Illinois Supreme Court Reports
1350 LAKE SHORE ASSOCIATES v. HEALEY, 102093 (Ill.
12-21-2006) 1350 LAKE SHORE ASSOCIATES, an Illinois Limited
Partnership, Appellant, v. LORI T. HEALEY, Commissioner,
Department of Planning and Development of the City of
Chicago, et al., Appellees (Edward T. Joyce et al.,
Intervenors-Appellees). Docket No. 102093. Supreme Court
of Illinois. Opinion filed December 21, 2006.
OPINION
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride, and Karmeier concurred in the judgment and
opinion.
Justice Burke took no part in the decision.
Plaintiff, 1350 Lake Shore Associates (LSA), owns property
located at 1320-30 North Lake Shore Drive in Chicago. In
1978, the Chicago city council approved an amendment to the
Chicago zoning ordinance establishing Residential Planned
Development 196 (RPD 196) for the property. When LSA sought
to develop the property in 1997 by constructing a 40-story
apartment building containing 196 dwelling units, it
encountered resistance from a neighborhood group opposed to
the construction of high-rise buildings in the area
surrounding LSA’s property. On December 10, 1997, Charles
Bernardini, then alderman of the 43rd Ward, in which the
property is located, introduced a down-zoning ordinance in
the city council to change the property’s zoning from RPD
196 to R6 General Residence District. Under the latter
zoning classification, LSA’s proposed building was not a
permitted use. The ordinance was approved by the city
council in April 1998 and it became effective the following
month. This case has been in litigation since 1998, when
LSA filed a complaint for mandamus, seeking to require city
officials to issue a zoning certificate and building permit
under the RPD 196 zoning classification. The dispute has
spawned three appellate court decisions. In the instant
appeal, the appellate court affirmed the Cook County
circuit court’s conclusion that LSA did not gain a vested
right to build under the former RPD 196 zoning. 363 Ill.
App. 3d 806. We granted LSA’s petition for leave to appeal.
210 Ill. 2d R. 315.
BACKGROUND
In 1996, LSA authorized its agent, Draper & Kramer
(Draper), to look into the possibility of developing the
property under the RPD 196 zoning classification. In early
1997, LSA authorized Draper to proceed with the project.
Draper hired Jack Guthman, an attorney specializing in
zoning law, to represent LSA in connection with the
project, and an architectural firm to develop the plans.
Draper also hired a surveyor, an urban planner, an elevator
consultant, and an artist to create a rendering based upon
the architect’s plans. In April or May 1997, Guthman and
representatives of Draper met with Bernardini. They
discussed the proposed project and Bernardini was shown the
preliminary building designs. Bernardini requested that the
number of parking spaces be increased and that some changes
be made to the building’s facade. While Bernardini
testified that he did not mention down zoning the property
at this meeting, he informed Guthman and the Draper
representatives that the project would be controversial due
to its size and density and that if they wanted his
support, they should meet with neighborhood representatives
and reach an agreement. Pursuant to Bernardini’s
suggestion, Draper instructed the architect to revise the
building’s plans to add more parking spaces and change the
design of the building’s facade.
The timing of the next meeting between Guthman and
Bernardini was the subject of dispute. LSA claimed that it
took place on August 1, 1997, while defendants argued that
it took place shortly after the first meeting. Bernardini
testified that he and Guthman talked periodically after the
first meeting and that shortly after that meeting,
Bernardini told Guthman that he was receiving complaints
from neighbors about the project, that he had been asked to
down zone the property, and that down zoning was a
consideration if LSA and the neighbors could not reach a
compromise.
In October 1997, Draper representatives met with Bernardini
and showed him the revised plans for the building.
