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1350 Lake Shore Associates v. Hill

November 29, 2001

1350 LAKE SHORE ASSOCIATES, AN ILLINOIS LIMITED PARTNERSHIP, PLAINTIFF-APPELLANT,
v.
CHRISTOPHER R. HILL, COMMISSIONER, DEPARTMENT OF PLANNING AND DEVELOPMENT OF THE CITY OF CHICAGO, AND CITY OF CHICAGO, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES,
AND EDWARD T. JOYCE, CARL HUNTER, JOHN STASSEN, JOHN C. MULLEN, CLARK W. FETRIDGE, RESPICIO F. VASQUEZ, AND BERNARD J. MILLER, INTERVENORS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Hoffman

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Julia M. Nowicki Judge Presiding.

The plaintiff, 1350 Lake Shore Associates (LSA), appeals from a circuit court order, entered following a bench trial, denying its petition for a writ of mandamus directing the defendant, Christopher R. Hill, Commissioner of the Department of Planning and Development of the City of Chicago (Commissioner), to issue it a Part II Approval letter, a necessary prerequisite to the issuance of a building permit for construction within a residential planned development. For the reasons which follow, we reverse.

At all times relevant to this appeal, LSA has owned the property located at 1320-30 Lake Shore Drive in Chicago, Illinois (the property). On April 5, 1978, LSA, through its agent Draper and Kramer, Inc., (Draper), filed an application to amend the property's zoning from "R8 General Residence" to a residential planned development which would permit the construction of a high-rise apartment building. On November 14, 1978, the Chicago City Council approved the requested amendment and established "Residential Planned Development 196" (RPD 196), permitting construction of a 40-story, 196-unit apartment building on the property.

After having secured the passage of RPD 196 in 1978, LSA chose not to develop the property at that time. Sometime in 1996, LSA, again through its agent Draper, began investigating the possibility of developing the property in conformity with RPD 196. It ultimately decided to go forward with the project. Draper hired an attorney, Jack Guthman, to represent it in connection with the project, hired an architect to draw up plans, and took other steps toward development. *fn1 The plan to construct a high-rise apartment building, however, met with community opposition. On December 10, 1997, Charles Bernardini, then alderman of Chicago's 43rd Ward, the ward in which the property is located, introduced an ordinance (hereinafter referred to as the down-zoning ordinance) proposing to change the property's zoning from RPD 196 to "R6 General Residence District," under which the proposed building would not be a permitted use.

On December 11, 1997, the day after Alderman Bernardini introduced the down-zoning ordinance, the project architect submitted plans (Part II Submittal) to the Department of Planning and Development of the City of Chicago (Department of Planning), seeking the issuance of a Part II Approval letter. Prior to trial, the parties stipulated that "[u]nder the City's policies and procedures, a Part II Submittal is a necessary precondition to the issuance of a Part II Approval Letter" and that "[u]nder those same policies and procedures, Plaintiff cannot obtain a building permit without receiving a Part II Approval Letter." Although the parties have not provided us with a citation to or copy of any "policies and procedures" which use the terminology Part II Submittal and Part II Approval, it appears that the Part II process is undertaken pursuant to Article 11 of the Chicago Zoning Ordinance (Zoning Ordinance), which sets forth the procedures and substantive standards with respect to, inter alia, the issuance of zoning certificates. Section 11.5 of the Zoning Ordinance, entitled Zoning Certificates, provides, in relevant part, that

"no permit pertaining to the use of land or buildings shall be issued by any officer, department, or employee of this City unless the application for such permit has been examined by the Office of the Zoning Administrator and has affixed to it a certificate of the Office of the Zoning Administrator that the proposed building or structure complies with all the provisions of this comprehensive amendment." Chicago Zoning Ordinance §11.5 (amended 7-21-99).

The Part II process of review by the Commissioner of the Department of Planning is apparently conducted pursuant to section 11.11-3(b) of the Zoning Ordinance, which provides, in relevant part, as follows:

"After the adoption of a planned development ordinance, every application for a permit or license within the planned development boundaries shall be reviewed by the Commissioner of Planning and Development for a determination that the proposed use, building or structure complies with all provisions of the planned development ordinance. Zoning and occupancy certificates shall be issued by the Zoning Administrator for uses, buildings or structures within the planned development only upon receipt of written approval by the Commissioner of Planning and Development." Chicago Zoning Ordinance §11.11-3(b) (amended 12-11-91).

Accordingly, it appears that a Part II Approval from the Commissioner is a prerequisite to the issuance of a zoning certificate, which is, in turn, a prerequisite to the issuance of a building permit.

As stated, the project architect submitted the plans to the Department of Planning on December 11, 1997. The Commissioner, however, took no action. On February 13, 1998, Guthman, the attorney Draper hired for the project, wrote to assistant commissioner Phil Levin, requesting a response to the Part II Submittal. On March 4, 1998, an associate of Guthman's wrote to Levin requesting that the Part II Approval letter be issued. Guthman made yet another such written request dated April 16, 1998. On April 29, 1998, the Chicago City Council approved the down-zoning ordinance, which became effective on May 20, 1998. When this case proceeded to trial in January 2000, the Commissioner had still not responded to the Part II Submittal.

LSA filed its initial complaint in the instant matter, docketed as number 98 CH 11371, on August 25, 1998, naming as defendants the Commissioner and the City of Chicago (hereinafter referred to collectively as the City defendants). The City defendants moved to dismiss LSA's complaint, arguing, in part, that LSA failed to give neighboring property owners notice, as required by section 11-13-8 of the Illinois Municipal Code (65 ILCS 5/11-13-8 (West 1998)), of those counts of the complaint in which it sought a declaration that the down-zoning ordinance is invalid. Subsequently, on January 15, 1999, LSA filed a separate but substantially similar complaint, docketed as number 99 CH 00674, to which it attached a certificate of compliance with the relevant notice requirement. The trial court granted LSA's motion to consolidate the two cases and denied the City defendants' pending motion to dismiss. Edward T. Joyce, Carl Hunter, John Stassen, John C. Mullen, Clark W. Fetridge, Respicio F. Vasquez, and Bernard J. Miller (hereinafter referred to collectively as the intervenors), all of whom owned property located within 250 feet of LSA's property and had received notice of the filing of the second complaint, filed their appearances in the consolidated action. *fn2

On April 19, 1999, LSA filed a three count first amended complaint in the consolidated action. Count I sought a writ of mandamus directing the Commissioner to issue LSA a Part II Approval letter. Count II sought a declaration that the down-zoning ordinance does not affect LSA's right to develop the property in conformity with RPD 196 and an injunction barring the City from enforcing the down-zoning ordinance against it. Count III sought a declaration that the down-zoning ordinance is void. Although the statutory provision pursuant to which the intervenors had been served notice did not require that they be given notice of LSA's count seeking a writ of mandamus (see 65 ILCS 5/11-13-8 (West 1998)), the trial court later granted the intervenors leave to intervene as to that count.

In its first amended complaint, LSA alleged, inter alia that "RPD 196 established legally binding development rights for the plaintiff for a period of twenty (20) years" and that the proposed building to be constructed on the property complies with RPD 196. Both the City defendants and the intervenors denied LSA's allegation that RPD 196 established legally binding rights for a period of 20 years. The City defendants admitted LSA's allegation that the proposed building complies with RPD 196, but the intervenors stated that they lacked sufficient knowledge or information to form a belief as to the truth or falsity of that allegation. On appeal, both the City defendants and the intervenors continue to argue that LSA's ...


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