City of Evanston v. Robbins

• Decision Date: 05 December 1969
• Docket Number: Gen. No. 53157
• Parties: CITY OF EVANSTON, a municipal corporation, Plaintiff-Appellant, v. Jay ROBBINS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 536

254 N.E.2d 536

117 Ill.App.2d 278

CITY OF EVANSTON, a municipal corporation, Plaintiff-Appellant, v. Jay ROBBINS, Defendant-Appellee.

Gen. No. 53157.

Appellate Court of Illinois, First District.

Dec. 5, 1969.

Rehearing Denied Jan. 29, 1970.

Jack M. Siegel, Corporation Counsel, City of Evanston, Evanston, for plaintiff-appellant.

Robert S. Romano and Philip J. McGuire, Evanston, for defendant-appellee.

TRAPP, Presiding Justice.

Plaintiff, City of Evanston, appeals from a judgment of the Circuit Court, finding the defendant, Jay Robbins, not guilty on a quasi-criminal complaint for violation of the zoning ordinance by maintaining a multiple dwelling in a district zoned for single family dwellings.

Defendant's answer to the complaint denied the violation, alleged that the use was legally non-conforming and alleged, as affirmative defenses, facts purporting to show that plaintiff was estopped to assert a violation of the ordinance and that the ordinance, as applied to this property, was arbitrary and without relation to public health and welfare and was unconstitutional.

The record incorporates testimony directed to the issue of estoppel and to the validity of the ordinance as applied to the property concerned. Certain comments by the court are incorporated into the record, including:

'* * * On the basis of everything that I have heard here, I must be forced to discharge the complaint.'

The judgment entered was not guilty. The court's recorded statements were directed to the fact that multiple use had existed for 25 years, that the City had inspected the residence as a multiple family residence and had affirmatively directed defendant to make corrections based upon multiple residence requirements. The court expressed belief that the City's conduct fell within the doctrine of estoppel.

Estoppel may be invoked against a municipality where the action of a party is induced by the conduct of municipal officers with the result, that in the absence of relief such party would suffer substantial detriment or loss and the municipality would be permitted to stultify itself by retracting what its agents had done. Cities Ser. Oil Co. v. City of Des Plaines, 21 Ill.2d 157, 171 N.E.2d 605, and the cases cited therein.

The subject property is located at the northeast corner of Ridge Ave., a north and south street, and Lake Street, an east and west street. A substantial area east and north of the subject property is either R--4 general residence, R--6, general residence, R--7, general residence, B--2, business, B--3, business, B--4, business, C--2, commercial, or C--3, commercial. The subject property is thus at the southwest corner of an area which is zoned for multiple family use, apartments and business. Immediately south of the property for one and one-half blocks, the area is zoned R--1, single family residence. Farther south the classification is R--6 and R--3. Commencing one and one-half blocks east on the south side of Lake Street, the area is again R--3, R--6 and B--2. To the west for two and one-half blocks, the classification is R--1 and this trip of two to three blocks wide is R--1 for about one-half mile north and one-half mile south of the subject property. The foregoing general characteristics are shown by the zoning map.

The immediate block in which the subject property is located is zoned R--6 in the east half and R--1 in the west half. Commencing with the subject property and proceeding east on Lake Street is a structure with two townhouse units which is legally non-conforming. Immediately east is another that is legal non-conforming use. Immediately east, the classification in the block changes to R--6, and there is a ten unit apartment building. Thus, on the north side of Lake Street, between Ridge Ave. and Oak Ave., the subject property is the only property which would be required to be conforming and single family. The balance of the east side of the block going north on Oak Ave. consists of three large homes used as multiple family units and one additional ten unit apartment building. In the west half of the block, commencing on the north at Grove Street, is a church which appears to occupy half of the block. South of the church is a two family home; next, a single family home occupied by the defendant, and next is the subject property.

The only testimony regarding the block immediately west of the subject property is that an Armenian Bishop uses the building and has one student roomer. The answer states:

'(c) The block west of defendant's block: the property immediately west of defendant's dwelling is utilized as a home for a religious order with multiple occupancy. The northeast corner of said block is utilized for church purposes. The middle portion of the block is used for a single-family dwelling.'

The answer states as to the balance of the area:

'(d) The block northwest of defendant's block: The Ridge Avenue frontage is occupied by institutional headquarters and a playground.'

'(f) The block southeast of defendant's block: the Lake Avenue frontage is occupied by a church and an elementary school.'

'(g) The block south of defendant's block: the Lake Avenue frontage is occupied by a municipal park and modest single-family dwellings.'

'(h) The block southwest of defendant's block: used for single-family dwellings.'

The allegations of the answer are admitted by the reply to the second affirmative defense.

The defendant testified that he had lived next door to the subject property since 1943, that the subject property has seven apartment units, that it has been so used since he first knew it, and that it was so used when he purchased the property in 1956. He testified that in 1957, three city inspectors inspected the building. He took them through it. The inspectors advised him that he needed a second access to the third floor apartment, which required construction of a stairway, that a solid door should be changed to a glass door, that electric wiring changes should be made and that he would have to have more light in the basement apartment. Defendant made the changes at a cost of $1200 to $1500. Defendant sought to put a second entrance on Lake Street, but was told he could not make structural changes in a legal non-conforming use.

The defendant introduced four letters received in 1959; one from the assistant Fire Marshal stating that on reinspection all requirements of the Evanston Fire Prevention Bureau had been met in compliance with the Evanston Housing Ordinance; one from the Department of Health, stating that inspection revealed that violations had been corrected, signed 'Acting Director of Housing'; one from the Department of Health stating that the reinspection disclosed that all noted violations of the Housing Code of the City of Evanston had been corrected, signed 'Housing Inspector'; and one from the Director of Building referring to the unit as one in the Single Family Dwelling District, and stating that the building violation had been corrected and the dwelling considered approved housing.

In appears that in 1964, Anthony W. Heilman, who identified himself as the Chief Conservation Inspector of the City, informed the defendant that he would have to deconvert to a single family unit. He testified in behalf of the plaintiff in this case. The name of this witness is identical with that appearing as a signature on the letter dated in 1959 to the defendant, and executed as 'Housing Inspector.' He testified that his duties consisted in:

'Enforcing the Housing and Zoning Ordinance where it pertains to existing structures.'

This witness, in answer to a question whether the original conversion of the property was made without permits, answered, 'As far as I know'. He testified that he did not know why he could not find...