Court: Appellate Court of Illinois; February 3, 1992; Illinois; State Appellate Court
Defendants City of Des Plaines and several of its employees appeal a Cook County circuit court's orders granting plaintiff Bernard A. Heerey mandamus relief to compel the issuance of a building permit and injunctive relief against the City. Heerey, owner of real estate at 875 East Rand Road since December 31, 1986, initiated discussions for a building permit on July 30, 1987, with a formal application filed on February 28, 1990, for alterations to the front office building on the property. On March 2, 1990, permit coordinator Chase informed Heerey's architect that permit approval required property subdivision. The City issued a stop work order on March 14, 1990. Heerey had leased the front office building to United Business Machines, Inc., effective May 1, 1990, contingent on completing necessary alterations before that date. Heerey claimed the City’s refusal to grant a building permit was improper. The complaint originally included five counts, but counts III and V were dismissed, leaving counts I (mandamus), II (injunctive relief), and IV (declaration regarding subdivision requirements). Defendants argued that Heerey failed to exhaust administrative remedies, that injunctive relief was inappropriate, and that his interpretation of city ordinances was incorrect. The trial court denied the dismissal motion, and the remaining counts were tried on April 5, 1990, with Heerey testifying about his properties and the halted construction due to the City’s actions.
Plaintiff purchased a property previously occupied by Mr. Eglidi and Depend-On Trucking, both of whom vacated after the sale. The front office building was later leased to United Business Machines, while the back building had housed the Truck and Equipment Company until its departure in 1990. The property, located at 855 and 875 East Rand Road, spans over five acres. Vern Chase, the City permit coordinator, informed plaintiff's architect that a building permit could not be issued due to City ordinances requiring subdivision of the property containing two buildings. Chase noted that previous corrections needed for the permit had been addressed by plaintiff and referenced a 1971 permit granted to Carbetta Construction Company, which considered the back building an accessory use. He also indicated that the property had not been resubdivided since 1920. City engineer Timothy P. Oakley confirmed the property occupied two tax parcels totaling 2.4 acres of an unsubdivided platted lot exceeding five acres. Louis Pagones, director of municipal development and ex officio building commissioner, stated that no occupancy certificates had been issued since the back building's construction in 1971, and he could not issue a permit if plans did not comply with laws and ordinances. Pagones cited two reasons for the permit denial: the potential for two principal uses and the requirement under the Plat Act for subdivision. After admitting exhibits and hearing arguments, the trial court ruled in favor of plaintiff, granting mandamus and injunctive relief, and finding the back building to be an accessory use as per city ordinances. Defendants appealed, arguing that plaintiff had not exhausted administrative remedies, that mandamus was improper due to non-compliance with ordinances, that injunctive relief was inappropriate since mandamus was available, and that plaintiff should be barred from relief due to unclean hands. The court addressed the exhaustion of administrative remedies, clarifying it as a policy rather than a jurisdictional requirement, allowing local officials an opportunity to correct potential errors.
The exhaustion doctrine, which typically requires parties to seek relief through administrative channels before pursuing court action, has exceptions, particularly when seeking relief is deemed futile (Castaneda v. Illinois Human Rights Comm’n). However, potential denial of relief does not exempt parties from this requirement (Northwestern University v. City of Evanston). The futility doctrine is applied on a case-by-case basis (Dock Club, Inc. v. Illinois Liquor Control Comm’n).
In this case, defendants argued that the plaintiff needed to comply with City ordinance 5.2 regarding appeals from the Building Commissioner. The ordinance allows aggrieved parties to appeal decisions made by the Building Commissioner. Appeals must be filed within a timeframe set by the Building Control, Inspection Committee, which is required to hold a public hearing and issue findings within specified deadlines. These findings are final administrative determinations, subject to court review.
The City ordinance also outlines the responsibilities of the Building Commissioner regarding permit applications, stating that rejections must be in writing, detailing the reasons. The Building Code specifies that the director of municipal development acts as the building commissioner. The trial court ruled that the defendants did not demonstrate that the Building Commissioner had made a final, appealable decision; instead, there was only an oral statement indicating that a permit approval was contingent upon subdivision approval. This lack of a written denial violated the City’s ordinances, allowing for potential court remedies like mandamus for illegal administrative action (Torres v. County of Kane).
Defendants contend that the City lacked adequate time to deny the permit, arguing that the plaintiff's lawsuit was filed approximately 20 days post-application. However, evidence shows defendants communicated the denial to the plaintiff's architect and issued a stop work order, undermining their argument. Defendants also claim the plaintiff's complaint admits to the permit denial. Yet, the complaint alleges that defendants "would not issue a building permit" and "prevented [plaintiff] from obtaining approval," which does not constitute a clear admission. The trial court did not err in addressing the exhaustion issue.
