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Save the Prairie Society v. Greene Development Group

June 18, 2001

SAVE THE PRAIRIE SOCIETY, AN ILLINOIS NOT-FOR PROFIT ORGANIZATION, PLAINTIFF-APPELLANT,
v.
GREENE DEVELOPMENT GROUP, INC., AN ILLINOIS CORPORATION, AND FOUNDERS BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED APRIL 9, 1996, AND KNOWN AS TRUST NO. 5-1180, DEFENDANTS-APPELLEES
(MIDWEST TRUST SERVICES, INC., AS TRUSTEE UNDER TRUST AGREEMENT DATED JANUARY 12, 2000, AND KNOWN AS TRUST AGREEMENT NO. 00-107633, AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 28, 1966, AND KNOWN AS TRUST NO. 23730, CONTINENTAL COMMUNITY BANK & TRUST COMPANY, AS TRUSTEE UNDER TRUST AGREEMENT DATED MAY 17, 1999, AND KNOWN AS TRUST NO. 10401, CONSTANTINE P. XINOS, MARIKA P. XINOS, AND JOHN ROMANELLI, INTERVENORS-APPELLEES).



The opinion of the court was delivered by: Presiding Justice Mcnulty

Not Released For Publication

SAVE THE PRAIRIE SOCIETY, AN ILLINOIS NOT-FOR PROFIT ORGANIZATION, PLAINTIFF-APPELLANT,
v.
GREENE DEVELOPMENT GROUP, INC., AN ILLINOIS CORPORATION, AND FOUNDERS BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED APRIL 9, 1996, AND KNOWN AS TRUST NO. 5-1180, DEFENDANTS-APPELLEES
(MIDWEST TRUST SERVICES, INC., AS TRUSTEE UNDER TRUST AGREEMENT DATED JANUARY 12, 2000, AND KNOWN AS TRUST AGREEMENT NO. 00-107633, AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 28, 1966, AND KNOWN AS TRUST NO. 23730, CONTINENTAL COMMUNITY BANK & TRUST COMPANY, AS TRUSTEE UNDER TRUST AGREEMENT DATED MAY 17, 1999, AND KNOWN AS TRUST NO. 10401, CONSTANTINE P. XINOS, MARIKA P. XINOS, AND JOHN ROMANELLI, INTERVENORS-APPELLEES).

The opinion of the court was delivered by: Presiding Justice Mcnulty

Appeal from the Circuit Court of Cook County

Honorable Aaron Jaffe, Judge Presiding

 Save the Prairie Society sued to enforce a restrictive covenant in the deed for property Greene Development Group (defendant) owned. Plaintiff sought a preliminary injunction against development of the property pending determination of the suit to enforce the restrictive covenant. The trial court denied the motion for a preliminary injunction. Plaintiff now brings this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (155 Ill. 2d R. 307(a)(1)).

Greene's property is a five-acre lot in the southwest corner of a 200-acre area Fred'k H. Bartlett & Co. (Bartlett & Co.) once owned. On November 14, 1942, Bartlett & Co. deeded ten acres to Bernard Ferrari. The deed provided that it was

"Subject to the following restrictions *** which shall be construed as a covenant running with the land:

The minimum cost of any principal building erected or placed on said property shall be $5,000. ***

Property is restricted to residence and garden farming. Property shall not be used for hog, goat or mushroom farming."

The same day Bartlett & Co. deeded all of the remaining property to Frederick Bartlett (Bartlett) as trustee under a trust agreement for an entity he called "Fred'k H. Bartlett Realty Co. (not incorporated)."

Two months later Bartlett began distributing the remaining property to numerous other persons. He signed 21 separate deeds over the following 30 months, finally distributing the last 5 parcels between July 1945 and June 1947. Three of the deeds had no restrictive covenants. The wording of the covenants in the other deeds varied somewhat, but all included covenants forbidding any principal building other than a residence costing more than $5,000, and forbidding hog or mushroom farming.

Despite the restrictive covenants, owners eventually developed most of the 200-acre tract either with buildings other than residences, or with many separate residences on each lot. But the properties in the area south of 26th Street largely abided by the covenants. All lots remained about five acres, and no property had more than one principal building, which was, in all cases, a single-family residence. In 1988 the owners of the lots on the southernmost 60 acres filed articles of incorporation for the Hickory Lane Homeowners Association, to operate the "Hickory Lane residential community" for the common benefit of its members, the owners of the properties. The community consisted of just the 12 lots in the 60-acre southern area.

Thirty-First Street is the southern boundary of the Hickory Lane residential community. Across 31st Street lies a forest preserve. On the west the residential community abuts a large vacant area operated as a landfill. An estate named Ashley Woods forms the northern boundary. On the east, the community borders the Wolf Road Prairie, an 80-acre nature preserve that is one of the largest black-soil prairies in Illinois.

Late in the 1980s, the owners of Ashley Woods sought to develop the property with a housing development. Plaintiff, an organization with approximately 1,200 members, sued to prevent the development because of its potentially adverse impact on the nearby prairie. Plaintiff sought to enforce the restrictive covenant in Bartlett's original deed for Ashley Woods. But plaintiff owned no property subject to the restrictive covenant, so it lacked standing to enforce the covenant. See Westgate Terrace Community Associates, Inc. v. Burger King Corp., 66 Ill. App. 3d 721, 726, 383 N.E.2d 1355 (1978). Accordingly, plaintiff abandoned that count of its suit and eventually settled the case. Under the settlement the owners of Ashley Woods agreed to build in compliance with some constraints designed to reduce the impact on the prairie.

In 1991 plaintiff acquired an interest in a five-acre lot in the Hickory Lane residential community. The lot is half of the parcel Bartlett & Co. deeded to Ferrari in November 1942. Defendant also purchased a five-acre lot in the southwest corner of the Hickory Lane residential area. Defendant proposed a development consisting of five buildings, including four residential buildings ...


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