Opinion
No. 55344 Judgment affirmed.
October 6, 1971.
APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.
Edward V. Hanrahan, State's Attorney, of Chicago, (Daniel P. Coman, and Colin C.E. Simpson, Assistant State's Attorneys, of counsel,) for appellant.
Herbert F. Friedman, of Chicago, for appellees.
This is an appeal from the entry of a declaratory judgment holding the Cook County Zoning Ordinance unconstitutional as it applies to the plaintiffs' property.
The plaintiffs are Joseph and Mary Talarico, and Joseph Talarico is now operating and has operated for the past thirty-six years, an emergency highway assistance automobile wrecking, towing, parts and salvage business under the name of Speedway Garage, located at Route 30 and Greenwood Avenue adjoining Chicago Heights in Cook County. Under the threat of condemnation proceedings, the Talaricos sold the real estate to the Housing Authority of Cook County in 1969.
Plaintiffs then attempted to obtain a site upon which to relocate the business and entered into a contract for the purchase of a new site about one mile west of the original location. The new site, which is the subject of this litigation, consists of about one and a half acres and is located in an unincorporated area of Cook County. The subject site is in the middle of an area zoned for the heaviest industrial use under the ordinances of Cook County (M-3) and Chicago Heights (G-1).
Under the provisions of the Cook County Zoning Ordinance, Speedway Garage is classified under the caption of a "Junkyard" and as such must obtain a special use permit in areas zoned either M-2 or M-3. In 1969, plaintiffs made an application for the special use permit, and a hearing had before the Zoning Board of Appeals, which recommended that the Board of Commissioners of Cook County grant the permit, based on the evidence which showed all the relevant standards to be satisfied. When the Board hesitated to act for a period of five months, plaintiffs filed a suit in the Circuit Court of Cook County for a declaratory judgment. After the suit was filed the Board denied the application for the special use permit.
The trial judge held the plaintiffs are entitled to the relief sought by them and declared that the restrictions of the Cook County Zoning Ordinance prohibiting the proposed use of the subject premises are uncontitutional, invalid and void as being arbitrary and unreasonable and without substantial relation to the public health, safety, morals, comfort, and general welfare. The relief was conditioned upon the following requirements:
1. That the property excluding the easement be completely enclosed with at least an eight foot high opaque fence and gates, and to be so maintained.
2. That the fence and gates when closed shall be set back no less than fifty feet from the northern curb line of Highway 30 fronting the subject property.
3. That there shall be no stacking of vehicles one upon another excepting when vehicles are being crushed and/or removed.
4. That the plaintiffs shall cause the front yard of the subject property to be lanscaped in a manner compatible with the nearby existing uses and such landscaping shall be maintained.
In an oral summation the trial judge noted that plaintiffs had been forced out of one area and there was no other which is more susceptible to this type operation than M-3 or G-1 areas.
The County appeals from the order of the trial court and maintains the evidence shows the proposed use would be detrimental to the industrial development of the area and would cause property values to decline. It therefore concludes that the allowance of the proposed junkyard on the subject site as a special use was arbitrary and unreasonable.
There was contradictory testimony regarding how the presence of Speedway Garage would affect surrounding property values and the further development of the area. Mr. Rolf C. Campbell, a planner and zoning consultant, testified that Speedway Garage, if located in the subject site, would have a detrimental effect on the development of the industrial park east of the subject site. He also testified that the operation of a salvage yard would not be compatible with the existing industrial uses and concluded that holding back the industrial development would adversely affect the tax base of the area.
Willard Brown, Jr., vice president of Arthur Rubloff Co., testified that the presence of the yard would make it difficult to promote sales in the area.
Mr. Talarico admitted that two years previous there had been complaints from groups regarding cars off his property and unsightliness. On the other hand, there were never any complaints about fumes or smoke, and some of the cars complained of were brought by others over whom the plaintiffs had no control.
Mr. Leo Mikos, a realtor, appraisor, real estate consultant, and lifelong resident of Chicago Heights, testified that the intended use for the subject property would not be detrimental to and would not endanger the public health, safety, morals, comfort, or general welfare because of the zoning of the property surrounding the subject site. He also testified that property values in the surrounding area would not be adversely affected. In his opinion there is not any one square mile area in any part of southern Cook County that would be more conducive to the location of Speedway Garage's business, and that possibly there would be no other unincorporated Cook County area where they could locate if the proposed site could not be used.
Several policemen testified with regard to the benefit of Speedway Garage to the public. Anthony Yucevicius, Deputy Chief of the Staff Services Bureau for the Sheriff's Department of Cook County, stated that abandoned cars are a problem for the County and that anyone who assisted in the removal of them would be contributing to the general welfare and safety of the County.
Richard G. Rhodes, Sergeant in the Sauk Village Police Department, testified they had used Mr. Talarico's services for the last four years for removing abandoned cars, for tow facilities at accidents, and emergency road repair of vehicles that might break down in the middle of the night. He stated that Mr. Talarico never refused a call for assistance from Sauk Village and that Speedway Garage had been a big help to the Sauk Village Police Department.
Nick Babush, Police Chief of Thornton, testified with similar approval regarding the reliability and competence of Speedway Garage.
• 1 While there is some conflict in the opinions of the witnesses as to the possible effect of Speedway Garage on the surrounding territory, the recommendation of the Board of Zoning Appeals must be accorded proper weight, even though it is not binding. ( Society of Divine Word v. County of Cook, 107 Ill. App.2d 363.) Their findings are as follows:
1. Effect on General Welfare. The special use for the storage of salvaged vehicles will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare in the area.
2. Effect on Nearby Property. Due to the zoning in the City of Chicago Heights to the east for an Industrial Park and to the south of the subject site for heavy manufacturing, it is not likely to reduce property values in the area.
3. Effect on Development of Surrounding Property. As already indicated the uses of manufacturing surrounding the subject site and the zoning change being south, will not impede the normal and orderly development in the area.
4. Adequacy of Facilities and Utilities. Applicant has testified that adequate utilities, including water, sewage and storm water runoff will be made available.
5. Egress and Ingress. The special use will have no detrimental effect on the sufficiency of present ingress and egress.
6. Conformity to Regulations. Applicant has testified that the proposed special use will conform with all the requirements and regulations of applicable governmental bodies and agencies.
The standards of the Cook County Zoning Ordinance regarding the granting of a special use permit have been set forth in Pioneer Trust and Savings Bank v. The County of McHenry, 89 Ill. App.2d 257:
"The role of the court in such a case is to determine, first whether the particular use is properly within the special use classification; and, second, if so, whether the specified standards or prerequisites to the granting of a permit are reasonable.
Absent some constitutional or other objection to the ordinance not presented in the case at bar, the issuance of a permit is mandatory if each of the required standards are found to exist and are established by the evidence."
There is no question here that the use is within the special classification,
and the standards set forth are the same ones used by the Zoning Board of Appeals in making its recommendation to the County Board. Cook County Zoning Ordinance, Article VI, Section 6.9(f).
• 2, 3 It is axiomatic that every owner has a right to use his property in his own way, subject only to the restraint necessary to secure the common welfare. ( Village of LaGrange v. Leitch, 377 Ill. 99; Columbus Park Congregation v. Board of Appeals, 25 Ill.2d 65.) We believe that the statutory standards and the restrictions imposed by the trial judge are sufficient to protect the public's interest.
For these reasons, the decision of the Circuit Court of Cook County is affirmed.
Judgment affirmed.
ADESKO, P.J., and BURMAN, J., concur.