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Norwood Builders v. City of Des Plaines





Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.


Plaintiffs appeal and defendant cross-appeals from an order declaring defendant's zoning ordinance unconstitutional as applied to plaintiffs' property and denying plaintiffs' proposed uses as being unreasonable. They seek reversal of the trial court's order.

For the reasons that follow, we affirm in part and reverse in part.

Pertinent to our consideration are the following.

Plaintiffs applied to the defendant's zoning board of appeals for rezoning of their 38-acre tract of land to permit 2.2 acres for commercial use, 16.1 acres for multifamily residential use and 19.7 for light industrial and office use. Although the zoning board recommended approval of plaintiffs' application, the defendant's city council rejected the recommendation, whereupon plaintiffs filed their complaint seeking declarations that the present zoning, as applied to their property, was arbitrary and unreasonable and that their proposed uses for their property were reasonable.

At trial, plaintiff and proposed developer Raymond Adreani testified that he acquired the subject property from the Archdiocese of Chicago over a four-year span ending March 1981; that he had an estimated $2.2 million invested in the property; and that if successful in this action for declaratory relief, he would develop the site according to a plan prepared for him by Rolf Campbell, which would consist of office, research, industrial, commercial and multifamily residential uses.

William McCann, a realtor and appraiser, described the 38-acre subject property as located at the southeast corner of the intersection of Central and Wolf roads. There is a three-quarter acre parcel zoned as C-2 (commercial) containing an abandoned building at the corner. The balance of the property is zoned R-2 (residential) and currently vacant. The site has approximately 1,310 feet of frontage along Central Road, about 860 feet of frontage on Wolf Road extending south and about 1,200 feet along its eastern boundary. Adjoining the eastern boundary of the property in question are a city-owned parcel containing an aboveground water tank, Commonwealth Edison high-tension wires and Soo Line railroad tracks; the southern boundary adjoins land developed as M-2 (general manufacturing) and R-4 (multifamily residential). The southwestern border of the property abuts 13 single-family residences located on Polynesian Drive.

Rolf Campbell, an expert in city planning and zoning, testified that his plan consists of a commercially developed northwest corner (2.2 acres) to be developed as compatible with the three corners surrounding it which are all zoned C-2 (commercial) and which would not exceed 30,000 sq. ft. of gross leasable area. Three three-story condominium buildings totaling 90 units will back up to this commercial area and will also be adjacent to a retention lake to be created. A series of 15, eight-unit, two-story coach manor homes will be placed throughout the remaining multi-family residential property. Seven one-story buildings, which will together not exceed 300,000 sq. ft. of office/industrial space, are proposed for the site's 19.7 acres of office/light industrial uses, three on the east side of an extended Third Avenue and four on the west side. The exact size and number of these buildings will ultimately be determined by the actual users, but the height of these buildings will not exceed 35 ft. It was Campbell's opinion that the plan itself followed the multi-use land use patterns and trends already established in the area; the plan could be laid out in accordance with all of the defendant's standards. Further, it was Campbell's opinion that the subject property's corner was correctly zoned as C-2 (commercial), but that the R-2 (single-family) classification on the remainder of the site was incorrect.

Additionally, Campbell, Ralph Martin and William McCann, plaintiffs' planning and real estate appraisal experts, testified that a mixed-use development is the highest and best use of the subject site due to the surrounding industrial, municipal, public utility, railroad, multiresidential, single-family and commercial uses which greatly affect the character of the site. They further opined that no adverse effect would occur on the property surrounding the site should plaintiffs' plan be developed; that the land between commercial and light industrial development should not be developed as single-family residential, but rather as multifamily residential; and that adequate berming will be used to separate the on-site multifamily dwellings from the on-site office/light industrial uses. Regarding the M-2 and R-4 areas to the south of the site, they opined that although this area might have been a planning mistake, the plan's proposed extension of Third Avenue north to Central Avenue would lead to the enhancement of this area. With regard to any traffic concerns, Gerald Lindgren, plaintiffs' traffic expert, testified that the Illinois Department of Transportation planned to improve both Wolf and Central roads; that the proposed development will not have a deleterious effect on adjacent roadways; that the extension of Third Avenue is needed to further disperse traffic in the area, whether the site is developed as proposed or not; and that the extension of Third Avenue will also give the industry located to the south of the site direct access to Central Road.

