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.
OPINION
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.
BACKGROUND
In 1996, LSA authorized its agent, Draper & Kramer (Draper), to look into the
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 interveners, finding that the Part II approval letter
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,
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 interveners were entitled to a declaratory judgment that LSA was not entitled to a zoning certificate or building permit under RPD 196.
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,
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,
“[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.”
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,
“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,
Another case relied on by the appellate court in Mazur-Berg is People ex rel. Shell Oil Co. v. Town of Cicero,
In Naumovich v. Howarth,
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,
The Shell Oil and Naumovich cases cited by MazurBerg 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 cutoff 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 interveners 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 Bernardinas 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
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 plaintiffs knowledge that a zoning change was pending and it refers repeatedly in its brief to “pending zoning change,” “impending amendment,” and “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,
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.
Ill
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,
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.”
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.
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,
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,
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,
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,
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.