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10/13/87 Russell Stoller, v. the Village of Northbrook

October 13, 1987

RUSSELL STOLLER, PLAINTIFF-APPELLEE

v.

THE VILLAGE OF NORTHBROOK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 355, 162 Ill. App. 3d 1001, 114 Ill. Dec. 200 1987.IL.1532

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

On January 8, 1987, the trial court granted plaintiff Russell Stoller's (Stoller's) emergency motion for a temporary restraining order against defendant village of Northbrook (village). The village then presented an emergency motion to reconsider the TRO that was entered on January 8, 1987. On January 13, 1987, the trial court denied the village's motion to reconsider. Pursuant to sections 11-108 and 11-110 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 11-108, 11-110), the village moved to dissolve the TRO. On February 10, 1987, the trial court denied the village's motion to dissolve the TRO. On February 18, 1987, pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307), the village filed a notice of appeal from the interlocutory order that was entered on February 10, 1987.

On December 22, 1986, Stoller filed a complaint for an injunction against the village. Stoller alleges that he is the owner of real property located at 1620 Pfingsten Road *fn1 in Northbrook, Illinois (subject property), upon which a single family dwelling is being constructed. On May 12, 1986, the village issued Stoller a building permit, water connection permit and sewer permit. Stoller alleges that after the village issued him these permits, the village "engaged in an illegal course of conduct designed to harass and injure plaintiff and cause him delay and expenses in the construction of his home." On or about May 30, 1986, the village notified Stoller via a letter that Stoller's building permit was improperly issued and was therefore null and void. The letter stated that the village ordered all work ceased until Stoller met four requirements. Stoller alleges that he fulfilled these requirements.

On June 18, 1986, Stoller received another letter from the village that stated that issuance of a formal building permit was contingent upon Stoller's getting approval from the Metropolitan Sanitary District of Greater Chicago . Stoller subsequently obtained an MSD permit. Stoller received yet another letter from the village on October 16, 1986. The October 16 letter informed Stoller that the village had placed a stop order on the subject property and that there were six items that the village had to receive from Stoller before the village would issue Stoller a valid building permit.

About October 22, 1986, Stoller corrected all of the deficiencies in his building permit application; the village then validated the issuance of a building permit and associated sewer and water permits. On or about November 18, 1986, Stoller submitted a revised engineering plan for proposed sewer and water line extensions. Stoller states that his sewer and water subcontractor was scheduled to begin work on the subject property on December 19, 1986. The village refused to allow Stoller's subcontractor to begin. Stoller alleges that the village required that Stoller give the village a 10-foot easement along the rear of the subject property. Stoller alleges that the easement for drainage is not required. Stoller further alleges that the village has wrongfully placed a work stop order on the subject property.

In his affidavit, Wayne Hanson (Hanson), director of development of the village, states that Stoller's November 18, 1986, proposed sanitary sewer extension was not in accordance with sewer plans that the village had approved. Hanson continues to state that such approval is contingent upon receipt of all grants of easement set forth in the revised engineering plan. This includes the grant of easement along the rear of the subject property. Hanson states that at the present time Stoller has not granted the village an easement. Hanson takes the position that easements are ordinarily granted as part of the building permit approval process. Hanson cites the following in support of his position: Northbrook Municipal Code sections 7.89, 7.110 and Northbrook Building Code section 1.7(e). The village, therefore, prohibited Stoller from beginning work on the subject property until the easement was granted.

Stoller did not choose to grant the village the requested easement. Instead, Stoller chose to file a complaint for injunction against the village. Stoller requested that the trial court enter an injunction that would prohibit the village from preventing construction on the subject property.

On December 22, 1986, Stoller and the village appeared before Judge Siegan. After hearing arguments on Stoller's TRO motion, Judge Siegan found that no emergency existed and continued the case to December 26, 1986. On December 26, 1986, Stoller brought a motion for change of venue and Judge Siegan granted Stoller's motion. The new trial Judge assigned to the case was Judge Albert Green. On December 29, 1986, Stoller moved for a TRO before Judge Marovich, who was sitting for the absent Judge Green. Judge Marovich indicated that Stoller should place the TRO motion "on Judge Green's calendar for first thing Monday," January 5, 1987. It was not until January 8, 1987, that Judge Green heard arguments on the motion.

The village and Stoller were both present before Judge Green at the January 8 hearing. Stoller argued that he should be allowed to hook up the water and sewer connections before the upcoming spring. Stoller argued that except for the water and sewer connections, his home was ready for occupancy. Stoller continued that he had four children and that they were living "hither and yon," "in motels," and were "very uncomfortable" because they had no home in which to live.

On the other hand, the village argued that Stoller simply had to comply with the permits. The village argued that the permits and plans did not only require easements for the sanitary and water main, but also an easement for a storm sewer. The village continued that Stoller's plans had showed the storm sewer easement and that the village had relied on those plans in issuing Stoller's permits. The village concluded that if Stoller merely provided the necessary easements, the village would allow Stoller to proceed. The village emphasized that Stoller must comply with the codes just like all of the village's other ...


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