Penrod Premium Consignment Cigars, Ltd v. The City of Chicago , 2023 IL App (1st) 221330-U ( 2023 )

2023 IL App (1st) 221330-UNo. 1-22-1330
Order filed July 27, 2023
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
PENROD PREMIUM CONSIGNMENT CIGARS LTD., ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 21 CH 433
)
THE CITY OF CHICAGO, and MAURICE COX, in His )
Official Capacity as Commissioner of the City of Chicago )
Department of Planning and Development, Historical )
Preservation Division, ) Honorable
) David B. Atkins,
Defendants-Appellees. ) Judge, presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court.
Justices Rochford and Martin concurred in the judgment.
ORDER
¶1 Held: Where plaintiff sued a municipality based on the placement of a screen wall built
on the roof of a privately owned building in a landmark district, the circuit court
correctly dismissed plaintiff’s complaint for declaratory and mandamus relief
because plaintiff failed to exhaust its administrative remedies, lacked standing, and
had no clear right to the relief sought.
No. 1-22-1330
¶2 The circuit court dismissed with prejudice the complaint of plaintiff, Penrod Premium
Consignment Cigars Ltd. (Penrod), that sought declaratory and mandamus relief against
defendants, the City of Chicago and Maurice Cox as Commissioner of the City of Chicago
Department of Planning and Development (collectively, the City), based on the placement of a
screen wall that was built on the roof of a privately owned landmark building near Penrod’s office.
¶3 On appeal, Penrod argues that it had standing to assert its claims and sufficiently pled
claims alleging violations of the building permit process and Penrod’s right to mandamus relief.
Penrod also argues that the trial court erred by denying its motion to amend its complaint.
¶4 For the reasons that follow, we affirm the judgment of the circuit court.1
¶5 I. BACKGROUND
¶6 According to the well-pled allegations in the record, Penrod, a wholesale cigar distributor,
is located at 600 South Dearborn Street, in the Printer’s Row landmark district. In January 2020, a
building in the 600 block of South Federal Street (the South Federal building), also located in the
Printer’s Row landmark district, applied for a permit from the City’s Department of Buildings to
install a screen wall around rooftop cooling equipment. When the Department of Buildings
receives a permit application for a landmark building, it forwards the application to the commission
on Chicago landmarks (the Commission) for review. Municipal Code of Chicago, Ill. § 2-120-740
(2023).
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
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¶7 On June 4, 2020, the Commission, through its permit review committee, recommended
approval of the screen wall permit subject to certain conditions regarding the height and color of
the screen wall. On June 23, 2020, the Department of Buildings issued the permit. In a letter dated
July 16, 2020, the Commission notified the owner of the South Federal building that the screen
wall permit was conditionally approved, and that the Commission found that the project would
meet the criteria in the Commission’s rules and regulations and other applicable guidelines and
standards. After the project began, Penrod lodged complaints with the City’s nonemergency
services telephone number and the commissioner of the City’s department of planning and
development (DPD) about the screen wall, but Penrod was not satisfied with the responses.
¶8 On January 28, 2021, Penrod filed a complaint for declaratory and mandamus relief against
the City. In the declaratory judgment count, Penrod sought to void the Commission’s approval of
the permit application for the screen wall. According to Penrod, the Commission abused its
discretion when it determined that the screen wall would not adversely affect a significant feature
of a landmark building. In the mandamus counts, Penrod sought to compel (1) the Commission to
convene a hearing for public comment before its “final approval” of the screen wall, (2) the
Department of Buildings (which is not a defendant in this lawsuit) to revoke the permit for the
screen wall because the permit was issued without final approval from the Commission, and (3)
the Department of Buildings to enforce a permit certification signed by the building owner, Digital
Realty Trust, Inc. (which is not a defendant in this lawsuit), to tear down any construction that
exceeded what the Commission had approved and the Department of Buildings had permitted.
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¶9 The City moved to dismiss the complaint under section 2-619.1 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-619.1 West 2020)), asserting in part that Penrod did not have
standing because it had no legally cognizable stake in the permitting process for the South Federal
building. The City also argued that Penrod failed to exhaust its administrative remedies, in part
because it should have appealed the issuance of the permit to the City’s building board of appeals
(BBA). Further, the City asserted that Penrod was not entitled to a writ of mandamus because the
Municipal Code did not require the Commission to hold a public hearing for the screen wall permit
application, and Penrod’s own allegations showed that the Commission followed the law. Attached
to the City’s motion were the written minutes of the June 4, 2020 meeting, which indicated that
the permit review committee unanimously approved the screen wall.
