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Oak Park Nat. Bank v. City of Chicago

FEBRUARY 20, 1973.

OAK PARK NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. B. FAIN TUCKER, the Hon. WALKER BUTLER, and the Hon. CHARLES B. BARRETT, Judges, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

In this declaratory judgment proceeding, the trial court invalidated a zoning ordinance of the City of Chicago as regards its application to property owned by Oak Park National Bank, as Trustee, La Salle National Bank, as Successor Trustee, and the beneficiaries of the trust (plaintiffs). The City of Chicago, sole defendant, appeals.

We will first consider contentions raised by the City with reference to proceedings before the master in chancery to whom the cause was referred and then the zoning issue on its merits. This may be one of the last opinions of this court pertaining to practice before masters in chancery because of the abolition of that ancient office in the State of Illinois. (See Ill. Const. 1870, art. VI, sec. 8, effective January 1, 1964 and par. 8 of schedule to said article.) On April 1, 1964, the trial court referred the cause to the late Sydney Wolfe, a master in chancery. On December 1, 1964, the court entered an order reciting that "justice requires" the master to conclude the cause and directing the master to complete the services required of him by the order of reference. (See Ill. Const. 1870, par. 8 of schedule.) The master heard all of the evidence in the case and closed proofs by agreement of the parties on July 14, 1965. The master died on April 6, 1969, without completing his report.

However, the master wrote out in longhand a statement of the case, comprising 15 pages, and a summary and analysis of the evidence consisting of 69 pages. His report was never placed into final form and filed. On July 25, 1969, the executor of the master's estate presented the matter to the court and requested allowance of reasonable compensation to the estate as well as other relief. On August 4, 1969, the court entered an order "on the basis of the agreement of all parties before the court." This order directed Harry L. Rudnick, an attorney at law and surviving law partner of the master, to conclude the master's report and to present the same to the court. In accordance with this order, the report was put in final form by Mr. Rudnick and duly filed. The first 84 pages of this report were typed from the handwritten manuscript of the master. Three additional pages were added by Mr. Rudnick. He certified that he had reviewed the entire record and that he agreed fully with the findings made by the master. He concluded that the zoning ordinance in question was invalid in its application to the property of plaintiffs.

Upon notice duly served by Harry L. Rudnick, the City filed objections to the master's report in which it set forth that the court was without authority to appoint a successor to the master under the then applicable provisions of the judicial article of the Constitution of Illinois, above cited. These objections also pointed out that the master had stated his conclusions only with respect to parcel 2 of the subject property (which will be later described) but that the successor had stated conclusions as to parcel 1 without having seen the witnesses.

The trial court entered its decree March 16, 1970, overruling the objections taken by the City and granting the relief prayed by plaintiffs. In the decree, the court found that the order which designated Harry L. Rudnick to complete the master's report had been entered by agreement of all of the parties. The order of December 1, 1964 directing the original master to complete his services was expressly approved by counsel for the City. The notice sent by Rudnick to all attorneys of record on September 25, 1969 described his appointment by the court for completion of the master's report as being with the agreement and approval of the parties. In addition, said appointment of Rudnick is described in an order entered by the court on January 12, 1970, directing the filing of his report, as being "by agreement of the parties." At no point does the City take issue with the facts regarding existence of this agreement. The decree appealed from fixes and allows fees of the deceased master payable to his estate in the sum of $3500 and fees for services rendered by Rudnick in the amount of $900 with the direction that the total of these fees be assessed one-half, or $2200, against plaintiffs and the remaining half against the City.

The City makes no objection to the amount of the fees but urges strongly that the designation of the successor to the master, Harry L. Rudnick, was unauthorized so that the City has been denied a full hearing and thus denied due process of law. The City contends that the trial court had no authority to appoint a successor to the master with or without agreement of the parties.