Bernardini again urged them to show the plans to community
representatives. On October 22, 1997, at a chance meeting
with Guthman, Bernardini again urged the need for
compromise. In early November 1997, Draper’s president met
with members of the Near North Preservation Coalition
(NNPC), a neighborhood group opposed to the building
project. No agreement was reached and on November 17, 1997,
the group met with Bernardini and requested that he
introduce a down-zoning ordinance. Upon learning of
Bernardini’s plan to introduce the ordinance, Guthman
requested that Bernardini delay introducing the ordinance,
stating that he believed real progress was being made by
Draper and NNPC. Bernardini agreed to wait until the next
city council meeting. When no agreement had been reached by
that time, Bernardini introduced the down-zoning ordinance
on December 10, 1997. The architect submitted a Part II
Submittal for the project to the City’s department of
planning and development (Department). Despite meetings
between Draper and NNPC on several occasions thereafter, no
compromise was reached. On April 29, 1998, the city council
approved the down-zoning ordinance. The Department did not
issue a Part II approval letter. Issuance of this approval
was a prerequisite to the issuance of a zoning certificate
and building permit.
In August 1998, LSA filed a complaint for mandamus against
the City and the commissioner of the Department to require
the commissioner to issue a Part II approval. Subsequently,
certain individuals who lived within 250 feet of LSA’s
property were allowed to intervene. Following a trial, the
circuit court ruled in favor of defendants and the
intervenors, finding that the Part II approval letter need
not be issued because a down-zoning ordinance was pending
before the city council. On appeal, the appellate court
concluded that the circuit court’s reliance on the
pending-ordinance doctrine was erroneous and it remanded
with directions to issue a writ of mandamus requiring that
a Part II approval letter be issued. 1350 Lake Shore
Associates v. Hill, 326 Ill. App. 3d 788 (2001).
On remand, the intervenors filed a motion for declaratory
judgment seeking a declaration that LSA was not entitled to
a zoning certificate or a building permit. LSA filed an
amended complaint, seeking to require the City’s zoning
administrator to issue a zoning certificate and asking that
the City be enjoined from interfering with LSA’s rights
under RPD 196. Although the circuit court ordered that a
Part II approval letter be issued, it held, based on the
evidence submitted at the earlier trial, that LSA did not
have a vested right to the issuance of a zoning certificate
or building permit. The circuit court found that
expenditures incurred by LSA in connection with the project
were not made in good-faith reliance on the RPD 196 zoning
classification, but were made in an effort to reach a
compromise. LSA again appealed.
The appellate court found that LSA’s vested-rights claim
required additional fact-finding and remanded to the
circuit court with directions to make specific findings as
to (1) the date on which LSA knew or should have known that
it was probable Bernardini would introduce a down-zoning
ordinance; (2) the total amount of expenses incurred by LSA
in connection with the project as of that date; and (3)
whether those expenses were sufficiently substantial to give
LSA a vested right to the issuance of a zoning certificate
and building permit under the RPD 196 zoning
classification. 1350 Lake Shore Associates v. Mazur-Berg,
339 Ill. App. 3d 618 (2003).
On remand, the circuit court made the following findings:
(1) LSA knew it was probable that Bernardini would
introduce a down-zoning ordinance on any date after the
meeting in April or May 1997 involving Guthman, the Draper
representatives, and Bernardini; (2) as of that date, LSA
had incurred expenditures in the amount of $18,900.16 in
connection with the project; and (3) the expenses were
insufficiently substantial to give rise to a vested right
in LSA to the issuance of a zoning certificate and a
building permit for its project. LSA once again appealed.
The appellate court affirmed the circuit court’s judgment,
finding that LSA was not entitled to an order enjoining the
City from applying the existing zoning ordinance, which
would prevent LSA from developing the property under the
RPD 196 zoning, and concluding that the intervenors were
entitled to a declaratory judgment that LSA was not
entitled to a zoning certificate or building permit under
RPD 196. 363 Ill. App. 3d at 823.
ANALYSIS
I
Mandamus is an extraordinary remedy appropriate to enforce
the performance of official duties by a public officer
where no exercise of discretion is involved. People ex rel.
Birkett v. Jorgensen, 216 Ill. 2d 358, 362 (2005), quoting
Madden v. Cronson, 114 Ill. 2d 504, 514 (1986). There must
be a clear right to the relief requested, a clear duty in
the public officer to act, and a clear authority in the
officer to comply with the writ. Noyola v. Board of
Education of City of Chicago, 179 Ill. 2d 121, 133 (1997).
