Heerey v. Berke

• Decision Date: 14 February 1989
• Docket Number: No. 87-2624,B,No. 25-5879,25-5879,87-2624
• Citation: 179 Ill.App.3d 927,534 N.E.2d 1277
• Parties: , 128 Ill.Dec. 672 Bernard A. HEEREY, Plaintiff-Appellant, v. Joseph BERKE, Benitta Berke, Louis Wolf, The Bank of Ravenswood, as Trustee under Trustarry L. Newdelman, Urban Construction, Ltd., Architects, a Partnership, Commercial Management, The North Shore Plumbing and Heating Company, S.M. Bradford, J & R Construction Company, The City of Chicago and Unknown Defendants, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1277

534 N.E.2d 1277

179 Ill.App.3d 927, 128 Ill.Dec. 672

Bernard A. HEEREY, Plaintiff-Appellant, v. Joseph BERKE, Benitta Berke, Louis Wolf, The Bank of Ravenswood, as Trustee under Trust No. 25-5879, Barry L Newdelman, Urban Construction, Ltd., Architects, a Partnership, Commercial Management, The North Shore Plumbing and Heating Company, S.M. Bradford, J & R Construction Company, The City of Chicago and Unknown Defendants Defendants-Appellees.

No. 87-2624.

Appellate Court of Illinois First District, First Division.

Feb. 14, 1989.

Nathaniel I. Grey, P.C., Chicago, Ill. (Kimberly Anderson Fortcamp, of counsel), for appellant, Bernard Heerey.

Judson H. Miner, Corp. Counsel, City of Chicago, Chicago, Ill. (Ruth M. Moscovitch, Joanne Simboli Hodge, of counsel), for City of Chicago.

Steven R. Dobrofsky, Chicago, Ill., of counsel for appellees Newdelman, BK of Ravenswood, Wolf, Urban Const.

Justice O'CONNOR delivered the opinion of the court:

This is an appeal from a dismissal of a complaint under the Adjacent Landowners Act (Ill.Rev.Stat.1985, ch. 24, par. 11-13-15) and the Lake Michigan and Chicago Lakefront Protection Ordinance (the Lakefront Protection Ordinance) (Chicago Municipal Code, § 194B-1 et seq. (1988)). The issues raised on appeal are as follows: (1) whether the trial court erred in dismissing plaintiff's amended complaint; (2) whether the trial court erred in granting defendants' motion for a protective order; and (3) whether the trial court erred in denying plaintiff's petition for change of venue. We affirm.

Plaintiff Bernard Heerey is the owner of property at 1159 North State Street in Chicago. The adjacent property at 1163-67 North State is held by defendants Louis Wolf, Joseph and Benitta Berke and the Bank of Ravenswood as trustee (the private defendants). Bennita Berke was never served and is not a party to this appeal. Defendant Barry Newdelman is the architect for the private defendants' property. Urban Construction, Ltd., was named by plaintiff as Newdelman's alleged employer. The remaining defendants include the City of Chicago and various subcontractors. Both of the properties at issue here lie within the private use zone governed by the Lake Michigan and Chicago Lakefront Protection Ordinance. (Chicago Municipal Code § 194B-1 et seq. (1988) ).

On August 26, 1985, Benitta Berke, who was the record title owner of the parcel immediately adjacent to plaintiff's property, sent a letter to Heerey by certified return receipt mail advising him of anticipated construction on her property and requesting written permission to enter his property for the purpose of protecting his property from any damage that might be caused by excavation. In reply, Heerey acknowledged that the letter was sent pursuant to the provisions of the Protection of Adjacent Landowners Act (Ill.Rev.Stat.1987, ch. 111 1/2, par. 3301), but alleged that the letter was inadequate under the Act. Berke then replied, stating that she had been denied the necessary license to enter upon Heerey's property and informed him that it was his responsibility to protect his land and all the structures that were on it.

On September 16, 1985, Benitta Berke and Louis Wolf submitted an application to the Chicago Plan Commission for consideration under the Lakefront Protection Ordinance. Defendants sought permission to construct a three-story commercial building. That application was withdrawn without prejudice on November 25, 1985, and no formal order of the Plan Commission was ever entered.

On December 16, 1985, Berke and Wolf submitted a second application to the Plan Commission in which they sought permission to construct three separate, three-story commercial buildings at 1163-67 North State. On January 9, 1986, after a public hearing on the matter, the Commission approved the application. The Commission's resolution stated that the Commissioner of the Department of Planning, Elizabeth Hollander, had reviewed the application, received reports from various city agencies involved and concluded that the application was in substantial conformance with the Lakefront Ordinance.

