                                                     SECOND DIVISION
                                                     FILED: April 20, 2010




No. 1-09-1126



1350 LAKE SHORE ASSOCIATES, an                       )        APPEAL FROM THE
Illinois limited partnership,                        )        CIRCUIT COURT OF
                                                     )        COOK COUNTY.
      Plaintiff-Appellant,                           )
                                                     )
v.                                                   )
                                                     )
ARNOLD L. RANDALL, Commissioner,                     )
Department of Planning and Development               )
of the City of Chicago, and the CITY                 )
OF CHICAGO, an Illinois municipal                    )
corporation,                                         )        No. 07 CH 16368
                                                     )
                                                     )
      Defendants-Appellees,                          )
                                                     )
and                                                  )
                                                     )
EDWARD T. JOYCE, CARL HUNTER, JOHN                   )
STASSEN, JOHN C. MULLEN, CLARK W.                    )
FETRIDGE, RESPICIO F. VASQUEZ and                    )
BERNARD J. MILLER,                                   )        THE HONORABLE
                                                     )        STUART PALMER,
      Intervenors-Appellees.                         )        JUDGE PRESIDING.


      JUSTICE HOFFMAN delivered the opinion of the court:

      Following a remand from the Illinois Supreme Court, the

Circuit Court of Cook County entered an order finding that the

plaintiff, 1350 Lake Shore Associates (LSA), failed to prove a

clear    right    to    a   writ    of   mandamus,       as    its   pre-development

expenditures      were      not    sufficiently   substantial         to   acquire   a

vested    right        in    the     continuation        of     a    former     zoning
No. 1-09-1126

classification.         LSA now appeals, raising a number of factual and

legal   challenges          to   the    circuit     court's     decision.      For    the

reasons which follow, we affirm.

       The procedural history of this matter is long and complex,

comprising over 11 years of litigation and numerous appeals.                         For

the sake of brevity, we have attempted to limit our recitation of

the facts to those necessary to resolve the issues presented in

the instant appeal.

       In     1952,    LSA's      predecessor       in    interest    purchased       the

property located at 1320-30 Lake Shore Drive (the property) for

$195,118.08.          Twenty-six years later, on November 14, 1978, the

Chicago City Council approved LSA's application to change the

property's       zoning      from      an    "R8    General     Residence   District"

classification         to    "Residential      Planned      Development     196"     (RPD

196).       The RPD 196 classification permitted the construction of a

40-story, 196-unit apartment building on the property.

       After having secured the passage of RPD 196, LSA chose not

to develop the property at that time.                    It was not until 1996 that

LSA's       agent,      Draper         and   Kramer,       Inc.    (Draper),       began

investigating         the    possibility       of   developing     the   property      in

conformity with RPD 196.               To that end, Draper hired Jack Guthman,

an attorney specializing in zoning law, in early 1997.                           Draper

also    subsequently         hired      an   architect,     a   surveyor,   an     urban




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No. 1-09-1126

planner,     an    elevator     consultant,      and     an     artist       to       create    a

rendering from the architect's conceptual drawings.

     In April or May of 1997, Guthman and representatives of

Draper met with Charles Bernardini, then alderman of the ward in

which the property is located.               At that meeting, Bernardini was

shown the preliminary designs for a high-rise building.                                  Though

Bernardini acknowledged that he did not mention changing the

property's zoning classification at this time, he did inform

Guthman and the Draper representatives that, due its size and

density,     the   proposed     development        would      be   controversial              and

that,   if    they     wanted       his   support,       they      should         meet       with

neighborhood representatives and reach an agreement.

     Shortly after the first meeting, Bernardini told Guthman

that he had received complaints from neighbors regarding the

project and that he was considering down-zoning the property if

LSA and the neighbors could not reach a compromise.                          No agreement

was reached, and, on December 10, 1997, Bernardini introduced an

ordinance     before    the     Chicago     City    Council        to   down          zone    the

property to an "R6 General Residence District."

     The next day, the project's architect submitted plans for a

high-rise     building    to        the   City   of      Chicago's       Department            of

Planning and       Development,       seeking      the    issuance       of       a    Part    II

Approval     letter.          For     a   property        located       in        a    planned




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No. 1-09-1126

development, a Part II Approval letter is a prerequisite to the

issuance       of   a   zoning    certificate,         which,   in   turn,    is   a

prerequisite to the issuance of a building permit.                     See Chicago

Zoning Ordinance § 11.5 (amended 7-21-00), § 11.11-3(b) (amended

12-11-91).

