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First American Bank v. Village of Wilmette

Court of Appeals of Illinois, First District, Fourth Division

December 26, 2019

FIRST AMERICAN BANK, Formerly Known as Old Orchard Bank and Trust Company, Under Trust Agreement Dated October 5, 1979, Known as Trust Number 8026; RAS DEVELOPMENT, INC., an Illinois Corporation; and ROSA LEVIN, an Individual, Plaintiffs-Appellants,
THE VILLAGE OF WILMETTE, an Illinois Municipality, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County. No. 07 CH 26657 The Honorable Sanjay T. Tailor, Judge Presiding.

          Attorneys for Appellants: Ronald S. Cope, Kevin A. Ameriks, and Thomas J.K. Schick, of Schain, Banks, Kenny & Schwartz, Ltd., and J. Samuel Tenenbaum and Christian Huehns, of Northwestern Pritzker School of Law, both of Chicago, for appellants.

          Attorneys for Appellee: Barbara A. Adams and Benjamin L. Schuster, of Holland & Knight LLP, of Chicago, for appellee.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.



         ¶ 1 The instant appeal arises from the denial of several zoning variances sought by plaintiffs for the development of a parcel of real property located in the Village of Wilmette (Village). While the Village's Zoning Board of Appeals voted to recommend that the variances be allowed, the Village Board ultimately voted to deny the variances. Plaintiffs-the land trust holding title to the property, the beneficiary of the land trust, and the proposed developer of the property-filed an action in the circuit court of Cook County, seeking a declaratory judgment that the plan should be approved. After a bench trial, the trial court found in the Village's favor and upheld the denial. Plaintiffs appeal, and for the reasons set forth below, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 I. Complaint

         ¶ 4 On September 21, 2007, plaintiffs filed a complaint in the circuit court of Cook County concerning the Village's denial of several zoning variances sought by plaintiffs. The complaint was amended several times, and it is only count I of the third amended complaint, filed January 18, 2011, that ultimately proceeded to trial. Accordingly, we draw our discussion of the allegations from that count.

         ¶ 5 The complaint alleges that, in 1979, plaintiff Rosa Levin and her husband Robert (collectively, the Levins) purchased a 37, 869.42 square-foot parcel of real property located in the Village, which was improved with a single family residence. The remainder of the parcel was left vacant, with the Levins permitting neighbors to use the open space to host neighborhood events. In 2006, the Levins developed a plan to subdivide the property into three buildable lots located on a cul-de-sac they would create off of Old Glenview Road. They later abandoned this plan due to concerns about how the cul-de-sac would affect the adjoining neighbors' compliance with the required zoning setback requirements.

         ¶ 6 Instead, the Levins developed a new plan, which would create three buildable lots with a shared private driveway. The plan also provided for a rain garden to be used as a retention pond to be planted on an "outlot" along Old Glenview Road, which would catch excess rainwater runoff in addition to beautifying the area. The complaint alleges that the three buildable lots conformed to the Village's minimum setback requirements for front yards, side yards, and rear yards, and the size of the lots exceeded the minimum lot area required under the Village's ordinance. However, the buildable lots did not satisfy the 60-foot lot width requirement due to the unique shape of the property.[1]

         ¶ 7 The complaint alleges that, on March 8, 2007, the Levins applied for three variances from the Village for their property: (1) a variance for the lot width of the three buildable lots, (2) a variance for the size of the outlot, and (3) a variance permitting the buildable lots not to have frontage on Old Glenview Road. They presented their plan at a public hearing to the Village's Zoning Board of Appeals (Zoning Board) on May 2, 2007, including presenting testimony of a land planner, an engineer, and two real estate appraisers. The Zoning Board voted 4 to 2 to recommend to the Village Board that the plan be approved. However, on June 26, 2007, the Village Board voted to reject the plan by a vote of 5 to 1, [2] prompting the instant lawsuit.

         ¶ 8 Count I of the complaint sought a declaratory judgment that the Village's denial of the variances was arbitrary, capricious, and unreasonable and was unrelated to public health, safety, and general welfare of the community. Count I further sought an order enjoining the Village from interfering with the development of the property and a court order granting the requested variances.

         ¶ 9 II. Trial

         ¶ 10 The parties came before the trial court for a bench trial beginning on May 8, 2018.

         ¶ 11 A. Plaintiffs' Case-in-Chief

         ¶ 12 1. Lawrence Dziurdzik

         ¶ 13 Lawrence Dziurdzik testified that he is a professional land planner and designer and created a plan for the subject property in 2006. Dziurdzik testified that the property was zoned as R1-A, which was a single-family residential zoning district with a minimum lot size of 8400 square feet with a 60-foot minimum lot width. Dziurdzik examined the neighborhood around the subject area, counting approximately 150 lots. Of those lots, 38.7% did not comply with the lot-width standard. Dziurdzik testified that, according to the Village's formula for measuring lot width, the three proposed lots on the subject property would not meet the 60-foot requirement. However, if the lot width was measured at the midpoint of the lots, each lot would satisfy the requirements of the ordinance. All three lots, as proposed, would satisfy the Village's rear-, side-, and front-yard requirements, and would exceed the minimum lot size requirement.