A decision to grant or deny mandamus will not be reversed
on appeal unless it is against the manifest weight of the
evidence. Pioneer Trust & Savings Bank v. County of Cook,
71 Ill. 2d 510, 516-17 (1978). We review conclusions of law
de novo. See Eychaner v. Gross, 202 Ill. 2d 228, 252
(2002).
II
LSA first argues that the circuit and appellate courts
erred in finding that it did not have a vested right to
develop its property in accordance with the provisions of
RPD 196. It argues it earned that right through its
development efforts and substantial expenditures incurred
prior to any official action that could have changed the
zoning classification of the property. The City defendants
argue that the circuit court’s findings were not against
the manifest weight of the evidence; intervenors argue that
LSA is not entitled to a vested right in the RPD 196 zoning
classification as a matter of law.
The general rule is that a landowner has no right to the
continuation of an existing zoning classification. Pioneer
Trust, 71 Ill. 2d at 517. However, an exception to this
rule exists which this court first recognized in Fifteen
Fifty North State Building Corp. v. City of Chicago, 15
Ill. 2d 408, 416 (1958). This exception has been described
as follows:
“[W]here there has been a substantial change of position,
expenditures or incurrence of obligations made in good
faith 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 of the premises for the purposes
originally authorized, irrespective of subsequent zoning
or a change in zoning classification.” People ex rel.
Skokie Town House Builders, Inc. v. Village of Morton
Grove, 16 Ill. 2d 183, 191 (1959).
The appellate court in the instant case explained that the
determination of whether a vested right exists turns on the
resolution of two questions: (1) which of the expenditures
made or obligations incurred by the property owner were
made in good-faith reliance on the probability that the
owner would obtain the necessary clearances to develop the
property; and (2) whether those expenditures or obligations
were substantial. According to the court, central to the
first inquiry is the proposition that, “once a property
owner becomes aware that it is probable that an amendatory
zoning ordinance will be introduced, it can no longer be
said to be able to rely in good faith on the probability
that a zoning certificate or a building permit will issue
pursuant to the property’s current zoning.” 363 Ill. App.
3d at 814-15. The appellate court cited its decision in
Mazur-Berg as authority for this last statement.
In Mazur-Berg, the court acknowledged that there is no
bright-line test for determining whether expenditures have
been made in good-faith reliance on the probability that a
zoning certificate or building permit will issue. Based
upon its review of the case law in this area, the court
then fashioned the test it applied in the instant case,
relying principally on three cases to support its
determination that good-faith reliance ends when there is a
probability that an amendatory zoning ordinance will be
introduced. In American National Bank & Trust Co. of
Chicago v. City of Chicago, 19 Ill. App. 3d 30 (1974), the
owner applied for a building permit to construct a
high-rise building east of Lake Shore Drive in Chicago. The
city refused to issue the permit. Five days after
application for the permit, an ordinance was introduced to
the city council that would prohibit any further private
development east of Lake Shore Drive. The city argued that
there was widespread publicity concerning the proposed
zoning amendment and that the owner was on notice of a
likelihood of a change in the law; accordingly, the owner
did not rely in good faith on the probability of obtaining a
building permit. In addressing this contention, the
appellate court noted:
“As a practical matter, of course, a proposed amendment
may counter the applicant’s argument of reliance on the
probability a permit would issue, such that a change of
position, etc., after knowledge of the proposal would not
be included in a test of substantiality of change,
expenditures, etc., which go to establish the vested right
to issuance of a permit.” American National Bank, 19 Ill.
App. 3d at 34.
The court noted that it was the city’s burden to show that
the plan which would change the zoning was known to the
owner prior to the time that substantial expenditures were
made and that the city had made no such showing. The court
found no evidence that awareness of the plan preceded the
owner’s expenditures. American National Bank, 19 Ill. App.
3d at 35-36.
Another case relied on by the appellate court in Mazur-Berg
is People ex rel. Shell Oil Co. v. Town of Cicero, 11 Ill.
