                                                              SECOND DIVISION
                                                              February 7, 2006




No. 1-05-0283

YURIY ROPIY,                                      )           Appeal from the
                                                  )           Circuit Court of
      Plaintiff-Appellant,                        )           Cook County.
                                                  )
             v.                                   )
                                                  )
RAFAEL HERNANDEZ, Director           of the       )
Department of Construction           and Permits, )
and the CITY OF CHICAGO, a           municipal    )
corporation,                                      )           Honorable
                                                  )           Mary Anne Mason,
      Defendants-Appellees.                       )           Judge Presiding.

                      Modified Upon Denial of Rehearing

      JUSTICE WOLFSON delivered the opinion of the court:

      The question here is whether a property owner's plan to tear down one building

and build another was trumped by a proposed change in zoning. Plaintiff, Yuriy Ropiy,

filed a complaint for a writ of mandamus, requesting the trial court order defendants, the

City of Chicago (City) and Rafael Hernandez, Director of the Department of

Construction and Permits, to issue wrecking and building permits for his property.

Defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Illinois Code

of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2004)), contending the permits were

properly denied because an amendatory zoning ordinance had been introduced in the

Chicago City Council before Ropiy completed purchase of the property. The trial court

granted defendants= motion.

      On appeal, Ropiy contends: (1) the trial court erred in dismissing his complaint


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because he established a vested right to the prior zoning classification; (2) the

amendatory zoning ordinance was invalid as applied because he did not receive

adequate notice of it, in violation of his due process rights; and (3) the issue of whether

he had acquired a vested right was a question of fact. We affirm.

FACTS

       In April 2003, Ropiy entered into a contract to purchase property located at 2708

W. Evergreen in Chicago, Illinois, for $159,000. Ropiy intended to tear down a single-

family residence located on the property and construct a three-unit residential building in

its place. The property was zoned R-4 at the time the purchase contract was signed. It

allowed a three-unit building to be constructed. Ropiy says he would not have

purchased the property if he had known he could not construct the three-unit building.

       On June 4, 2003, Alderman Billy Ocasio proposed an ordinance to change the

zoning classification for a particular area from R-4 to R-3. The area included 2708 W.

Evergreen. The proposed zoning change would not allow the construction of a three-

unit building on the property. The ordinance was published in the Journal of

Proceedings for the Chicago City Council on July 9, 2003.

       On July 15, 2003, the property was deeded to Ropiy, who then filed a wrecking

permit application with the City. Between July and August 2003, Ropiy expended

$24,350 on contractors, structural plans, architectural plans, and mortgage costs while

preparing to construct the three-unit building. Ropiy recorded his deed and submitted

an application for a building permit on August 12, 2003. Ropiy says he was unaware of

the proposed zoning ordinance amendment at that time. The permit applications were

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held at Alderman Ocasio=s request, pending the outcome of the proposed zoning

ordinance amendment.

        On July 17, 2003, the Committee on Zoning conducted a search of the tax

records to determine the property owners affected by the proposed zoning amendment.

Henry Ramirez was listed as the taxpayer of record for the property. On February 19,

2004, the City sent letters notifying taxpayers on the list about a public hearing to be

held on the proposed zoning amendment March 25, 2004. Ropiy did not receive a

letter, and a notice was not posted on his property regarding the proposed zoning

change. After conducting the hearing, the City Council passed the zoning ordinance

amendment on March 31, 2004. It became effective after it was published on May 5,

2004.

        Pavel Smelyansky, Ropiy=s agent, regularly spoke with Alderman Ocasio=s office

regarding when the wrecking and building permits would be issued. Smelyansky was

told any delay in the issuance of the wrecking and building permits was due to an

Aaldermanic hold.@ Smelyansky was never told the permits would not be issued

because of a pending ordinance intended to change the zoning for the property.

        On September 22, 2004, Ropiy filed a verified complaint for a writ of mandamus,

requesting that the trial court order the Building Department and the City to issue

wrecking and building permits for the property. Defendants filed a section 2-619(a)(9)

motion to dismiss, contending the permits were properly held, then denied, because an

ordinance changing the zoning and precluding the planned development had been

introduced before Ropiy purchased the property.

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       In response, Ropiy contended the pending ordinance doctrine did not apply

because he had established a vested property right when he applied for the permits.

