No. 2--06--1145 Filed: 4-25-08
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JOHN BJORK and STEPHANIE BJORK, ) Appeal from the Circuit Court
) of Lake County.
Plaintiffs-Appellants and )
Cross-Appellees, )
)
v. ) No. 03--MR--1491
)
JOHN DRAPER, LIZ DRAPER, and LAKE )
FOREST OPEN LANDS ASSOCIATION, )
) Honorable
Defendants-Appellees and ) Stephen E. Walter,
Cross-Appellants. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE GILLERAN JOHNSON delivered the opinion of the court:
The instant controversy arises from a dispute between the plaintiffs, John and Stephanie
Bjork, and their neighbors, the defendants John and Liz Draper, as to whether a conservation
easement on the Drapers' property could be amended. The defendant Lake Forest Open Lands
Association (the Association) is in charge of managing the conservation easement. The Association
allowed the Drapers to amend the easement on three occasions. The trial court ruled that, as a matter
of law, the conservation easement could be amended. Following a bench trial, the trial court
determined that the first two amendments to the easement were proper but that the third amendment
was not. The Bjorks filed a notice of appeal, contending that the trial court erred in determining that
the conservation easement could be amended. The defendants filed a cross-appeal, asserting that the
No. 2--06--1145
trial court erred in determining that the entire third amendment was invalid. We affirm in part,
reverse in part, and remand for additional proceedings.
I. Background
On December 30, 1998, J. Douglas Gray and Karen Z. Gray of 1240 North Sheridan Road
in Lake Forest made a grant of a conservation right and easement in favor of the Association. This
easement was granted pursuant to the provisions of the Real Property Conservation Rights Act (Act)
(765 ILCS 120/10.01 et seq. (West 1998)). The Act pertains to preserving property that has some
significant natural, historic, architectural, cultural, or scenic feature. 765 ILCS 120/1 (West 1998);
see also G. Covington, Conservation Easements: A Win/Win for Preservationists and Real Estate
Owners, 84 Ill. B.J. 628, 628 (1996). The Internal Revenue Code (Code) provides that conservation
easements are tax deductible if they meet certain requirements in the Code or in regulations. 26
U.S.C. §170(a)(1) (2000). Under sections 170(f)(3)(B)(iii) and 170(h) of the Code, a person who
contributes a "qualified real property interest" to a "qualified organization" exclusively for a
"conservation purpose" can claim an income tax charitable deduction to the extent of the value
contributed. 26 U.S.C. §§170(f)(3)(B)(iii), (h) (2000); see 84 Ill. B.J. at 629. A "qualified real
property interest" is defined by the Code as being "a restriction granted in perpetuity on the use
which may be made of the real property." (Emphasis omitted.) 26 U.S.C. §170(h)(2)(c) (2000); see
84 Ill. B.J. at 629.
The Grays' property is located in the Lake Forest Historic District, which is listed on the
National Register of Historic Places in recognition of its exceptionally well-preserved buildings and
sites of architectural, cultural, and historic significance. The easement provided that the Grays'
property consisted of two lots. On lot 1 is a house known as the "Kerrigan House," which is
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reportedly the oldest house in the Lake Forest Historic District. Lot 2 is approximately 25,000
square feet in size and is adjacent to and part of the landscaped grounds of the historic house. The
easement set forth that the preservation of the open and landscaped grounds adjacent to the Kerrigan
House contributes greatly to the appearance of the Kerrigan House and the public enjoyment of the
Lake Forest Historic District. The easement further provided that the property is located on and
visible from Sheridan Road, a public road that forms part of the system of scenic roadways circling
Lake Michigan, known as the "Lake Michigan Circle Tour."
The easement indicated that, by providing to the Association an easement on lot 2 the Grays
sought to achieve certain conservation purposes, including the preservation of the conservation
values of the property by continuing land-use patterns existing at the time of the grant and, in
general, by preserving the lawn and landscaped grounds surrounding the Kerrigan House as well as
a significant parcel of open space along Sheridan Road. The easement additionally stated that the
Association agreed to accept the grant to honor the intentions of the Grays and to endeavor to
preserve and protect in perpetuity the conservation values of lot 2 for the benefit of the present and
future generations.
