Appeal from the Circuit Court of Cook County, Law Division;
the Hon. EDWARD F. HEALY, Judge, presiding. Reversed and remanded
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The plaintiffs, owners of unimproved real estate in the City of Calumet City, filed suit for a writ of mandamus (Ill Rev Stats 1965, c 87, § 1 et seq.) to compel the defendant city and its building commissioner to issue building permits to them. They alleged that under a 1947 zoning ordinance, their parcels of real estate were located in a class "D" residence zone. This type of district permitted "Dwellings arranged and designed for use of more than one family." The plaintiffs claimed that in reliance upon the zoning regulation, they had purchased real estate within the class "D" district and, after applying for and obtaining building permits, commenced to develop the property with multifamily dwellings.
Later, in the Spring of 1967, one of the plaintiffs applied for additional permits, but the applications were denied by the building commissioner on the ground that a petition had been filed with the board of zoning appeals to amend the zoning regulation of the plaintiffs' property and the property in its immediate vicinity. The particular plaintiff then filed a mandamus petition asking the Circuit Court to direct the city and the commissioner to issue the permits. In July 1967 an order for such a writ was entered by the court. The order was not appealed and the permits were issued.
Thereafter, on August 3, 1967, the plaintiffs applied for more permits in order to construct one eight-flat and some three and four-flat buildings. Although the construction of such buildings was permitted under the existing class "D" zoning regulation, the commissioner refused to issue the permits. As a result, the plaintiffs filed another petition for a writ of mandamus. This petition which is the present suit was filed on August 10th.
On August 22nd the defendants answered the petition. They asserted that on August 21st the City Council of Calumet City adopted an ordinance which changed the zoning classification of the area in which the plaintiffs' property was located from class "D" to class "B," and that construction of multifamily dwellings was not permitted in a class "B" area.
The court ruled for the plaintiffs because:
". . . at the time of . . . [their] application for building permits and at the time of filing the Petition herein for Mandamus, [they] had a clear legal right under the existing zoning regulations for the issuance of building permits . . . and the ordinance passed on August 21, 1967 . . . cannot abrogate the rights of the Petitioners."
The writ of mandamus was ordered on September 1, 1967.
In late September new counsel entered an appearance for the defendants. A post-trial motion was filed which sought to create defenses to the action which had neither been pleaded in the answer nor advanced at the trial. One of these was that a nonplaintiff had signed the applications for the building permits. Another was that the applications did not comply with the code requirements of the city in that verified specifications or plans in duplicate were not attached to the applications. The post-trial motion also elaborated on the basis of the zoning ordinance amendment, explaining that the municipal facilities such as water, sewer and recreation in an area allegedly developed primarily for single-family dwellings were not adequate to support a large number of multiple family dwellings. The post-trial motion was denied.
On appeal the defendants contend that the mandamus petition was insufficient to sustain the relief granted and that the plaintiffs had no vested right in the continuation of the existing ordinance.
[1-4] The first contention was not properly raised in the trial court and need not be considered. The arguments that the plaintiffs did not apply for the permits and that the applications were not accompanied by verified specifications or plans in duplicate were raised for the first time in the post-trial motion wherein the defendants sought leave to amend their answer. One purpose of a post-trial motion is to give a trial court an opportunity to correct its errors. The court could not err on matters never called to its attention. Moreover, the pleadings could not be amended after judgment to raise the new issues. A complaint or answer can be amended after judgment only to conform them to the proof. Ill Rev Stats 1965, c 110, § 46(3); People ex rel. Tinkoff v. Northwestern University, 333 Ill. App. 224, 77 N.E.2d 345 (1947). In addition to these factors, the defendants' answer admitted the allegation in the petition that the plaintiffs applied for the permits.
As to the second contention, the defendants argue that the amended ordinance was in effect ten days prior to the hearing in court; that there is no vested right in the continuance of a law; that where a law has been changed pending an appeal a case must be disposed of by the court upon the law as it then exists, and that since the amended ordinance was not shown to be void, the court should have followed the ordinance as amended. The defendants concede that they do not have a right to arbitrarily refuse or unreasonably delay the issuance of a permit but contend that the issuance may be delayed when an ordinance is under consideration which would prohibit the issuance of the permit.
Such a delay was approved in Chicago Title & Trust Co. v. Village of Palatine, 22 Ill. App.2d 264, 160 N.E.2d 697 (1959). In Palatine, the plaintiffs applied for a permit to construct a gasoline station a use permissible under the existing zoning ordinance. About three weeks later the village passed an ordinance which prohibited such use of the property. On the basis of the amended ordinance the building commissioner refused to grant the application. The plaintiffs filed a petition for a writ of mandamus contending that the rights of the parties became fixed on the date they applied for the permit and that the subsequent ordinance had no bearing upon their right to its issuance. The writ was allowed. On Appeal by the village, this court reversed. We noted that the amended ordinance had been under consideration by the village zoning board prior to the plaintiffs' application, and held that a permit may be delayed when an amendment to an ordinance is under consideration which would prohibit the permit, and that if the amendment is passed the permit may be refused.
The principles mentioned above are applicable to the present case. In this case a petition had been filed to amend the zoning ordinance prior to the plaintiffs' application for the permits in question. The petition, filed in the Spring of 1967 or before, sought to rezone the area in which the plaintiffs' property was located. The petition was under consideration by the zoning board and had not been disposed of when the plaintiffs filed their application on August 3, 1967. Less than three weeks later a special meeting of the city council was called to resolve the matter and the zoning ordinance was amended despite the contrary recommendation of the zoning board. The amendment ...