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Space Station 2001, Inc. v. Moses

OPINION FILED OCTOBER 12, 1983.

SPACE STATION 2001, INC., PETITIONER-APPELLANT,

v.

HERMAN H. MOSES, INDIV. AND AS DIRECTOR OF THE BUREAU OF LICENSING, REGISTRATION, AND PERMITS, ET AL., RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The plaintiff, Space Station 2001, Inc. (Space Station), filed a petition for writ of mandamus to compel the defendants, Herman Moses, individually and as director of the Bureau of Licensing, Registration and Permits; the city of Chicago; the Department of Inspectional Services of the city of Chicago; and Jane M. Byrne, mayor of the city of Chicago, to reinstate electric and building permits and to issue a public place of amusement (PPA) license for its property located at 1124-1130 West Rosemont Street in the city of Chicago.

After a trial on the merits, the trial court denied the petition. Space Station appeals. The issues presented for review are (1) whether the trial court properly denied the petition for writ of mandamus based on an ordinance prohibiting the establishment of an arcade within 200 feet of a residential area; (2) whether the doctrine of equitable estoppel operates to prevent the city's revocation of the building and electric permits; (3) whether the permit revocations were improperly based on section 43-10 of the Municipal Code of Chicago (Municipal Code); and (4) whether Space Station is entitled to damages.

In July 1982, Space Station leased two adjacent stores at 1124 and 1130 West Rosemont Street in Chicago. The north side of the premises is bounded by an alley, the south by Rosemont Street, and the east by a railroad abutment. A sidewalk abuts the west side of the premises and a 15-foot driveway separates the sidewalk from a parking lot. On September 14, 1982, Space Station filed an application for a PPA license, listing the address of the property as 1124 West Rosemont. Space Station intended to combine the two stores and install an arcade. Section 104.2-9 of the Municipal Code defines an arcade as a place of amusement that includes six or more automatic amusement devices.

In accordance with section 104.2-9.1 of the Municipal Code, James LaPrairie, a Chicago police department license investigator, measured the distance between the leased premises and the nearest residential zone. This section of the Municipal Code prohibits the operation of an arcade within 200 feet of a residential zoning district.

LaPrairie measured 148 feet between the doorway at 1124 West Rosemont and the nearest residential area, and 68 feet between the property line of the premises and the nearest residential area. At the request of Scott Kazan, the president of Space Station, LaPrairie measured 201 feet between the premises' alley doorway and the nearest residential area. Kazan testified that he planned to move the building's entrance to the alley doorway.

The zoning administrator signified his approval of the PPA license application by stamping the application on October 13, 1982. The stamp reads as follows:

"Conforms to Zoning Ordinance. This approval of application for license shall not be held to permit or be an approval of any violation of the provisions of the Chicago Zoning Ordinance."

The following day, Space Station paid the $500 application fee.

The building plans, which listed the address of the premises as 1124 West Rosemont, gave no clear indication of the alleys bordering the property, or of Space Station's intent to move its entrance to the alley door. The plans were approved by the Bureau of Fire Prevention and the Departments of Zoning, Inspectional Services, and Energy and Environmental Protection. Building and electric permits were issued on November 8 and 9, respectively. The workers began to put in 18- to 20-hour days, completing 75% of the remodeling between November 8 and 18, 1982. Kazan testified that the work schedule was so accelerated in order to open the arcade by the Thanksgiving holiday weekend. From the planning stage until November 18, 1982, Space Station spent approximately $25,000. In addition, it purchased 100 video game arcade machines for $300,000.

On November 18, 1982, a building inspector revoked the building and electric permits because of a violation of section 43-10 of the Municipal Code and ordered the men to stop working. The PPA application was disapproved on December 2, 1982, because the proposed arcade was within 200 feet of a residential zone and thus violated section 104.2-9.1 of the Municipal Code.

LaPrairie testified that in taking measurements to determine ordinance compliance for liquor stores, he measures from property line to property line. He has taken measurements for public places of amusement on 10 prior occasions; each time, he measured from doorway to property line. He had never measured from an alley door, except in the present case.

The parties stipulated that in the 10 prior applications for a PPA license for which he had taken measurements, LaPrairie had never taken more than one measurement at a site; that Kazan had asked LaPrairie to take the measurement from the proposed new doorway (alley door) to the property line; and that LaPrairie did not tell Kazan that the PPA license application had been approved. They further stipulated that on September 16, 1982, building inspector James McGreal saw that the inside of the building at 1124 West Rosemont was under construction without a permit and sent a warning notice to the last known owner, Sharp Enterprises.

Alderman David Orr testified that he visited the premises in September 1982, discovered ongoing construction work without a permit, and notified the police, who closed down the site. Alderman Orr entered the premises through the ...


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