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Krych v. Village of Burr Ridge

OPINION FILED DECEMBER 29, 1982.

WALTER B. KRYCH, D/B/A W.B.K. REAL ESTATE, PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF BURR RIDGE ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. Edwin L. Douglas, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 3, 1983.

Walter B. Krych, plaintiff and counterdefendant, appeals from a judgment entered in the circuit court of Du Page County on July 14, 1981, in favor of the village of Burr Ridge and Gus Zissimopoulos, Building Commissioner for the village of Burr Ridge, defendants and counterplaintiffs.

Krych owns a vacant lot in the village of Burr Ridge which he leased to Braemoor Associates, in 1971. Shortly thereafter, Braemoor applied for a permit from the village to erect a sign on the vacant lot. There is no evidence in the record that a permit actually issued, but there is evidence that the village clerk accepted $144 from Braemoor as tendered payment for a sign permit. In a letter dated July 6, 1981, however, the building commissioner for the village expressly denied Braemoor's request for a sign permit.

Subsequently, Braemoor erected a ground sign on the lot. The sign had a surface area of 240 square feet, was approximately 18 feet, 10 inches above street level, and had a plywood surface facing.

Until 1978, the sign was maintained by Braemoor and advertised the sale of offsite Braemoor properties. In 1978, Braemoor informed Krych that it no longer had a use for the sign. In May 1978, Krych repainted the sign and changed the message on the sign. The new message advertised his offsite real estate office and the sale of real estate including the vacant lot upon which the sign was located. Krych failed to obtain either a permit from or the approval of the village when making the changes.

In early 1979, the village building commissioner called Krych and informed him that the sign violated Burr Ridge Ordinance 151. On April 14, 1979, Krych received a citation in which the village asserted that he violated section 12 of Ordinance 151 by altering an existing sign and refusing to remove the nonconforming sign within the specified time. On July 26, 1979, Krych filed a two-count complaint in the circuit court. In count I, he asked the court to declare unconstitutional sections 12, 20, 21 and 27 of Burr Ridge Ordinance 151 and enjoin the village from enforcing any part of the ordinance against him. Count II requested that a writ of mandamus issue ordering the defendants to issue a sign permit to him.

In January 1980, the defendants filed a counterclaim against Krych alleging that he violated section 4L of the Burr Ridge Ordinance 151 by altering the sign without a permit to do so; that the sign violated section 20 of the ordinance by having combustible plywood surfacing; and that the sign violated section 21 of the ordinance by having a surface area of 240 square feet and by being 18 feet, 10 inches above street level. The village sought enforcement of these ordinance provisions.

Following a bench trial, the trial court entered an order on July 14, 1981, finding that Krych violated the ordinance in question by altering the sign without obtaining a permit; that Krych violated section 12 of the ordinance which prohibits off-premises advertising; that section 12 is constitutional and that Krych's sign violates the size, height and construction limitations of the ordinance.

Section 12 of the village of Burr Ridge Ordinance 151 states:

"Any sign which no longer advertises a bona fide business conducted, or a product sold on the premises where said sign is located, shall be taken down and removed by the owner, agent, or person having the beneficial use of the building or structure upon which such sign may be found, within ten days after written notification from the building commissioner, and, upon failure to comply with such notice within the time specified in such order, the building commissioner is hereby authorized to cause removal of such sign and any expense attendant thereto shall be paid by the owner of the building or structure to which such sign is attached."

At the trial court level, Krych argued that this section is unconstitutional in that it allows onsite commercial messages but bans offsite commercial message.

• 1 On appeal, Krych does not attempt to argue that the village ordinance unconstitutionally restricts offsite commercial speech. Krych now asserts for the first time that the ordinance is unconstitutional because it permits some onsite commercial signs, but prohibits all noncommercial signs. This, he now urges, constitutes a violation of his rights of communication under the first amendment of the Federal Constitution. In this matter, the parties filed a written stipulation, just prior to trial, advising the court of the nature of the issues between the parties. Neither in the stipulation nor elsewhere, including his post-trial motion, did Krych raise the issue of whether the ordinance in question violated the first amendment of the Federal Constitution in that it prohibits noncommercial speech or communication.

"It has frequently been held that the theory upon which a case is tried in the lower court cannot be changed on review, and that an issue not presented to or considered by the trial court cannot be raised for the first time on review." (Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 147.) This rule is applicable to constitutional issues. (City of Chicago v. Shell Oil Co. (1963), 29 Ill.2d 136, 139.) Where a constitutional argument is neither pleaded nor proved, this court need not consider it further. (Ambroiggio v. Board of Education (1981), 101 Ill. App.3d 187, 190-91.) In this case, it appears that Krych had neither pleaded nor proved that ...


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