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03/20/89 Walter S. Welch, As v. the City of Evanston Et Al

March 20, 1989

WALTER S. WELCH, AS TRUSTEE, ET AL., PLAINTIFFS-APPELLEES

v.

THE CITY OF EVANSTON ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

536 N.E.2d 866, 181 Ill. App. 3d 49, 129 Ill. Dec. 816 1989.IL.361

Appeal from the Circuit Court of Cook County; the Hon. Roger Kiley, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and QUINLAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiffs, Walter S. Welch, as trustee under trust agreement dated June 28, 1976, and Ross S. Welch, who acted as pro se attorney, appeal from three orders entered by the circuit court: (1) contempt order entered November 25, 1986; (2) order imposing contempt sanctions entered September 1, 1987; and (3) order modifying the sanctions entered December 2, 1987, which assessed a fine of $500 and attorney fees of $3,615 against plaintiffs. These orders arose from plaintiffs' failure to comply with a prior court order, entered May 11, 1979, which order was affirmed in Welch v. City of Evanston (1980), 87 Ill. App. 3d 1017, 409 N.E.2d 450 (Welch I), directing plaintiffs to cease renting a basement apartment unit located in a building owned by plaintiffs at 2533-2537 Hartrey Avenue, Evanston, Illinois (the Hartrey Building). The subject matter of the instant appeal was brought before the circuit court by defendant, the City of Evanston (the City), on a petition for rule to show cause why plaintiffs should not be held in contempt for failing to comply with the 1979 order. The sole issue on this appeal is whether the trial court abused its discretion in finding plaintiffs in contempt and in assessing attorney fees and a fine against plaintiffs. For the following reasons, the judgment of the circuit court is affirmed.

A chronology of events leading up to this appeal provides a background for the finding of contempt and imposition of sanctions. The record indicates that on December 2, 1925, a building permit was issued for the construction of the Hartrey Building as a three-story, 10-unit apartment building. At that time, the 1921 Evanston zoning ordinance was in effect, which would have permitted the construction of a 16-unit building on the lot in question. Although the building permit applied for and issued was for only a 10-unit building, an eleventh unit was built in the basement and rented.

In 1966, the former owners of the Hartrey Building petitioned the Zoning Board of Appeals of the City of Evanston for a variance to allow for rental of the eleventh unit. The petition was denied on the grounds that the zoning ordinance in effect in 1966 required a minimum lot size of 11,600 square feet for an 11-unit building and the Hartrey Building lot did not meet this minimum requirement. As the result of the 1966 ZBA decision, the former owners left the eleventh unit vacant for three years. Then, without any change in the legal status of the eleventh unit, the former owners commenced renting the basement unit once again in 1969.

In 1974, plaintiffs purchased the Hartrey Building and rented all 11 units. In 1976, the City filed a quasi-criminal complaint against plaintiffs seeking elimination of the basement unit. Plaintiffs, in turn, filed an action against the City seeking a declaratory judgment and injunctive relief to prevent the elimination of the basement unit. Predicated on the fact that the original building permit issued in 1925 had been for only a 10-unit building, the trial court held that the basement unit was not a legal nonconforming use. Plaintiffs appealed, and in Welch I, this court held that the 1925 application for a building permit for a 10-unit building and the subsequent issuance of the permit for a 10-unit building legally prevented plaintiffs from operating the Hartrey Building as an 11-unit apartment building. Accordingly, the court concluded that because the eleventh unit was not lawfully established at the outset, it could not be a legal nonconforming use. Subsequently, on March 10, 1981, the Illinois Supreme Court denied plaintiffs' petition for leave to appeal as well as their motion for leave to file a motion for reconsideration of the denial.

On March 16, 1981, plaintiffs filed an application for a zoning analysis with the ZBA. Several months later, on June 22, 1981, plaintiffs filed a 22-page document with the ZBA requesting a rehearing of the 1966 ZBA decision on the grounds that the 1966 decision was erroneous on its face and changed circumstances warranted a rehearing. Specifically, plaintiffs alleged the following changed circumstances: (1) scarcity of rental apartments in Evanston; (2) an increase in commercial buildings which raised the demand for rental apartments; (3) the current owner is represented by an attorney while the former owner was not; (4) the ZBA had not been properly informed in 1966 that a 16-unit building could legally have been built on the lot in 1925; and (5) in 1966, the City had offered to allow the eleventh unit if the owner could prove that the Hartrey Building had been built prior to February 16, 1927. Evidence not offered in 1966 would not be offered to establish the construction date.

On July 21, 1987, a hearing was held before the ZBA to determine whether plaintiffs' request for a rehearing should be granted. The ZBA denied plaintiffs' request on the grounds that plaintiffs' petition was merely a restatement of the previously litigated issues.

Subsequently, on September 2, 1981, in total disregard of the Welch I ruling, plaintiffs filed a three-count complaint against the City in the circuit court of Cook County, alleging that the "basement apartment was a legal nonconforming use under Illinois law." In the complaint, plaintiffs admitted that their June 22, 1981, request for a rehearing before the ZBA was a reiteration of the relief requested in 1966. However, plaintiffs requested a declaration that the ZBA decision was erroneous; that plaintiffs had a "clear, legal right to keep, maintain and use" the basement unit; that the zoning requirement was unreasonable and confiscatory as to plaintiffs; and requested the court to reverse the ZBA's decision. The trial court granted the City's motion to strike and dismiss the complaint. Thereafter, the court granted plaintiffs leave to file a second amended complaint, which, on the City's motion, was dismissed with prejudice on the grounds that, based on Welch I, the complaint was barred by the doctrines of res judicata and collateral estoppel.

Meanwhile, despite the ruling in Welch I, plaintiffs refused to desist from renting the basement apartment unit as originally ordered by the trial court on May 11, 1979. As a result, on September 17, 1986, the City filed a petition for rule to show cause why plaintiffs should not be held in contempt of court. Plaintiffs responded that they had not complied with the court's order because they felt that it was erroneous, and they had petitioned the ZBA for a rehearing because of the error. On November 25, 1986, the trial court entered its order directing plaintiffs to comply with the May 11, 1979, court order by vacating the basement unit and abandoning its use as a rental unit within 45 days and finding plaintiffs in contempt. The City's request for sanctions was continued to January 20, 1987, for a hearing. In the interim, plaintiffs filed their notice of appeal which consolidated the appeal from the circuit court's order dismissing plaintiff's complaint on the grounds that it was barred by the doctrines of res judicata and collateral estoppel (No. 86 -- 3030) and the appeal from the order finding plaintiffs in contempt (No. 86 -- 3399).

In a Rule 23 (107 Ill. 2d R. 23) order, dated December 14, 1987 (Welch II), this court affirmed the dismissal of ...


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