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Meyer v. Marshall

AUGUST 30, 1974.

ELMER J. MEYER ET AL., PLAINTIFFS-APPELLEES,

v.

LIZETTA M.C. MARSHALL ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Monroe County; the Hon. ALVIN H. MAEYS, JR., Judge, presiding.

MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT: Defendants appeal from a permanent injunction issued by the circuit court of Monroe County, preventing defendant from building a new residence pursuant to a building permit issued by the city of Columbia, Illinois. Plaintiffs contended that the building permit violated the zoning ordinance of the city of Columbia and initially obtained a temporary injunction against construction of the house. The circuit court later denied a defense motion to dissolve the temporary injunction and instead issued a permanent injunction and assessed costs, including attorney's fees, against the defendants. We reverse.

Defendant Lizetta Marshall owns property and a residence located on Bottom Road in Columbia, Illinois. The plaintiffs, Elmer and Mathilde Meyer and Judith Crowder, own property in Columbia, adjacent to that of defendant Marshall, separated by a roadway and utility easement granted to plaintiffs by defendant. The Meyers' property lies on Bottom Road with the Crowder property located behind it. Both parcels have access to Bottom Road by way of the easement. All of the property involved in this case is zoned R-6 residential.

Early in January of 1973, defendant Marshall decided to construct a new home on a portion of the property abutting plaintiffs' easement. She hired defendant Schueler Brothers, Inc., to plan and construct the building. The plans called for the house to face east towards defendant Marshall's old house with the rear of the structure facing the properties owned by the plaintiffs. The Columbia Zoning Ordinance provides that in an R-6 area only single-family residences are permitted and each lot is required to have a minimum area of 6500 square feet and a minimum width of 50 feet (Columbia Zoning Ordinance, art. VI, par. 6(c)(1), at 28). At the request of the person in charge of issuing building permits, defendant employed a registered Illinois land surveyor to prepare a plat of the entire Marshall property and a separate legal description of the parcel upon which defendant intended to build, so that both parcels would satisfy the minimum-lot-size requirements. The parcel upon which the new house was to be built measured 63 feet X 154 feet and the remaining parcel, 93 feet X 154 feet. Both parcels met the area requirements for an R-6 zone. Thus, on February 10, 1973, a building permit was issued to defendants by the city of Columbia.

Soon after the permit was issued, plaintiffs commenced suit pursuant to section 11-13-15 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11-13-15). The complaint alleged that construction of defendant's house would violate the Columbia Zoning Ordinance (art. IV, par. 1(c)(4), at 17, and art. VI, par. 6(D), at 28), and sought a temporary injunction on grounds that permitting the construction would disturb their peace, quiet, health and comfort and deprive them of the full use and enjoyment of their land. The temporary injunction was granted on the same day the complaint was filed, February 27, 1973, without notice to defendant and without requiring plaintiffs to post bond. The city of Columbia was later allowed to intervene over defendants' objection, and after a trial on all the issues, the trial court permanently enjoined construction of the new house and assessed court costs including attorney's fees against the defendants.

The defendants-appellants have raised three issues on appeal: First, that the building permit was valid because all applicable provisions of the Columbia Zoning Ordinance were complied with; second, that the intervention of the city of Columbia was improper; finally, that the injunction should not have been granted and therefore plaintiffs' attorney's fees should not have been assessed against the defendants; rather, costs including attorney's fees should have been assessed against the plaintiffs.

At the outset, we take judicial notice that plaintiff Judith Crowder has by affidavit sworn that following the issuance of the permanent injunction, defendant Lizetta Marshall conveyed to her sister the parcel upon which she had proposed to construct the new house and subsequently a new building permit was issued by the city of Columbia and another house was constructed on the land. Thus, the issues concerning the validity of the original building permit, the city of Columbia's intervention, and the propriety of the issuance of the temporary and permanent injunctions have all been rendered moot such that no effective relief can be granted by the court regarding these issues. Harney v. Cahill, 57 Ill. App.2d 1, 206 N.E.2d 500.

