Du Page Trust Co. v. Village of Glen Ellyn

376 N.E.2d 1049, 60 Ill. App. 3d 409, 17 Ill. Dec. 720, 1978 Ill. App. LEXIS 2666
CourtAppellate Court of Illinois
DecidedMay 26, 1978
Docket76-530
StatusPublished
Cited by2 cases

This text of 376 N.E.2d 1049 (Du Page Trust Co. v. Village of Glen Ellyn) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Du Page Trust Co. v. Village of Glen Ellyn, 376 N.E.2d 1049, 60 Ill. App. 3d 409, 17 Ill. Dec. 720, 1978 Ill. App. LEXIS 2666 (Ill. Ct. App. 1978).

Opinion

Mr. JUSTICE BOYLE

delivered the opinion of the court:

Plaintiffs, Du Page Trust Company, as trustee under a certain trust agreement known as Trust No. 1413, and Donald Nichols and Patricia Nichols, as beneficiaries of said trust, hereinafter the plaintiffs, brought a declaratory judgment action against the village of Glen Ellyn, hereinafter the village, seeking a declaration that the village’s zoning ordinance which restricts the use of their property to R-2, single-family dwellings, is void, and further seeking permission to erect an apartment building as permitted under the village’s R-4, multiple-family-use classification.

The trial court found that the restriction of this property to single-family residences was reasonable and not arbitrary; that the village’s zoning ordinance as applied to the subject property was constitutional and valid because plaintiffs failed to overcome the presumption of validity attaching to such ordinance as applied to their property by clear and convincing evidence; and that plaintiffs failed to show that the prohibition of the proposed use is unreasonable.

On appeal, plaintiffs contend that the trial court’s findings in regard to the present and proposed use were against the manifest weight of the evidence and that the court in its findings erroneously adopted the village’s argument that the plaintiffs had the burden of demonstrating that all intervening zoning classifications were unreasonable.

Plaintiffs’ property is a substantially rectangular lot located on the south side of St. Charles Road, approximately 150 feet east of Main Street in Glen Ellyn, Illinois. The parcel has a frontage on St. Charles Road of 128.6 feet and a depth of approximately 217 feet. Improvements on the property include a residential structure, small out-buildings, and a gravel driveway. The residential structure has been operated in non-conformity to the village’s single-family zoning ordinance as a two-rental unit for at least 12 years. Plaintiffs, Donald Nichols and Patricia Nichols, purchased the property in 1972 for *33,500 for the purpose of redeveloping the property by removing the existing structure and constructing a new multifamily apartment building.

The subject property is bordered on the east by R-2 single-family homes which extend to the village’s limits. The homes in the immediate vicinity of this area are valued at approximately *50,000. Directly south of the subject property are other single-family residences, zoned R-2 and valued from *40,000 to *50,000.

The property directly north of the subject property fronting on St. Charles Road is a converted single-family home which is presently utilized as a craft and boutique establishment. This property is annexed to unincorporated Milton Township. The use of this land is controlled by the zoning ordinance of Du Page County and is currently zoned as a B-4 Business District. Immediately adjacent to the east, along St. Charles Road, the property in the county is designated R-3, single-family residence, with a permissible lot area of 10,000 square feet.

Adjoining plaintiffs’ property to the west and extending to the east side of Main Street is a gasoline service station that was erected in 1971 and is open nightly until 11 p.m. This station is part of a C-2 Community Commercial District in Glen Ellyn zoning ordinance which stretches to the south for one block on Main Street and includes the frontage property at the intersection of Main Street and St. Charles Road. The area west and south of this C-2 district, however, is zoned and developed for single-family purposes.

Donald Nichols, one of the plaintiffs and a real estate broker in Glen Ellyn, testified that he would like to build 11 units, either as townhouses or an apartment building, on the subject property. He planned to build four three-bedroom units and seven two-bedroom units, and these multiple-family units would conform to the village’s zoning code in regard to parking, height, and other restrictions. Mr. Nichols, however, did not have a specific plan or other specifications for his proposed building.

Donald Sutte, a real estate appraiser, testified for the plaintiffs that, in his opinion, the value of the subject property was:

(1) *27,000 — as a nonconforming two-family residence.
(2) *15,000 — as one single-family lot, and *20,000 as two single-family lots. In each of these instances, he had considered the demolition cost of the existing structure.
(3) *44,000 — if the property was rezoned for an 11-unit apartment building, which again included the demolition cost.

In Mr. Suite’s judgment, the highest and best use of the property after a consideration of the size and location of the site, the adjacent and surrounding zoning and use, traffic, and the condition of the property, was as an 11-unit apartment building.

Frank E. Reno, the director of Public Works for the village, testified for the plaintiffs that in his opinion the water main was adequate to service an 11-unit apartment building. He further indicated that the sewage treatment plant had adequate reserve capacity at the present time to accept the additional sewer discharge which would be produced by an 11-unit apartment at this location. On cross-examination, Mr. Reno acknowledged that there was an already existing problem with the sanitary sewer in the downstream area during wet weather conditions. On redirect, the witness stated that this problem has been the subject of much rehabilitative work by the village over the last two years and that it would be another four years before this problem was alleviated.

Thomas Collins, a real estate appraiser in Du Page County, testified for the village that in his opinion the market value of the property was *35,000 under its present zoning classification. The witness estimated that the single-family properties eastward of the subject property ranged from *40,000 to *55,000. He further opined that the single-family properties to the south of the subject property ranged from *40,000 to *50,000. Mr. Collins adjudged that the depreciation factor to the single-family properties in the immediate vicinity would be approximately 5 percent, depending on the property’s proximity to this proposed apartment building. He also opinioned that the single-family character of this area was overwhelming and that rezoning the property would be a likely trendsetter for county land on St. Charles Road. Mr. Collins, on cross-examination, stated that in his opinion the value of this property under the, proposed use was *44,000 to *45,000. He also believed the lot would have a market salability price of a home at *75,000. On redirect, the witness noted that in his opinion the village would grant a variation to permit two single-family sites on the property.

Chris Rogers, a real estate associate who lived approximately four blocks from the subject property, also testified for the village. She was opposed to plaintiffs’ proposed apartment building because of its effect on the density of the area, depreciation of her property, sewage treatment and the already existent flooding problem in the area.

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Related

Oak Park Trust & Savings Bank v. Village of Palos Park
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Bluebook (online)
376 N.E.2d 1049, 60 Ill. App. 3d 409, 17 Ill. Dec. 720, 1978 Ill. App. LEXIS 2666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/du-page-trust-co-v-village-of-glen-ellyn-illappct-1978.