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Michalek v. Village of Midlothian

OPINION FILED JULY 22, 1983.

DONALD MICHALEK ET AL., PLAINTIFFS-APPELLANTS,

v.

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



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

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal is from a judgment for defendants in an action to declare a zoning classification of the village of Midlothian (Village) unreasonable and invalid as applied to plaintiffs' property. Plaintiffs contend that (1) the findings of the trial court are against the manifest weight of the evidence; and (2) the trial court erred in admitting evidence of the Village building code, fire code, and subdivisions ordinances.

Plaintiffs own a vacant four-acre tract of land, currently zoned for single-family use, northwest of the intersection of 147th Street and Cicero Avenue in the Village. It is bounded on the east by Lamon Avenue, on the south by 145th Street, on the west by the Midlothian Country Club (Club) and on the north by a gravel driveway leading to a home situated opposite the northwest corner of the subject property. There are no streets north or west of the property, although there is a 33-foot right-of-way dedicated for Lavergne Avenue along its western boundary with the Club. Lamon Avenue is a fully developed street on a 66-foot right-of-way from 147th to 145th Street, but narrows to 16 to 18 feet of pavement on a 33-foot dedication abutting the eastern boundary of the subject property. Similarly, 145th Street is a fully improved roadway for one block between Cicero and Lamon, but narrows to 15 feet of pavement on a 33-foot right-of-way along the south line of plaintiffs' property. All of the property between Lamon Avenue and the Club, and from 147th to 143rd Streets, is zoned for single-family use. Property on the east side of Lamon Avenue, from 147th to 144th Streets, is zoned for multiple-family use and abuts property along Cicero Avenue zoned for commercial use. A triangular, 17-acre portion of the Club is zoned for multiple-family use, and the southeast portion of that area adjoins plaintiffs' property on the west.

On May 3, 1980, plaintiffs petitioned the Village for rezoning of their property for multiple-family use. After a hearing, the Village zoning board recommended that rezoning be denied, and the Village board adopted that recommendation. Plaintiffs then filed this action seeking a declaration that the present zoning is arbitrary and unreasonable in that it bears no reasonable relation to public health, safety, or welfare.

At trial, Donald Michalek testified that his parents purchased the subject property in 1954. Three years later, his mother built a home on the southeast corner of the property which is currently owned and occupied by his brother and is not part of the subject property. In 1973, he and his brother inherited the property, which has always been zoned for single-family use. He purchased his brother's interest in 1979 with the intention of developing the property for multiple-family use. The land was never offered or advertised for sale or listed with a broker, and no offers were received to develop it. At the time he filed for rezoning, the property to the east and west was vacant but zoned for multiple-family use. There are several six- and 12-unit apartment buildings southeast of the property on the east side of Lamon Avenue, bordered by the commercial property along Cicero. He acknowledged that the development plan attached to his complaint was not submitted to the Village when rezoning was requested. The streets east and south of the subject property are half-streets, but his proposed plan has no dedication to allow completion of Lamon or 145th Street or to construct a road north of the property. A number of new homes have been built in recent years south of 145th Street between Lavergne and Lamon. All of the land surrounding the subject property is currently vacant or developed for single-family use.

Rolf Campbell, an expert in land planning and zoning, testified that he examined the area in early 1981 at plaintiffs' request to determine the suitability of the subject property for multiple-family development. The existing streets south and east of the property and the dedication for the right-of-way on the west are half-dedications; only the west dedication was taken from the subject property. The portion of the Club adjacent to the plaintiffs' property is zoned for multiple-family use, as is the property to the east. The area south of the subject property is developed for single-family use, but the majority of the property to the north, although zoned for residential use, is vacant, and an area northeast of the subject property was recently rezoned from single-family to multiple-family use. The subject property as well as the property to the north should be rezoned, forming a corridor of multiple-family zoning from Cicero to the Club parcel. The character of the area is a mixture of commercial, multiple-family, and single-family use, with the site in question most closely related in proximity and condition to the multiple-family trend of development. Although the property is suitable for single-family development, it would be underutilized, since such development would result in only 12 to 16 living units. The major trend in the area is multiple-family in both zoning and use, as evidenced by the fact that more multiple-family than single-family units have been constructed recently, and the demand for multiple-family housing in the general area is currently stronger than that for single-family. Plaintiffs plan to construct seven four-story buildings with parking underneath. The buildings would face inward to a central landscaped area, and open parking would be provided on the perimeter of the buildings in order to put additional space between the apartments and the existing single-family residences to the south. Each building would have 16 units for a total of 112, or 27 units per acre, which is much less than the 48 per acre allowed by multiple-family zoning but is still considered medium to high density. Access to the buildings would be at the northeast corner from Lamon and the southwest corner from Lavergne. To protect the character of the homes on the south, 145th Street should remain a half-street, and the subject property bermed and landscaped along its southern boundary. The other streets in the area are adequate as they exist to handle the traffic generated by the proposed plan. Under this plan, 55% of the property will consist of green areas, while 25% will be covered by buildings and 20% by open parking and drives. A tax and school impact study indicates that the proposed development will generate $15,000 in tax revenues for the Village and $143,000 for the area schools, which exceeds the cost of educating children expected to reside in the development. The highest and best use of the subject property would be development for multiple-family use substantially in accord with the proposed plan.

