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Ropiy v. Hernandez

December 6, 2005

YURIY ROPIY, PLAINTIFF-APPELLANT,
v.
RAFAEL HERNANDEZ, DIRECTOR OF THE DEPARTMENT OF CONSTRUCTION AND PERMITS, AND THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Mary Anne Mason, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

Modified Upon Denial of Rehearing February 7, 2006

The question here is whether a property owner's plan to tear down one building and build another was trumped by a proposed change in zoning. Plaintiff, Yuriy Ropiy, filed a complaint for a writ of mandamus, requesting the trial court order defendants, the City of Chicago (City) and Rafael Hernandez, Director of the Department of Construction and Permits, to issue wrecking and building permits for his property. Defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2004)), contending the permits were properly denied because an amendatory zoning ordinance had been introduced in the Chicago City Council before Ropiy completed purchase of the property. The trial court granted defendants= motion.

On appeal, Ropiy contends: (1) the trial court erred in dismissing his complaint because he established a vested right to the prior zoning classification; (2) the amendatory zoning ordinance was invalid as applied because he did not receive adequate notice of it, in violation of his due process rights; and (3) the issue of whether he had acquired a vested right was a question of fact. We affirm.

FACTS

In April 2003, Ropiy entered into a contract to purchase property located at 2708 W. Evergreen in Chicago, Illinois, for $159,000. Ropiy intended to tear down a single-family residence located on the property and construct a three-unit residential building in its place. The property was zoned R-4 at the time the purchase contract was signed. It allowed a three-unit building to be constructed. Ropiy says he would not have purchased the property if he had known he could not construct the three-unit building.

On June 4, 2003, Alderman Billy Ocasio proposed an ordinance to change the zoning classification for a particular area from R-4 to R-3. The area included 2708 W. Evergreen. The proposed zoning change would not allow the construction of a three-unit building on the property. The ordinance was published in the Journal of Proceedings for the Chicago City Council on July 9, 2003.

On July 15, 2003, the property was deeded to Ropiy, who then filed a wrecking permit application with the City. Between July and August 2003, Ropiy expended $24,350 on contractors, structural plans, architectural plans, and mortgage costs while preparing to construct the three-unit building. Ropiy recorded his deed and submitted an application for a building permit on August 12, 2003. Ropiy says he was unaware of the proposed zoning ordinance amendment at that time. The permit applications were held at Alderman Ocasio=s request, pending the outcome of the proposed zoning ordinance amendment.

On July 17, 2003, the Committee on Zoning conducted a search of the tax records to determine the property owners affected by the proposed zoning amendment. Henry Ramirez was listed as the taxpayer of record for the property. On February 19, 2004, the City sent letters notifying taxpayers on the list about a public hearing to be held on the proposed zoning amendment March 25, 2004. Ropiy did not receive a letter, and a notice was not posted on his property regarding the proposed zoning change. After conducting the hearing, the City Council passed the zoning ordinance amendment on March 31, 2004. It became effective after it was published on May 5, 2004.

Pavel Smelyansky, Ropiy=s agent, regularly spoke with Alderman Ocasio=s office regarding when the wrecking and building permits would be issued. Smelyansky was told any delay in the issuance of the wrecking and building permits was due to an Aaldermanic hold.* Smelyansky was never told the permits would not be issued because of a pending ordinance intended to change the zoning for the property.

On September 22, 2004, Ropiy filed a verified complaint for a writ of mandamus, requesting that the trial court order the Building Department and the City to issue wrecking and building permits for the property. Defendants filed a section 2-619(a)(9) motion to dismiss, contending the permits were properly held, then denied, because an ordinance changing the zoning and precluding the planned development had been introduced before Ropiy purchased the property.

In response, Ropiy contended the pending ordinance doctrine did not apply because he had established a vested property right when he applied for the permits.

On November 1, 2004, the trial court granted defendants= motion to dismiss, noting:

Aplaintiff did not have a property interest prior to the time the ordinance was introduced in the City Council, did not own the property prior to the time the ordinance was introduced -- the amendment was introduced, acquired the property thereafter and although he may have been subjectively unaware of the pending change, the fact of the matter is the introduction of the proposed amendment was of public record and, therefore, I believe he had constructive knowledge.*

The trial court concluded any other result would Athrow the predictability of changes to municipal zoning ordinances into absolute chaos.* Ropiy then filed a motion to reconsider the order. It was denied by the trial court.

DECISION

I. Vested ...


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