       On November 1, 2004, the trial court granted defendants= motion to dismiss,

noting:

              Aplaintiff did not have a property interest prior to the time the

              ordinance was introduced in the City Council, did not own

              the property prior to the time the ordinance was introduced --

              the amendment was introduced, acquired the property

              thereafter and although he may have been subjectively

              unaware of the pending change, the fact of the matter is the

              introduction of the proposed amendment was of public

              record and, therefore, I believe he had constructive

              knowledge.@

The trial court concluded any other result would Athrow the predictability of changes to

municipal zoning ordinances into absolute chaos.@ Ropiy then filed a motion to

reconsider the order. It was denied by the trial court.

DECISION

I. Vested Rights

       On appeal, Ropiy contends the trial court erred in granting the defendants=

motion to dismiss because he had acquired a vested right in the permits.

       Section 2-619(a)(9) allows dismissal of a claim when the claim asserted Ais

barred by other affirmative matter avoiding the legal effect of or defeating the claim.@

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735 ILCS 5/2-619(a)(9) (West 2004). A>The phrase >affirmative matter= refers to

something in the nature of a defense that negates the cause of action completely or

refutes crucial conclusions of law or conclusions of material fact contained in or inferred

from the complaint.=@ Poulet v. H.F.O., L.L.C., 353 Ill. App. 3d 82, 89-90, 817 N.E.2d

1054 (2004), quoting Gillson v. City of Marion, 188 Ill. 2d 211, 220, 720 N.E.2d 1034

(1999). We review de novo an order granting a section 2-619(a)(9) motion to dismiss.

Poulet, 353 Ill. App. 3d at 89-90.

       Generally, there is no vested right in the continuation of a zoning classification.

Furniture L.L.C. v. City of Chicago, 353 Ill. App. 3d 433, 437, 818 N.E.2d 839 (2004);

1350 Lake Shore Associates v. Mazur-Berg, 339 Ill. App. 3d 618, 631, 791 N.E.2d 60

(2003). A legislative body has the right to amend a zoning ordinance (Constantine v.

Village of Glen Ellyn, 217 Ill. App. 3d 4, 23, 575 N.E.2d 1363 (1991)), and a municipality

may properly refuse to issue a permit for construction when an amendatory ordinance is

pending that would prohibit the proposed building development (American National

Bank & Trust Co. of Chicago v. City of Chicago, 19 Ill. App. 3d 30, 33, 311 N.E.2d 325

(1974)).

       There are, however, circumstances where a party may obtain a vested right to

develop its property in accord with a particular zoning ordinance, despite an

amendment. 1350 Lake Shore Associates, 339 Ill. App. 3d at 631. Our supreme court

has recognized:

              A>[W]here there has been a substantial change of position,

              expenditures or incurrence of obligations made in good faith

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              by an innocent party under a building permit or in reliance

              upon the probability of its issuance, such party has a vested

              property right and he may complete the construction and use

              the premises for the purposes originally authorized,

              irrespective of subsequent zoning or a change in zoning

              classification.=@ Pioneer Trust & Savings Bank v. County of

              Cook, 71 Ill. 2d 510, 522-23, 377 N.E.2d 21 (1978), quoting

              People ex rel. Skokie Town House Builders, Inc. v. Village

              Morton Grove, 16 Ill. 2d 183, 191, 157 N.E.2d 33 (1959).

       A property owner acquires a vested right to the continuation of a particular

zoning classification where substantial expenditures or obligations were made or

incurred in good-faith reliance on the prior classification and the probability of issuance

of building permits. Furniture L.L.C., 353 Ill. App. 3d at 438; 1350 Lake Shore

Associates, 339 Ill. App. 3d at 632; Tim Thompson, Inc. v. Village of Hinsdale, 247 Ill.

App. 3d 863, 875-76, 617 N.E.2d 1227 (1993). There is no bright-line rule for

determining whether expenditures have been made in good faith reliance; however,

expenses are clearly not incurred in good faith if a property owner has knowledge or

notice of the proposed zoning change. Furniture L.L.C., 353 Ill. App. 3d at 438; 1350

Lake Shore Associates, 339 Ill. App. 3d at 632; Tim Thompson, Inc., 247 Ill. App. 3d at

876.

       AAlthough property owners have a right to rely upon the classification of their

property and know that the classification will not be changed unless required for the

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public good, they also acquired their property knowing that amendments could be made

to the ordinance within the limits of the law.@ Thompson v. Cook County Zoning Board

of Appeals, 96 Ill. App. 3d 561, 577, 421 N.E.2d 285 (1981).

