Drogos v. Village of Bensenville

• Decision Date: 08 October 1981
• Docket Number: No. 80-622,80-622
• Citation: 100 Ill.App.3d 48,55 Ill.Dec. 902,426 N.E.2d 1276
• Parties: , 55 Ill.Dec. 902 Frank G. DROGOS and Mary Lou Drogos, his Wife, and Shell Oil Company, a Delaware Corporation, Plaintiffs-Appellees, v. VILLAGE OF BENSENVILLE, a Municipal Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1276

426 N.E.2d 1276

100 Ill.App.3d 48, 55 Ill.Dec. 902

Frank G. DROGOS and Mary Lou Drogos, his Wife, and Shell Oil Company, a Delaware Corporation, Plaintiffs-Appellees, v. VILLAGE OF BENSENVILLE, a Municipal Corporation, Defendant-Appellant.

No. 80-622.

Appellate Court of Illinois, Second District.

Oct. 8, 1981.

McNeill, McElroy, Fick & Singer, Ray F. Fick, Jr. and George P. Harris, Chicago, for defendant-appellant.

Daniel L. Houlihan, William J. Hennessy, James F. Stack, Chicago, for plaintiffs-appellees.

UNVERZAGT, Justice:

This appeal arises from an order of the circuit court of DuPage County which declared that the zoning ordinance of the defendant, Village of Bensenville, was unconstitutional in so far as it applied to plaintiffs' property. In ordering the Village of Bensenville to issue building permits for the erection of a proposed gasoline filling station on the subject property, the trial court determined that the R-3 single family residence classification of the Bensenville zoning ordinance was an arbitrary and unreasonable exercise of legislative power with respect to plaintiffs' property. On appeal, the Village of Bensenville urges that the presumptive validity of the village zoning ordinance must be upheld because the plaintiffs did not sustain their burden of proving by clear and convincing evidence that the zoning classification is arbitrary, capricious, and bears no relationship to the public safety, morals and welfare. We reverse.

The subject property is located at the southwest corner of Route 83 and Foster Avenue and is improved with a five-room single family residence, a two-and-one-half car garage, and an asphalt paved driveway with egress only to the southbound lanes of Route 83. The house and garage are both oriented to the east, facing Route 83. The property contains 20,400 square feet with a frontage of 130 feet on Route 83 and 157 feet on Foster Avenue. The Drogoses purchased the property in 1965 for $22,500, with knowledge that the property was zoned R-3, single family residential. At that time, the real estate broker noted that it was a possible site for a service station in the future, and that was one of the reasons the Drogoses bought the property. In 1977, the Drogoses leased the property to Shell Oil Company for a ten-year term subject to the procurement of a zoning classification which would allow the construction of a gas station. Thereafter, the Drogoses applied to the Village of Bensenville for a reclassification of the property to a B-3 restricted service business district which would permit the desired use. Following a public hearing before the zoning board of appeals and that board's recommendation to deny the petition, the Bensenville Board of Trustees denied the rezoning request and this declaratory judgment action followed.

At the hearing on the cause, Frank Drogos testified that at the time he bought the property, Route 83 was a two-lane roadway with no traffic signal at its intersection with Foster, and there was a 100-foot parkway between his east property line and Route 83. Route 83 has since been widened to three southbound lanes and three northbound lanes, divided by a median strip, with separate left-turn-only lanes for east and westbound traffic onto Foster. Traffic signals are now present at the intersection and the Drogoses' parkway has been reduced to about 55 feet in depth. Drogos testified the accelerating and decelerating cars and trucks at the signalized intersection cause a great deal of noise now, that the privacy of his property has been significantly diminished and that his wife is subject to "cat calls" when she is working in the garden. He also testified he can no longer turn left from his driveway to go north due to the median strip on Route 83. Instead, he must go south three blocks, then west one block, north three blocks, and then east one block in order to be able to turn north onto Route 83. In 1965 Foster Avenue was an unimproved roadway which only extended one block east of Route 83. Foster Avenue is now a paved two-lane road which extends eastward to York Road, with separate left-turn-only lanes for traffic which is north or southbound onto Route 83.

