SECOND DIVISION
February 7, 2006
No. 1-05-0283
YURIY ROPIY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
RAFAEL HERNANDEZ, Director of the )
Department of Construction and Permits, )
and the CITY OF CHICAGO, a municipal )
corporation, ) Honorable
) Mary Anne Mason,
Defendants-Appellees. ) Judge Presiding.
Modified Upon Denial of Rehearing
JUSTICE WOLFSON delivered the opinion of the court:
The question here is whether a property owner's plan to tear down one building
and build another was trumped by a proposed change in zoning. Plaintiff, Yuriy Ropiy,
filed a complaint for a writ of mandamus, requesting the trial court order defendants, the
City of Chicago (City) and Rafael Hernandez, Director of the Department of
Construction and Permits, to issue wrecking and building permits for his property.
Defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Illinois Code
of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2004)), contending the permits were
properly denied because an amendatory zoning ordinance had been introduced in the
Chicago City Council before Ropiy completed purchase of the property. The trial court
granted defendants= motion.
On appeal, Ropiy contends: (1) the trial court erred in dismissing his complaint
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because he established a vested right to the prior zoning classification; (2) the
amendatory zoning ordinance was invalid as applied because he did not receive
adequate notice of it, in violation of his due process rights; and (3) the issue of whether
he had acquired a vested right was a question of fact. We affirm.
FACTS
In April 2003, Ropiy entered into a contract to purchase property located at 2708
W. Evergreen in Chicago, Illinois, for $159,000. Ropiy intended to tear down a single-
family residence located on the property and construct a three-unit residential building in
its place. The property was zoned R-4 at the time the purchase contract was signed. It
allowed a three-unit building to be constructed. Ropiy says he would not have
purchased the property if he had known he could not construct the three-unit building.
On June 4, 2003, Alderman Billy Ocasio proposed an ordinance to change the
zoning classification for a particular area from R-4 to R-3. The area included 2708 W.
Evergreen. The proposed zoning change would not allow the construction of a three-
unit building on the property. The ordinance was published in the Journal of
Proceedings for the Chicago City Council on July 9, 2003.
On July 15, 2003, the property was deeded to Ropiy, who then filed a wrecking
permit application with the City. Between July and August 2003, Ropiy expended
$24,350 on contractors, structural plans, architectural plans, and mortgage costs while
preparing to construct the three-unit building. Ropiy recorded his deed and submitted
an application for a building permit on August 12, 2003. Ropiy says he was unaware of
the proposed zoning ordinance amendment at that time. The permit applications were
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held at Alderman Ocasio=s request, pending the outcome of the proposed zoning
ordinance amendment.
On July 17, 2003, the Committee on Zoning conducted a search of the tax
records to determine the property owners affected by the proposed zoning amendment.
Henry Ramirez was listed as the taxpayer of record for the property. On February 19,
2004, the City sent letters notifying taxpayers on the list about a public hearing to be
held on the proposed zoning amendment March 25, 2004. Ropiy did not receive a
letter, and a notice was not posted on his property regarding the proposed zoning
change. After conducting the hearing, the City Council passed the zoning ordinance
amendment on March 31, 2004. It became effective after it was published on May 5,
2004.
Pavel Smelyansky, Ropiy=s agent, regularly spoke with Alderman Ocasio=s office
regarding when the wrecking and building permits would be issued. Smelyansky was
told any delay in the issuance of the wrecking and building permits was due to an
Aaldermanic hold.@ Smelyansky was never told the permits would not be issued
because of a pending ordinance intended to change the zoning for the property.
On September 22, 2004, Ropiy filed a verified complaint for a writ of mandamus,
requesting that the trial court order the Building Department and the City to issue
wrecking and building permits for the property. Defendants filed a section 2-619(a)(9)
motion to dismiss, contending the permits were properly held, then denied, because an
ordinance changing the zoning and precluding the planned development had been
introduced before Ropiy purchased the property.
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In response, Ropiy contended the pending ordinance doctrine did not apply
because he had established a vested property right when he applied for the permits.
On November 1, 2004, the trial court granted defendants= motion to dismiss,
noting:
Aplaintiff did not have a property interest prior to the time the
ordinance was introduced in the City Council, did not own
the property prior to the time the ordinance was introduced --
the amendment was introduced, acquired the property
thereafter and although he may have been subjectively
unaware of the pending change, the fact of the matter is the
introduction of the proposed amendment was of public
record and, therefore, I believe he had constructive
knowledge.@
The trial court concluded any other result would Athrow the predictability of changes to
municipal zoning ordinances into absolute chaos.@ Ropiy then filed a motion to
reconsider the order. It was denied by the trial court.