¶ 10 In response, Penrod asserted in part that the full Commission did not approve the permit
application and did not issue a written approval. Penrod attached an e-mail exchange with the
Department of Buildings regarding a request under the Freedom of Information Act (FOIA) (5
ILCS 140/1 et seq. (West 2020)) from Penrod’s counsel for a copy of the permit as approved for
the South Federal building. In the FOIA request, Penrod’s counsel stated that the permit “should
include a letter from the [D]epartment of Landmarks.” The Department of Buildings responded
that it “did not see a letter from Landmarks with the permit.”
¶ 11 On June 9, 2022, the circuit court granted the City’s motion to dismiss. The court ruled that
(1) the court did not have subject matter jurisdiction over Penrod’s complaint because Penrod did
not seek administrative remedies and file a complaint for judicial review within 35 days from the
date the administrative decision was served on the party affected, (2) Penrod did not have standing
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because it did not establish a personal claim or right in the proceedings, and (3) regarding the
mandamus counts, there was no clear right to relief and no clear duty for the City to act as Penrod
requested.
¶ 12 Penrod moved the court to reconsider its decision. Penrod also sought leave to amend its
complaint to add the Department of Buildings as a defendant. The circuit court denied both
motions, and Penrod timely appealed.
¶ 13 II. ANALYSIS
¶ 14 The circuit court dismissed Penrod's complaint under sections 2-619 and 2-615 of the Code.
Section 2-619(a)(9) permits dismissal of a claim when it is barred by “other affirmative matter
avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2020).
“Affirmative matter” means “a type of defense that either negates an alleged cause of action
completely or refutes crucial conclusions of law or conclusions of material fact unsupported by
allegations of specific fact contained in or inferred from the complaint.” Krilich v. American
National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 570 (2002). Lack of standing and
failure to exhaust administrative remedies are both affirmative matters that are grounds for
dismissal. Poulet v. H.F.O., L.L.C., 353 Ill. App. 3d 82, 90 (2004); Northern Trust Co. v. County
of Lake, 353 Ill. App. 3d 268, 277 (2004).
¶ 15 A motion to dismiss under section 2-615 challenges a complaint’s legal sufficiency based
on defects on the face of the complaint. O’Callaghan v. Satherlie, 2015 IL App (1st) 142152,
¶ 18. The question “is whether, taking all well-pleaded facts as true and considering them in the
light most favorable to the plaintiff, the plaintiff has alleged sufficient facts which, if proved, would
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entitle the plaintiff to relief.” Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App.
3d 1, 9-10 (1997). Dismissal is proper if there is no set of facts that can be proved that would entitle
the plaintiff to recover. Signapori v. Jagaria, 2017 IL App (1st) 160937, ¶ 16.
¶ 16 Dismissals under sections 2-619 and 2-615 of the Code are reviewed de novo. Id.; Goral v.
Dart, 2020 IL 125085, ¶ 27. The appellate court may affirm the judgment on any basis in the
record. Mullins v. Evans, 2021 IL App (1st) 191962, ¶ 25.
¶ 17 A. Permit Review Process
¶ 18 A discussion of the City’s permit review process is necessary for an understanding of the
issues on review. When the Department of Buildings receives a permit application for a landmark
building, it forwards the application to the Commission for review. Municipal Code of Chicago,
Ill. § 2-120-740 (2023). The Commission must approve in writing any permit for alteration,
construction, erection, or other work that takes place on a landmark building. Id. Within 15 days
of receiving a permit application, the Commission must “issue in writing a preliminary decision
approving or disapproving the application” and “notify the applicant and the appropriate city
department of its preliminary decision.” Id. § 2-120-760.
