{ "id": 5766133, "name": "1350 LAKE SHORE ASSOCIATES, Plaintiff-Appellant, v. DENISE M. CASALINO, Commissioner, The Department of Planning and Development of the City of Chicago, et al., Defendants-Appellees (Edward T. Joyce et al., Intervenors-Appellees)", "name_abbreviation": "1350 Lake Shore Associates v. Casalino", "decision_date": "2005-12-28", "docket_number": "No. 1-04-3379", "first_page": "806", "last_page": "823", "citations": [ { "type": "official", "cite": "363 Ill. App. 3d 806" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "816 N.E.2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "352 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5457682 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/1027-01" ] }, { "cite": "411 N.E.2d 1002", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5537139 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0378-01" ] }, { "cite": "167 N.E.2d 216", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "19 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2744864 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/19/0462-01" ] }, { "cite": "106 N.E.2d 823", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "347 Ill. App. 346", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5090624 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-app/347/0346-01" ] }, { "cite": "710 N.E.2d 849", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564567 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0586-01" ] }, { "cite": "206 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "parenthetical": "the burden is on the plaintiff \"to prove a clear right that they had, while acting in good faith, expended substantial sums and incurred substantial obligations\"" } ], "opinion_index": 0 }, { "cite": "56 Ill. App. 2d 436", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5286247 ], "weight": 5, "year": 1965, "pin_cites": [ { "page": "447-48", "parenthetical": "the burden is on the plaintiff \"to prove a clear right that they had, while acting in good faith, expended substantial sums and incurred substantial obligations\"" }, { "page": "448" }, { "page": "448" }, { "page": "444", "parenthetical": "\"no Illinois case has defined 'substantial' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/56/0436-01" ] }, { "cite": "458 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 1043", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594387 ], "year": 1983, "pin_cites": [ { "page": "1053" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/1043-01" ] }, { "cite": "698 N.E.2d 257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 146", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073608 ], "year": 1998, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0146-01" ] }, { "cite": "420 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3117859 ], "year": 1981, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0666-01" ] }, { "cite": "298 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2927773 ], "year": 1973, "pin_cites": [ { "page": "904" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0900-01" ] }, { "cite": "311 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 30", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2691413 ], "weight": 6, "year": 1974, "pin_cites": [ { "page": "34" }, { "page": "34" }, { "page": "35" }, { "page": "34" }, { "page": "34-35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0030-01" ] }, { "cite": "157 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1959, "opinion_index": 0 }, { "cite": "16 Ill. 2d 183", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2762683 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0183-01" ] }, { "cite": "377 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "71 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449192 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "517" }, { "page": "516-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0510-01" ] }, { "cite": "791 N.E.2d 60", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "hereinafter referred to as Lake Shore II" } ], "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 618", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469092 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "641", "parenthetical": "hereinafter referred to as Lake Shore II" }, { "page": "641" }, { "page": "634" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0618-01" ] }, { "cite": "761 N.E.2d 760", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "hereinafter referred to as Lake Shore I" } ], "opinion_index": 0 }, { "cite": "326 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281451 ], "year": 2001, "pin_cites": [ { "parenthetical": "hereinafter referred to as Lake Shore I" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0788-01" ] } ], "analysis": { "cardinality": 1323, "char_count": 45342, "ocr_confidence": 0.734, "pagerank": { "raw": 6.446915340307699e-08, "percentile": 0.3978838148478927 }, "sha256": "47dd9b777bfe2c6dfb9ee35444a7a5fdf27d4380585400cf2f6ff409768e06f4", "simhash": "1:fb34f4987dc202d4", "word_count": 7403 }, "last_updated": "2023-07-14T18:25:30.372916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "1350 LAKE SHORE ASSOCIATES, Plaintiff-Appellant, v. DENISE M. CASALINO, Commissioner, The Department of Planning and Development of the City of Chicago, et al., Defendants-Appellees (Edward T. Joyce et al., Intervenors-Appellees)." ], "opinions": [ { "text": "PRESIDING JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe plaintiff, 1350 Lake Shore Associates (LSA), appeals from an order entered following our remand of this cause by which the circuit court: (1) refused to enjoin the City of Chicago and its agents from applying any provision of the Chicago Zoning Ordinance which would prevent LSA from constructing a high-rise building at 1320-30 Lake Shore Drive in accordance with the terms of a residential planned development ordinance which was passed in November 1978; and (2) entered a declaratory judgment that LSA was not entitled to a zoning certificate or building permit in connection with the plans it submitted to the Department of Planning and Development of the City of Chicago (Department of Planning) for the construction of the building. For the reasons that follow, we affirm.\nThis case is before us for the fourth time on appeal. As a result, we will recite only the procedural history and facts necessary to understand the issues presented in the instant appeal.