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04/09/87 Hawthorne Bank of Wheaton, v. the Village of Glen Ellyn

April 9, 1987

HAWTHORNE BANK OF WHEATON, AS TRUSTEE, ET AL., PLAINTIFFS-APPELLEES

v.

THE VILLAGE OF GLEN ELLYN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

506 N.E.2d 988, 154 Ill. App. 3d 661, 107 Ill. Dec. 97 1987.IL.467

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This appeal arises from the entry of a temporary restraining order and an order granting preliminary injunctive relief against the village of Glen Ellyn (village). The plaintiffs, Hawthorne Bank of Wheaton, as trustee, and Alfred and Elenore Blaszczak, as beneficiaries, filed an action to enjoin the village from erecting a street light in the space occupied by a private canopy which was attached to plaintiffs' building and extended over a public right-of-way. The trial court entered a temporary restraining order, without notice, against the village. The trial court subsequently issued a preliminary injunction, enjoining the village from erecting the streetlight or from otherwise interfering with plaintiffs' canopy. The village appeals from both orders of the trial court.

Plaintiff, Hawthorne Bank of Wheaton, as trustee under trust No. 79 -- 972, is the owner of a building located at 413 Main Street, in the central business district of Glen Ellyn, Illinois. Alfred Blaszczak and Elenore Blaszczak (Blaszczak) are the beneficiaries of the Hawthorne Bank trust.

The building is a 3 1/2-story commercial structure containing four stores and a ballet school. Attached to the front of the building at the entranceway leading to the ballet school is a canopy which extends into the Main Street public right-of-way. The canopy consists of a tubular frame with a canvas cover. The outer end of the canopy is supported by two poles placed on the public sidewalk and located substantially even with the curb. Three signs advertising the ballet school are painted on the canopy cover. The ballet school is operated by Maureen Mylan (Mylan), one of the Blaszczaks' tenants. The original canopy was installed sometime between 1926 and 1929. The exact structure and signs on the canopy have existed for 12 years. The canopy cover was replaced by Mylan sometime in 1978. No permit was sought at that time as required by the village sign code.

In 1985, the village began a two-year improvement project in its central business district which included, inter alia, installation of a new, uniform streetlighting system. Work on the project was scheduled to be completed by October 13, 1986. The village hired PRC Engineering , a professional engineering firm, to design a streetlighting system using standardized fixtures capable of illuminating the public way for the safety of both pedestrian and vehicular traffic. In addition, the lighting system was to provide enough light to deter crime in the central business district. The village did not specify the location of any streetlight fixture, but rather relied upon PRC's recommendations.

Preliminary engineering plans were prepared prior to February 18, 1986, at which time the village conducted a public hearing to receive comments on the plans. Notice of the public hearing was mailed to persons receiving water bills from the village, including Blaszczak, and notice was also published in the newspaper. The notice did not specifically mention the placement of streetlights, but rather was a general notification that capital improvements would be taking place in the central business district. Neither Blaszczak nor Mylan was in attendance at the public hearing. Blaszczak testified that he did not receive notice of the hearing.

The plans discussed at the hearing indicated that a streetlight fixture would be located in the space occupied by the canopy. The village subsequently adopted an ordinance authorizing the improvement of Main Street in accordance with the final plans prepared by PRC. Pursuant to the final plans, the locations of the streetlight fixtures were subject to change at the engineer's direction. The lights along Main Street were in fact spaced with no two being the same distance apart.

On September 5, 1986, representatives of the village met with Blaszczak and Mylan to discuss the location of the proposed streetlight. The parties also discussed removal or modification of the canopy to accommodate the streetlight. On September 8, 1986, the parties met again, this time with a representative of Williams Awning Company. At this meeting the parties discussed modifying the canopy to avoid interference with the streetlight fixture. The purpose of this meeting was to obtain information on the type of modification necessary to relocate the canopy and to obtain an estimate on the cost.

On September 9, 1986, Blaszczak and Mylan sent a letter to the village president requesting that work on the streetlight be stopped until the problem was resolved. Mylan subsequently advised Blaszczak that the permanent removal of the canopy and sign would harm her business. Mylan testified that 80% of her business was generated from the advertising on the canopy. Mylan later testified that if she was able to maintain a sign in conformance with the Glen Ellyn sign code of substantially the same size as the one on the existing canopy, but set back 3 feet from the curb so as not to interfere with the streetlight, she would be able to adequately draw clients to her business.

Sometime around the middle of September, the existing sidewalk in front of 413 Main Street was removed, eliminating the support for the poles at the outer end of the canopy and rendering the canopy crooked. In ...


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