Summer, 1998

To the Village of Lisle Board of Trustees and Zoning Board of Appeals:

The following is an informal memorandum of law on Illinois zoning law and its application to the zoning variance sought by Meijer for the property at Maple and Benedictine. You will find that a denial of the zoning variance sought by Meijer is well supported by Illinois law and the facts in evidence.

Bear in mind that most of the cases involve a landowner/plaintiff that has been denied a zoning variance. The petitioner, Meijer, is not in the same position as the plaintiffs in these cases, in that they do not own the property, though they are the contract purchaser. Meijer is, evidently, seeking a zoning variance as a condition of their obligation to perform under the purchase contract.

In a frequently cited case, the Illinois Supreme Court said that the plaintiff (developer) has the burden of showing that their proposed use of the property is reasonable. Schultz v. Village of Lisle, 53 Ill.2d 39, 289 NE2d 614. The Plaintiff in that case sought a zoning variance from single family residential to commercial for the purpose of building a gas station at the Northeast corner of Route 53 and Burlington. The Illinois Supreme Court said: “In fact, no property within the natural boundaries of the area in question is zoned for a use as a gasoline service station. If the requested amendment were granted, a new and foreign use of property would be introduced into this section of the Village of Lisle.” The court determined that the zoning variance sought was unreasonable.

Petitioner Meijer seeks a variance from what is currently zoned R-2 Single Family Residential in DuPage County to a special use that would constitute the single largest retail store in DuPage County and probably the entire Chicagoland area, and would be open 24 hours a day. There is no property within several miles of the area in question that is zoned for the special use Meijer has proposed.

The criteria for determining what is a reasonable use was established in two Illinois Supreme Court Cases: Sinclair Pipe Line v. Village of Richton Park, 167 NE2d 406 and LaSalle National Bank v. County of Cook, 145 NE2d 65.

In Sinclair, the court said, “Zoning restrictions may be varied, however, only in harmony with their general purpose when practical difficulties or particular hardship make enforcement of the strict letter of existing restrictions unreasonable.” The criteria set forth in Sinclair are:

1. The evidence or lack of evidence of community need for the use proposed.

Meijer has testified that a market of at least 75,000 people is needed to support one of their stores. The Village of Lisle has a population of less than 21,000. There is no evidence whatsoever of a need for such a store in the Village of Lisle.

2. The care with which the community has undertaken to plan its land use development.

In 1969, the Village of Lisle adopted a Comprehensive Development Plan and updated it in 1977, 1985 and again in 1990. The most recent revision of the Plan is the 1995 Village of Lisle Comprehensive Land Use Plan. Among its stated purposes is to inform “residents, prospective residents and developers of the community’s growth philosophy and intended land use plans.” It also states “Whenever possible Lisle’s 1995 Plan is consistent with the county’s plans, in order to coordinate and promote common objectives.” The 1995 Plan goes on to say: “Additional strip development along major roadways is discouraged because of the traffic disruption and congestion caused by such development.” “The dominant land use of the community remains and will continue to be single family residential.” “Along major thoroughfares, the intent is to discourage uncoordinated, commercial strip development while maintaining a non-retail quality environment.” “Future commercial development will continue to be encouraged at major intersections rather than in strips along major arterial urban corridor roadways.”

Not only has the Village of Lisle planned its land use development with great care, it is abundantly evident that the special use proposed by Meijer is incongruent with it and does not fit. There is nothing on the Comprehensive Land Use map that would indicate or allow anyone to predict that the subject property was intended to be used in the manner sought by Meijer. The Village of Lisle Plan Commission concluded that the Meijer plan was not consistent with the 1995 Comprehensive Land Use Plan as you should.

3. Does the restriction have a basis in public health, safety and welfare?

All of the testimony and evidence of record shows that the Meijer store would cause a significant increase in traffic, especially “cut-through” traffic through residential neighborhoods. Meijer has said that there would be 30 to 40 semi tractor trailers per week going to the store to make deliveries and all of them would come from the east, passing two busy intersections, established residential neighborhoods and Benet Academy. Benet lost three students in an auto accident recently because a vehicle heavier than the one they were in was unable to stop on a slippery road. The increase in automobile and semi tractor-trailer traffic that the Meijer store would generate would seriously jeopardize the “health, safety and welfare” of the residents of the Village of Lisle and the current zoning restriction has a clear basis in the public health, safety and welfare.

The LaSalle case adds criteria for reasonableness:

4. Existing uses and zoning of nearby property.

An examination of the Village of Lisle zoning map and the Comprehensive land Use Plan map will show that the existing uses and the zoning of nearby property is almost exclusively residential. The only exceptions are Benedictine University to the East and the light commercial usage at the Green Trails Center along Maple Avenue. In Thompson v. Cook County Zoning Board of Appeals, 421 NE2d 285, a zoning variance that rezoned a 176 acre tract of land from 40,000 square foot residential lots to 10,000 square foot residential lots was deemed reasonable, in spite of adjoining landowners complaints. However, to rezone from single family residential to a special use that would be the largest retail store in Northeastern Illinois in the middle of predominantly residential land use is far beyond that which the courts would deem reasonable.

