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Solomon v. City of Evanston

JUNE 3, 1975.

GARY SOLOMON, PETITIONER-APPELLEE,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Petitioner, Gary Solomon, brought an action in the circuit court of Cook County seeking the issuance of a writ of mandamus to compel defendants, City of Evanston and Patrick Bridges, Director of Inspections and Permits, City of Evanston, to issue to petitioner a certificate of compliance (a prerequisite under an Evanston ordinance for construction of a nursing home) and, upon full compliance with all ordinances and regulations, a building permit to construct a nursing home. After a bench trial, the trial court issued the writ. Defendants appeal.

Although defendants raise several issues on appeal, it is only necessary to consider two: (1) whether petitioner has standing to bring an action for mandamus, and (2) whether petitioner has shown clear legal right to a writ of mandamus.

On February 7, 1973, petitioner entered into real estate contracts to purchase three contiguous lots in the city of Evanston. Each of the three lots was then zoned R6. At that time, nursing homes were permitted uses in R6 districts. Each contract to purchase was contingent on petitioner's ability to acquire a building permit from the City of Evanston to construct a nursing home on the subject property. Although earnest money was deposited in escrow, petitioner incurred no other expenses in acquiring the contracts. The contracts did, however, include a provision that petitioner would pay the owners of the property a monthly penalty if a building permit was not acquired within 90 days. At the time of trial, petitioner had paid approximately $1900 in penalties. The contracts to purchase were to expire on September 1, 1973. However, on March 19, 1973, an agreement was signed by petitioner and some of the owners to extend the contracts until termination of the lawsuit *fn1 regarding issuance of the permit. As of this date, petitioner's only interest in the subject property is still the contracts to purchase. The actual owners of the property did not join with petitioner in bringing this suit.

On March 5, 1973, the Evanston City Council commenced consideration of amendments to the Evanston Zoning Ordinance to remove nursing homes from the list of permitted uses in R6 districts and to reduce the R6 zoning of the subject area to a more restricted classification. On that date, it was also moved and carried "that it be the sense of the Council that no building permits be issued for any new structures other than single family residences" in the subject area until the above amendments were acted on.

On March 7, 1973, defendant Bridges received from his immediate superior a memorandum regarding the March 5 action of the city council. In the memorandum, defendant Bridges was directed to issue no building permits except for single-family dwellings in the subject area.

On March 15, 1973, notice was published that on April 5, 1973, a hearing would be conducted on whether the subject area should be rezoned to a more restricted classification. Pursuant to that notice, hearings were held on April 5 and 18, 1973.

On March 20, 1973, petitioner submitted certain plans for his nursing home to defendant Bridges pursuant to section 25-38 of Evanston Ordinance 89-0-70, and requested a certificate of compliance with the zoning ordinance. Section 25-38 of Evanston Ordinance 89-0-70 regulates the construction of new nursing homes in Evanston. In relevant part, section 25-38 provides:

"1. Any person acting individually or jointly with other persons who propose to build, own, establish or operate a nursing home, home for the aged, or sheltered care home, shall submit a pre-application form as furnished by the Department * * *.

In the case of new construction or the conversion of existing structures, said applicant shall also submit preliminary plans and specifications for the proposed home to the Department for approval.

2. In addition to the above, the applicant shall also submit a certificate from the Department of Inspections and Permits stating that the building or structure to be used as a nursing home, home for the aged, or sheltered care home, complies with the requirements of the Building Code and the Zoning Ordinance of the City of Evanston, and that said building is located within an area in which a nursing home, sheltered care home, or home for the aged is permitted in accordance with the present or hereafter adopted zoning ordinance."

It is admitted by petitioner that the plans submitted were insufficient for defendants to determine whether the proposed nursing home complied with the Evanston Building Code. It is also admitted that the plans did not provide for a loading dock and therefore, did indicate a violation of the Evanston Zoning Ordinance. No action was taken by defendant Bridges on this initial request.

On April 6, 1973, petitioner again inquired regarding his certificate of compliance.

On April 12, 1973, notice was published that a hearing would be conducted on May 3, 1973, on whether to remove nursing homes from the list of permitted uses in R6 districts. On May 3, 1973, that hearing was held.

On April 17, 1973, defendant Bridges responded to petitioner's request for a certificate of compliance. Bridges did not mention the lack of Building Code specifications, nor did he mention ...


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