Marlowe v. Village of Wauconda
| Decision Date | 22 December 1980 |
| Docket Number | No. 79-698,79-698 |
| Court | United States Appellate Court of Illinois |
| Parties | , 47 Ill.Dec. 655 James MARLOWE, L & M Builders, Signet Home Center, Inc., and Gerald Strobot, Plaintiffs-Appellees, v. VILLAGE OF WAUCONDA, a municipal corporation, and John Dianis, Defendants- Appellants. |
Judge, Drew, Cipolla & Kurnik, William W. Kurnik and Jay S. Judge, Park Ridge, for defendants-appellants.
DeJong, Poltrock & Giampietro, Wayne B. Giampietro, Chicago, for plaintiffs-appellees.
Defendant, the Village of Wauconda, and its mayor, John Dianis, appeal from a judgment entered after trial by jury which awarded damages of $35,000 each to plaintiffs, James Marlowe and Gerald Strobot, and $35,100 to plaintiff, Signet Home Center, Inc.
In Count I of their amended complaint plaintiffs sought recovery of damages pursuant to 42 U.S.C. § 1983, 1 alleging that defendants deprived them of their right to due process and the equal protection of the laws, and in Count II they sought damages for malicious prosecution.
The events giving rise to this action first occurred in 1975 when Marlowe, a builder and contractor, purchased four lots in the village. Before doing so, he had consulted with William Sutton, the village building inspector, who informed him that local zoning ordinances permitted construction of single family homes on the lots. Plaintiffs Marlowe, Strobot and a third person then formed plaintiff, Signet Home Center, Inc., and secured construction loans. Marlowe furnished surveys of the lots and the proposed construction sites upon them to the building inspector and on May 12, 1975, was given the requisite building permits. Construction was commenced and excavation, footings and foundation were completed on lot 85 and excavation and footings only on lot 84. Neighbors observing the work questioned whether the construction met the rear yard set back requirements of the village zoning ordinance and complained to Mayor Dianis and to certain village trustees. These officers met with the neighbors at the construction site, observed the work in progress, took measurements and discussed whether there was a zoning violation .
A "rear yard" is defined in the village zoning ordinance as "the yard extending the full width of the rear of the zoning lot between the rear lot line and a building line." (Wauconda Zoning Ordinance, sec. 1902.) The zoning ordinance also requires that a single family residence must be located on a lot so as to have a rear yard depth of at least 25 feet or 20 percent of the average depth of the lot, whichever is smaller. (Wauconda Zoning Ordinance, secs. 1902 and 1903.3-5.) Lot 84, with which we are primarily concerned in this case, was pie-shaped, however, and there was an uncertainty among those considering the problem as to the correct points from which to measure to determine whether the rear yard set back requirement was met.
Marlowe argued, and the village building inspector who had approved the siting and at least one trustee apparently agreed, that compliance with the ordinance was attained if the rear yard measured 25 feet at any point between the building and the property line, as shown by measurement A. The mayor, some of the trustees, and others, considered that the terms of the ordinance were not met unless the 25 feet or 20 percent set back pertained at each point between the building and the rear property lines. Under this view of the ordinance plaintiff's construction within approximately six feet of the property line, as shown by measurement B, would clearly be in violation.
On May 14, 1975, Mayor Dianis directed the building inspector to place a "red tag", or stop order, on lots 84 and 85. This notice stated that a violation of the zoning or building ordinances of the Village of Wauconda existed on the lots and that no further work may be done on the buildings. It further advised that failure to comply with the notice would subject a violator to a fine of not more than $200. The mayor also directed the building inspector to deliver a letter (signed by the building inspector but drafted by the mayor) to plaintiffs which stated the reasons for the issuance of the stop order. The building inspector did so and the letter stated, inter alia, that the minimum rear yard requirement was not met, the construction infringed on a utility easement and would be under high tension power lines. It directed that the violations should be corrected or the excavations filled as constituting a danger.
In an effort to resolve the dispute, the mayor, building inspector and certain village trustees met at the construction site with Marlowe and Strobot on May 17, 1975. Measurements were again taken and when it was determined that lot 85 was in compliance with the ordinance, the red tag was removed by defendants and construction resumed on it. There was no agreement reached, however, as to lot 84. During the discussion a neighbor, Earl Clifford, stopped by the site when he saw all the people there. He testified that the building inspector and one of the village trustees had said there were no zoning violations. He also testified he heard defendant, Mayor Dianis, say he Clifford also stated the mayor was not addressing anyone in particular but merely making a comment. The stop order remained upon lot 84 and plaintiffs did not then continue with construction on that lot.
At about this time the building inspector also informed Marlowe that plaintiffs could appeal the stop order to the village zoning board of appeals. The Wauconda zoning ordinance provided as follows in this regard:
(Wauconda Zoning Ordinance, sec. 1906.1(B).)
The ordinance further provided that an appeal stayed all proceedings unless the building inspector certified that to do so would cause imminent peril. It also provides for notice to the parties of the hearing, that any person may there testify, and that the board of appeals was authorized to reverse, affirm or modify the decision appealed.
Marlowe testified that plaintiffs declined to appeal the stop order, feeling it would be a waste of time because some of the persons on the zoning board of appeals were also at the May 17 meeting. Strobot testified in this regard that he was himself a member of the board of appeals and declined to appeal to it as he didn't believe it could do anything to resolve the problem. Both Marlowe and Strobot also testified they had never had any prior problems, disagreements or confrontations with Mayor Dianis.
The impasse continued until near the end of July 1975 when plaintiffs, acting on the advice of their attorney, resumed construction on lot 84. When the mayor learned of this he directed the building inspector to charge them with the ordinance violation and on August 5, 1975, village police officers served Marlowe at the construction site with a "Non-traffic Complaint and Notice to Appear." It was signed by the building inspector and charged Marlowe with violation of the rear yard set back ordinance. The complaint and notice directed Marlowe to appear in court on August 22, 1975, and on his failure to do so stated that the court would issue a warrant for his arrest. The police officers, however, advised Marlowe he would have to return with them to the police station to post bail. He did so and was required to wait there for several hours until he could obtain the $25 bail deposit required for his release. Thereafter, on August 6, a similar complaint was served upon Strobot at the construction site and he, too, was required by the police officers to go to the police station and post $25 bail for his release.
On September 17, 1975, the village sought an injunction against plaintiffs in the circuit court to prevent further construction on lot 84 in violation of the zoning ordinance. A temporary restraining order was issued by the court but the village's request for a permanent injunction was denied after trial of that issue. In denying the injunction the trial court found, inter alia, that the village had failed to prove the rear yard violation claimed and that it was estopped from prohibiting construction on the property in conformance with the plan submitted to the building inspector and the building permit issued by him. The village appealed to this court from the denial of the injunction and it was still pending at the time of the trial of this case. 2 After the injunction was denied plaintiffs resumed construction on lot 84 and completed the house in September 1976. Subsequently, they applied for an occupancy permit from the village which was not issued to them until several months thereafter; no reason for the delay appears in the record. Plaintiffs also testified they had received an offer to purchase the premises for $42,500 but that the sale was not consummated because the pending appeal by the village of the injunction case prevented them from providing a clear title to the prospective buyers.
In their appeal of this case defendants contend they did not, as a matter of law, violate plaintiff's constitutional rights by their conduct and, in...
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