\nAt all times relevant to this appeal, LSA owned the property located at 1320-30 Lake Shore Drive (hereinafter referred to as \u201cthe property\u201d). On November 14, 1978, the Chicago city council approved LSA\u2019s application to change the property\u2019s zoning from an \u201cR8 General Residence District\u201d classification to \u201cResidential Planned Development 196\u201d (RPD 196), permitting the construction of a 40-story, 196-unit apartment building on the property. LSA, however, chose not to develop the property in accordance with RPD 196 at that time. On December 10, 1997, Charles Bernardini, then alderman of Chicago\u2019s 43rd Ward in which the property is located, introduced an ordinance (hereinafter referred to as the \u201cdown-zoning ordinance\u201d) proposing to change the property\u2019s zoning from RPD 196 to an \u201cR6 General Residence District,\u201d under which LSA\u2019s proposed building was not a permitted use. The following day, LSA\u2019s project architect submitted plans for a high-rise building (Part II Submittal) to the Department of Planning, seeking the issuance of a Part II Approval letter. For property located in a planned development, a Part II Approval letter certifying that the architectural plans submitted comply with all the provisions of the applicable planned development ordinance is a prerequisite to the issuance of a zoning certificate which, in turn, is a prerequisite to the issuance of a building permit. See Chicago Zoning Ordinance \u00a7 11.5 (amended July 21, 1999), \u00a7 11.11 \u2014 3(b) (amended December 11, 1991). Although the plans submitted by LSA fully complied with the requirements of RPD 196, the Department of Planning took no action on LSA\u2019s Part II Submit-tal. On April 29, 1998, the Chicago city council approved the down-zoning ordinance, which became effective on May 20, 1998.\nLSA filed its initial complaint in this action naming as defendants the commissioner of the Department of Planning (Commissioner) and the City of Chicago (City) (hereinafter referred to collectively as the \u201cCity defendants\u201d). Thereafter, Edward T. Joyce, Carl Hunter, John Stassen, John C. Mullen, Clark W Fetridge, Respicio F. Vasquez, and Bernard J. Miller (hereinafter referred to collectively as the \u201cinterve-ners\u201d), all of whom own property located within 250 feet of the subject property, were granted leave to intervene. LSA\u2019s original three-count complaint was amended a number of times during the proceedings. In count I of its first-amended complaint, LSA sought a writ of mandamus directing the Commissioner to issue a Part II Approval letter. Count II sought a declaration that the down-zoning ordinance did not affect LSA\u2019s right to develop the property in conformity with RPD 196 and an injunction barring the City from enforcing the down-zoning ordinance against it. Count III sought a declaration that the down-zoning ordinance, along with a subsequently enacted ordinance imposing a 125-foot height limitation on any new construction, were both void. The circuit court later granted LSA\u2019s motion to voluntarily dismiss count II.\nSeparate bench trials were conducted on counts I and III of LSA\u2019s amended complaint. The evidence introduced at the trial on count I established the following relevant facts.\nAfter having secured the passage of RPD 196 in 1978, it was not until sometime in 1996 that LSA, through its agent, Draper and Kramer, Inc. (Draper), began investigating the possibility of developing the property in conformity with RPD 196. LSA eventually authorized Draper to proceed with the project on its behalf. To this end, in early 1997, Draper, acting on behalf of LSA, hired Jack Guth-man, an attorney specializing in zoning law, to represent it in connection with the project, and also hired Solomon Cordwell Buenz & Associates, Inc. (SCB), to render architectural services for the proposed development. Draper subsequently hired a surveyor, an urban planner, an elevator consultant, and an artist to create a rendering from the architect\u2019s conceptual drawings.\nUpon being hired, Guthman suggested that, as a measure of \u201cgood zoning practice,\u201d representatives of Draper should meet with Bernar-dini and members of the surrounding community regarding the proposed project. In the spring of 1997, a meeting took place at Draper\u2019s office between Guthman; William Bennett, president and chief executive officer of Draper; William VanSenus, an employee of Draper; and Bernardini. Guthman estimated that the meeting took place in April or May 1997. At the meeting, Bernardini was informed of the property\u2019s existing zoning and shown preliminary building designs. Guthman and the Draper representatives testified that Ber-nardini requested that additional parking spaces be provided in the building. VanSenus added that the alderman asked if the facade of the building could be improved. Aside from these requests, the three men testified that Bernardini made no mention of opposition from community members or that he was considering down-zoning the property. For his part, Bernardini acknowledged that he did not mention down-zoning at the meeting. However, he stated that he informed Guthman and the Draper representatives that the proposed development would be controversial due to its size and density and that, if they wanted his support, they should meet with neighborhood organizations and reach some kind of an agreement. In an effort to accommodate Ber-nardinas requests, Draper subsequently instructed SCB to modify the building plans by adding more parking spaces and changing the design of the building\u2019s facade.