THE OAK RUN PROPERTY OWNERS ASSOCIATION, INC., an Illinois Not-for-Profit Corporation, Plaintiff and Counterdefendant-Appellee,
RAY BASTA, KRIS BASTA, KB. FARMS OF MONTANA, LLC, MICHAEL ZAGARDO, JANICE ZAGARDO and THE SPOON VALLEY LAKE SANITARY DISTRICT, Defendants Michael Zagardo and Janice Zagardo, Defendants, Counterplaintiffs, and Cross-Plaintiffs-Appellants; Ray Basta, Kris Basta, and K.B. Farms of Montana, L.L.C., Defendants and Cross-Defendants-Appellees; The Spoon Valley Lake Sanitary District, Defendant-Appellee.
from the Circuit Court No. 15-MR-183 of the 9th Judicial
Circuit, Knox County, Illinois, Honorable Paul L. Mangieri,
JUSTICE WRIGHT delivered the judgment of the court, with
opinion. Justices Holdridge and Lytton concurred in the
judgment and opinion.
1 The Oak Run Property Owners Association, Inc. (ORPOA),
initiated a declaratory action against Ray and Kris Basta,
The Spoon Valley Lake Sanitary District (Sanitary District),
and Michael and Janice Zagardo to determine the rights,
duties, and responsibilities of the parties in relation to a
retaining wall built by the Bastas near their shared property
line with the Zagardos. The Zagardos appeal the circuit
court's findings relating to the declaratory action and
the denial of their cross/counter-claims seeking injunctive
2 I. BACKGROUND
3 Defendants, the Bastas, and defendants-appellants, the
Zagardos, own adjoining lots in the Forest Ridge Subdivision
(Subdivision). On June 4, 2014, the Bastas applied for a
permit to construct a residence on their lot No.
Article VI, sections 1 and 2, of the Subdivision's
covenants, provide the Architectural and Environmental
Control Committees with the authority to approve construction
plans in the Subdivision. In practice, these two committees
operate as one, known as the AEC. The Bastas were approved
for the June 4, 2014, permit.
4 On August 3, 2015, the Bastas applied for a second permit
for purposes of landscaping and tree removal on lot No. 392.
This permit application broadly sought approval for
"retaining walls." The AEC approved this second
permit at a meeting on August 5, 2015.
5 On September 17, 2015, the subcontractor for the Bastas,
Scot Thompson, submitted drawings to the AEC's inspector,
Daniel Russell, to append a retaining wall to the landscaping
and tree removal permit approved by the AEC on August 5,
2015. The drawings indicated the retaining wall would, at
least in part, be situated within one of the 10-foot utility
easements that exist between the Subdivision's
6 On September 22, 2015, the Bastas applied for a third
permit from the AEC to build a detached garage on lot No.
392. This third permit, approved by the AEC on October 7,
2015, granted the Bastas permission to build a detached
garage with "2x6 walls, concrete wall
7 On September 28, 2015, the Bastas' subcontractor, Chris
Courtright, began constructing the retaining wall. The
retaining wall was constructed, at least in part, within the
10-foot utility easement, approximately 2 feet from the
property line with the Zagardos' lot No. 391 and 10 feet
from the Zagardos' home. Lot No. 391 is not the
Zagardos' primary residence, so they did not observe the
Bastas' retaining wall until mid-October 2015. By that
time, the concrete for the retaining wall was poured and
cured, and the forms on the retaining wall had been removed.
However, the ground near the retaining wall was not yet
backfilled or landscaped. Shortly after discovering the
retaining wall, the Zagardos expressed their objections by
lodging a complaint with the AEC.
8 On November 4, 2015, the AEC considered the Zargardos'
objections to the retaining wall. Further, in mid-November to
early December 2015, the Zagardos e-mailed the manager of
plaintiff-appellee, the ORPOA, met with the ORPOA board, and
met with the AEC to request the removal of the retaining
wall. No action was taken by these entities to remove the
9 However, on December 3, 2015, the ORPOA filed a complaint
for declaratory judgment in the circuit court of Knox County
under section 2-701 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-701 (West 2014)), seeking guidance on whether
the construction of the retaining wall violated the
Subdivision's covenants and/or the AEC's rules and
regulations and, if so, whether any remedies existed after
the retaining wall was completed.
10 The Zagardos answered the complaint for declaratory
judgment and filed cross-claims and a counterclaim against
the Bastas, the ORPOA, and the Sanitary
District. The Zagardos alleged sections 3 and 4 of
article VII of the Subdivision's covenants forbid the
construction of retaining walls in the 10-foot utility
easements. The Zagardos also claimed the ORPOA, by allowing
the Bastas to construct the retaining wall without accurately
describing its scope and dimensions, violated the
Subdivision's covenants and the AEC's rules and
regulations. The Zagardos sought monetary damages and a
permanent injunction for the removal of the retaining wall.
The relevant sections of the Subdivision's covenants and
the AEC's rules and regulations are recited below.
11 A. The Bench Trial
12 A bench trial was held on June 1 and 6, 2018. Both parties
presented multiple witnesses.
