Bjork v. Draper

• Decision Date: 22 September 2010
• Docket Number: No. 2-09-1345.,2-09-1345.
• Citation: 936 N.E.2d 763,404 Ill.App.3d 493,344 Ill.Dec. 234
• Parties: John BJORK and Stephanie Bjork, Plaintiffs-Appellants, v. John DRAPER and Liz Draper, Defendants-Appellees (Lake Forest Open Lands Association, Defendant).
• Court: United States Appellate Court of Illinois

936 N.E.2d 763

404 Ill.App.3d 493

344 Ill.Dec. 234

John BJORK and Stephanie Bjork, Plaintiffs-Appellants,

v.John DRAPER and Liz Draper, Defendants-Appellees (Lake Forest Open Lands Association, Defendant).

No. 2-09-1345.

Appellate Court of Illinois, Second District.

Sept. 22, 2010.

Margaret Morrison Borcia, Morrison & Morrison, P.C., Waukegan, for John Bjork, Stephanie Bjork.

Robert T. O'Donnell, Adam M. Kingsley, O'Donnell Law Firm, Ltd., Vernon Hills, for John Draper, Liz Draper.

Justice SCHOSTOK delivered the opinion of the court:

[344 Ill.Dec. 236, 404 Ill.App.3d 495]

The instant controversy arose after the defendants, John Draper and Liz Draper, made some alterations to their home and property. These alterations consisted of the addition of a circle driveway, an addition to the residence that totaled in excess of 1,900 square feet, and the addition of several plants and trees. The defendants' land was subject to a conservation easement that was managed by the Lake Forest Open Lands Association (the Association). (The Association has been dismissed as a party to the lawsuit.) The Association allowed the defendants to amend the easement on three occasions to make the alterations to the home and property. The plaintiffs, John Bjork and Stephanie Bjork, the defendants' neighbors, filed a complaint in the circuit court of Lake County, alleging that the defendants' alterations had violated the conservation easement on the defendants' property. The plaintiffs further alleged that the conservation easement could not be amended. The trial court ruled that, as a matter of law, the conservation easement could be amended. Following a bench trial, the trial court determined that the first two amendments to the easement (regarding the addition of the circle driveway)

[344 Ill.Dec. 237, 936 N.E.2d 766]

were proper but that the third amendment (regarding the addition to the home and of the various plants and trees) was not. The plaintiffs appealed, arguing that the trial court erred in finding that the conservation easement could be amended. Alternatively, the plaintiffs argued that the first and second amendments were not valid. This court determined that the conservation easement could be amended; however, neither the first nor the second amendment was valid. Bjork v. Draper ( Bjork I), 381 Ill.App.3d 528, 542, 319 Ill.Dec. 800, 886 N.E.2d 563 (2008). We therefore reversed the trial court's decision and remanded for additional proceedings. Bjork I, 381 Ill.App.3d at 545, 319 Ill.Dec. 800, 886 N.E.2d 563. Specifically, we directed the trial court to equitably consider all of the alterations that had been made to the property and, in its discretion, determine "which alterations, if any, must be removed and which, if any, may be retained." Bjork I, 381 Ill.App.3d at 543, 319 Ill.Dec. 800, 886 N.E.2d 563.

Between November 16 and November 25, 2009, the trial court conducted a hearing based on this court's mandate. Following the hearing, the trial court ordered the defendants to remove a portion of the brick turnaround driveway and also remove certain trees. The trial court did not order that the defendants remove any part of the addition to their home. The plaintiffs thereafter filed a timely notice of appeal. We affirm.

I. Background

The history of this case was set forth in Bjork I. We therefore discuss only those facts that are relevant to the disposition of the currentappeal. The defendants' property is located in the Lake Forest Historic District, which is listed on the National Register of Historic Places in recognition of its exceptionally well-preserved buildings and sites of architectural, cultural, and historic significance. The defendants' property consists of two lots. On lot 1 is a house known as the "Kerrigan House," which is reportedly the oldest house in the Lake Forest Historic District. Lot 2 is approximately 25,000 square feet and is part of the landscaped grounds adjacent to the historic house. On December 30, 1998, lot 2 became subject to the conservation easement, which is managed by the Association. The easement provided that the preservation of the open and landscaped grounds adjacent to the Kerrigan House contributes greatly to the appearance of the Kerrigan House and the public enjoyment of the Lake Forest Historic District. The easement further indicated that the property is located on and visible from Sheridan Road, a public road that forms part of the system of scenic roadways circling Lake Michigan, known as the "Lake Michigan Circle Tour."

