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05/02/88 the State of Illinois v. Peter Carlton At Ogden and

May 2, 1988





523 N.E.2d 1091, 169 Ill. App. 3d 769, 120 Ill. Dec. 180 1988.IL.646

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.


This appeal arises from an order entered December 29, 1986, preliminarily enjoining the City of Chicago (City), Peter Carlton at Ogden and Oakley, Inc. (Carlton), and Walter Daniels Construction Company (Walter Daniels) from continuing construction of a "Popeye's" fried chicken restaurant in the State of Illinois Medical Center District (District) in violation of the land use regulations adopted by the State of Illinois Medical Center Commission (Commission). For the reasons set forth below, we affirm.

The District referred to above is a 460-acre area located on the near west side of Chicago and consists of the University of Illinois Hospital, Rush-Presbyterian, St. Luke's Medical Center, and the West Side Veterans Administration Hospital, among other medical facilities. Its boundaries are defined as Ashland Boulevard on the east, Congress Street on the north, Oakley Boulevard on the west, and a line coincidental with the north line of the Baltimore and Ohio Railroad property near 14th and 15th Streets on the south, as expanded in 1983. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 5001.) The Commission, created in 1941 by the Illinois legislature and codified in "An Act in relation to the establishment of a medical center district . . ." (Ill. Rev. Stat. 1985, ch. 111 1/2, pars. 5001 through 5022), is to manage the District so as "to provide conditions most favorable for the special care and treatment of the sick and injured and for the study of disease." Ill. Rev. Stat. 1985, ch. 111 1/2, par. 5018.

In 1964, pursuant to the Commission's application, the City amended the Chicago Zoning Ordinance by rezoning the District as a planned development (PUD 30). The property at the northeast corner of Ogden and Oakley, 2282 West Ogden Avenue, which Carlton proposed to use for his fast-food restaurant is designated in the PUD 30 land use plan as restricted to "medical and related" uses. The amendment creating PUD 30, however, contains no definition of medical use or of the uses that are "related" thereto. After considering the language of section 8 of the Act and the Chicago Zoning Ordinance, *fn1 the trial court found "that the intent of the legislature was for the Commission to make land use planning decisions within the District and for the City departments to implement and administer same." As additional support for its position, the court noted, "It is clear that, since the Commission was created in 1964 [ sic ], and since Planned Development No. 30 was approved by the City Council, the City has deferred to the Commission in making land use decisions within the District."

Until 1967, the property in question was the site of a Standard Oil gas station, a permitted use predating creation of the District. *fn2 In 1971, the property was acquired by Joseph Davis under a land trust and used as a parking lot for the Audy Home, located across the street, until 1975. Three years later, in 1978, Davis applied to the department of planning for a permit to build a "Church's" fried chicken restaurant on the site, and upon referral of his application to the Commission, the request was denied on the ground that it did not comply with the "medical and related" use limitation of PUD 30.

Then, in January 1982, Davis leased the property to Carlton, who sought to use the property for a "Popeye's" fried chicken restaurant. The 20-year term of the lease was to commence three months after the issuance of a building permit, and it provided that either party could terminate the lease in the event a building permit could not be obtained. Davis testified that he informed Carlton of the difficulty in obtaining a permit to operate a Popeye's on that site.

Carlton ultimately hired Walter Daniels Construction Company, whose manager, Edward Shaeffer, applied to the department of planning for a permit to build the Popeye's. The application was reviewed by the Commission, and by letter dated February 4, 1982, Park Livingston, president of the Commission, declined to approve the permit and so advised Martin Murphy, commissioner of the department of planning. Livingston wrote that the request for the captioned premises "would not be in keeping with the overall plans for the District and within the parameters of P.U.D. No. 30." After receipt of Livingston's letter, Murphy wrote Harry Manley, the zoning administrator of the City of Chicago, on February 10, 1982, disapproving the petitioners' building permit, both because the property use did not qualify in the view of the department of planning as a "medical and related" use and because the Commission had rejected the application.

Notwithstanding the disapproval of Carlton's application by the Commission and the department of planning, on March 9, 1982, the City's department of inspectional services issued a permit for the construction of Carlton's proposed restaurant. Shortly thereafter, construction was commenced on the site and continued until July 1982, when the permit was revoked by the City on the ground that the permit application was not approved by the Commission.

As a result, on July 16, 1982, Carlton and Walter Daniels filed a petition for a writ of mandamus seeking to compel the City and certain City officials to reissue the permit. In its answer, the City raised the following affirmative defenses:

"The relief which petitioners seek would necessarily abrogate the powers and duties of the Medical Center Commission, an agency of the State of Illinois, created under the ...

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