Appeal from the Circuit Court of Cook County. Honorable Edward C. Hofert, Judge Presiding.
Released for Publication May 26, 1995. Withdrawn from the Bound Volume.
The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., and Rizzi, J., concur.
The opinion of the court was delivered by: Cerda
The Honorable Justice CERDA delivered the opinion of the court:
Defendants, Nile Coble, Sally Coble, Ronald Lam, Barbara Lam, Judith Dokmo, and Richard Dokmo, appeal from the circuit court of Cook County's judgment in favor of plaintiffs, Linda Paquette and Rodney Paquette, that a restrictive covenant permitting single family residences to be built only on 2 1/4 acres or more was unenforceable. Defendants argue that the subdivision of a lot and building of homes on the resulting two lots did not change the character of the area and thereby render the restrictive covenant unenforceable. Plaintiffs cross-appeal from the denial of their motion for summary judgment. We affirm.
The issues in this declaratory judgment case are whether the subdivision of one of the four lots so changed the area as to render the restrictive covenant regarding single-family residences unenforceable and whether the restrictive covenant prohibited the subdivision of plaintiffs' lot.
Plaintiffs alleged in Count I of their complaint for declaratory judgment that they owned lot two known as 115 Crooked Creek Trail in unincorporated Barrington, Illinois. Defendants Dokma were the owners of the west half of lot three. Defendants Coble were the owners of the east half of lot three. Defendant James Doetsch was the owner of lot four. Defendants Lam were the owners of lot five.
The subdivision in which these lots was located was originally platted in 1954. Subsequent to the platting of the subdivision, a rider was recorded with each initial sale of lots two through five, and it provided in part that:
"No more than one single family residence or dwelling house shall be built or erected upon any piece or parcel of the above premises, having an area of less than two and one-quarter acres."
As originally platted, lot three consisted of an area of about 1.84 acres. In May 1970, lot three was divided into two smaller lots, each less than one acre in size. Each of the resubdivided lots was improved with a single family residence.
Plaintiffs wished to subdivide lot two, which had an area of approximately 2.07 acres. A dispute arose among plaintiffs and defendants concerning the language of the restrictive covenant. Defendants claimed that the restrictive covenant prohibited subdivision, and plaintiffs claimed that the restrictive covenant did not prohibit subdivision but only limited the number and type of structure that could be built on the resulting new parcel.
Plaintiffs alleged in count II that any prohibition against subdivision was waived as a result of the subdivision of lot three by deed.
Plaintiffs alleged in count III that the restrictive covenant was unenforceable due to the changed ...