DECISION
I. Vested Rights
On appeal, Ropiy contends the trial court erred in granting the defendants=
motion to dismiss because he had acquired a vested right in the permits.
Section 2-619(a)(9) allows dismissal of a claim when the claim asserted Ais
barred by other affirmative matter avoiding the legal effect of or defeating the claim.@
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735 ILCS 5/2-619(a)(9) (West 2004). A>The phrase >affirmative matter= refers to
something in the nature of a defense that negates the cause of action completely or
refutes crucial conclusions of law or conclusions of material fact contained in or inferred
from the complaint.=@ Poulet v. H.F.O., L.L.C., 353 Ill. App. 3d 82, 89-90, 817 N.E.2d
1054 (2004), quoting Gillson v. City of Marion, 188 Ill. 2d 211, 220, 720 N.E.2d 1034
(1999). We review de novo an order granting a section 2-619(a)(9) motion to dismiss.
Poulet, 353 Ill. App. 3d at 89-90.
Generally, there is no vested right in the continuation of a zoning classification.
Furniture L.L.C. v. City of Chicago, 353 Ill. App. 3d 433, 437, 818 N.E.2d 839 (2004);
1350 Lake Shore Associates v. Mazur-Berg, 339 Ill. App. 3d 618, 631, 791 N.E.2d 60
(2003). A legislative body has the right to amend a zoning ordinance (Constantine v.
Village of Glen Ellyn, 217 Ill. App. 3d 4, 23, 575 N.E.2d 1363 (1991)), and a municipality
may properly refuse to issue a permit for construction when an amendatory ordinance is
pending that would prohibit the proposed building development (American National
Bank & Trust Co. of Chicago v. City of Chicago, 19 Ill. App. 3d 30, 33, 311 N.E.2d 325
(1974)).
There are, however, circumstances where a party may obtain a vested right to
develop its property in accord with a particular zoning ordinance, despite an
amendment. 1350 Lake Shore Associates, 339 Ill. App. 3d at 631. Our supreme court
has recognized:
A>[W]here there has been a substantial change of position,
expenditures or incurrence of obligations made in good faith
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by an innocent party under a building permit or in reliance
upon the probability of its issuance, such party has a vested
property right and he may complete the construction and use
the premises for the purposes originally authorized,
irrespective of subsequent zoning or a change in zoning
classification.=@ Pioneer Trust & Savings Bank v. County of
Cook, 71 Ill. 2d 510, 522-23, 377 N.E.2d 21 (1978), quoting
People ex rel. Skokie Town House Builders, Inc. v. Village
Morton Grove, 16 Ill. 2d 183, 191, 157 N.E.2d 33 (1959).
A property owner acquires a vested right to the continuation of a particular
zoning classification where substantial expenditures or obligations were made or
incurred in good-faith reliance on the prior classification and the probability of issuance
of building permits. Furniture L.L.C., 353 Ill. App. 3d at 438; 1350 Lake Shore
Associates, 339 Ill. App. 3d at 632; Tim Thompson, Inc. v. Village of Hinsdale, 247 Ill.
App. 3d 863, 875-76, 617 N.E.2d 1227 (1993). There is no bright-line rule for
determining whether expenditures have been made in good faith reliance; however,
expenses are clearly not incurred in good faith if a property owner has knowledge or
notice of the proposed zoning change. Furniture L.L.C., 353 Ill. App. 3d at 438; 1350
Lake Shore Associates, 339 Ill. App. 3d at 632; Tim Thompson, Inc., 247 Ill. App. 3d at
876.
AAlthough property owners have a right to rely upon the classification of their
property and know that the classification will not be changed unless required for the
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public good, they also acquired their property knowing that amendments could be made
to the ordinance within the limits of the law.@ Thompson v. Cook County Zoning Board
of Appeals, 96 Ill. App. 3d 561, 577, 421 N.E.2d 285 (1981).
Parties claiming entitlement to a vested right, as Ropiy does, have the burden of
proving Aa clear right that they had, while acting in good faith, expended substantial
sums and incurred substantial obligations.@ People ex rel National Bank of Austin v.