Citing a precedent, the court noted that a recommendation to a village board concerning a building permit is not a final order for judicial review under the Administrative Review Law. When ultimate authority lies with a city council, it acts in a legislative rather than an administrative capacity. The decisions of a zoning board of appeals can be final and reviewable if acting quasi-judicially; however, if acting legislatively, recommendations are nonfinal and unreviewable.
The ordinance in question indicates that the building control and inspection committee recommends actions to the city council, suggesting a legislative process. Thus, the plaintiff was not obligated to exhaust non-existent administrative remedies, as the ordinance lacked a meaningful appeal procedure. While the ordinance states that committee decisions are final and subject to judicial review, the defendants’ assertion regarding the appealability of city council decisions under the Administrative Review Law appears inconsistent.
The ambiguity surrounding whether the process is legislative or administrative raises concerns about the plaintiff's ability to appeal the committee's recommendations. Even if the procedure were considered administrative, imposing a process that leaves the plaintiff uncertain about judicial review timing raises fairness issues. The judicial policy favoring local officials correcting errors is outweighed by the risk of plaintiffs losing their rights while attempting to navigate the ordinance.
Defendants argue that the city council's decision is appealable under the Administrative Review Law; however, a home rule unit like the City cannot mandate this in an ordinance. The ordinance in question does not require appeals under the review law, allowing for common law methods of judicial review, including mandamus and injunctive relief. The trial court correctly permitted the plaintiff to seek these remedies without requiring exhaustion of administrative remedies.
Regarding mandamus, it is an extraordinary remedy requiring the plaintiff to demonstrate a clear legal right to relief and compliance with application procedures. Defendants contend the plaintiff's remodeling violates city ordinances, specifically citing the Des Plaines building code and zoning ordinance. The building code mandates compliance with applicable laws, while the zoning ordinance restricts the number of principal buildings on a zoning lot. Definitions clarify that a 'lot of record' and a 'zoning lot' may differ. The trial court determined that the plaintiff's property is a single zoning lot and that the rear building qualifies as an accessory use, not violating the zoning ordinance.
Defendants argue on appeal that the evidence only shows the rear building was constructed as an accessory use, without demonstrating its status under plaintiff's remodeling plans. Their brief primarily cites requirements for subdividing zoning lots and argues that separate uses necessitate subdivision, but lacks supporting case law. Defendants reference cases from the City of Chicago’s zoning laws, which involve demolitions and new constructions that do not apply to the current remodeling situation, where the rear structure remains unaltered and is being leased rather than sold. The cited cases do not establish a blanket rule against separate uses in the current context.
Defendants also reference section 5—3—2 of the Des Plaines building code concerning the necessity of a Certificate of Compliance for altered structures. However, they do not provide evidence that the plaintiff's remodeling alters the classification of occupancy or that there has been an inconsistent change in occupancy. Furthermore, they fail to explain the concept of 'classification of occupancy' or cite authority supporting their claim that separate uses automatically imply an occupancy change. The ordinance focuses on the issuance of compliance certificates, with section 5.3—3(c) indicating that a building permit must be obtained first. Defendant Pagones acknowledged that compliance with building permit requirements is necessary for obtaining a certificate. Overall, defendants have not established that noncompliance with a certificate of compliance relates to the prerequisites for obtaining a building permit.
Defendants argue that the plaintiff's plans contravene the Plat Act, which mandates that a landowner subdividing land into parcels smaller than five acres must survey the land and create a subdivision plat. However, since the plaintiff is not attempting to subdivide or sell the property, the defendants have not demonstrated any error by the trial court in granting mandamus relief to the plaintiff. Additionally, defendants claim that the trial court improperly issued injunctive relief when mandamus should have been the sole remedy for the denial of a building permit. Despite this, the court can grant injunctive relief to prevent municipal interference when there is no legal basis for refusing a building permit. The trial court determined that the plaintiff satisfied the criteria for mandamus, ruling that there was no justification for withholding the permit. Consequently, the order restricts defendants from obstructing the remodeling or occupancy of the building due to the alleged failure to subdivide the property, aligning with precedent from Rosehill Cemetery Co. v. City of Chicago. Furthermore, defendants contend that the plaintiff should be denied relief due to unclean hands; however, this defense was not presented to the trial court and cannot be raised on appeal due to insufficient record for review. Therefore, the circuit court's decisions are upheld.
