Tarala v. Village of Wheeling

• Decision Date: 20 December 1974
• Docket Number: No. 59442,59442
• Citation: 323 N.E.2d 454,25 Ill.App.3d 349
• Parties: Stanley A. TARALA et al., Plaintiffs-Appellants, v. The VILLAGE OF WHEELING et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 454

323 N.E.2d 454

25 Ill.App.3d 349

Stanley A. TARALA et al., Plaintiffs-Appellants, v. The VILLAGE OF WHEELING et al., Defendants-Appellees.

No. 59442.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 20, 1974.

Burke & Burke, Chicago (John M. Burke, Chicago, of counsel) for plaintiffs-appellants.

Jack M. Siegel, Chicago, for defendant-appellee, Village of Wheeling.

John M. Daley, Chicago, for defendant-appellee. Victor Smigel.

JOHNSON, Justice:

Plaintiffs brought this action seeking a declaratory judgment that two zoning ordinances adopted by the Village of Wheeling were null and void. The ordinances in question rezoned certain property from R--1 single-family residential to R--4 multiple-family. Following a bench trial before the Honorable Robert J. Downing, the ordinances were declared to be valid. As grounds for reversal, plaintiffs contend that the trial court's decision was against the manifest weight of the evidence; that the trial court abused its discretion in failing to make a decision for almost 3 months and in allowing a defendant to reopen the case and file an amended answer; that the trial court erred in refusing to allow certain plaintiffs' testimony as to the value of their property; and that the trial court erred in refusing to allow certain rebuttal testimony. We affirm.

Plaintiffs are property owners residing in a portion of the Village of Wheeling that was affected by the ordinances in question. There are three defendants: The Village of Wheeling; Victor Smigel, a real estate developer and the contract purchaser of certain lots within the rezoned area who had commenced construction of multiple-family structures pursuant to the ordinance; and the Wheeling Trust and Savings Bank, the legal title holder of the rezoned lots.

The validity of two ordinances adopted by the Village of Wheeling is involved in this controversy. Ordinance No. 1182, adopted on April 17, 1972, reclassified 47 lots in Zelosky's Subdivision from the R--1 to the R--4 classification. Ordinance No. 1243, adopted on April 2, 1973 during the pendency of this action, reclassified the remaining lots in the subdivision for multiple-family purposes.

The exact boundaries of the area are described differently by the parties: according to the plaintiffs, its boundaries are 'Wheeling Road on the west, 6th Street on the east, Mayer Road on the north, and one block south of Strong on the south;' according to the defendants, '(t)he subdivision lies generally between Wolf Road on the east and Wheeling Road on the west and north and south of Strong Street.'

Strong Street is the only east-west thoroughfare in the subdivision, and the north-south streets are mostly unimproved. There is vacant property to the north and west of the area which has not been developed. A school district and single-family homes are located to the south of the subdivision. An apartment building is located on the southeast boundary, and there are two factory buildings to the southwest of the subdivision.

The area in question, approximately 55 acres, has been subdivided since 1925. It was annexed by the Village in 1970 subject to an R--1 zoning classification. About 30 percent of its 140 lots have been developed, and the average size of the lots owned by plaintiffs is approximately 13,000 square feet. All of the present homes are on wells and septic fields, and there is no public sewer and water.

The 1972 ordinance rezoned 47 lots in this area to R--4 multiple-family residential. The lots in question were scattered through the subdivision and were owned by oen person, Douglas Cargill, prior to being placed in trust with the Wheeling Trust and Savings Bank. Victor Smigel, the contract purchaser of the lots, proposed to develop each of the 47 lots with six-flat units of two-and-one-half stories in height.

The evidence presented at trial may be summarized as follows. William Lawrence, a prefessional city planning and zoning consultant, was the first witness to be called by the plaintiffs. Lawrence testified that the highest and best use of the subject property would be realized with an R--3 zoning classification allowing the development of single-family homes on lots of 8,500 square feet. He based his opinion on the character of the existing neighborhood: residential areas platted and developed; a quiet neighborhood that had been entirely single-family and untraversed by heavy traffic. Because the R--4 classification would increase the intensity of use, Lawrence stated that it would have an adverse effect upon the living environment of single-family homes. The witness further testified that the implementation of Smigel's proposal, six-unit multiple-family units on each lot with off-street parking would have a serious adverse effect upon the continued development of the area as a single-family neighborhood.

