Supplemental Opinion on Petition for Rehearing.
William Harmon,the sole contesting appellee in this case, has substituted attorneys and obtained leave of this court to file an amended petition for rehearing. The petition amounts to a complete reargument of the case, raising issues not heretofore considered and reiterating arguments considered unsound in our opinion. Although Rule 367 (b) clearly states that reargument of an appeal shall not be made by means of a petition for rehearing (111 Rev Stats, c 110A, § 367 (b) (1967)), we shall consider certain of the points raised.
The appellee now contends that the property was transferred to Reuben and Eve Sonshine on April 5, 1965, and hence they were necessary parties and should have been named in Kaepplinger’s petition. He cites section 54 of the Civil Practice Act which provides that when a change of interest occurs following commencement of a cause of action and it becomes necessary to bring another person before the court, “the action does not abate, but on motion an order may be entered that the proper parties be substituted or added. . . .” He contends that this provision of the statute applies to the instant case, that Kaepplinger knew the property had been transferred to the Sonshines and failed to join them. This point is based on a misconception of the nature of these proceedings. Kaepplinger’s petition was filed in the same proceeding in which the decree was entered and bore the caption of the original case. It is not a suit between Kaepplinger and the owners of the property nor is it a suit on behalf of Kaepplinger. It is a proceeding in which Kaepplinger has brought to the attention of the court the fact that the building being erected on the property adjoining his was being constructed in violation of the zoning laws and the provisions of a decree entered by the court, in which decree the court had reserved jurisdiction for the purpose of enforcing provisions of the decree. The decree provided that the plaintiffs Vernon and Selma Anundson “and all persons claiming by, through or under them” had the right to erect a three-story building containing 11 stores or offices, 6 single-bedroom apartments and 6 efficiency-apartment units. The property was thereby exempted from the provision in the ordinance fixing a ratio between the number of dwelling units and the lot size. The remaining provisions of the ordinance remained in full force and effect. The City of Chicago was directed to receive and examine any application for a permit to erect such building in accordance with the spirit and intent of the decree, and the court reserved jurisdiction for the purpose of enforcing its provisions.
In 1966 Kaepplinger filed his intervening petition and charged that the decree was being violated in the following respects:
(a) The building under construction contained a fourth floor roof garden capable of accommodating 250 people;
(b) It contained an auditorium capable of accommodating 600 people;
(c) Notwithstanding the assurances of counsel to the court, there were no parking facilities on the property; and
(d) The plans submitted to the Building Department of the City of Chicago were not in conformity with the plans presented to the court.
It further appeared that eight of the rooms described as offices contain bathtubs so that, as counsel for the appellant has argued, they may be easily and surreptitiously converted into dwelling units. As before noted, no parking facilities were provided although the building as now constructed, with a dance hall and auditorium, would under the ordinance require a total of 92 parking spaces on the premises. The building thus violates both the ordinance and the declaratory judgment decree.
It is clear that the contractor Harmon was violating the decree by erecting a nonconforming structure on the property. His actions were contrary to the decree whether he was operating on his own behalf (as may be inferred from his testimony) or on behalf of the legal owners. He appeared and contested the petition and he is undoubtedly subject to the jurisdiction of the court. As to the Sonshines, they succeeded to whatever rights the Anundsons acquired through the decree and are bound by the same conditions imposed on the Anundsons. They cannot be allowed to violate the decree either by their own action or through the agency of their general contractor. The court having maintained continuing jurisdiction had ample power to enforce its original order and should have ordered Harmon to conform or have prohibited further construction or usage of the property.
The developers of this property deliberately chose to risk violating the decree in 1962 when they amended their complaint for the declaratory judgment without giving additional notice to the neighboring property owners. The trial court at the hearing admonished them as follows:
“You can go ahead and finish your case. I won’t interrupt your trial. If it goes to the Supreme Court I would be reversed on it.”
When Kaepplinger brought the violations to the attention of the court in 1966, the building was well on the way to completion and the trial court was obviously loathe to intervene, presumably since the damage had already been done. The court however recognized that the owners were violating the terms of the decree and said:
“There is no question about it that the decree contemplated off-street parking and the decree also contemplated that the existing ordinances applicable to the building would be adhered to.
“Now, what the ordinance requires is that off-street parking be provided, and if they don’t want to utilize this space for their seven or eight automobiles they will have to go and apply for a special use.”
Plaintiffs’ counsel argued that there was no violation of the ordinance because the building had not been completed and the court responded:
“Certainly there has been a violation. You have now admitted it. You have no provision for off-street parking.
“You can’t comply unless you get a certificate of special use, and you are not complying.”
The court further said:
“I wouldn’t have entered the decree if I had known about the parking. They told me they had complied with the parking requirements.”
The parties apparently believed that a completed building would save them from further legal regulation. It is our opinion that the integrity of the law and the orders of a court are at stake and are of prime importance.
The petition for rehearing is denied.