County of Cook, 56 Ill. App. 3d 436, 447-48, 206 N.E.2d 441 (1965). See also 1350
Lake Shore Associates v. Casalino, No. 1-04-3379, slip op. at 12 (December 28, 2005)
(The weight of authority places the burden of proof on the party claiming an entitlement
to a vested right.)
Ropiy contends he had no knowledge of the zoning amendment proposal prior to
making the expenditures. Defendants counter the proposal was a matter of public
record and, therefore, he had constructive notice of the ordinance. Defendants contend
even if the expenditures were substantial, they were not incurred in good-faith reliance
because Ropiy should have been aware of the proposed zoning change prior to
acquiring the property.
Constructive notice is defined as "'[n]otice arising by presumption of law from the
existence of facts and circumstances that a party had a duty to take notice of ***; notice
presumed by law to have been acquired by a person and thus imputed to that person.'"
LaSalle National Bank v. Dubin Residential Communities Corp., 337 Ill. App. 3d 345,
352, 785 N.E.2d 997 (2003), quoting Black=s Law Dictionary 1088 (7th ed. 1999).
No case has directly addressed whether the introduction and publication of a
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proposed ordinance alone is sufficient to negate a property owner=s good faith reliance
on the issuance of a building permit. However, Illinois courts have recognized
expenditures are not incurred in good faith reliance on a previous zoning classification if
the property owner had constructive knowledge of the proposed zoning change.
In Kramer v. City of Chicago, 58 Ill. App. 3d 592, 597, 374 N.E.2d 932 (1978), the
court held the plaintiff had not substantially changed his position or expended
substantial sums of money in reliance upon the probable issuance of a building permit
in 1976 when he obtained a lease and mortgage commitment because the Lakefront
Protection Ordinance had been in effect since 1973; if the plaintiff did not have actual
notice of the ordinance, he was bound to have constructive notice of it.
In Tim Thompson, Inc., the court rejected the plaintiff=s contention that it had a
vested right in the continuation of a prior, less restrictive zoning classification. On
August 31, 1988, a public notice was published expressly stating a public hearing would
be held for the purpose of considering the repeal and replacement of the Hinsdale
zoning ordinance. The notice also stated the proposed change could affect the zoning
classification and use of any or all property in Hinsdale. All of the plaintiff=s
expenditures on the property were made after the August 31 publication date. There
was no claim the plaintiff had actually seen or heard about the notice.
Assuming any expenses incurred were substantial, the court held they were
made with constructive notice of the proposed zoning change. Tim Thompson, Inc.,
247 Ill. App. 3d at 876. By having constructive notice of the proposed zoning change
prior to incurring any obligations, the plaintiff failed to establish a vested interest in the
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continuation of the prior zoning classification. Tim Thompson, Inc., 247 Ill. App. 3d at
876. In 1350 Lake Shore Associates, the court noted Aexpenses which a property
owner incurs with knowledge that an amendatory ordinance, pursuant to which the
intended use would not be permitted, is pending, are not incurred in good faith reliance.@
1350 Lake Shore Associates, 339 Ill. App. 3d at 632-33. The court held the expenses
incurred on the plaintiff=s behalf Aafter the down-zoning ordinance was introduced@ in
December 1997 could not have been in good faith reliance on the issuance of a building
certificate. 1350 Lake Shore Associates, 339 Ill. App. 3d at 632-33. Because evidence
suggested the plaintiff was actually aware as early as November 1997 that an
amendatory ordinance would be introduced, the court remanded the case with
directions for the trial court to determine exactly when the plaintiff knew or should have
known the ordinance would probably be introduced. 1350 Lake Shore Associates, 339
Ill. App. 3d at 640.
By contrast, in Industrial National Mortgage Co. v. City of Chicago, 95 Ill. App. 3d
665, 420 N.E.2d 581 (1981), the court affirmed the trial court=s determination that the
plaintiff had acquired a vested right to use the property as provided by the previous
zoning ordinance because substantial expenditures were made Aprior to notice of a
proposed change in the premises= zoning classification and before the amendatory
ordinance was introduced in the City Council.@ (Emphasis added.) Industrial National
Mortgage Co., 95 Ill. App. 3d at 671.
