thank you mister conway are you ready to proceed yes your honor thank you may go ahead good afternoon sean conway behalf of the defendant the city were dealt this case involves the administrat matter so we know this court on ministering to review reviews the decision of the administrative agency nothing decision of the trial court we know that this court does not rea competing evidence in the record we know that this court does not substitute its judgment on the competing evidence in the record and in significantly corning to the  cited in the papers if there is any evidence in the record that supports the administrative decision the decision must be affirmed and i'm in here as to all of the issues located in the town center business district in the city of what del the town center business district is primarily dedicated to commercial uses business uses  located on the irving park court or in the city which is the main corridor or dedicated to the city's business and commercial establishments residential use of property is allowed in the town center business district so long as property owner seeks an up hands a special use permit which is ultimately granted by the city council and it is undisputed that  special so that's undisputed that's in the record that's in the stipulations so from a bare bones perspective the violation itself is supported in  at the administrative hearing plaintiffs raised a number of affirmative defenses which to fit didn't defend and are i'm sorry plaintiff argued excuses plaintiff from the special use permit requirement under the primary argument that point to for a his was that plaintiff plaintiff's property is a is legal non conforming for residential use  in the t c b district by virtue of the prior or owner's residential use of the property the city's position is that the prior owner's residential has been discontinued for a period of twelve consecutive months or whenever there is evidence a clear intent on the part of the owner to abandon the non complying use such you shall not enter being discontinued or abandoned be reestablished so turning to the record what is the record show record shows that the prior owner vacated the property in two thousand and seven that the property room remained not as a residential building and that the prior owner took no steps to reestablish her residential occupancy of the property so in terms of discontinuance clearly there is evidence in the record there's a stipulation in the record of page eighty seven that shows the property had been discontinued for residential use in excess of twelve months additionally there is evidence in the record that shows i'm sorry the prior owner abandoned residential use of the property and again going back to the standard and administrative review the standard is is there any evidence in the record to support the ministry of decision in clearly there is is to this legal non conforming issue plaintiff next argued that the city is are by the principles of equitable a stop all in latches from enforcing code as we know courts are reluctant to apply these principles against municipalities in the only do so in compelling and extraordinary is an attorneys and he's a real estate agent doing business in the city plaintiff made it dependent determinations upon review of the city zoning regulations that the property retained its legal non conforming residential status when he purchased the property in two thousand and ten prior to interacting with any city age so he made this determination this conclusion on his own there was no reasonable reliance on the city egypt's plaintiff is a member of the m the record that the m l s listing in the property history report clearly indicated back in two thousand and seven and all the way through the time plaintiff purchased the property that the property was on the market for an office tech y additionally the city's former community development director and vice points in two thousand and ten that the property likely lost its non conforming status because of the property have been vacant for three plus years in as a residential bone so as early as august two thousand and ten plaintiff was on notice that a special use permit was required for use of this property that is in the record against under the standard precluded the city from enforcing its owning regulations specifically plaintiff argued that the prior administrative proceeding that was before the city's building board of review not ours excuse me building where of appeals dedicated to resolving building code issues precluded the city's enforcement of its zoning codes regulations in the nd proceeding we know that for collateral sto apply the issue in the st proceeding that was actually decided must be identical to the issue in the nd proceeding if we want to get the decision of the building of review we see there and that is that is in the record what we see is the written decision makes no mention of the special use permit requirement it does not pass and whether or not plaintiff was required to obtain a special use permit so clearly collateral estoppel does not apply in this matter so these are the issues that point of raised at the ministry of proceeding there is ample evidence in the record to support the ministry of decision in this regard and we request and respectfully request this court  the ministry of decision innocent tired thank you thank you justice just a do you have questions i do you're if you're indicating that the standard of review is you said then i agree with you let me ask you this if we talk you hit on equitable stoppel why would an applicable stoppel apply here when you have a man who received i don't know somewhere around arguing which party's evidence carries more weight than the others well more what the court is looking at in mind view is whether there is any evidence in the record to support the administration of decision in this regard it as i as i noted previously there is a there is a reasonable reliance component to equitable sample there is also a substantial injustice one his own legal determination prior to any interaction with the city that the property retained a legal non conforming status obviously that was an errant conclusion  attorney but how about mister forrest testimony when he continued to give him these permits and he even testified that in his opinion