# Opposition Brief — Archview Investments, Inc. v. City of Collinsville

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 955

## Text

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1992

ARCHVIEW INVESTMENTS, INC.,
Illinois corporation,

VS.

CITY OF COLLINSVILLE ILLING
a municipal Corporation,

THE HONORABLE GENE J. BROMBOL!

1m ft
J

Mayor of th
LOUIS JACKSTADT, City Cle

f)
ne w=]

of Collinsville; MELVIN HEIN
Administrator of the City of
Collinsville; ROBERT L. DESPAIN
. ai
a

F. GIGLOTTO, GARY KLE MEI
PAMATOT, Collectively Counci
Comprising the City Council
City of Collinsville, I11li

STATES

we

TABLE OF CONTENTS

PAGE
Table of Cases il
Statute ill
Statement of Facts l

ARGUMENT
4 L THE ILLINOIS APPELLATE COURT DID
4 NOT ERROR IN ITS FINDING THAT THE
CONSTITUTIONALITY OF THE CITY'S
ACTIONS CAN NOT BE CONSIDERED
BECAUSE PETITIONER DID NOT ABIDE
BY THE BOCA REQUIREMENTS 7
Il. THIS COURT NEED NOT ADDRESS
PETITIONER'S DUE PROCESS ARGUMENT
SINCE PETITIONER FAILED TO SEE
THAT THE ISSUE WAS "PRESSED OR
PASSED” UPON THE ISSUE IN STATE
COURT 16
If.
A. THIS COURT NEED NOT ADDRESS
PETITIONER'S ARGUMENT THAT
THE COUNCIL HEARING SHOULD NOT
HAVE BEEN A DE NOVO PROCEEDING
SINCE PETITIONER FAILED TO SEE
THAT THE ISSUE WAS “PRESSED OR
PASSED” UPON IN STATE COURT 21

x

B. THE COUNCIL PROPERLY PROCEEDED
WITH A HEARING DE NOVO 22

['V. THE FINDINGS OF THE LOWER
COURT HAVE A BASIS IN FACT

CONCLUSION

APPENDIX A

'
«
3
3

TABLE OF CASES

Albery vy. Reddig, 718 F.2d 245
(7th Cir. 1983)

Ashwander y. Tennessee Valley Authonty,
297 U.S. 288, 80 Led. 688, 56 S.Ct. 466

Bello v. Walker, 840 F.2d 1254
(3d Cir. 1988)

Bd. of Dirs. of Rotary Int'l v. Rotary Club,
481 U.S. 537, 95 L.E.2d 474, 487, 107 S.Ct.
1940 (1987)

Comm'n, 142 Ill. Dec. 632, 552
N.E.2d 1373, 196 Ill. App. 3d 187
(1990)

City of Rockford v. County of Winnebago,
134 Ill. Dec. 246, 253, 542 N.E.2d 423,
186 Ill. App. 3d 303 (1989)

“ised Villas. of .
656 F.Supp. 367 (N.D. Ill. 1987)

Cole y. Industrial Commn.,
116 Ill. Dec. 866, 519 N.E.2d
1081, 166 Ill. App. 3d 406 (1988)

Cochenour vy. Cochenour, 888 F.2d 1244
(8th Cir. 1989)

ill

PAGE

18

15

» 99 Ill. 2d
439, 322 N.E.2d 29 (1974)

Espino y, Besteiro, 708 F.2d 1002

(Sth Cir. 1983)

Health v. Alabama, 472 U‘S. 82,

88 L.E.2d 387, 393, 106 S.Ct. 433 (1985)

Ulinois v, Gates, 462 US. 213,

76 L.E.2d 527, 536, 103 S.Ct.
2317 (1983)

785 F.2d 596 (8th Cir. 1986)

People vy. Fleming, 50 Ill. 2d 141,

277 N.E.2d 872 (1971)

Reiter vy, Neilis, 81 Ill. Dec.

110, 113, 466 N.E.2d 696, 125
Ill. App. 3d 774 (1984)

v. Drigger, 696 F.2d 1347 (1983)

704 F.2d 999, 1002 (1983)

’

86 Ill.Dec. 493, 475 N.E.2d 872,
105 Ill.2d 486 (Ill. 1985)

17

10

11

11,12

18

STATUTE

Collinsville Municipal Code 16.20.010 §16.20.010: “Any person
not satisfied with the decision or actio nor failure to act of any
officer on an application for a permit or for inspection or approval,
or application for a permit or for inspection or approval, or any
other administrative function in the administrative procedure
provided in this chapter, may appeal within five days to the
council. Such appeal shall be in writing, filed with the city clerk,
and shall state briefly the alleged error in the decision or action or
failure to act. The city clerk shall present the appeal to the council
at its next regular meeting. The council may affirm or reverse,
correct or remand the decision so appealed.” (Prior code $6.25)

TO:

SS Ss so SS 2252 & = se oe — ow ww we ow ww ee
—-—_sSe Se Ss eee SS ss Ssasasss st S

ARCHVIEW INVESTMENTS, INC., an
Illinois corporation,

Petitioner,
i

CITY OF COLLINSVILLE, ILLINOIS

a municipal Corporation;

THE HONORABLE GENE J. BROMBOLICH,

Mayor of the City of Collinsville;

LOUIS JACKSTADT, City Clerk of the City
Of Collinsville; MELVIN HEINECKE, Zoning
Administrator of the City of
Collinsville; ROBERT L. DESPAIN, WILLIAM
F. GIGLOTTO, GARY KLEIN, MELVIN P.
PAMATOT, Collectively Councilmen
Comprising the City Council of the

City of Collinsville, Illinois,

Respondents.

SSSSSSSSSSSSSSSSSSSSteseeeeeecee eee - eee
eee SS SSSSSSSSSSSSESSSSBsteses 222225 2e==

The Honorable, The Chief Justice and

Associate Justices of the Supreme Court of the
United States

STATEMENT OF FACTS

Respondent, Robert Despain, is a party to this litigation
only by virtue of his attendance at a hearing on the Petitioner's
Appeal for a building permit to the City Counsel of Collinsville,
Illinois. As an elected member of the Council, it is true that Mr.
Despain listened to the testimony proffered at the hearing, and
joined in the vote to deny Petitioner's building permit. However,
Mr. Despain's vote was based upon legitimate concerns raised at
the hearing: the timeliness of the Petitioner's appeal to the Council,
and Petitioner's failure to comply with the BOCA code.

While Mr. Despain will address only those factual
inaccuracies and omissions pertinent to his very limited
involvement in the process of reviewing Petitioner's application for
the building permit, Petitioner's description of earlier events also
contain some important omissions and undoubtedly will be
addressed by co-respondents.

On March 23, 1991, the Mayor denied the Petitioner's

building permit and communicated that denial to Petitioner by way
of a letter in which the Mayor stated that he was denying the
application because of the applicant's refusal to cooperate and
provide additional necessary information. (Petitioner's Appendix
D, pages 46 - 47.) Respondent Despain was not privy to, nor
contemporaneously aware of, any of the events leading up to the
Mayor's decision. Mr. Despain was not aware of Dr. Escobedo's
first application, second application, or any COmmunications
between the Mayor, the building inspector, Dr, Escobedo, or other
representatives of the City or Archview.

While the facts to this point do not bear directly on the
conduct of Respondent Despain, Petitioner's refusal to cooperate
with the City's attempts to obtain additional information was
discussed at length during the Council hearing. The trial judge
Perceptively noted that Petitioner, “created a situation of distrust
and suspicion which contributed to the decision of the City Counsel]

against the issuance of the building permit.”

to

Plaintiff's allegation that Respondent Despain violated
Petitioner's constitutional rights must be judged solely upon a
review of Mr. Despain's conduct at the Council hearing.
Respondent Despain refers the court to the entire transcript of the
proceedings of the hearing (Respondent's Appendix A). At the
conclusion of the hearing, Respondent Despain voted to deny the
building permit. Commissioner Pamatot moved that the Council
concur with the position of the Mayor, and deny the building
permit on three grounds: that the appeal was not timely filed, that
the business to be operated in the building would be contrary to the
general health, safety, and welfare of the public, and that the
applicant failed to comply with the requirements of BOCA. At
the time of his vote, Respondent Despain made a special point of
saying that his vote was based upon only two of the three grounds,
and not the “emotional” issue. (App. A, p. 54) Thus, Mr. Despain
agreed with the decision to deny the building permit because of the

Petitioner's failure to file a timely appeal and failure to comply

with BOCA.

The testimony at the Council hearing supported Mr.
Despain's vote on these points, even though petitioner inaccurately
States that the only thing discussed at the Council meeting was
whether abortions would be performed in the proposed building.
(See Petitioner's Brief at page 13.) In fact, the Original transcript
of the hearing is only twenty-two pages long and yet, four of those
pages, Or approximately one-fifth of the proceedings dealt entirely
with the issue of whether Petitioner had filed a timely appeal to the
City Counsel. (App. A, pp. 20-25) On the evidence presented,
Mr. Despain could reasonably believe that Petitioner had failed to
file a timely appeal and that the failure to file the timely appeal
precluded any further proceedings on the question of whether the
building permit should be denied.

Much of the Council hearing was consumed with testimony
of the intended use of the building and the Petitioner's failure to

adequately define the use on the building permit application. (App.

