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Westerheide v. Obernueferman

FEBRUARY 9, 1972.

THOMAS E. WESTERHEIDE ET AL., PETITIONERS-APPELLANTS

v.

LEO OBERNUEFERMAN ET AL., DEFENDANTS-APPELLEES — (COUNTRY CLUB PLACE ASSOCIATION ET AL., INTERVENORS-APPELLEES.)



APPEAL from the Circuit Court of St. Clair County; the Hon. FRANCIS E. MAXWELL, Judge, presiding.

PER CURIAM:

This is an appeal from a judgment of the trial court denying appellants' petition for a writ of mandamus directing respondent-appellee, St. Clair County, Illinois, to issue a building permit to the petitioners-appellants for the construction of apartment units. Representatives of residential subdivisions adjoining the property involved were permitted to intervene as defendants.

The real estate involved in this matter consists of a tract of 1.96 acres lying adjacent to and abutting two residential subdivisions in which there are no multiple family dwellings, where all of the residences range in value from $40,000 to in excess of $100,000, and in an area where it is claimed traffic, water and fire protection problems already exist. Petitioners seek authority to construct sixteen apartments on the tract in question.

In essence, petitioners' argument is that it is the law in Illinois that where there has been a substantial change of position, expenditures, or obligations incurred in good faith by an innocent party under a building permit or a reliance upon the probability of its issuance, such party has a vested property right and may complete the construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classification.

The respondents argue that 1) it is not arbitrary, capricious or unreasonable for authorities to refuse or delay the issuance of a building permit for construction which is prohibited under an ordinance which is pending and under consideration, and 2) the evidence does not support the argument that "long before zoning appeared on this scene, petitioners had made substantial investment or incurred substantial expense."

A chronological listing of pertinent events and of expenses incurred by petitioners are important. They are:

Spring of 1967, County of St. Clair entered into contract with SWIMPAC for a comprehensive land use survey of the unincorporated areas of St. Clair County including the area involved.

This was public knowledge and a matter of record (Ordinances adopted by the County Board of Supervisors).

February 20, 1969, Petitioners purchased 1.96 acre tract.

May 12, 1969, Petitioners entered into contract with architect.

July 30, 1969, First public hearing on proposed zoning ordinance.

October 13, 1969, Public hearing on zoning ordinance — attended and objected to by petitioners.

November 16, 1969, Petitioners filed application for building permit.

November 18, 1969, Petitioners drew check for $400 as ...


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