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La Salle National Bank v. Fitzgerald

NOVEMBER 19, 1973.

LA SALLE NATIONAL BANK, AS TRUSTEE, ET AL., PLAINTIFFS-APPELLEES,

v.

JOSEPH F. FITZGERALD, COMMISSIONER OF DEPARTMENT OF BUILDINGS OF THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

In this rather unusual proceeding, the Commissioner of the Department of Buildings of the city of Chicago (Commissioner) has appealed to this court from an order holding him in contempt for his allegedly wilful refusal to comply with a writ of mandamus served upon him requiring him to issue a building permit. The litigation was originally filed by La Salle National Bank, as Trustee under Trust No. 37223, the Edgewater Company, an Illinois limited partnership and Kenroy, Inc., a corporation, (plaintiffs). Two issues are raised which require separate factual statements and determinations:

1. After plaintiffs had received approval of a Planned Development and made application to the Commissioner for a building permit, what was the legal effect upon the rights of the parties of a subsequent condemnation of a portion of the property by the State of Illinois for public use?

2. Whether the result reached in prior litigation was res judicata or created an estoppel by verdict which governed the rights of the parties here.

The property involved consists of a tract of approximately 90 acres owned by plaintiffs located on the north side of the city of Chicago. On March 14, 1969, the City Council of Chicago rezoned the property, previously classified under R-4 zoning permitting general residence use, as a Planned Development. The entire area was divided into seven portions of varying size devoted to land use as follows:

A. Townhouses and elevator apartments including related uses;

B. Townhouses and elevator apartments including related uses;

C. Townhouses and elevator apartments including related uses;

D. Business and shopping center;

E. Business offices and convenience shopping;

F. Public uses such as park and elementary school;

G. Private recreation including club buildings and facilities.

In addition, the site was arranged for necessary stores and private open spaces. The total area was indicated as 899 acres. The Plan provided for 3870 dwelling units which would average about 43 units per acre. There was also provision for parking and off-street loading.

This Planned Development was approved by all necessary agencies of the city of Chicago but the application for a building permit made by plaintiffs was not approved by the Commissioner. Accordingly, plaintiffs filed a petition for mandamus in the circuit court. On December 8, 1969, the court directed issuance of a writ requiring the Commissioner to process the application and then to issue permits. Other delays intervened and no permit was issued. Plaintiffs were told that the permit was withheld because the State of Illinois contemplated acquisition of the site by eminent domain. On December 29, 1969, plaintiffs filed a petition for a rule upon the Commissioner to show cause why he should not ...


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