A, pp. 15-20, 25-44) Petitioner characterized this testimony as
solely pertaining to a concern that the building would be used for
abortions. Regardless, according to the testimony presented at the
Council hearing, the BOCA code required disclosure of the
intended use of the building and further required disclosure of the
identity of the responsible officers of the corporations. (App. A,
pp. 12,13) Since this information was lacking in the application
and since repeated efforts to discover the information were
rebuffed, the counsel had no obligation to grant the permit over the
denial by the Mayor. This is particularly so since those who
testified on behalf of Petitioner at the Council hearing did not deny
that the application contained violations of BOCA.

The evidence pertinent to Respondent Robert Despain's
conduct can only lead to one conclusion: that Respondent Despain
in particular did not violate Petitioner's constitutional nghts by
acting arbitrarily or capriously. Moreover, the evidence supports

confirmation of the trial court's finding that Respondent Despain

was entitled to qualified immunity since his actions were
objectively reasonable and were not contrary to any known

constitutional nght of the Petitioner.

6

ARGUMENT I

THE ILLINOIS APPELLATE COURT DID NOT ERROR

IN ITS FINDING THAT THE CONSTITUTIONALITY OF

THE CITY'S ACTIONS CAN NOT BE CONSIDERED

BECAUSE PETITIONER DID NOT ABIDE BY THE

BOCA REQUIREMENTS.

In Count V of the Second Amended Complaint, Petitioner
Archview sought compensatory and punitive moncy damages
against Defendant Despain (and the other individual city council
members) for malicious deprivation of constitutional rights under
42 USCA, §1983.

The Trial Court found that Petitioner Archview failed to
fully comply with the then applicable City Ordinances of
Collinsville regarding its building permit application process. The
Trial Court specifically found (a) that "the application of the City

of Collinsville's ordinances regarding building permits was

reasonable"; (b) that the actions of the City Council were no "mere

subterfuge for what was in reality a discriminatory decision"; (c)
that the Court considered "all the facts” including the "evasiveness
of Dr. Escobedo", his refusal to "provide requested information",
and the fact that he did not "fully comply with all the applicable
ordinances"; and (d) that the “building plans were Clearly
deficient”.

The Illinois Appellate Court correctly found that the
constitutionality of the City's actions could not be considered
because the Petitioner did not abide by BOCA requirements. The
court's analysis turned on the fact that constitutional questions will

not be considered unless necessary to the disposition of the case.

Davis v. City of Chicago, 59 Ill. 2d 439, 322 N.E.2d 29 (1974);
People v. Fleming, 50 Ill. 2d 141, 277 N.E.2d 872 (1971);
Ashwander v, Tennessee Valley Authority, 297 U.S. 288, 80 Led.

688, 56 S.Ct. 466 (Branders, J., concurring) (1936). In particular,

' This language is an essential holding from the decision of Bossier City

Medical Suite, Inc. y. City of Bossier City, 483 F.Supp. 633 (W.D. La. 1980),

which is a crucial, parallel case, and which the Trial Court relied upon in its
decision.

the court noted that this specifically applies to questions based on
§1983. Cochenour vy. Cochenour, 888 F.2d 1244 (8th Cir. 1989);
Espino y. Besteiro, 708 F.2d 1002 (Sth Cir. 1983).

For instance, in Cochenour, 888 F.2d at 1246, the court
stated that for a §1983 claim, causation is a necessary element.
The court refused to consider the §1983 constitutional claim
because the cause of the property loss was the prior action of the
property owner, not the state or county procedures. Id. Similarly,
in the case at hand, the mayor and county board's views on
abortion were not the cause of the denial of his permit. The
Council, Trial and Appellate a correctly found the cause was
the petitioner's refusal to properly fill Out the application.
Petitioner failed to provide requested information, he did not fully
comply with all the applicable ordinances and the building plans
were deficient. (Petitioners Brief, App. 19). Due to the
inadequate application, the constitutionality of the council's actions

need not be reached.

The cases cited by the petitioner to support on §1983 claim

are all factually distinguishable from the case at hand. In the cases
cited by petitioner, the permit applicants met the legal requirements
contained in the ordinances, whereas here the Council and the Trial
Court found the petitioner did not meet those requirements.
Petitioner Archview relies on Littlefield v, City of Afton,
785 F.2d 596 (8th Cir. 1986). While petitioner suggests it has a
constitutionally protected property interest in its building permit,
the Littlefield decision makes it clear that an applicant for a
"building permit has a constitutionally protected property interest
. conditioned only by compliance with the ordinances.”
(emphasis added). Id, at 602. In that case the court found in favor
of the permit applicants because they had complied with, "all the
legal requirements contained in the ordinances." (emphasis in
Original). Id. In this case, the Council, Trial Court, and Appellate
Court agree that plaintiff's application failed to comply with BOCA

provisions i11.2 through 111.7. Due to these violations, petitioner

10

does not have a constitutionally protected interest to have the
building permit issued.

Second, plaintiff relies on Souther Co-Op Development
Fund vy. Drigger, 696 F.2d 1347 (1983). Similarly, in Souther,
unlike the case at hand, the applicant met the requirements of the
ordinance. After mentioning that fact numerous times throughout
the opinion, the court focused on the "narrow question" of whether
an additional requirement could be coniideeed which was not
included in the ordinance. The court held that any discretion which
the County Commission may have had to deny an application
"vanished" when the "property owner had done all the law required
of him." Southern, 1696 F.2d at 1352. But here, due to the failure
to meet the legal requirements, the petitioner does not have a
constitutionally protected property interest under §1983. |

Even if the United States Supreme Court determines that the
constitutionality of the council's decision must be reviewed, it was

not arbitrary and capricious. In Scudder v, Town of Greendale,

11

Ind., 704 F.2d 999, 1002 (1983), the court defined “arbitrary” as a

decision was reached "without adequate determining principle or
was unreasoned." Id. In Scudder, a requirement of the ordinance
was "that every building hereafter erected shall be located on a lot
which fronts on a street." Id, at 1003. The court granted the city
summary judgment because the lot upon which the plaintiff desired
to build did not front a street. Id. The Scudden court held that
strict enforcement of an otherwise valid city ordinance was not
"arbitrary". Id. Although petitioner relies on this case in its
argument, it is Obvious that the case supports respondent's
argument. In the case at hand, the City Council determined that
certain BOCA requirements were not met because petitioner failed
to provide enough information. (App. A, p. 53) The Trial Court
appropniately found that the council was only requiring compliance
with all city ordinances.

The plaintiff relies on Bello v. Walker, 840 F.2d 1254 (3d

Cir. 1988), stating in its Petition for Writ of Certiorari that the case

is "a particularly worthy discussion on the issue of arbitrary and

capricious." (Petitioner's Brief p. 25). Again, this decision is
absolutely distinguishable from the case at hand. First, the council
did not claim that the applicant had failed to meet the legal
requirements of the ordinance. Second, the Bello court remanded
the case for factual findings since plaintiff had alleged facts from
which the fact finder "could reasonably conclude that certain
council members. . . improperly interfered with the process by
which the municipality issued building permits." Id. at 1129. The
court concluded that the crucial underlying issue of the
municipality's decision is "the factfinder's role to resolve." Id, at
1130. In this case, the factfinders resolved the issues and
determined that Respondent Despain acted rationally.

Plaintiff argues that . any objective reading of the
transcript of that [Council] hearing of July 20, 1981, indicates that

compliance with the ordinances of the City of Collinsville was not

the primary motive for the decision of the Council.” (Petitioner's

13

Brief, p. 30) But as Respondent Despain articulated at the time the
vote was taken, he was motivated to vote against granting the
building permit because of the evidence introduced at the hearing
that petitioners had failed to comply with legal requirements.
(App. A, p. 54) The petitioners failed to comply with certain
BOCA codes and regulations and the petitioners failed to appeal
the denial of the building permit in a timely fashion. (App. A, p.
54)

Nonetheless, plaintiff goes on to claim that there was no
evidence of BOCA code violations presented at the council
meeting. (Petitioner's Brief, p. 30-31) This simply is not true. At
least two deficiencies were discussed: Failure to describe the use
of the building and failure to disclose the names of the officers of
the corporate applicant. (App. A, pp. 5-20, 25-44: 12, 13)
Certainly, not every member of the city council can be expected to
be an expert in what the BOCA code requires. But, when the

mayor pointed out these areas of deficiency in the application at

14

a

the council hearing and reminded the petitioners about failed to
attempts to ascertain the data, the petitioners’ witnesses did not
deny that BOCA required that they supply that information, nor did
they deny that representatives of the city had been thwarted in their
attempts to obtain that information at least until the time of the
council meeting. (App. A, p. 12-14)

Finally, it might also be noted that the plaintiff is inviting
a Situation in which every routine local building code decision may
become subject to prolonged federal constitutional litigation. The
U.S. District Court for Norther Illinois, in Christian v, Village of
Maywood, 656 F.Supp. 367 (N.D. Ill. 1987) has properly stated
that, "We also point out to plaintiffs that a building code dispute
is ordinarily 'a matter of peculiarly local concern’ in which a viable
federal claim is rarely found.” (656 F.Supp. at 370), citing Albery
v. Reddig, 718 F.2d 245 (7th Cir. 1983). .

In conclusion, the Appellate Court correctly found that the

§1983 claim need not be considered because the evidence

15

supported Respondent Despain's action of denying plaintiff's permit
based on BOCA violations. Even if the U.S. Supreme Court
decides to address the constitutional issue, Respondent Despain's
decision was not arbitrary and capricious because of the obvious
ordinance violations and the petitioners repeated refusals to supply

the City with the missing information.