The private defendants then applied for a building permit for the center lot (1165 North State Street). The application contained an affidavit from defendant Newdelman that he would apply for permits for the other two lots (1163 and 1167 N. State) no later than April 10, 1986. On the basis of this affidavit, Commissioner Hollander advised the Department of Zoning that the permit application had been approved as conforming to the Lakefront Protection Ordinance provided that the additional permit applications were filed for 1163 and 1167 North State. On April 11, 1986, the Department of Zoning approved defendants' permit applications for 1163 and 1167 North State. On April 17, 1986, Commissioner Hollander approved the two additional permit applications as also conforming to the Lakefront Ordinance.

On May 28, 1986, Berke and Wolf entered into a "Foundation Agreement" expressing their interest to lay a common foundation for the construction of the three buildings. When the construction began, plaintiff's attorney contacted the city's Department of Inspectional Services complaining about the construction. Construction was ordered stopped at 1167 and 1163 North State on August 15, 1986. On August 21, the department ordered all work stopped at 1165 North State and the permit revoked as the work was not proceeding in accordance with the permits and drawings. A redesign of the foundation was submitted and approved and new permits for 1163 and 1167 were issued on September 26, 1986, for three three-story buildings. On December 3, 1986, plaintiff filed a complaint against the private defendants seeking injunctive relief, a declaration of the "real and actual owner" of the 1163-67 site, a halt to alleged "unlawful construction," restoration of lateral and subjacent support to his property and a permanent injunction against further construction. In the complaint plaintiff also alleged that the City of Chicago had allowed unlawful construction due to the city's failure to enforce the conditions and requirements in its own municipal permits, and that as a result of the city's acquiescence in the unlawful construction, the lateral and subjacent support of plaintiff's property was damaged. Plaintiff sought preliminary and permanent injunctions to stop the city from issuing permits until defendants complied with the various permits. Plaintiff further alleged that the private defendants as well as the city had intentionally and maliciously constructed the buildings in violation of court orders, statutes and permits and sought $50,000 actual damages, $500,000 in punitive damages and attorney fees and costs.

The court granted defendants' motions to strike and dismiss and gave plaintiff 30 days to file an amended complaint. Plaintiff filed an amended complaint in which he alleged that defendants had violated the Lakefront Protection Ordinance and sections 43-4, 43-10, and 43-11 of the Municipal Code of Chicago. The plaintiff also alleged that he was entitled to relief under Ill.Rev.Stat.1985, ch. 24, par. 11-13-15 relating to adjacent landowners.

On February 18, 1987, plaintiff filed a petition for change of venue. Following a hearing on February 26, 1987, the petition was denied on the basis that the petition was untimely, coming after rulings on substantial issues and lacked a showing of prejudice. At the same time, the court sustained defendant Newdelman's motion for a protective order as to discovery. Both the private defendants and the city again filed motions to dismiss. Those motions were granted and plaintiff now brings this appeal.

We first address the plaintiff's claim that the trial court erred in dismissing his claims against the city brought under the Adjacent Landowners Act (Ill.Rev.Stat.1987, ch. 24, par. 11-13-15) and under the Lake Michigan and Chicago Lakefront Protection Ordinance. Municipal Code of Chicago, ch. 194B, par. 1, art. I-IX.

The plaintiff claims that his original and amended complaints stated a cause of action against the city for injunctive relief and damages pursuant to the Adjacent Landowners Act (Ill.Rev.Stat.1987, ch. 24, par. 11-13-15) and that he was entitled to the entry of a temporary restraining order under the Act. He contends that he satisfied the requirements of the Act in that he alleged that the private defendants' construction violated the January 9, 1986, order of the Chicago Plan Commission and also that he alleged both damage to the lateral and subjacent support to the foundation and building on his property and the threat of future damage arising from defendants' excavation on their property.

The Adjacent Landowners Act (Ill.Rev.Stat.1987, ch. 24, par. 11-13-15) falls within Division 13 of the Municipal Code regulating zoning. The particular provision of Division 13 upon which plaintiff relies states:

"In case any building or structure, including fixtures, is constructed, reconstructed, altered, repaired, converted, or maintained, or any building or structure, including fixtures, or land, is used in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of the Illinois Municipal Code, or of any ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the municipality, or any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or...