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O'laughlin v. City of Chicago

MAY 6, 1975.

MICHAEL O'LAUGHLIN, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 4, 1975.

Plaintiff, Michael O'Laughlin, purchased (in April, 1973) a 50 x 154 *fn1 parcel of land in the City of Chicago, located in the R-3 general residence district under the city zoning ordinance. At the time of purchase the lot had only one dwelling and garage which plaintiff razed in order to construct two two-story brick duplexes. The defendants, City of Chicago by its building commissioner, issued two building permits for this construction, but revoked them 11 days later after discovering the lots did not meet the minimum lot size requirements set out in the Chicago Zoning Ordinance. *fn2 Plaintiff sought and obtained an injunction in the chancery division of the circuit court of Cook County to enjoin and restrain the defendants from withholding and revoking the building permits, to restore said permits, and authorize the plaintiff to commence construction immediately. Defendants' attempt to stay the order in the trial court was denied. This court also denied a motion to stay the order, but without prejudice to the rights of the defendants upon determination of this appeal.

Plaintiff has filed no brief in this court. Defendants thereupon filed a motion requesting this court to reverse the judgment of the circuit court on the merits notwithstanding the failure of plaintiff to file a brief. There is an abundance of authority, for which citation is unnecessary, to authorize this court to summarily reverse for the failure of plaintiff to comply with Supreme Court Rule 341 (Ill. Rev. Stat. 1973, ch. 110A, par. 341) in the filing of the appellee's brief. However, in view of the issues raised by the judgment of the trial court, we deem it essential to review the matter on its merits. Pursuant to Supreme Court Rule 345 (Ill. Rev. Stat. 1973, ch. 110A, par. 345), the Edison Park Community Council filed an amicus curiae brief.

Plaintiff has filed *fn3 a motion to dismiss this appeal for mootness since the property no longer belongs to Michael O'Laughlin. In said motion to dismiss, by affidavit of plaintiff's attorney, it was alleged that plaintiff sold one parcel, lot 28, on December 1, 1973, and the other parcel, lot 27, was sold on May 3, 1974.

The issues raised by defendant's appeal are: (1) whether the issuance of building permits for two two-story duplex residences on two adjacent 25-foot lots of record, which previously housed a single residential building and garage, violated the minimum lot area requirements of the Chicago Zoning Ordinance; (2) whether the City of Chicago is estopped from revoking the permits if they were erroneously issued; and (3) whether the plaintiff's action properly seeks equitable relief or is the relief required in the nature of mandamus.

The pertinent facts follow. About April 12, 1973, *fn4 plaintiff purchased real property (tract) made up of two lots of record located at 6753-55 Oshkosh Street. The tract contained one two-story dwelling and a garage. These buildings were entirely located on lot 27, while lot 28 appeared to be a yard area for the residence. The tract, at the date of purchase and at all times since then, has been zoned R-3 general residence. *fn5 The sales contract for this tract originally described the tract as one lot, 50 x 160; however, it was altered at plaintiff's request to show two 25-foot lots of record. This alteration was initialed by plaintiff and seller. Both lots were conveyed in a single deed.

On April 9, 1973, a wrecking permit was issued to the plaintiff for the destruction of the frame house situated on lot 27. The house was razed; and on April 19, 1973, two building permits were issued, each authorizing the construction of a two-story duplex — one to be constructed on lot 27 and the other on lot 28. Plaintiff began construction of these buildings on Thursday, April 19. Foundations were poured and brick work commenced by the time the city revoked the permits "for cause" 6 working (11 calendar) days later. *fn6

The R-3 general residence district requires 2,500 square feet of lot area per dwelling unit (section 7.5-3); however, if unimproved, a two-family dwelling may be constructed if the gross lot area is at least 3,750 square feet (section 7.5(2)). Plaintiff's lots are at least 3,850 square feet each. After receiving complaints from the city alderman and president of the Edison Park Community Council, the building commissioner determined the lots were a single improved zoning lot and not within the exception. The building permits were revoked on May 1, 1973.

On May 3, 1973, plaintiff filed suit in the circuit court of Cook County seeking a temporary and permanent injunction to enjoin the city from withholding and revoking the building permits. Defendants, in their answer, alleged the matter was not a proper one for the chancery division, that plaintiff had no clear legal right to the issuance of a permit, and that the relief requested was in the nature of mandamus.

At the hearing on June 11, 1973, Michael O'Laughlin was the only witness called by plaintiff. Defendants called several witnesses to testify regarding the classification of the property as a single improved zoning lot and its failure to satisfy the zoning requirements, as well as the detrimental effect such buildings would have on the area. Defendants urged that plaintiff was intentionally trying to circumvent the zoning ordinance by constructing two duplex residences where only one was allowed by the municipal code. Defendants claimed the tract was a single improved zoning lot and as such could not be divided without meeting the bulk regulations for an R-3 district as specified in section 5.7(2) of the zoning ordinance. The trial court entered its order on July 5, 1973, requiring defendants to restore the building permits and other papers necessary to permit plaintiff to resume construction. Defendants sought to stay this order in the trial court, but were unsuccessful. A similar motion was denied by this court without prejudice to the rights of the defendants upon determination of this appeal.

As previously noted, according to papers filed in this court on February 20, 1975, since the time the injunction issued and defendants' notice of appeal was filed, plaintiff allegedly has conveyed both properties to third parties. The duplex on lot 28 was conveyed to Joseph and Dorothy Piechuta on December 1, 1973, and lot 27 with its duplex was conveyed to Delio and Rosalie Napoli on May 3, 1974. We were informed at oral argument that construction proceeded after July 5, 1973, although we do not know the exact status of that development. The defendants filed with this court on February 24, 1975, a response to plaintiff's motion to dismiss filed February 20, 1975. The defendants filed a notice of lis pendens *fn7 (as to the subject property and zoning dispute) with the office of the recorder of deeds of Cook County, Illinois, on September 28, 1973. *fn8

I.

The Municipal Code of Chicago. Illinois (1973), chapter 194A, section 7.5-3, requires that in a R-3 ...


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