Here, the facts established that on June 4, 2003, Alderman Ocasio proposed an
ordinance to change the zoning classification for the property from R-4 to R-3. The
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proposal was published in the Journal of Proceedings for the Chicago City Council on
July 9, 2003. Plaintiff completed the purchase and received the deed to the property on
July 15, 2003, and then expended $24,350 between July and August 2003 while
preparing to construct the three-unit building. Therefore, unlike the property owner in
Industrial National Mortgage Co., all of plaintiff=s expenditures were made after the
amendatory zoning ordinance was introduced in the City Council and published in the
Journal of Proceedings. See Industrial National Mortgage Co., 95 Ill. App. 3d at 671.
Ropiy contends he incurred a substantial obligation prior to the introduction of the
proposed ordinance by signing an unconditional contract to purchase the property in
April 2003. Ropiy, however, conceded during the hearing on the City=s motion to
dismiss that his rights did not vest until he received the deed to the property on July 15.
The purchase contract was not included in the record. Because we are unable to
review the terms of the purchase contract, we cannot conclude it created a substantial
obligation. See Palanti v. Dillon Enterprises, Ltd., 303 Ill. App. 3d 58, 66, 707 N.E.2d
695 (1999) (AArguments made by an appellant which depend on facts which are not
contained in the record are not sustainable on appeal@).
We also note developers like Ropiy have a right to protect themselves from
zoning changes when they negotiate a purchase contract.
While Ropiy contends he was unaware of the proposed ordinance when he
purchased the property and made the expenditures, he does not contend the
introduction of the ordinance was kept secret. We assume the fact that the proposed
ordinance was introduced on June 4, 2003, and published in the Journal of Proceedings
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on July 9, 2003, was a matter of public record. Where no affirmative acts of deception
have occurred, Amatters which are of public record serve as constructive notice.@ De
Kalb Bank v. Purdy, 166 Ill. App. 3d 709, 725, 520 N.E.2d 957 (1988). Therefore,
assuming any expenses or obligations incurred by plaintiff were substantial, we find they
were made with constructive notice of the proposed amendatory zoning ordinance. See
Tim Thompson, Inc., 247 Ill. App. 3d at 876; Kramer, 58 Ill. App. 3d at 597.
Ropiy contends the mere introduction of a proposed ordinance before the City
Council does not definitively determine whether he was charged with knowledge
sufficient to defeat his vested rights claim. We disagree.
In support of his contention, Ropiy relies on Furniture L.L.C. The plaintiff,
Furniture, purchased a vacant lot for $12.5 million in October 1997 with the intention of
building a residential structure. In December 1998, Furniture retained an architectural
firm to draft detailed plans for the construction of a residential high-rise building. In
March 1999, however, Alderman Matlak proposed an ordinance to the City Council to
create a planned manufacturing district in the Halsted Triangle area, which included
Furniture=s property. Under the new zoning ordinance, Furniture would not have been
allowed to construct a residential building. Alderman Matlak sent a letter to the zoning
administrator requesting the City hold all building permits in the area while the ordinance
was pending.
On June 11, 1999, Furniture received actual notice of the proposed ordinance.
Furniture, however, continued to make expenditures on the property during the summer
of 1999. On February 7, 2001, the Halsted Triangle area was rezoned as a C-5 district,
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which excluded residential uses of the property. Furniture then filed a verified complaint
for declaratory and injunctive relief, arguing it had acquired a vested right to complete
the residential project. The trial court found Furniture had acquired a vested right to
develop the property and enjoined the City from withholding the issuance of any
permits.
Affirming the order, this court held Furniture had made substantial expenditures
through June 1999, when it was finally put on notice of the proposed zoning changes.
Furniture L.L.C., 353 Ill. App. 3d at 442. Even though the ordinance was introduced in
March 1999, we held it was undisputed Furniture Awas not put on notice of the
possibility that the zoning for the Halsted Triangle could change until June 1999.@
Furniture L.L.C., 353 Ill. App. 3d at 442.
The court was not asked to consider whether Furniture had constructive notice of
the amendment when it was introduced in March 1999. The City did not contend
Furniture had constructive notice of the proposed zoning ordinance when it was
introduced. Instead, the City relied only on the actual notice of the proposed change
received by Furniture in June 1999. Constructive notice was not an issue in the case.
Because the court never considered the impact of constructive notice on Furniture=s
vested rights claim, we find Furniture L.L.C. does not control in this case.
Ropiy contends imputing constructive knowledge on all property owners of any
introduced change in zoning would potentially allow municipalities to freeze their
property rights indefinitely while a proposed change in zoning was awaiting action.