     On April 29, 1998, the Chicago City Council approved the

down-zoning ordinance.           LSA never received a response from the

Department of Planning and Development regarding its request for

a Part II Approval letter.            Without a Part II Approval letter,

LSA was unable to obtain a zoning certificate or a building

permit.

     On       August    25,   1998,   LSA    filed     a   complaint    naming     as

defendants the City of Chicago (City) and the Commissioner of the

Department of Planning and Development.                 In relevant part, LSA's

complaint sought a writ of mandamus directing the Commissioner to

issue     a    Part     II    Approval      letter1.       Thereafter,       certain


     1
         LSA's complaint also contained a count seeking a declaration

that the down-zoning ordinance did not affect its right to develop

the property in conformity with RPD 196 and an injunction barring

the City of Chicago from enforcing the down-zoning ordinance. This

count, however, was later voluntarily dismissed on LSA's own

motion.       In addition, the complaint sought a declaration that the

down-zoning ordinance was void.             Following a trial on this issue,


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No. 1-09-1126

individuals who lived within 250 feet of the property at issue

were allowed to intervene.

      Following a trial, the circuit court ruled in favor of the

defendants and the intervenors, finding that a Part II Approval

letter need not be issued because a down-zoning ordinance was

pending before the city council.                On appeal, we concluded that

the circuit court erroneously relied upon the pending-ordinance

doctrine and remanded the case with directions that a writ of

mandamus be entered requiring that a Part II Approval letter be

issued.      1350 Lake Shore Associates v. Hill, 326 Ill. App. 3d

788, 798, 761 N.E.2d 760 (2001) (Lake Shore I).

      Upon    remand,    the    intervenors        filed   a     motion   seeking     a

declaration that LSA was not entitled to a zoning certificate or

building permit for the development of its proposed high-rise

building.       LSA     then    amended      its   complaint,       seeking     orders

requiring the City to issue it a zoning certificate and enjoining

the   City    from    interfering       with    its     rights    under   RPD    196.



the   circuit    court    found       that   the    challenged      ordinance       was

constitutionally        valid    as    applied     to    the     property,    and    we

previously affirmed the court's findings in this regard. 1350 Lake

Shore Associates v. Casalino, 352 Ill. App. 3d 1027, 1048-49, 816

N.E.2d 675 (2004).


                                          -5-
No. 1-09-1126

Although the circuit court ordered that a Part II Approval letter

be issued, it held that LSA did not have a vested right to the

issuance of a zoning certificate or building permit.                  The circuit

court specifically found that the expenditures incurred by LSA

were   not   made   in   good-faith   reliance     on    the   RPD    196   zoning

classification,      but   were   made      in   the    hope   of     reaching   a

compromise with the neighborhood representatives.

       On appeal, this court concluded that LSA's vested-rights

claim required additional findings of fact.                    Accordingly, we

remanded the matter 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 that Bernardini would

introduce a down-zoning ordinance; (2) the total amount of the

expenses incurred by LSA in connection with the project as of

that date; and (3) whether those expenses were substantial enough

to give rise to a vested right to the issuance of a zoning

certificate and building permit pursuant to RPD 196.                   1350 Lake

Shore Associates v. Mazur-Berg, 339 Ill. App. 3d 618, 640-41, 791

N.E.2d 60 (2003) (Lake Shore II).

       On remand, the circuit court determined that:                 (1) LSA knew

it was probable that Bernardini would introduce a down-zoning

ordinance on any date after the meeting in April or May of 1997




                                      -6-
No. 1-09-1126

between Guthman, the Draper representatives, and Bernardini; (2)

as of that date, LSA had expended $18,900.16 in connection with

the   project;      and     (3)       the    expenditures        were    not        sufficiently

substantial to give LSA a vested right to the issuance of a

zoning    certificate           and    building      permit      under        RPD       196.     LSA

appealed once again.