App. 3d 900 (1973). There, the petitioners told the Cicero
town clerk that they intended to construct a gasoline
station on their property. Shortly thereafter, the clerk
informed the petitioners’ agent that the town’s board of
trustees objected to this proposal. That sentiment was
confirmed by the trustees in a subsequent meeting with the
agent, but the town clerk advised the agent to make a
formal request for a building permit. The town trustees
denied the application. Nonetheless, the petitioners
proceeded with the demolition of the existing building on
the property. A few months after a mandamus action was filed
by the petitioners, the town amended its zoning ordinance.
The circuit court issued the writ directing respondents to
issue the building permit for the gasoline station. The
appellate court reversed, concluding that the petitioners
had not incurred substantial expenditures in reliance on
the probability of receiving a building permit. With
respect to the cost of demolition, the court noted that
this expense was incurred at a time when the probability
that a permit would issue was doubtful and the likelihood
of an amendatory ordinance seemed quite probable. Shell
Oil, 11 Ill. App. 3d at 905.
In Naumovich v. Howarth, 92 Ill. App. 2d 134 (1968),
another case relied on in Mazur-Berg, in anticipation of a
request for a building permit to construct a gasoline
station, the City of Springfield passed a resolution
referring the question of reclassification of all property
in an area, including the subject property, to the zoning
board of appeals for public hearing and recommendation. The
resolution also directed that no building permit other than
for residential construction should be issued. A week
later, plaintiffs submitted their application for a
building permit for the gasoline station. The request was
refused due to the resolution. Shortly thereafter, the city
passed an amendatory ordinance changing the zoning
classification of the subject property. The appellate court
noted the factors to be considered in deciding whether one
has a vested right in the existing zoning of a property:
(1) a substantial change of position before an orderly
change in the law; (2) a notice of likelihood of change in
the law prior to a change in the property owner’s position;
(3) the regularity of the proceeding of the municipality in
making the change; and (4) the promptness with which the
municipality takes action. The court found no substantial
change in position prior to the passage of the ordinance
that changed the zoning of the property. Naumovich, 92 Ill.
App. 2d at 139-40.
From these cases, the Mazur-Berg court concluded that once
a property owner becomes aware of the probability that an
amendatory zoning ordinance will be “introduced,” the owner
can no longer rely in good faith on the probability that a
zoning certificate or building permit will issue under the
property’s then-existing zoning. Mazur-Berg, 339 Ill. App.
3d at 634.
The Shell Oil and Naumovich cases cited by Mazur-Berg and,
by extension, the appellate court in the instant appeal do
not support the proposition that it is the probability of
introduction of an amendatory zoning ordinance that is the
cut off point for good-faith reliance. In Shell Oil, the
town trustees, who were responsible for approving building
permits and enacting zoning changes, told the petitioners
that they did not want a gasoline station to be constructed
on the property. Thus, petitioners were on notice from the
very officials responsible for granting or denying
applications for building permits that it was unlikely they
would receive a building permit to construct the gasoline
station. Only after the mandamus action was filed did the
town amend its zoning ordinance, and there is no discussion
in the opinion as to any events that may have preceded that
amendment. In Naumovich, the city council passed a
resolution on the question of zoning reclassification of
property, including the parcel of property at issue,
recommending that the property be reclassified as
residential. Only after this official action had been taken
did the property owner submit an application for a building
permit to construct a gasoline station.
