APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
524 N.E.2d 237, 170 Ill. App. 3d 155, 120 Ill. Dec. 472 1988.IL.802
Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.
PRESIDING JUSTICE STOUDER delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
The defendant, William Sweasy, appeals from the judgment of the circuit court of Peoria County which granted plaintiff's motion for summary judgment. The plaintiff, Yorkshire Village Community Association (Yorkshire), a condominium owners' association, sought an injunction to have Sweasy remove certain flower box planters which he had placed on the sides of his driveway, allegedly in violation of the condominium declarations and restrictions. Yorkshire also appeals from the denial of its request for attorney fees.
Sweasy is a condominium owner and was a member of the board of trustees of Yorkshire when the events leading to this suit took place. This suit was initiated after Sweasy had built two flower box planters, one on each side of his driveway. The planters were 10 to 10 1/2 feet long, 2 to 2 1/2 feet wide, and varied in height from 1 to 2 1/2 feet in staggered heights up Sweasy's sloping driveway. They extend the distance from Sweasy's residence to the sidewalk. During construction of the planters, Sweasy was advised by the president of Yorkshire that he should seek board approval prior to constructing and maintaining these planters. Sweasy stated that he did not need Yorkshire's approval and completed the work. At the next board meeting, Yorkshire concluded that the planters fell within an area regulated by the association and, with Sweasy abstaining, voted unanimously to ask Sweasy to remove the planters. When Sweasy failed to comply, Yorkshire initiated the injunction proceedings.
Yorkshire contends that construction of the planters are subject to its approval under articles VII and VIII of the declarations and restrictions. In pertinent part, those restrictions read as follow:
"ARTICLE VII -- Architectural Control. No building, fence, wall or other structure shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to or change or alteration thereto be made until the plans and specifications showing the nature, kind, shape, height, materials and locations of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Trustees of the Association, or by an architectural committee composed of three or more representatives appointed by the Board.
ARTICLE VIII -- Use of Property.
Sec. 2. Alterations and Additions. No building, structures, dwelling, garage, carport or breezeway shall be erected nor shall any alteration or addition to or repainting of the exterior thereof be made unless it conforms in architecture, material and color to the dwelling as originally constructed by the developer."
According to Sweasy, the planters were constructed at considerable expense, "cannot be utilized in any other location and have no other use or purpose by virtue of their custom design." After Yorkshire filed its complaint, Sweasy filed eight affirmative defenses based on the following grounds: (1) the planters were not "structures" and therefore could not be regulated, (2) estoppel, (3) waiver, (4) prior arbitrary enforcement including one act of retroactive approval, (5) the existence of an adequate remedy at law, (6) failure to state a cause of action, (7) unclean hands, and (8) overbreadth of the restrictions. Upon Yorkshire's motion, the trial court struck all the affirmative defense except the one relating to estoppel. Both parties filed motions for summary judgment, and after argument, the court took the matter under advisement and ultimately granted summary judgment for injunctive relief for Yorkshire. At the same time, the court denied Sweasy's motion. This appeal follows.
The first issue we must address is to what extent the courts should intervene in a challenge by a homeowner to an association board's actions and decisions. While there is little Illinois law available on this point, that which is present is applicable when viewed in the light of recent observations. One author pointed out that some courts have reviewed the actions of condominium associations and have applied either the strict constitutional approach applicable to government action, a similar but more equity-based rule of reasonableness, or the "business judgment" rule using an analogy to corporations. (Note, Judicial Review of Condominium Rulemaking, 94 Harv. L. Rev. 647 (1981).) The Conclusion was that the "business judgment" rule was more appropriate for condominium associations. 94 Harv. L. Rev. at 666.
In Illinois, the cases of Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 449 N.E.2d 151, and Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 478 N.E.2d 860, suggest that either a test of reasonableness (Wolinsky) or the "business judgment" rule (Amoco) be ...