       Parties claiming entitlement to a vested right, as Ropiy does, have the burden of

proving Aa clear right that they had, while acting in good faith, expended substantial

sums and incurred substantial obligations.@ People ex rel National Bank of Austin v.

County of Cook, 56 Ill. App. 3d 436, 447-48, 206 N.E.2d 441 (1965). See also 1350

Lake Shore Associates v. Casalino, No. 1-04-3379, slip op. at 12 (December 28, 2005)

(The weight of authority places the burden of proof on the party claiming an entitlement

to a vested right.)

       Ropiy contends he had no knowledge of the zoning amendment proposal prior to

making the expenditures. Defendants counter the proposal was a matter of public

record and, therefore, he had constructive notice of the ordinance. Defendants contend

even if the expenditures were substantial, they were not incurred in good-faith reliance

because Ropiy should have been aware of the proposed zoning change prior to

acquiring the property.

       Constructive notice is defined as "'[n]otice arising by presumption of law from the

existence of facts and circumstances that a party had a duty to take notice of ***; notice

presumed by law to have been acquired by a person and thus imputed to that person.'"

LaSalle National Bank v. Dubin Residential Communities Corp., 337 Ill. App. 3d 345,

352, 785 N.E.2d 997 (2003), quoting Black=s Law Dictionary 1088 (7th ed. 1999).

       No case has directly addressed whether the introduction and publication of a

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proposed ordinance alone is sufficient to negate a property owner=s good faith reliance

on the issuance of a building permit. However, Illinois courts have recognized

expenditures are not incurred in good faith reliance on a previous zoning classification if

the property owner had constructive knowledge of the proposed zoning change.

       In Kramer v. City of Chicago, 58 Ill. App. 3d 592, 597, 374 N.E.2d 932 (1978), the

court held the plaintiff had not substantially changed his position or expended

substantial sums of money in reliance upon the probable issuance of a building permit

in 1976 when he obtained a lease and mortgage commitment because the Lakefront

Protection Ordinance had been in effect since 1973; if the plaintiff did not have actual

notice of the ordinance, he was bound to have constructive notice of it.

       In Tim Thompson, Inc., the court rejected the plaintiff=s contention that it had a

vested right in the continuation of a prior, less restrictive zoning classification. On

August 31, 1988, a public notice was published expressly stating a public hearing would

be held for the purpose of considering the repeal and replacement of the Hinsdale

zoning ordinance. The notice also stated the proposed change could affect the zoning

classification and use of any or all property in Hinsdale. All of the plaintiff=s

expenditures on the property were made after the August 31 publication date. There

was no claim the plaintiff had actually seen or heard about the notice.

       Assuming any expenses incurred were substantial, the court held they were

made with constructive notice of the proposed zoning change. Tim Thompson, Inc.,

247 Ill. App. 3d at 876. By having constructive notice of the proposed zoning change

prior to incurring any obligations, the plaintiff failed to establish a vested interest in the

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continuation of the prior zoning classification. Tim Thompson, Inc., 247 Ill. App. 3d at

876.   In 1350 Lake Shore Associates, the court noted Aexpenses which a property

owner incurs with knowledge that an amendatory ordinance, pursuant to which the

intended use would not be permitted, is pending, are not incurred in good faith reliance.@

1350 Lake Shore Associates, 339 Ill. App. 3d at 632-33. The court held the expenses

incurred on the plaintiff=s behalf Aafter the down-zoning ordinance was introduced@ in

December 1997 could not have been in good faith reliance on the issuance of a building

certificate. 1350 Lake Shore Associates, 339 Ill. App. 3d at 632-33. Because evidence

suggested the plaintiff was actually aware as early as November 1997 that an

amendatory ordinance would be introduced, the court remanded the case with

directions for the trial court to determine exactly when the plaintiff knew or should have

known the ordinance would probably be introduced. 1350 Lake Shore Associates, 339

Ill. App. 3d at 640.

       By contrast, in Industrial National Mortgage Co. v. City of Chicago, 95 Ill. App. 3d

665, 420 N.E.2d 581 (1981), the court affirmed the trial court=s determination that the

plaintiff had acquired a vested right to use the property as provided by the previous

zoning ordinance because substantial expenditures were made Aprior to notice of a

proposed change in the premises= zoning classification and before the amendatory

ordinance was introduced in the City Council.@ (Emphasis added.) Industrial National

Mortgage Co., 95 Ill. App. 3d at 671.