      While this court affirmed the circuit court's findings (1350

Lake Shore Associates v. Casalino, 363 Ill. App. 3d 806, 823, 842

N.E.2d 274 (2005) (Lake Shore III)), the Illinois Supreme Court

reversed, concluding that LSA knew or should have known that it

was not probable that its project would be approved only after

Bernardini        introduced          the    down-zoning      ordinance            in    the     city

council on        December       10,    1997    (1350      Lake     Shore      Associates          v.

Healey,    223      Ill.    2d        607,    622-23,      861    N.E.        2d    944        (2006)

(Healey)).        The supreme court remanded the matter back 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      the     property          under   the     former       RPD       196        zoning

classification.          Healey, 223 Ill. 2d at 629-30.

      Upon    remand       from       the     supreme      court,    the       circuit          court

allowed LSA to present the testimony of two additional witnesses,




                                               -7-
No. 1-09-1126

Frederick Ford and Matthew Medlin.                          Ford testified that he was

the executive vice president and treasurer of D & K Insurance

Agency, Inc., one of the general partners of LSA.                              Based on his

experience       in    the    real        estate       industry      and    his     experience

overseeing LSA's financial planning, Ford believed that LSA is a

"very risk averse company."                  He testified that the partners of

LSA "were for the most part wealthy people who didn't need you to

speculate with their money."                    Ford also believed that LSA was a

"frugal," "penny-pinching operation."

       Over the City's relevancy objections, Medlin, a certified

public       accountant,      testified         as     an    expert       witness.        Medlin

reviewed      LSA's     financial         statements         and    found    that    its   pre-

development expenditures of $272,022 represented more than 12% of

its    net    income     in   1997,        over       10%   of     LSA's    cash    flow   from

operations, more than 6% of its gross profits, over 2% of its

total revenues, more than 1% of LSA's total depreciable assets,

and    more    than     4%    of    its     owners'         equity.         Based    on    these

benchmarks, Medlin believed that LSA's expenditures were material

from     an     accounting         perspective.                  Medlin     testified      that

materiality is determined by resolving the inquiry as to whether

a   reasonable        person,      such    as     a    potential      investor       or   banker




                                                -8-
No. 1-09-1126

considering       a    loan,      would      be    adversely    influenced         if   the

expenditures were not included in LSA's financial statements.

     On    March       25,    2009,    the    circuit   court     issued       a    written

memorandum    order          in   which   it      determined    that     LSA       incurred

$272,022.18 in expenditures before the down-zoning ordinance was

introduced on December 10, 1997.                    In its decision, the circuit

court     rejected       Medlin's      testimony,       finding     it     "marginally

relevant" but not persuasive to the matters before the court.                            It

also rejected Ford's testimony that LSA was frugal and "penny

pinching"    as       "too    subjective      and   self-serving"      and,        instead,

found LSA to be a large entity with substantial profits and

assets that could easily absorb the loss of $272,022.18.                             Noting

that LSA's expenditures amounted to less than ½ of 1% of the $72

million to $76 million total projected cost of the development,

the court found that these expenditures were not sufficiently

substantial to give LSA a vested right in the former RPD 196

zoning classification.                The circuit court concluded that LSA

failed to prove a clear right to mandamus relief and entered

judgment for the defendants.              The instant appeal followed.

     In urging reversal, LSA contends that the circuit court

erred in finding that $272,022.18 in pre-development expenditures

was not sufficiently substantial to acquire a vested right to




                                             -9-
No. 1-09-1126

develop    the   property       in    accordance        with      the       RPD    196   zoning

classification.          It     asserts        that    the    circuit         court      applied

incorrect legal criteria and that the court's decision is against

the manifest weight of the evidence.

     Before addressing the merits of LSA's arguments, we must

first     determine   our       standard         of    review.              Mandamus     is     an

extraordinary      remedy       traditionally          used       to    compel       a   public

officer's performance of an official duty that does not involve

an exercise of discretion.                People ex rel. Birkett v. Jorgensen,

216 Ill. 2d 358, 362, 837 N.E.2d 69 (2005).                                  Typically, the

decision    to   grant     or    deny      a    writ    of    mandamus            will   not    be

disturbed on appeal unless it is against the manifest weight of

the evidence.       Lombard Historical Comm'n v. Village of Lombard,

366 Ill. App. 3d 715, 719, 852 N.E.2d 916 (2006).                                  That is to

say, only when the opposite conclusion is clearly evident or

where     the    factual      findings         upon     which          it    is     based      are

unreasonable,      arbitrary,        or    not    based      on    the      evidence.          IMC

Global v. Continental Insurance Co., 378 Ill. App. 3d 797, 804,

883 N.E.2d 68 (2007).                However, the question of whether the

circuit court applied the correct legal standard is one of law,

which we review de novo.             NC Illinois Trust Co. v. National City

Bank of Michigan/Illinois, 351 Ill. App. 3d 311, 314, 812 N.E.2d




                                           -10-
No. 1-09-1126

1038 (2004).       With these standards of review in mind, we now turn

to the issues raised on appeal.

