Standlee v. Bostedt

• Decision Date: 29 March 2019
• Docket Number: No. 2-18-0325,2-18-0325
• Citation: 137 N.E.3d 833,2019 IL App (2d) 180325,434 Ill.Dec. 761
• Parties: Larry STANDLEE, Ronald Edelmann, and Joseph Arras, Plaintiffs-Appellees, v. Joseph BOSTEDT and Eva Bostedt, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 180325
137 N.E.3d 833
434 Ill.Dec. 761

Larry STANDLEE, Ronald Edelmann, and Joseph Arras, Plaintiffs-Appellees,
v.
Joseph BOSTEDT and Eva Bostedt, Defendants-Appellants.

No. 2-18-0325

Appellate Court of Illinois, Second District.

Opinion filed March 29, 2019
Rehearing denied May 13, 2019

Patrick M. Griffin, of Griffin Williams LLP, of Geneva, for appellants.

Jeffrey A. Meyer, of Klein, Stoddard, Buck & Lewis, LLC, of Sycamore, for appellees.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

137 N.E.3d 836

434 Ill.Dec. 764

¶ 1 Plaintiffs, Larry Standlee, Ronald Edelmann, and Joseph Arras, filed a complaint to enjoin defendants, Joseph and Eva Bostedt,¹ from constructing a detached garage on their one-acre lot. There were no other detached garages in the subdivision. Plaintiffs claimed that a declaration of covenants for the subdivision, recorded in 1991, prohibited the garage. The trial court agreed and ordered that the Bostedts demolish their permit-approved, nearly completed, $ 50,000 garage. The Bostedts appeal, arguing that the court misinterpreted the declaration to contain an absolute ban on detached garages. They urge that the declaration did not set forth a blanket prohibition but, rather, contained a procedure for seeking a variance. However, because there was no trustee, committee, or association to approve a variance, they were denied the opportunity to seek one. We agree that the declaration contained a variance procedure and conclude that it that was no less a part of the declaration than the general restrictions. Because there was no access to the variance procedure, we will not enforce the restriction against the garage. This approach is consistent with the general principles to enforce restrictive covenants only when they are clear and to resolve any doubt in favor of property rights and the free use of land. We reverse.

¶ 2 I. BACKGROUND

¶ 3 In 2014, the Bostedts bought a home in the Williamsburg Green subdivision, in Elgin. The subdivision consisted of four platted units, Nos. 1, 2, 3, and 4. These units were platted between 1978 and 1990. Unit Nos. 3 and 4 together contain 95 lots. Approximately five empty lots remain. An exhibit with an aerial view of a portion of Unit No. 4, which contains the Bostedts' home, shows each lot to be approximately the same size, and one witness testified that her lot was one acre. Unit Nos. 3 and 4 share similar restrictions, which are set forth in two nearly identical declarations that cross-reference one another. They are dated 1986 and were recorded in 1991.

¶ 4 A. The Declaration

¶ 5 The developer named the First National Bank of Elgin as the trustee. The declaration governing Unit No. 4 reads, in pertinent part:

"Whereas the Trustee [ (the First National Bank of Elgin) ] is the owner and holder of the legal title of the following described real estate * * *: Lots 100 through 152 inclusive in Williamsburg Green Unit No. 4 * * *.

Whereas it is the desire of the Trustee to declare herein certain restrictions for the benefit of itself, subsequent owners, and mortgagees of the premises.

* * *

1. All the lots in the subdivision shall be used as residential lots. No structure shall be erected, altered, placed, or permitted to remain on any residential lot other than a single family dwelling not more than two stories in height. Each such dwelling shall have an attached

137 N.E.3d 837

434 Ill.Dec. 765

three or four car garage with a paved driveway.

2. * * * No bi-level dwelling will be permitted. No masonry front only dwelling will be permitted. Care must be taken with the design to make the side and rear of the dwelling compatible with the front. Garage doors must not face to the front of the lot . All chimney shall be of masonry construction. Any improvements to be constructed are subject to the approval of the Trustee or a committee appointed by the Trustee and such approval must be in writing . Exterior color selections shall also be subject to such approval.