• 1 The City cites and relies upon three Illinois authorities: Trzebiatowski v. Jerome, 24 Ill.2d 24, 179 N.E.2d 622, and People ex rel. Reiter v. Lupe, 405 Ill. 66, 89 N.E.2d 824 which in turn cites People ex rel. Brignall v. Lewe, 383 Ill. 549, 50 N.E.2d 577. These decisions are not applicable here because the case at bar presents one decisive element which is absent from all of them. In each and all of these cited cases, one of the parties made an objection to the attempted procedure. Entirely to the contrary, in the case at bar, the appointment of Harry L. Rudnick and the completion and filing by him of the report of the deceased master was all done by agreement of the parties. Under these circumstances, any questions of due process of law or constitutional adequacies have been effectively waived by the City.

• 2 Generally speaking, constitutional rights, precisely like other rights, may be waived. (People v. Orr, 10 Ill.2d 95, 100, 139 N.E.2d 212, and additional cases therein cited.) In addition, in the case at bar, the originally and properly appointed master heard all of the evidence and prepared virtually all of the report. When the parties agreed that Harry L. Rudnick could complete the report itself, all of them were bound by their agreement. None of them should be heard to enter into such an agreement and then attempt to abandon it after the decision became known.

• 3 As counsel for plaintiffs correctly points out, the situation here is no different than where parties agree to present a case to the court upon a stipulation of fact. Even in criminal cases it has frequently been held that "* * * the use of a stipulation to waive necessity of proof is an accepted and established, as well as an essential, method of expediting the trial * * *." See People v. Morris, 6 Ill. App.3d 136, 140, 285 N.E.2d 247, and cases therein cited.

• 4 Furthermore, and finally, although the findings of a master, approved by the trial court are entitled to due weight on review the master's report is advisory only. After filing of the report, the facts remain open for consideration by the trial court and by the reviewing court. This court will make its own determination as to whether "* * * the decree rendered by the court [was] a proper one under the law and the evidence * * *" without regard to the finding of the master upon any particular question of fact. (See Babray v. Carlino, 2 Ill. App.3d 241, 244, 276 N.E.2d 435, leave to appeal denied March 29, 1972.) The record shows no prejudice to the City in this regard. We find this aspect of the City's argument lacking in validity.

We turn now to consideration of the merits of the zoning controversy. In this phase of the matter, the City urges that the decree appealed from unreasonably permits conversion of non-conforming residential buildings to business uses; plaintiffs have failed to overcome the presumptive validity of the zoning ordinance; plaintiffs have not sustained unusual hardship because of the present zoning and the change of the zoning boundaries did not constitute "spot zoning." In response, plaintiffs urge that the rezoning of the subject property by the City was arbitrary and unreasonable; there is no reasonable basis in public welfare which requires the zoning restriction and resulting loss to the property owners and plaintiffs had the right to rely upon the zoning classification, when they purchased the property, remaining unchanged without a reason based upon public welfare.

The subject property presents an anomalous situation. It is located in the vicinity of the northeast corner of Division and State Streets in Chicago. The corner parcel itself, not part of the subject property, has a frontage of 27 feet on State Street and 102 feet on Division Street and is a regular rectangle. One portion of the subject property (referred to as parcel 1) is immediately to the north of the corner parcel, fronts 40 feet on State Street and extends back to the east for 102 feet. Its street address is 1203-1205 North State Street. At the eastern boundary of this portion of the subject property and of the corner parcel, there is a ten foot vacant strip extending in a north and south direction. The second portion of the subject property (parcel 2) has a frontage of 48 feet on Division Street and extends back to the north for 67 feet. There is an alley immediately to the east of this parcel. It is commonly known as 12-14 East Division Street. Thus it appears that the subject property is in effect similar in shape to the letter "L" in an upside down position resting upon, or completely surrounding, the corner parcel.

Parcel 1 (fronting on State Street) is improved with a basement and four-story building. Parcel 2 is improved with basement and three-story building. All of these improvements on both parcels were erected about 1890. The actual uses upon these parcels will later be described.

The zoning history of the subject property shows that it was zoned for commercial uses under the City ordinance enacted in 1923. This classification was continued by the subsequent ordinance in 1942 which classified both parcels for business uses. Quite similar uses were permitted under both of these classifications. The beneficial owners ...


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