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04/22/87 La Salle National Bank, As v. the Village of

April 22, 1987

LA SALLE NATIONAL BANK, AS TRUSTEE, ET AL., PLAINTIFFS-APPELLEES

v.

THE VILLAGE OF BLOOMINGDALE, DEFENDANT-APPELLANT (WILLIAM M. SHANAHAN ET AL., INTERVENORS-DEFENDANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

507 N.E.2d 517, 154 Ill. App. 3d 918, 107 Ill. Dec. 604 1987.IL.532

Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiffs, La Salle National Bank, as trustee for trust No. 47030, Urban Investment and Development Company, a Delaware corporation and the beneficial owner of trust No. 47030 (Urban), and Zaremba Bloomingdale Company, an Illinois corporation (Zaremba) as the general partner of Bloomingdale Associates, an Illinois limited partnership, the contract purchaser of the parcel of land contained in the trust, brought this declaratory judgment action pursuant to section 2-701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-701) seeking a declaration that the board of trustees of defendant, the village of Bloomingdale (Bloomingdale), arbitrarily and capriciously denied approval of plans to develop a 15.6-acre parcel of land, currently vacant, into a single-story, three-building retail operation. Homeowners in the residential development, Stratford Estates, which is directly east of this parcel, were allowed to intervene. Following a bench trial, the trial court found that the disapproval of the site plan by the board of trustees was unreasonable and inconsistent with the local zoning ordinance and that the planned use of the property was permitted in accordance with a site plan proposed by plaintiffs. The court enjoined and restrained Bloomingdale from interfering with the proposed development of the parcel and ordered Bloomingdale to issue all the necessary permits for the proposed development.

Defendant raises the following issues on appeal: (1) whether the trial court properly substituted its discretion for that of the board of trustees by failing to uphold the decision of the board of trustees to disapprove the proposed plan of development of the shopping center on parcel D-2; (2) whether the trial court properly determined that plaintiffs succeeded in overcoming the presumption of validity of the board of trustees' decision to disapprove the proposed development by clear and convincing evidence; and (3) whether plaintiffs are entitled to the relief requested because any hardship they will suffer from the disapproval of the site plan was self-created.

The following facts were developed at trial. In 1973, Urban purchased an 875-acre tract of land bordering on the west of a small, but growing, suburban community known as Bloomingdale. Urban intended to develop this tract with a variety of residential and commercial developments over a 10- to 25-year period of time centering on the creation of a large regional shopping mall, Stratford Square. The tract of land is bounded on the south by Army Trail Road and the Illinois Central Railroad, on the north by Lawrence Avenue and part of Lake Street, on the west by Gary Avenue, and on the east by Indian Lakes Country Club. This became known as the Stratford Planned Unit Development District (Stratford PUD District). The district is illustrated in appendix A.

The Stratford PUD District was annexed to Bloomingdale pursuant to an annexation agreement dated December 20, 1973. As part of the annexation agreement, Bloomingdale enacted Ordinance 73 -- 69, a special ordinance to govern planned unit developments of 250 acres or more (PUD ordinance). A planned unit development district, unlike traditional zoning districts, specifically permits both residential and commercial uses within the district if the uses are designed to be compatible with the other uses in the district. Because of the difficulty of predicting the exact nature and pattern of development, the PUD ordinance allows for the flexibility necessary to develop a large tract of land over an extended period of time while continuing to allow the municipality to protect the interests normally protected through general zoning provisions. The parties agree that the PUD ordinance applies to the subject property. The PUD ordinance sets forth the regulations for the entire district, including specific building requirements for light, use, air, and bulk of each proposed development. It also includes explicit standards which shall guide the planning commission and the board of trustees in the exercise of their reasonable discretion when determining whether to grant or deny approval of any plan for development in the district. If the proposed plans are in conformity with these standards, the ordinance also provides that the plans shall be approved.

Pursuant to the PUD ordinance, Urban developed, and Bloomingdale approved, a tentative development plan which divided the 875-acre tract into two land use regions: a business land use region and a residential land use region. Wheaton Road, a north-south highway, divides the two regions. Urban also designated the percentages of residential and commercial development which could occur in the two regions. In the business land use region, a maximum of 100% commercial could be developed with a minimum of 35% commercial and a maximum of 65% residential and minimum 0% residential. In the residential land use region, a maximum of 90% residential and a minimum of 60% residential and a maximum of 40% commercial and a minimum of 10% commercial could be developed. In 1979, however, pursuant to Urban's request, Bloomingdale amended the tentative development plan to permit the development of a maximum of 97% residential and a minimum of 3% commercial in the residential land use region.

Urban also designated other prospective land uses in the district as municipal, school, water retention, public park sites, and divided the entire district into eight neighborhoods. The parcel subject to this action is in neighborhood D, which was later divided into two parts: D-1 and D-2. This plan was updated periodically although Bloomingdale was never required to adopt a new tentative plan, and the updated plans never varied much from the original. Urban referred to the plan as reflecting its present intention with regard to future development.