\nGuthman testified that, after the initial meeting with Bernardini, the two met for lunch on August 1, 1997. Guthman stated that he was certain of this date because it was noted in his diary. On cross-examination, Guthman was asked about an affidavit filed prior to trial in which he averred that this meeting took place \u201c[sjhortly after\u201d the initial meeting. When questioned about the discrepancy, Guthman stated that he was sure that the second meeting did not take place prior to August 1, 1997. According to Guthman, Bernardini mentioned at the meeting that some residents wanted the property down-zoned. Guthman testified, however, that Bernardini did not express an intention to introduce a down-zoning ordinance; rather, the alderman merely asked whether the density of the building could be reduced. Bernardini, on the other hand, testified that, following the initial meeting, he had \u201cregular periodic discussions\u201d with Guthman when the two of them would see each other at zoning committee meetings or social affairs. When asked when he first mentioned to any Draper representative that he was considering the possibility of down-zoning the property, Bernardini stated that it was \u201cshortly after\u201d his first meeting with them. Bernardini testified that he told Guthman that he was getting an increasing number of neighborhood complaints about the project, that he had been asked to down-zone the property, that down-zoning was \u201ccertainly a consideration if they weren\u2019t able to reach a compromise,\u201d but that he was hopeful that a compromise could be reached. Bernardini did not think that this conversation with Guthman took place as late as August 1, 1997, and reiterated that it was shortly after the initial meeting. He further testified that he made it clear to Guthman from very \u201cearly on\u201d that, if no compromise was reached, the property would be down-zoned. Guthman testified that, following the second meeting with Bernardini, he reported to Draper that the alderman had been asked to down-zone the property and that it was important to find a way to resolve the matter.\nIn October 1997, Draper representatives met with Bernardini and showed him the revised plans for the project. Bernardini told them to show the plans to the community representatives. VanSenus testified that the alderman did not mention at the meeting that he was going to down-zone the property. According to Guthman, he again spoke to Bernardini sometime after October 22, 1997. Guthman stated that it was at this chance meeting that Bernardini expressed an increased sense of urgency regarding the need for Draper to reach a compromise with the community representatives. It was Guthman\u2019s understanding that Bernardini was holding out the introduction of a down-zoning ordinance as a threat to cause Draper to negotiate with the community organizations.\nIn early November of 1997, Bennett met with members of the Near North Preservation Coalition (NNPC), a neighborhood group which opposed the high-rise building. Among the NNPC members present at the meeting was Jim Gidwitz, who could not recall the exact date of the meeting, but acknowledged that it took place \u201cby November 14.\u201d Gidwitz told Bennett that the NNPC was generally opposed to the construction of new high-rises in the area and that the density of the proposed building was the major concern. Bennett stated that he told the NNPC members that Draper \u201cwould do anything to cooperate with the neighborhood,\u201d so long as the \u201ceconomics of the property\u201d would not be jeopardized. Gidwitz, however, stated that, given the parties\u2019 divergent positions on the matter, namely, NNPC\u2019s opposition to the construction of high-rises in the area and Draper\u2019s proposal to build a high-rise, \u201cthere didn\u2019t seem to be any common ground or ability to create any common ground\u201d between their two positions.\nOn November 17, 1997, members of the NNPC met with Bernar-dini and requested that he introduce a down-zoning ordinance. Ber-nardini stated that he was never uncertain about supporting such an ordinance. According to the alderman, he was trying to give the parties as much time as possible to reach a compromise, but that it was his intention from very early on \u201cthat[,] if a compromise was not reached that was satisfactory to the community, that [he] would introduce and support a down-zoning ordinance.\u201d To this end, the alderman agreed to introduce the ordinance at the next city council meeting. Upon learning of Bernadini\u2019s plan, Guthman went to see him on November 19, 1997, and asked that he not submit the ordinance. Guthman told the alderman that it was his understanding that real progress was being made between Draper and members of the community toward a compromise and that the introduction of such an ordinance would be detrimental to the negotiations. According to Guthman, Bernardini agreed to wait until the next council meeting to submit the ordinance but, in return, asked that Draper not file its Part II Submittal before then. Guthman agreed and stated that he believed negotiations with the community members would continue in the following weeks. Bernardini, however, denied having asked Draper to delay filing its Part II Submittal.\nBy December 10, 1997, the date of the next Chicago city council meeting, no compromise had been reached and Bernardini introduced the down-zoning ordinance on that date. Bernadini stated that, while the down-zoning process was taking place, he had still hoped that the parties would reach a compromise. The following day, SCB submitted a Part II Submittal for the project to the Department of Planning. Draper representatives met with members of the NNPC on several more occasions, but the parties were unable to reach an agreement. On April 29, 1998, the Chicago city council approved the down-zoning ordinance, which became effective on May 20, 1998. LSA never received a response from the Department of Planning concerning its Part II Submittal.\nFollowing the trial on count I, the circuit court entered judgment in favor of the City defendants and the intervenors. Finding that the circuit court erred in applying the \u201cpending ordinance\u201d doctrine, we reversed the judgment on appeal and remanded the case to the court with directions that it issue a writ of mandamus requiring the Commissioner to issue the Part II Approval letter requested by LSA. 1350 Lake Shore Associates v. Hill, 326 Ill. App. 3d 788, 761 N.E.2d 760 (2001) (hereinafter referred to as Lake Shore I).\nOn remand, the intervenors filed a motion for declaratory judgment, seeking a declaration that LSA is not entitled to a zoning certificate or a building permit in connection with the plans for which this court ordered that a Part II Approval letter be issued. Thereafter, LSA filed a second-amended complaint. In count I of that complaint, LSA sought similar relief as it originally requested in count II of its first amended complaint, which it voluntarily dismissed; namely, orders requiring the zoning administrator to issue it a zoning certificate and enjoining the City and its agents from applying any provision of the Chicago zoning ordinance which would prevent it from exercising its rights pursuant to RPD 196. In its third-amended complaint, LSA substituted Alicia Mazur-Berg, the current Commissioner at the time, for Christopher Hill, her predecessor. The parties consented to having the circuit court decide the issue of LSA\u2019s entitlement to the relief at issue based upon the evidence introduced at the trial on count I of LSA\u2019s first amended complaint.