City of Chicago v. Westphalen

• Decision Date: 04 March 1981
• Docket Number: Nos. 77-1863,78-1251,78-1095,s. 77-1863
• Court: United States Appellate Court of Illinois
• Parties: , 49 Ill.Dec. 419 CITY OF CHICAGO, Plaintiff-Appellee, v. Robert WESTPHALEN, Defendant-Appellant, and Barbara & Eugene KRELL, Plaintiffs-Appellees, Cross-Appellants, v. Robert WESTPHALEN, Defendant-Appellant, Cross-Appellee.

Page 63

418 N.E.2d 63

93 Ill.App.3d 1110, 49 Ill.Dec. 419

CITY OF CHICAGO, Plaintiff-Appellee, v. Robert WESTPHALEN, Defendant-Appellant, and Barbara & Eugene KRELL, Plaintiffs-Appellees, Cross-Appellants, v. Robert WESTPHALEN, Defendant-Appellant, Cross-Appellee.

Nos. 77-1863, 78-1095, 78-1251.

Appellate Court of Illinois, First District, Third Division.

March 4, 1981.

Max Rattner, Chicago, for Robert Westphalen.

William R. Quinlan, Daniel Pascale, Jerome A. Siegan, Chicago, for City of Chicago, appellee. C. Richard Johnson, Hugh R. McCombs, Jr. and Isham, Lincol & Beale, Chicago, for Barbara and Eugene Krell, appellees.

McGILLICUDDY, Justice:

The City of Chicago (City) filed a complaint against the defendant, Robert Westphalen, the owner of a parcel of real property improved with a three-story brick structure located in the City of Chicago, alleging numerous municipal code violations at said property. A complaint alleging the same and additional violations was filed by the plaintiffs, Barbara and Eugene Krell against the defendant pursuant to section 11-13-15 of the Illinois Municipal Code (Ill.Rev.Stat., 1975, ch. 24, par. 11-13-15) which allows owners of neighboring property to bring suit to enforce municipal building and zoning codes. The City's complaint was dismissed and then reinstated and consolidated with the Krells suit. After a bench trial the court found the defendant's building contained 69 violations of the Municipal Code of Chicago (Municipal Code), appointed a receiver to bring the building into compliance, fined the defendant $100 for each violation and suspended the fines since the building was vacant and not producing income at the time of judgment.

The defendant's brief contains 21 points for appeal which we believe, in the interest of clarity and conciseness, can be combined to create seven main issues. They are: (1) whether the defendant was denied procedural due process when his building permit was revoked without a prior hearing; (2) whether the defendant was granted a lawful nonconforming use by a 1964 Zoning Board of Appeals resolution and, if so, whether this resolution was subject to collateral attack in the present proceeding; (3) whether the defendant's building was subject to a fire regulation pertaining to interior stairway walls; (4) whether the plaintiffs were estopped or barred from bringing the present suit on the basis of collateral estoppel; (5) whether the defendant's trial was unfair because the defendant alleges that the trial judge was prejudiced and abused his discretion; (6) whether the trial judge erred in denying the defendant's motion for summary judgment, and (7) whether the Krells were proper plaintiffs. The Krells have cross-appealed alleging the trial court erroneously denied their post-trial petition for costs and attorneys' fees in accordance with section 11-13-15 of the Illinois Municipal Code. Ill.Rev.Stat., 1975, ch. 24, par. 11-13-15.

The building which is the subject of this appeal is an apartment building located on the 5300 block of South Kimbark Avenue in Chicago, Illinois. It was constructed in 1901 and contained 10 apartments, three on each floor and one in the basement. According to the defendant's testimony, the building had been converted to a larger number of units prior to his purchase of it in 1945. At the time of trial the building had 35 units or apartments. The defendant has not resided in the building since 1957.

In June 1975 the City filed suit against the defendant alleging 29 violations of the Municipal Code based on an inspection of the defendant's building by the City of Chicago Building Department (Building Department) conducted on April 25, 1975. The Krells filed suit in September 1975 citing numerous ordinance violations including the violations alleged in the City's complaint. Each of the parties filed amended complaints alleging additional violations discovered during subsequent inspections of the building.

In May 1976, while the proceedings were pending, the defendant submitted to the Building Department an application for a permit to make repairs to the building. The permit was issued on May 28, 1976, but was subsequently revoked by the building commissioner on June 3, 1976, because of a lack of compliance with sections 7.5-4 (minimum lot area) and 7.12-2 (off-street parking) of the Chicago Zoning Ordinance (Municipal Code of Chicago, ch. 194A, secs. 7.5-4, 7.12-2). No hearing on the matter of the permit was held prior to its revocation.

