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Kovacevic v. City of Chicago

OPINION FILED MARCH 31, 1977.

RADOSLAV KOVACEVIC ET AL., PETITIONERS-APPELLANTS,

v.

THE CITY OF CHICAGO ET AL., RESPONDENTS-APPELLEES.



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

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

This is an appeal from the judgment of the circuit court of Cook County. In the circuit court a petition for mandamus to compel the City of Chicago (hereinafter called "the City") to issue a building permit was filed by Radoslav Kovacevic, Vuk Zecevic and Albert Pellicore (hereinafter called "petitioners"). This petition was denied when the court sustained a motion for summary judgment filed by the City and denied a motion for summary judgment filed by the petitioners.

The issues presented for review are (1) whether the doctrine of equitable estoppel should be applied against the City; and (2) whether the doctrine of res judicata prohibits the relief sought by the petitioners. The pertinent facts follow.

In March 1974, petitioners purchased for $17,500 cash, corner lot 311, commonly known as 2600 W. Foster Avenue, Chicago, Illinois. They later applied for a permit to erect on that site a six-unit apartment building, submitting with their application the required plans, specifications and filing fees. This application was denied. Upon examination of its records, the Department of Buildings discovered that since 1957, lots 310 and 311 had become a "zoning lot" and the use of lot 311 had, by virtue thereof, been committed to parking for lot 310.

To understand this it is necessary to recall some of the history of these parcels as revealed by the record.

In 1957, Clara Korshak, then controlling lots 310 and 311, was granted a permit to erect a 10-unit apartment structure on lot 310 with off-street parking to be provided on lot 311. Under the terms of that permit, lot 311 was to be blacktopped, drained, lighted and have guard rails and driveways.

For some reason no "covenants" have been filed of record. Nor has a parking facility ever been established on lot 311. Nevertheless, the City issued its certificate of occupancy for the 10-unit apartment structure of lot 310 and the tenants moved in.

In 1958, after completion of the improvements on lot 310, the Korshaks (Clara Korshak and Sydney Korshak Construction Co.) applied for and were granted a permit to erect a 10-unit apartment building on lot 311. Although footings had been poured and forms had been set, the city department of buildings managed to stop all activity. This precipitated a mandamus suit, filed by the Korshaks in 1958, entitled People Ex. Rel. Exchange National Bank Trust 7261 and Clara Korshak v. City of Chicago, Circuit Court No. 58 C 4737 (hereinafter called "58 C 4737 suit"). There is no reference to this litigation in the tract books maintained by the recorder of deeds of Cook County.

In 1960, during the pendency of the 58 C 4737 suit, the Korshaks sold lot 311 to Kenneth and Gloria Fisch. Since then, lots 310 and 311 have been in separate ownership with long separate chains of title.

The new owners and later their grantees, amended the mandamus petition and asked for an injunction to free lot 311 of the parking commitment imposed by the 1957 permit issued to the Korshaks in connection with the construction on lot 310. Finally on October 14, 1969, Judge Nathan M. Cohen disposed of the litigation by the order which: "A) * * * adjudged and declared the Chicago Zoning Ordinance * * * is legal, valid, constitutional and enforceable as applied to the subject property herein * * * B) That judgment be and hereby is entered in favor of the defendant City of Chicago. C) That the costs of these proceedings be and the same are assessed against the plaintiff."

Petitioners filed their mandamus action on June 18, 1975, and the City's single defense was res judicata, which refers to the 58 C 4737 suit. The City's motion for summary judgment was granted. Petitioner's motion for summary judgment was denied, and this appeal was filed.

The petitioners contend the City should be estopped from denying petitioners' application for a building permit since the City's failure to record any notice of its interest in the property in question, even though 19 years have elapsed since the City's interest has arisen, would cause injustice to a bona fide purchaser who bought the property for value and without knowledge of the limited use.

• 1 Equitable estoppel may be defined as the effect of the conduct of a party whereby he is absolutely precluded from asserting rights to the prejudice of another, which might otherwise have existed. Lincoln Park Arms Building Corp. v. United States Fidelity & Guaranty Co. (1936), 287 Ill. App. 520, 5 N.E.2d 773.

On March 20, 1974, when petitioners purchased lot 311, there were no sources they could consult which would have informed them of the City's interest. There can be no charge that petitioners failed to seek knowledge before making their purchase. They examined the tract books in the county recorder's office as well as those of Chicago Title and Trust Company. They found no reference to the 58 C 4737 suit, on which the City relies. Nor did they find the covenants which would link lots 310 and 311 as the zoning ordinance mandated. They then went out to inspect the piece of ground next to the apartment building. It looked nothing ...


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