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People Ex Rel. American Nat. Bk. v. Smith

MAY 21, 1969.




Appeal from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding. Affirmed.


In July, 1966, defendant issued to La Salle National Bank, as Trustee, a building permit (No. B 377334) for the construction of a three-story, twenty-four-unit apartment building pursuant to plans submitted as described later in this opinion. Thereafter, relator (hereafter referred to as plaintiff) purchased the land in question from La Salle and proceeded with some excavation work. In September, 1966, defendant halted the work by issuing a stop order. Plaintiff then brought this action for a writ of mandamus to compel defendant to rescind the stop order. After hearing, the court entered judgment in favor of defendant. Plaintiff appeals, claiming that defendant is estopped from preventing plaintiff from proceeding with construction pursuant to the building permit. The pertinent facts are not in dispute.

The subject property is located at 2619-27 West Agatite Avenue, Chicago. It is trapezoidal in shape, bounded on the north by 99 feet of frontage on Agatite Avenue, on the south by 44 1/2 feet of frontage on Montrose Avenue, on the west by 290 feet of the North Shore Channel, and on the east by 290 feet abutting the property of J.D. Brown. Agatite Avenue does not bridge the channel but comes to a dead end in front of the property in question. This property was purchased in 1956 by La Salle as trustee. At that time it was zoned for apartment use under the 1942 Comprehensive Amendment to the Chicago Zoning Ordinance. The 1957 Comprehensive Amendment to the Chicago Zoning Ordinance reclassified this property in its north half as an R3 general residence district, and in its south half as a restricted service district. This reclassification, though permitting limited apartment construction, did not permit the type of building anticipated by La Salle when the land was purchased; so, in May, 1963, it brought an action (Cause No. 63 S 12330) to invalidate the zoning ordinance as it applied to the subject property. La Salle proposed to build a twenty-four-unit apartment building consisting of three stories to a height of 30 feet. Eighteen off-street parking spaces were to be provided on the Montrose Avenue portion of the property, with a ten-foot wide driveway on the eastern boundary connecting it to Agatite Avenue. This driveway would connect to an east-west alley bisecting the block between Agatite and Montrose Avenues. The proposed building would have met the requirements of the R4 general residence district classification.

On January 3, 1964, after hearings and considering all relevant evidence, the Master concluded that La Salle's claim was meritorious, and recommended that the property be rezoned to permit the proposed construction. Among the conclusions of the Master's Report, it was stated:

10. The present R3 General residence district classification applying to the northern half of the Subject Property would permit the construction of a 3-story apartment building 30 feet high on the site, which could be placed within 6 feet of the lot directly east of the Subject Property. Plaintiff's proposed use is intended to be 30 feet high and 10 feet of its westerly line or 4 feet further from the lot line than is presently required, thereby providing more space between the proposed use and the building next east than now required. . . . (Master's emphasis.)

It was also concluded that the 18 off-street parking spaces would prevent an increase in the traffic and parking problems in the neighborhood. The connecting driveway along the east side of the property would also alleviate the effect of the present dead end, as defendant had previously suggested be done with a public alley. On April 6, 1964, the Final Judgment Order was entered in the Circuit Court adopting the Master's Report in all respects. It was ordered that La Salle, and all persons claiming through it, had a legal right to construct a 24-unit apartment building on the property, in compliance with all applicable construction provisions of the Chicago Building Code. It further ordered that if La Salle, or any person claiming through it, should apply for a building permit, it should be issued, if such application covered erection of a building which "would contain twenty-four units and would substantially conform to the plans submitted by the plaintiff in this cause, and would provide 18 off-street parking spaces," and if the application met the construction requirements of the Chicago Building Code. On October 26, 1964, a building permit was issued to La Salle, and was renewed on April 23, 1965, and again extended on October 18, 1965. All of these permits indicate that they were issued on plans submitted by Architect B. Krauss, 300 W. Washington Street, the two later ones also indicating on their face that they were extensions of the first one.

On July 25, 1966, defendant issued Permit No. B 377334 for the construction of a three-story, 24-unit apartment building, made no reference to the earlier permits, and indicated that it was issued on the basis of plans dated July 12, 1966, and submitted by Architects Shayman and Salk, 5844 N. Lincoln Avenue. These plans, which were prepared not for La Salle but for plaintiff in this case, contained a notation on their first page which read, "Twenty-four apts. Circuit Court Order No. 63 S 12330." Plaintiff alleges that it was in reliance on this permit that it purchased the property from La Salle and incurred $50,000 of expenses in excavation work for the building. On September 23, 1966, defendant issued a stop order against construction under Permit No. B 377334 on the ground that the new plans of July 12, 1966, did not provide for a 10-foot side lot building line on the east, and therefore were not in substantial compliance with the plans which had been submitted to the Circuit Court and had been required by its order. Plaintiff made a demand on defendant to rescind the stop order but to no avail; so, plaintiff brought the action, now before us on appeal, for a Writ of Mandamus to issue against defendant commanding him to rescind his stop order.

