences. Plaintiff's plan called for a one-story, self-service car wash facility with 14 washing bays and space for three cars in a "stack" or waiting position behind each bay. The 26-foot-long building was to be located approximately 62 feet from the north lot line on Dempster and 42 feet from the south lot line. Outdoor vacuum equipment was to be provided in the stacking area and, directly south of the facility, a driveway exit from the bays and angle parking for a drying area. The plans also called for a 5-foot-wide row of shrubbery along the south and west boundaries, to separate the site from the residential property. The facility was to be operated from 7 a.m. to 11 p.m., 7 days a week, 52 weeks a year.

After the board of trustees of defendant denied the special use permit, plaintiff brought this action for a declaration that the ordinance was illegal and void as applied to it and to enjoin defendant from interfering with its use of the property.

At trial, Steven Hirsch, plaintiff's chief executive officer, testified that there are currently 16 facilities of plaintiff in the Chicago metropolitan area and 7 in the Rockford area; that the Niles operation will involve a "fully manned self-service operation" including coin-operated vacuum and washing facilities; that according to market research studies, 90% of plaintiff's customers will not use a tunnel-type automatic car wash as an alternate method of washing their cars; that prior to leasing the subject site, he determined that there was no self-service car wash within 10 miles of the site; that if he is unable to proceed with the use, there will be an investment loss to plaintiff of $42,000; and that, at the time he leased the property, he was aware that he needed a special use permit from defendant.

Neil Kenig, a transportation consultant, testified for plaintiff that based upon his familiarity with the operations and traffic flow at other facilities and his investigation of their traffic patterns, that "National Pride is a very low traffic generator"; that the proposed facility "would have minimal impact on the traffic and on the adjacent street system"; that many of the permitted uses in the district zoned B-1 "would generate significantly higher traffic volumes than the National Pride car wash"; that plaintiff's peak hours occur on weekends, when the adjacent street traffic is at a reduced level; that 70% of the customers are expected to come from within three miles of the site; that during peak traffic hours, 40% of the vehicles using the facility would be drawn from the existing traffic flow on adjacent streets; and that the stacking provided for at the site would be more than adequate to accommodate the projected number of vehicles using the facility during peak periods.

James Bates, a civil engineer, testified for plaintiff that if the use is approved, all village ordinances will be adhered to; that the sewage and water facilities are adequate to serve the subject property; and that the proposed facility from a civil engineering standpoint would have no adverse impact on the surrounding area and would be beneficial in all drainage, environmental, and civil engineering aspects.

Terrence O'Brien, a professional real estate appraiser, testified for plaintiff that if the property were put to the proposed use, there would be no adverse impact on the value of surrounding real estate based on the location of the site, primary uses of the surrounding properties, physical characteristics, design and landscaping of the project, and the need and demand for car wash facilities around the subject area; that there are more intense uses permitted in B-1-zoned areas which would have a greater impact upon the values or the area in general; that regardless of the type of development on the site, the fact that the subject site and adjacent areas are zoned B-1 will impact on land values in adjoining residential zones; and that plaintiff has done a good job of minimizing the impact by placing the facility as far as possible from the south boundary and in providing buffers such as green areas. On cross-examination, O'Brien stated that the operations of all other uses permitted in B-1-zoned areas would be completely contained within each building except shipping and receiving; that he would question whether another use the same as already provided in the area would develop the site to its highest and best use; and that the "unique thing about the proposed use is there are none in the area, there is a need and a demand."

Rolf Campbell, a city planning and zoning consultant who in the past had rendered services for Niles, testified for plaintiff that the site involved is zoned B-1, which permits a car wash by means of a special use; that he found the proposed car wash can operate in accord with the requirements of the ordinance in question; that the impact of the facility would be no different than the other uses allowed within the B-1-zoned district under the ordinance; that it would be compatible with the existing commercial uses to the north, east, and west; and that it provides sufficient screening to the residential area to the south. On cross-examination, he stated that the ordinance does require stacking space for five cars in connection with car washing, but it was designed for drive-through tunnel-type facilities through which cars pass more quickly; that the proposed facility provided 36 spaces for stacking, which was adequate; that while permitted uses in the B-1 zone must be conducted within a fully enclosed building, only vacuuming and drying would be outside the facility; and that, although in a B-1 zone there must be a rear yard depth of at least 20 feet to act as a buffer to the contiguous residential property, it is not uncommon to have a yard for drying or parking at the rear or side areas.

Rudolph Valadez testified for defendant that he had observed a car wash of plaintiff in Schaumburg and seven or eight times has seen cars in the middle of the adjacent road waiting to enter the facility, and that he has seen cars backed up 10 or 15 deep coming from the entrance which tied up two out of three lanes of traffic.

Joseph Salerno, director of building and zoning for defendant, testified that the proposed car wash does not comply with the space restrictions in the Code for a B-1 use with respect to the use of the rear yard; that it did have adequate stacking space for vehicles entering the facility from the street; and that the wash bays are parking spaces and, because cars are parked in them at a 90-degree angle to a driveway, the building was not in compliance because the Code requires a distance of 27 feet for the automobile to safely exit the site. He stated, however, on cross-examination, that if the bays are classified as "wash areas" rather than parking spaces, the building would be in compliance with the Code, and that a Niles police captain had stated at a village meeting concerning the facility in question that he saw no problem with cars backing up on the street to get into the facility.

Several nearby property owners testified that they objected to the proposed use for the reasons that the facility would create a traffic hazard, devalue property, and cause air pollution and noise, but they admitted that they had not hired an appraiser or traffic consultant to assess the potential impact of the facility.

Theodore Kowalski, a professional real estate appraiser, testified for defendant that the property can be developed in accordance with permitted uses in a B-1 zone, and that the development of the plaintiff car wash on the subject site would not be the highest and best use of the land and would cause a depreciatory effect on the apartment buildings to the south and on the commercial and residential uses to the west. He stated on cross-examination, however, that he had not studied any sales of residential property adjacent to other facilities of plaintiff to determine their effect on sales prices; that he had not spent any appreciable length of time observing the facility operations; that he was unaware of when the area was zoned B-1; and that, because the residences were located next to a B-1 zone, their value had already been affected.

Steven Hirsch, testifying in rebuttal, stated that plaintiff has a mechanical device for monitoring volume of use which disclosed that on June 20, 1981, the Schaumburg facility ran 1,816 4-minute cycles; that it ran 744 cycles on June 13 — one of the days that Valadez said he had seen traffic congestion; and that on May 31, another day Valadez said he might have driven past the car wash, it ran 912 cycles. He also said that on June 20, 1981, he had taken hourly photographs and, while he was there, only on one occasion had he seen a second car in line at three of the bays; that on that day, he saw no cars backed up on the adjacent road; that approximately 25 to 35% of persons using ...


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