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Kramer v. City of Chicago

OPINION FILED MARCH 23, 1978.

ARNOLD KRAMER, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

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

Plaintiff, Arnold Kramer, contract purchaser of a lot located on north Sheridan Road in the city of Chicago, filed a petition for mandamus against defendant, the city of Chicago and Joseph F. Fitzgerald, commissioner of buildings of the city of Chicago, seeking the issuance of a writ of mandamus commanding defendant Fitzgerald to approve certain restaurant plans submitted to him, which allegedly complied with the city's zoning ordinances, and to issue a building permit for the construction of said building on the north Sheridan lot in accordance with such plans. After several proceedings, the petition was dismissed. Plaintiff appeals. We affirm.

This case is a sequel to American Oil Corp. v. City of Chicago (1975), 29 Ill. App.3d 988, 331 N.E.2d 67. The same parcel of property, viz., 7500 North Sheridan Road, Chicago, Illinois, was the subject property in American Oil and is the subject property in the instant case. In 1935, the American Oil Corporation purchased the south half of the Sheridan parcel, zoned B4-3 Restricted Service District, and erected a gasoline station which was operational until 1970. The north half of the property, owned by the estate of Dorothy Hammerstein, contained a building used for commercial and residential purposes until it was razed in 1970. In 1969, relying on the B4-3 zoning classification, American Oil entered into a 10-year lease with the Hammerstein estate for the north half of the parcel, with three 5-year extensions and an option to buy at $250,000. Driveway permits were issued after American Oil assured 49th Ward alderman Paul Wigoda that the new gas station on the north half would be properly designed and landscaped, and that another station would not be built on the south half. Also, after these assurances were made, permit applications for the demolition of both the building on the north half and the gas station on the south half and for the erection of a new gas station on the north half were issued. The new station was constructed thereafter and opened for business in late 1970.

American Oil next advertised the sale of the vacant south half, noting the B4-3 classification. A contract was entered into with Arnold Kramer in November 1971 for the purchase of the property, subject to Kramer's consummation of a binding lease with Denny's Restaurant. Kramer checked the plat book which showed a B4-3 classification. The Denny's lease did not materialize, but Kramer was able to secure International House of Pancakes as a tenant and a new contract was executed.

During these negotiations, and unbeknown to Kramer or American Oil, the Chicago City Council rezoned the subject property to R-4 General Residence District on July 28, 1971. The parties first learned of the zoning reclassification in 1973 when International House of Pancakes applied for a building permit. Legal notice of the public hearing before the Committee on Building and Zoning was published in the Chicago Today newspaper on June 11, 1971, listing the streets which bounded the area in question, but failing to recite the names of the property owners of the address of the property. Actual notice of the hearing was given to the property owners within 150 feet in each direction of the property, but no such actual notice was delivered to American Oil or the Hammerstein estate, the owners of the subject parcel. Alderman Wigoda was the only witness at the June 29 rezoning hearing. He told the committee that the property was vacant and had been vacated by Standard Oil, but he failed to mention the existence of the recently built gas station. The committee adjourned and no other public hearings were held.

Litigation ensued and culminated on June 13, 1975, when the Illinois Appellate Court rendered its opinion in American Oil reversing the trial court and holding that the plaintiffs' constitutional right to due process of law was violated, and that the ordinance rezoning the subject property was invalid and void. The property reverted to its original zoning classification of B4-3. While the American Oil case was pending, the Chicago City Council enacted the Lake Michigan and Chicago Lakefront Protection Ordinance (Chicago, Ill., Mun. Code, ch. 194B, § 1, et seq., adopted October 24, 1973) (hereinafter the Lakefront Protection Ordinance or the Ordinance). Also, in the meantime, International House of Pancakes, because of the rising cost of construction, was no longer prepared to go forward on the lease.

On March 22, 1976, Kramer was able to obtain a lease with Chart House, Inc., the franchisor of Burger King. About 2 months later, Kramer was able to procure a mortgage commitment from Telegraph Savings and Loan Association in the amount of $285,000 for construction of the family style Burger King restaurant, paying a commitment fee of $5,700. Next, plaintiff filed another application for a permit with the Chicago Department of Buildings which was accompanied by drawings, plans, and specifications, but a permit was never issued.

