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05/29/87 Arthur N. Gunderson Et Al. v. the Village of Hinsdale

May 29, 1987

ARTHUR N. GUNDERSON ET AL., PLAINTIFFS-APPELLEES

v.

THE VILLAGE OF HINSDALE, DEFENDANT-APPELLANT (CARY N. POLIKOFF ET AL., INTERVENING DEFENDANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 1212, 156 Ill. App. 3d 92, 108 Ill. Dec. 635 1987.IL.721

Appeal from the Circuit Court of Du Page County; the Hon. Robert D. McLaren, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Defendant, village of Hinsdale (village), appeals from a judgment of the circuit court which found that the village's zoning ordinance was arbitrary and unreasonable as applied to the real estate owned by plaintiffs, Arthur N. Gunderson and Richard A. Chatfield. The village contends that the judgment of the trial court was contrary to the manifest weight of the evidence. We agree and reverse.

In 1965, plaintiffs purchased 1.08 acres at the southeast corner of Washington Street and Ogden Avenue in Hinsdale for $35,500. At that time, the property was zoned "A" for single-family use and divided into two lots; plaintiffs moved into the residence located on lot 2 of the property and lot 1 remained vacant. In March 1983, plaintiffs listed the property for sale with Stella Glodek, a local broker, for $359,100. In May 1984, Dr. Wafik Hanna entered into a contract with plaintiffs to purchase the property for $342,500, contingent upon its rezoning of the property from single-family residential to a classification which would permit the development of a medical office building.

The subject property has 123 feet of frontage on Washington Street and 257 feet of frontage on Ogden Avenue, which is a four-lane State highway with a 35-mile-per-hour speed limit. A drainage culvert is located at the eastern boundary of the property, and the grade of elevation drops from that point to the western edge of the property. All of the land located north, south, and west of the subject property is zoned and used for single-family residences. Directly east of the subject property is one parcel zoned Buffer-2 for residential or professional office use, which is designed to provide a transition from residential to business uses. That parcel was rezoned from residential to buffer zoning in 1981 to permit the construction of the Neuroscience Center, a 7,000-square-foot medical office building. East of that parcel the land is zoned for C-2 commercial uses. See Appendix A.

On June 4, 1984, plaintiffs filed a petition with the village to rezone their property from "A" single-family residential to Buffer-2, which was approved by the village planning commission, but was subsequently denied by the village board of trustees. Plaintiffs then sought a declaratory judgment in the circuit court that the denial of rezoning by the village was arbitrary capricious.

At trial, Dr. Hanna testified that his proposed development of the property would be with a two-story 8,000-square-foot building having a residential design and set back 84.5 feet east from Washington Street. A parking lot for 41 vehicles would be located east of the building and Dr. Hanna proposed to place a "green space" restrictive covenant in the title to the property to maintain the existing trees and foliage on the west portion of the site. He stated that it would be difficult to observe the structure from Washington Street because of the landscape. Dr. Hanna's medical practice would occupy the first floor of the proposed structure, where he would examine 15-18 patients per day, and the second floor of 3,100 square feet would be leased to other physicians. He testified that he had been unable to acquire office space in the village in other locations and that, based upon his experience in the area, there was a market for his medical services.

Plaintiff, Richard Chatfield, testified that he and Arthur Gunderson purchased the property for residential use in 1965. Since that time, the property east of their home had been rezoned for commercial and business uses. He testified that plaintiffs had opposed the rezoning of the adjacent property upon which the Neuroscience Center is located on several occasions from 1972 to 1981. After that property was rezoned in 1981, the value of plaintiffs' property was reduced and they agreed to sell it to Dr. Hanna. He stated that Ogden Avenue has changed from a quiet residential street to a major highway since 1965 and that plaintiff's property was unusual because it faced the street, was closer to it and was not screened from traffic by tall fences. He testified that the village has never had a long-range plan for Ogden Avenue or a logical zoning plan for separating residential and commercial properties. Chatfield believed that the logical cutoff point for zoning purposes was Washington Street.

Plaintiff, Arthur Gunderson, testified that all of the commercial property along Ogden Avenue in Hinsdale had been zoned for residential use in 1965 and that all current residential property on the street utilized screening and buffering devices such as landscaping, berms and stockade fences. He stated that the noise, lights and fumes from the intense traffic are serious impediments to development of residential property along Ogden Avenue and that plaintiffs did not make any attempt to market, advertise, sell, develop, or rezone their property until 1983.

Stanley Glodek, the architect of the proposed medical facility and husband of plaintiffs' real estate broker, testified that the proposed building would be set back from Washington Street to preserve the natural growth in that area and screen the building from the adjacent residential properties. Glodek testified that 15% of the property would be maintained as greenery, that the parking area was more than sufficient for the needs of the medical facility and that the building design met the village's requirements for buffer-zone property. The building design and materials would be residential and the use of the property would not create any significant noise or fumes. He noted that the Neuroscience Center did not reflect a residential style but had been approved by the village in 1981.

Wilton Battles, a city planning and zoning consultant with 18 years' experience, testified that the subject property was unusual because of the 16-foot drop in height from the east corner of the lot to its opposite end, the dense foliage, the configuration of the property and its extensive frontage along Ogden Avenue. He stated that the Neuroscience Center had a detrimental impact on the value of the subject property because it was elevated above the property and was not screened by vegetation and that the small drainage ditch which existed between the properties did not constitute a major physical feature or barrier. He testified that a village ordinance indicated that an appropriate line of zoning demarcation should be a street or alley and that the proper boundary in the present case was Washington Street. Battles also noted that only plaintiffs' ...


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