APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This appeal arises from a mandamus judgment against defendants, entered in the Circuit Court of Cook County, compelling them to issue a permit to operate a self-service, coin-operated laundromat on the premises located at 2633 West 43rd Street, Chicago, to the plaintiffs, Frank and Veronica Satas.
There are two issues presented for review. The first is whether the mandamus judgment granted by the trial court is based upon a clear legal right in that such judgment compels the defendants to act in violation of the zoning ordinance. The second issue is whether the doctrine of estoppel may be applied against the City of Chicago without any positive action by the City to induce plaintiffs' reliance.
On February 5, 1970, Frank Satas entered into a contract to purchase certain real estate located at 2633 West 43rd Street, Chicago. He planned to use the property as a self-service, coin-operated laundromat. The contract to purchase the real estate was drawn up by Charles Norville, a real estate broker. Prior to signing the contract, Norville recommended Satas check the zoning on the property. Satas asked Norville to hold the building for him while he checked the zoning.
On February 6, 1970, Satas obtained a laundromat license form from the City Collector and was informed such application had to be approved by the Zoning Administrator. Satas then presented the license form to an employee of the Zoning Department, James Conlon, for approval. Conlon looked in a book and stamped the license application as conforming to the zoning ordinance. Later, Satas signed the contract for the purchase of the real estate.
On February 10, 1970, Satas contracted with Robert Casey to purchase laundry equipment. Satas made this purchase without applying for a laundromat license or a building permit.
On February 19, 1970, Satas closed the real estate deal with Norville. There was included in the real estate contract a 45-day escape clause if Satas could not obtain a license. The contract was not closed until Satas assured Norville a laundromat in the building conformed with the zoning ordinance and that he could obtain a license.
An architect hired by Robert Casey to draw plans for the installation of the laundry equipment advised Casey a laundromat would not conform to the zoning classification of the building. Casey testified he told the architect he had been advised by the Zoning Department a laundromat was a permitted use at the site. The architect, however, showed him the zoning ordinance would not permit such use. A few days later, Casey testified, he spoke with Harry Manley, Assistant Zoning Administrator, whose duties are to review plans for license applications. During the meeting with Manley, the Zoning Administrator, John P. Maloney, advised Casey a mistake had been made in stamping the Satas application as conforming. Maloney said the zoning of the real estate as a B2-1 district would not accommodate a laundromat as a permitted use. Casey was advised, however, an appeal could be taken to the Board of Appeals.
At the trial, both Zoning Administrator Maloney and Assistant Zoning Administrator Manley testified as to the administrative procedures of the office of the Zoning Administrator. It was agreed by the parties that employee Conlon's approval of the use of the subject property was in error because a laundromat was not a permitted use in a B2-1 district. Manley also testified no employee has the authority to authorize a use which is not permitted by the zoning ordinance.
Testimony of R.J. McKinnon, a city planner employed by the City of Chicago, was also heard at the trial. He stated that to permit a laundromat in a B2-1 district would open up the district to other non-conforming uses. A real estate broker, John McNamara, testified to the fact that the highest use of the subject property is as a B2-1 district.
After the foregoing testimony was heard, the trial court on July 3, 1970, entered judgment on the mandamus count in favor of the plaintiffs and against the defendants. It is from this mandamus judgment defendants herein appeal.
The defendants, the City of Chicago, its Mayor, Building Commissioner, Zoning Administrator and City Collector, contend the mandamus judgment by the trial court is not based upon a clear legal right because it compels them to perform acts which they are not under a duty to perform by law. More specifically, defendants contend the writ of mandamus commands them to act contrary to the zoning ordinance by issuing a license for a coin-operated, self-service laundromat at 2633 West 43rd Street, Chicago. The site in question is zoned B2-1, Restricted Retail District; since a coin-operated laundromat is not a permitted use in a district zoned B2-1, defendants contend they are not under a duty to issue a license.
• 1, 2 It is a well established proposition that plaintiffs seeking mandamus relief must show they have a clear legal right to the relief demanded, that is, the performance of an act by an officer or officers of a public duty which the officer has failed to perform. (People ex rel. Heydenreich v. Lyons (1940), 374 Ill. 557.) Further, no rights can be acquired in a mandamus proceeding, the purpose being only to enforce rights already lawfully vested. Saline Branch Drainage District v. Urbana-Champaign Sanitary District (1946), 395 Ill. 26.
In the instant case, the trial court issued the mandamus writ to enforce rights which not only do not arise under the zoning ordinance but are contrary to the import of such ordinance. The effect of the mandamus writ, therefore, is to confer a duty on the defendants which did not exist prior to the issuance of the writ. Moreover, ...