\nOn May 31, 2002, the circuit court entered judgment in part in favor of LSA on count I of its third-amended complaint, directing the Commissioner to issue LSA a Part II Approval letter. However, the court also held that LSA did not have a vested right to the issuance of a zoning certificate or building permit for the development of its proposed high-rise building and: (1) entered judgment in part in favor of the City defendants and the intervenors on count I of the complaint, thereby denying LSA\u2019s request for orders requiring the zoning administrator to issue it a zoning certificate and enjoining the City and its agents from applying any provision of the Chicago Zoning Ordinance which would prevent it from exercising its rights pursuant to RPD 196; and (2) granted the intervenors\u2019 motion for a declaratory judgment. In its order, the court specifically found that the expenses associated with the project were not incurred \u201cin good faith reliance on the continued zoning classification, but rather were incurred in the hope of reaching a compromise.\u201d\nOn appeal, we found that LSA\u2019s vested rights claim required additional findings of fact to be made by the circuit court. Accordingly, we reversed those portions of the circuit court\u2019s order denying LSA\u2019s request for an order enjoining the City and its agents from applying any provision of the Chicago Zoning Ordinance which would prevent it from developing the property in accordance with the terms of RPD 196; and granting the intervenors\u2019 motion for a declaratory judgment that LSA is not entitled to a zoning certificate or a building permit pursuant to RPD 196. 1350 Lake Shore Associates v. Mazur-Berg, 339 Ill. App. 3d 618, 641, 791 N.E.2d 60 (2003) (hereinafter referred to as Lake Shore II). We remanded the matter to the circuit court with directions that it make specific findings as to: (1) the date on which LSA knew or should have known that it was probable that Bernardini would introduce a down-zoning ordinance; (2) the total amount of the expenses which LSA had incurred in connection with the project as of that date; and (3) whether those expenses were substantial enough to give rise to a vested right to the issuance of a zoning certificate and building permit pursuant to RPD 196. Lake Shore II, 339 Ill. App. 3d at 641.\nOn October 15, 2004, the circuit court issued a written memorandum order in which it determined that: (1) LSA knew it was probable that Bernardini would introduce a down-zoning ordinance \u201con any date after the April-May 1997\u201d meeting between the alderman, Guth-man, and the Draper representatives; (2) as of that date, LSA incurred expenditures in the amount of $18,900.16 in connection with the project; and (3) the expenses were not substantial enough to give LSA a vested right to the issuance of a zoning certificate and building permit pursuant to RPD 196. The court again entered judgment in favor of the City defendants and the intervenors on count I of LSA\u2019s third amended complaint. LSA now appeals.\nLSA contends, as it did before our remand of this cause, that the circuit court erred in entering judgment in favor of the City defendants and the intervenors on count I of its third-amended complaint. It argues that all three of the circuit court\u2019s findings are against the manifest weight of the evidence or contrary to law. Before examining the court\u2019s specific findings in this regard, we first set forth certain well-settled principles necessary for our resolution of the issues before us.\nIn Lake Shore II, we noted that there is generally no vested right to the continuation of a zoning ordinance. Pioneer Trust & Savings Bank v. County of Cook, 71 Ill. 2d 510, 517, 377 N.E.2d 21 (1978). However, Illinois courts have recognized an exception to this rule. As our supreme court stated in People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill. 2d 183, 191, 157 N.E.2d 33 (1959):\n\u201c[WJhere 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 the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classification.\u201d\nThe determination of whether a property owner has obtained a vested right to the issuance of a zoning certificate and building permit pursuant to a particular zoning ordinance rests on the resolution of two questions. First, it must be determined which of the expenses the property owner made or obligations it incurred were done in good-faith reliance on the probability that it would obtain a zoning certificate and building permit pursuant to the current zoning ordinance. American National Bank & Trust Co. of Chicago v. City of Chicago, 19 Ill. App. 3d 30, 34, 311 N.E.2d 325 (1974). Second, it must be determined whether those expenditures or obligations were substantial. American National Bank & Trust Co., 19 Ill. App. 3d at 34; People ex rel. Shell Oil Co. v. Town of Cicero, 11 Ill. App. 3d 900, 904, 298 N.E.2d 9 (1973). 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\u2019s current zoning. Lake Shore II, 339 Ill. App. 3d at 634.\nThe circuit court\u2019s finding on the issue of whether a property owner has a vested right to the issuance of a zoning certificate and building permit will not be set aside on review unless it is against the manifest weight of the evidence. Pioneer Trust & Savings Bank, 71 Ill. 2d at 516-17; Industrial National Mortgage Co. v. City of Chicago, 95 Ill. App. 3d 666, 671, 420 N.E.2d 581 (1981). That is to say, only when an opposite conclusion is clearly evident or the factual findings on which it is based are unreasonable, arbitrary, or not based on the evidence will we find a judgment to be against the manifest weight of the evidence. See Brody v. Finch University of Health Sciences/The Chicago Medical School, 298 Ill. App. 3d 146, 153, 698 N.E.2d 257 (1998). Matters relating to the credibility of witnesses or the weight to be accorded the evidence are within the province of the circuit court to decide. Kleidon v. City of Hickory Hills, 120 Ill. App. 3d 1043, 1053, 458 N.E.2d 931 (1983).