there was no abandonment he believed that it was marketed as a single it back in two thousand and ten that said why did he continue to give him a building permit under non conforming use why did he not say at that time hey you can't have these based upon a non conforming use this is not a non conforming use did he do that so judge that the the property could be used as a residential property obviously with a special use  property could also be used for commercial purposes an arrest i understand that i understand that but how do how do we not rely on the testimony of mister forrest to specially if we're looking at an right and what i would say is we recognize there is evidence in the record that is supportive of the plaintiff position but we also stress there is considerable evidence in the record in support of the city's position and you know if we were making a closing argument before the hearing officer in the ministry proceeding we'd be making these arguments about which you know which evidence is more persuasive which evidence carries more weight but the consideration here isn't which carries more weight is is there evidence in the record that supports the agency decision in there absolutely is and we sent to it in our figures ok i understand what you're saying let me ask you this in that stipulation there was a issue talking about the vacancy  period with stipulated to that in the stipulation there was an extra star right next to it what does that x or that star mean is it stipulated to because it wasn't crossed out my and there wasn't anything in that discussion to indicate that particular stipulation was was disregarded ok well i guess i have a lot of questions but if your position is that any of the questions i asked don't raise a clearly erroneous question i mean i'm still i'm still looking at trot out when he said that he continued to communicate there i'm sorry mister forest where he said he continued to communicate with toronto that the property can continue to be used as a single family home he told him it was the best interest of the city in a letter he copied the city manager the attorney the aldermen the mayor isn't that relevant even to a clearly erroneous standard judge i think that's relevant for making closing arguments before the hearing officer in the ministry of proceeding but what is also true is earlier than all of that plaintiff was put on notice by mister forrest that the property required a special use permit and that is it was being considered as to that residential use being considered as discontinued that is also in the record but also isn't it in the record that he wasn't told until two thousand and eighteen when he went to get the window that he needed a special use permit no i it's our contention in august of two thousand and ten in the record of page five hundred and twenty five that residential his residential use of the property in the before district at that time require major commercial thoroughfare of the city obviously because residential use is been made specially use in that district it's it's not it's not encouraged that said it's also not prohibited that's something obviously that the city would want some control over and they could be quite allow it they could put conditions on that could require that use as opposed to running with the lamb they could require that use cease per change in ownership so yeah i think the spirit of that with the previous owner the city was required to post it no i q pencey it just simply was on fit for anything i'm an occupant based on the condition so it was going to require improvements whether it was use knew the status of the property how do you have to prove that we can infer it nor could the administrative agency right is so in in a morgan place with the court determined was that the architect for the property owner knew or should have known the requirements of the of the city code concerning the property and then yes i really said he did know in kind of ignored it wasn't there that he was aware of the city code regulations he conducted his own independent review of those regulations and he was aware of obviously the prior owners use he purchased the property from a prior owner review evidence in the record the decision should be affirmed let's talk about the fee quickly you indicate that he forfeited the argument a fee because he didn't raise them in the available upon a finding by the court on a ministry to review that the ministry of decision is or was arbitrary and capricious and we know that th and we know that the arbitrary and capricious standard is its own independent standard just as we have the standard for clearly erroneous the sessions just as we have the standard for decisions that and therefore feeds simply are not available under the statute book beyond that your honor the fees are permissive in the statute in other words even if judge we can ha that the decision was arbitrary and capricious she still was not obligated to issue fees and of course in arguing the fee motion judge wheaton explained that the decision was not to earlier in the course of your argument in justice just followed up by and during the course of the negotiations with mister trial i believe there were multiple building permits or issued to him and some course at some point in the course of these negotiations and permits  you said that a notice was sent out to him telling him that he may need to apply for a special use that he may not be in conformity with the ordinance is that correct yes wrong in fact that that occurred very early on almost months after mister trying to purchase the property and yet mister treadwell continued to resupply for receive building permits correct correct which he could he could receive a building permit to improve the property bring issuing building permits for mister trying to improve the property it could be used for allowable purposes but i guess my specific question is in the course of all these permits all of this negotiations that anyone in behalf of the city ever sen him a letter or a notice stating that he had lost the right to occupy the property as a legal non conforming use anyone ever give them that notice judge what the city did back in for residential use who would require special use permit i understand that will come out here in the very beginning let's assume that is true