       Here, the facts established that on June 4, 2003, Alderman Ocasio proposed an

ordinance to change the zoning classification for the property from R-4 to R-3. The

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proposal was published in the Journal of Proceedings for the Chicago City Council on

July 9, 2003. Plaintiff completed the purchase and received the deed to the property on

July 15, 2003, and then expended $24,350 between July and August 2003 while

preparing to construct the three-unit building. Therefore, unlike the property owner in

Industrial National Mortgage Co., all of plaintiff=s expenditures were made after the

amendatory zoning ordinance was introduced in the City Council and published in the

Journal of Proceedings. See Industrial National Mortgage Co., 95 Ill. App. 3d at 671.

       Ropiy contends he incurred a substantial obligation prior to the introduction of the

proposed ordinance by signing an unconditional contract to purchase the property in

April 2003. Ropiy, however, conceded during the hearing on the City=s motion to

dismiss that his rights did not vest until he received the deed to the property on July 15.

       The purchase contract was not included in the record. Because we are unable to

review the terms of the purchase contract, we cannot conclude it created a substantial

obligation. See Palanti v. Dillon Enterprises, Ltd., 303 Ill. App. 3d 58, 66, 707 N.E.2d

695 (1999) (AArguments made by an appellant which depend on facts which are not

contained in the record are not sustainable on appeal@).

       We also note developers like Ropiy have a right to protect themselves from

zoning changes when they negotiate a purchase contract.

       While Ropiy contends he was unaware of the proposed ordinance when he

purchased the property and made the expenditures, he does not contend the

introduction of the ordinance was kept secret. We assume the fact that the proposed

ordinance was introduced on June 4, 2003, and published in the Journal of Proceedings

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on July 9, 2003, was a matter of public record. Where no affirmative acts of deception

have occurred, Amatters which are of public record serve as constructive notice.@ De

Kalb Bank v. Purdy, 166 Ill. App. 3d 709, 725, 520 N.E.2d 957 (1988). Therefore,

assuming any expenses or obligations incurred by plaintiff were substantial, we find they

were made with constructive notice of the proposed amendatory zoning ordinance. See

Tim Thompson, Inc., 247 Ill. App. 3d at 876; Kramer, 58 Ill. App. 3d at 597.

       Ropiy contends the mere introduction of a proposed ordinance before the City

Council does not definitively determine whether he was charged with knowledge

sufficient to defeat his vested rights claim. We disagree.

       In support of his contention, Ropiy relies on Furniture L.L.C. The plaintiff,

Furniture, purchased a vacant lot for $12.5 million in October 1997 with the intention of

building a residential structure. In December 1998, Furniture retained an architectural

firm to draft detailed plans for the construction of a residential high-rise building. In

March 1999, however, Alderman Matlak proposed an ordinance to the City Council to

create a planned manufacturing district in the Halsted Triangle area, which included

Furniture=s property. Under the new zoning ordinance, Furniture would not have been

allowed to construct a residential building. Alderman Matlak sent a letter to the zoning

administrator requesting the City hold all building permits in the area while the ordinance

was pending.

       On June 11, 1999, Furniture received actual notice of the proposed ordinance.

Furniture, however, continued to make expenditures on the property during the summer

of 1999. On February 7, 2001, the Halsted Triangle area was rezoned as a C-5 district,

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which excluded residential uses of the property. Furniture then filed a verified complaint

for declaratory and injunctive relief, arguing it had acquired a vested right to complete

the residential project. The trial court found Furniture had acquired a vested right to

develop the property and enjoined the City from withholding the issuance of any

permits.

       Affirming the order, this court held Furniture had made substantial expenditures

through June 1999, when it was finally put on notice of the proposed zoning changes.

Furniture L.L.C., 353 Ill. App. 3d at 442. Even though the ordinance was introduced in

March 1999, we held it was undisputed Furniture Awas not put on notice of the

possibility that the zoning for the Halsted Triangle could change until June 1999.@

Furniture L.L.C., 353 Ill. App. 3d at 442.

       The court was not asked to consider whether Furniture had constructive notice of

the amendment when it was introduced in March 1999. The City did not contend

Furniture had constructive notice of the proposed zoning ordinance when it was

introduced. Instead, the City relied only on the actual notice of the proposed change

received by Furniture in June 1999. Constructive notice was not an issue in the case.

Because the court never considered the impact of constructive notice on Furniture=s

vested rights claim, we find Furniture L.L.C. does not control in this case.

       Ropiy contends imputing constructive knowledge on all property owners of any

introduced change in zoning would potentially allow municipalities to freeze their

property rights indefinitely while a proposed change in zoning was awaiting action.