¶ 19 The Commission’s review process takes one of two tracks. The first track occurs if the
Commission, or the permit review committee acting on its behalf, preliminarily approves the
permit, which occurs if the Commission “finds that the proposed work will not adversely affect
any significant historical or architectural feature of the improvement or of the district, and is in
accord with the Standards for Rehabilitation set forth by the United States Secretary of the
Interior.” Id. § 2-120-770.3. There is no hearing, but the City alleges that members of the public
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may offer verbal or written statements at meetings of the permit review committee. After a
preliminary approval, the permit application is returned to the Department of Buildings, which
reviews the application and issues the permit accordingly. Id. §§ 2-120-770, 14A-1-104.2, 14A-4-
401.3.
¶ 20 Appeals under the first track proceed as follows. The BBA hears appeals from decisions
and determinations of the commissioner of buildings or his designee “relating to the issuance of a
permit or work done under a permit.” Id. §§ 14A-1-103.2, 14A-10-1005.l. The BBA is authorized
to affirm, reverse, or modify a permit-related decision or determination. Id. § 14A-10-1005.l.l.
“Any person who is desiring review of a decision or determination of the building
official2 pertaining to a permit or permit application must file a written appeal petition, on
a form to be provided, with the chair of the [BBA], within 21 days after the decision or
determination to be reviewed has been issued by the building official. The appeal petition
must be accompanied by all supporting information the petitioner wishes to be considered
by the [BBA]. The petitioner must also deliver a copy of the appeal petition and supporting
information to the building official and, if the petitioner is not the permit applicant, to the
permit applicant. Petitions must be delivered in person or by U.S. Mail with delivery
confirmation.” Id. § 14A-10-1005.4.
“The building official may allow an untimely appeal petition to be considered by the [BBA]. In
such case, the [BBA] will have full jurisdiction to hear and decide the matter.” Id. § 14A-10-
2
The term “building official” means “the Commissioner of Buildings or the Commissioner’s
authorized representative.
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1005.4.2. “A copy of all orders, decisions, or determinations of the [BBA] must be mailed to the
petitioner, the permit applicant, and the building official.” Id. § 14A-10-1005.8. “All decisions and
findings of the [BBA] *** will, in all instances, be the final administrative determination and will
be subject to review by a court as by law, may be provided.” Id. § 14A-10- 1005.10.
¶ 21 The second track occurs if the Commission preliminarily disapproves the permit. If the
Commission “finds that the proposed work will adversely affect or destroy any significant
historical or architectural feature of the improvement or the district,” or does not comply with the
standards established by the Secretary of the Interior (id. § 2-120-780), the permit applicant may
request an informal conference (id. § 2-120-790), and if that does not resolve the matter, then the
Commission holds a public hearing on the permit application (id. § 2-120-800). Among others,
any person, organization, or legal entity within 500 feet of the landmark building or within the
landmark district may become a party to the public hearing. Id. § 2-120-680. Penrod refers to this
status as a “party by request.” After the hearing, the Commission issues in writing a final
administrative decision approving or disapproving the permit application, and its decision may be
appealed to the Circuit Court of Cook County under the Administrative Review Law. Id. §§ 2-
120-800, 2-120-810.
¶ 22 Here, Penrod had no right to a hearing as a party by request because the Commission
proceeded according to the first track, where it preliminarily approved the permit at the permit
review committee meeting on June 4, 2020. The Municipal Code makes plain that a person or
entity in Penrod’s position has no right to be a party to a permit application proceeding unless the
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Commission preliminarily disapproves the permit application and the matter proceeds to a public
hearing. That did not happen here.
¶ 23 B. Exhaustion of Administrative Remedies
¶ 24 First, we address the City’s argument that the court lacks jurisdiction to consider any of
Penrod’s claims based on the decision of the Department of Buildings to issue the permit, which
Penrod complains was done without the requisite written approval from the Commission. The City
argues that any claim based on the decision of the Department of Buildings fails because Penrod
did not exhaust its administrative remedies before it filed a complaint in the circuit court.
¶ 25 A party aggrieved by an administrative decision must first pursue all available
administrative remedies before seeking judicial review. Midland Hotel Corp. v. Director of
Employment Security, 282 Ill. App. 3d 312, 319 (1996). The exhaustion requirement allows the
administrative agency to use its expertise, fully develop and consider the facts of the case, and
grant relief to the aggrieved party, making judicial review unnecessary. Canel v. Topinka, 212 Ill.
