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Zeitz v. Village of Glenview

April 05, 1999

NORMAN M. ZEITZ, HELEN ZEITZ, RICHARD M. ZEITZ, NORMAN D. ZEITZ AND LAKEWOODS DEVELOPMENT CORP., AN ILLINOIS CORPORATION, PLAINTIFFS-COUNTERDEFENDANTS-APPELLANTS,
v.
VILLAGE OF GLENVIEW, ET AL., DEFENDANTS-APPELLEES, AND EDWARD S. BUSCHE, CAROL ANN BUSCHE, ROBERT TRAUB, RUTH TRAUB, RICHARD H. LARSON, JOANNE LARSON, AMERICAO DOMENELLA AND ARTHUR KRENZIEN, DEFENDANTS-COUNTERPLAINTIFFS-APPELLEES,
v.
NORMAN M. ZEITZ ET AL., AND LAKEWOODS DEVELOPMENT CORP., PLAINTIFFS-COUNTERDEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Justice Tully

Appeal from the Circuit Court of Cook County.

Honorable Albert Green, Judge Presiding.

Plaintiffs, Norman M. Zeitz, Helen Zeitz, Norman D. Zeitz, Richard M. Zeitz and Lakewoods Development Corporation, brought an action seeking declaratory and injunctive relief from zoning ordinances enacted by defendant, Village of Glenview. The remaining defendants were neighboring property owners who were the beneficiaries of restrictive covenants which limited development on the Zeitzes' property. Plaintiffs sought to have Glenview's re-zoning of 10 acres of land declared invalid, and alleged damages for inverse condemnation and improper taking of the Zeitzes' property. After the trial court dismissed plaintiffs' action, we remanded the case for trial in Zeitz v. Village of Glenview, 227 Ill. App. 3d 891, 592 N.E.2d 384 (1992) (Zeitz I). Following a bench trial, the trial court entered judgment in favor of defendants. Plaintiffs appeal the judgment, and this court has jurisdiction pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons that follow, we affirm.

Plaintiffs presented a development plan to Glenview to build 10 homes on the 10-acre property. Glenview later rezoned the property to limit the number of homes allowed on the property to five. Zeitz I set forth the facts in this case before we remanded it for trial and we need not repeat them here. We will address the additional facts which are relevant to this appeal. The following evidence was presented at trial.

I. Plaintiffs' Evidence

Norman M. Zeitz bought the property in separate parts between 1961 and 1966. Since then, he had received several offers to buy the property, one of which was for $1.6 million. Zeitz rejected that offer. In 1989, Lakewoods paid him $25,000 for an option contract to buy the property. After signing the option contract, Zeitz paid $4,000 for the preparation of an environmental plan for the property. The option was extended 10 times.

Steven Balek, an attorney, licensed real estate broker and one of the Lakewoods principals, negotiated the option agreement with Norman M. Zeitz. When Balek signed the option agreement, he knew about the Illinois Supreme Court doctrine which stated that there is no vested right in the continuation of a zoning ordinance. Before signing the agreement, he reviewed Glenview's ordinances and zoning map, and was aware that the Zeitzes' property was entirely within the environmentally sensitive area (ESA) and partially within the primary area (PA). Balek met with Glenview officials after signing the option agreement. He knew that the Village Board of Trustees would ultimately decide whether any subdivision plan Lakewoods submitted would be approved. Balek also knew that any subdivision plan would have to be submitted to the Village Plan Commission (Commission) before going to the Board. Lakewoods presented its plan to the Commission. Balek attended the hearings on the ordinance which placed a moratorium on subdivision applications and approvals. He knew that the Zeitzes' property would be covered by the moratorium, and that Glenview was considering whether to re-zone the property to the R-E classification. Before the moratorium ordinance was passed, Lakewoods spent over $9,000 on its proposed development.

James Pieczonka, a lawyer and real estate broker, and Balek optioned the Zeitzes' property on Lakewoods' behalf, based on the fact that it was zoned R-1 (one-acre minimum lot size). In 1993, under the fourth extension of the option agreement, Lakewoods had the option to buy the property for $1.923 million. At the same time, Pieczonka's real estate company listed the property for sale under the R-E (two-acre minimum lot size) zoning classification for $1.8 million. Lakewoods was not obligated to buy the property under the option agreement.

Thompson Dyke, a private planning consultant and landscape architect, testified that it was not significant that the ESA ordinance did not have a legal description of the ESA. The map of the ESA, attached to the ordinance, provided adequate notice of the area covered by the ESA. In addition, the fact that the PA covered part of the Zeitzes' property was "like a red flag," giving notice to anyone planning a development on the property. The Grove's *fn1 location near the property was also a warning sign that extra care and environmental sensitivity were required in preparing a development plan.

According to Theodore Kowalski, a real estate appraiser, the value of the Zeitzes' property, if developed with 10 lots under the R-1 zoning, was $1.9 million. If zoned R-E, with a minimum lot size of two acres, the value was $1.2 million.

II. Defendants' Evidence

Jacques Gourguechon, an urban planner and landscape architect, testified that the "overall sphere of influence" on the property was the ESA, and that the Grove and open space controlled by the Glenview park district were the predominant land uses in the ESA. Gourguechon described the ESA as an "overlay zone," which is a set of regulations overlaid on the basic zoning classification, such as R-1 or R-E, to cover specific unique attributes of the area. According to Gourguechon, Glenview implemented a sophisticated and comprehensive land management system to protect the Grove from high levels of urban development. In his opinion, plaintiffs' 10-lot 10-home development would have had a detrimental impact on the area.

Thomas Slowinski, an environmental scientist, conducted a wetlands delineation for the Zeitzes' property. He concluded that there were three wetland areas covering 1.61 acres on the 10-acre property. Plaintiff's proposed development would have harmed the wetlands due to filling and grading the land, constructing roads, and changing their natural hydrology. In addition, Slowinski testified that plaintiffs' proposed development would have been subject to the ...


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