At the trial, George L. Shapiro, a lawyer and 50% beneficial owner of the subject property under plaintiff's trust, testified on behalf of plaintiff that the property had been purchased on July 12, 1966, and a trust agreement entered into on the same date. He had previously had his architects (Shayman and Salk) prepare new plans which were turned over to the seller who had then obtained the permit. A purchase price was paid and 24 caissons were put in. Arrangements were also made for a mortgage. (The court did not deem it relevant for the witness to show further commitments, obligations incurred, or expenditures.)

Defendant was called by plaintiff under section 60 of the Civil Practice Act (Ill. Rev Stats 1965, c 110, § 60), and testified that his duties, as Commissioner of Buildings for the City of Chicago, are to enforce the provisions of the Municipal Code pertaining to buildings. He must examine plans submitted to the Building Department and see that building permits are issued by the department if the plans meet the requirements of the Code. Permit No. B 377334 was issued to La Salle on July 25, 1966, and it permits the erection of a 3-story, twenty-four-unit apartment building at 2619-27 W. Agatite. This document is issued when a person submits a proper application, and after the plans have been reviewed by the various sections of the department. He stopped the work on the construction in question, but does not know if the permit has been revoked. Work was stopped because the court order indicated that the building would have to be in substantial compliance with the plans that had been submitted to the Master and the Court. The new plans did not show the 10-foot side lot building line which had been indicated on the original plans reviewed by the Master and the Court, and, in his opinion, were therefore not in substantial compliance.

Raymond M. Hayes testified on behalf of defendant as an appraiser. He described the subject excavation as coming to the lot line of the neighboring property on the east, and said that in his opinion plaintiff's building would have a detrimental effect on the value of the neighborhood of 10 to 15% because of the increased parking problem and the inability of fire trucks or ambulances to drive in to the dead end and turn around.

The trial court decided that plaintiff was not entitled to a Writ of Mandamus, and entered judgment in favor of defendant. Plaintiff now appeals, claiming that it had relied upon the issuance of Permit No. B 377334 to assume financial obligations and expenses and to commence the construction of the building, and, therefore, defendant was estopped from preventing the completion of the building.

[1-4] We find that there was no error in the trial court's decision. A Writ of Mandamus is a summary writ, commanding the officer or body to whom it is addressed to perform some specific duty which claimant is entitled, of right, to have performed and which the party owing the duty has failed to perform. Wehrmeister v. Carlman, 17 Ill. App.2d 171, 183, 149 N.E.2d 453. It is not a writ of right but is awarded only in the exercise of sound judicial discretion in accord with legal principles. People ex rel. Cannella v. City of Chicago, 7 Ill.2d 416, 131 N.E.2d 98; Thornton v. Ramsey, 24 Ill. App.2d 452, 165 N.E.2d 65; Walter Rogers, Inc. v. Mortimer, 19 Ill. App.2d 381, 153 N.E.2d 855. A claimant, therefore, must show a clear legal right to the writ, and there must be a clear neglect or refusal on the part of the defendant to perform the act sought to be enforced. Thornton v. Ramsey, supra; Walter Rogers, Inc. v. Mortimer, supra; Wehrmeister v. Carlman, supra. Mandamus to compel the rescinding of the stop order was an appropriate remedy for plaintiff to seek on the facts of the case now before us (Wehrmeister v. Carlman, supra; People ex rel. Deddo v. Thompson, 209 Ill. App. 570; Thornton v. Ramsey, supra; Walter Rogers, Inc. v. Mortimer, supra), but plaintiff did not establish its right to the relief sought.

The estoppel claim of plaintiff must find its base in the final judgment order entered by the Circuit Court upon the Master's Report in the zoning hearing. That decree, however, was expressly limited to plans in substantial conformity with the plans which had been submitted for court review in that action. Those very plans were submitted in the first three permit applications. Plaintiff then revised the plans to eliminate the side driveway space — one of the salient features which had been found to be important in the zoning case — and obtained Permit No. B 337334 for the construction of the apartment building. Now, on the authority of this permit, plaintiff claims that it had incurred certain expenses and obligations amounting to a substantial change of position, and defendant is therefore estopped from interfering with the construction of plaintiff's apartment building.

Estoppel depends on the facts and circumstances as justice may require. Where a party, acting in good faith under affirmative acts of the city, has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired, the doctrine of equitable estoppel has been applied, and plaintiff relies on these cases. People ex rel. Deddo v. Thompson, 209 Ill. App. 570; Cities Service Oil Co. v. City of Des Plaines, 21 Ill.2d 157, 171 N.E.2d 605; Wehrmeister v. Carlman, 17 Ill. App.2d 171, 149 N.E.2d 453; Sinclair Refining Co. v. City of Chicago, 246 Ill. App. 152. Plaintiff here, however, has not established the reliance in good faith which is necessary to vest it with a right to mandamus. It is obvious to us that the suit by La Salle to invalidate the R3 general residence and B4-2 restricted service zoning was successful, in major part, ...

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