2d 311, 320-21 (2004). When an agency has made a final decision, courts may review the decision
through statutory or common law procedures. Dubin v. Personnel Board, 128 Ill. 2d 490, 497
(1989). The exhaustion requirement applies when an agency has exclusive jurisdiction over an
action. Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill. App. 3d 929, 935
(2004).
¶ 26 As discussed above, the permit application at issue here proceeded under the first track,
where the Commission issued a preliminary approval of the application and sent it back to the
Department of Buildings to conduct its own review of the application. Then, on June 23, 2020, the
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Department of Buildings issued the permit for the screen wall. If Penrod believed that the
Department of Buildings improperly issued the permit, then Penrod had to bring that matter to the
BBA before filing a complaint in the circuit court. See Municipal Code of Chicago, Ill. § 14A-10-
1005.4 (2023). Although Penrod was required to file that written appeal petition with the BBA
within 21 days after the Department of Buildings issued the permit, the commissioner of buildings
or his authorized representative may allow an untimely appeal petition to be considered by the
BBA. See id.
¶ 27 The BBA had exclusive jurisdiction to address Penrod’s claim that the Department of
Buildings issued the permit for the screen wall without first receiving the Commission’s approval
in writing. The BBA hears appeals from decisions and determinations of the commissioner of
buildings or his designee “relating to the issuance of a permit or work done under a permit.” Id.
§§ 14A-10-1005.l; 14A-1-103.2. The BBA is authorized to affirm, reverse, or modify a permit-
related decision or determination. Id. § 14A-10-1005.l.l. And, as explained above, anyone who
seeks review of a permit-related decision must file a written appeal with the BBA. Id. § 14A-10-
1005.4. Penrod’s claim that the Department of Buildings issued the permit without first receiving
the Commission’s approval in writing falls within the BBA’s ambit. Because Penrod did not
exhaust its administrative remedies, Penrod’s claims based on the Department of Building’s
issuance of the permit were correctly dismissed.
¶ 28 C. Standing
¶ 29 Penrod argues that the circuit court erroneously dismissed the complaint due to lack of
standing because Penrod’s claim of an improperly denied hearing was a legally cognizable interest.
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Specifically, Penrod alleges that, as a property owner within 500 feet of the South Federal building,
Penrod would have qualified as a party by request and therefore been entitled to a Commission
hearing if the City had not abused its discretion by recommending preliminary approval of the
rooftop screen wall. Penrod argues that it has a procedural right and standing to see that the
landmark laws governing the Printer’s Row landmark district are properly executed. According to
Penrod, the Printer’s Row landmark district is a publicly owned facility because it has streets, bike
paths, sidewalks and parks. Penrod asserts that its taxes in part contribute to defray the City’s costs
of free permit processing, so Penrod has standing as a taxpayer to bring suit, even in the absence
of a statute, to enforce the equitable interest in public property, of which Penrod claims is being
illegally disposed. Penrod asserts that the City’s preliminary approval recommendation of the
alteration of the roofline along Federal Street directly injured Penrod’s property by reducing the
amount of light and air that reached the street.
¶ 30 Standing requires “some injury in fact to a legally cognizable interest.” Greer v. Illinois
Housing Development Authority, 122 Ill. 2d 462, 492 (1988). The claimed injury must be distinct
and palpable, fairly traceable to the defendant’s actions, and substantially likely to be prevented or
redressed by the grant of the requested relief. Id. at 492-93. A distinct and palpable injury refers
to an injury that cannot be characterized as “a generalized grievance common to all members of
the public.” Id. at 494. Illinois law on the issue of standing is more liberal than federal law, and
“State courts are generally more willing than Federal courts to recognize standing on the part of
any plaintiff who shows that he is in fact aggrieved by an administrative decision.” Id. at 491.
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¶ 31 For a declaratory judgment action, “there must be an actual controversy between adverse
parties, with the party requesting the declaration possessing some personal claim, status, or right
which is capable of being affected by the grant of such relief.” Greer, 122 Ill. 2d at 493. Similarly,
a plaintiff seeking a writ of mandamus must establish a “ ‘sufficiently protectable interest pursuant
to statute or common law which is alleged to be injured.’ ” Cedarhurst of Bethalto Real Estate,
LLC v. Village of Bethalto, 2018 IL App (5th) 170309, ¶ 31 (quoting Hill v. Butler, 107 Ill. App.
