Interlocutory Appeal from the Circuit Court of Cook County;
the Hon. CHARLES DOUGHERTY, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 7, 1963.
This is an interlocutory appeal from a Circuit Court order granting a temporary injunction without notice and without bond restraining the defendants from continuing with the construction of a residential building.
The plaintiff, Sunset Hills Homeowners Association, brought suit on July 19, 1962, against defendants, alleging in its verified complaint that it is a duly chartered nonprofit corporation composed of homeowners in Braniger's Medinah Sunset Hills subdivision and was formed to promote the welfare and interests of property owners in the subdivision and to enforce building and other restrictions pertaining to property in the subdivision; that the plat to the subdivision is recorded (citing the book and page number) and that all lots in the subdivision are subject to building restrictions which were included in the deeds given by the subdivider, which restrictions are covenants running with the land, designed to insure conformance to a general building plan in order to make the property a highly desirable residential area; that the association succeeded to the rights of the subdivider to enforce reasonable restrictions and at a meeting held April 1, 1959, the association adopted a Building Code (a copy of which was attached to the complaint), which provides, in part, as follows:
A. Minimum area as specified in recorded plat is to be 1100 square feet with basement, and 1200 square feet without basement. Square feet is to be measured from inside of exterior walls.
The complaint then alleged that defendant Karel is the owner of lot 159 in the subdivision and that defendant York Homes, under a contract with Karel, and without a permit from the committee (as required by the Building Code), had started construction of a building with only 1065 square feet of floor space in violation of the code provision quoted above; that defendants have, despite notice, continued construction to the great harm of plaintiffs; that plaintiffs are without an adequate remedy at law.
Plaintiffs then requested an injunction be granted enjoining defendants from continuing construction. Waiver of notice was requested on the grounds that an emergency existed and that if notice were given so much of the construction would be completed that it would become economically unfeasible to require defendant to comply with the Building Code. Plaintiffs also stated they were without funds and requested issuance of the injunction without bond.
In an ex parte hearing on July 23, 1962, an order was entered granting the temporary injunction as requested in the complaint and a copy of the injunction was served on defendant York the same day. Counsel for defendant, Karel, filed his appearance on August 1, 1962, and served notice that on August 3, 1962, he would move to dissolve the injunction for the following reasons:
1. The complaint failed to state a cause of action and failed to state sufficient grounds to justify granting an injunction;
2. The restrictions alleged in the deeds from the subdivider were not made part of the complaint nor were any of the restrictions alleged to have been violated;
3. The complaint failed to state what the rights of the subdivider were, how plaintiff association had succeeded to those rights or that defendants had notice of the alleged succession to those rights;
4. The complaint failed to allege that the terms of the privately adopted Building Code were ever made a matter of public record or that defendants were ever put on notice;
5. The complaint failed to recite facts wherein a duty evolved upon defendant to seek a permit from plaintiff association;
6. The allegations that an emergency existed failed to state any facts entitling plaintiff to relief requested;
7. The allegation that plaintiff association is without funds to provide for a bond indicates that the association is without funds to answer in a suit for damages.
Whereupon defendant Karel prayed that the temporary injunction be dissolved.
In its answer, filed on August 8, 1962, defendant York admitted that all lots in the subdivision were subject to recorded restrictions, but denied that said restrictions give the plaintiff the power to promulgate and enforce any building restrictions of the type sought to be enforced here. York further stated it had not violated any of the subdivision restrictions. Defendant York's answer further stated that plaintiff did not have the right to adopt a Building Code or to issue building permits in conflict with the Building Code of Cook County; that the Building Code is arbitrary, unreasonable, and vague; that all square footage in buildings is measured from the outside of exterior walls and not inside; that the building permit obtained from the Cook County Zoning Board (attached as Exhibit A) showed the area of the premises to be 1,184 square feet; that plaintiff had approved the plans and specifications for the building as they now stand and is estopped from claiming the alleged violation. Attached to the answer was the affidavit of James Riley who was assigned to the construction of the Karel residence by defendant York. In his affidavit Riley stated that on July 9, 1962, a person representing himself to be a "Building Inspector" requested the construction be stopped because plaintiff association had not approved the plans. Riley said he contacted a member of the association (a Mrs. ...