APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, JR., Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the trial court (1) granting a writ of mandamus directing the defendant City of Rockford to remove a stop work order which had been posted on plaintiff's real estate; (2) ordering the city to allow plaintiff to complete construction of a condominium building on said real estate in accordance with a certain building permit issued on March 23, 1973; and (3) declaring that plaintiff had become vested with a property right in both a former zoning classification allowing development of a multifamily dwelling and under the aforementioned building permit. The plaintiff is a land trust whose principal beneficiaries are Wilmer Wolfson and Gary Keye. The defendant is, of course, the City of Rockford, a municipal corporation. The trial court also allowed several persons who own single-family residences in the area immediately surrounding plaintiff's real property to intervene, and these people will hereinafter be referred to as the intervenors. Both the city and the intervenors have appealed from the aforementioned order of the trial court.
The real estate in question is a vacant tract of land presently consisting of approximately 3.2 acres located at 2601 Montedera Drive in the City of Rockford. This is also commonly known as the Koplos tract. It, and an adjoining piece of property known as the Doyle tract, are the only large undeveloped parcels of land in an area consisting predominently of single-family residences. Between 1967 and 1969 Mr. Wolfson conducted various negotiations with the owners of the Koplos tract and eventually they reached an agreement whereby Wolfson offered $65,000 for the tract contingent upon the rezoning of it to allow development of his proposed apartments, townhouses or condominiums. On March 17, 1969, the major portion of the Koplos tract was rezoned from single-family residential to "C" residential, which allowed multifamily development. Single-family residential zoning was retained on one portion of the tract which fronted on Cerro Vista Drive, as a buffer zone between the existing single-family residences and the multifamily portion, and the buffer zone is not involved in this suit. The tract was purchased for a total price, including real estate broker's commission, of $68,625, and apparently conveyed into a land trust in June 1969. Thereafter the State of Illinois condemned approximately one acre of plaintiff's property for purposes of highway improvements. Plaintiff conveyed this property to the State on July 22, 1970, and was paid $18,700 therefor. The road for which the property was taken was opened in November 1971.
In February 1971 the City of Rockford Zoning Commission was created with the designated purpose of preparing a comprehensive new zoning ordinance for the city. The second draft of the proposed zoning ordinance was made available to the general public in August 1972. On September 25, 1972, Wilmer Wolfson, as beneficiary/agent of the trust, wrote the chairman of the City of Rockford Zoning Commission asking the city to reconsider the portion of the proposed zoning ordinance which would change the zoning on the subject property back to single-family residential. In this letter Mr. Wolfson claimed that the trust had invested a total of $90,000 in the proposed project, including the price of the land itself and other sums representing interest charges and architectural fees. Wolfson attended one public hearing at which the proposed zoning change was discussed and an architect, Bruce Meltmar, appeared and testified on behalf of the trust at a subsequent public hearing. On December 18, 1972, the chairman of the Zoning Commission replied to Mr. Wolfson's letter notifying him the commission unanimously recommended denying his request to retain multifamily zoning for the subject property.
On December 22, 1972, Wilmer Wolfson applied for and received a temporary building permit to construct a 32-unit condominium on the subject property. This permit stated on the face of it that it was good for 90 days and that it was issued in the place of a regular building permit when plans were not complete. On March 22, 1973, or March 23, 1973, Mr. Wolfson applied for and received a building permit to construct the aforementioned multifamily structure. Paragraph 102.16 of the National Building Code as amended by the City of Rockford, and in effect at the time the permit was issued, provided that every permit issued under the Code "shall expire by limitation and become null and void, if the building or work authorized by such permit is not commenced within ninety days from the date of such permit, or if the building or work authorized by such permit is suspended or abandoned at any time after the work is commenced for a period of ninety days." Mr. Wolfson further testified that he was aware of the 90-day limitation. On April 16, 1973, the City of Rockford adopted a new comprehensive zoning ordinance which became effective on May 15, 1973. This ordinance changed the zoning of plaintiff's property from multifamily to single-family residential. Section 401.3, appearing in the general provisions of this ordinance, provides:
"Where a building permit for a building or structure has been issued in accordance with law prior to the effective date of this Ordinance, and provided that construction is begun within ninety (90) days of such effective date and diligently pursued to completion, said building or structure may be completed in accordance with the approved plans on the basis of which the Building Permit has been issued, and further, may upon completion, be occupied under a Certificate of Occupancy by the use for which originally originated subject thereafter to the provisions of Article V, `Nonconforming Uses and Structures.'"
Section 501.4 appearing in article V similarly requires that construction be started within 90 days and diligently prosecuted to completion to be a lawfully established nonconforming use.
Sometime during April 1973 the Gregory Anderson Company, at the request of plaintiff, demolished several buildings which were on the subject property, removed some trees and moved some dirt around. At that point several of the neighboring property owners, including some of the intervenors in this suit, filed suit against plaintiff to stop further construction. Plaintiff was restrained from any further work upon its property from April 16, 1973, until May 2, 1973, when the order was dissolved and the suit by the neighbors voluntarily dismissed. On June 26, 1973, William P. Anderson, the building official of the City of Rockford, notified Mr. Wolfson that the building permit issued in March of 1973 had expired because of lack of commencement of work within 90 days, as specified in section 102.16 of the applicable building code. The letter further advised Mr. Wolfson that it would be necessary to obtain proper permits before the work might be commenced. No effort was made at that time to reapply for a building permit.