3d 721, 725 (1982)).
¶ 32 “[A] prospective party cannot gain standing merely through a self-proclaimed concern
about an issue, no matter how sincere.” Landmarks Preservation Council of Illinois v. City of
Chicago, 125 Ill. 2d 164, 175 (1988). Furthermore, where the prospective party is neither the owner
of the private property in question nor even an owner of adjoining property, aesthetic interests,
like the ability to view a private property from a public street, “while not to be disregarded, are not
controlling on the question of standing.” Id. (two organizations concerned with landmarks and
architecture did not have a legally cognizable stake in the City’s decision to rescind a privately
owned building’s landmark designation where the two organizations did not own the building or
an adjoining property). In addition, Illinois courts do not “recognize as a basis for standing an
alleged right to participate in a public hearing for participation’s sake *** where *** a municipality
has bestowed that alleged procedural right apparently not as a legal entitlement but as a tool to
assist the municipality in performing its legislative function.” Id.¶ 33 None of Penrod’s claimed injuries supports standing. Penrod alleged that it was denied a
hearing on the permit at which it could have participated as a “party by request.” But Penrod had
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no right to a hearing based on that status under the Commission’s permit review process. As
discussed above, the Commission’s review process followed the first track, where the
Commission’s permit review committee preliminarily approved the permit because the
Commission found “that the proposed work will not adversely affect any significant historical or
architectural feature of the improvement or of the district, and is in accord with the Standards for
Rehabilitation set forth by the United States Secretary of the Interior.” Municipal Code of Chicago,
Ill. § 2-120-770 (2023). Consequently, no hearing was held.
¶ 34 The Municipal Code makes plain that a person or entity in Penrod’s position has no right
to be a party to a permit application proceeding unless the Commission preliminarily disapproves
the permit application and the matter proceeds to a public hearing. That did not happen here.
Therefore, as a matter of law, Penrod could not have been injured by any denial of a hearing as a
party by request. And without a legally cognizable injury, Penrod lacks standing. In the end,
Penrod seeks “to participate in a public hearing for participation’s sake,” which is not a basis for
standing. Landmarks Preservation Council of Illinois, 125 Ill. 2d at 175.
¶ 35 Besides its claimed inability to participate in a hearing that was not legally required to
occur, Penrod alleges no injury to itself. Instead, the thrust of its complaint is that the Commission
ignored the guidelines that apply to landmark buildings. This amounts to an objection to the screen
wall’s appearance, which does not provide standing. In its complaint, Penrod alleged that the
Commission ignored the provision that additions to roofs that change characteristic roof shapes
and lines will not be approved. Penrod also asserted that the materials used to construct the screen
wall conflicted with the masonry exterior of the other buildings in the landmark district. Penrod
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further contended that the screen wall improperly acted as “a sign board visible from the public
way.”
¶ 36 The Illinois Supreme Court has squarely rejected appearance-based concerns as a basis for
standing. In Landmarks Preservation Council of Illinois, the court held that two organizations
concerned with landmarks and architecture did not have standing to challenge the City’s decision
to rescind a building’s landmark designation. The organizations’ “only interest appear[ed] to be
the ability to view this private property from a public street.” 125 Ill. 2d at 175. The organizations’
aesthetic interests were “not controlling on the question of standing.” Id. The organizations did not
own the subject building or an adjoining building. Id. Like the organizations in Landmarks
Preservation Council, Penrod’s only interest is that a building in its vicinity has installed a screen
wall that Penrod does not like. Penrod does not own the building in question or any adjoining
building. Penrod’s lawsuit amounts to nothing more than a private entity’s objection to the
appearance of a privately-owned building. It is not situated any differently, for standing purposes,
than any other occupant of a building in the vicinity. Penrod does not have a legally cognizable
interest at stake.
¶ 37 Penrod’s remaining contentions—that the landmark district is a publicly owned facility and
has streets, bike paths, sidewalks, and a park; the permit process is publicly funded, and Penrod
has an interest in seeing that laws are followed—also do not supply standing. These are not distinct
and palpable injuries, but generalized grievances that are common to all members of the public.