ARGUMENT II

THIS COURT NEED NOT ADDRESS PETITIONER'S
DUE PROCESS ARGUMENT SINCE PETITIONER
FAILED TO SEE THAT THE ISSUE WAS "PRESSED
OR PASSED" UPON THE ISSUE IN STATE COURT.
Petitioner alleges that Mayor Brombolich's original denial
of the building permit on March 23, 1981 was based on reasons
other than the BOCA Building Code violations. (Petitioner's Brief
p. 36). Petitioner alleges that it did not receive notice that the
application had been denied on the basis of any alleged BOCA

defects in the permit. (Petitioner's Brief p. 39). Petitioner alleges

denial of due process because of an alleged failure to receive notice

16

of the specific BOCA violations at the administrative appeal to the
City Council. (Petitioner's Brief, p. 39).

The United States Supreme Court should not even review
the due process issue. The United States Supreme Court will not
decide claims “not pressed or passed upon” in the state court.
Illinois y. Gates, 462 U.S. 213, 76 L.E.2d 527, 536, 103 S.Ct. 2317
(1983). The longstanding rule that the Supreme Court will not
consider such claims creates, at the least, a weighty presumption
against review. Health y. Alabama, 472 U.S. 82, 88 L.E.2d 387,
393, 106 S.Ct. 433 (1985). In Gates, the state court had held that
an application for a warrant to search was inadequate. Id. at 534.
In their brief to the United States Supreme Court, petitioners for
the first time addressed the issue of whether the exclusionary rule
should be modified. Id. at 535. The Supreme Court held that it
could not decide issue because it was not "pressed or passed upon
below.” Id. at 538. Among other reasons, the court noted that

questions which were not raised below were very likely to have an

17

7
7
8
:

inadequate record, and that due regard must be given to the state
court. Id. at 537.

Likewise, in the case at hand the first time the issue of lack
of due process for failure to receive notice was raised was in the
petition for rehearing to the Illinois Court of Appeals. No mention
of this issue can be found in the decision of the Trial Court, in the
notice of appeal, the briefs, or on the decision of the Court of
Appeals. The general practice of the Illinois Court of Appeals is
not to consider issues for the first time on appeal. Western Gas &
Sur, Co, v. Brochu, 86 Ill.Dec. 493, 475 N.E.2d 872, 105 Ill.2d 486
(Ill. 1985).

When the highest state court has failed to pass upon a
federal question, it will be assumed that the omission was due to
lack of proper presentation in the state court unless the aggrieved
party in this court can affirmatively show to the contrary. Bd. of

Dirs, of Rotary Int'l. vy. Rotary Club, 481 U.S. 537, 95 L.E.2d 474,

487, 107 S.Ct. 1940 (1987). In Rotary the appellants claimed a

18

>

federal statute was unconstitutionally vague and overbroad. Id. at
487. Appellants did not present the issue squarely to the state
court until they filed their petition for rehearing with the Court of
Appeals. Id. The Court of Appeals denied the petition without
opinion. Id. The California Supreme Court denied appellants’
petition for review. Id. at 483. The United States Supreme Court
declined to review the question because the appellants made no
showing that the omission was not due to improper presentation in
the state courts. Id. at 437.

Likewise, in the case at hand, the petitioners did not present
the issue of denial of due process due to lack of notice squarely to
the state courts until they filed their petition for rehearing with the
Illinois Court of Appeals. The Court of Appeals denied the
petition without opinion. Likewise, the Illinois Supreme Court
denied appellants' petition for review due to the fact that petitioner
has not shown affirmatively that the issue has been passed or

pressed upon by state court, the United States Supreme Court

19

cannot review the issue.

Besides, petitioners did have notice of the local code
violations. In his letter of March 23, 1981 Mayor Brombolich sent
a letter to Dr. Escobedo denying the permit in part because the city
was unable to discover pertinent information that was missing from
the face of the application. (Petitioner's Brief, App. 46) Of course,
it is the BOCA provisions which require, in part, that certain
information appear on the building permit application including
data identifying information about the owner of the property and
the identity of the officers, if the owner is a corporation. (App. A,
pp. 12,13) Moreover, no statute or ordinance required that the
mayor notify the applicant of all bases for denying the permit.
Certainly, there is no constitutional duty to do so. Obviously
petitioners were not too concerned about their application
deficiency since they made no effort to contact the building
inspector, the mayor or any other member of the City Council in

an attempt to determine exactly what was wrong with the

20

application.

Moreover, as regards the Respondent Robert Despain, he
certainly cannot be faulted for any failure to give the petitioners
notice of the BOCA code violations prior to the council hearing.
Respondent Despain had absolutely nothing to do with the denial
of the building permit application or with notifying the petitioner

of the reasons for the denial.

ARGUMENT II

A. THIS COURT NEED NOT ADDRESS
PETITIONER'S ARGUMENT THAT THE
COUNCIL HEARING SHOULD NOT HAVE
BEEN A DE NOVO PROCEEDING SINCE
PETITIONER FAILED TO SEE THAT THE ISSUE
WAS "PRESSED OR PASSED" UPON IN STATE
COURT.

Petitioner alleges that the City Council's sole function was
to determine whether Mayor Brombolich's decision was contrary to
the manifest weight of the evidence (Petitioner's Brief p. 40).

Petitioner alleges that the only evidence which can be considered

by the City Council was Mayor Brombolich's alleged reasons for
denying the permit, and not any building code violations.
(Petitioner's Brief, p. 40)

This is the first time petitioner raises this argument. For the
reasons set forth in Argument II of Respondent's Brief, this Court
should not review the issue of whether the Council should have
considered evidence not relied upon by the mayor. Whether
proceeding with a de novo hearing was appropriate pursuant to
administrative law was not directly "pressed or passed upon" in the
State court. Illinois v. Gates, 462 U.S. 213, 76 L.E.2d 527, 536,

103 S.Ct. 2317 (1983).

B. THE COUNCIL PROPERLY PROCEEDED WITH
A HEARING DE NOVO.

Petitioner misstates the law in City of Rockford v. County
of Winnebago, 134 Ill. Dec. 246, 253, 542 N.E.2d 423, 186 II.
App. 3d 303 (1989), when he claims that the role of a reviewing

body on administrative review is limited to a determination of

22

whether the agency's decision is contrary to the manifest weight of
the evidence. (emphasis added) (Petitioner's Brief, p. 40).
Petitioner argues that since the mayor's decision was based on
something other than BOCA code violations, the City Council
should not have heard evidence on code violations. (Petitioner's
Brief, p. 41).

The proper interpretation of Rockford, 542 N.E.2d at 432
is that when a court reviews an agency's decision, the standard for
review is whether the agency decision was countaey to the manifest
weight of the evidence (emphasis added). In Rockford, the
appellant appealed the decision of Winnebago County Board
(WCB) to the Illinois Pollution Control Board (PCB) and then to
the Court. Id, at 246. The Illinois Supreme Court held that the
lower court's role was to determine whether PCB's decision was
contrary to the manifest weight of evidence. Rockford did not
address whether the appeals prior to reaching court are to be

reviewed de novo.

ns

To determine whether the City Councils' review of the

mayor's decision is de novo or by the manifest weight of the
evidence, one must look to the statute giving the council authority
to act. An agency, being a creation of statute, has only those
powers specifically conferred on it. Reiter y. Neilis, 81 Ill. Dec.
110, 113, 466 N.E.2d 696, 125 Ill. App. 3d 774 (1984). For
example, the Industrial Commission must allow new evidence to be
introduced upon review as stated in its statute. Cole v. Industrial
Comm'n., 116 Ill. Dec. 866, 519 N.E.2d 1081, 166 Ill. App. 3d 406
(1988). However, the Illinois Human Rights Commission must
accept a hearing officers findings unless it is contrary to the
manifest weight of the evidence. Board of Regents v. Human
Rights Comm'n, 142 Ill. Dec. 632, 552 N.E.2d 1373, 196 Ill. App.
3d 187 (1990).

The Collinsville Municipal Ordinance §16.20.010 does not
provides that "any person not*satisfied with the decision

- . . may appeal within five days to the council. .. . The city clerk

24

Shall present the appeal at its next regular meeting. The council
may affirm or reverse, correct or remand the decision so appealed.”
Since the ordinance does not specifically state the nature of the
review, whether de novo or manifest weight of the evidence, the
appeal is deemed to be de novo. 17 Amber 2d Administrative Law
§546 (1962). Moreover, since powers of the council on appeal are
quite broad, it makes sense that the council review would be de

novo.

ARGUMENT IV

THE FINDINGS OF THE LOWER COURT HAVE A
BASIS IN FACT.

Petitioner complains that the Illinois Supreme Court and
Illinois Court of Appeals "misapprehended or misconstrued" key
facts. However, the facts relied upon by the courts of appeal were
appropriately determined from the record. Petitioner first criticizes
the Court of Appeals assessment that, "The City was unable to

discover pertinent information missing from the face of the

25

application." (Petitioner's Brief, page 42) The mayor's letter of

March 23, 1981 explained that the information contained in the
application was inadequate, and that the city was unable to discover
the information. (Petitioner's Appendix D, pages 46 —- 47) The
mayor noted as follows: "Investigation conducted by the City
concerning the factual information contained in the application has
been met with resistance, which includes lack of knowledge,
repeated referrals to other people who have little or no knowledge,
Outright refusal to answer legitimate inquiry . . .” In addition to
the mayor's letter the Court of Appeals also had the testimony of
the witnesses appearing at the council hearing on July 20, 1981.