• 1, 2 One issue still remains — the propriety of assessing court costs including attorney's fees against defendants. Ordinarily where the substantive issues involved in the trial court no longer exist, an appellate court will not review the case to determine a right to or liability for costs. (La Salle National Bank v. City of Chicago, 3 Ill.2d 375, 121 N.E.2d 486; Case v. Rewerts, 15 Ill. App.2d 1, 145 N.E.2d 251; Collins v. Barry, 11 Ill. App.2d 119, 136 N.E.2d 597.) The defendants argue notwithstanding the above rule, that if the issuance of the permanent injunction was not warranted by the facts, our refusal to review the action of the trial court would leave defendants wrongfully liable and without a remedy. It should also be noted that while plaintiffs agree that most of the issues raised by this appeal have become moot, they concede that the question of the assessment of costs against the defendants remains unresolved. Under the circumstances, justice requires that we decide the issue. Furthermore, although most of the issues have become moot, an appellate court has jurisdiction to review the assessment of costs including attorney's fees against a party pursuant to statutory authority when there exists a distinct possibility that the trial court erred in exercising its discretion in a matter of substantial public interest. (Johnson v. Board of Education, 79 Ill. App.2d 22, 223 N.E.2d 434; Voisard v. County of Lake, 27 Ill. App.2d 365, 169 N.E.2d 805.) It appears to us that the language of the Columbia Zoning Ordinance provisions is amenable to several interpretations, as occurred in the case at bar and thus there exists a substantial public interest in a positive ruling on the meaning of the sections which were involved in this dispute. Other jurisdictions have likewise held that an appellate court may review the decision of a lower court for purposes of deciding the issue of costs despite the fact that the principal issues have been rendered moot. State ex rel. Treat v. Hammel, 134 Wis. 61, 114 N.W. 97; Morrison v. Hess (Mo. 1921), 231 S.W. 997; Coker v. Richey, 104 Ore. 14, 204 P. 947.

• 3, 4 Turning now to the merits of the case, the crucial issues are whether or not the defendant's building plans violated article IV, paragraph 1 (C) (4), and article VI, paragraph 6(D), of the Columbia Zoning Ordinance in that more than one building would be located on one lot and that the proposed lot would meet the minimum size requirements for front, side and rear yards. We believe that the trial court erred in its interpretation of the above provisions by focusing its attention on the way in which the residence was to be facing for a determination of the front, side and rear yards rather than giving effect to the plain meaning of the words of the ordinance. In construing statutes and ordinances, courts may not read into them exceptions the legislature did not see fit to make, or, by forced or subtle constructions, alter the plain meaning of the words employed. (People ex rel. Pauling v. Misevic, 32 Ill.2d 11, 203 N.E.2d 393.) Where statutory words are plain and legislative intent manifest, courts are required to give effect to such intention. (People ex rel. Petty v. Community High School District No. 128, 50 Ill. App.2d 445, 200 N.E. 609.) Furthermore, zoning ordinances are to be strictly construed in favor of the right of the property owner to the unrestricted use of his property. Herrington v. County of Peoria, 11 Ill. App.3d 7, 295 N.E.2d 729; City of Rockford v. Eisenstein, 63 Ill. App.2d 128, 211 N.E.2d 130.

The plain meaning of the ordinance is best derived by examining the provisions themselves. Article IV, paragraph 1(C)(4), page 17, of the ordinance states that:

"Every building hereafter erected or structurally altered shall be located on a lot as herein defined and in no case shall there be more than one (1) main building on one (1) lot * * *."

And in article IV, paragraph 1(C)(5), page 17, it states that:

"No parcel of land described by metes and bounds or any lot shall hereafter be created which doe not conform and meet the requirements of this ordinance."

"Lot" is defined in article II, paragraph 1(B)(61), page 9, as:

"A parcel, tract, or area of land accessible by means of a ...


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