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Harris Trust & Savings Bk. v. Duggan





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


Rehearing denied May 3, 1982.

This is a consolidated appeal of three related trial court decisions concerning the Kellogg mansion complex in the 2900 block of North Lake Shore Drive in Chicago. The three actions were brought by the plaintiff bank, as trustee of the Helen L. Kellogg trust and owner of the subject property, against William L. Duggan, Commissioner of the Chicago Department of Inspectional Services, and the city of Chicago. Plaintiff first sought a writ of mandamus compelling the city to issue demolition permits for the subject property and later challenged the validity of a zoning ordinance and a landmark ordinance as they applied to that property. The trial court found in favor of plaintiff in all three actions and entered judgment against defendants for $1,037,849.76 pursuant to section 5 of the Mandamus Act (Ill. Rev. Stat. 1979, ch. 87, par. 5) for defendants' wrongful failure to issue the permits. The city subsequently entered an agreement with plaintiff by which it relinquished its right to appeal and promised to issue the demolition permits in exchange for abandonment of its money judgment. After learning of the agreement, petitioners 332 West Oakdale, Inc., Martin J. Oberman and Hedwig Braun sought leave to intervene after judgment in the final action. The trial court denied intervention, and on appeal petitioners seek review of all three decisions arguing that none of plaintiff's complaints stated a claim upon which relief could be granted. Plaintiff denies this contention. While agreeing that petitioners have standing to challenge the zoning decision, plaintiff maintains that they have no standing to challenge the landmark and mandamus decisions.

The property involved consists of three contiguous parcels of real estate located at 2946, 2952, and 2960 North Lake Shore Drive. The parcels are improved with three single-family residences which plaintiff acquired by deed from Mrs. Kellogg in 1972. At that time the property was zoned R8 and had been zoned R8 since 1961. The Kellogg family had resided in two of the homes. The third was acquired in 1971 for investment purposes. Upon the death of Mrs. Kellogg in 1978 plaintiff's purpose was to liquidate the assets and distribute the residue to a charitable foundation which she had created in her lifetime. Pursuant to this purpose, plaintiff contracted to sell the property for $2,639,325. The contract was subject to the R8 zoning which existed at that time. On February 1, 1979, plaintiff applied to the city for demolition permits. The permits were issued on March 6, 1979, but were revoked on the following day. The city explained in its letter of revocation that the buildings were "located in an area now under consideration by the Commission on Chicago Historical and Architectural Landmarks for designation as a Chicago Landmark District."

On April 6, 1979, plaintiff filed suit seeking a writ of mandamus compelling reissuance of the permits. During the pendency of the mandamus action however, the city, on August 10, 1979, enacted an ordinance which downzoned the property from R8 to R5, thereby precluding use of the subject property for purposes permitted under R8 zoning. As a result, the contract for sale was not effectuated. On October 22, 1979, plaintiff filed another action against the city seeking a declaratory judgment that the amendatory ordinance changing the zoning from R8 to R5 was unconstitutional and void. Oakdale, the owner of contiguous real estate, was granted leave to intervene as a party defendant. On June 25, 1980, the trial court entered a judgment in the zoning case declaring that the change in zoning from R8 to R5 was unconstitutional and void as it applied to the subject property and ordering that the subject property was lawfully usable for any purpose permitted under R8 zoning. On October 28, 1980, the trial court entered judgment for the plaintiff in the earlier action and ordered the issuance of a writ of mandamus ordering the city to reissue the demolition permits. In the meantime, however, the Commission on Chicago Historical and Architectural Landmarks had notified plaintiff of a hearing regarding the contemplated designation of the subject property as historical landmarks. The commission subsequently recommended to the city council that the property be so designated. Consequently, the court in the mandamus action initially stayed the execution of the writ for 45 days to allow the city council time to consider the question of landmark status. The writ was later stayed pending appeal.

On February 11, 1981, the city council enacted an ordinance designating the subject property as a landmark. On March 31, 1981, plaintiff notified the commission of its continued desire to demolish the buildings and demanded that the city either allow demolition or acquire the property under eminent domain. Plaintiff further advised the commission that it waived its right to a hearing, and it requested that the commission proceed with the administrative procedures required under section 21-64.1 of the Municipal Code of Chicago. On April 21, 1981, plaintiff was advised by the city that its demands had been rejected and that the city denied it had any obligation to compensate plaintiff for the alleged taking. On May 15, 1981, plaintiff added a third count to its mandamus complaint alleging that the cumulative effect of defendants' actions in revoking the demolition permit, downzoning the property, and finally in designating the property as a landmark operated to deprive plaintiff of all reasonable use of its property for more than two years. Plaintiff alleged that defendants' actions thus resulted in its property being taken without due process and without payment of just compensation. On September 1, 1981, plaintiff amended its prayer for relief to conform to the evidence by adding a request for the entry of a declaration that the ordinance designating the subject property as a landmark was unconstitutional and void.

