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Village of Cambria v. Dunaway

OPINION FILED OCTOBER 20, 1981.

THE VILLAGE OF CAMBRIA, PLAINTIFF-APPELLEE,

v.

STEVEN DUNAWAY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Williamson County; the Hon. ROBERT H. HOWERTON, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant, Steven Dunaway, appeals from a judgment of the circuit court of Williamson County which resulted in the issuance of a permanent mandatory injunction directing defendant to remove a building which he had placed in the Village of Cambria, the plaintiff. We consider whether the structure in question is a mobile home within the purview of an ordinance of the plaintiff Village and, if that structure be found to be a mobile home, whether the ordinance compels its removal.

On May 13, 1980, plaintiff filed its complaint for preliminary and permanent injunctions against defendant alleging that at the beginning of that month defendant began installing a building in violation of a Village ordinance. A hearing on the petition for preliminary injunction was commenced the following day, and plaintiff presented the testimony of its water, street and sewer superintendent, Bruce Hagler. Hagler described the building then under construction by defendant as a prefabricated building with metal siding and a metal superstructure which had been brought to the site in halves upon flatbed trailers. Hagler related that defendant had told him that the building was going to be used as a day-care facility for children. Defendant had never applied for a permit to place the structure on the property as required by the Village's mobile home ordinance. Hagler stated that there were potential problems with the structure as it then existed, such as a lack of plumbing. However, he indicated that there was no problem with the structure that could not be remedied upon completion of the project other than its being what he termed a "mobile home."

During Hagler's testimony pictures of the structure were accepted into evidence, and the court took judicial notice of the Village ordinance, which in pertinent parts provided:

"Section 1. Definitions:

A. A Mobile Home is a dwelling unit, usually factory built and assembled, designed for conveyance after fabrication, on streets and highways on its own wheels or on flatbed or other trailers, and arriving at the site where it is to be occupied as a dwelling unit complete and ready for occupancy except for minor and incidental unpacking and assembly operations, and having no foundation other than wheels, blocks, skids, jacks, horses, or skirting.

Section 2.

No camper, travel trailer, or recreational van shall be occupied as a dwelling within the Village except as may be otherwise provided in this ordinance.

Section 4.

No more than one mobile home may be placed upon any lot within the Village without the written permission of all owners of contiguous properties and the issuance of a letter of permission from the Village Board. Such letter of permission shall be issued by the Board or its appointee upon proof of the written permission of the owners of the contiguous property which shall be filed for record in the Village Clerk's Office.

Section 12.

A. Location of a mobile home must be approved by the Village of Cambria through issuance of a permit by the Village Clerk. Said Village Clerk's permit shall issue only upon compliance with all sections of this ordinance including any additional permits, letters and approvals required herein."

After the court denied defendant's motion for judgment at the close of plaintiff's case, defendant testified on his own behalf. He stated that the first half of the unit had been brought to the site 2 1/2 weeks, and the second half, a week before the hearing. The Illinois Department of Transportation, which issued a permit to move the units over the highways, considered the units to be modular structures and not mobile homes. Defendant described the units as "modular classrooms" and said they had been used by St. Lukes Hospital in Chicago as classrooms. According to defendant, the units were not structurally equipped to accommodate wheels, and at the time of the hearing the units had been joined into one structure and placed on a permanent foundation. The foundation consisted of concrete blocks which were separately laid in a prepared foundation trench. Some of the blocks were below ground level, and others extended above. The steel frame of the structure was already bolted to the foundation with six-foot-long double-threaded bolts, and in the near future rods would be placed through the blocks and welded to the frame to complete the process. His electrician had already begun work on the project and his brother-in-law, a trained plumber, was ready to begin work although the Village had refused to issue a plumbing permit.

During his testimony defendant related a conversation he had had with the village president shortly before moving the units to Cambria. According to defendant's undisputed testimony, he described the units to the president and was told by him that they would not be considered mobile homes and that a permit would not be needed to use the structures as a day-care center in Cambria. ...


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