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Clark v. Vil. of Oswego

APRIL 4, 1973.

JACK D. CLARK ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF OSWEGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kendall County; the Hon. ROBERT J. SEARS, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 7, 1973.

The plaintiffs brought this action praying for an injunction to restrain the Village of Oswego from requiring or coercing them to construct curbing, and sidewalks in the subdivision of the plaintiffs. The complaint in the alternative prayed for a money judgment for the actual cost of said improvements as demanded by the village. The matter was heard by the trial court who entered an order dismissing the complaint. From this order the plaintiffs appeal.

The issue presented to this court is whether the Village of Oswego is estopped or should be enjoined from enforcing provisions of its Subdivision Control Ordinance relating to sidewalks, curbs, and gutters against the plaintiffs.

The plaintiffs, husband and wife, purchased a small tract of land within the village limits of Oswego and subdivided it into five lots, four of which are located on a cul-de-sac. The plaintiffs employed engineers to prepare a preliminary plat which was presented to the Village Board of Trustees. This preliminary plat was rejected by the Plan Commission. Robert Fennell, Chairman of the Plan Commission, returned the plat to the plaintiffs and advised them that it would have to be redrawn. Fennell gave the plaintiffs a copy of the Oswego Subdivision Control Ordinance No. 1957-0-3, and it appears that Fennell, who was a neighbor of the Clarks, advised them that if they would bring in the new plats and plans that he (Fennell) would take them to the Plan Commission. The plaintiffs' engineer then redrafted the plats and plans, and a second preliminary plat was given to Fennell who submitted it to the Plan Commission. It was recommended for approval by the Plan Commission on September 24, 1968 approved, and signed by the President and the Village Board on October 8, 1968. Fennell then advised Mr. Clark to submit a final plat. The final plat was prepared, allegedly given to Fennell, Chairman of the Plan Commission, and on January 28, 1969, the Plan Commission voted as follows:

"that the P.C. recommends to the Village board that we accept the final Plat Jack D. Clarks Lincoln Estates subject to his satisfying the P.C.'s Committee on Subdivisions regarding storm & sanitary easements & signatures."

The plaintiffs then had their engineers prepare plans and specifications purportedly pursuant to Ordinance No. 1957-0-3. The plans prepared showed a sanitary sewer only, and further showed a two foot drainage culvert, but did not show curbs, gutters, sidewalks, or storm sewers. This proposed sewer and water plan was again given to Fennell to take to the Plan Commission. Fennell denies that he saw this document or gave it to the Plan Commission. Nonetheless, on March 25, 1969, the Plan Commission approved the final plat of the subdivision of Lincoln Estates,

"subject to signatures and utility easements, stamps, and marked final plat."

The approval of the Plan Commission appears upon the final plat signed by the Chairman thereof on the 22nd of April, 1969. The plat was then approved by the Board of Trustees of the Village of Oswego on May 1st, 1969, and signed by Harry Fuller, President of the Board of Trustees, on that date. The plat was subsequently recorded.

Following the approval of the plat the plaintiffs proceeded to improve the property, and installed sanitary sewer, water lines, and the cul-de-sac circle drive was laid out and graded. Building permits were issued by the village and houses were erected on Lots 1, 2 and 4 of the five lots in this subdivision. In November, 1970, the plaintiffs applied for a fourth building permit. On November 2, 1970, the village trustees voted to withhold further building permits until the plaintiffs:

"installed curbs, gutters or sidewalks or the required street surfacing for subdivisions."

The village then on November 30, 1970, advised the plaintiffs:

"Since the ordinance on new subdivision requires street improvements, before any more building permits are issued for Lincoln Estates, a bond must be posted to cover the costs of curbing, streets and sidewalks."

It is to be expressly noted that at no time prior to the last date was anything said by the village or any requirement made that ...


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