3. No buildings, fence, swimming pool, or other structures shall be placed, erected, or altered on any lot until * * * [the specifications, the building plans, and] the plot plan showing the location of said [structure] shall have been approved in writing by the Trustee or by a committee appointed by the Trustee * * *. No above-ground swimming pool shall be permitted and any in-ground swimming pool must be surrounded by a fence, the fence to be approved in writing by the Trustee or a committee appointed by the Trustee.

* * *

7. No trucks, commercial vehicles, trailers, boats, or campers shall be stored or parked in yard or parked in drive or on streets overnight.

8. No outbuildings or any other structures of any kind whatsoever shall be constructed on the real estate . Any owner of real estate in Williamsburg Green Unit No. 4 acknowledges that the construction of any outbuildings will affect the appearance and general plan for development of [the subdivision] and that the enforcement of a remedy by way of injunction will not cause any hardship on such owner.

9. Each owner of any lot in [Unit No. 4] shall automatically become a member of [the Unit No. 3] property owners' association * * * and the owner shall be subject to all the bylaws of the association * * *.

10. * * * Not more than one driveway from a public street is permitted on a lot, unless the lot has the minimum lot frontage of 150 feet along the same street * * *. On lots where more than one driveway access to a public street may be provided, driveways shall be located at least 50 feet from the intersection of two street right-of-ways and at least 100 feet away from another driveway on the same lot." (Emphases added.)

¶ 6 Although the declaration refers to a trustee, a committee, and an association, none of these existed when the Bostedts purchased their home or at any time relevant to this case. A trustee, a committee, and an association have, at best, existed intermittently throughout the life of the subdivision. The Illinois Secretary of State website shows that an association was formed in 2001 but dissolved in 2002. There is no evidence of any trustee, committee, or association having existed after 2008, nine years before this lawsuit was filed. Plaintiffs concede that no trustee, committee, or association existed since the Bostedts purchased their home.

¶ 7 The Bostedts agree that, because the declaration was recorded, they had constructive notice of the subdivision's restrictions. However, they maintain that they did not have actual notice of the restrictions and that they pursued the construction of their garage in good faith. The Bostedts took title to their property pursuant to a recorded deed, but that deed did not reference any restrictions. They did not receive a copy of the title policy at closing, which would have alerted them to

137 N.E.3d 838

434 Ill.Dec. 766

the restrictions. Instead, the title policy was mailed to their home shortly after the closing, along with several other documents. They did not read the documents and filed them away.

¶ 8 B. The Garage and the Ensuing Controversy

¶ 9 On February 6, 2017, the Bostedts entered into a contract to construct a detached garage. By March 31, 2017, they had obtained the necessary approvals from Kane County, including a building permit. On April 8, 2017, they began construction. As detailed below, only one neighbor, John Graziadei, came to speak to the Bostedts about their garage. Graziadei did not take issue with it. The garage was to be built in the style of the main home, with the same color and pattern of brick in the front. The garage was also to have an identical rose window and complementary lanterns. It would store the Bostedts' collectors' cars, which included a Mustang, a Corvette, and a BMW. The contracted-for cost of the garage was $ 45,000, but the total cost to the date of the lawsuit was $ 50,000.

¶ 10 On April 26, 2017, Standlee returned home from Florida and noticed the construction. After speaking with a few neighbors, including Edelmann and Arass, Standlee wrote the Bostedts an anonymous letter urging them to cease construction or be subject to injunction proceedings.

¶ 11 The letter, dated May 1, 2017, stated:

"Enclosed is a copy of the Deed Restrictions that pertain to your lot. * * * The garage you are building is not in compliance to the Deed Restrictions of this community and we as concerned neighbors are writing this letter to you as a courtesy. The Deed Restrictions will be enforced and it would be less costly for you to remove the garage now, before you put more money and effort into your project."

The letter was signed "concerned neighbors" and provided no contact information.

¶ 12 The Bostedts received the letter May 5, 2017, via the United States Postal Service. According to them, this was the first they had heard of a restriction against detached garages. By that date, the garage was already substantially completed. The foundation was in place, the garage was fully framed, the roof deck was complete, roofing paper had been applied, and siding had been...