Appeal from the Circuit Court of Lake county; the Hon. BERNARD
M. DECKER, Judge, presiding. Decree affirmed.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT. The Village of Lake Bluff, a municipal corporation, hereinafter referred to as the plaintiff, filed on September 20, 1956, a complaint in chancery against Fred H. Horne, hereinafter referred to as the defendant. Plaintiff prayed for a temporary and permanent injunction to restrain further construction on defendant's building and for a mandatory injunction ordering defendant to alter said building to conform with the plaintiff's zoning ordinances, in accordance with the conditions upon which the plaintiff issued a building permit to defendant. Defendant and his wife, Janice B. Horne, who are the owners of the house and real estate in dispute, filed a counterclaim praying that plaintiff be restrained from interfering with defendant's building or the remodeling of it. On July 14, 1958, the trial court entered a decree finding the equities in favor of the plaintiff, granting a mandatory injunction requiring defendant to alter his building to comply with the zoning ordinances of the plaintiff and dismissing the counterclaim for want of equity. Defendant takes this appeal from the entire decree.
The building involved in this proceeding is a two story, frame, one family dwelling located at 541 Prospect Avenue, Lake Bluff, Illinois, and is owned in joint tenancy by defendant and his wife. At the present time the building is 46 1/2 feet long, north and south, and 43 1/4 feet wide, east and west. It is located partly on lot 13 and partly on lot 14, each lot has a width of 25 feet. Defendant also owns lot 15, which has a width of 25 feet and adjoins lot 14 on the west. The portion of the building situated on lot 13 is 46 1/2 feet long and 22 1/2 feet wide; and that portion of said building situated on lot 14 is 32 1/4 feet long and 20 3/4 feet wide. The combined width of said lots 13, 14 and 15 is 75 feet and each lot has a depth north and south of 66 feet. The major portion of defendant's house proper is located on lot 13.
From June 30, 1908, to April 6, 1922, lots 14 and 15 were owned by Chicago Title and Trust Company as trustee. From April 6, 1922, to December 1, 1943, lots 14 and 15 were owned by Annie M. Mennie and Addie R. Sprague, or the survivor of them. From May 10, 1911, to July 1, 1930, lot 13 was owned by Ethel Lou Appleton. From July 1, 1930, to December 1, 1943, lot 13 was owned by William Eldredge Appleton. From May, 1911, to December, 1943, the entire building was situated on lot 13 and during all that time the east wall of the projection in question was 2 1/2 feet from the east line of lot 13.
Plaintiff and defendant refer to the portion of the house in dispute as "the projection" and herein we will use this same terminology. The projection is about 2 1/2 feet wide and 14 1/2 feet long. The projection is one story high and has a slanting roof back to the main east wall of the building.
On December 1, 1943, Marion Scott purchased lot 13 from William Appleton and lots 14 and 15 from Annie M. Mennie. At that time the entire building was still situated on lot 13 and had a side yard on the east side of 2 1/2 feet. On September 13, 1945, Marion Scott applied for and obtained a permit to demolish and reconstruct the projection. Shortly thereafter, Marion Scott demolished and rebuilt the projection in accordance with the permit and, at that time, the entire building was still situated on lot 13 and it had a side yard on the east side of 2 1/2 feet.
Sometime thereafter, but prior to July 21, 1948, Marion Scott erected a garage on lot 14 and constructed a breezeway connecting the garage to the building on lot 13. Prior to that time, the entire building in question was situated on lot 13. In 1948, the defendant and his wife purchased the house and lots 13, 14 and 15 from Marion Scott.
During all of the time that the defendant has owned the property, part of the projection was devoted to a utility room and part to a kitchen. The part of the utility room within the projection contained the heat circulating pump, most of the heating boiler, electrical, gas and water services and sewer connection. The part of the kitchen within the projection contained the sink, cabinets and other kitchen equipment.
In 1911 that part of the projection which is now a part of the utility room was a bathroom with the east wall of the bathroom being the east wall of the projection in the same location as it now is. In 1911, that part of the projection which is now a part of the kitchen was not enclosed but was an open porch with the east line of this porch in the same location as the east wall of the present kitchen. The house remained in this condition until 1925. At that time, Norman Appleton remodeled the building by changing the bathroom to a utility room and installing a heating plant in the same location as the present heating plant and built a chimney. He also made the porch into a coal bin with its east line in the same location as the east line of the porch and the east wall of the coal bin was in the same location as the present east wall of the kitchen.
In 1952, defendant enclosed the breezeway and added it to the living room. Defendant contends this work was done pursuant to a permit and plaintiff contends that a permit for this particular work was not issued until after the work was completed. Also in 1952, defendant's kitchen was tiled, painted and redecorated and a new kitchen sink, disposal, dishwasher and formica counters installed. The dishwasher, counters, cabinets, new kitchen sink and disposal were all located in the projection. Defendant testified that the cost of this construction was between $8,500 to $9,000.
In 1952, plaintiff's Building Commissioner, Mr. Kuhlman, informed defendant that the projection was in violation of plaintiff's side yard ordinances because it was too close to the east lot line and that no further construction could be done on the premises until the projection was removed.
The defendant early in 1956 contemplated further remodeling of his house and in May 1956, he talked with Mr. Kuhlman, the Building Commissioner, in reference to this work. The defendant did not have the plans at this time but only sketches which he showed the Building Commissioner. The commissioner told him that the projection was too close to the lot line and would have to be removed. The defendant testified that he discussed the removal of the projection with Robert McClory, attorney for the plaintiff, by telephone and that Mr. McClory told him this was a non-conforming use and if he did not build beyond it, there would be no difficulty. McClory admitted a conversation but denied that he told the defendant that it was a non-conforming use. McClory then called Kuhlman and told him of his conversation with the defendant. Defendant testified that he called Kuhlman and inquired about the permit and that Kuhlman said the projection would have to be removed before a permit would be issued.
On June 14, 1956, defendant filed with plaintiff an application for a building permit and plans showing the proposed construction. The application and plans were delivered to Kuhlman at his home that evening or the next evening. On the evening of June 15, 1956, defendant called Kuhlman at the latter's home and inquired as to what was holding up the issuance of the permit. Kuhlman told defendant the projection was in violation of the side yard provisions of plaintiff's ordinances and would have to be removed before a permit would be issued.
Defendant then called McClory and advised him that Kuhlman was being arbitrary in his refusal to issue a permit, that Kuhlman wanted defendant to revise his plans, and that defendant was leaving on his vacation the next day and could not get a new set of plans prepared in time. McClory said he was sure that Kuhlman would permit defendant to change the plans on their face because he, McClory, had recently made an addition to his own home and had to change the plans as originally submitted and that he had been permitted to change the plans on their face. McClory then asked defendant if he would comply with the building and zoning regulations and defendant said he would. McClory then called Kuhlman and reported the conversation to him.
Defendant called Kuhlman again that evening and advised him that McClory had said the projection was a non-conforming use. Kuhlman informed the defendant that McClory was not running the building and zoning department and again told defendant that a permit would not be issued unless the projection was removed. Defendant then informed Kuhlman that he wanted to get the construction started because he was leaving on his vacation and wanted to be sure the work would be completed when he returned. Kuhlman agreed it would be all right to start the construction before the permit was issued if defendant would authorize his contractor, Mr. Shields, to make the necessary changes on the face of the plans. ...