did anyone ever tell him that he had lost the right to occupy the premises as illegal non conforming use and he had and then apply for special use that anyone tell him that specifically no one in and they and they were not required to do this i understand that they tell them that no you're right as you probably know under the case law held that the term discontinued within a zoning ordinance requires more than a mere suspension of a non conforming use it's essentially equivalent to an abandonment of the use or it speaks in terms of abandoning the right to access to the m l s and the he is the one who submitted the m l s listing that showed it as an office tech building missile bosky took no steps to reestablish a residential occupancy the property when it let me stop you right there it's my understanding clearly from the evidence and tell me if i've missed something this is about ascii although he was given notice of continue to stay there during the day slept somewhere else at night put in the hot water heater occupied in excess of twelve months and let me follow up on that is that your position and they can see a lot of the stablish as a discontinuation or an intent to abandon is that your legal position no your honor and that would be because of the the fact that the property was listed as an office when i was a residential building and the fact that the prior owner did not take any steps to reestablish re occupancy including fixing the property up for that purpose  what do you make of most of the busking and i believe you're probably not going to dispute this wasn't he continuing to stay there during the day is that my judgment that is that's the testimony of one wit we also have the winners from john forrester in my opinion contradict the testimony we have the stipulation that the building was the can in an occupied in excess of twelve months which in my view contradicts that testimony and again we're here on administrative review we're not really weighing the evidence what we're doing is we're trying to confirm whether there is any  you those are your questions judge hudson thank you just as you know all right i just have one most of all the rest have been asked mister conway there's been some discussion of a letter sent by the city a couple of different dates the one i'm thinking of as december th did that letter indicate that the city was not pursuing a course of action that the non conforming status of that building had expired  that's fine thank you all right i think you would alter all our questions at this time of mister conway for this part of the argument so well turn to you mister wyler you have the fifteen minutes uninterrupted constructed lawfully as a residential use the only reason that it would be that we are having this conversation is that there was a change in the ordinance which  made his due diligence inquiries into this property he was specifically told and it's on rebut it that he was specifically told that the records of the city showed that this property was residential the city had taken no action whatsoever to change that had made no indication that there was any facts that would that would actually structures have been bacon for three plus years any nonconforming status they enjoyed has now expired it is not the intention of this department to pursue this course of action at this time as restoration of these structures and re occupancy seems more advantage not only to the city but to you as the owner not only did the city indicate that letter says we have taken no action to change the if to change the status of this property from its non conforming use we could but were determining that we will not do that and that it's to the city's advantage the epidemic's was clear and unremembered it that from the city's perspective the city's perspective every witness from the city who understood and looked at and  observed the facts made the determination that that is a browser he had never abandoned this use that she was involuntary displaced from the property but that from the minute she was displaced she made continuous albeit slow efforts to restore herself the to that use and that she had not abandoned or forfeit it to all of the evidence and all of the testimony was that based upon what we saw zacky do that the that the evidence that the use was never abandoned that it was the policy of the city that was correctly applied to these circumstances that said that as long as the property owner was making efforts that there would be no action taken to invalidate that non conforming use mister travel was given this letter and this letter not only sad as that they're not going to take action to to effect the non conforming used but it then went on to discuss how the how the residential property section of the property there were two properties that were involved in that letter the two neighboring properties one which was a residence in one which was a commercial that letter continued to indicate what had to what what policies applied to the residents and what applied to the one  dollars building as well so that letter can not be read as being to the end it's interesting that the city now says well this it is that this letter clearly says that that we're going to disavow the non conforming use but then also says well it's sort of vague so it can't have it both ways and we believe that it that based upon the evidence that there is no issue with respect to the forfeiture of this not conforming us even if there was the this statute that article to attempt point two hundred and two b three which counsel indicated was the basis of their this property to begin with the documents that he gets from the city indicate that it's residential he observes exactly making efforts to continue that use no one ever told him in that two diligence process that this process that this non conforming use that if any action had been taken if they were going to take that action it shouldn't have it shouldn't have waited eight years to do that the st time that it made any indication that mister trados occupancy of this property was in any way in lawful was eight years later it was in two thousand and eighteen when they said by the way you can't occupy this without a special use per permit and that was based upon a determination of the building code  administrator that said that after ten previous