\nWe first turn the to the circuit court\u2019s finding as to the date on which LSA knew or should have known that it was probable that Ber-nardini would introduce a down-zoning ordinance. The court found that LSA had the requisite knowledge at the time Bernardini first informed Draper\u2019s representatives that, if no compromise was reached with the community representatives, a down-zoning ordinance would be introduced. In determining this date, the court focused on the conflicting testimony between Bernardini and Guthman with respect to their communications following their initial meeting in April or May 1997. Finding that Bernardini\u2019s testimony that the meeting took place \u201cshortly after\u201d the initial meeting between the parties to be more credible than that of Guthman on this point, the court held that, on \u201cany date after the April-May 1997 meeting,\u201d LSA knew or should have known that Bernardini was going to introduce a down-zoning ordinance.\nAs a preliminary matter, LSA first contends that the judgment should be reversed on the sole basis that the circuit court failed to follow our mandate instructing it to make a finding as to the specific date on which LSA knew or should have known it was probable that a down-zoning ordinance would be introduced. However, as will be discussed in further detail later in this opinion, the selection of a specific date was not possible based on the evidence presented at trial and we, therefore, reject LSA\u2019s first assignment of error.\nLSA next takes issue with the method the circuit court used to determine the date on which it knew or should have known that it was probable that Bernardini would introduce a down-zoning ordinance. It asserts that at no time did Bernardini threaten to down-zone the property; rather, he merely stated to Guthman and the Draper representatives that he would introduce a down-zoning ordinance if LSA could not reach a compromise with the community representatives. According to LSA, the relevant question is not, as the circuit court concluded, the date on which Bernardini relayed this information to Guthman. It argues that the relevant question turns on a determination of when \u201cit bec[a]me \u2018probable\u2019 that a compromise could not be reached with \u2018the neighbors,\u2019 and thus probable that the alderman would go ahead and introduce a down-zoning ordinance.\u201d LSA\u2019s argument is based on the premise that the alderman\u2019s statement to Guthman was conditional, and, until the condition was satisfied, there could be no probability of down-zoning. In other words, LSA argues that there could be no probability of down-zoning until there was a resolution of the question of whether the parties would reach a compromise or come to an impasse on the issue. To this end, LSA asserts that Draper, on its behalf, made considerable efforts to address neighborhood concerns by making modifications to the proposed building, as per the alderman\u2019s requests. It also contends that the only neighborhood organization given authority over this issue was the NNPC, which did not even come into formation until later in 1997, and, further, that it was not until November 1997 when members of the NNPC met with Draper representatives and concluded that a compromise would not be reached.\nThe record shows that, following the initial meeting between Bernardini, Guthman, and the Draper representatives in April or May 1997, Bernardini again met with Guthman. Bernardini testified that he told Guthman at this subsequent meeting that he was getting an increasing number of neighborhood complaints about the project, that he had been asked to down-zone the property, that down-zoning was \u201ccertainly a consideration if they weren\u2019t able to reach a compromise,\u201d but that he was hopeful that a compromise could be reached so that he would not have to down-zone the property. Bernardini testified that he made it clear to Guthman from very \u201cearly on\u201d that if no compromise was reached, the property would be down-zoned. Although Bernardini\u2019s statements may very well be characterized as conditional, namely, that he would down-zone the property if Draper did not reach a compromise with the neighbors in the area, we agree with the circuit court\u2019s finding that, when Bernardini relayed these statements to Guthman, Draper, acting on behalf of LSA, could \u201cno longer rely in good faith on the probability that a zoning certificate and a building permit would issue pursuant to RPD 196.\u201d Lake Shore II, 339 Ill. App. 3d at 640. There is no question that Bernardini wanted the parties to reach an agreement and hoped that they would be able to do so even after the down-zoning ordinance was introduced. However, Bernardini\u2019s statements to Guthman regarding his position were unequivocal. He told Guthman that he was asked to down-zone the property and that this was certainly a consideration if the parties could not reach a compromise. We believe a reasonable inference can be made that, when Bernardini relayed these statements to Guthman, it was at that point that Draper, acting on behalf of LSA, knew or should have known that, regardless of the success of any attempts at reaching a compromise with community members, it could no longer rely in good faith on the probability that it would be issued a zoning certificate and building permit in accordance with RPD 196.\nWe next turn to the question of when Bernardini relayed the above-referenced statements to Guthman. At trial, Guthman testified that he met Bernardini for lunch on August 1, 1997, at which time the alderman mentioned that some of the neighborhood residents wanted the property down-zoned. Guthman stated that he was certain of this date because he made note of the lunch in his diary. The court, however, found that Guthman\u2019s testimony was significantly impeached on this point based on his pretrial affidavit in which he placed the date of the meeting in question to be \u201cshortly after\u201d the April or May 1997 meeting. With respect to the discussion at issue, Bernardini stated that it occurred \u201cshortly after\u201d the spring 1997 meeting with Guthman, and that it definitely did not take place as late as August 1, 1997. The circuit court found Bernardini\u2019s testimony to be more credible on this point and found that the discussion described by both men actually occurred \u201cshortly after\u201d their initial meeting in April or May 1997. The court expressly acknowledged that its finding in this regard \u201cdoes not result in a firm, exact date.