The City asserts in its brief that no court has ever
suggested that the requisite knowledge of the zoning change
must come from a public hearing or the actual introduction
of a zoning amendment. However, neither the City nor the
intervenors have cited any cases that could be construed as
holding that good-faith reliance ends when one city council
member raises the possibility of introducing a down-zoning
ordinance if the property owner does not reach agreement
with neighborhood organizations. It is the position of the
City and the intervenors that the first time Bernardini
mentioned down zoning, LSA could no longer rely in good
faith on the probability that it would be granted a
building permit under the RPD 196 zoning classification. The
trial court found that Bernardini first raised this
possibility shortly after his initial meeting with
representatives of LSA in April or May 1997. The parties
continued to meet during the next several months. LSA
submitted revised building plans, at Bernardini’s request,
adding parking spaces, changing the facade of the building,
and reducing the density of the building, all in an effort
to reach a compromise with concerned neighbors. Although
Bernardini may have mentioned down zoning shortly after his
initial meeting with LSA representatives, he continued to
urge LSA to reach a compromise with neighbors. The
appellate court concluded that it was at the meeting
shortly after the spring 1997 meeting that LSA knew or
should have known that, “regardless of the success of any
attempts at reaching a compromise with community members, it
could no longer rely in good faith on the probability that
it would be issued a zoning certificate and building permit
in accordance with RPD 196.” 363 Ill. App. 3d at 817. The
circuit court came to an identical conclusion, reasoning
that once Bernardini told Guthman that down zoning was a
consideration unless a compromise with neighbors was
reached, LSA could not rely on the probability that it
would receive its building permit. Accordingly, any
expenditures made without securing an agreement could not
be construed as being made in good faith. The circuit court
was concerned that any other interpretation would allow a
developer to manipulate the date of compromise or impasse
and thus render the concept of good faith meaningless.
The conclusion reached by the circuit and appellate courts,
however, could lead to manipulation by objecting neighbors
and may discourage property owners from seeking to develop
their property. Neighbors who object to proposed
construction may pressure their political representative to
make early threats to down zone unless the owner
compromises. The neighbors may then later refuse to
compromise and request their representative to introduce a
down-zoning ordinance, confident in the knowledge that the
owner could have gained no vested right to build under the
property’s former zoning. A standard that may be subject to
manipulation by either party is unworkable. Further, the
conclusions reached by the circuit and appellate courts here
assume that the only type of building LSA could construct
under the RPD 196 zoning classification is the one
originally conceived. As LSA points out, however, that
classification merely set requirements for maximum floor
area ratio and land coverage, established setback and yard
requirements, established the minimum number of parking
spaces, and limited the overall number of units. Thus, it
may have been possible to compromise on a different type of
structure, had the parties been willing.
The City argues that no case exists in which good-faith
reliance was found despite the plaintiff’s knowledge that a
zoning change was pending and it refers repeatedly in its
brief to “pending zoning change,” “impending amendment,”
“impending zoning change” to describe the point at which
LSA’s good-faith reliance on the existing zoning ended.
However, no zoning change was “pending” until Bernardini
introduced the down-zoning ordinance on December 10, 1997.
American National Bank does not support the City’s
position. There, the property owners’ expenditures and
contractual obligations largely preceded the public release
of the zoning plan on which the proposed amendment was
based. In contrast to the situation in the instant case,
the zoning plan in American National Bank was in existence
and pending before the city council. The actual ordinance
that changed the zoning was not introduced until after the
owners had submitted their application for a building
permit. There is nothing in American National Bank that
suggests a property owner may be precluded from gaining a
vested right merely because one city council member
expresses an intent to introduce a down-zoning ordinance at
some future time.
Other cases cited by the City are not to the contrary. In
Kramer v. City of Chicago, 58 Ill. App. 3d 592, 597 (1978),
the amendatory zoning ordinance had been enacted more than
two years before a building permit was applied for. The
appellate court noted that the owner at the very least had
constructive notice of the change in zoning and thus could
not have relied on the probable issuance of a building
permit. In People ex rel. National Bank of Austin v. County
of Cook, 56 Ill. App. 2d 436 (1965), the only issue was the
substantiality of the plaintiff’s claimed expenditures.
There was no discussion in the appellate court’s opinion on
the issue of when the plaintiff could no longer rely on the
probability of obtaining a building permit for its project.
In Chicago Title & Trust, a proposed change in the
property’s zoning classification was pending before the
municipality’s zoning authorities, on which public hearings
had been held over a period of several months. The
appellate court noted that it would be illogical to hold
that one could gain a vested right to build under the
existing zoning classification merely by filing an
application for a building permit, where a comprehensive
zoning ordinance was under consideration by the
municipality and on which public hearings had been held.
Chicago Title & Trust Co. v. Village of Palatine, 22 Ill.