determinations to the contrary that all by the way you need a special use that was the st time that that was ever done and so if they are going to do that they cannot fail in the diligence in bringing an action they cannot create a delay that serves to prejudice the defendant and that they cannot have government officials taking a permit of actions that induces the property owner to take those actions those are all of that the they did determination all of the elements of lotteries which clearly applies to the situation additionally the agenda and the statement of what was before the board of building code review was that this very issue that he needs a special used because the non conforming used to previously b that determination was made to be to to not be sustained by the board of review that the building code enforcement officers determination to that effect which was contrary to all the previous determinations that have been made the board of review said that is not correct you should have issued this permit and we are ordering you to do so no appeal was taken  so then to come back in the face of its own tribunals which the which the ordinances say this is what should do the building code it ministre there makes a determination and for all of the determinations whether forest or krissy that they are the ones that make a determination as to whether or not the improvements made pursuant to a permits conform to its use and they are the people that  are to be making the determination as to the use forest indicated that the use was residential crissy eight years later says well maybe not the board of review says it's a presidential issue the  should apply to prevent the city from going against its own determination in its own body to say that despite that we're going to now accuse you of violating our zon we've so we start with the proposition that the records when mister trout oh st saw the st and indicated interest in this property that it was residential that there was no action taken that we have article ten to easy which examples this property from the application of the principles that the city is now trying to apply against them and then we ready specifically he held the the position of community development director which the statute specifically says makes him the building code this individual did this nine separate times and this isn't a situation in which the city says well you could have made those improvements to use it to to use it commercially opportunity to ask you questions on both yeah thank you and i was i was just getting to that and i was trying to reserve exactly five minutes and thank you for that not to say so that's a start we think that this is not only clearly erroneous and the standard here isn't whether or not there is say whether or not there is any evidence to support it that the the standard of review to sustain the court below was clearly as rony yes and that is whether the administrative decision upon view is that the reviewing court is left with the definite clear conviction that a mistake has been made and a mistake has been made and not only is that circumstances i cannot on behalf of my my client undertake a standard of review that is more rigorous than the standard of review that he was required to make in the administrative review which is clearly erroneous once it is determined that that that clear air has been made which the court indicated had been made on each and every can be made at either with a claim or shortly after after a determination has been made after the administrative regulation in the case of the administrative cases  after the determination has been made that they were invalidated this is the same situation here this claim was made within thirty days of the court's determination that the administrative review should be  intend to be considered or and tiredly fails to consider important aspects of the problem or office an explanation which runs contrary to the evidence in the record did evidence to the record was completely unreported and for this  for this administrative law judge to look at this and to and to apply the law in a way that he did could not possibly be anything but arbitrary and capricious with regard to counsel's comment that that attorneys fees are discretionary attorney's fees are always discretion or are often discretionary as as we had indicated in our brief  in terms of discretionary language however the court does have an obligation to make that call within the course of the manifest weight of the evidence and the manifest way to be evidence shows that this is believe was correct and the finding when there were there were no findings of the administratively of the administrative agency there was no explanation with regard to what what the basis of that  determination was and that's clear that the administrative review the administrative agency did not consider that that evidence and that's terse ruling that says well he's just liable  we think that there are important equitable principles here that were completely ignored and the and the court below recognize that to be the case and for the city to in the face of its own agencies determination that there was no basis upon which to require mister trotter oh to apply for a special  walk right through that determination and to say mister trotter we're going to put you through another or deal about the property after giving you ten building a total of ten building permits and then encouraged you many thing any differently for a presidential than what i've done or any then of course the evidence shows that the building permits required that they showed that the plans that he was making bedrooms that he was going to put in a washer and dryer that he was going to put  a great box for a washer and dryer that he was going to have that he was going to make those improvements council indicated without any evidence that this property was not up to code there's no indication in the record that that was the case there was a case that there was a water heater that made it down and habitable that was replaced when sakhi still on the property that she replaced that water heater and that she had that the property had significant overburden so property with them that there's no indication that anything else was not according to code and it didn't take a building permit