       A municipal authority can delay issuance of a permit while a zoning amendment

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is pending, but it A>has no right to arbitrarily or unreasonably refuse or delay the

issuance of the permit.=@ 1350 Lake Shore Associates v. Hill, 326 Ill. App. 3d 788, 796,

761 N.E.2d 760 (2001), quoting Chicago Title & Trust Co. v. Village of Palatine, 22 Ill.

App. 2d 264, 268, 160 N.E.2d 697 (1959). Indefinitely postponing the issuance of a

building permit under the pending ordinance doctrine would be viewed as an arbitrary or

unreasonable delay.

       After the proposed amendatory ordinance was introduced to the City Council on

June 4, 2003, and published in the City Council=s Journal of Proceedings on July 9,

2003, Ropiy was properly charged with constructive knowledge of the proposed zoning

change. As a developer, Ropiy should have checked the status of a proposed zoning

change before making any substantial investments in the property. See Wakeland v.

City of Urbana, 333 Ill. App. 3d 1131, 1143, 776 N.E.2d 1194 (2002) (ALike any

legislation, zoning ordinances can be amended, and one buys land with that

understanding.@)

       We find Ropiy=s expenditures, even if substantial, were not made in good faith

reliance on the prior classification because all of his expenditures were made after he

had constructive knowledge of the proposed zoning change. We conclude the trial

court did not err in dismissing his mandamus action.

II. Due Process

       Ropiy contends the zoning amendment is invalid as applied because the City

failed to provide him with adequate notice of the amendment, in violation of his right to

procedural due process. He also contends the trial court erred in granting the City=s

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motion to dismiss without addressing his due process arguments.

       We note, however, that Ropiy=s complaint sought only a writ of mandamus to

compel the Building Department and the City to issue a wrecking permit to demolish the

presently existing structure and a building permit to allow the construction of a three-unit

building in its place. The complaint does not contend the zoning ordinance was invalid

because of inadequate notice or any other reason. We are not inclined to impose any

additional notice requirements on the city council in this mandamus action.

       Mandamus is an extreme remedy used to compel a public official to perform a

nondiscretionary, ministerial duty. Owens v. Snyder, 349 Ill. App. 3d 35, 39, 811 N.E.2d

738 (2004). To prove a legal right to relief by mandamus, the complaint must

demonstrate a clear right to the requested relief, the respondent=s clear duty to act, and

the respondent=s clear authority to comply with the terms of the order. Owens, 349 Ill.

App. 3d at 39. Despite the remedy=s extraordinary nature, the same pleading rules

apply in mandamus actions as in other actions at law. Noyola v. Board of Education of

the City of Chicago, 179 Ill. 2d 131, 133, 688 N.E.2d 81 (1997).

       AA party must recover, if at all, according to the case he has made for himself by

his pleadings. Proof without pleadings is as defective as pleadings without proof.@

American Standard Insurance Co. v. Basbagill, 333 Ill. App. 3d 11, 15, 775 N.E.2d 255

(2002). But see Glisson v. City of Marion, 188 Ill. 2d 211, 224, 720 N.E.2d 1034 (1999)

(although plaintiff failed to raise article XI, section 2, as a basis for standing in his

complaint, lack of standing was an affirmative defense defendant beared the burden of

proving; consequently, plaintiff properly raised the argument in response to defendants=

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section 2-619(a)(9) motion.)

       Although Ropiy raised his due process contentions in response to defendants=

motion to dismiss, he never pled the theory in his complaint for mandamus. Unlike

Glisson, defendants were not required to prove the zoning ordinance was valid in order

to defeat Ropiy=s mandamus action. Instead, defendants only had to establish Ropiy

did not have a vested right to the permits. After the trial court concluded Ropiy could

not acquire a vested right to the permits, it properly dismissed the complaint.

       While Ropiy contends he did not raise the due process issue because he was

unaware of the amendment when he filed the complaint, he could have sought leave of

court to amend his pleadings at any time prior to final judgment. See 735 ILCS 5/2-

615(a) (West 2004).

       We conclude the trial court did not err in dismissing Ropiy=s complaint without

addressing his due process contentions, and it is unnecessary to address Ropiy=s due

process contentions on appeal.

CONCLUSION

       We affirm the trial court=s order granting defendants= section 2-619(a)(9) motion

to dismiss Ropiy=s complaint for a writ of mandamus.

       Affirmed.

       SOUTH, and HALL, JJ., concur.




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