At that time, there were lengthy discussions about the failure of the
application to adequately describe the proposed use of the building
as well as missing information as to the identity of the owners.
Thus, the Court of Appeals certainly did not misconstrue the facts
as indicated by the record.

Petitioner claims that the Court of Appeals misstated the

26

facts when it found that Dr. Escobedo repeatedly refused to supply

the city with missing information. (Petitioner's Brief, page 43.)
The record supports that there were at least several contacts with
Dr. Escobedo and representatives of his corporation, Archview
Investment Company, to get information concerning the use of the
building and identity of the owners of the building. (App. A, pp.
12,13) Petitioner even conceded that there was an inquiry as to the
ownership of Archview. Nevertheless, petitioner argues that the
court should discount these inquiries because they were only made
with respect to the first building application and not the second.
This is not true. The inquiries were made after the second

application was submitted. (App. A, pp. 12-13)

CONCLUSION
This Court should deny the Petition for Writ of Certiorari
On the claims against the Respondent, Robert Despain. Mr.

Despain's involvement in the denial of the building permit was

limited to assimilating the information provided at the council
meeting on July 20, 1981 and doing his best to render a correct
decision. A review of the transcript of that hearing leaves no doubt
that the council members were presented with quite a bit of data
upon which they could conclude that petitioners had failed to
timely appeal the denial of the building permit and failed to submit
an application that complied with the BOCA requirements.
Regardless of whether the appeal was timely or had been waived,
and regardiess of whether there actually were BOCA code
violations, Mr. Despain was certainly justified in believing this to
be the case. Thus, his decision was not arbitrary and capricious
but based upon evidence produced at the hearing. Moreover, Mr.
Despain was the only council member who indicated that his
decision to deny the building permit was not based upon the

"emotional issues,” that is, whether abortions would be performed

in the building. At a minimum, Mr. Despain is entitled to qualified
immunity.

SANDBERG, PHOENIX & von GONTARD, P.C.

tite. \>.,

Kathleen L. Pine #06188958
One City Centre, 15th Floor
St. Louis, Missouri 63101
(314) 231-3332

Attomeys for Respondent
Robert Despain

APPENDIX A

Mayor Brombolich opened the meeting with the Pledge of
Allegiance to the Flag. Mayor Brombolich - The purpose of this
meeting is an appeal of a decision to deny a building permit
involving a facility on Pine Lake Road. I would like to make a
statement as to how we are going to conduct this meeting. I would
like to do this before any of the appeal. First of all this hearing the
appeal of a City action will be treated as an argument as to why
the petitioner appealing, believes the Office of the Mayor made
some kind of error in decision to deny an application for a buiiding
permit to Archview Investments Inc. The petitioner should specify
the error and will be allowed to present his reasons why the
council should overrule the Mayor. In doing this he can refer to
those points of the evidence he believes to be material to his
argument. The council members may question the person
presenting the argument. After the person appealing makes his
argument, any objecting views will be given a brief opportunity to
present their side after proper identification. The chair reserves the
right to restrict re — points of view. If objector's position is
presented the person appealing will be given a short, will be given
a short rebuttal period. The rebuttal does not include new or
different issues, but is confined to rebutting new points raised in
the objector's arguments. The council may vote at the end of the
argument. At this time I would like to add anyone in the audience
that plans to take part in the hearing - make any kind of testimony
— to stand raise their right hand so I can swear them in. Secondly
the attorney for the petitioner will not be required to be sworn in -
because his side will not be testimony - but arguments. So
anyone in the audience that plans to take part in this hearing by
making a public statement if you will stand and raise your hand |
will swear you in myself. Right now.

Commissioner DesPain - Mr. Mayor, do you think anyone who
thinks its possible they may, that they should be sworn in even tho
they don't plan to specifically.

Mayor Brombolich - Anyone that may possibly give testimony this
evening, stand up raise your hand and I will swear you in.

"Do you swear that the testimony that you give will be the truth so
help you God”, Say I Do. Thank you. Is the petitioner ready to
address the Council?

Yes —- My name is Gary Apoian, I am an Attomey with offices
located in East St. Louis, Illinois, I represent Archview Investments
Inc. As the gentleman has already stated, this is an appeal before
the City Council based upon my client submitting an architectural
plan for a building located at the intersection of Pine Lake and
Vandalia which is also Highway 40 I believe. This area of the
proposed building is located in a B-1 zoning district. I would state
to the council that on the 10th day of March, 1981 Archview
Investments Inc. submitted a plan, the application was secured from
the City Clerk it was prepared, various plans, architectural
drawings were attached, prepared by Mr. Thomas Hall who is
present tonight and has been swom in. Various structural drawings
were also prepared under the direct supervision of Mr. Hall. It is
our position tonight in reviewing both Chapter 16 of the
Collinsville City Ordinance and Chapter 19 of the Zoning
Ordinance that all the plans which were submitted together with the
application were in strict compliance and conformity with the
Ordinance and we are well aware of the fact the Ordinance, as it
pertains the particular Chapter 16 makes reference to BOCA
building codes and other pertinent building codes of the City of
Collinsville would adopt. At all times we complied with those
building codes, we submitted the plans together with the
architectural drawings and structural drawings. On March 23rd,
1981 the Mayor of the City of Collinsville declined to issue the
building permit. It is our position here tonight, after reading the
pertinent provisions of the Ordinances of the City of Collinsville
that the only basis for denying that building permit would be -. A.
that we were not in conformity with the proper zoning which in
this case was B4, or secondly — that the architectural and structural

2

drawings were not in conformity with the existing building codes
which the City of Collinsville has adopted. In the Mayor's denial
letter which is attached to the appeal which we filed before this
body and is Exhibit #1, in that denial letter nowhere does the
Mayor state that the reasons for the denial are that we do not
comply with the zoning, altho there is language in the Exhibit that
would indicate that he was refering to zoning types of situations.
We have reviewed Chapter 19, which involves zoning, we have
doubled checked and rechecked and we were in conformity with
the zoning provisions. Nowhere in the Mayor's denial letter which
is dated March 23rd, 1981 does he state that the reasons for the
denial of the permit was that we did not conform with the existing
building permits - the BOCA provisions. Archview Investments
Inc. hired Mr. Thomas Hall who is a certified architect and
engineer, he followed the procedure which he has followed in
many instances where he has been employed to prepare building
plans and attempt to receive building permits. And after conference
with him we still could not find any problem with our permit or
our plans. It is our position that the denial of the permit by the
Mayor was improper at least - at least we would be entitled to
know why we were denied as it pertains to the existing ordinances
of the City of Collinsville and it is our position that it is only those
reasons — those reasons alone that can be the basis for denying the
building permit in this case. One other thing I would like to point
out that I passed over — that the plans and it is my understanding
this was confirmed both by letter and telephone and the plans so
specify, that the purpose stated in the building permit was to have
a building erected and that building would be a medical building.
I would point out to the council that the Zoning B-4 is inclusive
of other lesser zoning provisions and I would point out that would
include B-2. And I would direct the council's attention to Page 2-
77 which states the uses would include but not limited to the
following and one of those subheadings is medical facility. It is
Our position that we have been in compliance - strict compliance

3

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with the ordinances and that accordingly the building permit should
have been granted and the Mayor's decision should be overtumed
by this council.

Mayor Brombolich - Mr. Appoian do you have anyone that would
like to address the council?

Mr. Appoian - Yes I would ask that Mr. Tom Hall rise, I would
like to ask him some questions.

Mayor Brombolich - Please Mr. Hall now is the time.

Mr. Apoian - Would you state your name please?

Yes —- Mr. Thomas Hall.

Mr. Apoian - What is your occupation Mr. Hall?

Mr. Hall — I am an architect.

Mr. Apoian — Are you familiar with Archview Investments Inc.?
Mr. Hall —- Yes, sir.

Mr. Apoian — Were you engaged by Archview Investment Inc. and
when were you engaged by them?

Mr. Hall — In early 1980.

Mr. Apoian - And what was the purpose of your employment by
Archview Investments?

Mr. Hall - To design a medical office building.

Mr. Apoian - Exactly - can you tell the council members what
you did to effectuate the wishes of your employer?

Mr. Hall - We followed basically standard procedure that we do
in the firm in terms of gaining zoning, building code information
obtaining the criteria necessary for the design both from the City's
point of view and the client's point of view and correlating that
material into a project. We try to research the necessary zoning
requirements, zoning code requirements, fire district requirements
and design our building to conform with those.

Mr. Apoian — In conducting your research did you make yourself
acquainted with the B4 zoning district of the City of Collinsville?
Mr. Hall — Yes I did.

Mr. Apoian — And were you certain that the plans that you
prepared were in conformity with each aspect of the B-4 zoning

4

ieee

requirements?

Mr. Hall — Yes they were.

Mr. Apoian - And could you tell the council, exactly, how you
made sure they were in conformity with those provisions?

Mr. Hall — Essentially just by researching and also by previous
experience of knowing the facilities that are allowed within that
zoning and it was very specifically - we checked with the City
records to find that zoning and the people that we were buying the
property from verified that zoning and then correlated that with
permissible usage.