On July 22, 1976, a hearing was held before the Chicago Plan Commission regarding plaintiff's permit application to determine whether issuance of the permit would conflict with the Lakefront Protection Ordinance. The commission voted for disapproval. On August 31, 1976, plaintiff filed his petition for mandamus. The plan commission submitted its written resolution to the plaintiff disapproving the permit application on September 15, 1976, in open court. Two days later, the trial court held a hearing on Kramer's petition, and remanded the matter of Kramer's application to the Chicago Plan Commission for immediate consideration and determination, and presumably to prepare findings of fact.

Subsequently, a hearing was held before the Chicago Plan Commission, at which time Commissioner Lewis W. Hill introduced as new evidence his report which included his technical findings and a recommendation seeking denial of Kramer's application, due to the fact that the proposed development was not in conformity with the intent of policies 8, 10, 11, and 14 of the Lakefront Plan of Chicago (Chicago, Ill., An Ordinance Adopting the Policies Contained in the Lakefront Plan of Chicago, Journal of City Council Proceedings, at 6486-87 (Oct. 24, 1973)), and was not in conformity with purposes 1, 7, and 10 of the Lakefront Protection Ordinance (Chicago, Ill., Mun. Code 1973, ch. 194B, § 1, art. III, par. 194B-3(a), (g), and (j)), and because the proposed development was inconsistent with article I of the Ordinance. The application was disapproved at the hearing.

On November 4, 1976, the trial court, after examining the pleadings and having heard testimony of witnesses and arguments of counsel, resolved the issues in favor of plaintiff and issued a peremptory writ of mandamus, commanding defendants to issue a building permit in accordance with the plans and specifications filed with Mr. Kramer's application of May 19, 1976. On November 22, 1976, upon defendants' motion the trial court vacated its November 4 order and dismissed plaintiff's petition for mandamus because Mr. Kramer failed to establish that he had a clear right to the issuance of the building permit and because he had failed to allege or prove that his plans were approved by the Chicago Plan Commission. The court stated that an action for mandamus was not the appropriate remedy, but, rather, a complaint for declaratory judgment challenging the constitutionality of the Lakefront Protection Ordinance as applied to his property would be appropriate. This appeal followed.

The issues presented for review are (1) whether the plaintiff established a clear legal right to the relief requested; (2) whether the Lakefront Protection Ordinance was properly applied to plaintiff's property; (3) whether the Lakefront Protection Ordinance is unconstitutionally vague, indefinite, and incomplete, and effects an unconstitutional delegation of authority; and (4) whether the Chicago Plan Commission's failure to originally file findings of fact as required by the Ordinance constitutes a violation of plaintiff's constitutional right to due process of law.

Regarding the Lakefront Protection Ordinance, plaintiff's arguments are multifold, viz., that the Ordinance does not pertain to plaintiff's right to a permit because plaintiff was previously prevented from obtaining a building permit due to litigation involving a void rezoning classification; that the Ordinance is unconstitutionally vague, indefinite, and incomplete, as men of ordinary intelligence can only speculate as to the meaning of the words "substantial conflict" employed by the Ordinance, and because the 14 policies referred to in the Ordinance are not enumerated therein nor is reference made to where such policies may be found; that the Ordinance effects an unconstitutional delegation of legislative authority to the Chicago Plan Commission; and that the Chicago Plan Commission's failure to file findings of fact as required by the Lakefront Protection Ordinance was a violation of plaintiff's constitutional right to due process of law. Finally, plaintiff notes that issues of statutory constitutionality are properly raised in a mandamus proceeding.

Defendants contend that the trial court properly refused to issue a writ of mandamus compelling the city to issue a building permit where plaintiff failed to show a clear legal right to the permit and where such issuance would be in violation of municipal ordinances. Additionally, defendants argue (1) that the Lakefront Protection Ordinance is valid as applied to plaintiff's property; (2) that the Ordinance is not vague or invalid, and does not constitute an unlawful delegation of legislative authority to the Chicago Plan commission; and (3) ...


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