The easement further set forth the following terms, which are pertinent to this appeal:

"1. Purpose. It is the purpose of this Easement to assure that the Property will be retained forever predominantly in its scenic and open space condition, as lawn and landscaped grounds.

2. Rights of Grantee. To accomplish the purpose of this Easement the following rights are conveyed to the Grantee by this Easement:

(a) To take such actions as are reasonably necessary and consistent with the terms of this Easement to preserve and protect the conservation values of the Property;

* * *

(c) To view the property in its scenic and open condition at ground level

[344 Ill.Dec. 238, 936 N.E.2d 767]

from publicly-accessible land adjacent to the Property;

* * *

3. Prohibited Uses. Any activity on or use of the Property inconsistent with the purpose of this Easement is prohibited. Without limiting the generality of the foregoing, the following activities on and uses of the Property are expressly prohibited:

(a) The placement or construction of any buildings whatsoever, or other structures or improvements of any kind * * * except that the existing driveways serving said Lot 1 and the existing encroachment of the Kerrigan House onto the Property may continue;

* * *

4. Development Rights. To the extent that Grantors own or areentitled to development rights which may exist now or at some time hereafter by reason of the fact that under any applicable zoning or similar ordinance the Property may be developed to a use more intensive * * * than the Property is devoted as of the date hereof, such development rights shall not be exercisable on, above, or below the Property, nor shall they be transferred to any adjacent parcel and exercised in a manner that would interfere with the preservation and conservation purposes of this Easement. Notwithstanding the foregoing, * * * the owner of said Lot 1 may include the area of the Property along with the area of said Lot 1, but only to the extent that inclusion of the area of the Property will permit the construction of an additional one thousand five hundred (1,500) square feet of building floor area on said Lot 1.

In the fall of 2000, the defendants enclosed the screened-in porch on the house and converted it into living space. This porch was located on the first floor, in a portion of the house that encroached onto lot 2. In the fall of 2002, the defendants added an addition to the residence that totaled in excess of 1,900 square feet. The defendants consulted with the Association prior to building the addition. The Association indicated that it would approve an addition larger than 1,500 square feet in exchange for the defendants' replacing the aluminum siding on the Kerrigan House with wooden siding. The Association's consultant, Stephen Christy, believed that replacing the siding with wooden siding would restore the house to its original condition. After the addition was completed, Christy viewed the property and determined that the addition was not visible from Sheridan Road. He believed that the addition did not impair any conservation purpose set forth in the conservation easement. Additionally, he observed that the addition would not be visible to a person walking past lot 2 on Sheridan Road.

In the fall of 2003, the defendants consulted with Christy about adding a brick driveway turnaround to lot 1. This driveway would encroach on lot 2. Also in 2003, the defendants altered the landscaping on lot 2. The defendants had planted some additional trees in 2001 and 2002, including four evergreens in the southeast corner of lot 2. In October 2003, the defendants removed a row of honeysuckle that was located on the eastern edge of lots 1 and 2. These plants were approximately 9 to 10 feet tall. In place of the honeysuckle, the defendants planted a row of arbor vitae, an evergreen shrub. These plants were approximately five feet tall. After the Association became aware of these landscaping changes, its representatives scheduled a meeting with the defendants. Following this meeting, the defendants made certain agreements with the Association concerning the landscaping.

[936 N.E.2d 768, 344 Ill.Dec. 239, 404 Ill.App.3d 498]

On November 5, 2003, the defendants and the Association entered into the first of three separate agreements to amend the conservation easement to approve the changes that had been made to the property.

On November 21, 2003, the plaintiffs filed a complaint against the defendants for breach of the conservation easement and for declaratory judgment. The complaint alleged that, because the plaintiffs lived within 500 feet of lot 2, they had standing to enforce the provisions of the conservation easement. See 765 ILCS 120/4 (West 2002). Count I alleged that the conservation easement could not be extinguished or amended without a court order. The plaintiffs alleged that they had been damaged by the breach of the conservation easement in that lot 2 was not being "retained forever predominantly in its scenic and open space condition, as lawn and landscaped grounds, as it existed at the time the conservation easement was granted." The complaint therefore requested $50,000, punitive damages, attorney fees, and costs. Count II demanded specific performance of the conservation easement and sought an order requiring the defendants to reduce the size of the addition to the Kerrigan House to 1,500 square feet or less, to remove the brick driveway turnaround,...