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Ryan v. The City of Chicago

Court of Appeals of Illinois, First District, Third Division

December 11, 2019

SHEILA RYAN, Plaintiff-Appellant,
THE CITY OF CHICAGO and JUDY FRYDLAND, in Her Official Capacity as Acting Commissioner of the Department of Buildings for the City of Chicago, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County 2016-CH-002275 Honorable Kathleen M. Pantle, Judge Presiding

          Attorneys for Appellant: David S. Ruskin and Katherine H. Oblak, of Horwood Marcus & Berk Chtrd., of Chicago, for appellant.

          Attorneys for Appellee: Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Stephen G. Collins, Assistant Corporation Counsel, of counsel), for appellees.

          PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Justice Gordon specially concurred, with opinion.



         ¶ 1 This is one of two actions Sheila Ryan is pursuing because a house was constructed in close proximity to her long-term residence. Ryan lives at 640 West 37th Street, in Chicago's Bridgeport neighborhood, in a one-story brick bungalow that was built more than 100 years ago on or near her east property line. In 2015, a two-story brick residence was built on what had been open space to the west at 638 West 37th Street (638 West). Ryan's property survey indicates the new construction is only 1.42 feet east of her lot line. Ryan sought a writ of mandamus against the City of Chicago and Judy Frydland as the commissioner of the municipality's Department of Buildings to direct "[t]hat the west wall of the new house be built in compliance with the two foot Minimum Side Setback" set out in the local zoning ordinance (Zoning Ordinance). Chicago Municipal Code § 17-1-0100 et seq. (added May 26, 2004). Ryan's mandamus count also asked "[t]hat the permit for the structure at 638 W. 37th Street be revoked with a direction from the City of Chicago that plans in compliance with the Chicago Zoning Ordinance be submitted," that the municipality "take the necessary actions to ensure compliance" with the Zoning Ordinance and the municipal building code, and for entry of "[s]uch other and further relief as this Court deems appropriate." The circuit court granted a motion to dismiss by the municipality and the commissioner after finding that Ryan failed to allege a clear, nondiscretionary duty of the defendants to seek remedies or use enforcement powers for violations of the Zoning Ordinance. See 735 ILCS 5/2-615 (West 2018) (providing for dismissal for failure to state a claim). Ryan's appeal from the dismissal order is interlocutory due to her pending count for a mandatory injunction that directs the homebuilder and the new property owner "to move the west wall of the structure at 638 W. 37th Street" to achieve a two-foot setback. Also pending in the circuit court is Ryan's separate action seeking administrative review of the decision of the Zoning Board of Appeals of the City of Chicago (Zoning Board) to grant the homebuilder and the property owner a variance from the standard two-foot setback.

         ¶ 2 The following factual recitation was compiled from the record and the order we entered in Ryan's prior interlocutory appeal regarding her administrative review action. ¶ 3 Building contractor Raymond T. DeGrazia and his company purchased the two lots that are east of Ryan's land in 2014 with the intention of constructing a pair of two-story residences. Each lot is roughly 25' wide by 109' long. At the time, 638 West, the lot immediately east of Ryan's land, was improved with only a garage at the back of the property and the front of the property adjacent to Ryan's residence was open space. The next east lot, 636 West 37th Street, was improved with a two-story brick building. DeGrazia's nephew, Anthony DeGrazia, would subsequently testify at a zoning variance hearing that he thought Ryan "just did not like [that] the home [was] being built" next to her residence.