         ¶ 14 Dziurdzik testified that, in the plan his company prepared for the property, the planners took into consideration the irregular shape of the property, including its large size and limited frontage on Old Glenview Road. They concluded that a plan of three buildable lots would be consistent with uses in the neighborhood and fit in with its overall character, as well as preserving the existing landscaping. The front of the property would consist of an "outlot," a common lot that would contain a rain garden to be used as a retention pond, and the property would keep the existing spruce trees and provide for a "generous" driveway. The driveway was proposed to be 20 feet wide and constructed in such a way that it could accommodate a heavy piece of fire equipment; the driveway narrowed to 12 feet at its narrowest point. It also contained a "turnaround" area at the end of the third lot that would permit a vehicle to turn around. Dziurdzik further testified that the homes proposed in the plan would include sprinkler fire suppression systems.

         ¶ 15 Dziurdzik testified that the outlot would be a common area that would be maintained by the three homeowners. Such common areas exist in other areas of the Village and are maintained by homeowners' associations. On cross-examination, Dziurdzik testified that, in his study of the lots in the neighborhood, there were no other lots that did not front onto a public street and that the outlot would be "very unique to this area."

         ¶ 16 Dziurdzik testified that there was a new development immediately to the north of the subject property that consisted of an eight-lot subdivision centered around a new cul-de-sac. Dziurdzik admitted that the new subdivision included the creation of a new public road, and that the plans for the subdivision did not request variances for lot width. Dziurdzik testified that the existence of this development demonstrated the need in the community for single-family homes.

         ¶ 17 Dziurdzik testified that the western part of the Village, where the subject property was located, was "not well thought out" in terms of planning, with a number of cul-de-sacs and variations in street pavement, as well as "a hodgepodge or crazy quilt of lots of irregular sizes."

         ¶ 18 2. David Shindoll

         ¶ 19 David Shindoll testified that he is a civil engineer and had been retained in 2006 to prepare a drainage plan for the subject property that would not adversely affect the adjacent parcels, and testified as to the details of the plan that he had created. Shindoll further testified as to a vehicle geometry analysis that he had completed concerning the turning radius of a fire truck into the proposed driveway, which concluded that a fire truck would be able to turn onto the driveway coming from either direction off Old Glenview Road.

         ¶ 20 3. Plaintiff Rosa Levin

         ¶ 21 Plaintiff Rosa Levin testified that she and her husband purchased the subject property in 1979 for $105, 000. The property contained an 1800-square foot house, and the rest of the property was open land. There was no fence on the property, and "every party that we ever had in the neighborhood" was in the yard. The Levins decided to develop the property when they realized that their property taxes were much higher than recently developed properties and hired professionals to develop a plan for the property. They presented the plan to the Village's Zoning Board, which was "pretty much in favor of it all." Levin testified that "everything that the Village wanted, we did, and they gave us their blessing." However, Levin testified that, despite telling her that they were in favor of the plan, her neighbors met behind her back to complain about the development and the fact that they would lose the backyard space that they used as a park. The neighbors appeared at the hearing before the Village Board and objected to the proposed development, citing concerns about construction and traffic.

         ¶ 22 Levin testified that, two doors down from her property, there was a property with two residences on one lot, which were connected by a long driveway servicing both residences.

         ¶ 23 4. Charles Schwarz

         ¶ 24 Charles Schwarz testified that he is a residential real estate appraiser who had been retained by plaintiffs in 2006 to appear before the Village's Zoning Board in connection with the property. Schwarz characterized the neighborhood in which the property was located as consisting of "modest homes," ranging in size from 1500 to 5000 square feet. Schwarz testified that the property as currently developed, containing the 1800-square foot house, had a value of approximately $450, 000 as of the date of his most recent appraisal on November 10, 2013. With the three lots as proposed, the values of those lots would be $325, 000, $330, 000, and $335, 000, as of the same date. Schwarz testified that, if the property was permitted to develop in accordance with the plan, it would increase the value of the surrounding properties. Schwarz testified that, in his opinion, the highest and best use of the property would be to develop it with the three sites as proposed.

         ¶ 25 On cross-examination, Schwarz testified that he was not shown any plans for the houses to be built upon the sites and that his opinions as to the impact on the neighborhood was based on the assumption "that the proposed homes would be comparable and fit in well with the neighborhood."

         ¶ 26 B. ...

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