Chicago City Day School v. City of Chicago

                                                  SECOND DIVISION
                                                  JUNE 10, 1997  



1-96-0444

CHICAGO CITY DAY SCHOOL, 

     Plaintiff-Appellee,

     v.

CITY OF CHICAGO, COMMISSION ON
CHICAGO LANDMARKS, MARY FISHMAN,
and unknown others,

     Defendants-Appellants.
)   Appeal from the
)   Circuit Court of
)   Cook County.
)
)   No. 96 CH 362
)
)   The Honorable
)   Albert Green,
)   Judge Presiding.
)
)

     PRESIDING JUSTICE DiVITO delivered the opinion of the court:

     Plaintiff Chicago City Day School unsuccessfully sought a
permit to demolish a coachhouse on its property.   It then filed
this action, a complaint for mandamus and other relief, seeking an
order directing defendants Mary Fishman and the Commission on
Chicago Landmarks (the Commission) to approve issuance of the
permit.  Finding that the Commission lacked authority over the
matter because of a May 2, 1995, resolution of the Chicago city
council (the City Council), the circuit court ordered defendants to
issue the demolition permit.  Defendants filed a notice of appeal. 
Subsequently, the permit was issued and plaintiff demolished the
coachhouse.
     In this appeal, defendants contend that the appeal is moot and
that, consequently, the judgment of the circuit court must be
vacated.  For the reasons that follow, we dismiss the appeal, but
deny vacatur of the circuit court's judgment.
     The Commission, which was created by the Chicago Landmarks
Ordinance (Chicago Municipal Code  2-120-590 (1992)), inter alia,
recommends landmark designation and reviews permit applications for
the alteration, construction, and demolition of structures in
landmark and preliminarily designated landmark districts.  In 1989,
the Commission recommended the creation of the Hawthorne Place
District and gave it preliminary landmark designation.  The issue
of landmark designation for the Hawthorne Place District was then
sent to the City Council, which has the sole authority to make such
a designation.  As of May 1995, the City Council had not addressed
the question. 
     On May 2, 1995, in an effort to clear its docket, the City
Council passed a resolution that provided "that all matters
introduced in the City Council prior to January 1, 1995, on which
no action had been taken shall be considered as having 'failed to
pass.'"  On June 14, 1995, the City Council amended the resolution
to exempt "zoning applications, ordinances designating landmarks,
orders for privileges in the public way, or ordinances or orders
relating to traffic regulations or traffic signs."  On July 13,
1995, the resolution was again amended to remove all exemptions,
except that for zoning applications pending prior to July 13, 1995. 
     On January 10, 1996, plaintiff applied for a permit to 
demolish a coachhouse, located on property that had previously
received preliminary landmark designation as the Hawthorne Place
District, alleging that the Chicago fire department had found it to
be in an unsafe condition.  On January 12, 1996, plaintiff filed
this action, a complaint for mandamus and other relief, seeking an
order directing Fishman and the Commission to approve the
application.  On January 30, 1996, in reliance on the May 2, 1995,
resolution of the City Council, plaintiff filed an emergency motion
for entry of an order directing issuance of the demolition permit. 
Plaintiff contended that, under the May 2, 1995, resolution, the
proposed landmark designation of the Hawthorne Place District had
failed to pass.  It argued that because the involvement of the
Commission was premised solely on the factually untrue assumption
that the coachhouse was located in a landmark district, it lacked
authority in the matter.  On February 7, 1996, the circuit court
granted plaintiff's emergency motion, ordering, inter alia, that
defendants issue the demolition permit forthwith.  That day,
defendants filed their notice of appeal.
     Subsequently, this court denied defendants' motion for a stay
and the supreme court denied their motion for a supervisory order. 
Although defendants filed a motion to vacate in the circuit court,
on March 6, 1996, an employee of defendant City of Chicago's (the
City's) Department of Buildings issued the demolition permit.  On
March 6 and 7, plaintiff demolished the coachhouse.  On March 7,
the circuit court held that the motion to vacate was moot.
     On March 6, 1996, the City Council enacted a "substitute
ordinance as amended" that provided that all landmark
recommendations submitted by the Commission to the City Council on
or before May 1, 1995, would be considered and not regarded as
having "failed to pass."  Chicago, Substitute Ordinance (March 6,
1996).  The City Council also amended the Landmark Ordinance to
provide that any landmark recommendation submitted to the City
Council after March 6, 1996, would be deemed "do not pass" if not
voted "do pass" within 365 days of the recommendation.  Chicago
Municipal Code  2-120-705 (1996).  On March 26, 1996, the City
Council  designated the Hawthorne Place District an historical
landmark. 
     Defendants' first contention is that their appeal is moot. 
Rather than challenging the merits of the circuit court's decision
or moving to voluntarily dismiss or withdraw their appeal,
defendants assume this unusual posture in an effort to obtain 
vacatur of the circuit court's judgment, thereby avoiding a
possible res judicata or collateral estoppel effect on pending
litigation.
     A case is moot and should be dismissed where no actual
controversy exists or where events occur that make it impossible