App. 2d 264, 270 (1959). VonBokel v. City of Breese, 100
Ill. App. 3d 956 (1981), did not discuss the vested-rights
doctrine; rather, the case turned on principles of
equitable estoppel based upon alleged assurances by the
municipality regarding approval of the plaintiff’s
subdivision plat if certain changes were made.
We conclude that when considering whether a property owner
has gained a vested right to build under the property’s
then-existing zoning classification, the starting point for
the analysis must be the point at which some official
action took place that could result in a change in the
property’s zoning. At a minimum, this would require actual
introduction of a proposal to the appropriate zoning
authorities which, if enacted into law, would change the
property’s existing zoning to a classification that would
not allow construction of the property owner’s building
project. In the instant case, Bernardini introduced his
down-zoning proposal to the city council on December 10,
1997. This action followed several months of changes in the
building’s design in an effort to satisfy concerns raised
by Bernardini and reach a compromise with objecting
neighbors. Only when it was determined that no agreement
would be reached did Bernardini introduce the down-zoning
ordinance. At that point, LSA knew or should have known
that it was not probable it would obtain a building permit
for its project.
The circuit court limited its consideration of LSA’s
expenditures to those incurred up to a date shortly after
Bernardini’s April or May 1997 meeting with Guthman and
representatives of Draper. Having determined that the
circuit and appellate courts erred in identifying the date
on which LSA knew or should have known that it would
probably not receive the necessary approvals to complete
its project, we conclude that this cause must be remanded
to the circuit court for a determination as to the
expenditures and/or obligations incurred by LSA up to
December 10, 1997.
III
LSA takes issue with some of the findings of the circuit
court regarding the expenditures to be counted in
determining whether LSA had a vested right to build under
the RPD 196 zoning. We note that we will not disturb the
trial court’s findings of fact unless they are contrary to
the manifest weight of the evidence. Pioneer Trust, 71 Ill.
2d at 516-17. The only specific argument LSA makes regarding
the circuit court’s findings on its expenditures is that it
should have been credited for the amounts paid by Draper to
its employees for work done on the building project. LSA
argued that the employees performed 738 hours of work for a
total expenditure of $100,287.50. The circuit court
rejected LSA’s claim, relying on National Bank of Austin.
The court in that case refused to credit $1,600 of salary
payments to the plaintiff’s employees, finding that the
employees would have been paid regardless of whether they
worked on the building project. National Bank of Austin, 56
Ill. App. 2d at 448. LSA seeks to distinguish that case by
noting that the employees here work for Draper, not for LSA.
It also argues that the record shows that those employees
might not have been kept on the payroll absent LSA’s
building project. However, the appellate court noted that
the only witness to testify concerning this issue stated
that without LSA’s project, the employees would either have
worked on other projects or would not have been retained,
“one of the two.” 363 Ill. App. 3d at 821. The appellate
court found this evidence to be speculative and therefore
insufficient to show that payments to Draper’s employees
should be counted toward LSA’s expenditures. We agree and
conclude that the circuit court’s finding on this issue was
not against the manifest weight of the evidence.
IV
LSA also argues that the appellate court erred in devising
a test to determine whether LSA’s expenditures were
substantial. The appellate court found very little
assistance in the case law on how to determine the issue of
substantiality. Nonetheless, the court concluded that the
following factors are relevant in making a substantiality
determination: (1) a comparison of the expenses incurred to
the total projected cost of the development; (2) purchase
price of the land; (3) the character of the entity
incurring the costs (individual homeowner versus a large
developer); and (4) any other factor that may be deemed
relevant to the question of substantiality. Finally, the
appellate court held that courts should employ a
“totality-of-circumstances approach, rather than measure
substantiality in terms of absolute dollars only.” 363 Ill.
App. 3d at 822-23. In applying these factors, the court took
into account an additional $17,400 that LSA claimed the
circuit court ignored in calculating the expenditures
incurred, for a total of $36,300 in expenses. The court
noted that the estimated value of the land was $6 million
and the projected cost of the development was $70 million.
