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Mattson v. City of Chicago





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Ursula Mattson (plaintiff) petitioned for a writ of mandamus to compel the city of Chicago and Joseph F. Fitzgerald, Jr., commissioner of the Department of Buildings (defendants), to issue a building permit for the construction of a six-unit apartment building on plaintiff's property. After trial, the court denied the petition. Plaintiff appeals.

Plaintiff owned a five-room brick ranch residence on property zoned R-4, general residence district. Before plaintiff purchased the property, she made a personal check of the zoning. She contemplated ultimate erection of a condominium building on the site so that she could have a unit for herself. On March 23, 1978, plaintiff applied to the Department of Buildings for a permit to construct a seven-unit apartment building. However, the lot area was sufficient for only six units. Plaintiff's contractor testified the application was reduced to six units before it was routed to the various city departments. The contractor also testified the application for the permit was "routed as six units all the time." We note also that plaintiff's petition for mandamus alleged her application pertained to a "six-unit condominium building." Defendants' answer specifically admitted this allegation.

Subsequently, every division of the Department of Buildings approved the plans. The contractor testified the plans were then sent to the permit control desk. He stated, "because of final approval, it was a matter of just picking out [sic] the permit." The coordinating architect for the planning bureau of the Department of Buildings testified when the application reaches the permit control desk, processing has been completed, and the next logical step is issuance of the building permit.

On May 3, 1978, plaintiff's contractor obtained a demolition permit. By the end of May, the demolition of plaintiff's house was completed and the land was cleared. On May 10, an ordinance was introduced to change the zoning to R-3. This change, if approved, would allow plaintiff to construct only a two-unit apartment building.

About May 25, plaintiff's contractor returned to the Department of Buildings to pick up the building permit. A member of the staff informed him he would not receive the permit because a zoning change in the area was contemplated. Prior to this time, the contractor had not received any indication the city was intending to withhold issuance of the permit.

On May 19, 1978, plaintiff petitioned for a writ of mandamus. On or about July 7, 1978, the city council amended the R-4 zoning to R-3.

Plaintiff contends she acquired a vested right in the R-4 zoning and the building commissioner was bound to issue the building permit as a ministerial duty. Defendants contend plaintiff failed to demonstrate a clear, legal right to relief, and equitable estoppel is not applicable here.

In our opinion, a decision by the Supreme Court of Illinois governs the rights of the parties here. In Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill.2d 510, 377 N.E.2d 21, plaintiff's property was initially zoned R-4, single family residence. Plaintiff operated a nursing home thereon as a legal, nonconforming use. Plaintiff applied for rezoning to R-5, general residence. This would enable plaintiff to enlarge and improve the nursing home. To pacify municipal objectors, plaintiff executed a restrictive covenant to use the property only for a "nursing, convalescent, and retirement home" for 25 years. The county commissioners approved a necessary zoning change. The county building department approved the plans and issued a permit for a four-unit prototype retirement building.

Thereafter, plaintiff's architect requested a permit for the whole retirement housing complex. The administrator informed plaintiff it would be obliged to sue for a writ of mandamus or receive an opinion from the State's Attorney before a permit would issue. The State's Attorney issued an opinion favorable to plaintiff.

Nearly a year later the permit was refused because of an anticipated change in the comprehensive zoning plan which would change the property to R-6. This would reduce the permitted units from 17.4 to 8 per acre. After hearings, this change went into effect. Plaintiff filed an action for mandamus. The circuit court granted the writ. The appellate court reversed. The supreme court affirmed the circuit court.

The supreme court quoted from People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill.2d 183, 191, 157 N.E.2d 33, and stated the rule as follows (71 Ill.2d 510, 522-23):

"`* * * where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance, such party has a vested property right and he may complete the construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classifications.'"

• 1 The supreme court pointed out "the actions of the defendants, * * * encouraged plaintiff, who relied on the probability of the building permit issuing and ...

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