Hawthorne Bank of Wheaton v. Village of Glen Ellyn

• Citation: 154 Ill.App.3d 661,107 Ill.Dec. 97,506 N.E.2d 988
• Decision Date: 09 April 1987
• Docket Number: No. 2-86-0991,2-86-0991
• Parties: , 107 Ill.Dec. 97 HAWTHORNE BANK OF WHEATON, as Trustee under trust number 79-972, Alfred Blaszczak and Elenore Blaszczak, Beneficiaries of said Trust, Plaintiffs- Appellees, v. VILLAGE OF GLEN ELLYN, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 988

506 N.E.2d 988

154 Ill.App.3d 661, 107 Ill.Dec. 97

HAWTHORNE BANK OF WHEATON, as Trustee under trust number

79-972, Alfred Blaszczak and Elenore Blaszczak, Beneficiaries of said Trust, Plaintiffs- Appellees, v. VILLAGE OF GLEN ELLYN, a municipal corporation, Defendant-Appellant.

No. 2-86-0991.

Appellate Court of Illinois,

Second District.

April 9, 1987.

William E. Jegen, P.C., Glen Ellyn, for defendant-appellant.

Botti Marinaccio DeSalvo & Pieper, Joseph Michael Williams, Aldo E. Botti, Oak Brook, for plaintiffs-appellees.

Justice INGLIS delivered the opinion of the court:

This appeal arises from the entry of a temporary restraining order and an order granting preliminary injunctive relief against the village of Glen Ellyn (Village). The plaintiffs, Hawthorne Bank of Wheaton, as trustee, and Alfred and Elenore Blaszczak, as beneficiaries, filed an action to enjoin the Village from erecting a streetlight in the space occupied by a private canopy which was attached to plaintiffs' building and extended over a public right-of-way. The trial court entered a temporary restraining order, without notice, against the Village. The trial court subsequently issued a preliminary injunction, enjoining the Village from erecting the streetlight or from otherwise interfering with plaintiffs' canopy. The Village appeals from both orders of the trial court.

Plaintiff, Hawthorne Bank of Wheaton, as trustee under Trust No. 79-972, is the owner of a building located at 413 Main Street, in the central business district of Glen Ellyn, Illinois. Alfred Blaszczak and Elenore Blaszczak (Blaszczak) are the beneficiaries of the Hawthorne Bank trust.

The building is a 3 1/2-story commercial structure containing four stores and a ballet school. Attached to the front of the building at the entranceway leading to the ballet school is a canopy which extends into the Main Street public right-of-way. The canopy consists of a tubular frame with a canvas cover. The outer end of the canopy is supported by two poles placed on the public sidewalk and located substantially even with the curb. Three signs advertising the ballet school are painted on the canopy cover. The ballet school is operated by Maureen Mylan (Mylan), one of the Blaszczaks' tenants. The original canopy was installed sometime between 1926 and 1929. The exact structure and signs on the canopy have existed for 12 years. The canopy cover was replaced by Mylan sometime in 1978. No permit was sought at that time as required by the Village Sign Code.

In 1985, the Village began a two-year improvement project in its central business district which included, inter alia, installation of a new, uniform streetlighting system. Work on the project was scheduled to be completed by October 13, 1986. The Village hired PRC Engineering (PRC), a professional engineering firm, to design a streetlighting system using standardized fixtures capable of illuminating the public way for the safety of both pedestrian and vehicular traffic. In addition, the lighting system was to provide enough light to deter crime in the central business district. The Village did not specify the location of any street light fixture, but rather relied upon PRC's recommendations.

Preliminary engineering plans were prepared prior to February 18, 1986, at which time the Village conducted a public hearing to receive comments on the plans. Notice of the public hearing was mailed to persons receiving water bills from the Village, including Blaszczak, and notice was also published in the newspaper. The notice did not specifically mention the placement of streetlights, but rather was a general notification that capital improvements would be taking place in the central business district. Neither Blaszczak nor Mylan were in attendance at the public hearing. Blaszczak testified that he did not receive notice of the hearing.

The plans discussed at the hearing indicated that a streetlight fixture would be located in the space occupied by the canopy. The Village subsequently adopted an ordinance authorizing the improvement of Main Street in accordance with the final plans prepared by PRC. Pursuant to the final plans, the locations of the streetlight fixtures were subject to change at the engineer's direction. The lights along Main Street were in fact spaced with no two being the same distance apart.