On September 2, 1981, the court entered judgment for plaintiff finding that the enactment by the city of its ordinance declaring plaintiff's property as "Chicago Landmarks" coupled with the city's refusal to issue demolition permits for the Kellogg mansions operated to deprive plaintiff of all reasonable use of its property thereby constituting a taking for public use for which plaintiff was entitled to just compensation. The court determined that $3,650,000 would be just compensation. Finding that the city was unwilling to compensate plaintiff, the court, rather than entering a judgment for money, entered a declaratory judgment declaring the ordinance designating the property as a historical landmark to be unconstitutional and void as applied to the subject property. In addition, the court awarded plaintiff $1,037,849.76 in damages under section 5 of the Mandamus Act.

Thereafter, the city entered an agreement with plaintiff by which the city relinquished its right to appeal all three actions and promised to issue the demolition permits in exchange for plaintiff's abandonment of its money judgment. On September 14, 1981, petitioners sought to intervene post-judgment in the landmark case. The petition was denied. Petitioners appeal from that denial and from all three decisions.

We first address petitioners' contention that the trial court erred in denying their petition for leave to intervene in the landmark case. The question of when a third party may intervene is governed by section 26.1 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 26.1.) Section 26.1 is to be construed liberally. (Bredberg v. City of Wheaton (1962), 24 Ill.2d 612, 182 N.E.2d 742.) Its purpose is to avoid relitigation of issues in a second suit which are being litigated in a pending action. (Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill.2d 102, 417 N.E.2d 1343.) Intervention is proper, however, only where the intervenor stands to gain or lose by the direct legal operation and effect of a judgment in the suit. In re Appointment of Special State's Attorneys (1976), 42 Ill. App.3d 176, 356 N.E.2d 195.

Oakdale is an association of the approximately 53 individual members who reside in apartments in the Oakdale building, the lot line of which is 18 feet from the subject property. Oakdale alleges that judgment for the plaintiff and the "consequent demolition of the Kellogg mansions will adversely affect the character of their neighborhood, remove an appealing and aesthetically attractive group of landmark structures, result in the construction of a new and much larger residential building which will increase traffic, congestion, and crowding in the neighborhood" and substantially reduce the value of the Oakdale property. Plaintiff, however, is not seeking permission in the landmark case for the construction of such a building. Plaintiff seeks such relief in the zoning case, and it does not contest Oakdale's right to intervene in that action. In the landmark case plaintiff merely seeks the invalidation of an ordinance which forbids the demolition of the existing structures. Oakdale does not allege, nor can we assume, that the demolition of the mansions will in itself decrease the value of the Oakdale property.

• 1 Oakdale also alleges that the issuance of a demolition permit would cause it immense and irreparable loss "by destroying the Kellogg mansions' unique contribution to the cultural heritage and history of the City of Chicago." It fails, however, to assert that it or any of its members derive any personal benefit from the preservation of the buildings. Although the potential harm alleged need not be economic in nature, it must be individualized. (Sierra Club v. Morton (1971), 405 U.S. 727, 31 L.Ed.2d 636, 92 S.Ct. 1361.) While the interest which an intervenor has in the pending suit need not be direct, it must be greater than that of the general public. (Seger v. County of Du Page (1978), 58 Ill. App.3d 858, 374 N.E.2d 1099.) Oakdale fails to assert such an interest.

Oakdale's reliance on Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App.3d 174, 377 N.E.2d 1152, is misplaced. In that case a plaintiff property developer sought to require a village to approve a site plan for the development of a shopping center. After plaintiff prevailed and the village voted not to appeal, neighborhood property owners sought to intervene. Unlike the present case, intervenors were able to allege that as a direct result of the judgment a shopping center would be erected near their property which would have an adverse effect on their property values. The primary issue in Standard Bank was the timeliness of the intervention, an issue we need not reach in the present case since we find that Oakdale does not have a sufficient interest in either the mandamus or the landmark case to warrant intervention.

Similarly, petitioner Oberman fails to assert a personal interest in the outcome of this suit to warrant intervention in the mandamus or landmark cases. He is alderman of the ward in which the property is located. His status as an alderman alone does nothing to enhance his right to intervene. (University Square, Ltd. v. City of Chicago (1979), 73 Ill. App.3d 872, 392 N.E.2d 136.) Alderman Oberman asserts, however, that he was deprived by the actions of the parties and the trial court of the opportunity to exercise his legally delegated aldermanic responsibility under chapter 21, sections 21.62-21.64 of the Municipal Code to hear appeals from the denial of demolition permits for designated Chicago landmarks and to decide whether or not compensation should be paid.

Section 21-64.1 provides that when the building department receives an application to demolish a building previously designated as a landmark it must forward that application to the commission. It further provides that the application and relevant recommendations be subsequently forwarded, in accordance with a timetable specified in the ordinance, to the finance committee of the city council and finally to the council itself. The city council has the ultimate responsibility for rendering a decision. Alderman Oberman complains that the defendants violated the provision of the ordinance by failing to forward the application to the commission. He argues that the commission, the finance committee, and the city council were thereby deprived of an opportunity to ...

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