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Tones, Inc. v. La Salle National Bank

DECEMBER 18, 1975.

TONES INCORPORATED, PLAINTIFF-APPELLEE,

v.

LA SALLE NATIONAL BANK OF CHICAGO, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kane County; the Hon. PAUL W. SCHNAKE, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiff corporation (hereinafter Tones), the owner of Lot 8 in Block 1 in the 1st Addition to Unit 8 of Golf View Highlands in the Village of Carpentersville, sought a declaratory judgment to nullify a covenant which restricted the use of its property to residential and farming purposes. The restriction had been placed on 12 lots in Block 1 among the total of 88 lots in the subdivision by the defendant La Salle National Bank of Chicago, Trustee under Trust No. 14832, the subdivider and original grantor (hereinafter Besinger). All owners of the other 87 lots in the subdivision were made parties defendant. Certain defendants filed a counterclaim also seeking to nullify the restriction as to their respective lots (hereinafter Abramson, as the owner of Lots 9 and 10 in Block 1, and Herod, as the owner of Lots 17 through 20, inclusive, in Block 1).

The trial court declared the restrictive covenant void as to plaintiff's Lot 8 and also as to counterplaintiff Abramson's Lots 9 and 10, but not as to counterplaintiff Herod's lots.

The defendant Besinger and certain of the defendants whose lots are in the subdivision, but not all in Block 1, appeal. They contend that the court's finding that the restrictive covenant was no longer binding on Lots 8, 9 and 10 by reason of alleged changed conditions of the surrounding property is not supported by the evidence. For convenience a sketch of the subdivision is attached as Exhibit A.

The subdivision plat was approved April 4, 1956, by the Village of Carpentersville. The restrictive covenant, placed on Lots 8, 9, 10, and 12 through 20, inclusive, in Block 1, was recorded by Besinger on December 27, 1960. Tones bought Lot 8 in 1969 for $17,000.

At the time the restrictive covenant was imposed, Besinger no longer owned Lots 3, 7, and 11 in the block, but he retained and still retains title to Lots 1, 2, and 12 through 16, inclusive. There is no evidence as to the ownership of Lots 4, 5, and 6 on December 27, 1960, or at present.

Although the record is not entirely satisfactory, there is evidence that at the time the restrictive covenant was put on the other lots, no restriction was placed on Lots 1 and 2 because Besinger planned to use them for commercial purposes in connection with the Meadowdale Shopping Center across the road to the north which he had also developed. Lots 3, 7, and 11 had been sold for residential use prior to the restriction, and a residence had been constructed on each lot. However, the house on Lot 3 was being used as a shoe repair store prior to imposition of the covenant, and the house on Lot 7 may have been used for the sale of insurance. Also prior to the restriction, Lots 4, 5, and 6 were vacant. Besinger testified that he believed those lots were included in the restriction, but they were omitted from the recorded document.

After the restrictive covenant was imposed in December of 1960, Abramson, as owner of Lot 11, and the owner of Lot 7 secured a change from residential to commercial zoning for their lots. Abramson converted his home on Lot 11 to a business use in 1961 or 1962 and purchased Lots 9 and 10 in 1962, claiming to be unaware of the restrictive covenants on those lots. The building on Lot 7 was also converted to a business use and now houses a real estate office and other offices. In 1972 Abramson erected a two-story office building on Lot 11 in place of the converted residence. It also fairly appears from the record that the Meadowdale Shopping Center to the north became fully developed after the date of the restrictive covenants in Block 1. Homes have been built in Blocks 3 and 4 to the west of Block 1.

The traffic along Route 25 beside the 20 lots in Block 1 had apparently increased from a daily average of 6,300 vehicles in 1960 to 19,600 vehicles in 1969 and to 25,700 vehicles in 1972. There was also testimony that traffic had increased substantially on Ravine Lane which separated Block 1 from the remainder of the subdivision to the west.

At the time of trial there was a McDonald's restaurant on Lots 1 and 2 in Block 1 facing Meadowdale Shopping Center to the north; Block 6 to the west of Lots 1 and 2 in Block 1 had been developed by Besinger with a tire shop and a car wash, also facing north toward the shopping center; a church had been constructed in Block 2 west of Lot 11; a school had been built in Block 7 across the street from Lots 4 through 8; and a tavern and pizza parlor was located on Lot 3 in place of the shoe repair shop. Whether these uses preceded or followed the imposition of the restrictive covenant is not clear in the record. The most that can be said is that the development of Block 6 occurred after the construction of the McDonald's and that most of the buildings described were in existence in 1962. In addition, Route 25 was a four lane highway, having been widened from two to four lanes close to the time of the imposition of the covenants, but the date of the widening was not definitely established.

The evidence indicated that the Village Board of Carpentersville had amended its zoning ordinance in 1970 to change the zoning for Lots 8, 9, and 10 and Lots 17 through 20 from residential to business, subject, however, to private restrictions. However, the comprehensive plan for the Village of Carpentersville, adopted in 1973 just prior to trial, indicated that the area in question should be developed for medium density residential use.

Depending on the witness, the value of vacant lots in Block 1 ranged from $2,500 to $8,000 per lot for single-family use, from $15,000 to $20,000 per lot for apartment building purposes, and from $45,000 to $70,000 per lot for commercial purposes.

Mr. Besinger testified that his purpose in restricting Lots 8 through 10 and 12 through 20 was to protect the property owners and future property owners to the west in the subdivision, that he had permitted the erection of a car wash and tire shop in Block 6 and a McDonald's on Lots 1 and 2 because he no longer had any residential property to the west of those locations, and that he had consistently refused to lift the restrictions even when he controlled most of the lots in Block 1.

In granting the relief sought as to Lots 8, 9, and 10, the trial judge concluded that the restrictions were no longer binding by reason of the changed conditions of surrounding property. He concluded from his view of the property in question that the property to the north of the existing office building on Lot 11 was not suitable for residential purposes. However, he found that there was a distinct difference between that property and the lots lying to the south of the office building on Lot 11 and that there had not ...


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