5. Extent to which property values are diminished by particular zoning restrictions.

Certainly, any land that is zoned for commercial use will always be more valuable than land zoned for residential use. Bear in mind, the current land owner, St. Procopius Abbey, has owned the subject property for over 100 years. No matter who they ultimately sell the property to, they will realize a capital gain in the millions of dollars. Moreover, the very thing that makes the property valuable is the nature and character of the development that has occurred around it. It was on the market for a long time because the price that they were asking for it was so high that no one could afford to develop it profitably and, in fact, Meijer cannot either. Meijer has testified that the project is not economically feasible to them unless they sell off the outlots. Even Meijer cannot afford to purchase and hold the property at the price that the Abbey is asking. It is obviously an above market price and if St. Procopius Abbey simply adjusts the price so that someone else with a development plan that is harmonious with the surrounding land uses could afford to develop the property, the Abbey would still enjoy an incredible capital gain. Just because the Abbey has found a buyer that will pay its price does not mean that the buyer should be permitted to develop the land in a manner that is entirely inconsistent with contiguous land uses, zoning ordinances and local land use plans.

6. Relative gain to public as compared to hardship of individual property owner.

Meijer would suffer no hardship whatsoever if the zoning variance is denied. They do not own the property and would not be stuck with the property, unable to develop it as they wish. St. Procopius Abbey would find another buyer, perhaps at a lower price as outlined above, but would suffer no significant hardship. However, the public would have to suffer with traffic congestion, safety hazards, diminished property values and a significant diminution in the quality and character of life they have come to know and expect in the Village of Lisle. The would be no relative gain to the public. There is no evidence of need for the largest retail store in Northeastern Illinois, requiring a customer base of at least 75,000 to survive, open 24 hours, in a quiet residential neighborhood, in a Village of less than 21,000 people.

In Amalgamated Trust and Savings Bank v. County of Cook, 82 Ill. App. 3d 370, 37 Ill.Dec. 717, 402 NE2d 719, the court said: “Neighbors and property owners who purchased their property in reliance upon zoning restrictions and who objected to planned development because of additional traffic and people, accompanying noise and invasion of privacy, destruction of their view, depreciation in value of their homes and safety of their children were entitled to rely upon precepts that zoning classification will not be changed unless required for the public good.” This case is directly applicable to the Meijer petition for a zoning variance. There is no evidence to suggest that the Meijer store is “required for the public good.”

The issues raised in the Amalgamated case are exactly the same as those raised by neighbors and property owners in the Village of Lisle. A Lake County Real Estate Appraiser, Howard Richter, testified at the public hearing that the Meijer plan would depress residential property values in the vicinity of the site by at least 15%. Former Lisle Township Assessor, Gordon Shultes, independently concurred with Mr. Richter’s opinion. Realtors distributed flyers extolling residents to “sell before Meijer gets in!”

Clearly, the Meijer proposed use would bring hardship to the public, but a denial of the requested zoning variance would cause no hardship to either Meijer or St. Procopius Abbey and allow for alternative proposals that would be mutually beneficial for the public and the Abbey.

7. Suitability of property for the zoned purposes.

Questions remain about the wetlands and the flood control proposal by Meijer. The studies conducted by DuPage County tend to contradict Meijer’s flood management findings and there are serious questions regarding the suitability of the subject property for the special use proposed by Meijer. There is no evidence to suggest that the property is not suited for single family residential as it is currently zoned.

I urge you to consider the fundamental rationale for zoning ordinances and the fact that they are relied upon by property owners and prospective property owners. Stability, continuity, appropriateness and reasonable development are important factors. The Special land use variance sought by Meijer is a radical departure from anything that any reasonable person could have foreseen for that property. Certainly, no one has a right to expect the property to remain a cornfield forever, however, as articulated in the Amalgamated case, people do have a right to rely upon the fact that zoning ordinances, as well as land use plans and contiguous land uses will not change unless change is required for the public good.

Please deny Meijer’s request for annexation and rezoning for their special use. Let another developer with a reasonable, responsible, appropriate plan, bid on the property for the mutual benefit of all parties concerned. 97 percent of the letters of record at the Village, 96 percent of those who spoke at the public hearing, 5 out of 6 Plan Commissioners, all of the Lisle Township Trustees and more petition signatories than people who voted in the last election all oppose the Meijer plan. Please do what your constituency has demanded and what the law requires; say no to Meijer.

Sincerely yours,

Thomas F. Fezzey
2336 Trowbridge Way
Lisle, IL 60532-3352

cc: Scott Hardek, Esq.
Karl Csukor, Esq.
Mark Misiorowski, Esq.
Richard W. Hymes, Jr. Esq.