Campbell admitted that he did not know whether the plan was in compliance with the Village building code, or if the water and sewer systems were adequate for the development proposed. Unless roads in the area are further developed, the only feasible access to the property is at the northeast corner. In determining the trend of development, he did not examine building permits recently issued by the Village, but based his opinion on the apparent age of buildings in the area. The multiple-family zoning on the east side of Lamon forms a buffer between the commercial use on Cicero and the single-family area, which is a standard zoning pattern. The parking areas of the proposed development will have lights, and headlights from cars traveling north through the parking lot will shine on the existing home situated on the northwest boundary of the subject property. Single-family zoning for the property is not unreasonable, but that is not its highest and best use. In fact, single-family zoning is reasonable in all ways, but rezoning would be more profitable for the owner and generate more taxes for the Village and schools. Campbell admitted that there is a need for single-family residences in the area, and existing residences might be more marketable if no rezoning occurs. In the proposed plan, one building will be five feet from the lot line of the single-family residence owned by plaintiff's brother. The property is most influenced by the land to the east and west, even though its north and south boundaries are longer.

Joseph Zgonina, a traffic engineer, testified for plaintiffs that the street system adjacent to the subject property is classified as minor residential, and is adequate for the type of development planned without any improvements. There is direct access to the property from Lamon, 145th Street, and Laport Avenue, and further access could be provided by removing a barricade currently blocking Lavergne Avenue at 145th Street. There is presently very little traffic along these streets, and the proposed plan would generate 56 additional traffic movements during peak morning hours and 67 during peak periods in the evening. Most of the traffic would use Cicero Avenue, and could enter the subject property by traveling west on 145th Street from Cicero, then north on Lamon. This traffic pattern would not adversely affect properties along the route. If the property were developed for single-family use, the existing roadways would be adequate, and the volume of traffic would be less. He admitted that Lamon Avenue and 145th Street would have to be widened to 30 feet of pavement to comply with the Village Code; and that, in studying the area, he was concerned only with what is currently available for access and did not ascertain whether any roads he observed were on public rights-of-way or private property.

William McCann, a real estate appraiser and consultant, testified that he examined the subject property and surrounding area on a number of occasions at plaintiffs' request. The area around the intersection of Cicero Avenue and 147th Street is devoted to commercial uses, and to the west of this commercial area, principally along the east side of Lamon, the trend of development is multiple-family use. These uses are consistent with current zoning. The character of the area is mixed, with no one use predominating, although the most recent construction has been multiple-family units. The current trend of development in the area is multiple-family, but there are several new single-family homes in the area to the south, including one directly across 145th Street from the subject property. There are presently 102 multiple-family units on the east side of Lamon on just over three acres of land. Those buildings appear to have only two vacancies. The demand for condominium units in the area is good, whereas the demand for single-family homes is substantially down, principally because of high interest rates. If the units in the proposed plan are sold as condominiums, they would probably sell for $75,000 to $90,000. There is a wide range of homes in the area; the fair market value of some would be $250,000 to $300,000, while others are in the $60,000 to $90,000 range. Under current zoning, the fair market value of the subject property is $84,000, based on a reasonable density of 14 lots at a value of $6,000 to $7,000 per lot. If the property is rezoned, it would have a fair market value of $224,000. The highest and best use of the land would be multiple-family development in close conformity with the proposed plan. Such use would be consistent with the land use and zoning patterns that have developed throughout the area, and would not be depreciatory to surrounding property trends or values. The impact on surrounding uses, if any, would be consistent with the impact already experienced in the area by virtue of pre-existing multiple-family use and zoning. There would be no monetary depreciation in the value of homes in close proximity to the subject property. The existing zoning is unreasonable because development of single-family homes would be an unwarranted risk for plaintiffs, given the lack of demand for single-family homes, and the diminution in the value of the property is not warranted by the nature of the surrounding zoning and uses. Conversely, the proposed use is reasonable because the property takes its character from the most recent trend of development in the area, and would generate the highest return for the owners without any adverse or depreciatory effects on nearby residences. McCann acknowledged that in making his determination of the most recent trend of construction, he did not look at building permits issued by the Village, and determined occupancy of existing apartments by visual evidence; i.e., visible furniture or window coverings and the absence of "for rent" signs. He did not check with realtors in the area to ascertain the demand for condominiums or apartments, but relied on his own experience in the general area of the Village and surrounding communities. In determining the value of the land as zoned, he compiled statistics on 30 lots in Crestwood and Oak Forest; he did not attempt to ascertain the price of lots immediately adjacent to the subject property which were recently sold for single-family development. The zoning of land along the east side of Lamon is similar to buffer-type zoning which occurs in many zoning patterns. The Club parcel which is zoned for multiple-family development is unique in that it is a larger area adjacent to the Club facilities, but it does not have good access.