Defendant's experts, Gerald Estes, an architect and land planner and John Hoppe, a real estate appraiser, testified that the single-family homes in the area surrounding the subject site were uniform and well established; that single-family residential was the predominate land use of the surrounding area; and that plaintiffs' plan of development was not only a clear departure from the existing single-family residential land use, but that it would have a deleterious effect on this "established" use. They opined that the subject site, as presently zoned, was in conformity with the predominate land uses and zoning of the area; that plaintiffs' proposed uses were not compatible with the surrounding area from a planning viewpoint; and that the present single-family residential zoning represented the highest and best use of the property (with the exception of the small commercially zoned parcel) from a zoning/planning standpoint. In addition, the multifamily units located on the subject site's southeast border which lie directly across from an industrial area act as a buffer between the industry and the single-family homes located to the west of these multifamily units.

Defendant's traffic expert, Richard Beebe, testified that although he agreed with plans to extend Third Avenue, this extension would force fire trucks from the proposed fire station to drive through residential areas so as to service the industrial area located on the site's southeast border; that the traffic generated by the proposed site would be deleterious to the surrounding areas; and that plaintiff's plan for a private drive would in no way conform to the requirements for public streets, but that the city has the right to approve any proposed street plan. Further, he admitted that in doing his field work, he did not take into consideration construction work being done which could very well have substantially effected traffic backups which he testified had occurred at the intersection of Wolf and Central roads during rush hours.

Defendant's other witnesses testified that the city does lease some land under high tension wires from Commonwealth Edison for community gardens and plots; that any perceived problems between the proposed plan and the city's fire department's access to the subject site could be solved if the road south of Central Road was linked up to a road on the southern portion of the subject site; and that the existence of light industrial property to the immediate south of the subject site might possibly be a detriment to any single-family homes developed on the site.

Following closing arguments on September 16, 1982, the trial court rendered an oral opinion from the bench. Thereafter, on October 18, 1982, the trial court entered a written order, to which it appended its prior oral opinion. This order specifically held that the zoning ordinance of the city of Des Plaines, as applied to the subject property insofar as it classified the subject property under the R-2 single-family residential classification, bore no reasonable relationship to the public health, safety, morals and welfare and was arbitrary, capricious, unreasonable and void; that the denial by the city of Des Plaines of the developer's request for 2.2 acres of commercial use on the northwest corner of the subject site was also arbitrary, capricious and unreasonable, and directed the city to issue any and all permits subject to the strict requirements of the applicable ordinances to permit commercial construction containing at least 30,000 square feet under roof as proposed and testified to; and that the denial by the city of the multifamily residential and light manufacturing plans as proposed was proper. The court further directed the parties to confer on an appropriate use for the remaining unzoned property, using its oral opinion rendered on September 16, 1982, as a guide. The court retained jurisdiction for the purpose of reviewing the submission of the parties in accordance with the directions of the court, and to render such further orders in the premises as needed.

Following the trial court's rendition of its order, additional evidence was heard from by both sides. Plaintiffs presented a revised plan for the subject site which retained the original plan's commercial area of 2.2 acres (30,000 square feet of gross leasable space), but reduced the original 19.7 acres of office/research/light industrial space to 19.2 acres. The major change occurred in the multifamily residential area. In an attempt to alleviate the city's concern with the original plan where the site's manor homes abutted the 13 single-family Polynesian Drive homes on the site's southern border, the revised plan increased the original three condominium buildings to four, for a total of 120 condominium units, while at the same time decreased the number of manor homes to 10 and added 13 single-family homes which will abut the Polynesian Drive homes. In addition, 30-foot land-scape berms were added to buffer the proposed office/industrial area.

With regard to this revised plan, plaintiffs' experts testified that it would have no material or adverse effect on the surrounding area; that the revised plan was the highest and best use of the subject site; that it was not deleterious to surrounding property value; and that it was a reasonable use. They further testified that all of their opinions regarding the original plan also applied to the revised plan.

The opinions of defendant's experts regarding the incompatibility of the original plan with the surrounding area, the highest and best use of the subject site as being single-family residential, as well as the deleterious effect that this plan would have on the character of the surrounding area, were all echoed by its experts with reference to the revised plan introduced by Rolf Campbell.

Thereafter, following closing arguments, the trial court noted that it had previously struck down the single-family zoning on the site and approved the proposed expansion of the already existing commercial use on the southeast corner of Wolf and Central roads to 2.2 acres; and that the reopening of the proof in the case represented to the court an attempt to get the parties to engage in sensible innovative planning, but that it did not appear that this had taken place. Adopting and relying on its prior decision, the trial court found the revised plan's changes insufficient to justify a change in its original position that the residential and light industrial purposes were unreasonable. On March 1, 1982, the trial court issued its final judgment order. It incorporated by reference the findings it made on October 6, 1982, except as modified, and reiterated its original holding that plaintiffs' proposed use of 2.2 acres of the subject property for commercial purposes was reasonable, and that its original decision regarding the unreasonableness of the residential and light ...

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