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Tuesday, December 17, 2019

Homeowner's Lawsuit Against City Relating to Neighbor's Home Properly Dismissed

Ryan (a homeowner in the City) sued the City of Chicago asking a court for a "writ of mandamus" to order the City to direct a home builder to move a newly constructed home immediately adjacent to Ryan's home approximately 2.5 inches in order to comply with the required two-foot setback. After the circuit court had dismissed the case, Ryan appealed. The appellate court agreed that the case should be dismissed in Ryan v. City of Chicago, 2019 IL App (1st) 181777.

A home builder had purchased 2 lots to construct 2 single family homes. On one of those lots immediately adjacent to the plaintiff's home, the home builder mistakenly staked out the foundation within the required two-foot setback. By the time the builder realized the mistake, the walls and roof were already constructed. Although the new homeowners applied for and obtained a 2.5 inch setback variance from the Zoning Board of Appeals for the setback encroachment, Ryan nevertheless filed a lawsuit seeking a mandamus order so the home would have to be moved.

On appeal, the appellate court first determined that Ryan erred in citing 65 ILCS 5/11-13-15 as a basis for her mandamus lawsuit against the City. That statute (commonly referred to as the Adjoining Landowner Act) expressly states that it does not authorize any lawsuit against a municipality relating to enforcement of zoning regulations. 

Second, the appellate court held that because a municipal official has broad discretion in enforcing municipal ordinances, courts will not issue a writ of mandamus that would, in effect, substitute for that judgment. Here, the City had no clear duty to perform the acts that Ryan was requesting (revocation of the building permit for the new home and requiring the home builder to move a newly constructed home), which were within the City officials' discretion. 

Finally, the appellate court made it clear that there is no legal support for Ryan's argument that the City is obligated to enforce its ordinances. Instead, the court stated that enforcement of City ordinances is within the City's authority and discretion, but is not a mandatory duty that would entitle Ryan to relief. 

This ruling provides good guidance on a municipality's discretion in enforcing its zoning and building ordinances.


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