     A municipality has the right to amend its zoning ordinances

(Ropiy v. Hernandez, 363 Ill. App. 3d 47, 51, 842 N.E.2d 747

(2005)),     and     one    who   purchases     land     is    charged    with   the

understanding that its zoning classification may be changed in

the future (Furniture LLC v. City of Chicago, 353 Ill. App. 3d

433, 438, 818 N.E.2d 839 (2004)).               Accordingly, the general rule

is that a property owner has no vested right in the continuation

of a zoning classification.               Pioneer Trust & Savings Bank v.

County of Cook, 71             Ill. 2d 510, 517, 377 N.E.2d 21 (1978).

Illinois courts, however, have recognized an exception to this

rule.

     Under     the      vested-right   doctrine,        a     property   owner   may

acquire a vested right in a prior zoning classification where the

owner    sustained      a   significant    change      of   position,     by   either

making     substantial         expenditures      or     incurring        substantial

obligations, in good-faith reliance upon the probability of the

issuance of a building permit.             People ex rel. Skokie Town House

Builders, Inc. v. Village of Morton Grove, 16 Ill. 2d 183, 191,

157 N.E. 2d 33 (1959); Furniture LLC, 353 Ill. App. 3d at 437.

The purpose        of   this   exception   is    to    mitigate    the   unfairness




                                       -11-
No. 1-09-1126

caused by a zoning change after a property owner has undergone a

substantial change of position in good-faith reliance on the

prior zoning classification.            Healey, 223 Ill. 2d at 626.

       The determination of whether a property owner has obtained a

vested right     in    a    former    zoning    classification          by    reason   of

making      substantial      expenditures           or     incurring         substantial

obligations requires the resolution of two questions.                         First, it

must be determined which of the expenditures made or obligations

incurred by the property owner were done in good-faith reliance

on the probability that it would obtain the necessary approvals

to    develop    the       property     pursuant          to    the     prior       zoning

classification.        Healey, 223 Ill. 2d at 615, 623.                      Second, it

must be determined whether those expenditures or obligations were

substantial.     Healey, 223 Ill. 2d at 615, 629-30.

       As noted above, the supreme court previously determined that

as    of   December   10,    1997,    the    date    on    which      the    down-zoning

ordinance was introduced to the city council, LSA knew or should

have known that it was improbable that it would receive the

necessary approvals to complete its project in accordance with

RPD 196.     See Healey, 223 Ill. 2d at 622-23.                 Following a remand,

the    circuit   court      concluded       that,    as    of    that       date,   LSA's

expenditures totaled $272,022.18.               On appeal, the parties have




                                        -12-
No. 1-09-1126

raised no argument addressing the circuit court's calculation of

LSA's expenditures.        Consequently, we focus our consideration on

whether the expenditure of $272,022.18 by LSA was substantial

enough to give rise to a vested right to develop the property

under the RPD 196 zoning classification.

      In determining whether expenditures are substantial, courts

evaluate the totality of the circumstances, including:                             (1) a

comparison of the expenses incurred to the total projected cost

of the development; (2) the purchase price of the land; (3) the

nature or character of the person or entity seeking to develop

the   property;    and    (4)     any   other    factor       that    may    be   deemed

relevant.    Healey, 223 Ill. 2d at 627.                      No single factor is

controlling, and each case presents a unique factual situation

which must be assessed when determining substantiality.                           Healey,

223 Ill. 2d at 626-27.

      Initially,    LSA    argues       that    the   circuit        court   erred    in

discounting Medlin's testimony regarding the materiality of its

pre-development expenditures.             It asserts that courts applying

Illinois law      have    often    used   the    concepts       of    "material"     and

"substantial"     interchangeably.             See    e.g.,    Thacker       v.   U.N.R.