\u201d It refused, however, to speculate as to the exact date, stating that it was LSA\u2019s burden to establish the exact date on which it knew or should have known that down-zoning was probable. Accordingly, the court concluded that \u201cthe date that [LSA] was on notice that the introduction of the down-zoning ordinance was reasonably likely was on any date after the April-May 1997 meeting.\u201d\nGiven that it is the circuit court\u2019s function to assess the credibility of witnesses and the weight to be accorded the evidence, LSA does not challenge the court\u2019s credibility findings in any meaningful way. Instead, LSA contends that the circuit court erred in imposing upon it the burden to establish the exact date on which it knew or should have known that it was probable that a down-zoning ordinance would be introduced. Relying on American National Bank & Trust Co. v. City of Chicago, 19 Ill. App. 3d 30, 311 N.E.2d 325 (1974), LSA argues that \u201c[wjhatever burden [it] may have to demonstrate its right to the issuance of development permits, [it] surely is not required to prove an ongoing, continual right to rely on the law of the land.\u201d\nIn American National Bank & Trust Co., the petitioners sought a writ of mandamus directing the building commissioner of the City of Chicago to issue it a permit for the construction of a high-rise building. The circuit court ordered a peremptory writ of mandamus, requiring the respondents to issue the requested permit. On appeal, this court held that \u201c[i]t was for the respondents to show that the plan which would change the zoning of the petitioners\u2019 land was known to the petitioners prior to the time that substantial expenditures were made.\u201d American National Bank & Trust Co., 19 Ill. App. 3d at 35. To the extent that American National Bank & Trust could be read as placing the burden of proof on the defendants rather than the plaintiff, we decline to follow it in light of the weight of authority placing the burden of proof on the party claiming an entitlement to a vested right. See People ex rel. National Bank of Austin v. County of Cook, 56 Ill. App. 2d 436, 447-48, 206 N.E.2d 441 (1965) (the burden is on the plaintiff \u201cto prove a clear right that they had, while acting in good faith, expended substantial sums and incurred substantial obligations\u201d); Zeitz v. Village of Glenview, 304 Ill. App. 3d 586, 594, 710 N.E.2d 849 (1999).\nWe conclude that the circuit court properly found that, as the party charged with proving its entitlement to a vested right, LSA had the burden to demonstrate the exact date on which it knew or should have known it was probable that Bernardini would introduce a down-zoning ordinance. LSA failed to satisfy its burden on this point. After making its credibility findings and determining the weight to be accorded the conflicting testimony, the circuit court could only conclude that \u201cshortly after\u201d the initial spring 1997 meeting or, in other words, on \u201cany date after the April-May 1997 meeting,\u201d LSA knew or should have known that it was probable that Bernardini would introduce a down-zoning ordinance. We cannot say, based on our review of Bernardini\u2019s testimony, that the circuit court\u2019s finding in this regard is against the manifest weight of the evidence.\nWe next turn to the circuit court\u2019s finding as to the total amount of expenses which LSA had incurred in connection with the project prior to the date when it knew or should have known that it could no longer rely in good faith upon the issuance of a permit pursuant to RPD 196.\nDuring trial, LSA introduced into evidence an exhibit entitled \u201cDevelopment Expenditure Summary\u201d and numerous invoices detailing the expenses Draper incurred on LSA\u2019s behalf in connection with the project. The invoices were from the following entities: Guthman\u2019s law firm, Shefsky and Froelich, Ltd.; SCB, the architect; Chicago Guarantee Survey Company (Chicago Guarantee), a land surveying company; John J. Urbikas & Associates, an elevator consultant; the studio of James C. Smith, an architectural illustration company; and Okrent Associates, a company which does three dimensional computer modeling and simulation. The circuit court carefully itemized the expenses which LSA incurred at various time periods and concluded that, as of May 21, 1997, LSA incurred $18,900.16 in expenses; as of August 1, 1997, $133,348.81 in expenses had been incurred; and by October 22, 1997, LSA incurred $181,778.06 in expenses. Because the circuit court was unable to make a finding as to the exact date upon which LSA knew or should have known that it was probable that Ber-nardini would introduce a down-zoning ordinance, it concluded that expenses incurred after May 21, 1995, were not incurred in good-faith reliance upon the issuance of a permit in accordance with RPD 196. Accordingly, the court found that \u201cshortly after\u201d the initial meeting in April or May 1997, Draper incurred expenses on behalf of LSA in the amount of $18,900.16.\nLSA first takes issue with the circuit court\u2019s decision not to credit LSA for architectural expenses incurred in the amount of $94,000, until August 1, 1997. Resolution of this issue turns on a determination of when Draper, on behalf of LSA, assumed the financial risk for the preparation of architectural drawings for the project.\nThe evidence at trial shows that, in February 1997, Draper hired SCB to render architectural services, and the services were to be completed during different phases of the project, the first of which was defined as the \u201cconceptual\u201d phase. In a letter dated February 4, 1997, Draper confirmed that SCB would be performing conceptual architectural work at its own risk and that, in the event that Draper had to terminate the project for any reason, SCB would not be paid for those services. The letter further provides that SCB was not authorized to \u201cgo beyond the \u2018conceptual\u2019 phase\u201d of the project and that such authorization would be contained in formal contracts to be executed by the parties. In a subsequent June 25, 1997, letter from SCB to Draper, there is no discussion concerning which party bore the financial risk of the project as of that date, but a proposed fee of $94,000 for SCB\u2019s conceptual services was given. A July 11, 1997, internal memorandum between Draper employees indicates that it still did not intend to assume the financial risk for conceptual architectural services. In summarizing the costs and timing of the project, the memorandum states that the \u201c[tjotals assume that SCB will not be paid for conceptual drawings (proposed fee of $94,000) until it is determined that [the] project will go forward.