for a reviewing court to grant effectual relief.  Dixon v. Chicago 
& North Western Transportation Co., 151 Ill. 2d 108, 116, 601 N.E.2d 704 (1992); In re E.G., 133 Ill. 2d 98, 105, 549 N.E.2d 322
(1989).  Here, the object of the underlying action, the coach
house, no longer exists.  Accordingly, it is impossible for us to
grant effectual relief.  This appeal is moot.
     A technically moot issue may occasionally be considered,
however, where "'the magnitude or immediacy of the interests
involved warrant[s] action by the court' or where the issue is
'likely to recur but unlikely to last long enough to allow
appellate review to take place because of the intrinsically short-
lived nature of the controversies.'"  Dixon, 151 Ill. 2d  at 117-18,
quoting First National Bank v. Kusper, 98 Ill. 2d 226, 235, 456 N.E.2d 7 (1983).  As for the first exception, if a case presents an
issue of substantial public interest, a reviewing court will look
to three factors: (1) the nature of the question presented, (2) the
desirability of an authoritative determination for the future
guidance of public officers, and (3) the likelihood of future
recurrence of the question.  In re E.G., 133 Ill. 2d  at 105.
     Here, the demolition of historical landmarks is certainly a
public question.  Because the City Council enacted the substitute
ordinance and amended the Landmark Ordinance, however, there is
neither a need for a prospective authoritative determination nor
the likelihood of future recurrence.  Furthermore, given the
amendments to the Landmark Ordinance, the second exception is also
inapplicable to the instant case because this litigation is
unlikely to recur.  Thus, we decline to review the judgment in the
instant case as a matter falling within either exception to the
mootness doctrine.
     Having determined that the appeal is moot, we turn to 
defendants' contention that, in addition to dismissing their
appeal, we must vacate the judgment of the circuit court and remand
the cause for dismissal of the complaint.  They rely on a line of
cases that have held that vacatur and remand are proper in certain
instances to prevent an unreviewable decision standing as
precedent.  E.g.,  George W. Kennedy Construction Co. v. City of
Chicago, 112 Ill. 2d 70, 78, 491 N.E.2d 1160 (1986); Village of
South Elgin v. City of Elgin, 203 Ill. App. 3d 364, 373, 561 N.E.2d 295 (1990).  
     Vacatur and remand do not necessarily occur, however, where a
case has been rendered moot. For example, in Donahue v. City of
Chicago, 107 Ill. App. 3d 271, 275, 437 N.E.2d 854 (1982), a case
that defendants contend is "indistinguishable" from the instant
case, the appellate court simply dismissed the cause as moot,
without vacating the judgment of the circuit court.  See also
Dixon, 151 Ill. 2d  at 125. 
     An examination of the principles underlying vacatur of moot
cases is helpful in determining whether that remedy is proper here. 
In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 130 L. Ed. 2d 233, 115 S. Ct. 386 (1994) (U.S. Bancorp), where
a unanimous Supreme Court denied the petitioner's motion to vacate
the judgment entered in a case that had become moot by reason of
settlement, the Court noted that vacatur is an equitable doctrine
that is invoked where a controversy becomes moot "'due to
circumstances unattributable to any of the parties.'"  U.S.
Bancorp, 513 U.S.  at 23, 130 L. Ed. 2d  at 240, 115 S. Ct.  at 390,
quoting Karcher v. May, 484 U.S. 72, 83, 98 L. Ed. 2d 327, 337, 108 S. Ct. 388, 395 (1987).  Because the principal condition to be
considered is voluntariness, a party "who seeks review of the
merits of an adverse ruling, but is frustrated by the vagaries of
circumstance, ought not in fairness be forced to acquiesce in the
judgment."  U.S. Bancorp, 513 U.S.  at 25, 130 L. Ed. 2d  at 242, 115 S. Ct.  at 391.  "The denial of vacatur is merely one application of
the principle that 'a suitor's conduct in relation to the matter at
hand may disentitle him to the relief he seeks.'"  U.S. Bancorp,
513 U.S.  at 25, 130 L. Ed. 2d  at 242, 115 S. Ct.  at 392, quoting
Sanders v. United States, 373 U.S. 1, 17, 10 L. Ed. 2d 148, 162, 83 S. Ct. 1068, 1078 (1963).
     Here, defendants had not sought review of the merits only to
be "frustrated by the vagaries of circumstance."  Although the
coach house was demolished by plaintiff, it was the City Council
that passed the ill-considered cut-off resolution that provided the
legal basis for the demolition and an employee of the City's
Department of Buildings who issued the permit.  
     Moreover, in U.S. Bancorp, the Court questioned the fairness
of using vacatur as a collateral attack on a judgment where parties
have not pursued their statutory remedies.  U.S. Bancorp, 513 U.S. 
at 27, 130 L. Ed. 2d  at 243, 115 S. Ct.  at 392.   Here, too, we
question whether it would be equitable for defendants to obtain
vacatur of a decision, the correctness of which they do not
challenge.  
     We also note that had the City Council not amended the
Landmark Ordinance, we could have reviewed defendants' contention
that the May 2, 1995, cut-off resolution was a mere administrative
act that did not affect the status of the Hawthorne Place District
or other preliminarily designated landmarks on the basis that it
was "likely to recur but unlikely to last long enough to allow
appellate review to take place because of the intrinsically short-
lived nature of the controversies."  Dixon, 151 Ill. 2d  at 117-18. 
Thus, we conclude that the City's conduct in relation to the matter
at hand disentitles it to vacatur.  
     The appeal is  dismissed as moot. 
     Dismissed.
     RAKOWSKI and TULLY, JJ., concur.