Industries, Inc., 151 Ill. 2d 343, 354-355, 603 N.E.2d 449 (1992)

("Under the 'substantial factor' test, which has been adopted by




                                        -13-
No. 1-09-1126

the Restatement (Second) of Torts, the defendant's conduct is

said to be a cause of an event if it was a material element and a

substantial         factor    in       bringing       the     event    about")      (Emphasis

added.); Opp v. Wheaton Van Lines, Inc., 56 F. Supp. 2d 1027,

1034    n.5    (N.D.       Ill.    1999)           ("The    doctrine     of    'substantial

compliance' or 'substantial performance' dictates that 'when a

party performs the essential, material parts of a contract in

good    faith,'      even     if       literal      compliance        with    the   terms   is

lacking,      the    other     party         may    be     bound")    (Emphasis      added.).

According to LSA, Medlin's opinion that its expenditures were

material      from    an     accounting        perspective       should,       likewise,    be

considered      relevant          to     the       question     of     whether      its   pre-

development expenditures were substantial for the purposes of

acquiring a vested right.                We disagree.

       In this case, Medlin reviewed LSA's financial statements and

found that its expenditures of $272,022 represented more than 12%

of its net income in 1997, over 10% of LSA's cash flow from

operations, more than 6% of its gross profits, over 2% of its

total revenues, more than 1% of LSA's total depreciable assets,

and    more    than    4%     of       its    owners'       equity.      Based      on    these

benchmarks, Medlin opined that LSA's pre-development expenditures

were material from an accounting perspective.                          Although LSA seeks




                                               -14-
No. 1-09-1126

to    equate    materiality          from        an      accounting      perspective        with

substantiality in the context of a vested-rights case, the two

concepts do not utilize the same determinative criteria and are

not interchangeable.

      Materiality           from         an     accounting          standpoint        compares

expenditures to a number of financial benchmarks to determine

whether     they     must     be    included          in    the    financial     statements;

whereas, substantiality              in       the     vested-rights        context   compares

expenditures to the total projected cost of the development in

order to determine whether a property owner has acquired a vested

right in a prior zoning classification.                              See People ex rel.

Skokie Town House Builders, 16 Ill. 2d at 191.                                 Furthermore,

substantiality        employs        a     broader         test,    taking    into    account

additional      factors,      such        as    the      nature     or   character     of    the

property owners.        See Healey, 223 Ill. 2d at 627.

      For evidence to be relevant, it must have the tendency to

make a fact of consequence to the determination of the action

more or less probable.               Voykin v. Estate of Deboer, 192 Ill. 2d

49,   57,   733      N.E.2d    1275       (2000).           Given    the    dissimilarities

between     materiality            and        substantiality,         Medlin's       testimony

regarding      the    material       nature         of     LSA's    expenditures      from   an

accounting perspective provided little, if any, assistance to the




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No. 1-09-1126

circuit court          in    its    determination      as      to   whether    those      same

expenditures          were    substantial      for    purposes        of     applying      the

vested-rights         doctrine.        It   was    the     function     of    the   circuit

court, as the trier of fact, to determine the weight to be

afforded the evidence, and the court's decisions in this regard

will not be overturned on appeal unless they are against the

manifest weight of the evidence.                  Eychaner v. Gross, 202 Ill. 2d

228, 251, 779 N.E.2d 1115 (2002).                  Under the facts of this case,

we    conclude    that       the    circuit    court's      findings       that     Medlin's

testimony       was    "marginally      relevant"        and    unpersuasive        are    not

against the manifest weight of the evidence.

       Next, LSA argues that the circuit court's finding that its

pre-development expenditures were insubstantial is contrary to

the    long     history       and    precedents       of    Illinois         vested-rights

jurisprudence.          In its briefs before this court, LSA cites to a

litany of cases in which expenditures less than $272,022.18 have

been     considered          substantial.            See    e.g.,      Illinois        Mason

Contractors, Inc. v. City of Wheaton, 19 Ill. 2d 462, 465, 167

N.E.2d 216 (1960) ($30,000 contract for work to be done, purchase

of     $5,000     in     construction         materials,        and    a     $3,250       loan

commission); People ex rel. Skokie Town House Builders, Inc., 16

Ill. 2d at 191-92 ($26,000 for the purchase of the property and




                                            -16-
No. 1-09-1126

$1,830      in   permit    fees    and       sidewalk     deposit);      Constantine       v.

