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O'connell Home Builders v. City of Chicago

OPINION FILED SEPTEMBER 2, 1981.

O'CONNELL HOME BUILDERS, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

O'Connell Home Builders, Inc., and Glynn, McGregor, Murphy and Associates, the plaintiffs, filed a complaint for a writ of mandamus seeking to compel the commissioner of the department of buildings and the city of Chicago, the defendants, to issue a building permit. The writ was granted, and the defendants appeal.

On appeal the defendants contend that the plaintiffs were not entitled to a writ of mandamus because: (1) the permit application contained a material misrepresentation, (2) the plaintiffs did not make a formal demand for the permit before filing suit, (3) the plaintiffs were guilty of laches, and (4) the property in question was rezoned to prohibit the type of structure proposed by the plaintiffs after submission of their permit application.

James O'Connell, president of O'Connell Home Builders, Inc., and a building contractor, entered into a contract with Glynn, McGregor, Murphy and Associates to purchase a vacant lot at the address commonly known as 4550 West 56th Street, Chicago, Illinois, at a price of $155,000. The complaint alleged that this contract was contingent upon O'Connell's ability to obtain a permit to build a 51-unit apartment building on the property. At that time the property was zoned R-4, which allowed the construction of a multiple dwelling structure.

O'Connell testified that he visited Alderman John Madrzyk to express his intention to construct an apartment building on the vacant property at 4550 West 56th Street and to present his preliminary drawings. Alderman Madrzyk said the plans looked good and told O'Connell to see him before making application for a permit so that he could sign a waiver.

O'Connell hired an architect to prepare drawings and plans to be submitted with the application for a building permit. The architect's fee was $12,000. The application was filed in May of 1978; and when O'Connell did not receive a permit by the end of that month, he unsuccessfully sought to have a meeting with Building Commissioner Fitzgerald. O'Connell was told by Deputy Commissioner Kill that he had received a letter from Commissioner Fitzgerald stating that the building permit was not to be issued. O'Connell's further attempts to see Commissioner Fitzgerald failed. At no time did O'Connell receive any communication from the department of buildings with respect to his application and why it was not processed. O'Connell returned to see Alderman Madrzyk, who told O'Connell that he did not want the building constructed. O'Connell went to see State Representative and Ward Committeeman Michael Madigan, who also indicated that he did not favor the construction. O'Connell further testified that he paid $5,500 for the removal of all the trees on the subject property.

On cross-examination, O'Connell admitted that the preliminary drawing of the proposed building which was submitted to the department of buildings prior to formal application showed that the alleys north and east of the subject property were paved when they were unpaved. The blueprints submitted with the application also showed the alleys were paved. O'Connell stated that the documents portrayed the area as it would be after the building was constructed and that he intended to pave the alleys. O'Connell also admitted that he never made a demand, written or oral, upon Commissioner Fitzgerald to issue the permit. He did make a request to Deputy Commissioner Kill to process the application.

Arthur Gouvis, the architect hired by O'Connell, testified that he filed the application for a building permit and site plans in May of 1978. The department of buildings made no request upon Gouvis to amend the submitted plans. In his opinion, the documents complied with the zoning requirements and the building code of the city of Chicago. On cross-examination, Gouvis admitted that he did not make a demand upon Commissioner Fitzgerald to issue a permit. He stated that the site plans indicated that the alleys were paved.

Robert F. Kill, deputy commissioner of the department of buildings for the city of Chicago, testified that the permit was not issued to O'Connell because Commissioner Fitzgerald had requested a study of the surrounding boundaries of the subject property and because the application did not truly reflect the streets and alleys around the property. Kill also stated that there was a proposed ordinance pending before the city council that would rezone the property.

Alderman John S. Madrzyk testified that he was familiar with the subject property. He stated that he met O'Connell to discuss the proposed building and expressed his belief that there would be a problem with the community since problems had occurred when another building had been constructed in that area. Madrzyk testified that he anticipated problems with the sewer system, street lighting, access by fire vehicles and parking shortages. Madrzyk denied that he approved or disapproved the plans submitted by O'Connell. He also testified that in September of 1978 he introduced into the city council an ordinance amendment that would change the zoning classification of the subject property. The ordinance was passed by the city council on August 10, 1979. (Journal of the Proceedings of the City Council of Chicago, August 10, 1979, at 626.) The trial of this case was held on August 17, 1979.

Michael Madigan, State Representative for the district where the subject property is located, testified that he had three objections to the proposed building — the incompatibility of a large apartment complex with the general character of the neighborhood, parking shortages, and an expectation that the adjacent alleys would be used as streets. On cross-examination, Representative Madigan stated that he did not voice his objections to anyone in the department of buildings.

Five residents of the area were permitted to testify concerning their objections to the proposed building. They expressed concern for parking shortages, the use of their alleys as streets, potential decreases in property values and unsafe conditions for the tenants of the proposed building.

At the conclusion of the trial, the court granted the complaint for a writ of mandamus and directed the defendants to issue a building permit to O'Connell Home Builders, Inc. The defendants' post-trial motion to vacate this judgment was denied.

Initially, the defendants contend that the writ of mandamus should not have been granted because the plaintiffs did not have a legal right to have the building permit issued to them since the permit application contained a misrepresentation of material fact. The defendants rely on the testimony of O'Connell and Gouvis that the application showed the alleys to the east and north of the subject property were paved while the alleys were in fact unpaved. The defendants cite two provisions of chapter 43 of the Municipal Code of Chicago which concern the examination and approval by various city department heads of drawings and plans submitted with permit applications (Municipal Code of Chicago, ch. 43, § 43-4) and the annulment of a permit when departures from the drawings and plans occur after the permit has been issued (Municipal Code of Chicago, ch. 43, § 43-10). The defendants rely on these ...


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