Alliance for the Great Lakes v. Department of Natural Resources, 2020 IL App (1st) 182587, ¶ 32
(distinct and palpable injuries are those that cannot be characterized as generalized grievances
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common to all members of the public). Streets, bike paths, sidewalks, and parks are not unique to
the Printer’s Row landmark district. And all landmark-related permits go through the same process.
Penrod occupies no different position than any other person or entity that objects to the appearance
of a nearby building, so Penrod does not have standing.
¶ 38 Penrod’s reliance on Martini v. Netsch, 272 Ill. App. 3d 693 (1995), does not advance its
position. There, the plaintiff had standing to “[seek] relief from the alleged misuse of tax revenue
to fund elective abortions at Cook County Hospital.” Id. at 696. The court stated that, as a taxpayer,
the plaintiff had the right to enforce her equitable interest in public resources allegedly being used
for an illegal purpose at a public facility. Id. Here, however, no public funds were misused for an
illegal purpose. Again, the South Federal building is privately-owned, and no public resources
were used to erect the screen wall. The Commission’s only role was to perform its lawful,
ordinance-mandated review of a permit for whether the screen wall was appropriate under the
City’s requirements for landmark districts. Any use of public funds for that purpose was lawful
and, therefore, not misappropriated for an illegal purpose. Further, although Penrod disagrees with
how the Commission weighed the relevant guidelines, there is no indication that anything improper
occurred. Penrod did not suffer a distinct and palpable injury and does not have standing to assert
any of its claims.
¶ 39 We conclude that the circuit court did not err when it ruled that Penrod lacked standing.
Penrod has an office in the vicinity of the South Federal building and is complaining about the
process between the South Federal Building and the City that resulted in a permit for a screen wall
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that Penrod evidently dislikes. Penrod has no personal legal interest or right in that process, and
no cognizable injury.
¶ 40 D. Mandamus Relief
¶ 41 Penrod also failed to state a claim for mandamus relief. The mandamus counts in Penrod’s
complaint sought to compel (1) the Commission to convene a hearing for public comment before
finally approving or disapproving the screen wall, (2) the Department of Buildings to revoke the
permit for the screen wall because there was no final approval from the Commission, and (3) the
Department of Buildings to enforce the permit certification signed by the owner of the South
Federal building that it would tear down any construction that exceeded what was approved by the
Commission and permitted by the Department. None of the counts meet the requirements for a
writ of mandamus.
¶ 42 Mandamus is an extreme remedy that is used to enforce, “ ‘as a matter of right, a public
officer’s performance of his *** official duties where no exercise of discretion on the officer’s part
is involved.’ ” Ryan v. City of Chicago, 2019 IL App (1st) 181777, ¶ 12 (quoting Perkins v. Quinn,
2012 IL App (1st) 113165, ¶ 18). No rights can be acquired in a mandamus proceeding, since the
purpose of a mandamus proceeding is to enforce rights that are already vested. Kramer v. City of
Chicago, 58 Ill. App. 3d 592, 598 (1978). The three necessary elements for mandamus relief are
(1) a clear, affirmative right to relief, (2) a clear duty of the public official to act, and (3) a clear
authority in the public official to comply with the writ. Ryan, 2019 IL App (1st) 181777, ¶ 13. The
plaintiff has the burden to establish every material fact necessary to show the plain duty of the
defendant. Illinois Wood Energy Partners, L.P. v. County of Cook, 281 Ill. App. 3d 841, 852
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(1995). “Mandamus is never awarded in a doubtful case.” Kramer, 58 Ill. App. 3d at 599. Further,
though mandamus can compel the exercise of a public official’s discretion (Burnidge Brothers
Almora Heights, Inc. v. Wiese, 142 Ill. App. 3d 486, 490 (1986)), mandamus cannot be used to
direct a public official to reach a particular decision or exercise his discretion in a particular way,
even if the judgment or discretion was erroneously exercised (Pate v. Wiseman, 2019 IL App (1st)
190449, ¶ 25).
