Devon Bank v. Illinois Dept. of Transp., 80-1104

• Decision Date: 21 April 1981
• Docket Number: No. 80-1104,80-1104
• Parties: , 51 Ill.Dec. 191 DEVON BANK, etc. Plaintiff-Appellee, v. ILLINOIS DEPARTMENT OF TRANSPORTATION et al., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 605

420 N.E.2d 605

95 Ill.App.3d 690, 51 Ill.Dec. 191

DEVON BANK, etc. Plaintiff-Appellee, v. ILLINOIS DEPARTMENT OF TRANSPORTATION et al., Defendant-Appellant.

No. 80-1104.

Appellate Court of Illinois, First District, Second Division.

April 21, 1981.

Tyrone C. Fahner, Atty. Gen., Chicago (Robert Orman, Asst. Atty. Gen., Chicago, of counsel), for defendant-appellant.

Mark S. Lieberman, David J. Letvin, and Ronald Z. Domsky, Chicago (Rosenthal & Schanfield, Chicago, of counsel), for plaintiff-appellee.

DOWNING, Justice.

Pursuant to a provision of the Illinois Highway Code (Ill.Rev.Stat.1979, ch. 121, par. 1-101 et seq.), plaintiff Devon Bank (Bank), as land trustee for the Glen Oak Shopping Center in Glenview, sought circuit court de novo review of a decision of defendant Illinois Department of Transportation (IDOT). IDOT had required construction of an insurmountable concrete highway divider along the section of Waukegan Road which fronts Bank's trust property, thereby limiting ingress to and egress from the Glen Oak parking lot. Trial was held, and the trial court made a personal inspection of the site in the company of the parties' attorneys. The court ruled that the barrier was unreasonable, but could remain in place with the exception of its northernmost 15 feet, which blocked full access to the north driveway of Bank's property. This last section was ordered converted to a mountable median barrier. From this ruling, IDOT appeals.

IDOT requests this court to consider whether (1) the circuit court's order is void for want of subject matter jurisdiction; (2) Bank has failed to meet its burden of proof so as to justify any relief; and (3) the trial court's personal inspection of the site constitutes reversible error.

Bank is the land trustee for a shopping center development known as Glen Oak, located on the northeast parcel of land at the intersection of Waukegan Road and Lake Avenue in Glenview. Waukegan Road runs in a north-south direction. Glen Oak has two driveways providing access to that traffic artery. Lake Avenue runs in an east-west direction, and Glen Oak also has two driveways onto that road. Contiguous to the Glen Oak property along its northern boundary is a Jewel Food store and parking lot. Prior to the road construction activities giving rise to this action, the Jewel lot contained three driveways onto Waukegan Road. The southernmost Jewel driveway was located only 40 feet north of Glen Oak's northern driveway. The Jewel parking lot was graded about two feet higher than the Glen Oak lot. The two properties were connected by a paved driveway about 28 feet wide which rose up the 2-foot incline between the gradings. (The following diagram has been provided for illustrative purposes.)

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Prior to the construction activities, both of Glen Oak's driveways had been "full access" onto Waukegan Road. (That is, traffic was permitted to ingress from and egress to both the north and southbound lanes.) Jewel's southernmost driveway was of limited access: traffic could enter from and exit to only the northbound lanes (right-in, right-out). Jewel's other two driveways were full access.

On the west side of Waukegan Road, developers planned and began construction of a new shopping center, Carillon Square (Carillon). Carillon petitioned IDOT for permission to construct two driveways for access to Waukegan Road. IDOT rejected the request and instead granted Carillon permission to build a single, full access driveway directly opposite Jewel's southernmost driveway. As a condition for this permit, IDOT required Carillon to construct an insurmountable median barrier on Waukegan Road. The location of the median reduced Glen Oak's north driveway from a full access to a right-in, right-out entrance, converted the southernmost Jewel driveway to a full access entry, and eliminated Jewel's middle driveway. The barrier was extended nearly to Lake Avenue on the south (although not so planned originally), thereby converting Glen Oak's previously full access south driveway to a right-in, right-out entrance.

Bank did not receive notice of the road project, and first learned of it when construction began on November 16, 1979. On November 20, 1979, Bank filed this action for declaratory judgment and injunctive relief.

