Appeal from the Circuit Court of Cook County; the Hon. Arthur
Dunne, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Cosmopolitan National Bank as trustee of a trust holding certain real estate that is the subject matter of this suit, Louis Capazolli, Joseph Capazolli, and Aida Guss, the beneficial owners of the trust, and McDonald's Corporation, lessors of the subject property, appeal from an order of the trial court upholding the decision of defendant, the village of Niles, that denied plaintiffs' petition for a special use permit.
Plaintiffs seek to develop a McDonald's restaurant on the property. On December 17, 1979, they filed a petition with the zoning board of appeals and the plan commission of the village of Niles requesting reclassification of the subject property from the R-4 residential district to the B-1 business district and the issuance of a special use permit for the proposed McDonald's restaurant. The zoning board of appeals held public hearings on the petition for rezoning and a special use permit, and on March 24, 1980, recommended that the board of trustees of the village of Niles deny the request for rezoning and a special use permit. On May 13, 1980, the board of trustees concurred in that recommendation and adopted a resolution denying plaintiffs' petition.
Plaintiffs then brought an action in the circuit court of Cook County seeking review of the village's decision. At the commencement of trial, the village conceded that the property should be rezoned to the B-1 business district. Therefore, the sole issue before the trial court was whether the village had abused its discretion in denying the requested special use permit. After a bench trial on the merits, the trial court entered judgment in favor of the village. Plaintiffs appeal from that order.
McDonald's Corporation proposes to develop the subject property with a McDonald's restaurant, with a drive-through window, and five retail stores. The McDonald's restaurant would have 4,386 square feet and the retail stores would contain 11,400 square feet. One of the stores would have 1,800 square feet of space and the remaining four stores would each have 2,400 square feet of space. There would be 99 parking spaces on the property, 61 for the McDonald's restaurant and 38 for the retail stores. McDonald's restaurants receive from the corporation 11 inspections each year by regional personnel, including one full field consultation. A McDonald's restaurant and its immediate surrounding area is policed for litter and debris every half hour and each morning an employee walks a one-block square area around the restaurant to pick up any letter from the store. The control of exhaust emissions on McDonald's restaurants is considered the standard for the industry.
The property is located at the northeast corner of Grace and Dempster streets in Niles. It contains 111,015 square feet, measured from street center line to street center line and 84,129 square feet of frontage on Grace. Dempster Street is a four-lane highway and is one of the main east-west streets in Niles.
The property is the last vacant parcel in a commercial area on Dempster Street in Niles between Greenwood Avenue on the west, and Cumberland Avenue on the east. Immediately west of Greenwood, both sides of Dempster are occupied by major shopping centers. The shopping center on the south side of Dempster is in Park Ridge, and contains a Dominick's Food Store, a Walgreen's Drugstore and other convenience shopping facilities. On the north side of Dempster is the Dempster Plaza Shopping Center which contains approximately 200,000 square feet of retail stores including a Jewel store, Armanetti's Liquors, and K-Mart. At the southwest corner of the Dempster-Greenwood intersection in Park Ridge, there is a Shell gas station and an Arthur Treacher's Fish and Chips restaurant. At the southeast corner of the Dempster-Greenwood intersection, there is a Union 76 gas station with a carwash and Spicer's Restaurant. Next to Spicer's Restaurant is an office building, and immediately east of that is Jonathan's Restaurant at the southwest corner of Grace and Dempster. There is a gas station at the northeast corner of the Dempster-Greenwood intersection and a Poppin' Fresh Pies Restaurant. Next to Poppin' Fresh Pies are businesses known as G & M Party Needs Incorporated and a J.D. Enterprises Landscaping and Construction. Across from the subject property at the northwest corner of the Dempster-Grace intersection is the Dempster Plaza State Bank which has eight drive-up windows. Immediately east of the subject property is the First Federal Savings and Loan building which has four drive-up windows. The northern half of the block on which the subject property is located is occupied by multiple-family dwelling units. On the south side of Dempster Street across from the subject property the land is occupied by multiple-family dwellings at a density of 22 dwelling units per acre.
Plaintiffs contend that the finding of the trial court that the board of trustees' denial of the special use permit was not arbitrary and capricious was not contrary to the manifest weight of the evidence.
In judicial review of a denial of a special use permit, the court is concerned with the constitutionality of the special use denial insofar as it prohibits a particular use as designed. (La Salle National Bank v. County of Lake (1975), 27 Ill. App.3d 10, 15, 325 N.E.2d 105.) Thus a finding by a court that a special use permit should not have been denied in effect recognizes that the proposed use as designed is compatible with the surrounding area. (La Salle National Bank v. County of Lake (1975), 27 Ill. App.3d 10, 16.) The burden is on the plaintiff to prove by clear and convincing evidence that the denial of the special use permit was arbitrary, capricious and unreasonable in that it bore no real or substantial relationship to the public health, safety, morals or general welfare. (La Salle National Bank v. City of Evanston (1974), 57 Ill.2d 415, 428, 312 N.E.2d 625.) For the reasons stated below, we find that the plaintiffs have sustained their burden of proof and that the denial of the special use permit was arbitrary and unreasonable.
The Niles zoning ordinance sets forth three standards by which application for special use permits are to be measured:
"No special use shall be granted by the Village Board unless the special use:
(a) Is deemed necessary for the public convenience at that location;
(b) Is so designed, located, and proposed to be operated that the public health, safety, and welfare will be protected; and
(c) Will not cause substantial injury to the value of other property in the neighborhood ...