to to empty this property of excess property and there and there isn't any indication that at the time these building permits were issued that that property had not been removed so to say that well he you know these permits were really issued because to fix building code violations that's not that's not the case and if there was the only indication would be there at the water service had to be separated from the commercial property which it had joined in order for it to be used as a residence so the permit that was issued with respect to the at that was in violation it was only would be in violation if the property were going to be used as a residence and the and a permit was issued specifically to allow him to hook up to a new water source so i would i would say that you know this this idea that he was only bringing his property into conformance is that's that's a that's a red herring and i think it's  have to admit that that was an oversight on my part if you look at the stipulation there are other places where we had where i had lined out any reference to the vacancy being more than  and twelve months and it was an oversight on my part that the other time that that was mentioned was not but the record is the record i think that asterix was made by the city clerk i don't want to get outside of the record but even so it's not a matter of vacancy it's a matter of she was in voluntarily she was in voluntarily just dispose her property she was involuntarily steps taken out of her property so in order to get back in she had to do all of the things that she actually did and it's not and it was involuntary and it was clear the know then you the old you didn't need to give no that fender can you know to be because there was no discontinued use yes and so the if if there was no discontinuance and and she was never told that she couldn't rea the issue set the the posting said you can go back in when this work is done so if so it was intended even by the city that she would go back why would the city have to have a notice that she intended to use it when there was no indication that she  claim now interesting both of you rely on case by construction some of that can really work against you indicating that your you should have been aware as a lawyer basically the status he he made a freedom of information act request that says tell us what the zoning of this property is he went all the way back to the planning of this property he chartered its use he made personal observations about its use and then before he did anything to the property he was given a letter that said and and mister force indicated that it was an ambiguous in his communication with mister trotter that this property was going to be used residentially so under the facts the fact that he's an attorney i think militates in his favor because he was extra careful with regard to his review of this property and the plan said it was it was residential the zoning ordinance says that even if we change our ordinance the property will remain residential with improvements and each and every one of them according to forest was made with the determination that the use of this property was legal non conforming residential so i don't think that and i think it's wishful thinking for the for the city eight years later to come and try to now create a to to use that december letter which forrest indicated was intended to communicate that this could be used as a residence and now say that it means something else and now claim that it's at least ambiguous so i think that whole issue is a is made based upon the conduct of the authorized actions of the city ok thank you one final question if we find a period equitable a stop of here how will that affect your your feet  what effect would it on well judge the fee claim is based upon whether or not the determination of the administrative agency was arbitrary and capricious and in the face of all of that evidence judge which is all in the face of all of that evidence particularly to you know finding is still arbitrary and capricious and it's it's the decision of the hearing officer of the administrative law judge that is is reviewed in contin in  supply locks or supplies rescue the car applies all of those equitable remedies should have been recognized by the administrative law judge who is also an attorney and should also be aware of the  legal non conforming you so my question is in light of that the hearing officers determination that the residence was vacant for sufficient period of time why would that be so and plausible as to be was some conflicting evidence and then why would the denial then be arbitrary and capricious well judge the i don't believe that the evidence was conflicting there were there were four witnesses who testified constant efforts on behalf of zaki to restore herself to residency in that in that unit and that the and that there was no conflicting evidence with regard to that the only other evidence the only witness called by the city said i have nothing i can't tell you more than on one day that she was not that she was not in residence didn't know anything about what exactly he had done didn't know anything about what was going on with the property prior to her hiring being hired by the city which occurred six months prior to this hear so the court in looking at that there was there was no conflicting evidence now there might be some conflicting you know the city may have some some views on that but there was no evidence to to rebut what the policy of the city was and what how the policy was administered and what the facts were with regard to that policy so you know i think that it was  risk of sounding like a broken record you know what you you've heard our argument in in our points to the record in terms of the evidence that supports the city's position you heard from plaintiffs counsel and points in the record that he argue supports plaint position and again that's fine when you are at the administrative agency level and you're making your arguments in a closing argument and you're arguing admittance should carry more weight and you know much of what i heard from from counsel was that be is there is no evidence in the record supporting the administrative decision in regard to the legal non conforming issue in regard to the equitable in latches issue in regard to the collateral