The opinion of the court was delivered by: Presiding Justice Geiger
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Appeal from the Circuit Court of Du Page County.
Honorable Robert E. Byrne, Judge, Presiding
The defendant, the Village of Oak Brook (the village), appeals the circuit court of Du Page County's order granting summary judgment to the plaintiff, Constantine Xinos, on his complaint for a declaratory judgment. The village contends that the trial court erred by concluding that a restrictive covenant required a binding referendum before the village could build a library on property it owns. The village claims that the advisory referendum the village held was sufficient to satisfy the requirements of the restrictive covenant. Alternatively, the village contends that the court erred in concluding that it could not build the library as a matter of right pursuant to other provisions of the covenant.
The village owns a 269-acre parcel commonly known as the Sports Core. The tract currently contains an occupied home, an empty house, a tennis-swimming complex and clubhouse, the Oak Brook Golf Club course and clubhouse, and various maintenance buildings. The Butler Company conveyed the Sports Core tract to the village in 1977. The deed contains the following restrictions:
"By its acceptance of this deed, Grantee covenants that all of the real estate hereunder shall be kept, maintained, and preserved substantially in its present state. No further structures or improvements of any kind shall be erected or permitted on the land; provided, however, that this covenant shall not restrict or prevent the creation of additional bicycle and/or bridle paths on the real estate, the expansion and redevelopment of the present Executive Golf Course, or the installation, erection, or construction by or on behalf of the Village of sports, other recreational, flood control, storm water management or other such public purpose facilities, structures, or improvements, temporary or permanent. Grantee further covenants, except as otherwise hereinafter provided, that no partition or division of the real estate shall be made, nor shall any conveyance be made of less than all of the real estate, it being the intent of the parties that the real estate be continued to be held as a single, unitary tract. It is the express intent of Grantor, and the agreement of Grantee, except as otherwise hereinafter provided, that the real estate be preserved as one whole parcel, for open green areas, natural wooded areas, sports, recreational, flood control, storm water management, and other such public uses. Except as otherwise hereinafter provided, this covenant shall be perpetual and the burden shall run with the land and be binding on all of the Grantee's successors and assigns. The benefit of this covenant shall be in gross and shall run in favor of all bodies and individuals, public and private, in the Village of Oak Brook, Du Page and Cook Counties, Illinois, and shall be enforceable both at law and at equity.
Notwithstanding anything hereinbefore contained to the contrary, the Village of Oak Brook, its successors, or assigns, may at any time and from time to time dispose of in any legitimate manner all or any part of the real estate and improvements herein conveyed to the Village for use for any legitimate purpose, provided that any such Disposition has first been authorized by a majority of the electors of the Village voting at an election specifically called for that purpose in accord with then applicable state and local laws; provided, however, that no such Disposition shall be made within ten (10) years of November 1, 1977 without the prior written consent of the Butler Company; provided, further, that since Paul Butler intended that the Village should be able if it should in the future deem it necessary or desirable to dispose of a small portion of the property acquired in order to reduce or eliminate the need to impose property taxes to pay for said property, Butler Company, for itself and its successors and assigns hereby consents to any such Disposition up to a cumulative total of eighty (80) acres."
At some point, the village became interested in expanding its library. The present library is housed in a 5,000-square-foot building constructed in 1921. According to the village, the site is too small to accommodate a new building or a large addition.
The village's attempts to secure another site within the village proved fruitless, and it began to consider using a portion of the Sports Core site. The village's current proposal calls for a 24,000-square-foot library and a parking lot on three acres of the Sports Core formerly used as a stable.
On November 5, 1996, the village presented the following ballot proposition to Oak Brook voters:
"Shall the Village of Oak Brook utilize funds available in its general corporate fund, in the amount of approximately $3.5 million, to construct and equip a new public library at a site located at the Oak Brook Sports Core, on the north side of Oak Brook Road (31st Street) approximately 2,500 feet west of York Road?"
On November 12, 1996, the Canvassing Board declared that 2,169 votes were cast in favor of and 2,006 votes were cast against the proposition. Accordingly, on January 28, 1997, the Oak Brook Village Board voted to negotiate for architectural services to construct a library on the Sports Core site.
On March 17, 1997, the plaintiff filed the present action. The complaint alleges that the plaintiff is a resident of and owns real estate in the village. The complaint further alleges that the construction of the library would violate the covenant and would cause permanent injury to the plaintiff and other residents of the village. The plaintiff sought a declaratory ...