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12/24/96 TIMOTHY CHRISTIAN SCHOOLS v. VILLAGE

December 24, 1996

TIMOTHY CHRISTIAN SCHOOLS, PLAINTIFF,
v.
THE VILLAGE OF WESTERN SPRINGS, DEFENDANT-APPELLEE (CASEY GAIK, PLAINTIFF-APPELLANT; EDWIN BUNYEA, MARIAN BUNYEA, THOMAS BRAUN, EVANGELINE BRAUN, KID ROBARE, KYLE ROBARE, DAVID JENSEN, CAROLE JENSEN, SALLIE SILVEY, MARK MUELLER, KAREN MUELLER, ROCCO DIIORIO, HELEN DIIORIO, VITAS NIAURA AND VICTORIA NIAURA, INTERVENORS-APPELLANTS).



Appeal from the Circuit Court of Cook County. Honorable Thomas Durkin, Judge Presiding.

Rehearing Denied January 16, 1997. Released for Publication February 13, 1997.

The Honorable Justice Rakowski delivered the opinion of the court. McNAMARA and Leavitt, JJ., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Plaintiff Casey Gaik filed a petition for contempt and sought to enjoin the defendant Village of Western Springs (the Village) from selling approximately one acre of land to the Gammonly Group for development of 14 townhomes. Following an evidentiary hearing, the trial court denied Gaik relief and he appeals. *fn1 We address the following issues: (1) whether there is a use restriction on the Village's property; (2) whether the Village is estopped from selling its property; and (3) whether the public trust doctrine prohibits the Village from selling the property. We affirm.

I. FACTS

In 1981, Gaik sought to purchase three acres of land from Timothy Christian Schools. The property was zoned residential. In order to develop the property into a professional office building with parking, Gaik requested a zoning variance from the Village. The Village denied the request and Gaik sued. *fn2 After a trial, the trial court ruled that the Village's zoning ordinance was unconstitutional. In order to avoid the expense and delay of an appeal, the risk of reversal, and to promptly commence development, Gaik entered into an agreement with the Village. In exchange for the Village's agreement not to appeal, Gaik agreed to reduce the scope of his development. Gaik also agreed to give the Village approximately one acre of the property. The agreement further provided that both Gaik and the Village would make improvements on the property for drainage and flood control. The agreement was memorialized in the trial court's "December 28, 1982 Revised Judgment and Order" (the 1982 order) and site plan incorporated therein. The parcel was deeded to the Village; however, the deed does not contain the aforementioned agreement or in any way refer to the 1982 order and site plan.

In 1994, the Village entered into a contract to sell its one-acre parcel to the Gammonly Group for a townhome development. This development will require rezoning, variances, and other modifications of existing ordinances. Gaik filed the instant case, asserting that the one-acre parcel was given to the Village so it would not be developed, and that selling or using the land for any use other than open space violates the terms of the agreement entered into and the 1982 order reflecting that agreement. In particular, plaintiffs argue that the site plan prohibits the sale or development of the parcel. Gaik sought a permanent injunction asking the court to rescind the deed to the Village and revert the one-acre parcel to him. After briefing and an evidentiary hearing, the trial court denied plaintiffs' request, finding no language in the deed or the 1982 order that restricted the use of the one acre or prohibited the Village from selling it for development.

II. ANALYSIS

A. Use or Conveyance Restriction

on the Village's Property

Plaintiffs contend that the trial court erred in denying relief when it based its decision solely on the fact that no restriction on the use of the property was contained in the deed, i.e., they contend the trial court erred in applying the doctrine of merger by deed. Plaintiffs argue that the 1982 order, which incorporates the site plan, requires the Village to keep the land open as a park. They assert that the Village is Prohibited from developing the land or selling it for development. In other portions of their brief, plaintiffs contend the area was intended to be used as drainage for public use. According to plaintiffs, this would require that the land remain open space. Plaintiffs state the intent of the 1982 agreement that conveyed the land to the Village was that the land would be used as a drainage and flood control area in perpetuity.

The doctrine of merger provides that, when a deed is executed, the contract for sale merges into the deed and ceases to exist. However, when the provisions in the contract are collateral to and independent of the provisions in the deed, there is no merger. Daniels v. Anderson, 162 Ill. 2d 47, 63, 204 Ill. Dec. 666, 642 N.E.2d 128 (1994); Ollivier v. Alden, 262 Ill. App. 3d 190, 195, 199 Ill. Dec. 579, 634 N.E.2d 418 (1994). Whether and to what extent merger occurs is a matter of the parties' intent as evidenced by the language of the instruments and surrounding circumstances. Daniels, 162 Ill. 2d at 64.

In this case, the 1982 order incorporates the contract between the parties. Because there are provisions in the 1982 order that are independent of provisions in the deed and cannot be fulfilled by it, the 1982 order does not merge into the deed. Thus, plaintiffs are correct that the doctrine of merger does not apply. However, the trial court did not apply the doctrine. When rendering its decision, the trial court stated there was nothing in the deed or the 1982 order that restricted the use of the property or the Village's right to convey ...


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