A municipal authority can delay issuance of a permit while a zoning amendment
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is pending, but it A>has no right to arbitrarily or unreasonably refuse or delay the
issuance of the permit.=@ 1350 Lake Shore Associates v. Hill, 326 Ill. App. 3d 788, 796,
761 N.E.2d 760 (2001), quoting Chicago Title & Trust Co. v. Village of Palatine, 22 Ill.
App. 2d 264, 268, 160 N.E.2d 697 (1959). Indefinitely postponing the issuance of a
building permit under the pending ordinance doctrine would be viewed as an arbitrary or
unreasonable delay.
After the proposed amendatory ordinance was introduced to the City Council on
June 4, 2003, and published in the City Council=s Journal of Proceedings on July 9,
2003, Ropiy was properly charged with constructive knowledge of the proposed zoning
change. As a developer, Ropiy should have checked the status of a proposed zoning
change before making any substantial investments in the property. See Wakeland v.
City of Urbana, 333 Ill. App. 3d 1131, 1143, 776 N.E.2d 1194 (2002) (ALike any
legislation, zoning ordinances can be amended, and one buys land with that
understanding.@)
We find Ropiy=s expenditures, even if substantial, were not made in good faith
reliance on the prior classification because all of his expenditures were made after he
had constructive knowledge of the proposed zoning change. We conclude the trial
court did not err in dismissing his mandamus action.
II. Due Process
Ropiy contends the zoning amendment is invalid as applied because the City
failed to provide him with adequate notice of the amendment, in violation of his right to
procedural due process. He also contends the trial court erred in granting the City=s
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motion to dismiss without addressing his due process arguments.
We note, however, that Ropiy=s complaint sought only a writ of mandamus to
compel the Building Department and the City to issue a wrecking permit to demolish the
presently existing structure and a building permit to allow the construction of a three-unit
building in its place. The complaint does not contend the zoning ordinance was invalid
because of inadequate notice or any other reason. We are not inclined to impose any
additional notice requirements on the city council in this mandamus action.
Mandamus is an extreme remedy used to compel a public official to perform a
nondiscretionary, ministerial duty. Owens v. Snyder, 349 Ill. App. 3d 35, 39, 811 N.E.2d
738 (2004). To prove a legal right to relief by mandamus, the complaint must
demonstrate a clear right to the requested relief, the respondent=s clear duty to act, and
the respondent=s clear authority to comply with the terms of the order. Owens, 349 Ill.
App. 3d at 39. Despite the remedy=s extraordinary nature, the same pleading rules
apply in mandamus actions as in other actions at law. Noyola v. Board of Education of
the City of Chicago, 179 Ill. 2d 131, 133, 688 N.E.2d 81 (1997).
AA party must recover, if at all, according to the case he has made for himself by
his pleadings. Proof without pleadings is as defective as pleadings without proof.@
American Standard Insurance Co. v. Basbagill, 333 Ill. App. 3d 11, 15, 775 N.E.2d 255
(2002). But see Glisson v. City of Marion, 188 Ill. 2d 211, 224, 720 N.E.2d 1034 (1999)
(although plaintiff failed to raise article XI, section 2, as a basis for standing in his
complaint, lack of standing was an affirmative defense defendant beared the burden of
proving; consequently, plaintiff properly raised the argument in response to defendants=
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section 2-619(a)(9) motion.)
Although Ropiy raised his due process contentions in response to defendants=
motion to dismiss, he never pled the theory in his complaint for mandamus. Unlike
Glisson, defendants were not required to prove the zoning ordinance was valid in order
to defeat Ropiy=s mandamus action. Instead, defendants only had to establish Ropiy
did not have a vested right to the permits. After the trial court concluded Ropiy could
not acquire a vested right to the permits, it properly dismissed the complaint.
While Ropiy contends he did not raise the due process issue because he was
unaware of the amendment when he filed the complaint, he could have sought leave of
court to amend his pleadings at any time prior to final judgment. See 735 ILCS 5/2-
615(a) (West 2004).
We conclude the trial court did not err in dismissing Ropiy=s complaint without
addressing his due process contentions, and it is unnecessary to address Ropiy=s due
process contentions on appeal.
CONCLUSION
We affirm the trial court=s order granting defendants= section 2-619(a)(9) motion
to dismiss Ropiy=s complaint for a writ of mandamus.
Affirmed.
SOUTH, and HALL, JJ., concur.
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