The easement further set forth the following terms, which are pertinent to this appeal:
"1. Purpose. It is the purpose of this Easement to assure that the Property will be
retained forever predominantly in its scenic and open space condition, as lawn and
landscaped grounds.
2. Rights of Grantee. To accomplish the purpose of this Easement the following
rights are conveyed to the Grantee by this Easement:
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(a) To take such actions as are reasonably necessary and consistent with the
terms of this Easement to preserve and protect the conservation values of the
Property;
***
(c) To view the property in its scenic and open condition at ground level from
publicly-accessible land adjacent to the Property;
***
3. Prohibited Uses. Any activity on or use of the Property inconsistent with the
purpose of this Easement is prohibited. Without limiting the generality of the foregoing, the
following activities on and uses of the Property are expressly prohibited:
(a) The placement or construction of any buildings whatsoever, or other
structures or improvements of any kind *** except that the existing driveways
serving said Lot 1 and the existing encroachment of the Kerrigan House onto the
Property may continue;
***
4. Development Rights. To the extent that Grantors own or are entitled to
development rights which may exist now or at some time hereafter by reason of the fact that
under any applicable zoning or similar ordinance the Property may be developed to a use
more intensive *** than the Property is devoted as of the date hereof, such development
rights shall not be exercisable on, above, or below the Property, nor shall they be transferred
to any adjacent parcel and exercised in a manner that would interfere with the preservation
and conservation purposes of this Easement. Notwithstanding the foregoing, *** the owner
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of said Lot 1 may include the area of the Property along with the area of said Lot 1, but only
to the extent that inclusion of the area of the Property will permit the construction of an
additional one thousand five hundred (1,500) square feet of building floor area on said Lot
1.
***
7. Grantee's Discretion. Enforcement of the terms of this Easement shall be at the
discretion of Grantee, and any forbearance by Grantee to exercise its rights under this
Easement in the event of any breach of any term of this Easement by Grantors shall not be
deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of
the same or any other term of this Easement, or of any of Grantee's rights under this
Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any
breach by Grantors shall impair such right or remedy, or be construed as a waiver thereof.
***
15. Extinguishment. If circumstances arise in the future which render the purpose of
this Easement impossible to accomplish, this Easement can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. ***
***
16. Assignment. This Easement is transferable***. *** As a condition of such
transfer, Grantee shall require the transferee to agree that the conservation purposes that this
grant is intended to advance shall continue to be carried out in perpetuity.
***
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23. General Provisions
***
(d) Entire Agreement. This instrument sets forth the entire agreement of the
parties with respect to the Easement and supersedes all prior discussions,
negotiations,
understandings, or agreements relating to the Easement, all of which are merged
herein. No alteration or variation of this instrument shall be valid or binding unless
contained in a written amendment first executed by Grantors and Grantee, or their
successors, and recorded in the official records of Lake County, Illinois."
On July 14, 2000, the Grays sold the property at 1240 Sheridan Road to the Drapers. Shortly
thereafter, the Drapers made several renovations to the residence. In the fall of 2000, the Drapers
enclosed the screened-in porch and converted it into living space. This porch was located on the first
floor, in a portion of the house that encroached onto lot 2. In the fall of 2002, the Drapers added an
addition to the residence that totaled in excess of 1,900 square feet. The Drapers consulted with the
Association prior to building the addition. The Association indicated that it would approve an
addition larger than 1,500 square feet in exchange for the Drapers replacing the aluminum siding on
the Kerrigan House with wooden siding. The Association's consultant, Stephen Christy, believed that
replacing the siding with wooden siding would restore the house to its original condition. After the
addition was completed, Christy viewed the property and determined that the addition was not visible
from Sheridan Road. He believed that the addition did not impair any conservation purpose set forth
in the conservation easement. Additionally, he observed that the addition would not be visible to a
person walking past lot 2 on Sheridan Road.
