1350 Lake Shore Associates v. Casalino

• Decision Date: 28 December 2005
• Docket Number: No. 1-04-3379.,1-04-3379.
• Citation: 842 N.E.2d 274
• Parties: 1350 LAKE SHORE ASSOCIATES, an Illinois limited partnership, Plaintiff-Appellant, v. Denise M. CASALINO, Commissioner, Department of Planning and Development of the City of Chicago, and City of Chicago, an Illinois municipal corporation, Defendants-Appellees, Edward T. Joyce, Carl Hunter, John Stassen, John C. Mullen, Clark W. Fetridge, Respicio F. Vasquez, and Bernard J. Miller, Intervenors-Appellees.
• Court: United States Appellate Court of Illinois

842 N.E.2d 274

1350 LAKE SHORE ASSOCIATES, an Illinois limited partnership, Plaintiff-Appellant, v. Denise M. CASALINO, Commissioner, Department of Planning and Development of the City of Chicago, and City of Chicago, an Illinois municipal corporation, Defendants-Appellees Edward T. Joyce, Carl Hunter, John Stassen, John C. Mullen, Clark W. Fetridge, Respicio F. Vasquez, and Bernard J. Miller, Intervenors-Appellees.

No. 1-04-3379.

Appellate Court of Illinois, First District, Third Division.

December 28, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

DLA Piper Rudnick Gray Cary US LLP, Chicago (Thomas F. Geselbracht and Kenneth L. Schmetterer, of counsel), for Appellant.

Mara S. Georges, Corporation Counsel, Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Kerrie Maloney Laytin, of counsel), for Appellee.

Hedlund & Hanley, LLC, Chicago (Reuben L. Hedlund, Jack Joseph and Sarah J. Deneen, of counsel), for Intervenors.

Presiding Justice HOFFMAN delivered the opinion of the court:

The plaintiff, 1350 Lake Shore Associates (LSA), appeals from an order entered following our remand of this cause by which the circuit court: (1) refused to enjoin the City of Chicago and its agents from applying any provision of the Chicago Zoning Ordinance which would prevent LSA from constructing a high-rise building at 1320-30 Lake Shore Drive in accordance with the terms of a residential planned development ordinance which was passed in November 1978; and (2) entered a declaratory judgment that LSA was not entitled to a zoning certificate or building permit in connection with the plans it submitted to the Department of Planning and Development of the City of Chicago (Department of Planning) for the construction of the building. For the reasons which follow, we affirm.

This case is before us for the fourth time on appeal. As a result, we will recite only the procedural history and facts necessary to understand the issues presented in the instant appeal.

At all times relevant to this appeal, LSA owned the property located at 1320-30 Lake Shore Drive (hereinafter referred to as "the property"). On November 14, 1978, the Chicago City Council approved LSA's application to change the property's zoning from an "R8 General Residence District" classification to "Residential Planned Development 196" (RPD 196), permitting the construction of a 40-story, 196-unit apartment building on the property. LSA, however, chose not to develop the property in accordance with RPD 196 at that time. On December 10, 1997, Charles Bernardini, then alderman of Chicago's 43rd 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 an "R6 General Residence District", under which LSA's proposed building was not a permitted use. The following day, LSA's project architect submitted plans for a high-rise building (Part II Submittal) to the Department of Planning, seeking the issuance of a Part II Approval letter. For property located in a planned development, a Part II Approval letter certifying that the architectural plans submitted comply with all the provisions of the applicable planned development ordinance is a prerequisite to the issuance of a zoning certificate which, in turn, is a prerequisite to the issuance of a building permit. See Chicago Zoning Ordinance § 11.5 (amended 7-21-00), § 11.11-3(b) (amended 12-11-91). Although the plans submitted by LSA fully complied with the requirements of RPD 196, the Department of Planning took no action on LSA's Part II Submittal. On April 29, 1998, the Chicago City Council approved the down-zoning ordinance which became effective on May 20, 1998.

