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Welch v. City of Evanston







APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.


Rehearing denied September 22, 1980.

Walter S. Welch, as trustee under a trust agreement dated June 28, 1974, and Ross S. Welch (plaintiffs) brought this action for declaratory judgment and injunctive relief against the City of Evanston (defendant) to prevent defendant from eliminating a two-room basement apartment in a building owned by plaintiffs. Defendant filed a quasi-criminal complaint against plaintiffs seeking elimination of the apartment. These actions were consolidated by the circuit court. After a bench trial, the court entered judgment in favor of defendant in both actions, fined plaintiffs $10 and ordered plaintiffs to terminate the use of the apartment within 90 days. Plaintiffs appeal.

The apartment is located in a three-story brick apartment building in Evanston. Plaintiffs acquired the building in 1974. The original owners of the property applied for a building permit on December 1, 1925, to construct a three-story brick 10-apartment building. The permit was issued December 2, 1925.

At that time, the 1921 Evanston zoning ordinance was in effect. This zoned the property for commercial use and permitted up to 16 apartment units. In 1927, the ordinance was amended to increase the lot area requirement per apartment. Fewer than 10 apartment units would have been permitted on the property. Under the present (1960) Evanston zoning ordinance, the property is located in a "B-2 Business District" and only three apartment units could be built thereon.

In April 1966, while the building was still under prior ownership, an inspection by defendant showed 11 apartments in the building, including two in the basement. The owner applied to the zoning board of appeals for a variance. The board recommended the appeal be denied. Defendant's city council concurred in this decision. In a letter to defendant, the then managing agent for the building indicated one of the basement apartments would be vacated on September 1, 1966, and would be kept vacant "until we are able to trace the ownership back to such a time as is required to justify this as an acceptable 11 apartment building."

Numerous inspections of the building were made after the vacation of the 11th apartment. As late as July 12, 1976 (after plaintiffs acquired the building) a certificate of inspection showed the building contained 10 apartments and conformed to the requirements of the zoning ordinance. Commencing on October 1, 1976, the apartment was leased to a tenant by plaintiffs.

Ross Welch, a qualified attorney, testified that prior to acquiring the property he inspected the building including the apartment in controversy. The apartment was occupied by a tenant. Welch did not make a request to defendant to verify the zoning status of the property nor did he inspect any of defendant's records prior to purchasing the property. Mr. Welch testified it was not the custom for realty closing attorneys to apply to municipalities for certificates of compliance before closing a purchase of an apartment building. Mr. Welch also stated he had no knowledge of the application for a zoning variance made by the previous owners in 1966.

Jack Schermerhorn testified he was the plaintiffs' managing agent of the apartment building since 1974. His management company was also a defendant in the quasi-criminal case. In his opinion the trim, flooring, walls, door and window openings, plumbing and lighting fixtures, wiring and appliances in the apartment in controversy were installed at the time of the construction of the building. Schermerhorn knew a plumber contractor named Carl Berquist who had lived in the basement apartment from 1925 until 1967. The apartment had been occupied continuously by a tenant since 1974.

Schermerhorn stated that in 1925 "it was the practice of the City of Evanston to have in a building permit one additional apartment for the janitor in addition to the number of apartments listed." He had become familiar with the practices of defendant by looking at building permits, plans and layouts of buildings built in 1925 or earlier. On cross-examination, Schermerhorn testified it was the practice to designate a janitor's apartment on the plan. Schermerhorn further stated he had never examined defendant's records to determine the legal status of the building in question.

Michael Garland, assistant director of the department of inspections and permits for defendant, testified it was customary practice in the 1920's not to list the janitor's apartment as a unit in the building permit if it was the only unit in the basement. However, if there was one apartment established in the basement by virtue of the permit or plans of the building, there would be no such practice as permitting a second apartment in the basement for the janitor. Garland further testified a person interested in buying an Evanston apartment building could request defendant to inspect the building for compliance with the zoning and building codes free of charge. Defendant had performed this service since 1971.

Ed Nehring, property inspector for defendant, testified he had been employed in this capacity for 15 years. In 1966 Nehring inspected the building and the basement apartment. That apartment was occupied by a Mrs. Hydrack. There were 11 apartment units in the building in 1966. After the action by the city council in 1966, the use of the 11th apartment was discontinued. On October 20 and 26, 1976, Nehring reinspected the building and found the 11th apartment was reoccupied and there were new fixtures in it.

Nehring stated he had known Carl Berquist. In 1966, Berquist lived at 920 Greenwood Avenue and not at the apartment in question. Nehring had examined the telephone book for 1965 and 1966 which showed Berquist lived at that address. Nehring also examined the "Polk City Directory" which lists the names of the occupants of buildings in Evanston according to address. He examined these directories for the years 1935, 1937, 1948 and 1963. In 1935, 10 family names were listed at the address of the building in question. In 1937, 11 family names were listed; in 1948, nine names; and in 1963, seven names. In addition, the 1948 book showed Berquist lived at 920 Greenwood.

Nehring further testified that in 1925 it was not the custom not to include the janitor's apartment in the total number of apartments when applying for a permit. Based on his examination of many plans and permits the only exception would be if the apartment were the only one in the basement and the janitor actually lived on the premises. Then the apartment would not be included in the number of units listed on the permit. Also, in a small apartment building, such as the one in question, it was not "uniformly accepted" to install a janitor's apartment.

Nehring corroborated Garland's testimony that defendant would inspect an existing apartment building at a purchaser's request and certify the building's compliance with zoning and building requirements. There is no requirement the prospective purchaser provide a survey before defendant so certifies.

David Rasmussen, an appeals officer for the defendant, testified he had seen plans for buildings constructed in the 1920's that showed a janitor's apartment but the permits for these same buildings did not count such apartments in the number of units. However, he refused to state this was a customary practice.

Albert Welch, brother of plaintiffs, testified he had called defendant's building department and requested a certificate of compliance as to zoning and building requirements of a certain building. A person at the ...

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