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In the fall of 2003, the Drapers consulted with Christy about adding a brick driveway
turnaround to lot 1. This driveway would encroach onto lot 2. Also in 2003, the Drapers altered the
landscaping on lot 2. The Drapers had planted some additional trees in 2001 and 2002, including
four evergreens in the southeast corner of lot 2. In October 2003, the Drapers removed a row of
honeysuckle that was located on the eastern edge of lots 1 and 2. These plants were approximately
9 to 10 feet tall. In place of the honeysuckle, the Drapers planted a row of arbor vitae, an evergreen
shrub. These plants were approximately five feet tall. After the Association became aware of these
landscaping changes, its representatives scheduled a meeting with the Drapers. Following this
meeting, the Drapers made certain agreements with the Association concerning the landscaping.
On November 5, 2003, the Drapers and the Association entered into an agreement to amend
the conservation easement (the first amendment). This document provided that the Drapers and the
Association desired to modify the boundaries of the conservation easement but that they intended that
the total amount of land subject to the easement would not be diminished and that the conservation
values that the easement intended to protect would not be impaired. The effect of this modification
was to remove from the easement property a portion of lot 2 upon which the new driveway turnaround
was to be located and to replace it with an equal amount of land from lot 1. The total area in question
was 809 square feet, or 3.2% of the total size of the easement property. While the driveway
turnaround as constructed is not visible from the sidewalk between Sheridan Road and the easement
property, the portion of lot 1 that was added to the easement property is visible from the sidewalk and
is closer to Sheridan Road.
On November 21, 2003, the plaintiffs filed a complaint against the defendants for breach of
the conservation easement and for declaratory judgment. The complaint alleged that, because the
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plaintiffs lived within 500 feet of lot 2, they had standing to enforce the provisions of the conservation
easement. See 765 ILCS 120/4 (West 2002). Count I alleged that the conservation easement could
not be extinguished or amended without a court order. The plaintiffs alleged that they had been
damaged by the breach of the conservation easement in that lot 2 was not being "retained forever
predominantly in its scenic and open space condition, as lawn and landscaped grounds, as it existed
at the time the conservation easement was granted." The complaint therefore requested $50,000,
punitive damages, attorney fees, and costs. Count II demanded specific performance of the
conservation easement and sought an order requiring the Drapers to reduce the size of the addition
to the Kerrigan House to 1,500 square feet or less, to remove the brick driveway turnaround, and to
pay the plaintiffs' attorney fees and costs. Count III requested that the court issue a declaratory
judgment that the amendment to the conservation easement was not valid.
On March 23, 2004, the Drapers and the Association, along with the Northern Trust Company,
executed the second amendment to the conservation easement (the second amendment). The second
amendment was identical to the first amendment in substance but, because the Drapers held title to
the property through the Northern Trust Company, as trustee under a trust agreement known as Trust
No. 9727, restating the first amendment was necessary because it had not been executed by the
Northern Trust Company.
On June 13, 2004, the plaintiffs filed a second amended complaint for breach of the
conservation easement and for declaratory judgment. On February 4, 2005, the Drapers filed a motion
for summary judgment on count III of the plaintiffs' second amended complaint. Count III of the
second amended complaint sought a declaratory judgment that the first and second amendments to
the conservation easement were not valid and that the terms of the conservation easement could not
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be amended. On April 28, 2005, the plaintiffs filed a cross-motion for summary judgment as to count
III of their second amended complaint.
On June 15, 2005, following a hearing, the trial court granted the Drapers' summary judgment
motion as to count III and denied the plaintiffs' cross-motion. The trial court found that neither the
conservation easement nor the amendments were ambiguous. The trial court found that neither the
Act (765 ILCS 120/1 et seq. (West 2004)) nor the Code (26 U.S.C. §170(h)(5)(A) (2000)) prohibited
amendments to conservation easements. Rather, the trial court found that the conservation easement
could be amended "by agreement of the parties to that agreement provided that the amendment is not
contrary to any controlling statute, regulation, ordinance or rule of law."