\u201d On July 28, 1997, however, Draper sent SCB a memorandum authorizing it to move beyond the conceptual phase. It specifically states that Draper \u201c[has] authorized SCB to take the lead in contracting, scheduling and coordinating the various design and testing activity required for this project to advance to the Part II zoning review, and if all goes well to that point, on to the securing of a foundation permit.\u201d On August 1, 1997, SCB sent Draper a bill in the amount of $94,000 for its conceptual services rendered. Based on the forgoing evidence, the circuit court concluded that Draper, acting on behalf of LSA, had incurred the expense for the preparation of conceptual architectural drawings as of July 28, 1997, but not before that date. Although LSA maintains that the $94,000 should have been counted with the expenses incurred as of May 1997, we find that the evidence supports the circuit court\u2019s decision not to include the amount until Draper finally assumed financial responsibility for SCB\u2019s services.\nAs its next assignment of error, LSA contends that the circuit court \u201crefused to credit [LSA] for the extensive time and effort incurred on its behalf by Draper[\u2019s] *** employees.\u201d LSA argued in the circuit court that, by June 30, 1997, Draper\u2019s employees performed 738 hours of work on the project amounting to a total expenditure of $100,287.50. The circuit court, however, held that internal employee expenses are to be excluded from the calculation of the total amount of expenses in a vested rights case, finding that this court\u2019s decision in People ex rel. National Bank of Austin v. County of Cook, 56 Ill. App. 2d 436, 206 N.E.2d 441 (1965), was dispositive of this issue.\nIn National Bank of Austin, the plaintiffs sought a writ of mandamus directing the county to issue a zoning certificate and building permit for the construction of multiple-family dwellings on seven parcels of land. On appeal, the plaintiffs argued that they incurred expenses in the amount of $1,600, which represented the salaries paid to the employees who had worked on the proposed project. We rejected the plaintiffs\u2019 argument, noting that \u201c[a]t most, plaintiffs paid approximately $1,600 to employees who would have been paid whether they put in time on this project or not.\u201d National Bank of Austin, 56 Ill. App. 2d at 448. Because the employees would have been paid regardless of their time spent working on the construction project, we concluded that they failed to establish a substantial change of position in reliance upon the issuance of a building permit. National Bank of Austin, 56 Ill. App. 2d at 448.\nLSA attempts to distinguish the holding in National Bank of Austin by surmising that perhaps the Draper employees \u201cmay not have been kept on the payroll had 1350 [LSA] not sought to develop the Site.\u201d To the extent that LSA asks us to speculate on this point, we decline to do so. Moreover, as the circuit court noted, VanSenus was the only witness to testify as to the necessity of the work performed by the Draper employees. He stated that, in the event that LSA\u2019s proposed project had not existed, the Draper employees would either have worked on other projects or Draper \u201cwould have decreased the number of people, one of the two.\u201d We find this evidence inconclusive to establish that the Draper employees would not have been retained absent LSA\u2019s project. Because LSA has failed to establish that payments to Draper\u2019s employees constituted a \u201csubstantial change of position, expenditures or incurrence of obligations\u201d, we conclude that the circuit court properly excluded from its computation of expenses any costs associated with the salaries paid to the Draper employees.\nHaving rejected LSA\u2019s arguments with respect to the circuit court\u2019s computation of expenses, we conclude that the court\u2019s finding that LSA incurred expenses in the amount of $18,900.16 prior to the time that it knew or should have known that it could no longer, in good faith, rely upon the issuance of a building permit pursuant to RPD 196 is not against the manifest weight of the evidence.\nWe now turn to the question of whether the $18,900.16 incurred by LSA is \u201csubstantial\u201d enough to give rise to a vested right to the issuance of a zoning certificate and a building permit pursuant to RPD 196.\nNo Illinois case has provided any clear guidelines as to how to measure substantiality in a vested rights case. See National Bank of Austin, 56 Ill. App. 2d at 444 (\u201cno Illinois case has defined \u2018substantial\u2019 \u201d). Our research has revealed countless decisions addressing whether the expenses incurred in those particular cases were substantial enough to give rise to a vested right. However, the majority of these cases list the expenditures and obligations incurred by the landowner and then reach a conclusion as to whether the amounts were substantial enough, without further analysis. See, e.g., Deer Park Civic Ass'n v. City of Chicago, 347 Ill. App. 346, 106 N.E.2d 823 (1952); People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill. 2d 183, 157 N.E.2d 33 (1959); Illinois Mason Contrac tors, Inc. v. City of Wheaton, 19 Ill. 2d 462, 167 N.E.2d 216 (1960); Mattson v. City of Chicago, 89 Ill. App. 3d 378, 411 N.E.2d 1002 (1980). What is clear from our review of these cases is that there is no bright-line rule for determining the substantiality of expenses incurred by a landowner in good faith reliance upon the issuance of a building permit.\nThe parties first disagree as to whether we should employ a \u201cproportionality test\u201d in determining whether a substantial sum was expended. This test compares the amount of expenses incurred to the projected costs of the development. LSA argues that we should not use such a test because the court in American National Bank & Trust clearly stated that \u201csubstantiality is determined without regard to any proportional test.