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Emerald Home Builders, Inc. v. Kolton

MAY 11, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.


This is an appeal by the City of Chicago from a judgment ordering it to re-issue a building permit and enjoining it from interfering with plaintiff's construction on the subject lot.

The facts are essentially undisputed. The property, located at 7002 W. Talcott, Chicago, is a 5000-square-foot portion of a larger lot from which it was severed prior to the 1957 amendment to the Chicago Zoning Ordinance. Municipal Code of Chicago, ch. 194A.

In October, 1968, plaintiff, by its treasurer, Richard Cross, having responded to an advertisement by the seller, contracted to purchase this lot from defendant Val Kolton, Jr., for the sum of $13,000. The property was within an R-1 (single-family residence) zoning district. In preparing the contract of sale, Kolton included a provision that the sale would be conditional upon plaintiff's obtaining a permit to build a single-family residence on the lot. Cross, who did not have counsel during the negotiations of the contract, had not requested the inclusion of such a condition in the contract, and the matter of a building permit was not discussed at the time. Although unfamiliar with the zoning ordinance, Kolton was sure that it would be possible to obtain such a permit. Cross was also unfamiliar with the terms of the zoning ordinance, it being his practice merely to obtain a building permit which would then tell him what he could build.

On November 2, 1968, after signing the contract, but before closing, Cross submitted an application for a permit to erect a single-family residence, accompanied by architectural plans, a survey, and other documents, to the Department of Buildings of the City of Chicago Plaintiff had obtained a land loan at the cost of $856.32, and had paid $134 for the architectural plans and the survey, as well as $174.65 in fees for building and driveway permits. The Building Department followed the ordinary procedure concerning an application for a building permit, which included approval by the plumbing, electrical, and zoning departments, and on November 27, 1968, issued the requested permit to plaintiff. Thereafter, on December 3, 1968, the real-estate contract was consummated, and plaintiff delivered to Kolton the balance remaining on the $13,000 purchase price. The lot was then promptly excavated at a cost of $575, and plaintiff entered into a contract for the placement of concrete footings at a cost of $800.

The excavation work and installation of the concrete footings had been completed when, in January or early February, 1969, a city alderman requested that plaintiff stop construction on the subject property. Plaintiff complied with this request immediately. The alderman suggested to the Department of Buildings that the lot did not meet the minimum area requirements of the zoning ordinance for the district in question. For that stated reason, the Department mailed an official notification to plaintiff, dated February 18, 1969, to stop all work at the subject lot. On May 28, 1969, the Department revoked plaintiff's building permit because "six months elapsed," and plaintiff was ordered to barricade the construction and refill the excavation. Thereupon, plaintiff contracted for this work to be done and the city filed suit against plaintiff asking that plaintiff be fined in addition to being required to backfill the excavation. Judgment was entered on the prayer of the complaint and plaintiff complied therewith, paying $150 for the construction of barricades and $300 for the backfill.

Plaintiff's suit followed in which it alleged that in addition to the amounts of money set forth above, it had also paid the real estate taxes on the subject property as of the date it acquired title; and that, due to the inflation of the cost of labor and materials, its computation of the intended construction would cost, as of the time of the trial, from $2500 to $3000 more than it would have if plaintiff had been permitted to continue construction without any interference from the city.

Plaintiff's amended complaint was in two counts against both Kolton and the city, praying for: (1) rescission of the purchase contract with Kolton and refund of the $13,000 purchase price; or (2), in the alternative, a writ of mandamus directing the city to re-issue the building permit for construction of a single-family residence on the subject property and enjoining the city from interfering with plaintiff's right to build such a residence.

The trial court dismissed Count I of the amended complaint, but as to Count II it (1) found that the city was estopped from revoking the building permit and ordered it to rescind its previous revocation order; (2) held that the R-1 lot-size requirement was inapplicable for the reason that the subject property was a "lot of record" prior to enactment of the amendment to the zoning ordinance; and (3) enjoined the city from interfering with plaintiff's construction on the subject lot.

It is from this judgment that the city now appeals, raising two issues: (1) the subject property was not a "lot of record" within the meaning of sections 3.2 and 7.5(2) of the Chicago Zoning Ordinance, and, therefore, did not qualify for a residential building permit; and (2) the city is not estopped from revoking a building permit issued in violation of the zoning ordinance even though plaintiff, in reliance upon possession of the permit, has expended sums for purchase of the lot and has begun construction thereon.

Section 7.5-1 of the Chicago Zoning Ordinance provides that not less than 6250 square feet of lot area per dwelling unit is required in an R-1 zoning district. Section 7.5(2) of the same zoning ordinance, however, creates an exception to the 6250-square-foot requirement by providing that a one-family dwelling may be built in any residence district on a "lot of record on the effective date of this comprehensive amendment (1957) regardless of the size of the lot." The term, "lot of record," is defined in Section 3.2 of the Zoning Ordinance as follows:

"A "lot of record" is an area of land designated as a lot on a plat of subdivision recorded or registered, pursuant to statute, with the Recorder of Deeds of Cook County and the Ex-officio Examiner of Subdivisions of the City of Chicago."

The city argues that since there was no evidence that the 5000 square-foot parcel in question was designated as a lot on a plat of subdivision recorded or registered with the Recorder of Deeds of Cook County, there was a failure of proof that the lot qualifies as a "lot of record," and, therefore, the lot does not come within the exception to the minimum lot size requirement.

• 1 We agree with the city that the instant property is not a "lot of record," as it has not been designated as a lot on a recorded plat of subdivision. Looking to the Plat Act (Ill. Rev. Stat. 1969, ch. 109, par 1, et seq.), the statute alluded to in the definition of "lot of record," the owner of the single recorded lot from which the instant property was severed, was exempted from recording a new plat of subdivision on that account. However, the fact that a plat need not have been recorded does not mean that it could not have been so filed, thus rendering the subdivided lot a "lot of record" within the clear statutory definition of the Plat Act. There was no evidence of such filing. Since the property ...

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