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City of Chicago v. Westphalen







APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD J. CAREY, Judge, presiding.


The City of Chicago (City) filed a complaint against the defendant, Robert Westphalen, the owner of a parcel of real property improved with a three-story brick structure located in the City of Chicago, alleging numerous municipal code violations at said property. A complaint alleging the same and additional violations was filed by the plaintiffs, Barbara and Eugene Krell, against the defendant pursuant to section 11-13-15 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11-13-15) which allows owners of neighboring property to bring suit to enforce municipal building and zoning codes. The City's complaint was dismissed and then reinstated and consolidated with the Krells' suit. After a bench trial the court found the defendant's building contained 69 violations of the Municipal Code of Chicago (Municipal Code), appointed a receiver to bring the building into compliance, fined the defendant $100 for each violation and suspended the fines since the building was vacant and not producing income at the time of judgment.

The defendant's brief contains 21 points for appeal which we believe, in the interest of clarity and conciseness, can be combined to create seven main issues. They are: (1) whether the defendant was denied procedural due process when his building permit was revoked without a prior hearing; (2) whether the defendant was granted a lawful nonconforming use by a 1964 Zoning Board of Appeals resolution and, if so, whether this resolution was subject to collateral attack in the present proceeding; (3) whether the defendant's building was subject to a fire regulation pertaining to interior stairway walls; (4) whether the plaintiffs were estopped or barred from bringing the present suit on the basis of collateral estoppel; (5) whether the defendant's trial was unfair because the defendant alleges that the trial judge was prejudiced and abused his discretion; (6) whether the trial judge erred in denying the defendant's motion for summary judgment, and (7) whether the Krells were proper plaintiffs. The Krells have cross-appealed alleging the trial court erroneously denied their post-trial petition for costs and attorneys' fees in accordance with section 11-13-15 of the Illinois Municipal Code. Ill. Rev. Stat. 1975, ch. 24, par. 11-13-15.

The building which is the subject of this appeal is an apartment building located on the 5300 block of South Kimbark Avenue in Chicago, Illinois. It was constructed in 1901 and contained 10 apartments, three on each floor and one in the basement. According to the defendant's testimony, the building had been converted to a larger number of units prior to his purchase of it in 1945. At the time of the trial the building had 35 units or apartments. The defendant has not resided in the building since 1957.

In June 1975 the City filed suit against the defendant alleging 29 violations of the Municipal Code based on an inspection of the defendant's building by the City of Chicago Building Department (Building Department) conducted on April 25, 1975. The Krells filed suit in September 1975 citing numerous ordinance violations including the violations alleged in the City's complaint. Each of the parties filed amended complaints alleging additional violations discovered during subsequent inspections of the building.

In May 1976, while the proceedings were pending, the defendant submitted to the Building Department an application for a permit to make repairs to the building. The permit was issued on May 28, 1976, but was subsequently revoked by the building commissioner on June 3, 1976, because of a lack of compliance with sections 7.5-4 (minimum lot area) and 7.12-2 (off-street parking) of the Chicago Zoning Ordinance (Municipal Code of Chicago, ch. 194A, §§ 7.5-4, 7.12-2). No hearing on the matter of the permit was held prior to its revocation.


As the defendant's first issue on appeal, he contends he was denied procedural due process because his building permit was revoked without a prerevocation hearing. The defendant argues that he had a property right entitled to fourteenth amendment protection (U.S. Const., amend. XIV). The defendant relies on Trans-Oceanic Oil Corp. v. City of Santa Barbara (1948), 85 Cal.App.2d 776, 194 P.2d 148. In that case the permit was revoked over five years after its issuance based on a subsequently enacted zoning ordinance that made the permittee's activities illegal. The California Court of Appeals reversed the revocation, finding the permittee had acquired a vested property right based on his substantial expenditures made in reliance on the validly issued permit. Since the revocation was without notice or hearing, the court said it was inoperative and without legal force.

