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08/08/95 EDWARD KALOO v. ZONING BOARD APPEALS FOR

August 8, 1995

EDWARD KALOO, D/B/A KALOO'S AUTO SERVICE, PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF APPEALS FOR THE CITY OF CHICAGO; JOSEPH J. SPINGOLA, ROULA ALAKIOTOU, ANTHONY J. FORNELLI, LEROY K. MARTIN, JR., AND THOMAS S. MOORE, MEMBERS OF THE ZONING BOARD; JOHN LUFT; JEAN JOHNSON; PAUL WOZNICKI; CARL HANSEN, IMELDA CABRERA; LOZARO VILLAREAL; CONSTANTINE GOLIOTAS; JULIO RAMIREZ; PAUL PETERSON; SUSAN LUND; CARLA GOLDSTEIN; ELIZABETH WHIT; RODGER KENNEDY; LORELEI SWAN; EUGENE SCHULTER; MRS. HANRAHAN; TERRANCE BENCZAK; VICTORIA KHAMIS; TOKIA KHAMIS; SHARON WEISENMEYER; GRAHAM GRADY, ZONING ADMINISTRATOR FOR THE CITY OF CHICAGO; AND THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES. ELIZABETH WHITE, VICTORIA M. KHAMIS, AND HON. EUGENE SCHULTER, PLAINTIFFS-APPELLEES, V. EDWARD KALOO, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE THOMAS O'BRIEN, and ARTHUR DUNNE, JUDGES PRESIDING.

Presiding Justice Scariano delivered the opinion of the court: Hartman and DiVITO, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

Plaintiff purchased the realty located at 4750 North Hermitage Avenue in the City of Chicago (the City) on October 27, 1987. A house and a30' by 50' garage were situated on the property which was zoned R4 General Residence District, although previous owners, including the sellers, had used the garage for commercial purposes. Plaintiff planned to reside in the house with his family and to operate an auto repair shop in the garage. Before closing the transaction, plaintiff inquired of the Chicago Zoning Administrator's office as to whether he could operate his auto repair shop under the current zoning law, and he contends that he was assured by Jean Johnson, a zoning plan examiner, that his intended use of the property was permitted. Johnson's job requires her to answer questions from the public regarding the zoning of property. She did not recall speaking with plaintiff, but the parties stipulated that, when asked, Johnson normally states that a non-conforming use is permitted if it is no more intense than the non-conforming use made of the property by the preceding owner, as measured by its zoning classification.

Plaintiff invested $170,000 in the property, $65,000 of which financed the repair shop in the garage. After plaintiff purchased the property in December 1987 or January 1988, the city issued him a license to run his auto repair shop. In January 1988, the Zoning Administrator sent plaintiff a cease and desist letter, stating that the operation of a motor vehicle repair shop from his garage was illegal because the property was zoned residential. Plaintiff claims that he did not receive the letter. On March 23, 1988, the Zoning Administrator rescinded the zoning certificate which was necessary to plaintiff's being issued a license, and the Department of Revenue accordingly revoked the license. Plaintiff appealed that decision to the Zoning Board of Appeals (ZBA).

On August 4, 1988, the ZBA reversed the administrator, ruling that plaintiff could operate his business under certain conditions, including that: (1) he perform no body work, spray painting or engine rebuilding on the premises; (2) he conduct all repair work inside the garage; (3) he store no vehicles in the process of being repaired on the property site, city streets, sidewalks or alleys; (4) he store all such vehicles inside the garage; (5) his hours of operation run between 8 a.m. and 6 p.m. daily; and (6) he comply with all ordinances of the City of Chicago. Meanwhile, on July 1, 1988, the City had renewed plaintiff's license for one year.

Objectors, consisting of several neighbors and Alderman Schulter, appealed the ZBA's ruling, contending inter alia, that the ZBA failed to consider all of the factors set forth in section 6.4-7 of the Municipal Code relating to changes in non-conforming uses. The circuit court agreed with the objectors and reversedthe ZBA, remanding the matter for a full evidentiary hearing, and directing the ZBA to examine all of the factors outlined in section 6.4-7. Plaintiff appealed from this decision, but, on January 10, 1991, we dismissed the appeal for want of jurisdiction, holding that the reversal and remand order was not a final one.

On remand, the ZBA, now with four new members, heard testimony and examined documentary evidence over several days. The ZBA's findings of facts included that the alley had been blocked by automobiles, that plaintiff had engaged in open spray painting of vehicles, that plaintiff used an air compressor machine, and that plaintiff had done repair work during non-business hours. The ZBA determined that plaintiff's non-conforming use of the property "unfairly infringed upon the health, safety and welfare of the residents in the community" and that it was not similar to or more restrictive than the prior non-conforming use. It therefore vacated its earlier decision and affirmed the administrator's ruling.