13 1. Ray Basta
14 Ray explained he acted as his own general contractor for
the construction of the retaining wall. Ray relied upon his
subcontractor, Thompson, to obtain AEC approval and
permitting for the retaining wall. It was Ray's
understanding that Thompson took all necessary steps to amend
the landscaping and tree removal permit, approved on August
5, 2015, to include the retaining wall.
15 Ray knew the retaining wall was being constructed in a
utility easement, and he did not request permission from the
AEC or the Sanitary District to construct the retaining wall
in that location. Ray knew he and his wife would be required
to remove the retaining wall if the Sanitary District found
that to be necessary for the sewer system maintenance.
16 According to Ray, the Bastas always intended to abate the
visual impact of the retaining wall. He and his wife
considered various landscaping options. Eventually, the
Bastas landscaped the retaining wall with Boston ivy and sky
pencil hollies that would grow in size to entirely cover the
retaining wall. This plan was effectuated without access to
the Zagardos' lot.
17 2. Janice Zagardo
18 In mid-October 2015, Janice first saw the retaining wall
when she arrived at lot No. 391. She was immediately upset
about the sight of the retaining wall, so she contacted the
ORPOA to lodge a complaint and inquire about whether the
retaining wall was approved by the AEC. Eventually, Janice
spoke with AEC inspector Russell. In mid-October 2015,
Russell viewed the retaining wall and informed Janice that it
had been approved by the AEC on a landscaping permit. Russell
also told Janice that the Bastas planned to landscape the
19 Janice testified that the retaining wall was only 10%
complete in mid-October 2015, due to the lack of landscaping
and unconstructed connection to the Bastas' detached
garage. According to Janice, in spite of her objections,
construction continued on the retaining wall after she met
with Russell in mid-October 2015. She agreed in mid-October
2015, the retaining wall "was up *** and the concrete
forms had been removed."
20 3. Daniel Russell
21 Russell testified that the retaining wall was not
described in the Bastas' landscaping and tree removal
permit, approved by the AEC on August 5, 2015. However, in
late-September 2015, after the landscaping and tree removal
permit was issued, Thompson provided drawings of the
retaining wall to be appended to that permit. The drawings
did not indicate the scope or dimensions of, and no formal
application was filed with the AEC for, the retaining wall.
22 After viewing the drawings, Russell, in his discretion as
AEC inspector, approved the retaining wall and told Thompson
he could begin construction. Russell assured Thompson that he
would do what was necessary to add the retaining wall to the
existing landscaping and tree removal permit. Russell
confirmed it is common practice and procedure for him to
grant minor changes to construction plans without consulting
the AEC. According to Russell, neither the Subdivision's
covenants nor the AEC's rules and regulations restrict
his authority to approve such changes. Russell did not
believe he was required to consult the AEC before advising
Thompson and the Bastas that they could construct the
23 Russell received a phone call from Janice about the
retaining wall, causing him to travel to the Zagardos'
lot. Russell was surprised by the height of the retaining
wall. He told the circuit court that he felt the drawings
provided by Thompson were misleading as to the elevation and
topography of lot Nos. 391 and 392. In Russell's opinion,
the retaining wall, as constructed, involved major changes to
the landscaping and tree removal permit approved by the AEC
on August 5, 2015. If Russell had been more informed of the
scope and dimensions of the retaining wall, as constructed,
he would have presented the drawings to the AEC.
24 4. Scot Thompson
25 Thompson said the retaining wall was not described in the
landscaping and tree removal permit approved by the AEC on
August 5, 2015, because the Bastas had not yet instructed him
to build a retaining wall. On September 17, 2015, after the
prospect of constructing a retaining wall arose, Thompson
provided drawings of the retaining wall to Russell. The
drawings did not indicate the height of the proposed
retaining wall or that it would be situated within a utility
easement. At this time, Thompson did not know the height of
the retaining wall.
26 Upon leaving the drawings with Russell, Thompson believed
he had done everything necessary to secure approval for the
retaining wall. About 80 to 90% of Thompson's work is
done in the Subdivision, so Thompson was aware that Russell
could approve minor, but not major, changes to landscaping
and construction plans on behalf of the AEC. Though the
retaining wall was a major change, Thompson did not seek
formal approval from the AEC.
27 5. Chris Courtright
28 Chris Courtright stated he was approached by the Bastas in
September 2015 to construct the retaining wall. At that time,
the Bastas were waiting for approval to construct the
retaining wall. Eventually, the Bastas and Thompson informed
Courtright the retaining wall was approved.
29 Courtright testified that, by mid-October 2015, the
retaining wall was in place on the Bastas' lot. The
connection to the Bastas' detached garage was the only
portion that was not completed. The retaining wall is
"pinned and epoxied" to the Bastas' home.
30 Courtright also testified about his invoice for the work
done at the Bastas' lot, dated November 10, 2015. He
confirmed the invoice included charges for both the
Bastas' retaining wall and detached garage. In some areas
the charges could not be distinguished.
31 6. Michael Davison
32 Davison is the general manager of the ORPOA. He confirmed
that minor changes to landscaping and construction plans are
frequently allowed by Russell without formal approval by the
AEC. It is up to Russell to determine whether a change is
minor or major in relation to the landscaping or construction
plans originally ...