• 1 The instant case is distinguishable because the permit was not validly issued. Before the Commissioner of Buildings issues a building permit he must examine and approve all drawings and plans for the proposed construction or alteration. One determination that must be made is that the building and premises are in compliance with the Chicago Zoning Ordinance. (Municipal Code of Chicago, ch. 43, § 43-4.) In the case at bar, after the building permit had been issued to the defendant, the building commissioner determined that the defendant's building was not in compliance with certain zoning ordinances. Thus, the commissioner was empowered to revoke the permit because a violation of section 43-4 of the Municipal Code existed. See Municipal Code of Chicago, ch. 43, § 43-24.

• 2, 3 We agree with the trial court's finding that the defendant provided no showing that a prerevocation hearing is required when a permit is revoked immediately upon the discovery that it was issued in error. Courts> have held that licenses and permits are privileges from which no vested property rights attach. (See, e.g., Weinstein v. Daley (1967), 85 Ill. App.2d 470, 229 N.E.2d 357; see generally, 9 McQuillin, Municipal Corporations § 26.81a, at 183 (3d ed. 1978).) While a license or permit cannot be abrogated without sufficient cause (9 McQuillin, Municipal Corporations § 26.81a, at 183 (3d ed. 1978)), in the absence of a legal requirement there is no necessity for notice and opportunity to be heard before the revocation (9 McQuillin, Municipal Corporations § 26.88, at 194 (3d ed. 1978)). (See Cafeteria & Restaurant Workers Union, Local 473 v. McElroy (1961), 367 U.S. 886, 6 L.Ed.2d 1230, 81 S.Ct. 1743.) No such legal requirement exists in this State.

• 4 Furthermore, under Illinois law the permittee does not have a vested right to complete his approved plans unless the building permit was legally issued, and the property owner substantially changed his position or incurred substantial expenditures or obligations. (See, e.g., O'Laughlin v. City of Chicago (1976), 65 Ill.2d 183, 357 N.E.2d 472; City of Chicago v. Zellers (1965), 64 Ill. App.2d 24, 212 N.E.2d 737.) In Ganley v. City of Chicago (1974), 18 Ill. App.3d 248, 309 N.E.2d 653, the City revoked a building permit three weeks after issuance upon the discovery that the proposed building would violate the minimum lot requirements specified in section 7.5-2 of the City zoning ordinance (Municipal Code of Chicago, ch. 194A, § 7.5-2). Although the court found the plaintiff's permit had been issued through normal administrative procedures, the court held that the permit was illegally issued because the ministerial officer exceeded the authority conferred upon him. The court stated a building permit should not have been granted in violation of the terms of the zoning ordinance and concluded that the unauthorized permit was a nullity and conferred no rights upon the permittee.

The defendant in the instant case also contends that the trial judge's finding that the permit was improperly issued was not supported by the evidence. He cites the testimony of witness A.W. Brunson, chief plan examiner for the Department of Buildings. Brunson stated the defendant's architectural plans submitted during the permit application process were processed in the normal manner and in accordance with standards of procedure established by the Building Department. To further support his argument the defendant states that the letter of revocation did not state that the permit was revoked because of a subordinate's mistake.

Alex H. Zimmerman, Deputy Commissioner of Buildings, testified that on a day or two prior to June 3, 1976, he met with an assistant corporation counsel for the City and the zoning administrator. The recommendation to revoke defendant's permit was made at this meeting. Entered into evidence was a memorandum dated June 3, 1976, written by Zimmerman, which stated that the defendant's application for permit should not have been approved because the plans did not conform to the Zoning Board of Appeals resolution of November 24, 1964, or to certain zoning ordinance requirements. Additionally, Irving M. Addis, the defendant's architect, testified on direct examination during the plaintiffs' case, that he prepared plans for changes to the defendant's building sometime prior to May 24, 1976, in order to obtain a building permit. He indicated that this set of plans, which was submitted in May 1976 with the application for a permit, contained a breakdown of efficiency units and apartments which did not comply with the requirements of the Zoning Board of Appeals resolution.

In People ex rel. American National Bank & Trust Co. v. Smith (1969), 110 Ill. App.2d 354, 249 N.E.2d 232, the court held that a subsequent discovery of noncompliance with the judicial order specifying certain prerequisites raises a valid right in the building commissioner to re-examine the legality of a permit's issuance. We believe a similar right exists in the commissioner when, as in the instant case, noncompliance with the Zoning Board of Appeals resolution, as well as zoning violations, are subsequently discovered. Therefore, on the basis of the testimony and exhibits discussed above, we believe there was sufficient evidence to support a finding that the defendant's permit was erroneously issued and that the permit was a nullity and conferred no rights upon the defendant such as the right to a prerevocation hearing.


