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Naumovich v. Howarth

FEBRUARY 15, 1968.

JOSEPH P. NAUMOVICH, ADMINISTRATOR OF THE ESTATE OF JOSEPHINE NAUMOVICH, DECEASED, AND PAUL F. WANLESS, PLAINTIFFS-APPELLEES,

v.

NELSON O. HOWARTH, MAYOR, INES HOFFMAN, ET AL., COMMISSIONERS AND/OR AS LOCAL BOARD OF IMPROVEMENT, AND DWIGHT H. O'KEEFE, JR., AS COMMISSIONER OF PUBLIC HEALTH AND SAFETY, GEORGE ROSE, ET AL., AS BUILDING INSPECTORS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Sangamon County; the Hon. CREEL DOUGLASS, Judge, presiding. Reversed and remanded.

TRAPP, J.

The defendants, who represent the City of Springfield in the official capacity of Commissioners and as building inspectors, appeal from a decree of the Circuit Court directing the issuance of a building permit authorizing the construction of a gasoline service station upon property originally owned by one Josephine Naumovich, and holding void an ordinance passed subsequent to the application for the building permit, which ordinance reclassified the property from "E," Heavy Industrial Use District to "A," Residence Use District.

The defendants are referred to herein as the City. Plaintiffs are Joseph P. Naumovich as administrator of the estate of Josephine Naumovich, the original owner, and Paul F. Wanless, who had an option to purchase at the time of the application for the building permit.

The original plaintiff, Josephine Naumovich, owned a tract of ground on the southwest corner of Sangamon Avenue and 19th Street in the City of Springfield, having a frontage of about 136 feet on Sangamon Avenue and about 150 feet on 19th Street.

On August 10, 1964, Josephine Naumovich gave an option to purchase the above described property for $28,200 to James McClernon, who assigned the option to intervening plaintiff, Paul F. Wanless. The option, which required the option seller to obtain commercial zoning, was later extended to August 10, 1965.

On October 27, 1964, a City building inspector, having his attention called to the industrial use classification by an employee of the plaintiff, Wanless, wrote an inquiry to the supervisor of inspectors requesting advice as to action to be taken in case a building permit should be applied for. On November 5, 1964, Mr. Wanless examined the zoning maps and ascertained from the City Clerk that the property had been classified as "E," Heavy Industrial Use District by the original zoning ordinance of the City in 1924, along with other property adjoining Sangamon Avenue from 15th Street east to the eastern city limits, and had not been changed since. Between the original enactment and the transaction with Mr. Wanless, Josephine Naumovich, apparently believing that the classification was "A," Residential, applied for and obtained a variation to use the property as a frozen custard shop.

The City, subsequent to the building inspector's inquiry as to action to be taken, and apparently as a result thereof, did, on November 10, 1964, pass a resolution referring the question of reclassification of all property on Sangamon Avenue between 15th Street and the east city limits, including the property in question, to the Zoning Board of Appeals for public hearing and recommendation. The City resolution recommended reclassification to "A," Residential Use District, and directed that no building permit other than a residential permit should be issued by the Building Department of the City of Springfield.

On November 17, 1964, Mr. Wanless submitted to the City an application for a permit to erect a gasoline service station upon the property in question together with appropriate plans, and paid the required fee. The application for permit was refused upon the authority of the resolution aforesaid.

As a result of its public hearing, the Zoning Board of Appeals recommended that all of the property on Sangamon Avenue from 15th Street east to the east city boundary be reclassified to "A," Residential Use District, except the subject property, and, as to it, the Board recommended that it not be rezoned to "A," Residential Use District.

On December 15, 1964, the City enacted an ordinance, contrary to the recommendation of the Zoning Board of Appeals, and reclassified the subject property to "A," Residential Use District.

Josephine Naumovich filed a suit for declaratory judgment and an injunction on January 18, 1965, and a default decree was entered March 9, 1965. The decree was vacated on motion of the City on June 8, 1965.

On June 2, 1965, Mr. Wanless granted an option for a five-year lease to Humble Oil and Refining Company, which company exercised the option on July 28, 1965. On August 10, 1965, Mr. Wanless exercised the option to purchase the Naumovich property, stating that payment would be made when merchantable title is conveyed, and ". . . when your obligation `2. that commercial zoning be secured thereby allowing full use of the above property for commercial use'; has been accomplished as agreed in said option agreement."

On August 26, 1965, Mr. Wanless obtained leave to intervene as a plaintiff. A decree was obtained May 20, 1966, finding the ordinance of December 15, 1964, rezoning the plaintiff's property, to be arbitrary, unreasonable, unconstitutional and void as applied to plaintiff's property and enjoining its enforcement. The decree also found that the resolution of November 10, 1964, forbidding the issuance of a building permit, was void.

Plaintiffs contend that the City could not by the resolution of November 10, 1964, suspend the zoning ordinance then in effect, and also contend that there were sufficient acts in reliance upon the existing zoning to ...


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