City of Chicago v. Zellers
| Decision Date | 23 September 1965 |
| Docket Number | Gen. No. 50027 |
| Citation | 64 Ill.App.2d 24,212 N.E.2d 737 |
| Parties | CITY OF CHICAGO, a municipal corporation, Plaintiff-Appellant, v. Max ZELLERS, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Raymond F. Simon, Sydney, R. Drebin, Marsile J. Hughes, Chicago, for appellant.
Jerome Berkson, Chicago, for appellee.
This action was started by the City of Chicago filing a quasi-criminal statement of claim to recover a penalty against the defendant, Max Zellers, for the violation of a municipal ordinance. The claim alleged that Zellers owner certain premises in Chicago on which there was a dangerous excavation, and that he had failed to fill it in or to barricade it. The defendant answered that the City had issued a building permit for the erection of a residence on the premises but that after the excavation had been started the City revoked the permit. He alleged that this prevented him from completing the construction of the building, that the property remained in the condition complained of because of the revocation, that the revocation was illegal and that the zoning ordinance upon which it was based was void and unconstitutional as it applied to his property.
The defendant also filed a counterclaim which prayed for a declaratory judgment as to the validity of the ordinance, for an injunction and for damages. In its responsive pleadings the City admitted that the permit had been issued but stated that it was revoked when it was discovered that the building plans did not comply with the City's zoning ordinances. The City further alleged that Zellers knew the permit was wrongfully issued and that his application was misleading and fraudulent.
After a nonjury trial the court entered an order which found that: the revocation was wrongfully issued; the applicable zoning ordinances were invalid insofar as they pertained to the defendant's property; the defendant had been damaged by the City's action but was himself guilty of maintaining the dangerous excavation. The City was ordered to reinstate the permit, was enjoined from interfering with the completion of the building and was ordered to pay the defendant $85.00. The defendant was fined $25.00. The City has appealed from the portions of the order adverse to it and the defendant has cross-appealed from the portion of the order adverse to him.
Zellers who was an experienced real estate broker, builder and speculator, purchased the lot in September 1963 and had plans drawn for a proposed single-family dwelling. The plans did not conform to the City's zoning ordinances and a variation was needed before he could proceed. Zellers presented these plans to the Board of Zoning Appeals in October but the board denied the requested variation.
Later, according to his testimony, he had a conversation with an employee of the City of Chicago's Building Department. He asked the employee if the would mark on a sketch of the lot the area where he thought that a single-family dwelling might successfully be constructed. On the basis of this sketch Zellers had a second set of plans drawn, took them to the building department and secured a building permit. Zellers lost no time in commencing the excavation. He received the permit in the morning and started excavating at 1:30 P.M. Shortly after the work started residents of the neighborhood, who had been present at the board hearings and knew that Zellers had been denied a variation, called the building department and protested. Police stopped the job on the order of the department and Zellers was served with written notice that the permit issued to him that morning was being revoked.
The uncompleted excavation was on the front part of the lot. It was about 8 feet from the public sidewalk. It was 8 feet deep at the sidewalk side, 4 feet deep at the rear and was 15 feet square. It was left unprotected from April 10, 1964, the day the permit was revoked, until June 30, 1964, the day before the trial commenced. On the eve of the trial some sort of fence was erected around the perimeter of the excavation. On occasions, following storms, rain water remained at the bottom of the hole for days at a time. There was testimony that the water was deep enough for a small child to have drowned. The trial court found that Zellers had maintained the property in a dangerous condition and imposed the $25.00 fine. The City, however, was ordered to pay him $85.00 to reimburse him for the cost of the fence.
The Municipal Code of Chicago, Part VI, Health and Sanitation, chap. 99, Nuisances, sec. 99.4, provides in part: 'No * * * yard, lot * * * shall be * * * maintained * * * in the City if such * * * maintaining * * * shall be dangerous to life or detrimental to health.' The evidence was clear and convincing that the defendant maintained his property in a condition that constituted a danger to the general public. The excavation was large and so deep that anyone falling into it might suffer serious injury. It was close enough to the sidewalk to be a hazard to passersby particularly during the hours of darkness. It was sometimes made more dangerous by residual water, a fact which would heighten its attractiveness to small children whose lack of judgment would make them the most likely to be injured. An improperly maintained excavation has, in fact, been held to be an attractive nuisance: Melford v. Gaus & Brown Const. Co., Inc., 17 Ill.App.2d 497, 151 N.E.2d 128, 66 A.L.R.2d 528. There was no covering, no fence, no posted warning of any kind; no steps were taken for almost three months to protect children or warn the unwary. The complaint was filed on May 27, 1964, and the violation was charged as of May 7th. Putting up a fence on June 30th was no defense to the charge. The defendant was correctly found to be liable to the City for the violation of its ordinance unless the defenses interposed by him in some way absolve him from responsibility for maintaining the condition the City complained about.
The first of these defenses is that the City is precluded from interfering with the completion of the proposed building by virtue of the permit it issued. Ordinarily, the issuance of a permit purports compliance with the City's zoning ordinances and gives the permittee full authority to proceed with the execution of the approved plans. The right of a property owner to complete construction started on the basis of a building permit has been before Illinois courts on a number of occasions. Any substantial change of position, expenditure of...
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...thereon by the property owner. Ganley v. City of Chicago, 18 Ill.App.3d 248, 254, 309 N.E.2d 653 (1974); City of Chicago v. Zellers, 64 Ill.App.2d 24, 29, 212 N.E.2d 737 (1965) (citing Fifteen Fifty North State Building Corp. v. City of Chicago, 15 Ill.2d 408, 417, 155 N.E.2d 97 (1958)). Si......
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