Anundson v. City of Chicago

• Decision Date: 28 January 1970
• Docket Number: No. 41590,41590
• Citation: 256 N.E.2d 1,44 Ill.2d 491
• Parties: Vernon ANUNDSON et al. v. The CITY OF CHICAGO. Raymond P. KAEPPLINGER, Appellee, v. William HARMON, Appellant.
• Court: Illinois Supreme Court

Page 1

256 N.E.2d 1

44 Ill.2d 491

Vernon ANUNDSON et al. v. The CITY OF CHICAGO.

Raymond P. KAEPPLINGER, Appellee, v. William HARMON, Appellant.

No. 41590.

Supreme Court of Illinois.

Jan. 28, 1970.

Rehearing Denied March 23, 1970.

Yale Stein, Sidney Z. Karasik and Paul Peter Black, Chicago, for appellant.

Richard M. Calkins, Chicago (Chadwell, Keck, Kayser & Ruggles, Chicago, of counsel) for appellee Raymond P. Kaepplinger.

Mitchell P. Kobelinski, Harwood Heights, for amicus curiae, Parkway Bank and Trust Co.

WARD, Justice.

The circuit court of Cook County on August 7, 1962, acting in a declaratory judgment action brought by Vernon A. Anundson and his wife Selma, held certain provisions of the Chicago zoning ordinance unconstitutional as applied to certain real property located on Fullerton Avenue in Chicago. The land was then owned by the Anundsons. The beneficial interest in the property now is vested in the appellant, William Harmon. The court's decree provided that the minimum lot area restrictions imposed by the ordinance were void and that the plaintiffs, and all persons claiming through them, had the right to construct a three-story building which would contain 11 stores and offices, six one-bedroom apartments and six efficiency apartments, as they are described. The City of Chicago was ordered to examine any application, which might be filed by the Anundsons to construct such a building, in a manner consistent with the spirit and intent of the decree and the plans the plaintiffs had offered in evidence in the declaratory judgment action. Jurisdiction was expressly retained by the court for the purpose of enforcing the provisions of its decree.

On May 4, 1966, about three and one-half years after the entry of the court's order, Raymond P. Kaepplinger, an adjoining landowner, filed a petition which complained that the building was being constructed in violation of the decree and the building and zoning ordinances of the City of Chicago. It alleged that the building which was under construction would contain a meeting hall and a roof garden, which were not authorized by the decree, and would not provide adequate parking facilities as the decree required. The petition sought to enjoin William Harmon, the contractor, and Reuben and Eve Sonshine, who had acquired the property, from proceeding with further construction. After a hearing on the merits, the petition was dismissed. On appeal, the Appellate Court, First District, reversed and remanded with directions to enjoin further construction or use of the property until it conformed to the requirements of the applicable ordinance as contemplated by the trial court's decree. (Anundson v. City of Chicago, 97 Ill.App.2d 212, 240 N.E.2d 407.) William Harmon was the only appellee before the appellate court. We granted him leave to appeal.

Construction of the building has been completed and it contains stores, offices and apartments as allowed by the decree. A basement meeting hall and an enclosed roof garden are also included in the building. Although these facilities were not specifically mentioned in the court's decree, they were described in plans offered in evidence by the plaintiffs. Parking facilities called for by the decree have not been provided.

The property in question was governed by an ordinance which restricted the number of building units which might be constructed on a lot subject to the ordinance. The plaintiffs' suit sought to avoid the restriction and obtain permission to construct a building with a greater number of units than the ordinance permitted. The decree entered permitted this by holding unconstitutional the minimum area provisions of the ordinance as they applied to plaintiffs' premises.

The background for the filing of Kaepplinger's petition was formed when a construction permit for the building was issued on October 6, 1964, and construction was begun shortly thereafter. After several months the appellee, Kaepplinger, wrote to the Chief Building Inspector of the City of Chicago complaining of the manner in which the building was being constructed. A stop order was issued by the Building Department because of Kaepplinger's complaint but it was subsequently rescinded. When Kaepplinger received no reply to another letter to that office he filed a formal complaint with the department charging that no provision was being made in the construction for off-street parking. On being advised that no departmental action because of the lack of parking facilities was contemplated he filed what has been treated as a petition to intervene in the original declaratory judgment action brought by the Anundsons. This petition, already described, alleged, in part that the court's cecree was being violated because of the failure to provide parking facilities.

The principal contentions advanced here by the appellant are: (1) Kaepplinger lacked standing to intervene in the lawsuit; (2) the petition was tardily filed and was barred by the time limitations of sections 26.1 and 72 of the Civil Practice Act (Ill.Rev.Stat.1967, ch. 110, pars. 26.1 and 72), and under the doctrine of Laches, as well; (3) the decree of the circuit court has been complied with in all respects.

The argument on the question of standing is that Kaepplinger, an adjoining landowner, should not have been permitted to intervene because he did not show that he would suffer special damage, differing from that which would be sustained by the general public. This argument was rejected by us in Bredberg v. City of Wheaton, 24 Ill.2d 612, 182 N.E.2d 742. It was there held that adjoining landowners possessed rights which could be adversely affected in a declaratory judgment action of this type, and that they had an interest in such litigation which extended beyond that of the general public. Moreover, it was pointed out that a municipality, concerned primarily with the maintaining of the municipality-wide zoning pattern, might inadvertently compromise or neglect the rights of adjoining landowners in such a lawsuit. It was considered that the rights of such persons could be adequately protected by permitting them to intervene in the litigation. Therefore, pursuant to the liberal provisions of the Civil Practice Act (Ill.Rev.Stat.1967, ch. 110, par. 26.1) for intervention, we concluded in Bredberg that adjoining landowners possess an interest in these declaratory judgment actions which is sufficient to permit their intervention.

The appellant makes the further argument that intervention was improper because the court, when its decree was entered retaining jurisdiction of the cause, was retaining jurisdiction 'solely' for the benefit of the plaintiffs. Thus, the appellant says, the decree neither authorized nor invited intervention by another. We cannot accept the narrow interpretation the appellant woudl place on the decree. Were it adopted, the decree could not be enforced against the plaintiffs who might breach its terms. Nor could the defendant himself complain of the breach by the plaintiffs. The court retained jurisdiction to enforce its decree, and legal standing to enforce it was not limited to the plaintiffs.

The second contention is that since the appellee Kaepplinger filed his petition to vacate the decree more than three and one-half years after its entry, the appellate court erred in holding that the petition was not barred under the two-year period of limitations of section 72 of the Civil Practice Act. (...