As his second argument on appeal, the defendant contends he was granted a nonconforming use by the 1964 resolution of the Zoning Board of Appeals. He argues, therefore, that the present action is a forbidden collateral attack of this resolution.

In 1964 the City of Chicago brought a lawsuit against the defendant citing numerous building violations on the same property as involved in the instant case including noncompliance with sections 78-10.1, 78-10.2 and 62-3.2 of the Municipal Code. Included in the defendant's answer to this complaint was a denial that he violated sections 78-10.1 and 78-10.2 because the use of his building constituted a valid nonconforming use. The defendant's answer also indicated that he would comply with section 62-3.2 which required the enclosure of stairway walls with partitions providing a fire resistance rating of not less than two hours. The certified trial court half-sheet for the 1964 case made a part of the record in the instant case indicated that the defendant was found guilty of the ordinance violations described in the City's complaint. Judgment and costs were suspended.

Thereafter, the defendant submitted to the City Building Department an application for a building permit to correct the City ordinance violations. His request was denied by the office of zoning administrator because the building, which contained 15 apartments and 22 efficiency units, did not conform to zoning ordinance requirements as to off-street parking, minimum lot area and maximum number of efficiency units (Municipal Code of Chicago, ch. 194A, §§ 7.12, 7.5-4, 7.5(6)). The defendant appealed to the Zoning Board of Appeals and argued that the building had a valid nonconforming use because the conversion of 10 apartments to 37 units occurred when the zoning ordinances permitted such a conversion. The Board of Appeals reversed the zoning administrator's decision and ordered that the defendant be issued a permit. The resolution indicated in part:

"RESOLVED, that the appeal be and it hereby is sustained * * * and he [the zoning administrator] is authorized to issue a permit to make repairs to the non-conforming three-story brick apartment building containing 16 dwelling and 19 efficiency units *fn1 * * * upon condition that all applicable ordinances of the City of Chicago shall be complied with * * *."

A nonconforming use is a use of land or a building that does not comply with current zoning regulations but which is permitted by statute or ordinance to continue for a specified period of time because the use was lawful at the time the zoning regulation was adopted. See, e.g., City of Rockford v. Sallee (1970), 129 Ill. App.2d 75, 262 N.E.2d 485; Ill. Rev. Stat. 1975, ch. 24, par. 11-13-1; Municipal Code of Chicago, ch. 194A, art. 3; see generally 8A McQuillin, Municipal Corporations § 25.180, at 6 (3d ed. 1976); 2 Yokley, Zoning Law & Practice § 16-2, at 211-12 (3d ed. 1965).

• 5 While we do not concede that the defendant's building was granted a nonconforming zoning use in 1964, assuming arguendo that this conclusion is correct, we fail to see how this status protected the defendant from the instant proceedings. The Chicago Zoning Ordinance permits the continued use of land, a building or a structure for residence, business, commercial or manufacturing purposes when such use is no longer permitted in the district. Article 2 of the ordinance provides that "[t]he provisions in the Chicago Zoning Ordinance are cumulative and additional limitations upon all other laws and ordinances * * * governing any subject matter in The Chicago Zoning Ordinance." (Emphasis added.) (Municipal Code of Chicago, ch. 194A, art. 2.) The zoning ordinance does not immunize the owner of a building having a nonconforming use from requirements to insure the public health and safety. Thus, we believe the defendant was subject to the building, electrical, plumbing and fire provisions of the Municipal Code regardless of the existence of a lawful nonconforming use. As the 69 violations named in the City's complaint did not involve the zoning violations considered in 1964, it cannot be said that the City's present action against the defendant was a collateral attack of the 1964 Zoning Board of Appeals proceeding. While the Krells' complaint did allege three zoning violations, the trial court did not find that zoning violations had occurred. *fn2 Therefore, we feel that it is unnecessary to determine whether this portion of the Krells' complaint was a forbidden collateral attack on the 1964 proceedings.