Paul Box, a traffic engineering consultant, testified for defendants that single-family development of the subject property would generate 15 additional traffic movements in the morning and 18 in the evening; whereas, multiple-family development would generate 67 movements in the morning and 78 in the evening — four times as much traffic as single-family development. The road south of the subject property along the Club is not located on the dedicated right-of-way for Lavergne Avenue, but is on private property belonging to the Club. Even if there were access to this road, its use would not be feasible because of the sharp angle of the intersection. Furthermore, its development as an access would channel traffic through an area of single-family homes, and this would have a detrimental impact on that area. The only other access to the subject property shown on the proposed plan is from Lamon at the northeast corner of the property. This is not a desirable access point, and plaintiffs' plan will add to noise vibration, air pollution, and, potentially, increase the number of accidents, including those involving children. Access could not be planned from 145th Street as it is currently developed, because the pavement is only 15 feet wide and it is almost impossible for moving vehicles to pass each other. The proposed plan is not properly designed or appropriate to the area from a traffic standpoint, since the only feasible routes of traffic are along streets abutted by single-family homes, and the plan does not contain any dedications to improve the inadequate design. Box admitted that street dedications would also be necessary if the property were developed for single-family use. He did not know whether the Village has an official plan concerning land use and zoning, but he had seen zoning and subdivision regulations.

William Metz, a real estate appraiser and consultant retained by defendants, testified that a number of new homes have been built recently in the area south of the subject property, and the demand for single-family homes in the area is high because of its proximity to the golf course and the style and price-range of existing homes, estimated at $70,000 to $150,000. The demand for multiple-family units in the area is somewhat limited. The proposed plan of 27 units per acre is considered high density and, if the proper street dedications are made, the density will be 35 units per acre, which is within zoning limits. The land as currently zoned has a fair market value of $200,000 if developed into 10 lots for single-family homes. He based his figures on a study of four recent sales of developed lots in the area around the Club. The selling prices for these lots ranged from $28,000 to $45,000. Lots on the subject property would sell for $35,000 if improved and $20,000 if unimproved. Lots in older sections of the Village not in proximity to the Club sell for $5,500 to $8,000. If the land were rezoned for multiple-family use, it would have a fair market value of $225,000. The highest and best use of the property is single-family residential development considering land use patterns in the area, existing zoning, and the style and price range of existing homes. The proposed plan would have a minimum 10 to 15% depreciatory effect on the surrounding homes because of the congestion in the area and the style and placement of the proposed buildings. Development for single-family use would not be an unwarranted risk for the owners because of the demand for homes in this high-class area; whereas, multiple-family development would constitute an economic risk. Metz acknowledged that the property east of Lamon has been rezoned from single-family to multiple-family since some of the homes in the area were built. He gave the multiple-family zoning of the 17 acres west of the subject property very little weight in reaching his conclusions because, in his opinion, that property will never be developed in accordance with that zoning since it is counter to the current trend in developing such properties. In determining that the demand for multiple-family units was low, he considered the occupancy that appeared to exist, the slow sales of condominium units, and conversations with local brokers, builders, and developers.

John Reimer, a consulting engineer for the Village, testified that he was instrumental in designing and supervising the construction of water and sewer lines in the area. The lines which would serve the subject property are along its southern border, but they are not deep enough for the proposed use. There are existing lines east of the property, but they are located in a private easement and are not within the right-of-way for Lamon. There are water and sewer lines within the Lavergne Avenue right-of-way, but the subject property cannot be served by that sewer line because its elevation is too high. The existing system is presently overloaded downstream from the subject property and surcharges during heavy rain, causing an over-flow of sewage into ditches and basements. Preliminary calculations indicate that the proposed development would generate 820% more sewage than single-family development, which would be detrimental to the entire area. The existing road south of the subject property is on Club grounds, at least five feet west of the dedicated right-of-way for Lavergne. The estimated cost of developing Lavergne is $71,000 to $84,000. The steep grade of the subject property makes it more suitable for single-family development. Reimer admitted that the surcharging problem has existed for three to four years, but the Village has not imposed a moratorium on building permits. It is feasible to change the grade of the subject property, but extensive cutting and filling would be needed and would be more destructive of the trees than single-family development. The Village has a master plan which contains requirements for streets and zoning; it also maintains the street located on Club property adjacent to the Lavergne right-of-way.

Lorraine Alles testified that she lives in a home immediately south of the subject property. She and her husband purchased two lots for $45,000 in 1978 and built their home at a cost of $200,000. Before purchasing, they checked the zoning in the area and were informed that it was zoned for single-family use. Two bedrooms and the family room of her home overlook the subject property. When she inquired about zoning, she learned that the property east of Lamon was zoned for multiple-family use, but did not ascertain the zoning on the north side of the Club.

Edward Cebulski testified that he is a realtor and lives in the area south of the subject property. The demand for single-family homes in the area is fair to good because of the large, wooded lots and the proximity to the Club. There are currently two homes in the area listed for sale with realtors. He was recently involved in a condominium conversion in the area and, during the 12 weeks that he handled the property, no units were sold. There are 10 vacant apartments and four vacant condominiums in the ...


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