Mr. Apoian - In your work were you cognizant of the BOCA
provisions and other standards and were they so met.

Mr. Hall — they are.

Mr. Apoian - After the time of preparing the plans, what did you
do next?

Mr. Hall —- Upon the completion of the architectural and structural
drawings submitted for a voting.

Mr. Apoian —- And how did you do that?

Mr. Hall - By appearing at City Hall and asking them and filling
in that application and leaving with them a set of architectural and
structural forms.

Mr. Apoian — After that was done were you contacted by anyone
from the City?

Mr. Hall —- No we were not.

Mr. Apoian - Did anyone from the City ever contact you at all
with regard to your plan both architectural and structural were not
in complaince with BOCA provisions?

Mr. Hall - No one ever contacted me in regard to the set of plans.
Mr. Apoian — Let me ask you this question, If they had, would you
have made an effort to remedy those decisions?

Mr. Hall - Oh absolutely, the typical are that we submit
whatever we are doing, the project is reviewed by the pertinent
authorities, we are contacted as to any violations that need to be
corrected in the building plans, we meet with whatever personnel

5

is necessary, make the necessary corrections and resubmit the
drawing.
Mr. Apoian — that is all I have at the moment.

This is the correct one then, you testified you were

contacted by ,
Mr. Hall — It was originally in 1980 - late 1979 or early 1980.
Mr. Apoian - Thank you. We would have nothing else to present
at this time.

Mayor Brombolich — Does the council have any questions of Mr.
Apoian or Mr. Hall?

Commissioner Pamatot - Mr. Hall are you a licensed architect in
the states of Illinois and Missouri?

Mr. Hall — Yes sir, I am.

Mayor Brombolich - Mr. Hall the application and the building
plans that were submitted to the City by Archview Investments in
March, 1981, are those the same plans that you submitted, or
someone submitted for Dr. Escobedo in October of 1980?

Mr. Hall - Essentially, with more detail and they were more of a
complete set of plans, but cssentially yes.

Mayor Brombolich - I might ask Mr. Apoian, the letter from me
dated March 23, in the second paragraph, "Investigation conducted
by the City concerning the factual information contained in the
application has been met with resistance, which includes lack of
knowledge, repeated referrals to other people who have little or no
knowledge, outright refusal to answer legitimate inquiry, the use of
a secretary without financial interest as incorporator, etc." And you
say that you have met all regulations under the BOCA code, in
Section 111 of the BOCA Codes under applications for permit,
section 111.3, By Whom Application is Made - Application for a
permit shall be made by the owner or Lessee of the building or
structure or agent of either, or by licensed engineer or architect
employed in connection with the proposed work. If the application
is made by persons other than the owner, it shall be accompanied
by a duly verified affidavit of the owner or a qualified person

6

a

making the application that both work is authorized by the owner
and that the applicant is authorized to make such application. The
full names, addresses of the owner, licensee, applicant, and
responsible officers if the owner or licensee is a corporate body
Shall be stated in the application. You deny that we tried to find
out who the officers in the corporation were?

May I have a moment?

Mayor Brombolich -- Please.

While we are looking thru our file, I would
Say this that when we prepared the application we were not told
that this was applicable, however with regard to your inquiry,
Archview Investments is a corporation and all that information is
ascertainable, a matter of public record and at no time did we
conceal, or even think we were concealing that information from
you Or any other appropriate city official. If that is the problem,
and again perhaps you did allude to that in your denial letter of
March 23rd we stand ready willing and able to provide affidavits
or any other information that this council or any other appropriate
city official would want. We are not attempting to conceal
anything whatsoever.

Mayor Brombolich - Let me continue under this Section 111.4 —
Descniption of Work. The application shall contain the general
description of the proposed work, its location and the use and
occupancy of all parts of the building or structures and all portions
of the site not covered by the building or structure and such
additional information as may be required by the building official.
Asking the intent by a direct phone call to Dr. Escobedo and trying
thru our police department we were denied any answer as to the
intent of the building and as BOCA Code Clearly states that the
Building Commissioner the person responsible does have that
information — and is the type of information that should be given
to him. Can you answer what is the intent of the proposed
building?

Mr. Apoian — Yes, very clearly. It will be the intent — it will be

7

a medical building, it will be rented to other medical people, there
may well be a pharmacy, but the intent is it will be a medical
building, that's been our intention, it still is our intention, that was
specified in the application and I don't think we can be any Clearer
than that.

Mayor Brombolich - the application from Dr. Escobedo in
October, 1980 stated the purpose of the building will be a medical
facility, the application by Archview dated March, 1981 said a
multi-tenant office building. I consider that two differing types of
poles applications of the building. Is your facility a medical
building as you are stating now or a tenant office building as you
Stated in your permit?

Mr. Apoian - If the Mayor would look at the plans that
were submitted with tiie letter of application the plans were very
clear that the proposed building was going to me a medical
building.

Mayor Brombolich - but the application denotes what the purpose
of the building is and its listed as a multi tenant office building.
Mr. Apoian - Perhaps the misunderstanding is our fault, but we
believe that if taken as a whole the application together with the
architectural drawings etc. taken as a whole, make it quite clear
that the purpose and intent was that a medical building would be
constructed.

Commissioner DesPain - Could you give any reason as to the
confusion why you would call it one thing one time and multi
tenant office building the second time - why wouldn't you attempt
to be more clear than what you were?

Mr. Apoian - We apologize if we left an ambiguity there, I can
offer no explanation other than the fact that if you look at the
application and plans that were submitted as a package, the intent
is clear that it was a medical building and if there is any confusion
Or misunderstanding here tonight I would reaffirm that before this
audience, that the present intent is that we would seek permission
to erect the building and use it for a medical facility.

8

iil

If I may Mayor, Mr. Hall is here and you can ask him of the
intentions that were expressed to him in regard to the proposed ??
Mayor Brombolich —- Mr. Apoian my point is that you stated
previously that there was not any reason given and I think I stated
very Clearly in the very first paragraph the reasons for the denial
it was met with resistance and as far as I am concerned the BOCA
Code states that you have the applicant has the responsibility to
State the exact intent and not has the duty to state intent of the use
of building and it stiil hasn't as the application shows now, and I
tried to make inquiries of the intent of the building and it was met
with resistance and no information, as far as I am concerned saying
"general practitioner or dentist" is not, as far as I am concerned,
with the background of one of the persons involved with the
corporation, is still not sufficient. And I want to know if it is a
office building or if it is going to be a medical facility,w hat type
of doctors do you propose to have as tenants in this building?
Mr. Apoian - It will be a professional building, a medical building,
doctors of various fields of medicine will be permitted to secure
space from the corporation. By medical building it would cover
the whole gamut of specialties general practitioner, dentist.
Mayor Brombolich —- Mr. Apoian, let me approach that in a
different way, with the background of Dr. Escobedo, with the
Original application in October, and the subsequent use of his
address in his clinic on Manchester Road as the mailing address for
the application of the Illinois Corporation, with Dr. Escobedo's
background is the intent to bring any other practitioners from
Missouri or anyone in that line that advertises in the yellow pages
as far as abortions performed etc. is it the intent to have those
types of facilities and those type of doctors involved that he is
associated with in Missouri? ;
Mr. Apoian — Rather than me speak for the doctor if the Mayor
would like address the question directly to the doctor.

Mayor Brombolich — Remember that conversation by phone a
number of months ago and I asked you the intent of your building

9

the intent of the users what type of facility would be there what
type of doctor would be there and my last question of which you
refused to answer and you referred me to your attorney the last
question is — will your associates in your business in Missouri or
people in the like type of profession be involved in the facility in
Collinsville, namely abortionist, and you refused to answer that
question at that time? Can you tell me now will you or will the
facility involve people of that nature?

Dr. Escobedo ~ Well, my thoughts ever since we legally presented
request for a permit has been to build a medical building.

I don't recall the conversation - but I think I said -

Mayor Brombolich - Again, because of your association in
Missouri clinic and your association with practioners involved in
the medical field of abortionists and things of that nature, would
you foresee any of those types of physicians being involved in your
clinic locally?

Dr. Escobedo ~ My present plans are to put a medical building in
this place.

Mayor Brombolich - Thank you, doctor.

Commissioner DesPain - Mayor - doctor — Is it intended that this
facility will be licensed as an ambulatory surgical center by the
State of Illinois?

Dr. Escobedo - My plans are to put a medical building up. --
Commissioner DesPain - Did you understand my question, it was
a direct --

Dr. Escobedo — At the present time I only plan to put up a medical
building.

Commissioner DesPain - You do not have an application at the
present time to the State of Illinois for an ambulatory surgical
facility?

Dr. Escobedo - I do not.

Mayor Brombolich - Let's move on to another area. Anytime a
council member wants to jump in - please do. My letter dated
March 23, 1981, you mentioned that date as the date the letter was

10

submitted at least typed and sent out by this office. We also
received an appeal on April 6th, do you concur with those dates,
the appeal to the City Council we received it on Apnil 6th?

Mr. Apoian — What ever your records show.

