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City of Palos Heights v. Pakel

FEBRUARY 10, 1970.

CITY OF PALOS HEIGHTS, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,

v.

PHILOMENA PAKEL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. ADAM N. STILLO, Judge, presiding. Judgment vacated and cause remanded with directions. MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

The city of Palos Heights (hereinafter referred to as the City) appeals from a judgment order finding the defendant, Philomena Pakel, not guilty of violating a specific section of the City's zoning ordinance.

This action was commenced by the City when it filed a quasi-criminal complaint against the defendant. The complaint itself is a printed form containing a few words and many blank lines to be filled in by the pleader. Evidence at the trial showed that this complaint was signed by the City's chief of police on instructions of the City, apparently without advice of counsel. In its complaint, the City alleged that the defendant, on or about September 28, 1966, and each day thereafter, caused to be constructed and continued to maintain at Palos Heights, Illinois, an accessory building in violation of the front yard setback limits as provided in its zoning ordinance. The particular zoning ordinance allegedly violated was specified in the complaint.

Summons was served on the defendant and she filed her answer alleging that she was the owner of a home located on a corner lot in the City of Palos Heights; that on or about July 25, 1966, and by and through Oko Pool Company, she applied to the City of Palos Heights for a permit to install a swimming pool in her backyard and an accessory filtration building in a portion of her front yard; that attached to this application for a building permit was a sketch showing the location of the swimming pool and accessory building on her property, a copy of which sketch was attached to her answer as an exhibit and expressly made a part thereof; that on or about August 1, 1966, the City issued such a permit to the Oko Pool Company; and that, relying on this permit, the defendant had the swimming pool fully installed and the accessory building was being erected when the City stopped all further work on the latter structure. The defendant also denied that her accessory building violated the front yard limits of the City's zoning ordinance.

At the trial of these issues before the court without a jury, the City presented five witnesses material to the issues in this appeal. They were: Mrs. Henrietta Marjan, the City Clerk; Patrick Harris, the chief building inspector; Joseph Studnicka, a licensed land surveyor whose firm prepared a plat of survey of the defendant's property for the City; John Johansen, a City alderman and chairman of the building and license committee; and Howard Tuma, the chief of police who signed the complaint. The testimony of two of the defendant's witnesses is material on appeal; namely, Mr. Oko, the swimming pool contractor, and the defendant herself.

Mrs. Marjan testified that section 6.4 of the City's zoning ordinance requires a thirty-foot front yard setback and that when a house is located on a corner lot, as is defendant's, this setback is required in the yard fronting on each street. At the request of defendant's counsel, the court took judicial notice of the City's ordinances. Thereafter, an application for building permit signed by Mr. Oko was admitted into evidence without objection. Mrs. Marjan identified the document as an application to build a swimming pool; stated it was filed with her office by Mr. Oko; and that she processed it by giving it, along with the plans and specifications, to the building inspector for his review and approval.

A permit was issued to Mr. Oko authorizing the construction of a swimming pool. Subsequently, a conversation was held in Mrs. Marjan's office between Mr. Harris, the building inspector, Mr. Oko as agent for the defendant, and Mrs. Marjan. The subject of this conversation was the size of the building which would cover the filtration equipment required by the swimming pool. Mr. Oko was asked to state the size of this contemplated structure and he said that it would be built no higher than a kitchen table and, when completed, would resemble a picnic table.

A sketch of the defendant's home, swimming pool, and filtration structure was admitted into evidence without objection. Mrs. Marjan identified the sketch as being submitted by Mr. Oko after the City had issued the permit. We note that this is the same sketch which was incorporated by reference into the defendant's answer. From the record we observe that this document is composed of a rough drawing of the defendant's home and swimming pool giving their respective dimensions. Also included is a square figure with the word "FILTRATION" printed within it. Setback lines are also shown. Based upon its position in this sketch, the figure marked "FILTRATION" is shown to be in plain violation of the City's front yard setback ordinance.

In concluding her testimony, Mrs. Marjan referred again to the application for building permit, which had earlier been admitted into evidence, and noted that the application showed no carpentry work was to be done in connection with the swimming pool. The sketch, a copy of which was attached to the defendant's answer, came to her office about one month after the permit had issued for construction of the swimming pool. She did not know that the filtration plant was to be put in the front yard until the building inspector brought this to her attention.

The City's chief building inspector, Patrick Harris, testified that the day after he received the application for building permit, he and Walter Lysek, chief electrician for the City, went to the defendant's home and saw that Oko had already staked out the pool in the backyard preparatory to excavation; that a filtration system was a part of the pool; and that at the site Lysek asked Oko where this system was to be placed on the defendant's land. Oko pointed to a position in the backyard and received the permit the next day.

Harris also identified a group exhibit which was submitted to the City by Oko and which contained plans for the swimming pool. He said that this exhibit showed a filtration unit as part of the pool. The size of this unit was about 3' x 3' x 3'. It rested on a concrete slab. The plans did not show where the filtration plant was to be placed and did not call for an accessory building. Harris visited the site on many occasions after the permit was issued. On one such visit he saw the filtration plant where it presently stands. There was no building over it and it stood 3' x 3' x 3'.

In August, 1966, Harris again visited the site and met a man there who was constructing a building over the filtration plant. Harris stated that the size of the building was about 12 feet high and 14 feet long. There was no siding on the structure yet but the studs were up and a few boards were on the roof. He told the man that such a building could not be erected there and showed him the zoning ordinance. The man identified himself as the defendant's father-in-law and said he was through for the day. A few days later Harris again told the defendant's father-in-law to stop working on the structure or he would be subject to a fine. Harris then put a stop-work order on the filtration building.

This witness also identified a plat of survey which was shown to him by counsel for the City and said that the filtration building shown on the plat is in the same location as when he viewed it on the defendant's property. The measurements shown on the plat were substantially the same as he and Mr. Johansen, an alderman and chairman of the Building Commission, had measured with a tape when they together went to the site after the stop-work order had been placed on it. Harris did not return to the site until the day before he testified. At that time he noticed that the building was still standing. In conclusion, he testified that there are hedges approximately five or six feet high in the defendant's front yard. The filtration building stands within the hedges and approximately two or three feet from the defendant's home. The upper portion of the building is visible above the hedges, however. It is not located in the defendant's backyard.

Joseph Studnicka testified that he is a civil engineer and licensed land surveyor and identified an exhibit, shown to him by the City's attorney, as a survey made by his firm on which are shown measurements specifically locating, by feet, the structures located on defendant's property. The survey was admitted into evidence without objection. Studnicka stated that a one-story frame structure was shown on the plat and that the northernmost wall of this building was 14.33 feet from the defendant's building line. (Under the City's front yard setback ordinance, it must be at least 30 feet.)

John Johansen stated that he is an alderman in the City of Palos Heights and chairman of the building and license committee; that after the stop-work order was placed on the filtration structure, he went to the defendant's property with the chief building inspector, Harris; and that Harris measured the distance ...


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