On September 5, 1986, representatives of the Village met with Blaszczak and Mylan to discuss the location of the proposed streetlight. The parties also discussed removal or modification of the canopy to accommodate the streetlight. On September 8, 1986, the parties met again, this time with a representative of Williams Awning Company. At this meeting the parties discussed modifying the canopy to avoid interference with the streetlight fixture. The purpose of this meeting was to obtain information on the type of modification necessary to relocate the canopy and to obtain an estimate on the cost.

On September 9, 1986, Blaszczak and Mylan sent a letter to the Village president requesting that work on the streetlight be stopped until the problem was resolved. Mylan subsequently advised Blaszczak that the permanent removal of the canopy and sign would harm her business. Mylan testified that 80% of her business was generated from the advertising on the canopy. Mylan later testified that if she was able to maintain a sign in conformance with the Glen Ellyn Sign Code of substantially the same size as the one on the existing canopy, but set back 3 feet from the curb so as not to interfere with the streetlight, she would be able to adequately draw clients to her business.

Sometime around the middle of September, the existing sidewalk in front of 413 Main Street was removed, eliminating the support for the poles at the outer end of the canopy and rendering the canopy crooked. In addition, a base was installed for the light fixture.

On September 16, 1986, plaintiffs filed suit requesting a preliminary and permanent injunction against the Village. Plaintiffs also filed an emergency motion for a temporary restraining order, orally advising the attorney for the Village that they would appear on the morning of September 17, 1986, to request the temporary restraining order.

On September 17, 1986, the Village filed its appearance and answer denying the substantive allegations of the complaint and stating affirmative defenses. No temporary restraining order was entered, and the hearing was continued to September 24, 1986. On September 24, 1986, the temporary restraining order was not sought, and the hearing was continued to September 26, 1986. No proceedings were held on September 26, 1986.

On October 3, 1986, the Village delivered a letter to the plaintiffs and Mylan advising them to remove the canopy. The letter further advised them that their failure to remove the canopy by the following Monday, October 6, 1986, at 4 p.m., would result in its removal by the Village. The letter was sent in order to bring the matter to a prompt conclusion so that the project could be completed within the time frame of the contractor, who was working under a bonus-penalty contract.

On October 4, 1986, Williams Awning Company gave an estimate indicating that the cost of modifying the canopy frame to avoid interference with the streetlight would be $452.

On October 6, 1986, plaintiffs' counsel appeared in court and, without giving notice to the Village, requested that the trial court issue a temporary restraining order against the Village. No additional sworn testimony or affidavits were presented in support of this second request for a temporary restraining order or in support of a waiver of notice. At the time the temporary restraining order was entered, the attorney for the Village was out of town. However, an attorney from the office representing the Village was available to appear and argue on its behalf. The trial court issued the order without notice on the belief that the case had been settled, and that the October 3, 1986, letter had been sent to the plaintiffs as a result of miscommunication.

On October 10, 1986, the Village sent a letter to Blaszczak and Mylan indicating its willingness to pay for the modification of the canopy. Also on that date, the Village filed a motion to dissolve the temporary restraining order. A hearing on the motion was conducted on October 15, 1986, and was subsequently continued to October 16, 1986. On October 16, 1986, evidence concerning the preliminary injunction was heard, and the hearing was continued to October 17, 1986. On October 17, 1986, the court continued the temporary restraining order beyond the initial 10-day period to October 20, 1986.

On October 20, 1986, without expressly ruling on the Village's motion to dissolve the temporary restraining order, the trial court entered an order granting a preliminary injunction, enjoining the Village from completing the streetlight or from interfering in any way with the plaintiffs' canopy. The Village appeals from both orders of the trial court. We reverse.

There are two issues on appeal: (1) whether the trial court abused its discretion by issuing a preliminary injunction enjoining the Village from installing a streetlight in the public right-of-way; and (2) whether the trial court erred by entering a temporary restraining order without notice to the Village.

With respect to the first issue, the Village contends that the trial court abused its discretion when it entered the preliminary injunction enjoining the Village from installing the streetlight. For a preliminary injunction to issue, the party seeking the injunction must show that: (1) he possesses a certain and clearly ascertainable right which deserves protection; (2) he will suffer an irreparable injury if the injunction is not granted; (3) the threatened injury to him would be immediate, certain and great if the injunction is denied, while the loss or inconvenience to the defendant is...