Mayor Brombolich - Under the Collinsville Municipal Code
Section 16.18.010 Procedures of Appeals —- Any person not
Satisfied with the decision or action or failure to act of any officer
On an application for permit or for inspection or for approval or for
any other administrative function in your administrative procedure
provided in this chapter may appeal in 5 days to the council. This
appeal shall be in writing filed with the City Clerk, and shall state
briefly the alleged error in the decision or action or failure to act;
the City Clerk shall present the appeal to the council at their next
regular meeting, the council shall affirm or reverse to correct or
remand the decision so appealed. The date of March 23rd and we
received the appeal on April 6, is more like 14 days. In fact is
exactly 14 days. Now very clearly, in our municipal code it calls
for an appeal to take place within 5 days. Do you have any
comment on that please?

Mr. Apoian — Yes sir, Mayor, first of all, if I can address myself
to Division 16 if we read that in its entirety it is our position that
the Mayor is not the proper party to deny an application for a
building permit. Secondly, if I may, when we received your letter
of March 23, 1981 it was our Opinion in reading the letter as a
whole the reason for denial was zoning type problems. And
accordingly we perfected our appeal before the Zoning Board of
Appeals pursuant to Chapter 19, which is the Zoning Ordinance.
Pursuant to the Zoning Ordinance our appeal before the Zoning
Board of Appeals was and that appeal was to be held in
June, June 23rd if [ am not mistaken. On June 22nd or 21st the
exact date escapes me, I communicated with the Corporation
counsel after receiving your second letter of April 15, 1981, and I
might add that we didn't receive that on April 15 or 16th, it got to
us quite late, why I don't know, but at any rate your letter of April

ll

15, 1981 is attached as Exhibit 2 of this appeal indicates that the
proper jurisdiction of the Board of Appeals was on Zoning matters,
which signaled to me that in your initial letter denying the building
permit that you were denying it not because of a zoning problem
but because of something else. So in communication with the
Corporation Counsel, we were of the opinion, he was of the
opinion that this is not a zoning problem and the appeal which was
previously filed before the Zoning Board of Appeals be continued.
And brought before the City Council to take up whatever reasons
this body and you in particular had for denying the building permit.
It was also discussed with regard to the S days rule in Section 16
of which you have just referred that that would begin to run after
our June 23rd meeting before the Zoning Board of Appeals, and
accordingly on June 24th I filed the appeal which is presently
before this body, I would state further that provision Section 16.20
concerning appeals does not state may appeal within 5 days to the
council — it does not state within 5 days from what action. So
essentially when we were before the Zoning Board of Appeals back
in June 23, I believe, we were of the Opinion to expedite matters
to bring this appeal before this body, because as a practical matter
Should we have not received the week from the Zoning Board of
Appeals we would have appealed before the body anyway.

Mayor Brombolich - I think we are getting some timing, the letter
that we are referring to on March 23rd and received an appeal
marked April 6 and you stated the reason that appealed to the
Board of Appeals and you thought it was a Zoning matter and it
wasn't appealable to the City Council because it was a zoning
matter. It was a very short letter, let me read it and you can tell
me how you could interpret it as being a zoning matter. The City
denies to issue a Building Permit pursuant to the above application.
Investigation conducted by the City concerning the factual
information contained in the application has been met with
resistance, which includes lack of knowledge, repeated referrals to
other people who have little or no knowledge, outright refusal to

12?

_

answer legitimate inquiry, the use of secretary without financial
interest as incorporator, etc.

As Mayor of the City, I feel that it is not in the best interest of the
City to issue the permit.

It is my belief, based upon application and the investigations
conducted by the City, that the applicant i attempting to conceal
from the citizens of Collinsville the real use for which the building
is intended, and that the applicant is causing an additional financial
expense upon the taxpayers of the City by failing to cooperate in
the investigations. If in fact the building is to be used for an
abortion clinic, it would be contrary to the general health, safety
and welfare of the public to issue the building permit. Signed by
myself. Where do you interpret anything in her to be involving
zoning?

Mr. Apoian — Well, if I may under the Zoning Ordinance under
which we were aggrieved were to go before the Zoning Board of
Appeals in construing your March 23rd letter it indicates to me,
that we were almost in, as you term a Special Use situation under
B4 which proven you were not, and if your honor would refer to
Section 1-12 Speciai Uses I won't read the entire thing.
Considerations in granting Special Uses it states this Ordinance
divides the entire City into districts and in each district there are
mutually compatible uses which are permitted. It is recognized
however, that other uses may be necessary or desireable but their
potential influence or permitted uses could be harmful In other
words what that is saying is that basic ground work as to zoning in
general the municipality can determine the health welfare etc. in
creating zoning districts. In your letter of March 23rd that
indicates that may be one of your reasons, we were not really sure,
because there is language in her as to creating a problem etc. and
we interpreted that as being a zoning problem. Possibly your
honor was interpreting our request as a Special Use which it clearly
was not the situation under the zoning code. But, all that aside, it
has been our position from the very beginning as it is now that the

13

denial letter of March 23rd, is improper whether we go under
Section 19 of the Zoning Code or whether we go by Section 16.
The Ordinances under both provisions clearly specify the reason for
deniai and if the reason stated in your letter of March 23rd are not
in conformity with the Ordinances. Mayor Brombolich — I believe
that in the discussion of the BOCA Code in requiring petitioners to
give information as to the use, as to the officers in the corporation,
was the reason for the beginning paragraph. The last paragraph
indicates what I feel, as an officer in the community, would be the
problems with such a facility, if the facility would be an abortion
clinic. No where did I indicate it would be a zoning matter, in
fact, once the appeal came in 14 days after the denial was issued,
which is not in accordance by our municipal code which requires
a 5 day period, after that there wa another letter sent out that I sent
to the Archview Investment again. “It has been brought to my
attention that you have filed a Notice of Appeal to the Zoning
Board of Appeals from denial of Building Permit. So that you will
not be misled, please be advised that the jurisdiction of the Board
of Appeals is limited to matters of zoning. While the zoning
ordinance has sections relating to Building Permits, other local
ordinances relating to Building Permits are contained in the
Collinsville Municipal Code, Division 16. The Code Division 16,
requires, among other things, that the Mayor approve all building
permits (Section 16.12.050). This division also adopts the BOCA
Building Code for the City and said building code contains
requirements regarding building permits.

The City will interpret any order issued by the Board of Appeals
a being limited to zoning matters.

However, so that you will not be denied any remedy that you
choose to pursue in this matter, your appeal is being processed in
the usual manner”.

I think what we are telling you is that it is not a zoning matter.
Still you decided to appeal to the Board of Appeals - not the City
Council and not within the time limitations as restricted by our

14

City Code. This is my point that I am trying to get across right
now.

Commissioner Giflotto - I would like to ask Dr. Eacobedo a
question. Doctor, do you plan yourself to have an office in this
building?

Dr. Escobedo — I do not plan at this time.

Com Giglotto - At anytime at all?

Dr. Escobedo - At present time I don't plan - I have my practice
in West County. In St. Louis,

Co. Giglotto - And what happens, if you decide, we will say, to
move?

Dr. Escobedo - I am very busy in St. Louis, I got no time to come
here.

Com. Giglotto — If, Lf — If you took up residence in this building,
and a woman came to you and asked for an abortion, would
perform that abortion, in that building?

Dr. Escobedo — Well — I cannot answer that question.

Com. Giglotto - Why not? Are you a doctor?

Dr. Escobedo — I don't practice here, too.

Com. Giglotto — I said, if you were in the building and a woman
came to you and asked for an abortion, would you perform that
abortion in that building?

Dr. Escobedo — Sir, I am an obstetrician and gynecologist and I
would provide any service required for any woman that would
come to me as long as it wa according to the law. --
Commissioner Giglotto — That's all I have right now.

Mayor Brombolich — Mr. Apoian, In trying to investigate in trying
to arrive at what the facility would be used for and by who - and
who is the owner, there was some inquiries made and I would like
to read a little bit of the input I received. This was dated March
18, about the application for a building permit. On March 18,
Attomey, Betty Cooper of 7751 Carondelet, Clayton, Missouri
representing Archview Investment Inc. contacted me regarding
information I requested on March 13, 1981. He advised that the

15

incorporator of Archview Investments Inc. is his secretary, W.
Braun 12150 Eperney Court, Maryland Heights, Mo. who has no
financial interest in the corporation. He also advised that as an
Illinois Corporation formed January 28, 1981 with Attomey, Cary
Apoian, 110 North Main Street, East St. Louis, Illinois as a
registered agent. He further advised that the correspondence
mailed to 13979 Manchester Road St. Louis, Mo., that the
corporation would receive the mail but he would not disclose the
identity of the person receiving the correspondence. Mr. Cooper
also would not disclose the name of the corporate officers or would
reveal that a Dr. Escobedo was associated with the corporation, this
wa a memo to me from Detective John Swindle from our local
police department. This is exactly the type of corporation and
referrals we had and denial of the very sincere request to find out
who owned the corporation, what type of facility it was going to
be, that was met with resistance all along. And it was the main
objections and the reasons that was stated in the application denial
of March 23, 1981.