Plaintiff sought administrative review of the ZBA's ruling and was granted a stay of the ruling contingent upon his conforming with the conditions set forth in the 1988 ZBA order. Plaintiff argued that the City was estopped from enforcing section 6.4-7 because he had relied to his detriment on its assurances that he could operate his business and on its issuance of a license for the business. The circuit court found that equitable estoppel did not apply because plaintiff's reliance on the oral representation of an agent whose functions were only ministerial, was not reasonable in the absence of an act of the municipality, such as legislation. In addition, the court noted that the license was not issued until after plaintiff purchased the property and that one month after its issuance, he received a cease and desist order. It also found that plaintiff's awareness that he was engaging in a non-conforming use should have led him to expect some limitations on the scope and intensity of his business. The court then held that the ZBA's decision was not against the manifest weight of the evidence, and it granted a stay pending appeal to this court. *fn1

Plaintiff argues, as he did before the circuit court, that the Cityshould be estopped from revoking his zoning authorization. In support of this argument, he claims: that he relied upon assurances from the City that he could operate his auto repair shop in the garage when he invested $65,000 in the shop; that the City failed to act to revoke his license until March 1988, three months after it was issued; that there is no evidence that the January 1988 cease and desist letter was sent to him; that no proceedings against him were initiated in circuit court; that he has never been cited for violating conditions contained in the 1988 ZBA order; and that the City renewed his license in July 1988.

Plaintiff finds his case "no different" than Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 171 N.E.2d 605, the leading supreme court case on the doctrine of estoppel as applied to municipalities. In Cities Service, the plaintiff purchased property in the City of Des Plaines upon which it planned to build a gas station. The seller had obtained a building permit for its construction and the building commissioner approved the transfer of the permit to the plaintiff. About three weeks after construction began, the city halted the work and the mayor subsequently revoked the permit because, in violation of a zoning ordinance, the station would be less than 300 feet from a church. By that time, the plaintiff had invested over $5,000 in the project and would have to expend over $1,000 more to remove the improvements. Cities Service, 21 Ill. 2d at 158-59, 171 N.E.2d at 606.

The plaintiff had attempted to obtain copies of ordinances relating to service stations before it began building the station, but it had been given a copy of an outdated ordinance and, as a result, had no knowledge that its activity was in violation of the ordinance. Furthermore, evidence introduced at trial showed that the operation would not create a greater hazard to the health and safety of the public than other permitted uses of property in the vicinity. The circuit court held that the city was estopped from enforcing the ordinance, reasoning that construction was initiated by the plaintiff upon "affirmative action and apparent approval by the public authorities." Cities Service, 21 Ill. 2d at 159, 171 N.E.2d at 607.

The supreme court agreed. The court reiterated the general principles that "a city cannot be estopped by an act of its agent beyond the authority conferred upon him"; that the onus is on the individual or entity dealing with a governmental body to ascertain that the agents of that body act within their bounds; and that this is true even if the agent is unaware of the limits of her authority. ( Cities Service, 21 Ill. 2d at 160, 171 N.E.2d at 607.) The court explained that "in matters involving strictly public rights the courts do notinterpose to hold the municipality estopped except under special circumstances which would make it highly inequitable or oppressive to enforce such public rights." ( Cities Service, 21 Ill. 2d at 161, 171 N.E.2d at 607.) Such special circumstances can be demonstrated by a party's showing that (1) its actions were "induced by the conduct of municipal officers"; and (2) that the denial of relief would result in "substantial loss and the municipality would be permitted to stultify itself by retracting what its agents had done." ( Cities Service, 21 Ill. 2d at 161, 171 N.E.2d at 608.) The court emphasized, however, that if a party is aware of an ordinance or makes no attempt to learn of the applicable ordinances, the issuance of a permit in violation thereof will not result in a finding that the city is estopped from revoking the permit. Moreover, even in the absence of such knowledge, "the mere issuance of an unauthorized permit and reliance thereon to one's injury does not provide grounds for relief." ( Cities Service, 21 Ill. 2d at 163, 171 N.E.2d at 609.) Noting that the city essentially ratified the issuance of the permit to build a service station by failing to act to revoke the permit for seven months, the court found that the circumstances in Cities Service warranted application of the doctrine of equitable estoppel against the city. Cities Service, 21 Ill. 2d at 163, 171 N.E.2d at 609.

The case at bar is readily distinguishable, as the circuit court noted. First, plaintiff purchased the property prior to obtaining his license to operate the auto repair shop; he therefore did not rely on the issuance of the license when investing in the property. In addition, even if a zoning department employee informed him that his intended use was proper, reliance on that verbal assurance was unjustified, given that she could not assess whether his non-conforming use would be similar to or less intensive than the prior use. (See Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 1003, 350 N.E.2d 17, 19 (the unauthorized act or representation of a ministerial officer is not an affirmative act which induces reliance). Finally, unlike Cities Service, the City did not wait seven months to revoke plaintiff's license. Assuming arguendo, that plaintiff did not receive the cease and desist letter written within one month of the issuance of the license, the City acted within three months to revoke the license. Although plaintiff's license was renewed during the pendency of the first proceeding before the ZBA, the mistaken issuance of a license in violation of an ordinance does not result in application of estoppel against the City. (See City of Chicago v. Unit One Corp. (1991), 218 Ill. App. 3d 242, 246, 578 N.E.2d 194, 197-98, 161 Ill. Dec. 67.) Moreover, since plaintiff was aware that his operation of the auto repair shop was in jeopardy when he received ...


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