1350 Lake Shore Associates v. Casalino

• Citation: 816 N.E.2d 675,287 Ill.Dec. 708,352 Ill. App.3d 1027
• Decision Date: 01 September 2004
• Docket Number: No. 1-03-1248.,1-03-1248.
• 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

816 N.E.2d 675

352 Ill. App.3d 1027

287 Ill.Dec. 708

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. 1-03-1248.

Appellate Court of Illinois, First District, Third Division.

September 1, 2004.

(Thomas F. Gesebracht & Kenneth L. Schmetterer, of counsel), Piper Rudnick LLP, Chicago, for Appellant.

(Lawrence Rosenthal, Deputy, Benna Ruth Solomon, Chief Assistant & Kerri Maloney Laytin, Assistant, of counsel), for Defendants-Appellees.

(Reuben L. Hedlund, James W. Joseph & Erin H. Walz, of counsel), for Intervenors-Appellees.

Presiding Justice HOFFMAN delivered the opinion of the court:

The plaintiff, 1350 Lake Shore Associates (LSA), appeals from a circuit court order entered following a bench trial, granting judgment in favor of the defendant, the City of Chicago, and the intervenors to this action on count III of LSA's fourth-amended complaint. At issue before the court was the constitutionality of a down-zoning ordinance and subsequent height limitation ordinances which LSA claimed affected its right to construct a high-rise apartment building on its lake-front property. The circuit court ruled that the ordinances are constitutionally valid as applied to the subject property and, for the reasons which follow, we affirm.

This case is before us for the third time on appeal. As a consequence, 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 (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), thereby permitting the construction of a 40-story, 196-unit apartment building on the property. It was not until sometime in 1996 that LSA began investigating the possibility of developing the property in accordance with RPD 196. On December 11, 1997, LSA's 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, which is a prerequisite to a zoning certificate and which, in turn, is a prerequisite to the issuance of a building permit. The Commissioner of the Department of Planning, however, took no action on LSA's Part II Submittal. On April 29, 1998, the Chicago City Council approved an ordinance (hereinafter referred to as the "down-zoning ordinance") which changed 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 Chicago City Council later passed two ordinances (hereinafter referred to as the "height limitation ordinances") which imposed height limitations on any new construction in the area in which the property was located. Specifically, on January 20, 1999, an ordinance creating the Near North Historic Areas I and II was enacted. This ordinance imposed a 125-foot height limitation on any new construction located in these areas. On July 21, 1999, an ordinance was enacted which imposed height limits depending on the underlying zoning classification. For property located in an R6 zoning district, the height limitation is 90 feet or 8 stories, whichever is greater.

LSA filed its initial complaint in this action on August 25, 1998, 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"). Subsequently, 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 amended its original three-count complaint numerous times during the proceeding. In count I of its first-amended complaint, LSA sought a writ of mandamus directing the Commissioner to issue it 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. The circuit court later granted LSA's motion to voluntarily dismiss count II.

The circuit court conducted separate bench trials on counts I and III of LSA's amended complaint. On March 9, 2000, following the trial on count I, the court entered judgment in favor of the City defendants and the intervenors, thereby denying LSA's request for a writ of mandamus directing the Commissioner to issue it a Part II Approval. On appeal, we reversed the court's judgment and remanded the case to the circuit court with directions that it issue a writ of mandamus requiring the Commissioner to issue a Part II Approval to LSA. 1350 Lake Shore Associates v. Hill, 326 Ill.App.3d 788, 260 Ill.Dec. 577, 761 N.E.2d 760 (2001) (hereinafter referred to as "Lake Shore I").

On remand, LSA filed a "Motion for Entry of Final Judgment Order" in which it requested that the circuit court enter orders: (1) requiring the Commissioner to issue it a Part II Approval; (2) requiring the Zoning Administrator, upon receipt of the Part II Approval, to issue a zoning certificate; and (3) "enjoining the City and its agents from enforcing the provisions of the Chicago Zoning Ordinance insofar as any portion of that ordinance prevents [LSA] from any right to which it may be entitled by virtue of its Part II Approval and zoning certificate, including the right to have a building permit application processed without reference to the down-zoning ordinance that became effective in May, 1998." Thereafter, the intervenors filed a motion for a declaratory judgment, seeking a declaration that LSA is entitled to neither a zoning certificate nor a building permit in connection with the plans for which this court ordered that a Part II Approval be issued.

On March 12, 2002, the circuit court: (1) directed the Commissioner to issue a Part II approval; (2) denied LSA's requests for orders requiring the Zoning Administrator to issue it a zoning certificate and prohibiting the City and its agents from applying any provision of the Chicago Zoning Ordinance which would prevent it from exercising "any right to which it may be entitled by virtue of its Part II Approval and zoning certificate, including the right to have a building permit application processed without reference to the down-zoning ordinance;" and (3) granted the intervenors' motion for a declaratory judgment. Thereafter, LSA filed a motion for reconsideration of the circuit court's March 12, 2002, ruling and a motion requesting findings pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) (hereinafter referred to as "Rule 304(a)"). On May 31, 2002, the circuit court denied LSA's motion for reconsideration and granted its request for Rule 304(a) findings. In its order, the court found that LSA had not made substantial expenditures in good faith reliance on the issuance of a Part II Approval. On June 10, 2002, LSA timely appealed the circuit court's order of May 31, 2002.

On August 12, 2002, while the judgment entered on count I of LSA's amended complaint was being appealed, LSA filed its fourth-amended complaint containing three counts. Count I appears to be nothing more than a restatement of count I contained in LSA's third-amended complaint for purposes of preserving the claim on appeal.¹ See Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150, 154, 70 Ill.Dec. 251, 449 N.E.2d 125 (1983) (an amended complaint must replead or incorporate by reference a claim raised in a prior complaint in order to preserve that claim on appeal). In the place of count II, LSA indicated that the claim had been voluntarily dismissed on September 1, 1999. Count III sought a declaration that both the down-zoning ordinance and the height limitation ordinances are void as arbitrary and capricious and because they place an undue burden on LSA's property rights. Commencing on November 4, 2002, the circuit court conducted a bench trial on count III of LSA's fourth-amended complaint.

On April 22, 2003, after hearing extensive testimony by the parties, the circuit court issued a written memorandum opinion and order in which it entered judgment in favor of the City and the intervenors on count III of LSA's fourth-amended complaint, finding that the challenged ordinances are constitutionally valid as applied to the property. On April 28, 2003, LSA filed the instant appeal from that judgment.

On May 21, 2003, after LSA filed the instant appeal, we rendered our decision with respect to the circuit court's order of May 31, 2002. In that decision, we: (1) affirmed the portion of the circuit court's order denying LSA's request for an order requiring the Zoning Administrator to issue a zoning certificate; and (2) reversed those portions of the court's order denying LSA's request for an order enjoining the City and its agents from applying any provision of the Chicago Zoning Ordinance which would prevent it from developing the property in accordance with the terms of RPD 196, and granting the intervenors' motion for a declaratory judgment. Finally, we remanded the cause to the circuit court with directions that it make specific factual findings with respect to LSA's vested...