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Parsons v. Guild Grain Co.

JUNE 15, 1970.

DR. JAMES C. PARSONS, PLAINTIFF-APPELLANT,

v.

GUILD GRAIN COMPANY, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Henry County; the Hon. CHARLES H. CARLSTROM, Judge, presiding. Decree affirmed.

STOUDER, J.

James C. Parsons, Plaintiff-Appellant, sought to enjoin Guild Grain Company, Inc., Defendant-Appellee, from constructing a grain storage bin on its premises. The Circuit Court of Henry County granted a preliminary injunction but after full hearing such preliminary injunction was dissolved and the court refused to enter a permanent injunction. It is from such action that this appeal follows.

The facts are largely undisputed. During and prior to July, 1967, the plaintiff and defendant owned adjacent lots in Geneseo, Illinois. On the lot of plaintiff, a medical doctor, was located a two-story building. The first floor was devoted to plaintiff's medical practice and the second floor was an apartment. In July, 1967, the defendant's lot was unimproved, a residence previously located thereon having been removed in 1964.

Across the street from the lots involved, the defendant operates a general grain and elevator business with facilities for storage, processing, drying, etc. On July 28, 1967, pursuant to application therefore, the defendant was issued a building permit by the Building Inspector of Geneseo to construct a new grain storage bin on its property adjacent to that of plaintiff. The proposed structure was 24 feet in diameter, 48 feet high and included an elevator leg extending above the storage bin with a pit at the bottom of the elevator leg.

Construction of the storage bin commenced in August, 1967. By early September concrete foundations had been constructed, the metal bin had been erected and the elevator leg had been partly erected. Early in September on account of high wind, the elevator leg collapsed and construction was suspended until the defendant and his contractor could decide what to do.

In February, 1968, plaintiff commenced this action seeking to enjoin the construction of the storage bin because such building violated the zoning ordinance of Geneseo. In the zoning ordinance the property of plaintiff and that of defendant upon which the storage bin was to be constructed are both within the area designated as "General Business." The property of defendant across the street is designated "Railway & Industrial." With respect to the general business classification, the ordinance describes specific types of use, concluding that unless permitted all other uses are prohibited. The railway and industrial classification permits all uses permitted in other districts unless prohibited and in addition, specifies particular uses including "grain elevators and grinding mills." According to plaintiff as alleged in his complaint, a grain storage bin is not a permitted use within the general business classification.

According to the testimony of John Guild, President of Defendant Corporation, prior to applying for a building permit, he showed plans for the proposed grain storage bin to the plaintiff indicating that the structure would be built rather close to the common lot line. Guild inquired of plaintiff as to whether the latter had any objections and the plaintiff indicated that he had none. The plan was thereafter presented to the Building Inspector and an application for a building permit made.

According to the testimony of the Building Inspector, he examined the defendant's plan, made an inspection of the area of the proposed construction, and considered the provisions of the zoning ordinance. He did not consult with the City Attorney. The Building Inspector after examining the zoning ordinance, found that grain storage was not a specified use under any classification. Because the general business classification permitted the storage of automobiles, machinery and also earth moving equipment he concluded that the storage of grain was a similar use and issued the building permit for the grain storage bin.

Plaintiff, in addition to testifying to the ownership and improvements on his property, admitted that the plan had been shown to him and that he was aware of the construction which was taking place next to his office. Plaintiff also testified that at the time the plan was presented to him he did not realize what the proposed structure would look like.

Guild testified that a contract for the construction of the storage bin had been entered into for total consideration of $26,000, that $14,000 had already been paid to the contractor and the defendant was obligated for the balance. The structure was nearly 80% completed.

In seeking to reverse the trial court's action, the plaintiff argues that defendant's grain storage bin violated the Geneseo zoning ordinance and, therefore, plaintiff was entitled to have such violation abated by injunctive relief.

Notwithstanding plaintiff's insistence to the contrary, we believe the doctrine of equitable estoppel is applicable and supports the action of the trial court in denying the relief sought. If, as we believe, the plaintiff may be estopped from seeking injunctive relief for a violation of the ordinance, it is not necessary to determine whether the ordinance was, in fact, violated.

Plaintiff brought this action under Ill Rev Stats 1967, c 24, § 11-13-15, which authorizes a property owner within a certain prescribed distance of property with respect to which a violation of the zoning ordinance is involved, to seek injunctive relief to abate the violation. According to plaintiff, the right to enjoin the violation of the zoning ordinance as provided in such statute is not limited by equitable defenses or equitable considerations.

The statute above referred to does provide a procedure for permitting some property owners to enforce violations of zoning ordinances where the municipality has not elected to do so. The statute described in broad language the violations of zoning ordinances for which relief may be sought, but the specific language contemplates injunctive relief which necessarily includes the application of equitable principles. Since no time is specified in the statute for a property owner to bring the action, it follows according to plaintiff, that he may bring the action at any time and his ...


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