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Bull v. American Nat. Bank & Trust Co.

APRIL 24, 1969.

ROSEMARY BAUR BULL, PLAINTIFF-APPELLANT,

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, TRUSTEE UNDER TRUST NUMBER 22254, ARNOLD MEYER, JORDAN H. KAISER AND WALTER P. KAISER, H.S. KAISER COMPANY, AN ILLINOIS CORPORATION, AND COOK COUNTY FEDERAL SAVINGS AND LOAN ASSOCIATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

MR. PRESIDING JUSTICE DEMPSEY delivered the opinion of the court.

Rehearing denied and supplemental opinion September 11, 1969.

The American National Bank, as trustee, applied for a permit to construct a 27-story apartment building with an attached rear-yard garage 27 feet, 6 inches high at 1515 North Astor Street, Chicago. The property was located in an R-7 general residence district. On March 26, 1966, the zoning administrator of the City denied the application because the height of the proposed garage exceeded the zoning ordinance limitation of 18 feet.

On April 14, 1966, the applicant (hereafter the defendants) appealed the ruling of the administrator to the Chicago Zoning Board of Appeals. Two public hearings were held — one on May 17, 1966, and the other on June 2, 1966. At them, the board "fully heard the testimony and argument of the parties." One of the parties was the plaintiff — an owner of a single-family residence adjacent to the defendants' property. She complained that the proposed garage violated the ordinance and would interfere with light and air reaching her premises.

On June 7, 1966, the zoning board wrote to the Corporation Counsel of the City of Chicago asking whether the board had jurisdiction of the case. In August 1966 an assistant counsel, in a letter approved by the corporation counsel, replied in the affirmative. His letter then went beyond the scope of the board's inquiry and commented upon the defendants' contentions, the merits of the case and the history of such cases before the zoning administrator. He informed the board that on some similar projects in the past the administrator had issued permits for garages in excess of the 18-foot limitation and he concluded from this that the administrator had interpreted another section of the ordinance as constituting an exception to the height limitation of 18 feet.

The letter was dated August 23, 1966. The defendants either knew about the letter or soon learned of it for they immediately filed another application for a permit to build the apartments and attached garage. This time the administrator ruled that the height of the proposed garage did not violate the ordinance and on August 30, 1966, issued the permit.

The defendants did not notify the Zoning Board of Appeals or the plaintiff of their second application or of the issuance of the permit and they did not withdraw their appeal. Instead, they bypassed the board and proceeded with their project. Meanwhile, the zoning board, unaware of the new developments, rendered its decision. Despite the information in the assistant corporation counsel's letter the board, on October 4, 1966, affirmed the refusal of the zoning administrator to issue the permit. The defendants were advised of the decision but ignored it. They did not ask for a rehearing and did not file an appeal. They chose to act under the issued permit. They acquired land, paid for architectural fees and drawings and entered construction contracts. In July 1967 they began construction. The building permit was displayed at the site.

About a month later the plaintiff filed an action to permanently enjoin the construction, maintenance and use of the apartment building and garage. Both the plaintiff and the defendants filed motions for summary judgment supported by exhibits. The plaintiff, in her motion, modified her prayer for relief and asked for an injunction prohibiting the construction of an attached garage in excess of 18 feet and for the removal of any such structure that was more than 18 feet in height. The court ruled in favor of the defendants, denied the injunction and dismissed the plaintiff's complaint. The court's decision is the subject of this appeal.

In support of the order dismissing the complaint, the defendants argue that: in seeking an injunction the plaintiff employed the wrong remedy; she was at fault in not appealing the administrator's second decision; she did not exhaust her administrative remedies and, hence, could not resort to the courts; her present action is a collateral attack upon a valid permit; she is estopped from enjoining the construction by her own laches and because the defendants' position has been altered in reliance on the permit; upon the issuance of the permit, the defendants' appeal, which was then pending before the zoning board, became moot and the subsequent decision of the board had no legal effect; the administrator's first decision was wrong and his second decision was right because the zoning ordinance allows the type of construction contemplated by the defendants' application; if this is not so the prior, contrary administrative interpretations of the ordinance carry great weight, and a ruling opposed to these interpretations would be lacking in uniformity.

Whether the administrator's first or second decision was correct is not the controlling question in the present posture of the case. Nor are we overly concerned with the altered position of the defendants which was self-induced. The problem before us is the procedural snarl brought about by the defendants' course of conduct and the plaintiff's choice of remedies.

The defendants minimize their failure to appeal to the Circuit Court from the zoning board's decision and magnify the plaintiff's failure to appeal to the zoning board from the administrator's second decision.

The plaintiff, who did not learn of the second decision until sometime after the construction began, brought an action under section 11-13-15 of the Illinois Municipal Code — a statute which has for its purpose the prevention of zoning violations. 222 East Chestnut St. Corp. v. Lakefront Realty Corp., 256 F.2d 513 (1958). Her action sought to enjoin a violation of a zoning ordinance, which violation had been determined by the zoning administrator and affirmed by the Zoning Board of Appeals. The statute states:

"In case any building or structure is constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used in violation of this Division 13, or of any ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the municipality, or any owner or tenant of real property in the same contiguous zoning district as the building or structure in question, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) ...


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