Mr. Cooper - I have represented Dr. Escobedo in the past, most of
what you said I agree with. The gentleman that called me
identified himself as Detective John Swindle I think that was the
correct name, of the Collinsville Police Department. To begin with
I have been practicing in Missouri, I am not licensed to practice in
Illinois, since about May of 1957, I have been involved in similar
matters involving real estate etc. and I have never, nor has anyone
in my Office ever had a police officer call us in connection with a
zoning matter, application for a permit, anything involved with the
development of real estate. So I found that extremely unusual,
however, everything you said up to about, just concur with the
things you said. Debra Brown is my secretary I told him that, |
told him that she has no financial interest that is correct. I told
him — I don't know if you said it or not, I couldn't remember, I told
him when the corporation was formed I gave him the date, I told
him it was an Illinois Corporation and what you didn't allude to

16

was that I told him he could confirm all this by checking in
Springfield, because that is where it is on record, as Mr. Taylor
well knows. I advised him of the name of the registered Agent, his
address, all of which is on record, I did not disclose him the names
and addresses of all the officers, he asked me and I told him that
I would have to consult with my client before I give out that
information. But that is not unusual because I didn't know why
that detective was calling, so as an attorney representing a client I
had no reason to believe there wa any reason for him to know that,
as it tums out, you knew anyway and we have never hid from you
that Dr. Escobedo has an interest in this corporation. Mayor
Brombolich — That is the first I knew that he had an interest. -
Please Mr. Cooper - I know that I am not in a friendly crowd here
but at least give me an opportunity to be heard. I have never heard
of a detective calling up for something like this. If you were my
client Mayor, and the same thing happened, and I don't know what
you were going to put up in the way of the detective also found it
Strange that the application for the building permit listed as a
mailing address the owner's address 139775 Manchester. I told
him that was because the piece of property that the client had
purchased was a raw piece of land in Illinois and there was no
address and there was no post office box in Illinois other than Mr.
Apoian's office and of course I had given them that address. He
found that very strange to, he found it strange that an Illinois
Corporation wouldn't have a mailing address in Missouri, and then
he found it strange that an Illinois resident might own stock in a
corporation that was authorized to do business in Illinois and that
was formed in Illinois. I didn't tell him what I am about to tell
you, because there was no need in discussing that.

Mr. DesPain — Do you want to clarify? — I believe you said Illinois
resident. Mr. Cooper - No. I'm sorry it's Missouri. He found it
strange that a Missouri resident might — he wasn't sure who the
Missouri resident was - but I knew then that he knew more than
he put on to know — he said that he found it strange that a

17

Missouri resident would own stock in a corporation formed in
Illinois and authorized to do business in Illinois, of course as all
you gentlemen know anyone who owns stock in a publicly owned
corporation whether it be AT&T or anything else, you are not
residents of whereever it is incorporated, presumably in New York
Or Delaware. But as far as what you said, except for that
explanation Mr. Mayor, what had been reported to you was correct.
May Brombolich, I don't know what is sO unusual about a detective
in the Police Department of a local community investigating or
substantiating facts or lack of facts on the application, it is. not
unusual for the City of Collinsville and not unusual for me, I might
go a little further showing or trying to show that we were trying to
arrive at some of the facts that we needed to process the
application. Another memo dated March 13 from Detective
Swindle to me Mr. Cooper - You said the 13th, that conversation
I just alluded to took place on March 18th.

Mayor Brombolich, This one is March 13th where he calls
attention to talked to Mrs. Katz, a Secretary at Fleischer—Seger
Construction Co. at 5725 Manchester Road in St. Louis, stating her
company owned and managed Regency Park Medical Center whose
address 13975 and their records revealed that the company by the
name of Archview Investments Inc. was not a tenant in the
complex located at 13975 Manchester Road, the application address
is the corporate headquarters or address. Gene Balazey, nurse at
Dr. Escobedo's office 13975 Manchester Road St. Louis County
Stated that she was not familiar with the Archview Investments Inc.
and that she checked the directory posted in the building and the
name was not listed in the directory. And it goes so on into
contacting secretaries in Missouri and Illinois; what I am trying to
Say is that not was their conversation with you on the 18th but
their conversation with secretary, the construction firm and the
owner of Lamack Construction Company stated that he had been
contact to construct a building on Pine Lake in Collinsville.
However, he did not know who the owner of the building would

18

be and was not familiar with the Archview Investment, Inc. He
further stated he was working for the architect for the building, a
Mr. Thomas Hall. Even the building construction people did not
know who they were building the building for. This was the type
of resistance that was met with our personnel from the Police
Department, trying to arrive at the fats that as stated in the BOCA
building code that should be immediately available to us, and we
met resistance, and that it the reason, one of the reasons, for the
letter of March 23, 1981. It is clearly stated, it has nothing to do
with zoning it doesn't mention or refer to zoning as far as I am
concermed.

Mr. Cooper — I can't answer what your investigation revealed. I
don't know Mrs. Katz and I don't know the secretary you just
mentioned, so I can't answer whether I would agree with what was
reported back to you or not. If I may be so blunt, I really never
understood after reading your letter, after checking the law, except
for your obvious opposition as everyone else here has to anyone
who may perform or be involved in abortion. I really never
understood what difference does it make if we made you an officer
of the corporation, or this fellow here or anyone here. What's the
difference if the application for the permit, the plans and the
purpose of the construction all comply with your law, what is the
difference? I wouldn't care whether you were a secretary of a
corporation or anyone here, what their background was, as long a
they were in compliance with the law. How can you stand in
judgement of other people? Mayor Brombolich — Mr. Cooper it is
very simple, the City of Collinsville does not require a business
license, I review all applications, business applications business and
residential. That is our onty means of overseeing what comes into
the community. Nothing unusual has been done to you that has not
been done to people in the pat or will be done in the future. That
is the only way that I as the Chief Executive of the community
receive input. If it is in the general walfare of the community, for
this type of facility, at this location to be built. As such I sought

19

information as to who was building the building nd then whenever
the application was changed and the corporation wa immediately
formed before a similar application with a different purpose, even
tho the plans were exactly the same, I though this was unusual and
tried to investigate who was building it. If the Original application
of Dr. Escobedo's was being hidden by a corporation being formed,
or if they actually wa a corporation using a different purpose for
the facility on Pine Lake Road, and I was met with resistance. |
am telling you to your face that nothing was done differently to
you that has not been done in the past and will not be done in the
future, as long as I sit in this chair.

Mr. Cooper — It seems to me that what this doctor wants to do will
help the community. Now you just started one of the reasons you
make these investigations is to, has something to do with finding
out the stability of the corporation or the person that is going to
build the building. I think that is what you are referring to. No
one has asked me and I don't think he has asked you and I know
he has never asked the doctor or Mr. Hall, #1 what he paid for the
land? #2 I think the application for the permit, if it is a standard
application does have a projected cost on it, no one has asked the
projected cost, what you are going to put into the building, how it
would enhance the value of the property, no one asked those
questions, and you are talking about the stability of the person or
persons or corporation building, those questions seem more
pertinent than whether you or I are an officer of this corporation.
Mayor Brombolich - Mr. Cooper, because of the intent of this
facility more so than the stability of the corporation is more
important to me, because the intent and use for a couple of reasons.
1. If it is an abortion clinic or abortions are to be performed, I am
familiar with what is taking place in Granite City. I am familiar
with what is taking place at De. Escobedo's facility on Manchester
Road thru input from St. Louis County Police Department. I have
to take into consideration the problems of traffic, crowd control
where demonstrators may be in the future, things like parking,

20

general public nuisance. These are the things I have to be
concemed about if it is to be a medical facility, and if the medical
center is to be used for something similar to an abortion clinic and
the main reason is because of Dr. Escobedo's background. I have
every reason to believe that his type of background is not going to
change once he is in ownership or part ownership of a facility here
in Collinsville.

Mr. Mayor, what you jst said, is the reason that
the appeal was taken to the Zoning Board rather than this body
initially was because of the tone of your letter and there were about
5 of us that looked at your letter and none of us cold agree with
what it meant, the only thing that we could assume was that if he
was going to put a facility that would house an abortion clinic, that
if he was going to do that, that was not within the zoning
ordinance, that is the only way that could be read.

Mayor Brombolich - I don't see how you could interpret that, |
read it once and [ will read it again.

Mr. Mayor do you think we would have
ignored appealing under anything else, the man wants his permit he
wants to build a building. He is not a lawyer he is not playing
lawyer, he wants no more or less than if you wanted to build a
home and someone denies you a permit. All he wants to do is get
his building up if he can, he is not intentionally ignoring a part or
parts of the law, so we looked at it and we saw only you talking
about health and welfare and abortion is the only thing we could
surmise, is that you are complaining about it not being in the
proper zoning district.

Mayor Brombolich — Well, Mr. Cooper the only thing that I want
the corporation to do is live within the laws that I live with, and
the procedure is stated in the Municipal Code, and it is stated very
clear and the only thing that I am referring to is that the appeal
procedure did not take place during the proper timing and if I was
trying to build a home I would appeal and I would appeal during
the proper timing, as dictated by law and I am trying to bring that

21

a

point across.

Mr. Cooper - The chances are Mr. Mayor you would be more
familiar with-than most people because of your knowledge of the
Ordinances, perhaps when you would appeal you would have got
the direct reason from whoever, the powers may be that denied you
the ampliation for permit, and as we read it first of all, please take
this in the right sense, when we read the ordinance you didn't have
any right to grant or deny it, I believe it was up to the Zoning
Administrator under your Office, and even under the Ordinance to
which you allude it doesn't Say that you are the one that either
denial (I think it was put in the negative) that you are the one that
denys it, but I dont know that we are here to discuss that, I am not
here to argue a point of law, but Only to give you the reasons why
the Archview appeal is under the zoning ordinance.

