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Forest Glen Comm. Homeowners v. Nolan

OPINION FILED FEBRUARY 25, 1982.

FOREST GLEN COMMUNITY HOMEOWNERS ASSOCIATION, PLAINTIFF-APPELLEE,

v.

THOMAS P. NOLAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. ROBERT A. NOLAN, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The Forest Glen Community Homeowners Association sought injunctive relief to enforce a restrictive covenant against the storing or parking of recreational vehicles in the open on the property of the defendant, Thomas P. Nolan. The trial court granted a permanent injunction, and the homeowner appeals. He contends that injunctive relief is inappropriate because the restriction was vague and indefinite, the court failed to balance the equities, and the restriction denied due process.

The restrictive covenant provides:

"Section 7. Restriction on Vehicles.

No boat, airplane, trailer, truck, house trailer, motorized recreational vehicle, commercial vehicle, or snowmobile shall be stored (permanently or temporarily) in the open on any of the Property, except that conventional passenger vehicles of the Owners, Occupants and their guests shall be permitted to be parked on the Owner's driveway. The Parkway located between the pavement and the Lot Line Front of each Lot shall not be used for the parking of any private or commercial vehicles, boats, trailers, trucks, recreational vehicles, or snowmobiles. The term `Commercial Vehicles' shall include all automobiles, station-wagons, trucks or vehicular equipment which shall bear signs or have printed on the side of same reference to any commercial undertaking."

There was evidence at the hearing that Forest Glen Subdivision contains approximately 100 homes, each having an average fair market value of $228,000. When the covenant was framed in 1976 the local municipality of Oak Brook had not passed any ordinance restricting the locating of recreational vehicles in the open on residential property. The general purpose of the declaration as pertinent was stated in article I: "to protect each Owner * * * from such improper use of surrounding lots as may depreciate the value of their property * * * and, in general, to provide adequately for a residential subdivision of the highest quality and character * * *."

There was testimony that there were complaints from homeowners starting in 1980 concerning a boat on defendant's property. The boat, a 25-foot cabin cruiser, was situated at various times along the defendant's garageway on an asphalt apron or in the U-shaped driveway. There it was visible to neighbors or passersby. The defendant was notified of the violation by registered mail and the president of the association testified that when he talked with defendant the latter said he would keep the craft on the property during the summer until he could find moorings for it. In 1980, the boat was seen on the property from 100-150 occasions at various times during the week and on weekends. There was also testimony that snowmobiles were kept on the defendant's property during the winter and that although the defendant said he would remove them he did not do so. The president of the association testified that he considered "storing" a "consistent thing" whereas "parking" he considered "intermittent." He said that he never saw the boat on the parkway.

The draftsman of the covenant testified that it was designed to deal with the "problem" of residents keeping recreational vehicles on their property, and that the homeowners had requested the covenant to alleviate this practice.

There was also testimony for the association that another neighbor had seen the craft located at different times on the asphalt or apron or in the driveway in open view for 100-110 days from the middle of May to the middle of September 1980 and that snowmobiles were also seen on the property during 1980.

Nolan testified, denying that he kept the cruiser on the premises from the middle of May to the beginning of July 1980. He said that when he did intend to take the boat out on a given day he would remove it the preceding night from the warehouse where he leased space and leave it overnight beside the garage and to the rear of the house. He explained that he brought the boat on the property the night before to prepare it for sailing the next day and that after boating he would return it the same day or the next day to the warehouse unless he intended to use it again the next day or the day after. Nolan acknowledged receiving notice and stated that he continued to bring the cruiser onto his property during the summer because he could not find a mooring. He said that between April and September of 1980, the boat was located on his property for no more than one-fourth of the time. He also said that he kept four snowmobiles on his property, but they were never on his property for more than a weekend, and then only twice during the last winter. On cross-examination he conceded that the boat had been on the property for more than 24 hours at a time, 10-12 times during the summer of 1980, that the craft was on the premises in the open 50-60 nights during that time, and also continuously for a week in the latter part of August.

The trial court, in finding that the defendant had violated the covenant, defined "storing" and "parking" in the following terms:

"Store, stored, storing: Storing means the standing of an unoccupied vehicle otherwise than when temporarily and actually engaged in loading or unloading merchandise or passengers. Park, parked, parking: Parking means the standing of a vehicle whether occupied or not including when temporarily and actually engaged in loading or unloading merchandise or passengers."

The court permanently enjoined defendant from "locating" any restricted vehicle on the property in violation of the covenant, and by a later order clarified the judgment by finding that overnight location violated the covenant.

The defendant principally argues that the covenant is vague and indefinite. The first sentence of the covenant prohibits the open storing of certain vehicles on the property but excepts conventional passenger vehicles parked in the driveway; the next sentence forbids the parking of the specified vehicle in the parkway located between the pavement and the front line of the subject lot. Therefore, he concludes, the covenant is silent on whether the owner may park the designated vehicles, as opposed to store, outside on the property other than on the parkway. The defendant additionally argues that the Homeowners Association, by not bringing suit in 1978 and 1979 when the homeowner also kept ...


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