Bank called three witnesses in support of its claim. James Graziano was called as an adverse party under section 60 of the Civil Practice Act. (Ill.Rev.Stat. 1979, ch. 110, par. 60.) Graziano is employed by IDOT as the District Permit Engineer for an area which includes the site in question. He is charged with issuing permits for work done by private contractors or municipalities upon the state highway system.

In March 1978, Graziano received a permit application concerning construction of two driveways on the west side of Waukegan Road. After a subordinate's visual inspection of the site, Graziano determined that only a single driveway would be permitted. Its location would be opposite the "main driveway" of the Jewel and Glen Oak facilities on the east side of the street. (Graziano considered these developments to be "one continuous shopping center.") The most centrally located driveway on the east side, Jewel's southernmost entrance, was chosen as the "main driveway." The purpose for this action was to funnel all traffic for the shopping centers on both sides of the street to a central location in order to provide the "safest" traffic patterns. Graziano admitted that no formal traffic count or traffic access study of the location was made prior to rendering the decision; but he relied upon his personal observations as well as police department traffic accident information.

Graziano related that the original construction plans did not extend the median barrier as far south as Glen Oak's south driveway, although that location was considered to be the most dangerous in terms of the number of accidents. This was because IDOT policy is to have a developer who is paying for such roadwork (as Carillon was here) fund construction only to the extent of his property line. The Glen Oak south driveway was located beyond the south property line of Carillon.

Graziano stated that it was IDOT's belief that access to Glen Oak would not be totally blocked by the median, since southbound traffic could turn left into the Jewel lot and proceed through the driveway linking that lot with Glen Oak's. The witness did not give notice of the proposed construction to any affected property owners.

On examination by IDOT, Graziano testified that the average daily traffic volume on Waukegan Road was 23,600 vehicles, considered to be a heavy flow rate. He related that it was preferable to choose the Jewel south driveway rather than the Glen Oak north entrance as the opposing location for the Carillon entryway because the Jewel driveway was 9 feet wider than Glen Oak's, because a drive-in bank was located just south of the Glen Oak entrance, and because the Jewel location allowed for a longer left turn lane at Lake Avenue for traffic southbound on Waukegan Road. Finally, Graziano stated that IDOT desired to extend the barrier across the location of the Glen Oak south driveway, but did not then believe that such was possible due to economic and departmental policy reasons. (However, the barrier was finally constructed to and past this location.)

Bank next called Steven Pudlowski, Director of Development and Public Services for the Village of Glenview, under section 60. The witness stated that he was responsible for management of the village's public works system. He related that Glenview had commissioned a traffic access report for the subject area in May 1978. The village was in part concerned with the high accident rate at the south Glen Oak driveway. That report was entered into evidence. On examination by IDOT, Pudlowski testified that the finally authorized location of the Carillon driveway was nearly identical with that recommended in the traffic study.

Bank's final witness was Dean Adanamis, one of the beneficial interest holders of the Glen Oak land trust. He stated that none of the beneficiaries received notice of the planned construction on Waukegan Road. The witness related that the Glen Oak shopping center was completed in 1967. At that time, a mountable corrugated median strip was constructed on Waukegan Road by the shopping center at the state's request.

Adanamis testified that sometime in May 1974, he had discussions with a Jewel representative concerning the construction of a driveway between the properties in order to facilitate the potential routing of emergency vehicles. Nothing came of the meeting, but one day the witness found that Jewel had had such a driveway built. Adanamis acquiesced in this construction. He never entered into an agreement with Jewel over use of the driveway, although it was located on his property.

On cross-examination, Adanamis stated that he believed the driveway served as a "convenience to a few people."

At the close of Adanamis' testimony, Bank rested its case. IDOT called Pudlowski back to the stand. Relevantly, on cross-examination, he stated that the effect of the median was to channel traffic into Glen Oak by way of the Jewel cross-over or by means of the entrances on Lake Avenue.

The testimony of Joseph Zgonina, an expert in traffic safety and engineering called by IDOT, is pertinent. He related that from a safety point of view, the best location of the Carillon driveway would be its present location. This opinion was based on a field investigation of the site. Zgonina also stated that the insurmountable median barrier, as presently constructed, was the best possible method of safely and effectively accommodating projected traffic movements. Leaving an opening in the median at Glen Oak south driveway would be detrimental from a safety point of view, posing a serious traffic conflict point....