APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, University Square, Ltd. (University), brought an action in mandamus against the City of Chicago and Joseph F. Fitzgerald, Commissioner of Buildings (defendants) seeking the issuance of building permits. The circuit court of Cook County ordered that a writ of mandamus issue. On the 31st day after this order, Jerimiah Joyce filed a petition to intervene and motion to reconsider. Joyce subsequently filed a motion to vacate pursuant to section 72 of the Civil Practice Act. The circuit court allowed intervention, but denied on the merits Joyce's motions to reconsider and vacate. Joyce appeals the denial of these motions. Plaintiff cross-appeals from the order allowing intervention. Defendants did not appeal and are not parties to this appeal.
The controversy concerns the refusal of the Building Commissioner of the City of Chicago to process plaintiff's application for a building permit. University thereupon filed a petition for writ of mandamus. Its two-count first amended petition alleges that University's application fully complies with the requirements of all applicable laws and ordinances. It further alleges that defendants are under a duty to process plaintiff's application without delay and issue a building permit.
University was the purchaser of certain property described in the petition and located in Chicago, Illinois. On or about February 8, 1978, University submitted applications regarding permits to erect three of 25 three-story apartment structures. Each structure was to contain 18 dwelling units. The property is zoned as a Residential Planned Development. Development plans submitted by University were approved by the department of development and planning of the City of Chicago on November 9, 1977. University's proposal conformed to the Plan of Development which had been approved by the Chicago City Council on November 20, 1972. In count two plaintiff further alleged it had expended substantial sums in preparation for construction in reliance upon timely issuance of a building permit.
On May 15, 1978, following an evidentiary hearing, the circuit court ordered the issuance of a peremptory writ of mandamus directing defendants to issue the building permits applied for by University. The court also found that there was no just cause to delay enforcement or appeal of this final order. Defendants did not appeal and this order became final on June 14, 1978.
On June 15, 1978, Joyce filed a petition to intervene, along with a motion to reconsider. Defendants filed a motion to vacate. On June 19, 1978, Joyce filed an amended motion to reconsider. As grounds for intervention, Joyce alleged that:
(1) "[He] is so situated as to be adversely affected by the Court's disposition of the instant litigation relating to the aforementioned property."
(2) "[He] will or may be bound by this Court's judgment, decree or order and, as such, the representation of [his] interests by existing parties is or may be inadequate."
(3) "[His] claim and/or defense and the main action have common questions of law and fact."
(4) "* * * intervention * * * will not prejudice any rights of any present parties."
On July 17, 1978, University filed a motion to strike and dismiss the petition to intervene. On August 25, 1978, Joyce filed a response to University's motion, a petition pursuant to section 72 of the Civil Practice Act and the supporting affidavit of Jerimiah Joyce.
Joyce's section 72 petition alleged that defendants failed to assert in their responsive pleadings the applicability and effect of the pertinent part of chapter 194A, and specifically section 11.11-1, of the Municipal Code of Chicago:
"For the purpose of this zoning ordinance, all development of land or air rights which fulfills one or more of the following criteria set forth in subsections (a) through (o) hereof, are required to follow the provisions relating to planned development set forth in this zoning ordinance. * * * provided, however, that any such land or air rights must also be under single ownership or control or under single designated control. * * *" (Emphasis added.)
The subject property was previously owned by Ornoff Associates, Inc., as part of a 25-acre tract. In November of 1972, the Chicago City Council rezoned this tract to the designation of Residential Planned Development. Following this zoning change, University acquired ownership of 12 1/2 acres of the tract pursuant to a foreclosure sale. Joyce contended that the subject property was not "under single ownership or control or under single designated control." He argues that this language should be interpreted to require unified control beyond the time rezoning to Planned Development status is sought. Joyce alleged section 72 relief was appropriate because the zoning ordinance and the argued construction of the ordinance were never presented to the trial court.
Finally, Joyce further alleged in his section 72 petition that he exercised due diligence with regard to the filing of his petition to intervene. In his supporting affidavit, Joyce stated that he had no knowledge of University's action for mandamus during the pendency of the litigation and prior to the judgment order of May 15, 1978. Joyce first learned of this litigation on or about June 9, 1978, and immediately contacted the corporation counsel for the City of Chicago. He inquired as to whether or not the defense of chapter 194A of the Chicago Municipal Code had been raised. He was advised that this defense was not raised and that a motion to reconsider on this basis would be considered.
Joyce further stated that on or about June 12 or June 13, and also on June 14, 1978, the office of the corporation counsel informed him they had not yet decided whether to file a motion to reconsider. Joyce advised the corporation counsel that if no motion was filed, he would seek intervention and file such a motion. Mr. Healy, of the corporation counsel's office, told Joyce that a motion to reconsider had to be filed on or before June 16, 1978. On June 15, 1978, Joyce filed his petition to intervene and motion to reconsider.
On September 5, 1978, University filed affidavits of Sheldon Good and Arthur Powell. Mr. Good is a partner in University Square, Ltd. On March 7, 1978, he met with Joyce to discuss University's attempts to obtain the issuance of building permits. During the meeting, Good advised Joyce that in the event the Building Commissioner continued to refuse to issue the permits, a mandamus action would be brought. Affiant further stated that Joyce was familiar with the problem and told him to proceed to file suit.
Arthur Powell is the vice president of University. He stated in his affidavit that University has incurred out-of-pocket expenses to date (September 5, 1978) of approximately $180,000 in preparation for construction. Moreover, University will continue to incur monthly expenses in excess of $10,000 per month pending commencement of construction. Construction delays will cause University to bear increased construction, labor, material and financing costs at the rate of approximately 1% per month. The total ...