LSA filed its initial complaint in this action naming as defendants the Commissioner of the Department of Planning (Commissioner) and the City of Chicago (City) (hereinafter referred to collectively as the "City defendants"). Thereafter, 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 own property located within 250 feet of the subject property, were granted leave to intervene. LSA's original three-count complaint was amended a number of times during the proceedings. In count I of its first-amended complaint, LSA sought a writ of mandamus directing the Commissioner to issue a Part II Approval letter. Count II sought a declaration that the down-zoning ordinance did 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, along with a subsequently-enacted ordinance imposing a 125-foot height limitation on any new construction, were both void. The circuit court later granted LSA's motion to voluntarily dismiss count II.

Separate bench trials were conducted on counts I and III of LSA's amended complaint.¹ The evidence introduced at the trial on count I established the following relevant facts.

After having secured the passage of RPD 196 in 1978, it was not until sometime in 1996 that LSA, through its agent, Draper and Kramer, Inc. (Draper), began investigating the possibility of developing the property in conformity with RPD 196. LSA eventually authorized Draper to proceed with the project on its behalf. To this end, in early 1997, Draper, acting on behalf of LSA, hired Jack Guthman, an attorney specializing in zoning law, to represent it in connection with the project, and also hired Solomon Cordwell Buenz & Associates, Inc. (SCB) to render architectural services for the proposed development. Draper subsequently hired a surveyor, an urban planner, an elevator consultant, and an artist to create a rendering from the architect's conceptual drawings.

Upon being hired, Guthman suggested that, as a measure of "good zoning practice," representatives of Draper should meet with Bernardini and members of the surrounding community regarding the proposed project. In the spring of 1997, a meeting took place at Draper's office between Guthman; William Bennett, president and chief executive officer of Draper; William VanSenus, an employee of Draper; and Bernardini. Guthman estimated that the meeting took place in April or May 1997. At the meeting, Bernardini was informed of the property's existing zoning and shown preliminary building designs. Guthman and the Draper representatives testified that Bernardini requested that additional parking spaces be provided in the building. VanSenus added that the alderman asked if the facade of the building could be improved. Aside from these requests, the three men testified that Bernardini made no mention of opposition from community members or that he was considering down-zoning the property. For his part, Bernardini acknowledged that he did not mention down-zoning at the meeting. However, he stated that he informed Guthman and the Draper representatives that the proposed development would be controversial due to its size and density and that, if they wanted his support, they should meet with neighborhood organizations and reach some kind of an agreement. In an effort to accommodate Bernardini's requests, Draper subsequently instructed SCB to modify the building plans by adding more parking spaces and changing the design of the building's facade.

Guthman testified that, after the initial meeting with Bernardini, the two met for lunch on August 1, 1997. Guthman stated that he was certain of this date because it was noted in his diary. On cross-examination, Guthman was asked about an affidavit filed prior to trial in which he averred that this meeting took place "[s]hortly after" the initial meeting. When questioned about the discrepancy, Guthman stated that he was sure that the second meeting did not take place prior to August 1, 1997. According to Guthman, Bernardini mentioned at the meeting that some residents wanted the property down-zoned. Guthman testified, however, that Bernardini did not express an intention to introduce a down-zoning ordinance; rather, the alderman merely asked whether the density of the building could be reduced. Bernardini, on the other hand, testified that, following the initial meeting, he had "regular periodic discussions" with Guthman when the two of them would see each other at zoning committee meetings or social affairs. When asked when he first mentioned to any Draper representative that he was considering the possibility of down-zoning the property, Bernardini stated that it was "shortly after" his first meeting with them. Bernardini testified that he told Guthman that he was getting an increasing number of neighborhood complaints about the project, that he had been asked to down-zone the property, that down-zoning was "certainly a consideration if they weren't able to reach a compromise", but that he was hopeful that a compromise could be reached. Bernardini did not think that this conversation with Guthman took place as late as August 1, 1997, and reiterated that it was shortly after the initial meeting. He further testified that he made it clear to Guthman from very "early on" that, if no compromise was reached, the property would be down-zoned. Guthman testified that, following the second meeting with Bernardini, he reported to Draper that the alderman had been asked to down-zone the property and that it was important to find a way to resolve the matter.

In October 1997, Draper representatives met with Bernardini and showed him the revised plans for the project. Bernardini told them to show the plans to the community representatives. VanSenus testified that the alderman did not mention at the meeting that he was going to down-zone the property. According to Guthman, he again spoke to Bernardini some time after October 22,1997. Guthman stated that it...