The court also considered the character of LSA and found
that it was not an entity for whom $36,300 would be
considered a substantial expenditure. Thus, the court
affirmed the circuit court’s finding that LSA’s expenses
were not sufficiently substantial to give rise to a vested
right. 363 Ill. App. 3d at 823. We have held that the
circuit and appellate courts erred in their vested-rights
analysis. On remand, the circuit court must determine the
amount of LSA’s expenditures up to December 10, 1997, the
date on which Bernardini introduced the down-zoning
ordinance to the city council. The court will again have to
make a determination as to whether those expenditures were
sufficiently substantial to give LSA a vested right to
complete its project. Accordingly, we consider the issue of
substantiality.
One of the factors to be considered, according to the
appellate court, is a comparison of the amount spent in
good-faith reliance on a proposed development with the
projected costs of the development. 363 Ill. App. 3d at
822. This is the concept of proportionality. LSA argues
that proportionality should not be considered, citing
American National Bank. The court in that case stated that
it is the rule in Illinois that substantiality is
determined without regard to any proportionality test and
by considering the cost of the land. American National
Bank, 19 Ill. App. 3d at 34. In support, the court cited
National Bank of Austin, 56 Ill. App. 2d 436. However, the
latter case did not discuss the issue of proportionality of
expenditures. Other cases have also not used a
proportionality calculation when deciding whether
expenditures were substantial. See, e.g., Illinois Mason
Contractors, Inc. v. City of Wheaton, 19 Ill. 2d 462 (1960)
(loan commitment of $50,000, a contract for work totaling
$30,000, and expenditures of $5,600); People ex rel. Skokie
Town House Builders, Inc. v. Village of Morton Grove, 16
Ill. 2d 183 (1959) (land purchased for $26,000, expenditures
of $1,830); Fifteen Fifty North State Building Corp. v.
City of Chicago, 15 Ill. 2d 408 (1958) ($105,000
architectural contract and $5,100 in expenses); O’Connell
Home Builders, Inc. v. City of Chicago, 99 Ill. App. 3d
1054 (1981) ($12,000 architectural fee and $5,500 for tree
removal); Mattson v. City of Chicago, 89 Ill. App. 3d 378
(1980) (demolition of plaintiff’s home worth more than
$40,000 and expenditures of $4,100); Deer Park Civic Ass’n
v. City of Chicago, 347 Ill. App. 346 (1952) (land
purchased for $41,000, contractual liabilities incurred of
over $597,000, and extensive construction work performed).
In these cases, the expenses were not compared to anything;
they were declared to be substantial based upon the amount
alone.
Defendants argue that proportionality is a proper
consideration in determining whether expenditures are
substantial. In support of this argument, they cite Zeitz
v. Village of Glenview, 304 Ill. App. 3d 586 (1999). The
appellate court in that case found that the plaintiffs did
not establish a probability that the village would approve
their subdivision plan and that, even assuming they had
made such a showing, the amount of their expenditures, in
comparison to the property’s value of more than $1 million,
failed to establish detrimental reliance. Zeitz, 304 Ill.
App. 3d at 594. This statement, however, was not necessary
to the court’s holding and is properly termed dicta.
Nonetheless, we agree with defendants and with the appellate
court below that proportionality is a factor to be
considered in the substantiality analysis. The purpose of
the vested-rights doctrine is to mitigate the unfairness
caused by a zoning change when a property owner has made a
substantial change of position in good-faith reliance on the
probability of obtaining a building permit. See Cos Corp.
v. City of Evanston, 27 Ill. 2d 570, 576-77 (1963). Whether
a change of position is substantial depends on the facts of
each case. It is not possible to properly make this
determination by considering only the objective amount of
expenditures in a vacuum. Necessarily, then, one must
consider not only the amount of expenditures, but also
factors that make each case unique. One of these factors
is, as the appellate court held, the projected cost of the
development. Other factors, such as the nature or character
of the person or entity seeking to develop the property and
the cost of the land are also appropriate considerations in
deciding whether expenditures are substantial. There may,
as well, be other factors in individual cases that a court
may properly consider. None of these factors should be
viewed in isolation; rather, as the appellate court noted,
it is the totality of the circumstances that will determine
whether expenditures in any given case are deemed to be
substantial. Thus, we agree with the formulation set forth
by the appellate court with respect to making a
determination of substantiality.