Village of Glen Ellyn, 217 Ill. App. 3d 4, 25, 575 N.E.2d 1363

(1991)      ($70,100      purchase       price       of   the    property     and   $1,400

architect fee); O'Connell Home Builders, Inc. v. City of Chicago,

99 Ill. App. 3d 1054, 1061, 425 N.E.2d 1339 (1981) ($17,500 spent

on architectural fees and tree removal service); Mattson v. City

of Chicago, 89 Ill. App. 3d 378, 381, 411 N.E.2d 1002 (1980)

(demolition of home valued at $40,000 plus $4,100 in demolition

and architectural fees); Sgro v. Howarth, 54 Ill. App. 2d 1, 9-

10,   203     N.E.2d     173    (1964)       ($23,500     for    the   purchase     of    the

property plus undisclosed permit fees).                             The difficulty with

these cases, however, is that they only reference the amount of

expenditures incurred and do not identify the total projected

costs    of      the   developments          or    provide      a    comparison     of    the

expenditures to the projected development costs.

      In Healey, the Illinois Supreme Court acknowledged for the

first    time     that    the    proportionality          between      the   expenditures

incurred and the total projected cost of the development was a

factor      to   be    considered       in    determining        substantiality.          See

Healey, 223 Ill. 2d at 626-27.                    In adopting proportionality as a

factor, the        supreme      court    held      that    the      determination    as    to

whether      a   property       owner    has      made    a     substantial    change      of




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No. 1-09-1126

position in good-faith reliance on the probability of obtaining a

building permit could not be decided "by considering only the

objective amount of expenditures in a vacuum."                       Healey, 223 Ill.

2d at 626-27.           In light of the supreme court's holding in Healey,

the precedential value of the prior vested-rights cases cited by

LSA is limited, at best.

         Our own research has reveled a single Illinois vested-rights

case that clearly contains both the expenditures and the total

projected cost of the development, Cribbin v. City of Chicago,

384 Ill. App. 3d 878, 893 N.E.2d 1016 (2008).                        In Cribbin, this

court         concluded     that     the    property    owners'          pre-development

expenditure of $260,000 was substantial.                     Cribbin, 384 Ill. App.

3d at 894.           The facts of that case further demonstrate that the

owners intended to construct three buildings on the property at a

total cost of $950,000.                    Cribbin, 384 Ill. App. 3d at 883.

Accordingly, the $260,000 in expenditures found to be substantial

in Cribbin represented more than 27% of the total projected cost

of the development.

         In    this    case,   however,       the   $272,022.18      in     expenditures

incurred by LSA prior to December 10, 1997, amounted to less than

½   of    1%    of    the   estimated       $72   million    to    $76    million   total

projected        cost     of   the   development.           We    believe    that   LSA's




                                             -18-
No. 1-09-1126

expenditures, when viewed in relation to the ultimate cost of the

development, cannot be considered substantial.

     In reaching this conclusion, we reject LSA's assertion that

reliance on a strict mathematical comparison of the expenditures

to   the   projected   development   costs    would    "effectively   end"

vested-rights    claims   for   developers,    as     any   pre-development

expenditures incurred by a property owner before receiving a

building permit will necessarily be a small fraction of the total

costs of the project, particularly when the development is a

large structure.       The vested-rights doctrine is the exception,

not the rule.     Until the property owner has made a substantial

change of position, the municipality has an ongoing right to

amend its zoning ordinances.      See Ropiy, 363 Ill. App. 3d at 51.

In the event that an existing zoning ordinance changes prior to

the accrual of a vested right in that zoning classification, the

property owner has no cause to object to a rezoning.           See Shepard

v. Illinois Pollution Control Board, 272 Ill. App. 3d 764, 772,

651 N.E.2d 555 (1995); County of Kendall v. Aurora National Bank,

219 Ill. App. 3d 841, 850, 579 N.E.2d 1283 (1991).                Moreover,

LSA's argument is belied by the facts of Cribbin, where the pre-

development expenditures equaled more than 27% of the total cost

of the project even though no construction permit had issued.




                                  -19-
No. 1-09-1126

See Cribbin, 384 Ill. App. 3d at 880, 894.                     Consequently, we

believe it is unlikely that our decision will "effectively end"

vested-rights claims for developers.