Lawrence's testimony during cross-examination revealed that there were several manufacturing uses to the south, west and north of the subject area. He explained that the R--3 classification would be the highest and best use of the property provided that sewer and water requirements were met. The witness further testified that the proposal of defendant Smigel was 'unreasonable because it introduces a greatly intensified use into a single-family area.' It was also brought out that Lawrence had testified three times in the Village of Wheeling in favor of putting multiple-family dwellings next to single-family structures in a planned development.

Plaintiffs' next witness was Maynard F. Rupp, a professional consulting planner, who testified that he had been employed to prepare a plan with the State of Illinois for the Village of Wheeling. Rupp's final report, delivered in 1965 and based upon the 1960 census, recommended a high-density single-family residential area between 6th Street and Wheeling Road, one block north and one block south of Strong. His definition of high density was 'anything other than a twenty thousand area foot lot up to a multi-family.'

William Sychowski, a plaintiff in this cause, testified that he purchased his house in 1969 at a cost of $22,000. The witness stated that he knew the area was zoned for single-family dwellings when he bought his home and objected to the rezoning because it would change the character of the neighborhood. The court sustained objections to Sychowski's testimony regarding the costs of improvements to his home and its present value. The witness admitted that his house is located about 4 or 5 lots away from a factory building.

Maureen Pitt, another plaintiff in this cause, testified that she objected to the rezoning because it would change the area where single-family homes are located. She was then asked about the effect that the rezoning would have on the value of her home. Defendants' counsel objected on the ground that the witness was not qualified to give an opinion as to values, and the court sustained the objection. Mrs. Pitt also testified that there are single-family homes adjacent to the Capri apartments to the west, east, south, and directly across the north of Strong Street.

Thomas Collins, a real estate appraiser and broker, testified that the proposed development would have a depreciating effect on the existing homes in the area. Basing his opinion on the existing character of the neighborhood, Collins stated that the highest and best use of the property would be along the lines of single-family residential but that the property would have a higher value under the R--4 classification than under an R--3. He further testified that the property could not be presently developed under the R--3 classification without sewer and water and he did not know the cost of putting sewer and water in the subdivison. The witness also stated that he had not made an independent investigation of the actual cost of improving the subdivision and had not appraised any of the properties belonging to the plaintiffs in the case.

Collins testified further that he was not sure as to what effect the Capri apartments had on the single-family homes adjacent to it. He was of the opinion that a six-flat would be more harmonious with the residential property than a factory. Further, Collins stated that it was his opinion that, if the remaining vacant lots other than the 47 lots were developed, an adverse effect would result with respect to the homes already in the area.

Ernest Zimmerman, a witness for plaintiffs, testified that he presently owned two homes in the area and had sold another home in 1968 for $20,000. The court sustained an objection to Zimmerman's testimony as to the present value of his house, stating that there was a lack of foundation questioning, the property owner was a plaintiff, and there was an absence of any particular showing that he had special knowledge and qualifications to testify as to values. Zimmerman conceded on cross-examination that the Capri apartments were not characteristic of a nice, country atmosphere.

Douglas Cargill, called as an adverse witness by plaintiffs, testified that he began acquiring the 47 rezoned lots in 1955 and had been purchasing the lots since that time. The court sustained an objection to questioning regarding the prices paid by Cargill for the lots in question.

The defendants' zoning and planning expert was Rolf Campbell, who testified as to his opinion that the proposed development would be compatible with other uses in the area and that it was the highest and best use of the subject property from a zoning and planning standpoint. He stated that his opinion was based upon the suitability of the subject property for the proposed development, the fact that it would allow for the economic installation of sewer and water facilities, the trend of development in the area, and the economic returns to the property owners and the Village. The witness characterized Smigel's plan as a fine way to develop a problem piece of land and...