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03/13/87 Mary Wells Et Al., v. the Village of

March 13, 1987

MARY WELLS ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF LIBERTYVILLE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

505 N.E.2d 740, 153 Ill. App. 3d 361, 106 Ill. Dec. 193 1987.IL.307

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

Justice Hopf delivered the opinion of the court. Lindberg, P.J., and Nash, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

This appeal arises from the rezoning of a parcel of real estate, from a residential classification to a business classification, by defendant village of Libertyville (the village). Plaintiffs are owners of residential property adjoining on either side of the subject property. The trial court denied plaintiffs' complaint for declaratory and injunctive relief from the rezoning. On appeal, plaintiffs, Mary and William Wells, assert that they were denied due process because the village did not give them personal notice of the hearing on rezoning of the property. All plaintiffs contend that the zoning amendment ordinance was invalid because it was arbitrary and unreasonable.

In 1983, defendant, Charles Matthews, signed a contract for the purchase of property (Matthews property) located at 137 West Park Avenue (also known as State Route 176) in Libertyville. The property, a single-family residence, had been on the market for 4 1/2 years. During that time plaintiff, William Wells, had made at least one unsuccessful offer to purchase the property. The only other offers were made by an architect and by Matthews, both of whom wished to use the property as an office. Matthews' offer was contingent upon rezoning from a multi-family residential zoning classification of R-8 to a business classification of B-3. During the last six months before Matthews' offer was accepted, the listing realtor had taken at least 30 prospective buyers through the house. No offers were made for residential use.

Matthews, who wished to locate an office for his employment consultant business on the property, filed a petition for rezoning with the village. In addition to office uses, the B-3 zoning he sought allowed such uses as barber shops, beauty shops, and medical clinics. Pursuant to statute (Ill. Rev. Stat. 1983, ch. 24, par. 11-13-14), notice of a public hearing regarding rezoning was published in a local newspaper by the village. In accord with its long-standing custom of personally notifying owners of property near a proposed rezoning, the village also mailed notices to neighbors of the Matthews property. A notice was mailed to and received by the plaintiffs, Donofrios, who live in a single-family home directly east of the Matthews property. No such notice was mailed to the Wells, whose single-family home is located immediately west of the subject property.

Matthews appeared at the rezoning hearing before the village plan commission in support of his petition. No one appeared in opposition. The Donofrios, who were unable to attend the hearing in person, mailed a letter to the village expressing their objection to the proposed rezoning. This objection did not reach the village planning director and was not presented to the plan commission at the public hearing. The plan commission recommended that the petition be granted, and on November 8, 1983, the village board of trustees adopted an ordinance rezoning the property from R-8 to B-3. Matthews then completed the purchase of the property and opened an office in the former residence.

In February 1984 plaintiffs filed a petition to rezone the Matthews property back to an R-8 residential classification. After a hearing, the plan commission, and ultimately the village board, denied that petition. Plaintiffs then filed the instant suit.

Trial testimony established that the Matthews property is located in the first block of West Park Avenue west of Milwaukee Avenue. Milwaukee Avenue is the main north/south thoroughfare through the village of Libertyville, while Park Avenue is a main east/west route. Both Milwaukee and West Park Avenues are heavily traveled roads. Milwaukee Avenue, both north and south of West Park, has been developed with strip commercial and business uses on both sides of the street. Park Avenue, east of Milwaukee, is also primarily business, but ultimately culminates in industrial uses near the eastern edge of the village. The area of West Park Avenue, west from Milwaukee to Stewart Avenue, the first street west of Milwaukee Avenue, has a variety of both uses and zoning classifications. Specifically, on the southwest corner of West Park and Milwaukee is a gas station with a detached car wash (zoned B-2, business). Going directly west on the south side of West Park is a former single-family residence which has been zoned and used for offices, including a State Farm Insurance office, for some time (zoned B-3, business); another former single-family residence which was rezoned and converted into offices subsequent to the Matthews property rezoning (zoned B-3, business); the Donofrio home (zoned R-8, residential); the Matthews property (zoned B-3, business); and the Wells' home (zoned R-8, residential).

On the north side of West Park Avenue, west from Milwaukee Avenue, is another gas station (zoned B-2, business); a funeral home (zoned B-2, business); a parking lot for the funeral home (zoned R-8, residential); and an apartment building (zoned R-8, residential) which extends to the corner of Stewart Avenue. West of Stewart Avenue on West Park the uses are primarily multi-family and single-family residential (R-8 zoning), and schools, with the exception of one business use (also business zoning) located approximately one-half mile west of Stewart. The next business uses are about one mile west of Stewart. To the south of the Donofrio, Matthews, and Wells property is an abandoned railroad right-of-way, now used as a bike trail, followed by a residential area.

The plaintiffs testified that their properties had been adversely affected by the rezoning of the Matthews property in that the neighborhood was no longer quiet, at least several cars were regularly parked on the property, sometimes the cars drove on the Wells property, and at night the business caused light pollution.

Plaintiffs' city planning expert, Norman Drummond, testified that the rezoning was both inconsistent with the village comprehensive plan and incompatible with surrounding uses and zoning; that development along West Park Avenue is transitional between single-family and multi-family residential and has mixed uses; that the highest and best use for the property would be to assemble it with the Wells and Donofrio properties and develop it as a multi-family building. He also testified that R-8 zoning is the most intensive multi-family classification in the village and that it is not unusual for business zoning to radiate out in all directions from the four corners of a major intersection.

Plaintiffs' expert real estate appraiser, Herbert Harrison, testified that plaintiffs' properties would be worth less zoned for business than for residential purposes; that there was no need in the village for additional office space, but that there was a market for selling older homes for office use; that the value of plaintiffs' properties as single-family residences was not adversely affected by their proximity to the intersection of Milwaukee and West Park Avenues, nor would it be so affected if a five-unit apartment building were built on the Matthews property. Harrison, like Drummond, testified that the highest and best use of the property would be to assemble it with neighboring property and build an apartment building and that plaintiffs' property value was diminished because assemblage was no longer possible.

Defendant Matthews' expert real estate appraiser testified that plaintiffs' property would have a higher value if rezoned to business; that the highest and best use of the property would be for business, particularly offices or retail; that there was a demand in the village for houses in the price range of plaintiffs' properties; and that the business ...


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