Xinos v. Village of Oak Brook

No. 3--97--0833

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________

CONSTANTINE P. XINOS, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee, )
) No. 97--MR--170
v. )
)
THE VILLAGE OF OAK BROOK, ) Honorable
) Robert E. Byrne,
Defendant-Appellant. ) Judge, Presiding
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PRESIDING JUSTICE GEIGER delivered the opinion of the court:

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 judgment that the
construction would violate the covenant and asked for injunctive
and other relief.
Both parties moved for summary judgment. With its motion, the
village submitted affidavits to the effect that a library should be
considered a recreational facility.
After hearing arguments, the court granted the plaintiff's
motion. The court enjoined the village from proceeding with the
construction of the library "until it gains approval through a
binding referendum." The village filed a timely notice of appeal.
The village first contends that the court erred in finding
that the covenant required a binding referendum. It points out
that the covenant does not specifically call for a binding
referendum but only mandates that the village's use of the property
be "authorized by a majority of the electors *** in accord with
then applicable state and local laws." The village further
contends that the applicable state law does not permit a binding
referendum for questions such as this one but allows only an
advisory referendum.
A restrictive covenant should be construed to give effect to
the parties' actual intention at the time it was made. Streams
Sports Club, Ltd. v. Richmond, 99 Ill. 2d 182, 188 (1983);
Westfield Homes, Inc. v. Herrick, 229 Ill. App. 3d 445, 451 (1992).
In general, covenants should be strictly construed in favor of the
full and unlimited use of property; however, the rule of strict
construction will not be applied to defeat the covenant's obvious
purpose. Westfield Homes, 229 Ill. App. 3d at 451. The parties'
intent can best be determined by their express contractual
provisions. Nassau Terrace Condominium Ass'n v. Silverstein, 182
Ill. App. 3d 221, 224 (1989).
The Election Code provides that public policy questions "which
have any legal effect shall be submitted to referendum only as
authorized by a statute which so provides or by the Constitution."
10 ILCS 5/28--1 (West 1996). Advisory questions of public policy
may be submitted pursuant to section 28--5 of the Election Code.
10 ILCS 5/28--1, 28--5 (West 1996). The parties have not cited,
nor has our research disclosed, any statute or constitutional
provision that would authorize a binding referendum for a question
such as the one presented. The parties do not dispute that the
village followed the provisions of section 28--5 for placing the
question on the November 5, 1996, ballot. Because the voters
approved the proposition, we find that the village obtained
approval of the measure "in accord with then applicable state and
local laws."
The plaintiff argues that the trial court's order can be
affirmed for other reasons. First, the plaintiff contends that the
second paragraph of the covenant only authorizes the village to
"dispose of" the property. According to the plaintiff, the
covenant does not authorize the proposed library because the
village will still own the property. The plaintiff insists that
the village can only dispose of the property by transferring title
to some other entity.
The village responds that a second meaning of "dispose" is to
"exercise finally one's control over" and that constructing a
library on the Sports Core tract would be a final exercise of the
village's control over it. The village points out that it could
accomplish the same result by creating an independent library
district and transferring title to it. However, creating a
separate taxing body would waste tax money, contrary to the
covenant's express intent.
A covenant is a contract (20 Am. Jur. 2d Covenants 1 (1995)),
and the ordinary rules of contract construction apply to the
interpretation of a covenant (20 Am. Jur. 2d Covenants 9 (1995)).
If the terms of a contract are clear and unambiguous, a court will
give them their natural and ordinary meanings. Old Kent Bank-St.
Charles N.A. v. Surwood Corp., 256 Ill. App. 3d 221, 228 (1994).
One definition of "dispose of" is "to transfer to the control of
another." Webster's Ninth New Collegiate Dictionary 365 (1990).
However, the same dictionary also defines the phrase as "to deal
with conclusively." Webster's Ninth New Collegiate Dictionary 365
(1990). Similarly, Black's Law Dictionary defines "dispose of" as
"[t]o exercise finally, in any manner, one's power of control over
***." Black's Law Dictionary 471 (6th ed. 1990).
We reject the plaintiff's contention that the covenant
evidences an intention to adopt only the more restrictive
definition. The village s construction is equally plausible, and
nothing in the covenant suggests an intention to adopt a more
restrictive definition. In any event, the rule of construction in
favor of the unfettered use of land would require us to adopt the
village's proposed construction.
The plaintiff also contends that the referendum question posed
by the village was "vague and not binding." We have already
determined that the advisory referendum satisfied the covenant.
Moreover, the question was not so vague or abstruse as to leave the
voters unable to understand the proposition on which they were
voting. The ballot proposition clearly sets forth the nature of
the proposed building, the location on which it is to be
constructed, and the proposed cost.
The plaintiff suggests that the voters should have been told
that the library could not have been built without their approval
or that the trustees had agreed to follow the voters'
recommendation. Whatever the truth or desirability of these
additional disclosures, the covenant simply did not require them.
As noted previously, restrictive covenants must be strictly
construed in favor of the unfettered use of land. Where a
nonparty, such as the plaintiff, seeks to enforce a covenant, he is
in essence a third-party beneficiary to a contract. 20 Am. Jur. 2d
Covenants 257 (1995). A third-party beneficiary must take the
contract as he finds it and can get no more than the signatories
provided. Central States, Southeast & Southwest Areas Pension Fund
v. Gerber Truck Service, Inc., 870 F.2d 1148, 1151 (7th Cir. 1988);
see also Fitzwilliam v. 1220 Iroquois Venture, 233 Ill. App. 3d
221, 234 (1992) (contract must be enforced according to its terms
and court cannot compel party to do more than he agreed to in his
contract). Here, the parties to the covenant chose to provide only
that voter approval was required prior to a disposition of the
property; they did not attempt to prescribe any particular language
for the ballot proposition. Arguably, explaining all the possible
ramifications of a vote would have made the ballot question more,
rather than less, confusing. In any event, the village did all
that was required by the covenant. The plaintiff may not seek to
impose additional requirements to which the parties did not agree.
In summary, we conclude that the village complied with the
covenant by obtaining voter approval of the proposed transaction as
provided for by the applicable statutes. The trial court erred in
imposing the additional requirement of a binding referendum.
Because of our disposition of this issue, we need not decide
whether the village could have built the library under the first
paragraph of the covenant permitting the property to be developed
for "recreational" uses.
The judgment of the circuit court of Du Page County is
reversed, and summary judgment is hereby entered for the village.
Reversed.
INGLIS and DOYLE, JJ., concur.