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Sharrett v. Campbell

OPINION FILED AUGUST 12, 1982.

DOYLE SHARRETT ET AL, PLAINTIFFS-APPELLEES,

v.

OWEN CAMPBELL ET AL., DEFENDANTS-APPELLANTS. — (THE CITY OF ROBINSON, DEFENDANT.)



Appeal from the Circuit Court of Crawford County; the Hon. Laurence L. Arnold, Judge, presiding.

PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 9, 1982.

Defendants, Owen and Patsy Campbell, appeal from the judgment of the circuit court of Crawford County in favor of plaintiffs, Doyle and Ada Sharrett, declaring that defendants' lot in the Meserve Heirs Addition to the city of Robinson, Illinois, is classified as R-S under the applicable zoning ordinance; permanently enjoining defendants from any construction within 15 feet of the north boundary of plaintiffs' adjoining lot; mandatorily requiring defendants to remove that portion of the residence which extends within the 15-foot area; and assessing plaintiffs' costs and attorney fees against defendants.

Plaintiffs and defendants own adjoining lots in the Meserve Heirs Addition to the city of Robinson, Illinois, each owning two platted lots, plaintiffs' lots being located directly south of defendants'. In September of 1980, defendants decided to build a house and applied for a building and improvement permit with the zoning administrator for the city of Robinson. Walter Newlin, zoning administrator during the relevant time, issued the permit to defendants showing the zoning classification as R-1.

Newlin testified that when he issued the permit he assumed "by knowing various things and buildings and where the R-1's are" that defendants' lot was zoned R-1. Newlin admitted, after verifying the proper zoning classification, that he was mistaken, that R-S was the correct classification and that he became aware of his mistake after the filing of the instant lawsuit. Newlin further testified that he informed defendants of the setback requirements for the R-1 zoning classification and of the requirements contained in the Meserve Heirs Addition restrictive covenants.

Newlin also testified as to the zoning classification of plaintiffs' lot. Plaintiffs' house was originally built on an R-1 permit, and a building and improvement permit was issued with an R-1 classification; however, Ada Sharrett testified that two building and improvement permits had been issued to plaintiffs, by Newlin, listing the classification as R-S.

The important distinction, for the purposes of the instant appeal, between the R-1 and the R-S zoning classification is that the R-1 classification only requires a six-foot side yard whereas the R-S classification requires a 15-foot side yard. Under both classifications the eaves may extend out from the side of the house two inches per foot of side yard as measured from the lot line to the outer surface of the outside wall of the house.

All of the lots in the Meserve Heirs Addition are subject to a number of restrictive covenants, one of which provides:

"No building shall be located nearer than forty (40) feet to the front line, nor nearer than fifteen (15) feet to any side street line. All dwellings shall have a side yard of not less than six (6) feet measured from the face of the building to the property line and running along the side of the property. The total of two side yards for any one dwelling shall, however, be not less than fifteen (15) feet, no detached garage or other building shall be located nearer than eighty (80) feet to the front line, and shall be located at least five feet from any side or rear property line."

In October 1980, defendants began construction and a subcontractor, Guyer, began to dig the footings for the structure. Ada Sharrett testified that in middle or late October she spoke with Guyer and indicated that she thought he was getting too close to the south property line. The southernmost portion of the construction consists of a garage and utility room. This area is the subject of the controversy.

In late October and early November 1980, concrete for the basement and the footings was poured. Work continued at the construction site for approximately three months. Ada Sharrett testified that, from January 18, 1981, through the date of trial, July 16 and 17, 1981, she kept a diary of the work performed on defendants' home. The diary indicated that, as of January 18, substantial work had been performed on the house but little, if any, work had been performed on the garage and utility room. On January 20, plaintiffs left for a one-week vacation and, upon returning, noticed that work had been performed on the disputed area.

Herbert Young, defendants' primary contractor, testified that after plaintiffs returned from their vacation they indicated to him that the overhang on the roof was too wide. Young determined that there might be a violation of the eaves requirement and informed defendants of this. At this point in the proceeding, the following exchange took place:

"Q. Did he [plaintiff], at any time, other than that one time, have a ...


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