Joseph Zgonina, a registered professional engineer with expertise in the field of traffic engineering, testified that Foster Avenue has an average daily traffic volume of 4,900 cars west of Route 83 and 10,500 cars east of Route 83. Route 83 has a volume of 50,000 cars per day. He stated that Route 83 is designated as a through-traffic arterial according to the Chicago Area Transportation Study, and Foster Avenue is classified as a collector arterial on the DuPage County Highway Plan and the Chicago Area Transportation Plan. Zgonina testified that Foster Avenue extends westward approximately one-and-one-half miles to another major north-south collector arterial, Wood Dale Road. Midway between Foster Avenue and Wood Dale Road is Central Street, another collector arterial which has prominence due to the fact that it enters an industrial park to the north and carries large volumes of through-traffic from that industrial area south on Central, east on Foster Avenue, and then south on Route 83. He noted the signalized intersection at Route 83 generated a large volume of noise due to the generally heavy traffic usage and the turning movements in the intersection. The considerable amount of noise is caused primarily by the trucks which must gear down to stop and gear up again to proceed. Zgonina testified there is a problem with the property as it presently exists in terms of safe and efficient access. He testified that the proposed gas station design would eliminate sign restrictions at the intersection providing a clear view across the corner. Further, a gas station is a highway-oriented use, and does not cause increased traffic volume since it attracts its customers from the existing traffic volume on the roadway. He recommended modifying the proposed gas station site plan by eliminating one of the two proposed curb cuts on Foster Avenue, leaving only the westerly one and the two fronting on Route 83, and Shell Oil Company had agreed it would implement this recommendation if the rezoning were granted.

The area surrounding the Drogoses' property in the southwest quadrant of Route 83 and Foster is predominantly single-family residential; however, the other three corners of the intersection are currently utilized for various business and quasi-public uses. The northwest corner of Foster and Route 83 is zoned B-3 restricted service business and is improved with a Clark Oil Company gas station. The lot immediately west of this filling station is zoned B-4 general service business district and is improved with a large church and parking lot. The area to the north of and adjacent to the Clark Station is zoned B-4 general service business, but is vacant. The southeast corner of the intersection was rezoned within the past several years to B-1 retail business district, and is improved with a restaurant. Testimony indicated that the restaurant has a separate parking area for trucks, and the restaurant and its adjacent auto and truck parking areas immediately abut an R-3 single family residence district, which area continues south to Irving Park Road. This R-3 zone is immediately abutted on the east by an M-1A office, engineering and research laboratory zone and, to the east of that, an M-1 limited manufacturing zone, almost all of which zones are currently developed accordingly. The northeast corner of the intersection is zoned R-3 single family residence district, and is improved with a large church. Two recently constructed office buildings are located north of and adjacent to the church in an area zoned B-1 retail business which extends north to Fairway Drive. This B-1 zone is abutted on the east by a large M-1 limited manufacturing zone, most of which is developed as such.

Mr. William McCann, a real estate appraiser and broker, testified as a valuation witness on behalf of plaintiffs. He stated that the value of the property as presently utilized would not exceed $60,000 whereas the property would be worth approximately $120,000 if it were developed as a gas station. McCann also concluded that the construction of a gas station on the subject site would have a minimal impact on the value of adjacent residences. His opinion was based on the fact the proposed construction would include a "green belt", a landscaped area with a six-foot fence, separating the gas station from the single-family residences on the west and the south of the subject property, and on the fact there has already been a depreciation in the value of these residences due to the upgrading of Route 83 and Foster Avenue, and on the fact that there is an industrial and business "trend" in this area. This trend is evidenced by the Clark Gas Station, which was rebuilt in approximately 1972 to replace an older gas station, the recent rezoning of the southeast corner to allow construction of the restaurant/truck stop, and the new office buildings located north of the church on the northeast corner. He noted the homes adjacent to the subject property on the south do not front on Route 83 but, rather, face a small side street and derive their residential character therefrom. In contrast, the subject property directly faces Route 83 and derives its character from that major roadway.

Mr. William Lawrence, a city planning and zoning consultant, also testified on behalf of the plaintiffs. Mr. Lawrence testified the highest and best use of the property would be for restricted service business which would include a gas station. He based that opinion on the fact that the subject site is located opposite a gasoline station on the north side of Foster, and opposite a restaurant zoned B-1 on the east side of Route 83. The unique location of the property at the intersection of Route 83 and Foster makes the subject site...