¶ 43 Regarding the first mandamus count, Penrod had no right to a Commission hearing. As
explained above, the Commission is required to hold a public hearing only if it preliminarily
disapproves a permit application. Municipal Code of Chicago, Ill. § 2-120-800 (2023). Here, the
Commission preliminarily approved the screen wall permit, so no hearing was required. Moreover,
the decision to preliminarily approve or disapprove a permit application is a discretionary one. The
Commission applies its discretion to assess a variety of factors, determining whether the proposed
work would adversely affect significant or architectural features and is consistent with certain
federal standards. Id. § 2-120-770. The Commission applied its discretion in this case, and
Penrod’s dissatisfaction with the outcome of the Commission’s discretionary process is not a basis
for mandamus relief. Penrod’s mandamus count against the Commission was properly dismissed.
¶ 44 Penrod’s next count for mandamus relief sought to compel the Department of Buildings to
revoke the permit for the screen wall because the Commission did not issue a “final approval.” In
its complaint, Penrod stated that after eliciting public comments on a permit application, the
Commission must review the application for adverse effects and make what it calls a “final
determination.” Penrod appears to refer to the process that occurs after a preliminary disapproval,
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which can include a hearing. See id. § 2-120-800. Again, no hearing was required here, where
there was a preliminary approval.
¶ 45 If Penrod is asserting that the permit must be revoked because the Commission did not
issue the required written approval, Penrod also has no right to relief. The Municipal Code does
not mandate a particular format for written approval. In the circuit court, Penrod posited that the
Commission was supposed to transmit a letter to the Department of Buildings. But Penrod
identifies no source of a clear right to a letter. And here, the preliminary approval was reflected in
the written minutes of the permit review committee meeting where the screen wall was considered.
Mandamus relief against the Department was correctly denied.
¶ 46 Last, Penrod does not have a clear right to relief and the Department of Buildings does not
have a clear duty to act to enforce the permit certification signed by the owner of the South Federal
building and require the removal of the structure. The ordinance that describes permit certifications
and the text of the permit certification itself make this clear. The ordinance states that a signatory
to a permit certification statement “acknowledges the penalties that may attach” if the work
exceeds the scope of the permit. Id. § 14A-4-401.3.4. Penalties are therefore a possibility, not a
certainty. Thus, the certification signed for the screen wall permit states that if the work exceeds
the scope of the permit,
“I can and will be severely punished ***. I can have my permit revoked; be ordered to stop
all work on the project; fined up to $5,000.00 per day; imprisoned for up to six months;
required to do up to 100 hours of community service; required to tear down at my own
expense all completed work; and, in addition to other penalties provided by law, required
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to reimburse the City up to three times any damages incurred for providing any false or
inaccurate information in this building permit application.”
¶ 47 As an initial matter, Penrod did not even allege that the work on the screen wall exceeded
the scope of the permit that was issued; rather, Penrod asserted only that the permit should not
have been approved in the first place. Regardless, nothing in the ordinance guarantees that an
owner will be required to remove noncompliant construction. And mandamus cannot be ordered
when it “depends upon the cooperation or approval of a third person who is not before the court.”
Wiese, 142 Ill. App. 3d at 490-91. The building owner, Digital Realty Trust, Inc., is not a party to
this lawsuit. Penrod does not have a clear right to relief, and it identifies no clear duty for the City
to act. The circuit court correctly dismissed the mandamus counts on this basis as well.
¶ 48 E. Leave to Amend the Complaint
¶ 49 Penrod argues that the circuit court should have allowed it to amend its complaint to add
the Department of Buildings as a party.
¶ 50 The circuit court’s ruling on an amendment to a pleading is reviewed for an abuse of
discretion. In re Marriage of D.T.W. & S.L.W., 2011 IL App (1st) 111225, ¶ 107. Ordinarily, a
court applies a multi-factor analysis to determine whether to allow leave to amend a complaint,
but a court “may begin and end [its] analysis with the observation that it is never an abuse of
discretion to deny leave to amend when the proposed amendment would be futile.” Malacina v.
Cook County Sheriffs Merit Board, 2021 IL App (1st) 191893, ¶ 40. Allowing Penrod to add the
Department of Buildings as a defendant would have not changed the court’s ruling that dismissed
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Penrod’s complaint because Penrod failed to exhaust its administrative remedies, lacked standing,
and failed to state a claim for mandamus. The circuit court properly denied leave to amend.
¶ 51 III. CONCLUSION
¶ 52 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 53 Affirmed.
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