       LSA also alleges that a strict mathematical comparison of

the expenditures to the projected development costs would be

"subject to manipulation by encouraging developers to build with

cheaper materials or to refuse to agree to changes requested by

the community that could raise development costs."                   However, as

LSA's musings in this regard are unanchored and undeveloped, we

find   them    to   be   lacking    in   merit    with   no   need   for   further

discussion.

       We,    likewise,    reject   LSA's       contention    that   the   circuit

court's decision         erroneously     suggested    that    expenditures    less

than 2% of the total projected cost of the development could not

be considered substantial.               In its March 25, 2009, order, the

circuit court stated that "[i]t is worth noting" that this court

had used a $20,000 expenditure toward a $1 million project, or an

expenditure equal to 2% of the projected development cost, as an

example of an insubstantial expenditure.              See Lake Shore III, 363

Ill. App. 3d at 822, rev'd on other grounds, Healey, 223 Ill. 2d

at 629-30.      Despite LSA's assertions to the contrary, neither we

nor the circuit court held that 2% is the minimum threshold that




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must be reached for an expenditure to be considered substantial.

Our reference in Lake Shore III to "[a] developer who spends

$20,000 on a project estimated to cost $40,000 is in quite a

different     position   than    a   developer      who   spends   $20,000   on   a

project estimated to cost $1 million," was merely an explanation

of the rationale for comparing the amount spent on a proposed

development to the total cost of the project, not a minimum

threshold.     See Lake Shore III, 363 Ill. App. 3d at 822, rev'd on

other grounds, Healey, 223 Ill. 2d at 629-30.

     LSA next argues that the circuit court erred in determining

its nature or character and improperly concluded that the nature

or character of a property owner, for the purposes of the vested-

rights doctrine, turns on whether the owner was an individual

homeowner or a large developer.

     Contrary to LSA's contention, the circuit court did not base

its determination of LSA's nature or character on its status as

either an individual homeowner or large developer.                   Rather, the

court's decision in this regard was based on the fact that LSA

had substantial profits and assets and, therefore, could easily

absorb the loss of $272,022.18.              Specifically, the circuit court

noted that LSA's assets included:               (1) the property at issue,

valued   at    $6   million     in   1997;    (2)   two,    22-story   high-rise




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No. 1-09-1126

buildings with 740 units located at 1350-60 North Lake Shore

Drive; (3) a 27% interest in Second Prairie Shores Apartments;

(4) a 9% interest in Third Prairie Shores Apartments; and (5) a

10%   interest   in    Astor   Lane   Associates,    which    owns   high-rise

residential and industrial buildings throughout Chicago.                    The

court also noted that LSA's depreciable assets totaled more than

$25 million in 1996 and more than $26 million in 1997; that LSA's

net   income   was    almost   $1.9   million   in   1996    and   almost   $2.2

million in 1997; that executives at Draper testified that LSA had

"significant assets" and, as such, financing the construction

project would not have been difficult; that LSA has four general

partners and more than 100 limited partners, who are considered

"wealthy" individuals; and that distributions of $46 million were

made to the partners in 2000 and 2001.

      In Lake Shore III, we held that courts should consider the

character of the entity incurring the cost of the development,

noting that what might be considered a large investment for an

individual homeowner could be considered minimal for a large land

developer.     Lake Shore III, 363 Ill. App. 3d at 822.            The supreme

court subsequently adopted the nature or character of the person

or entity seeking to develop the property as a factor to be taken

into account in making a substantiality determination.                 Healey,




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No. 1-09-1126

223 Ill. 2d at 627.           Although LSA sought to establish that it was

a     "frugal"     and    "penny-pinching           organization"             through   the

testimony of Ford, we do not believe that the circuit court erred

in rejecting Ford's subjective views of the nature or character

of LSA.    Instead, the court relied on objective evidence, such as

LSA's assets and profits, in making this determination.

       Alternatively, LSA takes issue with some of the circuit

court's factual findings regarding its nature or character.                              In

particular,       LSA    contends     that    the    circuit          court    ruled    that

evidence concerning the distributions made to partners after 1997

was inadmissible.             Our review of the record, however, reveals

that,     while    the    circuit     court       found        that    LSA's     financial

statements from the years 2000 to 2006 were not "independently

relevant"     for       the    purposes      of   evaluating           Medlin's     expert

testimony, the court had previously admitted LSA's 2000 and 2001

financial    statements        into   evidence.           As    the     circuit    court's

decision only referenced distributions made in 2000 and 2001, we

cannot say that the court considered evidence that was not before

it.

