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Save the Prairie Society v. Greene Development Group

April 28, 2003

SAVE THE PRAIRIE SOCIETY, AN ILLINOIS NOT-FOR-PROFIT ORGANIZATION, PLAINTIFF-APPELLANT,
v.
GREENE DEVELOPMENT GROUP, INC., AN ILLINOIS CORPORATION, ORCHARD HILL CONSTRUCTION LLC, AN ILLINOIS LIMITED LIABILITY CORPORATION, FOUNDERS BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED APRIL 9, 1996, AND KNOWN AS TRUST NO. 5-1180, AND STANDARD BANK AND TRUST COMPANY, AS TRUSTEE UNDER TRUST AGREEMENT DATED MARCH 1, 2001, AND KNOWN AS TRUST NO. 16857, DEFENDANTS-APPELLEES



Appeal from the Circuit Court of Cook County Honorable Aaron Jaffe, Judge Presiding

The opinion of the court was delivered by: Justice McNULTY

UNPUBLISHED

This case comes before us for a second time. Save the Prairie Society sued to prevent Greene Development Group from constructing an elaborate development on property Greene owned near a natural prairie. The trial court denied plaintiff's motion for a preliminary injunction. On the initial appeal we reversed the trial court and ordered the court to enter the preliminary injunction on remand. The trial court entered the ordered injunction, but it also ordered plaintiff to post a bond of $200,000. Plaintiff again appeals.

We find that the trial court abused its discretion by ordering the large bond from a not-for-profit corporation with limited resources, where the injunction the corporation sought served the public interest. We again reverse the trial court and order the court to enter the preliminary injunction without bond.

Founder's Bank, as trustee of a trust for benefit of Greene, owns a 5-acre lot in a 60-acre residential community. All 12 of the lots in the community are about 5 acres, and no property has more than one principal building. When Greene acquired the lot, all 12 lots had a single-family residence. The deeds for the 12 lots all forbid construction of any principal building other than a residence.

Greene sought to construct a development of 5 buildings, including 4 buildings with 32 residential units in each building. Plaintiff, which owned another lot in the community, sued to enforce the restrictive covenant. Plaintiff also moved for a preliminary injunction, without bond, to preserve the status quo pending determination of the suit to enforce the covenant.

At the hearing on the motion for preliminary injunction plaintiff presented evidence that the residential community bordered a nature preserve consisting of 80 acres of prairie, wetland and savanna. The general superintendent of the Cook County Forest Preserve District described the nature preserve as "a unique natural area with national and international ecological value." He added that savanna, like that in the nature preserve, is "critically imperiled globally." The low-density residential community of 60 acres "provides critical buffer for and helps to protect" the nature preserve. In the interest of shielding the nature preserve, the Forest Preserve District preferred to see no major development of the residential community.

Following testimony concerning the character of the residential area, plaintiff recognized the need for further testimony in support of the request for waiver of bond. Plaintiff's attorney said:

"In the interest of time, we would suggest that we postpone that testimony to a point in time if and when it's necessary."

The court and Greene agreed to let plaintiff reserve the right to present evidence concerning the bond later. The issue of the amount of the bond did not arise in the initial hearing because the court denied the motion for a preliminary injunction.

On the first appeal this court addressed only the issue of whether the trial court erred by denying the motion for a preliminary injunction. The parties did not address the possibility of a bond, and the record did not include evidence pertinent to the request for waiver of bond.

On remand plaintiff amended its complaint to add allegations that Greene bought a second lot in the residential community and demolished residences on both of the lots. Founder's Bank, as trustee, held legal title to the first lot, and Standard Bank & Trust, also as trustee, held legal title to the second lot. Greene then transferred its beneficial interests in both trusts to Orchard Hill Construction. Plaintiff sought leave to add Orchard Hill and Standard Bank as new defendants. Plaintiff also renewed the request for an injunction, this time to prevent development of both of the lots Orchard Hill owned.

Greene asked the court to establish a bond for the injunction. In the motion Greene asserted, without citation to any evidence, that the delay due to the preliminary injunction would jeopardize the proposed development even if the court found, at trial, that plaintiff had no right to enforce the restrictive covenant. Greene also asserted, without citation to evidence, that it intended to spend $21 million on the proposed development. Greene did not indicate the price it paid for the properties or the value it would lose if the court imposed the preliminary injunction but decided after trial to permit the developments. Instead, Greene requested a bond of $21 million, without explaining how an injunction preventing it from spending $21 million for the duration of the trial could cause it any loss, let alone a loss of $21 million.

Greene supported its request with evidence of plaintiff's ability to pay. Plaintiff's tax return for the year ending June 30, 1999, showed net assets worth more than $750,000, but land accounted for more than $680,000 of those assets. For that tax year plaintiff received total revenues of $58,000, mostly from charitable donations, covering total expenses of almost $56,000, for a net income of $2,094. Greene also ...


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