Appeal from the Circuit Court of Lake County. No. 97--MR--217 Honorable Charles F. Scott, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Bowman
Plaintiff, the Village of Wadsworth (Village), filed a two-count complaint in the circuit court of Lake County against defendant, Michael Kerton. In count I, the Village asked the court to declare that defendant's installation of a fence, removal of vegetation, planting of new vegetation, and placing of mulch within the scenic corridor and deed-restricted open areas (protected areas) within defendant's lot were prohibited and unlawful. The Village sought an injunction requiring the removal of the fence, mulch, and newly planted vegetation and prohibiting any further disturbance of the protected areas. In count II, the Village sought a fine for defendant's violations of the protected areas.
Following a bench trial, the trial court denied the Village's request that defendant be ordered to remove the fence. The court enjoined defendant from removing or planting any other vegetation within the protected areas without approval from the plan commission. It also ordered defendant to submit a landscape plan to the plan commission for approval of landscaping already done and to abide by its decision or, if defendant chose not to submit such a plan, to remove the trees planted and mulch installed from the protected areas. As to count II, the court found the complaint failed to specify the particular zoning ordinance or scenic corridor provision violated. The Village immediately moved to amend count II to conform to the proofs, in particular, to specify the precise scenic corridor provisions violated. The trial court denied the motion. The Village appeals.
On appeal, the Village contends that (1) the trial court abused its discretion in denying the Village's request for injunctive relief to require defendant to remove his fence as well as the trees planted and mulch installed in the protected areas; (2) the trial court erred in finding that count II of the complaint was not sufficiently specific to apprise defendant of the section of the zoning ordinance violated; and (3) the trial court abused its discretion in denying the Village's request to amend its pleadings to conform to the proofs.
In 1990 the Village approved a subdivision known as the Willows Planned Unit Development (the Willows). The plat was duly recorded on August 10, 1990. The Village impressed certain conditions upon the subdivision as reflected in the restrictions on the plat. One of the restrictions pertained to the areas designated on the plat as "deed restricted open space" areas or "scenic corridor" areas.
The restriction provided as follows:
"ALL AREAS DESIGNATED SCENIC CORRIDOR OR DEED RESTRICTED OPEN SPACE ON THIS PLAT SHALL BE MAINTAINED IN THEIR NATURAL, UNDISTURBED CONDITION AND NO MAN-MADE STRUCTURES OF ANY KIND SHALL BE CONSTRUCTED THEREON, NOR SHALL ANY GRADING BE PERMITTED ON ANY SCENIC CORRIDOR OR DEED RESTRICTED OPEN SPACE AREA EXCEPT ACCORDING TO THE REGULATIONS IN THE WADSWORTH ORDINANCE THAT APPLY TO THESE AREAS. NATURAL VEGETATION SHALL BE PRESERVED AND MAINTAINED AND SHALL NOT BE MOWED, CULTIVATED, SPRAYED OR IN ANY WAY DISTURBED WITHOUT FOLLOWING THE REQUIRED PROCEDURES OF THE VILLAGE OF WADSWORTH. NOXIOUS PLANT MATERIAL MAY BE REMOVED SUBJECT TO A LANDSCAPE PLAN APPROVED BY THE PLAN COMMISSION."
As part of the subdivision approval process, covenants and restrictions were recorded with the plat. The covenants contained a provision for the deed-restricted open space areas that was identical to the restriction on the plat pertaining to these areas. The covenants also contained a provision granting the Village the right to enforce the covenants. Paragraph 2 of clause VII provided: "The Covenants herein set forth shall run with the land and bind Declarant, its successors, grantees and assigns, and all parties claiming by, through, or under them. Declarant, the Association, any Homesite owner and the Village of Wadsworth shall each have the right to sue for and obtain a prohibitive or mandatory injunction or any equitable remedy to prevent the breach of, or to enforce the observance of, the Covenants above set forth, or any of them, in addition to the right to bring an ordinary legal action for damages."
In 1991 the Village adopted a comprehensive zoning ordinance that superceded the prior zoning ordinance.
The new zoning ordinance included provisions for the scenic corridor areas:
"5.3 OVERLAY DISTRICT REGULATIONS A. Scenic Corridor Overlay District Regulations
The Scenic Corridor Overlay District is established to preserve the scenic qualities of the Wadsworth area in a period of transition from a rural farming community to a low density, non-farm residential community. The vistas, open fields, wetlands, and majestic stands of hardwood forest are primary scenic resources which make Wadsworth a pleasant place to live. These resources form the basis for both planning and zoning for low density, open residential subdivisions. It is the intent of this section to preserve highly visible portions of this scenic resource so that future development and future residents can continue to enjoy the qualities which first attracted non-farm residents to the Village and its environs.
These uses permitted in the Scenic Corridor Overlay District shall be those uses as shown in Table 1-A, Uses Permitted in Overlay Districts subject to the regulations established herein. Any existing use is a permitted use in the SCOD provided such use was a legally established use and permitted use in the underlying district on the effective date of this ordinance.
3. Prohibited Construction
Except as noted below all buildings and structures including at-grade construction shall be excluded from the scenic corridors.
The following uses and accessory uses are permitted in scenic corridors subject to the landscape standards established herein: a.Buildings and structures including existing accessory structures existing on the effective date of this Ordinance.
b.Agricultural uses provided that no barns or other structures shall be constructed within such scenic corridor.
c.Open uses as provided in Table 1-A, Uses Permitted in Overlay Districts.
d.Entrances to subdivisions including identification signs subject to the approval of the Plan Commission ...