On or about September 6, 1974, R.K. Johnson staked out the proposed building of plaintiff on the subject site. Sometime in either late December 1974 or early January 1975, further work began upon the subject property. Dirt was moved around and some trenches were dug. On January 21, 1975, an employee of the building department of the City of Rockford placed a stop work order on the premises. Thereafter, representatives of plaintiff contacted city officials in an unsuccessful attempt to get them to voluntarily remove the stop work order.
Plaintiff filed its petition for a writ of mandamus to compel the city to remove the stop work order on February 26, 1975. On March 13, 1975, plaintiff filed a supplementary complaint for declaratory judgment in three counts. In count I plaintiff sought to establish that it had vested rights in the previous zoning classification and building permit by virtue of substantial expenditures in good faith reliance thereon. In count II plaintiff attacked the entire comprehensive zoning ordinance of the City of Rockford as being improperly enacted. In count III plaintiff sought to establish that the zoning ordinance was unconstitutional as an ex post facto law or law impairing the security of a mortgage upon plaintiff's property. The neighbors were allowed to intervene and eventually a hearing was held upon plaintiff's petition and supplementary complaint. The trial court entered the order granting the writ of mandamus as prayed and declaring that plaintiff had the aforementioned vested rights. The trial court found against plaintiff as to counts II and III of its supplementary complaint and plaintiff has not appealed therefrom.
The city and the intervenors have filed separate briefs in this court and raised numerous issues going to what we consider both the procedural and substantive aspects of this litigation. We will deal first with the predominantly procedural issues raised.
• 1, 2 Both the city and the intervenors argue that plaintiff's cause of action should be dismissed for failure to exhaust the available administrative remedies. We note initially that the rule requiring exhaustion is not jurisdictional in nature and is merely a matter of judicial policy, aimed at providing the local officials an opportunity to correct any errors and settle any disputes locally before there is judicial intervention. (County of Lake v. MacNeal (1962), 24 Ill.2d 253, 259, 181 N.E.2d 85, 89; Bass v. City of Joliet (1973), 10 Ill. App.3d 860, 865, 295 N.E.2d 53, 56.) We note also that both the city and the intervenors brought the issue concerning lack of exhaustion of remedies to the attention of the trial court in their pleadings and arguments and that, by ruling in favor of the plaintiff, the trial court decided implicitly, if not explicitly, that the claimed lack of exhaustion of administrative remedies was not a bar to plaintiff's suit. In the trial court all parties, including the judge, seemed to agree that the main issue involved in this litigation is whether or not plaintiff has a vested right to continue its development of the subject parcel by virtue of its substantial reliance in good faith upon the previous zoning and building permits. These issues of fact seem particularly appropriate for resolution by the courts>. Further, we must note that neither the city nor the intervenors have supplied us with the entire text of the relevant city code and ordinance provisions creating the boards of review to which they claim plaintiff should have presented its arguments before resorting to the courts>. Therefore, we must admit that we do not even know whether these bodies could grant the relief sought by plaintiff on the basis of substantial expenditures and changes in position creating vested rights. The record does reveal, however, that as early as September 1972, before the zoning ordinance was amended, plaintiff presented claims concerning substantial expenditures in an effort to deter the rezoning itself. Further, plaintiff conversed with several city officials and representatives following the posting of the stop work order in an effort to have it removed. The substance of plaintiff's vested rights claim was also presented at this time. In view of these circumstances we cannot say that the trial court erred in allowing plaintiff to proceed with this action.
• 3 On this appeal both the city and the intervenors have argued that plaintiff's claim is barred by laches. They reason that plaintiff's cause of action accrued when it was notified in June 1973 that the building permit had lapsed and not in January 1975 when the stop work order was posted. From there the city and intervenors argue that a delay of 1 year and 8 months in filing suit was unreasonable. We need not, however, consider the merits of this contention. It is fundamental that a party may not urge for the first time on appeal, and for the purposes of overturning the decision below, an argument or theory which was not presented to the trial court. This rule has been applied to the defense of laches. (Longenecker v. Hardin (1970), 130 Ill. App.2d 468, 472, 264 N.E.2d 878, 880; Scoa Industries, Inc. v. Howlett (1975), 33 Ill. App.3d 90, 99, 337 N.E.2d 305, 313.) Inasmuch as we are unable to find any evidence that the city or intervenors argued that plaintiff was guilty of laches in the proceedings before the trial court, we will not consider that argument on this appeal.
• 4 In their brief intervenors also argue that mandamus was improperly granted because necessary parties were not joined as defendants in this action. Plaintiff instituted this action solely against the City of Rockford and intervenors argue that both the building official and the zoning official of the city should have been named as parties defendant. Our review of the cases in Illinois indicates that it has been standard practice in the past to join as a party defendant the appropriate municipal official whose acts are sought to be compelled when seeking a writ of mandamus. We have, however, discovered some cases in which both the municipal official and the municipality itself have been joined. (See, e.g., Cos Corp. v. City of Evanston (1963), 27 Ill.2d 570, 190 N.E.2d 364.) We have not, however, found any Illinois cases which decide the question of whether or not the particular official charged with the duty involved is a necessary party in a case such as this. The only case which we have found which directly discusses the issue is City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 64 N.E.2d 450. There the supreme court discussed ...