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City of Geneva v. Nelsen

OPINION FILED MAY 6, 1976.

THE CITY OF GENEVA, PLAINTIFF-APPELLEE,

v.

BRADLEY NELS NELSEN, D/B/A AVAILABLE REAL ESTATE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. PAUL SCHNAKE, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiff city sought to enjoin the operation of a real estate business in defendant's property which is in a multifamily zoning district of Geneva. The defendant property owner filed a counterclaim alleging that the zoning ordinance was unconstitutional as applied to his property; and also asserted the affirmative defense of estoppel. The trial court dismissed defendant's counterclaim prior to trial and ordered the injunction requested by the city to issue. The defendant appeals.

The subject property is in the "Multi-Family Dwelling" zoning district under the 1969 city zoning code. Prior to 1970 the property was used as a multifamily dwelling. Some time in 1970 it was purchased by one Joseph Crandall who converted the main floor to an accounting office after securing a building permit which the city claims was issued under a misunderstanding as to the location of the property. It was so used from 1970 to March of 1973. On March 7, 1973, the defendant Bradley N. Nelsen purchased the property and on March 19, 1973, began operating a real estate business in the building. It was stipulated that defendant began construction work on the premises after March 19, 1973, but before issuance of a building permit on April 25, 1973.

In March or April of 1973, Wayne Heninger, the Comptroller of the city who was responsible for the Department of Building Commissioners advised defendant that the operation of the real estate office violated the zoning regulations and that a special use permit and a building permit were required. Heninger testified that defendant agreed to apply for the permits.

Heninger testified that the next time he saw Nelsen was at the June 11 Plan Commission meeting. Prior to that time, however, he had sent a letter to Nelsen dated May 15, 1973, in which he advised defendant that the neighbors had complained concerning the lighting of the building and that, in his opinion also, the lighting was excessive. The letter requested that defendant limit the lighting to a certain maximum "in compliance with the intent of the ordinance." The witness said he next saw Nelsen at the Plan Commission meeting on June 11 in connection with the application for a special use variation which defendant had applied for on April 26, 1973. He stated that the defendant said that he would withdraw his petition when it appeared that there were objectors present, and did so. He testified that there had been no substantive discussions with defendant concerning rezoning at that time.

Heninger also stated that a building permit had been issued on September 19, 1973, to replace the porch, patio and sidewalk which he understood was in a dangerous condition and needed repair. The permit was issued for this reason and because in the city's view it did not expand the use that was already being made of the premises. The permit in evidence stated an estimated cost of $2,500. Mr. Heninger stated that a building permit had been issued to the prior owner, Mr. Crandall, on a request for an accounting office use which appeared to be for a building on the northeast corner of Ford and North First Streets, in a commercial zone, but which turned out to be for the subject property. He therefore personally considered that the use was nonconforming.

John E. Davis, the building commissioner and zoning enforcement officer of the City of Geneva, testified that he had first issued a building permit to the defendant Nelsen dated April 25, 1973, for work described as "interior remodeling" which included electrical work for a total estimated cost of $4,000. He said that at the time he issued the permit he knew that defendant was using the premises for an office, downstairs and partly upstairs, and for living quarters upstairs. He said he suggested to Nelsen that there was a possibility of his not having a special use required under the multifamily zoning and that he should go before the zoning board of appeals and request a special use. He also testifed that he issued the second permit dated September 19, 1973, after a discussion with Nelsen as to a porch floor that was badly sagging and in need of repair. He also discussed the possibility of putting a new sidewalk from the porch out to the public sidewalk and also a small patio at the southwest corner of the building. At the time he issued the second permit he was aware that the special use permit had not been obtained. He said he did it because the things that were requested could have been done in a multifamily classification. He was also present at the zoning hearing on June 11 and said that he had no substantive discussions with defendant concerning rezoning at that time.

This was also corroborated by the chairman of the Plan Commission, James F. Keiser, who testified that the discussions at the zoning hearing centered on defendant's inability to get along with his neighbors and on his desire to withdraw the petition.

Defendant testified that he made inquiries of Davis, the building and zoning commissioner, before purchasing the property and was told that he could use the property for a real estate business since it conformed to the use by the previous owner for an accounting office. He said that the application for a special use variation followed a discussion that if the building were destroyed he could be deprived of the "nonconforming" use. He testified that he made the same inquiry of Comptroller Heninger and was given the same answers. He stated that after moving he started some remodeling before the issuance of the first building permit. He testified that he had expended approximately $24,000 for work on the premises, which included floor coverings, carpet work and tile. He did not testify as to the relative amounts of expenditures prior to issuance of building permits.

Defendant testified that he withdrew the petition for a variation at the zoning meeting because he had been assured by Heninger, Davis and another official that it would be unnecessary.

Defendant also testified that the city had issued him a permit to erect a sign on the premises. While this permit does not appear as an exhibit the city has conceded that it was issued on some date in April.

Defendant first contends that the City of Geneva has acquiesced in and ratified the conduct of the defendant in his business use of the property and is therefore estopped from enforcing its zoning ordinance against him. Defendant relies upon the issuance of the building permits, the issuance of a sign permit, and the substantial expenditures he claims to have made for remodeling of the premises.

The city responds that the defendant has not made a case for application of the doctrine of estoppel because he has failed to show either that he acted in good faith, that he relied on affirmative municipal action or that he made a substantial change of position in reliance on the acts of the city.

In Gregory v. City of Wheaton, 23 Ill.2d 402, 407-08 (1961), the court states the general doctrine of equitable estoppel ...


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