\u201d American National Bank & Trust, 19 Ill. App. 3d at 34. The City, on the other hand, argues that proportionality is indeed a relevant factor which we should consider in our analysis. In support of its argument in this regard, the City relies on the more recent decision in Zeitz v. Village of Glenview, 304 Ill. App. 3d 586, 710 N.E.2d 849 (1999), wherein the court implicitly considered proportionality by comparing the landowner\u2019s expenditures of $38,000 \u201cin relation to the property\u2019s value of more than $1 million.\u201d We agree with the City\u2019s position on this point.\nAlthough the court in American National Bank & Trust rejected the use of a proportionality test, it did so without any explanation. The court cited to the decision in National Bank of Austin-, however, nowhere in that case does the court even mention the concept of proportionality. We find no reason why proportionality should not be considered in determining whether substantial expenditures have been made by a landowner. We believe that the amount spent on a proposed development when viewed in relation to the total costs of the project is very relevant to this question. A developer who spends $20,000 on a project estimated to cost $40,000 is in a quite different position than a developer who spends $20,000 on a project estimated to cost $1 million. Arguably, the former developer could be said to have incurred substantial expenditures, while the same cannot be said in the latter situation. Accordingly, we conclude that proportionality is a factor to be considered in a vested rights analysis.\nAside from proportionality, we believe that a court should take into consideration additional factors such as the purchase price of the land (see American National Bank, 19 Ill. App. 3d at 34-35), the amount of expenses incurred, and the character of the entity incurring the costs, for what might be considered a large investment for an individual homeowner could be considered minimal for a large land developer. These examples are by no means intended to be an exhaustive list of factors. Rather, we have cited these examples merely to illustrate that any factor which is relevant to the question of substanti-ality should be considered. We believe that, in determining substantiality, a court should employ a totality-of-circumstances approach, rather than measure substantiality in terms of absolute dollars only.\nTurning to the instant case, the trial court concluded that, in the relevant time period defined as \u201cshortly after\u201d the initial meeting between the parties in spring 1997, Draper incurred expenses in the amount of $18,900.16 by retaining the services of various architects, surveyors, attorneys, consultants, and graphic designers to work on the project. LSA contends that, in making these calculations, the circuit court ignored invoices from Chicago Guarantee and SCB in the amounts of $9,905 and $7,500, respectively. However, even taking these figures into account, LSA would have spent approximately $36,300 before it knew or should have known that it could no longer rely upon the issuance of a building permit pursuant to RPD 196. LSA\u2019s witnesses at trial estimated the value of the land to be $6 million and the cost of the project to be $70 million. We believe that, looking at the totality of the circumstances, expenses incurred in the amount of $36,300 are wholly insubstantial when viewed in relation to the $6 million value of the land and the $70 million cost of the project. Further, Draper, acting on behalf of LSA, is certainly not an entity for which $36,300 could arguably be considered a substantial expenditure. Based on the evidence presented, we cannot say that the circuit court\u2019s finding that LSA failed to establish that it incurred obligations or expenses substantial enough to give rise to a vested right to the issuance of a zoning certificate and building permit pursuant to RPD 196 is against the manifest weight of the evidence.\nFor the forgoing reasons, we affirm the circuit court\u2019s judgment: (1) denying LSA\u2019s request for an order enjoining the City and its agents from applying any provision of the Chicago Zoning Ordinance which would prevent it from developing the property in accordance with the terms of RPD 196; and (2) granting the intervenors\u2019 motion for a declaratory judgment that LSA is not entitled to a zoning certificate or a building permit pursuant to RPD 196.\nAffirmed.\nTHEIS and ERICKSON, JJ., concur.\nCount III was later amended in LSA\u2019s fourth-amended complaint to seek a declaration that a later-enacted 90-foot height limitation ordinance was also void. Following the trial, the circuit court entered judgment in favor of the City defendants and the interveners on count III, finding that the challenged ordinances are constitutionally valid as applied to the property. We affirmed the circuit court\u2019s judgment in 1350 Lake Shore Associates v. Casalino, 352 Ill. App. 3d 1027, 816 N.E.2d 675 (2004).", "type": "majority", "author": "PRESIDING JUSTICE HOFFMAN" } ], "attorneys": [ "DLA Piper Rudnick Gray Cary US LLP, of Chicago (Thomas F. Geselbracht and Kenneth L. Schmetterer, of counsel), for appellant.", "Mara S. Georges, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Kerrie Maloney Laytin, of counsel), for appellees Denise M. Casalino and City of Chicago.", "Hedlund & Hanley, LLC, of Chicago (Reuben L. Hedlund, Jack Joseph, and Sarah J. Deneen, of counsel), for other appellees." ], "corrections": "", "head_matter": "1350 LAKE SHORE ASSOCIATES, Plaintiff-Appellant, v. DENISE M. CASALINO, Commissioner, The Department of Planning and Development of the City of Chicago, et al., Defendants-Appellees (Edward T. Joyce et al., Intervenors-Appellees).\nFirst District (3rd Division)\nNo. 1-04-3379\nOpinion filed December 28, 2005.\nDLA Piper Rudnick Gray Cary US LLP, of Chicago (Thomas F. Geselbracht and Kenneth L. Schmetterer, of counsel), for appellant.\nMara S. Georges, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Kerrie Maloney Laytin, of counsel), for appellees Denise M. Casalino and City of Chicago.\nHedlund & Hanley, LLC, of Chicago (Reuben L. Hedlund, Jack Joseph, and Sarah J. Deneen, of counsel), for other appellees." }, "file_name": "0806-01", "first_page_order": 824, "last_page_order": 841 }