         ¶ 4 In March 2015, Laura Sheehan and James Sheehan contracted to purchase the land and finance the construction of a home on 638 West. Chicago's Zoning Ordinance limits the height of buildings and provides the minimum distances they must be "set back" from property boundaries on each side. See Chicago Municipal Code § 17-2-0300 et seq. (amended Apr. 15, 2015). In April 2015, concrete foundations were poured for the builder's two new residences. The builder intended for the Sheehans' foundation to be two feet from their west property line, in conformance with the RS-3 zoning classification on the north side of 37th Street. The concrete subcontractor, however, made a mistake when staking out the foundation, and the mistake was exacerbated because the subcontractor measured from the back of the lot rather than from the front, Ryan's home "is not built straight," and the front of her house angles closer to the Sheehans' lot. The proximity of the houses is further narrowed by the overhang of Ryan's pitched roof encroaching into the setback. (Ryan's "overhang is recorded against title.")

         ¶ 5 By the time the builder realized the Sheehans' foundation was in the wrong place, the walls and roof were also complete and it was no longer cost effective to alter the construction. Ryan rejected the builder's attempts to amicably resolve her concerns about her adjacent residence. In October and November 2015, respectively, she filed her mandamus action and the builder and the Sheehans asked the municipal zoning administrator for a zoning variance. The Sheehans closed on their purchase of 638 West in January 2016.

         ¶ 6 After her mandamus count had been pending for a year, Ryan filed a first amended complaint in late 2016. Ryan did not disclose that although the administrator had declined to grant a variance to the builder and the Sheehans, the Zoning Board had ruled in their favor in June 2016. After an evidentiary hearing, the board granted a 2.5 inch reduction to the R-3 standard setback. In reaching its decision, the board found that strict compliance would create a hardship on the builder and/or the new owner; the small encroachment was a mistake, not profit-motivated, and would not impact public safety or be injurious to other property; and a variance would not alter the essential characteristics of the neighborhood. Despite the board's findings and approval, Ryan alleged in her first amended mandamus count that the other side yards in her neighborhood are of sufficient width to easily allow passage between the residences, but that no person, including emergency responders, can walk between the Ryan and Sheehan residences and that it is impossible to make an emergency exit from Ryan's bedroom window. She also alleged that the close proximity of the two homes was blocking her access to sunlight and preventing maintenance on either structure. Ryan also sought a mandatory injunction to obtain compliance with the R-3 standard setback and to be compensated for the unlawful taking of her property.

         ¶ 7 After the circuit court dismissed Ryan's mandamus count with prejudice in June 2017, she filed a second amended complaint in order to amend her injunctive relief count only and make apparent that her property survey indicates that the Sheehan residence encroaches beyond the variance that the board granted. Ryan abandoned her unlawful taking count. Her injunctive relief count has been stayed by the circuit court pending this Rule 304(a) interlocutory appeal limited to the mandamus count. Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010). As we noted above, Ryan filed a separate action seeking the circuit court's review of the board's decision to grant a zoning variance for the new construction at 638 West. That case was dismissed when the circuit court determined that the summons Ryan issued to the home's buyer was facially defective and did not confer personal jurisdiction. However, we reversed that determination, and Ryan's administrative review action is now pending in the circuit court. See Ryan v. Zoning Board of Appeals, 2018 IL App (1st) 172669, 116 N.E.2d 442.

         ¶ 8 In this appeal from the dismissal of her mandamus count, Ryan contends that it was error to find that she failed to factually state the elements of her claim. Ryan alleged the following statute permitted her to bring a private action to prevent the adjacent violation of the Zoning Ordinance and also entitled her to shift her attorney fees. At appellate arguments, however, she told this court that she would omit this statute if she were to amend her pleading:

"In case any building or structure, including fixtures, is constructed, *** in violation of an ordinance or ordinances adopted under Division 13 [(concerning zoning)], 31 [(concerning unsafe property)] or 31.1 [(concerning building code violations)] of the Illinois Municipal Code, *** the proper local authorities of the municipality, or any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, *** or (4) to restrain, correct, or abate the violation. ***
In any action or proceeding for a purpose mentioned in this section, the court with jurisdiction of such action or proceeding has the power and in its discretion may issue a restraining order, or a preliminary injunction, as well as a permanent injunction, upon such terms and under such ...

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