Koziol v. Village of Rosemont
| Decision Date | 16 October 1961 |
| Docket Number | Gen. No. 48376 |
| Citation | 32 Ill.App.2d 320,177 N.E.2d 867 |
| Parties | Richard D. KOZIOL and Geraldine L. Koziol, Appellees, v. VILLAGE OF ROSEMONT, a Municipal Corporation, et al., Appellants. |
| Court | United States Appellate Court of Illinois |
Ancel, Siegel & Stonesifer, Chicago, Louis Ancel and Jack M. Siegel, Chicago, of counsel for appellants.
Hennig & Croft, Chicago, Manly R. Croft and Bernard A. Hennig, Chicago, of counsel, for appellees.
This is a declaratory judgment action, in which defendants appeal from a decree restraining them from interfering with the construction of plaintiff's residence. The decree includes an order for the issuance of a writ of mandamus, directing defendants to reissue or reinstate plaintiffs' building permit, which defendants had revoked.
On June 8, 1960, the defendant officials of the Village of Rosemont issued a permit to plaintiffs for the erection of a single family residence on a lot owned by plaintiffs in the village. After plaintiffs had excavated the area of the building site, poured the concrete footings, piers and foundation walls, the village issued a stop order on June 27, 1960. The officials of the village asserted that the foundation will was too high and exceeded the permissible limits prescribed by the ordinances of the village, and that the foundation wall would have to be removed.
Thereafter, on August 10, 1960, plaintiffs filed a declaratory judgment action, in which they ask for a restraining order, a determination that the village ordinance involved was invalid, and an order directing the village officials to rescind their stop work order and 'to approve any applications made to them for permits, licenses or otherwise in keeping with the spirit and intent of the order of this Court.' On October 20, 1960, the court overruled defendants' motion to strike the complaint and dismiss the cause. It was defendants' premise that the 'exclusive remedy for the revocation of the building permit or the stopping of work is by way of a Writ of Mandamus and the present action will not lie.' Defendants then answered, and the declaratory action proceeded to a decree.
The evidence shows that on June 8, 1960, the village had in effect an ordinance which required a side yard on each side of a residence of 10 per cent of the lot width, and an ordinance which provided that 'the Village Engineer shall establish the finished grade of all construction'; that plaintiffs' lot is 60 feet wide and slopes from the east to the west; that plaintiffs submitted building plans to the village, which indicate the top of the foundation was to be 6 inches above the grade of the lot, and that on the west side of the building there was to be an open sunken stairway and platform lying below grade, leading to the basement entrance, extending 4 feet beyond the west building wall; that the projection of the basement stairway into the west side yard was not shown on a plat of survey, also submitted by plaintiffs with the building plans; and that the village officials revoked plaintiffs' building permit on October 20, 1960.
Plaintiff, Richard D. Koziol, testified that before the excavating started he was told by the village officials to set the top of the foundation 2 feet above a mark on a stake set in place by the village engineer; that the stake was knocked down after the foundation wall was poured, and he didn't know what happened to it; that when the concrete footings were poured for both the foundation and the basement stairway retaining wall, the village engineer inspected and approved them, and then the concrete foundation wall in question was poured; that the present foundation wall is 10 inches above the existing lot grade on the east side of the building and 27 inches above the existing lot grade on the west side. The village engineer did not testify. Defendants' only witness, the village president, testified as to conversations with Koziol about the height of the foundation wall after its installation.
The declaratory decree entered on November 18, 1960, found that the village on October 21, 1958, passed an ordinance, which provided 'The Village Engineer shall establish the finished grade on all construction,' and on August 2, 1956, passed an ordinance adopting the 'National Building Code,' wherein the word 'grade' is defined as 'Grade, with reference to a building or structure, means the average elevation of the ground adjoining the building or structure on all sides'; that no definition appears of the words 'finished grade' in any of the ordinances of said Village of Rosemont; that the plans and specifications submitted by plaintiffs 'do in fact conform to the Zoning Ordinances of the Village of Rosemont'; and that the plaintiffs have not violated said ordinances of the Village of Rosemont with respect to the setting of the grade; that the permit issued to plaintiffs 'was not based upon a misleading or incorrect plat of survey and that in fact an outside stairway is not and does not constitute a violation of said side yard requirement of the said Ordinance of the Village of Rosemont.'
The decree determines and declares that the 'finished grade ordinance' is valid, legal and constitutional and 'is applicable only to the average elevation of the ground adjoining the building or structure on all sides, but does not refer nor is it applicable to the height of the foundation wall of the plaintiffs' premises'; and that defendants 'have no legal right or authority to prescribe the height of the foundation wall of plaintiffs' premises.' The order restrains all of the defendants from enforcing or applying the questioned ordinance against plaintiffs' premises and restrains them from interfering in any manner with the construction of the building under any authority conferred by the ordinance. The defendants are also 'ordered and directed and mandated to revoke any and all stop orders * * * and void the revocation of the building permit previously issued the plaintiffs, and to reissue or reinstate said building permit as aforesaid.' The clerk of the court is directed to issue 'this Court's writ of mandamus,' containing the commands of the decree. The court also reserved jurisdiction of the cause to make such further orders as may be necessary in the premises.
The principal question is presented by defendants' contention that mandamus is the exclusive remedy for the issuance or reissuance of a building permit, and that the trial court erred in not...
To continue reading
Request your trial
-
Mack Indus., Ltd. v. Vill. of Dolton
...use of the declaratory judgment act, supplant mandamus in cases where the controversy is ripe. See Koziol v. Village of Rosemont, 32 Ill.App.2d 320, 326–28, 177 N.E.2d 867 (1961) (in which the case did not initially require the use of mandamus ). We need not settle that question in this cas......
-
STATE TOLL HIGHWAY AUTH. v. Amoco Oil Co.
...Elm Lawn Cemetery Co. v. City of Northlake, 94 Ill.App.2d 387, 391, 237 N.E.2d 345 (1968), quoting Koziol v. Village of Rosemont, 32 Ill.App.2d 320, 327-28, 177 N.E.2d 867 (1961). This district further "`The scope of the declaratory judgment remedy should be kept wide and liberal and not re......
-
St. Joseph Hospital v. Corbetta Const. Co., Inc.
...by the mere existence of another form of action which could presently be employed.' To the same effect see Koziol v. Village of Rosemont (1961), 32 Ill.App.2d 320, 327, 177 N.E.2d 867; LaSalle Gas Co. v. Lobono (1968), 93 Ill.App.2d 114, 118, 236 N.E.2d 405; Kitt v. City of Chicago (1953), ......
-
State ex rel. Marshall v. Civil Service Commission of Columbus
...opinion of Herbert, J.; Wilson v. West Virginia Board of Embalmers and Funeral Directors, 168 F.Supp. 753; Koziol v. Village of Rosemont, 32 Ill.App.2d 320, 177 N.E.2d 867; 20 Ohio Jurisprudence 2d 52-67, Section 18; 29 Ohio Jurisprudence 2d 182; 27 American Jurisprudence 2d 619, Section 96......