estoppel issue that's the argument that needs to be made not that the evidence relied on by by plaintiff is more persuasive or carries more weight because we know that the this court does not read way the evidence this court does not substitute its judgment for that of the hearing officer this court could even be sitting here today thinking well you know i think the arguments made by plaintiffs are are reasonable and if i was the hearing officer maybe i would rule a different way but that's not the court's function on a ministry of review it is simply to co whether there is evidence in the record to support the agency decision and there's good reason for that it's the hearing officer that's hearing this evidence as it's coming in so hearing officer looking at the documents hearing the testimony and judging credibility of witnesses so this court's function is is simply to confirm is there are other hints in the record we've pointed it out we've pointed out to the record cites to the court in our in our papers and in i think that's that's the big picture here i just want to touch on a couple of the points that were made in plaintiff's argument there were some sun inaction of the city city not taking action in in telling plaintiffs that the property was legal non conforming we know from the patrick engineering case and we know from the city of wheaton case that inaction is not enough to sustain equitable stoppel against a municipality so if if clean its argument is based on this that decision had to do with a permit for the installation of windows there is nothing knowing which in that decision addressing whether or not plant was required to obtain a special use a very comprehensive analysis of how the administrative decisions can be reversed they could be one against a manifest where the evidence they could be to clearly a mo or they could be three arbitrary and capricious each each standard is a basis for reversal of of an administrative decision so clearly plant had the opportunity to do that prior to the final judgment point of did not in waited until host judgment motion for attorney seeds judge we recognize that that argument was never raised it was forfeited to cope with absolute that's and that is in the record and additionally creative could make improvements to their property without occupying yet their residential in nature he could have been doing at all along and then he goes and gets a special use permit for the residential use so long as he's not occupying it which he was asked during the time he was making the improvements there is absolutely no problem from the city both relying on this case i think k five is a prime example of the type of situation which would result in a substantial in justice because  asphalt plant operator had nowhere else to go his is use was completely prohibited that is not the case with plants property certainly can use the property for commercial purposes any of the commercial purposes that are allowed in the t c b district and additionally he can use or for residential purposes he just needs to go apply for a special use and additionally he will affirm the decision of the trial court to deny plaintiffs motion for attorney fees thank you thank you permit but that special use permit could have been tonight could it not yes your honor back that's entirely speculative it could be granted as long as plants meets the criteria for the special use that a it ministry of decision is is rendered on behalf of any individual and there are any facts whatsoever that may support that that automatically the court has no in the has no authority to reverse that or to review it further that's not the case here this is a clearly erroneous standard of review which everyone  which both parties have agreed applies here and it is because there is a mix question of law in fact and under that standard of review the law must be applied to the facts and in this case the facts show that they're there that none of the facts are in accord with the with the city's assessment that of a city code this isn't the case here case are completely unreported that the that the suggestion that because that the facts really that the city wants to hang its hat on is number one that mister trial was an attorney mister trotter was an attorney and he did what an attorney should do and he did a proper due diligence and got information upon which he was entitled to realize those facts don't change the fact that he's an attorney doesn't doesn't change the fact that he was entitle to this use and to find otherwise it was completely arbitrary and capricious the other issue i think they said it was it was on the basis of this letter that he should have had noticed that letter at best according to their argument was ambiguous but at at worst it's just said it specifically what it did say is that we have made no determination to date that this that this special use or that this non conforming use has expired we have not made that determination and we are not going to and in the face of that for the for the for the court below or for the administrative law judge to say you're still liable for a violation is arbitrary and capricious for the court to look at what the specific issue was before the before the board of building code review the building code board of review that was specifically cited to the board by the city by the city's attorneys that said this is the the issue before you is that he's applied for this building permit and it was denied not because the two windows were going to be too big or too small or the wrong materials but because the non conforming you said expired and he now needs a  special use permit the board of review said that is not the case give him his permit which was clearly intended for him to continue to use this pursuant to that property status as a nonconforming residential use and for the for the hearing officer to completely ignore that fact and to permit the city to walk past that  determination and and say that this is a violation which is clearly arbitrary and capricious that is the same for a sample an answer same for the fact that this property was exempt as a residential property from the at this time of justice do you have questions i do not thank you just the thoughts and you know and it's not have any further questions at this time i would like to take the