The testimony and exhibits show that the following development has taken place in the Stratford PUD District: in the business land use region: (1) the Stratford Square Shopping Center west of Wheaton Road; (2) the Herman's Shopping Center, Amlings Flowerland, Red Lobster, Children's World, and office buildings along the north side of Army Trail Road and west of Wheaton Road; (3) south of Army Trail Road and west of Wheaton Road, the Western Development Fashion Center and Toys-R-Us; (4) along the northwest perimeter of the Stratford Square Shopping Center at Schick Road and Gary Avenue is Merchant's Park, which contains a Pearle Vision Center, Meriwethers, Burger King, a car wash, and McDonalds; and in the residential land use region: (1) on the parcel D-1, which fronts along the north side of Army Trail Road and Butterfield Drive, are 36 single-family homes; (2) at the northeast quadrant of Army Trail Road and Wheaton Road, on the parcel D-2, is a bank. Urban has designated the area immediately to the north of parcel D-1 as a school site with a park site adjacent to its northern boundaries. Thus far, only 2% of the residential land use region has been developed as commercial.

The property which is the subject of this declaratory action is a 15.6-acre parcel located in parcel D-2 bounded by Army Trail Road, a four-lane major highway through Du Page County, on the south; by Wheaton Road, also a four-lane highway, on the west; by Butterfield Drive, a two-lane residential road, on the east; and by a water detention area to the north. The only development presently on parcel D-2 is a bank on the southwest corner. The proposed development is a shopping center with Builder's Square as the anchor tenant. The shopping center would consist of two principal buildings with a third, smaller building fronting on Wheaton Road. The site plan contemplates that the buildings will accommodate five retail tenants. The shopping center has a gross building area of 177,876 square feet, and Builder's Square would occupy 87,000 square feet. The site also contains 680 parking spaces and is illustrated in appendix B.

Builder's Square is a home-improvement retail operation, which is described as a heavy commercial use. It is a seven-days-a-week use which is intended to draw its customers on a regional basis and is designed to serve the building trades. It would open at 7 a.m. in order to accommodate the building trades and close at 10 p.m. on weekdays and at 5 p.m. on the weekends. Products sold by Builder's Square include lumber, plumbing and electrical supplies, garden and hardware supplies, and other building materials. Truck deliveries could be made at off-peak hours during the day and at the rear of the store.

The site extends 418.95 feet along Army Trail road, 771 feet along Wheaton Road, and 1083.94 feet along Butterfield Drive. The proposed buildings are situated on the northeast perimeter of the site along Butterfield Drive and the northern boundary of parcel D-2. The buildings extend almost the entire length of the parcel along Butterfield Drive and would be approximately 20 feet high. The principal access will be Wheaton Road, with additional access from Army Trail Road. There is no proposed access from Butterfield Drive.

Immediately to the east of the parcel across Butterfield Drive on parcel D-1 is Stratford Estates, a residential subdivision. It is a 20-acre parcel which contains 36 single-family homes in the $150,000 price range. Urban, representing its wholly owned subsidiary, United Development Company, sought and received plan approval from Bloomingdale to develop the Stratford Estates subdivision in the summer of 1977. The only access to this area is from Butterfield Drive. East of the Stratford Estates is Indian Lakes Estates, also containing single-family homes, which is not part of the Stratford PUD District. To the northeast of parcel D-2 is the Indian Lakes Country Club.

In order to buffer the shopping center from Stratford Estates, plaintiffs propose to erect a 1,083.94-foot berm running along Butterfield Drive. The berm is to be 10 to 12 feet high, planted with trees approximately 40 to 50 feet high and shrubbery of up to 20 feet high, and is to be approximately 50 to 80 feet wide. This landscaping is anticipated to screen the buildings from the line of sight of residents of Stratford Estates.

South of Army Trail Road and east of Wheaton Road is a tract of land known as the Mel Simon property. The Mel Simon tract was recently annexed to Bloomingdale, but not until after the denial of the proposed shopping center here. Prior to Bloomingdale's annexation of this tract, it was zoned for industrial use in Du Page County. Plans for development, including a Mr. HOW store, a use similar to Builder's Square, have been approved for the property by Bloomingdale. The approved site plan indicates that the Mr. HOW store would be set back 800 feet from Army Trail Road. The uses approved for this site are in accord with the uses which have been designated for the area in Bloomingdale's Official Comprehensive Land Use Plan. This site is not part of the Stratford PUD District and is not covered by the PUD ordinance.

In early February 1985, Urban requested approval of its preliminary and final plans for the proposed development on parcel D-2. A hearing was held before the Bloomingdale plan commission, which approved the plan three votes to two with two members absent. The plan was then submitted to the board of trustees for approval. The record on appeal, however, does not contain a transcript of either of these proceedings. While it is not clear what evidence was presented to the plan commission or the board of trustees, the commission did have the reports from the various Bloomingdale department heads concerning their review of the preliminary plan for development of the shopping center and their suggested changes. The suggested modifications were apparently incorporated into the plan. These included both landscaping modifications increasing the shrubbery on the berm and architectural modifications removing all exposed structures from the back of the buildings, enclosing all trash receptacles, and lowering the height of the building.

On April 22, 1985, the board of trustees disapproved the plans. As required by the PUD ordinance, Bloomingdale notified plaintiffs in writing of the reasons for its decision by letter dated May 13, 1985, which stated, in pertinent part, that the owner of the property had established the nature of the area by encouraging and permitting the construction of single-family homes which precluded the proposed use of the parcel at the intensity level proposed; that the use of a berm and the existence of a street between the residences and the proposed commercial use did not create a sufficient buffer zone between low-intensity residential and high-intensity commercial; that good planning requires transitional uses on the parcel rather than the unnatural placement of a commercial operation of the highest intensity directly next to residential property; that a 700-foot-long brick wall directly adjacent to the single-family area, the outdoor storage of building materials, and the expected litter and refuse from ...


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