V
LSA argues that the circuit and appellate courts
erroneously placed the burden of proof on it to show the
date on which it knew or should have known it was probable
that Bernardini would introduce a down-zoning ordinance.
Questions regarding the burden of proof are questions of
law and are reviewed de novo. See People v. Lindsey, 199
Ill. 2d 460, 471 (2002). In its fourth amended complaint,
LSA requested that a writ of mandamus issue to the City of
Chicago zoning administrator to issue a zoning certificate,
certifying that the plans submitted as part of LSA’s Part
II application conform to the RPD 196 zoning. To be entitled
to a writ of mandamus, the plaintiff must establish a clear
right to relief, a clear duty of the public official to
act, and a clear authority in the public official to comply
with the writ. People ex rel. Madigan v. Snyder, 208 Ill.
2d 457, 465 (2004). The burden rests on the plaintiff to
show a clear legal right to issuance of the writ. Chicago
Ass’n of Commerce & Industry v. Regional Transportation
Authority, 86 Ill. 2d 179, 185 (1981). On April 29, 1998,
the Chicago city council approved the down-zoning ordinance
introduced by Bernardini, changing the zoning of LSA’s
property from RPD 196 to R6 General Residence District. On
August 25, 1998, LSA filed the instant action. Under the
property’s then-existing zoning classification, R6 General
Residence District, LSA’s proposed building project was not
a permitted use. Accordingly, to be entitled to the zoning
certificate and building permit it sought, LSA had to
establish a vested right to build under the former RPD 196
zoning ordinance. Absent proof of a vested right, LSA’s
mandamus complaint must fail.
LSA asserts that Illinois property owners have never before
been saddled with a duty to continuously prove an ongoing
right to rely on the law that was enacted specifically to
govern their conduct. However, we have noted that property
owners have no vested right to the continuation of existing
zoning laws. Pioneer Trust, 71 Ill. 2d at 517. That
principle of law may be overcome only if a property owner
establishes a vested right to build under the property’s
former zoning. In support of its argument that defendants
have the burden of proving the point at which LSA’s
good-faith reliance ended, LSA relies on American National
Bank. Although some language in that case can be read as
shifting the burden of proof to the party opposing the
plaintiff’s claim to a vested right, it can also be read as
simply noting that, once the plaintiff has established a
material change of position in reliance on the probability
that a building permit would issue, the defendant must come
forward with some proof to the contrary. See American
National Bank, 19 Ill. App. 3d at 36 (“The record shows
that the petitioners expended substantial sums in reliance
on the probability a permit would issue. Having established
their right to a writ, it was for the respondents to show
that the petitioners did not rely on existing zoning at the
time the expenditures were made”). One way to make this
showing would be to demonstrate that the plaintiff was
aware of a proposed or actual zoning change at the time the
expenditures were made. This does not, however, shift the
burden of proof to the defendant; rather, the defendant
must, as in any other case, put forth evidence to counter
the plaintiff’s proof. We conclude that the courts below
did not err in placing the burden on LSA to demonstrate a
vested right to build under the RPD 196 zoning.
VI
LSA argues that under the City’s zoning ordinance and
regulations, it was entitled to a zoning certificate and
building permit once the City issued its Part II approval
letter. Thus, according to LSA, the prior-pending-ordinance
doctrine does not apply to permit the City to withhold the
necessary approvals on the building project. The City
argues, and we agree, that LSA has forfeited this issue
because it did not include the issue in its petition for
leave to appeal. Failure to include an issue in a petition
for leave to appeal results in forfeiture of that issue for
review. People v. Carter, 208 Ill. 2d 309, 318 (2003).
Accordingly, we decline to consider this argument.
CONCLUSION
For the reasons stated, we reverse the judgments of the
circuit court and the appellate court and remand to the
circuit court for a determination of the amount of expenses
incurred by LSA as of December 10, 1997 and whether those
expenses were sufficiently substantial to give LSA a vested
right to develop its building project under the former RPD
196 zoning classification.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
JUSTICE BURKE took no part in the consideration or decision
of this case.