Mayor Brombolich - Does any council member have any questions
for the petitioner?

Commissioner Pamatot — Dr. Escobedo, Are you currently leasing
from facility from Fleischer-Seger on Manchester Road?

Dr. Escobedo - Yes

Com. Pamatot - Could you tell me the extent of that lease, for how
many more years?

Dr. Escobedo - We just renewed it, I don't remember, I can get
you a copy of that lease if you want.

Com. Pamatot — I would take your word for it.

Mayor Brombolich - Is there anyone else? If there are no further
questions of the petitioner, we will seek input from any objectors
that are here for this public meeting. Again, as I referred in the
Statement at the beginning of the meeting, anyone that would like
to address this council, as an objector to this appeal, I will ask that
you come forward to the microphone, state your name and address
and be as brief as possible, because we have a lot of people in
attendance, and we all don't want to be here all night. And I
reserve the right to cut people off if you become repetitive, because
if we get repetitive we will spend a lot of time Saying the same

22

thing. Now who would like to be first?
Suzanne Anderson - I would like to ask some questions.
Mayor Brombolich - No, please, the only thing that I am asking
for is input to the council, I am not going to have a cross
discussion between the petitioner and the objectors.
Suzanne Anderson — My objection is, I have not seen the plans of
this building and obviously the members of the council have, and
perhaps you are the ones that could ask the proper questions to find
out. This is a medical facility. Have you seen the plans for other
medical facilities? If this like other medical facilities, or are their
special things built into this particular building that are not put into
medical building? Is there something special in the way of waste
disposal, that you would not normally find in a building of this
type, anything besides toilets or sinks, or a utility room that would
have a garbage disposal, or is their any provision for any type of
wall units that might have suction in them, that have been put into
these plans? I would be very interested in knowing if there is
anything like that.
Mayor Brombolich - I am not familiar with anything like that.
Our building inspector is in attendance. Mel did you see anything
unusual like that?
Mel Heinicke — No sir, I did not see anything like that, its like any
other medical building that was built.
Ms. Anderson - Its like any other medical building that been
building here in town, Thank you.
Mayor Brombolich - Anyone else.
Maggie Brennan — There are petitions signed by 2,000 people from
Collinsville, Maryville, Caseyville, Troy, Edwardsville and St.
Louis that support your denial of issuing a building permit on Pine
Lake Road. We feel the applicant is attempting to conceai from
the citizens of Collinsville the real use for which the building is
intended.

I have another statement, I am familiar with physicians and
when they plan their office buildings they are usually asked to

23

,
inns —

submit to the owner or corporation what they like in there overall
planning for their office, how many rooms, what type of equipment
etc.. So if this going up as a medical facility now, that does not
mean that it cannot be changed in the near future for the needs of
whatever is designated 3 or 4 years from now.

Mayor Brombolich — Anyone else

Ralph Heiman - I live in Collinsville. I am reminded as | listen
to this, this evening that there are various undesireable facilities
that all of us have read about at one time or another that start with
waste disposal, dumps so to speak which are a constant problem.
We could talk about hazardous wastes which today has a very
special problem from the standpoint of the federal government
trying to find a state that will accept such a disposal facility and
certainly we have prisons — just to name a few. I would hope that
the council supported by the citizens of Collinsville would continue
to stay aware of disguised technically illegal setups that could
ultimately house such an undesireable facility, and that we find a
means to prevent this happening, if not by virtue of the kind of
presentation that happened here this evening, but perhaps
potentially thru a referendum or some other system.

Mayor Brombolich - Anyone else

I am Teresa Benevenuto and I want to say that I have grown up in
Collinsville and I am very proud of it, and I would hate to see any
kind of abortion clinic in it.

Mayor Brombolich - Mam

May name is Renee Hoskins and I am from Collinsville. I would
like to say, this is America, I got into this argument at a teacher's
lounge where I work, and unfortunately the majority rules and this
is Our town, and these men are our elected officials and the
majority would seem to say, that are the people that come out on
election day, these are people who petition and campaign for
people whose voices are heard, and so these men have to be aware
of that to, and this is what we want. We don't want anybody to
build an abortion clinic in our town and kill babies here, and so our

24

Mayor said we are behind him and that's important and you have
to remember that too that's more than the law, real legal nit-
picking stuff.

Andy Klein - I have not been a long time resident of Collinsville,
but I think that we look at a community here in is interested. And
I address particularly these lawyers here, I am starting law school
in August. And even tho you look at the fact that how can I
manipulate boards how can I look and get what I want in the way
of my terms, I think there are things more important in life than
just how I can manipulate to get what I want. I think the people
here know what the reason it and even tho abortion itself is
legalized still doesn't mean that we have to support it and I think
the crowd here is behind the fact that the right to life is a right that
has run thru the halls of freedom throughout our country for many,
many years and its not so much what the law says but what we
know is nght. And what you say is what Representative Melvin
Price says is destructive interpretation, to get what you want. The
main thing is whats in your heart, and I ask you gentlemen up
here, Dr. Escobedo and you two lawyers, I hope that I can be one
in three years, even tho you play the fact of words you play from
the standpoint of technicalities of law can get you what you want,
would you want your own children to be running around abortions,
would you like it if your mother would have had you an abortion?
So its more or less that the people want but more important what
you know in your heart is right, because in the end run your
conscience will rule.

Mayor Brombolich — Is there anyone else, if not we will move on?
My name is Marie Camillo, and I am a naturalized citizen, very
proud. The allegiance to the flag says freedom for all and that
means the unbom children.

Mayor Brombolich — we will move on to the rebuttal. Mr. Apoian
would you like to address the council again after what you have
heard here or any points you would like to make before this
council would make a consideration?

25

F
;
4
5
7

Mr. Apoian - Mayor I don't have much in the form of a rebuttal,
[ understand the ground rules. Your honor does not need for me
to reiterate what I said earlier, then [ would have nothing in direct
rebuttal to what was said here Other than the fact that the
ordinances are clear, and we are entitled to the building permit.
Mayor Brombolich - Thank you. Does any council member have
any further questions from the petitioner any clarification before we
take some kind of action?

Commission Giglotto - The Only comment I have Mayor is if I
could wear a different hat now and talk as a citizen of this town
and not a council member. I find it very very difficult to
understand why any person no matter who, color or sex would take
an oath to protect, preserve, life would want to do the exact
Opposite. I find that hard to believe.

Commissioner Pamatot — Mr Mayor may I say something at this
time? I would like to state that what you did at the beginning of
this year was a very Courageous thing, that you represent this
community and certain members of this council. A lot of things
are permitted by our constitution throught the country, but
Collinsville is my hometown and I do not necessarily allow
everthing to go in this community. Mr. Mayor I would like at this
time to make a motion.

Mayor Brombolich - The motion is in order.

Commission Pamatot - I move to concur with the position of the
Mayor and deny a building permit to Archview Investment, Inc. on
the following grounds:

1. Appeal was not filed in compliance with the requirements
of Sec. 16.20.010 of the Collinsville Municipal Code.
y It is contrary to the general health, safety and welfare of the
public in the following respects:

a) Cause traffic problems

b) Cause parking problems

C) cause crowd control problems

d) create a public nuisance

26

¢) is contrary to public policy of this city
3. Applicant failed to comply with requirements of the BOCA
Basic Building Code/1981 Sections 11.2; 111.3; 111.5; 111.6; and
111.7.
Commission Giglotto second the motion.
Is there any discussion or comments?
Commission Klein - Mr. Mayor I would just like to made a brief
statement. This decision this evening that these 5S gentlemen up
here are going to vote on, setting aside the emotion issue that a
good many people in the audience are here about this evening. |
feel should be based upon, primarily speaking for myself to the
office for which I was elected must be based solely on whether the
people that are applying for something much be in compliance with
the applicable statues of the state, City ordinances which the
BOCA Basic building code that the motion has reference to. Using
those things as the basis, I think this is what we all have to decide
what is actually right and legal, based upon these things, not the
emotional issue.
Mayor Brombolich - Does anyone else want to make a comment
before we take roll call?
Commissioner DesPain — If we could just take a little time Mayor.
Mayor Brombolich - While the commissioners are taking time to
compile their thoughts, I would like to introduce the members at
the tables here. Mayor introduces the council, City Clerk,
Attorneys Taylor and Urban.
Commissioner DesPain - I feel that Mayor has to make some
decisions, some of which all the legal ramifications cannot be
addressed specifically. I feel he has to have administrative
discretion. I feel that there is an extreme emotional issue in regard
to this, I do not feel that that particular emotional issue should be
particularly address in that, however I do fee that he should have
the administrative discretion at least that 2 of the 3 parts of the
motion I concur with and upon roll call I will concur with it.
Mayor Brombolich - Would anyone else like to address? Before

27

we have the roll call, [ think that my opinion and my viewpoints
have been clear since last October, and I won't bother to reiterate,
but my position has been very clear all along.
Roll Call City Clerk.
Ayes: Pamatot, Giglotto, Klein, DesPain, Brombolich.
Nayes: None
Mayor Brombolich - The appeal of the decision of that permit has
been denied, the permit will stand as denied to the petitioner. The
only thinkg I can say Mr. Apoian is that the minutes of the meeting
will be made available to your and whatever assistance we can

have to any further legality that you wish to pursue will be of a
talkative nature.

Thank you everyone for attending. We are adjourned.

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1275%3A2. Public record. Not legal advice.