Western Pride Builders, Inc. v. City of Berwyn

• Decision Date: 24 July 1968
• Docket Number: Gen. No. 52671
• Citation: 99 Ill.App.2d 250,240 N.E.2d 269
• Parties: WESTERN PRIDE BUILDERS, INC., Plaintiff-Appellee, v. CITY OF BERWYN, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 269

240 N.E.2d 269

99 Ill.App.2d 250

WESTERN PRIDE BUILDERS, INC., Plaintiff-Appellee, v. CITY OF BERWYN, a municipal corporation, Defendant-Appellant.

Gen. No. 52671.

Appellate Court of Illinois, First District, Fourth Division.

July 24, 1968.

Alan S. Ganz, Chicago, for appellant.

Mitchell Edelson, Sr., Morton C. Kaplan, Barry B. Nekritz, Chicago, for appellee.

DRUCKER, Justice.

Defendant appeals from the issuance of a writ of mandamus by the Circuit Court commanding that it approve the application of plaintiff for a building permit. On appeal defendant contends (1) that plaintiff did not have a sufficient interest in the property to apply for a building permit nor to appeal the denial of its application to the Zoning Board of Appeals and (2) that plaintiff failed to submit plats or plans with its permit application as required by ordinance.

On April 14, 1966, plaintiff entered into an agreement calling for purchase of the land for which the building permit is sought. The contract provided for the closing of the sale within ninety days. On April 15, with the concurrence of the seller, plaintiff applied to the Berwyn Commissioner of Public Works, Marino De Vito, for a building permit to erect a two flat building. The Commissioner denied the permit and plaintiff exercised its right to appeal the decision to the Zoning Board of Appeals. The hearing was held on June 21. On July 19 the sale was closed and title transferred to a trust of which plaintiff is sole beneficiary. On August 4 the subject property was rezoned to allow only single family residences. The Zoning Board rendered its decision on September 20, finding that construction of a two flat residence on plaintiff's property was permissible under the zoning laws. No appeal was taken by the defendant from the decision of the Zoning Board of Appeals. Upon defendant's refusal to issue the permit plaintiff filed its complaint for a writ of mandamus. On plaintiff's motion for summary judgment, the writ of mandamus was issued. Defendant appeals from that judgment.

Defendant first argues that plaintiff did not have a sufficient interest in the property to apply for a building permit nor to appeal the denial of its application because it was only a contract purchaser and did not have legal title nor the right to control the title holder. It relies on Malone v. Mayor and Aldermen of Jersey City, 7 N.J.Misc. 955, 147 A. 571 (1929), where a contract for the purchase of land was held to be an insufficient interest for obtaining a building permit. However, in Cox v. Township of Wall, 39 N.J.Super. 243, 120 A.2d 779 (1956), in which plaintiffs, who were contract purchasers, applied for a building permit and defendants contended that they had no standing to maintain their action to order the issuance of the permit, the court stated at page 249,

Such a contractual interest in the property gave them a sufficient standing not only to apply for a building permit, but also to enforce their right to the permit by an action such as this. Brown v. Terhune, 125 N.J.L. 618, 18 A.2d 73 (Sup.Ct.1941), appeal dismissed 127 N.J.L. 554, 23 A.2d 575 (E. & A. 1942); Jersey Triangle Corp. v. Board of Adjustment, 127 N.J.L. 194, 195, 21 A.2d 845 (Sup.Ct.1941); Sigretto v. Board of Adjustment, 134 N.J.L. 587, 50 A.2d 492 (Sup.Ct.1946); cf. Reimer v. Dallas (not officially reported), 129 A. 390, 392 (N.J.Sup.Ct.1925); Slamowitz v. Jelleme, 3 N.J.Misc. 1169, 130 A. 883 (Sup.Ct.1925); Wilson v. Township Committee of Union Township, 123 N.J.L. 474, 9 A.2d 771 (Sup.Ct.1939); Finn v. Municipal Council of City of Clifton, 136 N.J.L. 34, 53 A.2d 790 (E. & A. 1947); Protomastro v. Board of Adjustment, 3 N.J.Super, 539, 545, 67 A.2d 231 (Law Div.1949), reversed on other grounds 3 N.J. 494, 70 A.2d 873 (1950). Contra, Malone v. Mayor and Alderman of Jersey City, 147 A. 571, 7 N.J.Misc. 955 (Sup.Ct.1929); but see Adams v. Mayor and Aldermen of Jersey City, 107 N.J.L. 149, 150, 151 A. 863 (E. & A. 1930). Cf. Krieger v. Scott, 134 A. 901, 4 N.J.Misc. 942 (Sup.Ct.1926), where the relators did not have (so far as appears) even a contractual interest in the property.

In Schultz v. Wilson, 54 N.J.Super. 309, 148 A.2d 852 (1959), it was held that a riparian landowner had a sufficient interest in riparian lands to obtain a building permit since he had a 'preemptive right' to acquire those lands.

In the instant case plaintiff applied for the permit not only on the basis of his contract rights to give him standing, but also with the approval of the seller of the land. We believe that under these...