I

As the defendant's first issue on appeal, he contends he was denied procedural due process because his building permit was revoked without a pre-revocation hearing. The defendant argues that he had a property right entitled to Fourteenth Amendment protection (U.S. Const., amend. XIV). The defendant relies on Trans-Oceanic Oil Corp. v. City of Santa Barbara (1948), 85 Cal.App.2d 776, 194 P.2d 148. In that case the permit was revoked over five years after its issuance based on a subsequently enacted zoning ordinance that made the permittee's activities illegal. The California Court of Appeals reversed the revocation finding the permittee had acquired a vested property right based on his substantial expenditures made in reliance on the validly issued permit. Since the revocation was without notice or hearing, the court said it was inoperative and without legal force.

The instant case is distinguishable because the permit was not validly issued. Before the Commissioner of Buildings issues a building permit he must examine and approve all drawings and plans for the proposed construction or alteration. One determination that must be made is that the building and premises are in compliance with the Chicago Zoning Ordinance. (Municipal Code of Chicago, ch. 43, sec. 43-4.) In the case at bar, after the building permit had been issued to the defendant, the building commissioner determined that the defendant's building was not in compliance with certain zoning ordinances. Thus, the commissioner was empowered to revoke the permit because a violation of section 43-4 of the Municipal Code existed. See Municipal Code of Chicago, ch. 43, sec. 43-24.

We agree with the trial court's finding that the defendant provided no showing that a pre-revocation hearing is required when a permit is revoked immediately upon the discovery that it was issued in error. Courts have held that licenses and permits are privileges from which no vested property rights attach. (See, e. g., Weinstein v. Daley (1967), 85 Ill.App.2d 470, 229 N.E.2d 357; see generally, 9 McQuillin, Municipal Corporations, sec. 26.81a, at 183 (3rd ed. rev. 1978).) While a license or permit cannot be abrogated without sufficient cause (9 McQuillin, Municipal Corporations, sec. 26.81a, at 183 (3rd ed. rev. 1978)), in the absence of a legal requirement there is no necessity for notice and opportunity to be heard before the revocation (9 McQuillin, Municipal Corporations, sec. 26.88, at 194 (3rd ed. rev. 1978)). (See Cafeteria & Restaurant Workers Union, Local 473 v. McElroy (1961), 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230.) No such legal requirement exists in this State.

Furthermore, under Illinois law the permittee does not have a vested right to complete his approved plans unless the building permit was legally issued and the property owner substantially changed his position or incurred substantial expenditures or obligations. (See, e. g., O'Laughlin v. City of Chicago (1976), 65 Ill.2d 183, 2 Ill.Dec. 305, 357 N.E.2d 472; City of Chicago v. Zellers (1965), 64 Ill.App.2d 24, 212 N.E.2d 737.) In Ganley v. City of Chicago (1974), 18 Ill.App.3d 248, 309 N.E.2d 653, the City revoked a building permit three weeks after issuance upon the discovery that the proposed building would violate the minimum lot requirements specified in section 75.5-2 of the City zoning ordinance (Municipal Code of Chicago, ch. 194A, sec. 7.5-2). Although the court found the plaintiff's permit had been issued through normal administrative procedures, the court held that the permit was illegally issued because the ministerial officer exceeded the authority conferred upon him. The court stated a building permit should not have been granted in violation of the terms of the zoning ordinance and concluded that the unauthorized permit was a nullity and conferred no rights upon the permittee.

The defendant in the instant case also contends that the trial judge's finding that the permit was improperly issued was not supported by the evidence. He cites the testimony of witness A. W. Brunson, Chief Plan Examiner for the Department of Buildings. Brunson stated the defendant's architectural plans submitted during the permit application process were processed in the normal manner and in accordance with standards of procedure established by the Building Department. To further support his argument the defendant states that the letter of revocation did not state that the permit was revoked because of a subordinate's mistake.

Alex H. Zimmerman, Deputy Commissioner of Buildings, testified that on a day or two prior to June 3, 1976, he met with an assistant corporation counsel for the City and the zoning administrator. The recommendation to revoke defendant's permit was made at this meeting. Entered into evidence was a memorandum dated June 3, 1976, written by Zimmerman which stated that the defendant's application for permit should not have been approved because the plans did not conform to the Zoning Board of Appeals resolution of November 24, 1964, or to certain zoning ordinance requirements. Additionally, Irving M. Addis, the defendant's architect, testified on direct examination during the plaintiffs' case, that he prepared plans for changes to the defendant's building sometime prior to May 24, 1976, in order to obtain a building permit. He indicated that this set of plans, which was submitted in May 1976 with the application for a permit, contained a breakdown of...