The defendant next contends that his building was not subject to the fire regulations requiring two-hour fire resistant walls for interior stairways in buildings exceeding three stories in height. (Municipal Code of Chicago, ch. 62, § 62-3.2(a); ch. 78, § 78-10.1.) He bases this argument on the fact that the provision of the Municipal Code defining a basement containing apartments as the first story to a building was not enacted until 1942. He alleges that since his building contained basement apartments prior to that time, this provision should not be applied retroactively so as to classify the defendant's building as four stories.

The Krells argue that the defendant's logic is strained and wholly inconsistent with the clear intention of the city council to apply the fire protection provisions to pre-ordinance buildings. They cite section 78-4 of the Municipal Code which states: "Existing buildings shall comply with all applicable fire protection requirements of this code." To further support their argument, the Krells cite City of Chicago v. Sheridan (1976), 40 Ill. App.3d 886, 353 N.E.2d 270. Sheridan held that the fire protection provisions of chapter 62 of the Municipal Code applied to all buildings whenever built and stated:

"We believe the law to be well settled that it was the intent of the City Council to make the fire protection requirements of the building code apply to all `existing' buildings and that that term included `pre-ordinance' buildings." 40 Ill. App.3d 886, 888, 353 N.E.2d 270, 272.

• 6 Applying the Sheridan rationale to the case at bar, we hold that the defendant's building was subject to the provisions of chapter 62 of the Municipal Code. In view of the intention to apply the fire requirements to pre-ordinance buildings, we further hold that the defendant's basement should be considered as one of four stories irrespective of the enactment date of the provision describing a basement as a story when it consists of apartments. Therefore, the trial judge properly concluded that the defendant's building exceeded three stories in height and thus required two-hour fire resistant interior stairway walls.


The defendant's fourth issue on appeal was whether the plaintiffs were estopped or barred from bringing the present suit based on principles of collateral estoppel or estoppel by verdict. In 1971 the City sued the defendant charging him with various building, electrical and fire regulation violations. The defendant contends that the trial court found that he had complied with the applicable ordinance requirements in 1971 and thus the plaintiffs in the instant case should be precluded from relitigating these issues.

• 7 Estoppel by verdict or collateral estoppel is a branch of res judicata (Kramer v. Chicago Title & Trust Co. (1979), 69 Ill. App.3d 1015, 387 N.E.2d 1105; City of Evanston v. G. & S. Mortgage & Investment Corp. (1973), 11 Ill. App.3d 642, 297 N.E.2d 331) which prohibits the relitigation of the same issues in different claims or causes of action *fn3 by the same parties or their privies (City of Burbank v. Glazer (1979), 76 Ill. App.3d 294, 395 N.E.2d 97). The parties to the subsequent action are estopped from relitigating those issues which were in fact raised and decided in the prior action. (Pierog v. H.F. Karl Contractors, Inc. (1976), 39 Ill. App.3d 1057, 351 N.E.2d 249; City of Evanston; City of Chicago v. Provus (1969), 115 Ill. App.2d 176, 253 N.E.2d 182.) There can be no estoppel by verdict or collateral estoppel unless there shall have been a finding of specific fact in the former judgment or record that is material to that case and to the pending case. (Department of Transportation v. Shaw (1977), 68 Ill.2d 342, 369 N.E.2d 884.) The burden of establishing the defense of collateral estoppel is upon the party invoking it (Chicago Historical Society v. Paschen (1956), 9 Ill.2d 378, 137 N.E.2d 832), and the party must show with clarity and certainty the precise issues and judgment in the former action. Kedzierski v. Kedzierski (1967), 86 Ill. App.2d 264, 229 N.E.2d 919.

• 8 The defendant in the instant case produced the circuit court order entered in the 1971 case. The order provided:

"This cause coming to be heard by the Court.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that this cause is dismissed all costs having been paid."

This order does not reflect a finding of specific fact or a determination of the issues. Nothing is disclosed as to the substance of the dismissal. Therefore, the defendant's defense of collateral estoppel was properly denied by the trial court. See Pierog; Continental-Midwest ...

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