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Cosmopolitan National Bank v. Northbrook





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


The plaintiffs, Cosmopolitan National Bank, not individually but as trustee under trust No. 14422, Irving Margolin and Grace Margolin, filed this action for declaratory judgment challenging a zoning ordinance of the defendant, the village of Northbrook. The trial court entered judgment in favor of the plaintiffs, finding the ordinance unreasonable, null and void as applied to the subject property insofar as it prevented the use thereof for the plaintiffs' proposed development. The defendant appeals. The issues presented for review are: (1) whether the trial court's judgment was contrary to Illinois law, and (2) whether the trial court made prejudicial evidentiary rulings.

The subject of this action is property located along the south side of Dundee Road about 500 feet west of Pfingsten Road in Northbrook. It consists of approximately 5.1 acres, 460 feet by 470 feet. The property is currently zoned R-4 for single-family residences on 12,000-square-foot lots and is vacant except for a house on its northeast corner. The western and southern borders of the subject property abut property zoned R-5 for single family residences on 7,500-square-foot lots. Approximately half of the eastern boundary of the subject property borders property zoned R-4; the other half borders property zoned R-6 for general residence. The northern boundary of the subject property is adjacent to Dundee Road.

On July 22, 1981, the plaintiffs filed an action for declaratory judgment. The complaint alleged that in September 1980, they petitioned Northbrook's plan commission to rezone the subject property from R-4 single-family residences to B-3, with a special-use permit for a planned unit development. B-3 is a commercial-use classification. The plaintiffs sought rezoning for the purpose of constructing a 55,000-square-foot, nine-building, single-story office complex "of a residential character." Following two public hearings, the petition was denied. The complaint sought judgment declaring that the plaintiffs' proposed use was reasonable, that the Northbrook zoning ordinance was unreasonable and void, and that Northbrook be enjoined from interfering with the plaintiffs' proposed use, and other relief.

At trial, Alan Kracower, a city planning consultant and a land-scape architect, testified that the plaintiffs' proposed development would be the highest and best use of the subject property. He based that conclusion on the overall trend and character of the area, which he believed to be "predominantly commercial and office," and on his opinion that Dundee Road, a four-lane arterial highway carrying a volume of approximately 30,000 cars daily, would make the subject property unsafe and inaccessible for residents.

Albert Wengerhoff, an architect and developer, testified that he had done an architectural and land use feasibility study for the plaintiffs. He had concluded that the subject property was best suited for light commercial use "or in this case an office type use."

Bernard Peller testified that he was vice-president of Ayres and Associates, a real estate brokerage firm. Ayres and Associates had been responsible for marketing the property adjacent to the subject property for at least four years. It consisted of a lot, three quarters of an acre in size, and a seven-room frame house. Five offers to purchase had been received; four were made contingent on rezoning.

Neil S. Kenig, a transportation planning consultant, testified that he had made a traffic impact study regarding the plaintiffs' proposed development. He opined that Dundee Road had the capacity to handle the additional traffic that would be generated by the office complex.

James Edwin Brown, a consulting engineer, testified that he had been retained by the plaintiffs to do an engineering feasibility study. He believed that the existing utilities were adequate to service the proposed development.

Plaintiff Irving Margolin testified that he inherited 3 1/2 acres of the subject property in 1965. He acquired the balance of the property in 1970 or 1972 and 1980. He unsuccessfully sought rezoning of the property in October 1980 and May 1981. He had never listed his property for sale or posted a "for sale" sign. Margolin testified that since 1965, Dundee Road had been expanded from a two-lane to a four-lane highway. Land west of the residential zone which borders the western boundary of the subject property had been rezoned from residential to commercial and now accommodates a tennis club. West of the tennis club and north of Dundee Road, property had been rezoned from residential to M-1, manufacturing with a special use; a single-story office building is presently located there. West of these developments at the intersection of Dundee and Landwehr Roads is a gas station and a shopping center. Three houses in a residential zone north of Dundee Road and west of the subject property were being used as commercial offices. A convenience store was separated from the eastern border of the subject property by a residential zone. The remaining property in the area contained apartment buildings, townhouses and single-family residences. Margolin did not believe that the subject property could be "developed economically" for single- or multiple-family purposes.

Neil King, a real estate broker and appraiser, testified that, in his opinion, there was no demand for further residential development in the area of the subject property. He did not think that the plaintiffs' proposal would alter the essential character of the area. King believed that there was a need for additional office space in the area. He had noticed a trend toward commercial development along Dundee Road during the last 15 years. King stated that the highest and best use of the subject property would be an office development similar to the one proposed by plaintiffs. He believed that, as presently zoned, R-4, or as zoned R-5, the fair market value of the subject property was about $100,000; if developed as proposed, the property's fair market value would be approximately $765,000. On cross-examination, King admitted that since 1977, there had been a steady downward trend in the real estate market.

Steven Pawlan testified for the defendant that he owned a house and lot which abutted the south edge of the subject property. He paid $120,000 for the property in December 1980. Before purchasing the home, he investigated the zoning classifications in the area. He would not have bought the house if the subject property had been zoned for commercial or nonresidential use. Pawlan believed that if the plaintiffs' proposed development were constructed, his enjoyment of and the value of his property would be diminished.

Iris Goldfein testified that she owned a home on a lot adjacent to the subject property. Before purchasing it, she checked the zoning classification of the subject property. She would not have made the purchase if the subject property had been zoned for nonresidential development. Goldfein bought the house in 1979 for about $160,000, and spent an additional $6,000 to build a useable back yard.

Joseph Abel, director of development of Du Page County and a private planning consultant, testified that, except for two planned shopping areas, the land use, zoning and trend of development in the vicinity of the subject property was residential in character. The Northbrook comprehensive plan depicted the subject property as zoned for single-family residential use. Abel thought that Northbrook had developed and followed a consistent policy fulfilling its comprehensive plan with respect to commercial and office development. He saw the plaintiffs' proposal as totally inconsistent with the village comprehensive plan as well as with the character, trend of development and current zoning and land uses in the vicinity. The community presently had about 614 acres available for business and office use; about 259 acres had been proposed in a new plan for additional office and commercial use. Abel concluded that Northbrook had no need for additional land zoned for office use. ...

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