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Home Building Contractors Inc. v. County of Du Page

September 17, 1963

HOME BUILDING CONTRACTORS, INC., A MISSOURI CORPORATION, PLAINTIFF-APPELLANT,
v.
THE COUNTY OF DU PAGE, AN ILLINOIS BODY POLITIC AND CORPORATE, ELBERT DROGEMUELLER AND ROBERT S. STUART, DEFENDANTS-APPELLEES



Author: Duffy

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

DUFFY, Circuit Judge.

Plaintiff is a Missouri corporation. It is engaged in the sale and distribution of prefabricated homes in the State of Missouri and in several other states including Illinois. The prefabricated homes are manufactured in Missorui by Home Building Corporation with which plaintiff is affiliated. In the complaint and in the trial, plaintiff's homes are referred to as H.B.C. homes.

The complaint seeks a declaratory judgment a) that H.B.C. homes meet the requirements of the building ordinance of the County of Du Page, and b) that the Court determine the rights and obligations of the parties with respect to inspection of plaintiff's homes by defendant County, by defendant Drogmueller who is the "Building Official" referred to in the County ordinance, and by defendant Stuart who is the "Director" of the Building and Zoning Department of Du Page County. The complaint further asks that the defendants be directed by the Court to issue building permits for the plaintiff's homes.

Four residents of Du Page County sought building permits to erect five H.B.C. prefabricated homes, but the permits were denied. The average price for an H.B.C. home is $8,000. It is admitted that if permitted to build, plaintiff could have sold at least twenty of its prefabricated homes in Du Page County.

Section 300 of the Du Page County building code permits the use of "other material and methods" when the Building Official is satisfied "that their performance in use will be at least equivalent to that of the materials and methods specified herein." This section also specifies various kinds of loads and lifting forces in terms of pounds per square foot and heat and vapor requirements in terms of B.T.U.'s and perms of permeability. The section also provided "* * the Building Official may require work in excess of these requirements. * *"

The walls of H.B.C. homes are completely finished units and are called panels. They are eight feet in height and from twelve to sixteen feet in length. The structural framework of a panel consists of assembled four by four inch posts, with top and bottom plates, assembled in a post and beam construction. The four by four inch posts are spaced at four foot intervals. Between each post, at two foot intervals, are two by four inch boards which are not weight bearing.

At the factory in Missouri, each of these members was cut to size, then assembled in large steel jigs and nailed and glued together. Glue was then applied to the exterior of this framing and the exterior plywood was laid thereon and nailed to the frames at four or five inch intervals. The panel was then turned over and the dry wall nailed and glued to the other side of the frame. Surfaces were then painted and window sash and trim affixed. The panels were then loaded on to a truck to be taken to the site where the house was to be erected.

The roof panels are also completely finished units. Each has a frame consisting of two by four inch lumber. Two by four inch purlins make compartments into which insulation is placed. Roofing material is fastened to one side of the frame and 3/8 inch foil-back sheet rock is fastened to the under side of the frame. Foil-back sheet rock is a sheet rock to which aluminum foil is glued and is designed to act as a vapor barrier. The aluminum foil backing faces the interior of the roof panel.

Stuart, Director of the County's Building and Zoning Department, insisted upon a visual inspection of plaintiff's wall and roof panels. This would require the removal of the sheet rock which was glued to the frame. Stuart insisted that there was no practical way to visually inspect the framing of the structure.

Plaintiff offered to permit defendants to test check its panels. It offered to pay the expenses of an inspector to visit its plant in Missouri and observe the manner in which the panels were constructed. It offered to post a bond of unstated amount. However, defendants insisted upon visual inspections.

In the District Court the issues submitted were:

1) Plaintiff's proposed use of 2 X 4's at 24inch on center in panel walls in place of 2 X 4's at 16inch on center as required by the Ordinance;

2) Plaintiff's proposed use of 3/4inch plywood on garage roof rafters 48inch on center in place of 1/2inch plywood on rafters 24inch on ...


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