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Marlowe v. Village of Wauconda





APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding.


Rehearing denied January 20, 1981.

Defendant, the Village of Wauconda, and its mayor, John Dianis, appeal from a judgment entered after trial by jury which awarded damages of $35,000 each to plaintiffs, James Marlowe and Gerald Strobot, and $35,100 to plaintiff, Signet Home Center, Inc.

In count I of their amended complaint plaintiffs sought recovery of damages pursuant to 42 U.S.C. § 1983 (1976), *fn1 alleging that defendants deprived them of their right to due process and the equal protection of the laws, and in count II they sought damages for malicious prosecution.

The events giving rise to this action first occurred in 1975 when Marlowe, a builder and contractor, purchased four lots in the village. Before doing so, he had consulted with William Sutton, the village building inspector, who informed him that local zoning ordinances permitted construction of single-family homes on the lots. Plaintiffs Marlowe, Strobot and a third person then formed plaintiff, Signet Home Center, Inc., and secured construction loans. Marlowe furnished surveys of the lots and the proposed construction sites upon them to the building inspector and on May 12, 1975, was given the requisite building permits. Construction was commenced and excavation, footings and foundation were completed on lot 85 and excavation and footings only on lot 84. Neighbors observing the work questioned whether the construction met the rear yard set-back requirements of the village zoning ordinance and complained to Mayor Dianis and to certain village trustees. These officers met with the neighbors at the construction site, observed the work in progress, took measurements and discussed whether there was a zoning violation.

A "rear yard" is defined in the village zoning ordinance as "the yard extending the full width of the rear of the zoning lot between the rear lot line and a building line." (Wauconda Zoning Ordinance § 1902.) The zoning ordinance also requires that a single-family residence must be located on a lot so as to have a rear yard depth of at least 25 feet or 20 percent of the average depth of the lot, whichever is smaller. (Wauconda Zoning Ordinance §§ 1902 and 1903.3-5.) Lot 84, with which we are primarily concerned in this case, was pie-shaped, however, and there was an uncertainty among those considering the problem as to the correct points from which to measure to determine whether the rear yard set-back requirement was met.

Marlowe argued, and the village building inspector who had approved the siting and at least one trustee apparently agreed, that compliance with the ordinance was attained if the rear yard measured 25 feet at any point between the building and the property line, as shown by measurement A. The mayor, some of the trustees, and others, considered that the terms of the ordinance were not met unless the 25-feet or 20-percent set-back pertained at each point between the building and the rear property lines. Under this view of the ordinance plaintiff's construction within approximately six feet of the property line, as shown by measurement B, would clearly be in violation.

On May 14, 1975, Mayor Dianis directed the building inspector to place a "red tag," or stop order, on lots 84 and 85. This notice stated that a violation of the zoning or building ordinances of the Village of Wauconda existed on the lots and that no further work may be done on the buildings. It further advised that failure to comply with the notice would subject a violator to a fine of not more than $200. The mayor also directed the building inspector to deliver a letter (signed by the building inspector but drafted by the mayor) to plaintiffs which stated the reasons for the issuance of the stop order. The building inspector did so and the letter stated, inter alia, that the minimum rear yard requirement was not met, the construction infringed on a utility easement and would be under high tension power lines. It directed that the violations should be corrected or the excavations filled as constituting a danger.

In an effort to resolve the dispute, the mayor, building inspector and certain village trustees met at the construction site with Marlowe and Strobot on May 17, 1975. Measurements were again taken, and when it was determined that lot 85 was in compliance with the ordinance, the red tag was removed by defendants and construction resumed on it. There was no agreement reached, however, as to lot 84. During the discussion a neighbor, Earl Clifford, stopped by the site when he saw all the people there. He testified that the building inspector and one of the village trustees had said there were no zoning violations. He also testified he heard defendant, Mayor Dianis, say he "didn't care whether the building violations were there or not, he didn't like the house being put upon this property. He said it didn't look right." Clifford also stated the mayor was not addressing anyone in particular but merely making a comment. The stop order remained upon lot 84 and plaintiffs did not then continue with construction on that lot.

At about this time the building inspector also informed Marlowe that plaintiffs could appeal the stop order to the village zoning board of appeals. The Wauconda zoning ordinance provided as follows in this regard:

"Appeal: an appeal may be taken to the [zoning] board of appeals by any person, firm or corporation, or by any officer, department, Board or Bureau affected by a decision of the Building Inspector relative to this ordinance. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the building inspector and with the board of appeals a notice of appeal, specifying the grounds thereof. The building inspector shall forthwith transmit to the board all of the papers constituting their record upon which the action appealed from was taken." (Wauconda Zoning Ordinance § 1906.1(B).)

The ordinance further provided that an appeal stayed all proceedings unless the building inspector certified that to do so would cause imminent peril. It also provides for notice to the parties of the hearing, that any person may there testify, and that the board of appeals was authorized to reverse, affirm or modify the decision appealed.

Marlowe testified that plaintiffs declined to appeal the stop order, feeling it would be a waste of time because some of the persons on the zoning board of appeals were also at the May 17 meeting. Strobot testified in this regard that he was himself a member of the board of appeals and declined to appeal to it as he didn't believe it could do anything to resolve the problem. Both Marlowe and Strobot also testified they had never had any prior problems, disagreements or confrontations with Mayor Dianis.

The impasse continued until near the end of July 1975 when plaintiffs, acting on the advice of their attorney, resumed construction on lot 84. When the mayor learned of this he directed the building inspector to charge them with the ordinance violation and on August 5, 1975, village police officers served Marlowe at the construction site with a "Non-traffic Complaint and Notice to Appear." It was signed by the building inspector and charged Marlowe with violation of the rear yard set-back ordinance. The complaint and notice directed Marlowe to appear in court on August 22, 1975, and on his failure to do so stated that the court would issue a warrant for his arrest. The police officers, however, advised Marlowe he would have to return with them to the police station to post bail. He did so and was required to wait there for several hours until he could obtain the $25 bail deposit ...

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