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Kessler v. Palmeri

FEBRUARY 15, 1972.

LESTER A. KESSLER ET AL., PLAINTIFF-APPELLANTS,

v.

DOMINIC PALMERI, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. CLYDESDALE, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT: The owners of a tract of land in Mendota, Illinois, executed a plat of a subdivision known as Waldorf's Fifth Addition to the city of Mendota. After requisite approval was obtained this plat was recorded on June 12, 1964.

The plat contains certain restrictions governing the use of the property in the subdivision and these restrictions were designated as "protective covenants." The most pertinent portion of the covenants is their preamble and covenant number 1, which is as follows:

"The following protective covenants regulating the use of the property shown hereon are hereby subscribed to without reservation:

1. No lot shall be used for other than residential purposes except the south 220 feet of the subdivision."

The remaining eighteen covenants provide for approval of building plans, minimum floor areas, building lines, utility easements and other restrictions which we shall refer to as they become pertinent to the determination of the issue presented in this appeal.

In 1958 the city of Mendota had adopted a zoning ordinance and the premises later to be known as the south 220 feet of Waldorf's Fifth Addition to the City of Mendota was zoned B-1 — Local Business District. Uses permitted in this district or classification included but were not limited to clothes pressing establishments, food stores, self-service launderies, shoe and hat repair stores, undertaking establishments, funeral parlors, dwelling units and lodging rooms provided they were above the first floor level. Any business signs were to be non-flashing and there was a prohibition against them projecting higher than sixteen feet above the curb level.

It is significant to note that the south 220 feet of the subdivision embraced all of lot 11, the greater portion of lot 10 of the subdivision, as well as all of lot 12 and the greater portion of lot 13; however, lot 12 and the greater portion of lot 13 referred to lie west of the land which became subject to the controversy which resulted in this appeal.

The plaintiffs-appellants, hereinafter referred to as the "property owners", are assignees or successors in interest to the original owners and platters of the subdivision. On April 30, 1967, the defendant-appellee Dominic Palmeri owned lots 9, 10 and 11 in the subdivision and on that date he gave to the defendant-appellee Housing Authority for LaSalle County, Illinois, hereinafter referred to as the "Housing Authority", an option to purchase the lots. All of lot 11 and most of lot 10 are within the south 220 feet of the subdivision. The north 17.45 feet of lot 10 and all of lot 9 lie north of the south 220 feet. At the time the option was granted all of the lots north of the south 220 feet of the subdivision except for one or two vacant lots were improved with single family dwellings. Within the south 220 feet and just west of lots numbered 10 and 11 a two story brick colonial style apartment building consisting of twelve units had been erected.

By a deed dated October 21, 1970, the defendant-appellee Palmeri conveyed lots 9, 10 and 11 in the subdivision to the Housing Authority.

Washington Street, which is also U.S. Route 34, borders the property of the Housing Authority on the south. Immediately east of the Housing Authority's property adjoining Waldorf's Fifth Addition, is a medical clinic and on the south side of Washington Street, being across the street from the Housing Authority's property, is a plumbing and heating establishment, two car agencies, and the Wayside Press, a printing firm.

After the Housing Authority received its option to purchase lots 9, 10 and 11 from Palmeri, it was announced that there was to be constructed on the property a six story, sixty unit high rise apartment for rental to elderly people with low incomes. The property owners filed suit in the circuit court of La Salle County asking for a declaratory judgment that the construction of the high rise project would breach certain restrictive covenants contained in the plat of the subdivision. The Housing Authority denied the allegations in the complaint and responded with a counterclaim for an order finding that the construction would not violate the protective covenants since construction would be within the south 220 feet and the covenants were inapplicable to that portion of the subdivision. A hearing was had and the trial court entered an order finding and declaring that the protective covenants contained in the plat of the subdivision do not apply to the south 220 feet and if the Housing Authority does erect the building within such area none of the covenants would be breached. It is from this ruling that the property owners appeal.

• 1 The sole issue presented for review is whether the court erred as a matter of law in finding and declaring that the covenants contained in the plat do not apply to that property in the subdivision upon which the apartment building is to be constructed. The determination as to whether the covenants contained in the plat of the subdivision are to apply to the south 220 feet upon which the Housing Authority intends to construct a high rise apartment presents solely a question of law, since such determination necessarily involves a construction of the covenants. See Barry v. Chicago, I. & St. L.S.L. Ry. Co., 156 Ill. App. 9.

• 2, 3 The paramount rule for the interpretation of covenants is to so expound them as to give effect to the actual intent of the parties as of the time the covenant was made and as collected from the whole document construed in connection with the circumstances surrounding its execution. (21 C.J.S., Covenants, Sec. 20, p. 896; Barry v. Chicago, I. & St. L.S.L.R. Co., supra). Each case must be decided on its own facts and covenants should be construed most strongly against the covenantor and all doubts and ambiguities should be resolved in favor of natural rights and against restrictions. 14 I.L.P., Covenants, Sec. 3, p. 424-425; Hutchinson v. Ulrich, 145 Ill. 336, 34 N.E. 556; Leverich v. Roy, 338 Ill. App. 248, 87 N.E.2d 226; Staley v. Mears, 13 Ill. App.2d 451, 142 N.E.2d 835.

Recognizing the foregoing long accepted rules of construction and interpretation of covenants, it now devolves upon us to apply them to the facts ...


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