       Additionally, LSA asserts that the circuit court erroneously

looked past the entity that actually incurred the expenses and

considered the wealth of its individual partners.                         However, even




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No. 1-09-1126

assuming that it was improper for the circuit court to consider

the   wealth    of    LSA's     partners,      any     such   error       would   be

harmless.      When considered in light of the remaining evidence

cited by the circuit court, we do not believe that the brief and

passing reference to the "wealthy" individual partners could have

affected the outcome of the court's decision.                      See Hadley v.

Snyder, 335 Ill. App. 3d 347, 351-52, 780 N.E.2d 316 (2002)

(finding an error which did not affect the outcome of the case to

be harmless).

      In a related argument, LSA maintains that the circuit court

erred in considering Draper's assets in determining its nature or

character.     Although the circuit court initially noted that LSA

and "its closely tied affiliate [Draper] are large entities with

substantial assets," all of the specific assets listed in the

circuit     court's        decision     related      to    LSA,     not     Draper.

Accordingly, it does not appear that the circuit court actually

considered     any    of    Draper's    assets    in      making    its    decision

regarding LSA's nature or character.

      LSA    also    asserts    that,    in    determining        its   nature    or

character, the circuit court:             (1) "purported to rely" on the

fact that its net income was almost $1.9 million in 1996 and

almost $2.2 million in 1997, "without explaining why expenditures




                                        -24-
No. 1-09-1126

of 14% and 12% respectively" are not substantial; (2) referenced

the two large buildings it owned, "but failed to draw the obvious

conclusion that spending hundreds of thousands of dollars in cash

is even more significant to landowners with limited cash because

most of their assets [are] tied up in non-liquid holdings"; and

(3) "cited to the $6 million value of the subject property - but

did not explain why spending nearly 5% of that value (and over

22% of the purchase price when adjusted for inflation) is not

substantial."       Though     LSA     has    labeled   these    assertions     as

"contrived and erroneous conclusions" of the circuit court, LSA

is, in fact, merely asking us to reweigh the evidence presented

in this case.      As previously discussed, the circuit court was

required     to   weigh    the    evidence,      and    its     inferences     and

conclusions drawn therefrom will be disturbed on review only if

they   are   contrary     to   the    manifest    weight   of    the     evidence.

Eychaner, 202 Ill. 2d at 251.

       Based on the record before us, we are unable to conclude

that the     circuit    court's      characterization    of   LSA   as    a   large

entity with substantial profits and assets, which allowed it to

easily absorb the loss of $272,022.18, is against the manifest

weight of the evidence.




                                       -25-
No. 1-09-1126

     Finally,    LSA    contends     that   the   circuit       court   erred   in

failing   to   take    into   account   the   cost   of    the    property   when

determining whether its expenditures were substantial.                  While the

purchase price of the property is a factor that may be considered

in determining substantiality (see Healey, 223 Ill. 2d at 627),

only those expenditures made in good-faith reliance on the prior

zoning    classification       are   included     in      the    substantiality

determination (see Ropiy, 363 Ill. App. 3d at 52-53).                    In this

case, the property at issue was purchased 26 years before RPD 196

was enacted.      Because it is clear that the property was not

purchased in reliance on the RPD 196 zoning classification, the

purchase price was properly excluded from consideration in this

case.

     Based on the totality of the circumstances, we cannot say

that the circuit court's finding that LSA's $272,022.18 in pre-

development expenditures was not sufficiently substantial to give

rise to a vested right to develop the property in accordance with

the RPD 196 zoning classification is contrary to the law or

against the manifest weight of the evidence.               Absent proof of a

vested right, LSA was not entitled to a zoning certificate or

building permit under RPD 196.          See Healey, 223 Ill. 2d at 628.




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No. 1-09-1126

Accordingly, the circuit court properly denied LSA's request for

a writ of mandamus.

     For the foregoing reasons, we affirm the judgment of the

circuit court.

     Affirmed.


     THEIS and KARNEZIS, JJ., concur.




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