On July 29, 2005, the Drapers and the Association executed a third amendment to the
conservation easement (the third amendment). The third amendment recited that, as measured by
Lake Forest's current building scale and environment ordinance, the Drapers' addition measured less
than 1,500 square feet. The amendment also stated that the Drapers never filed with Lake Forest any
document transferring development rights from lot 2 to lot 1 and never took any other action to
transfer development rights from lot 2 to lot 1. The parties acknowledged that the addition was not
readily visible from Sheridan Road and that, to the extent that it was visible, it was compatible with
the overall design of the Kerrigan House. Further, the amendment stated that, with regard to
questions raised by adjacent property owners concerning landscaping, a sprinkler system, a portable
badminton net, and the removal of a tree, the Association and the Drapers agreed that those matters
did not impair the purposes of the conservation easement.
The effect of the third amendment was to remove from the conservation easement the
provision allowing the transfer of development rights from lot 2 to lot 1 to the extent that it would
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allow a 1,500-square-foot addition to the Kerrigan House. This assured that the 1,500-square-foot
area transfer that was originally permitted by the conservation easement would be prohibited. Further,
the third amendment modified the conservation easement to the extent necessary to establish that
improvements existing at the time of the execution of the third amendment conformed to the
requirements of the conservation easement. It established that the trade involving the size of the
addition and the re-siding of the house was, according to the Association, a reasonable quid pro quo
that was consistent with the purposes of the conservation easement.
On September 26, 2006, the day before trial began, representatives from the Association
visited the subject property. The representatives discovered that the landscaping did not conform with
the landscaping plan set forth in the first and second amendments. Specifically, at issue were four
or five spruce trees and several viburnum plants.
On October 11, 2006, with the consent of the parties, the trial judge visited the property. From
walking along the sidewalk, the trial judge found that the plantings on the southeast corner of the
property obstructed the view of the home by a pedestrian at the southeast corner of the grounds. The
trial judge further found that the viburnum planted along the eastern line of the property topped out
above an average observer's height, in part because they were planted at a higher elevation than the
sidewalk, and thus those plants would obscure a pedestrian's view from the sidewalk. The trial judge
noted that he could not see the brick driveway turnaround and concluded that it would not be visible
to a pedestrian, even if the plants did not obstruct the view. After driving both north and south by the
property, the trial judge concluded that the view of the house and grounds by a driver of a passenger
car was more clear than that by a pedestrian on the sidewalk.
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On October 17, 2006, following the conclusion of the bench trial, the trial court entered
judgment. The trial court held that the purposes of the conservation easement were:
"[T]he preservation of the conservation values of the property by the continuation of land use
patterns existing at the time of this grant, and in general, the preservation of the lawn and
landscaped grounds surrounding the Kerrigan House as well as a significant parcel of open
space on Sheridan Road, and to *** assure *** that the property *** will be retained forever
predominantly in its scenic and open space condition, as lawn and landscaped grounds, all for
the benefit of public passing by on Sheridan Road or along the walkways adjacent to Sheridan
Road."
The trial court explained that its holding was based on the clear language of the conservation
easement as well as the circumstances surrounding its execution. The trial court additionally found
that section 23(d) of the conservation easement specifically contemplated the possibility of
amendments to the easement.
As to the alterations the Drapers had made to the property, the trial court found that the
improvements to the screened-in porch did not violate or materially impair the purposes of the
conservation easement. The trial court found that the addition to the Kerrigan House was constructed
after an agreement was made with the Association, which agreement was later reduced to writing, and
that the cost of reducing the size of the addition would be very expensive and disproportionate to any
benefit that would be accorded the plaintiffs. This was particularly true in view of the purposes of
the conservation easement and the fact that the addition was not visible from Sheridan Road.
The trial court additionally found that the brick driveway turnaround was not visible to
pedestrians and did not materially interfere with the purpose of the conservation easement. As to the
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landscaping, the trial court found that the Drapers' plantings did not conform to the plan set forth in
the first and second amendments and that the differences substantially interfered with the purpose of
the conservation easement. Specifically, the plants that materially impacted the purposes of the
conservation easement were additional spruce trees in the southeast corner of lot 2, the viburnum in
excess of those allowed by the landscape plan, two witchhazel plants, two blackhaws, a hawthorn,
and an elm.
In construing the amendments, the trial court found that the first and second amendments did
not materially impair the purposes of the conservation easement and were not otherwise contrary to
applicable law or public policy. As to the third amendment, the trial court found that it was entered
into on the mistaken assumption that all the Draper's plantings were in accordance with the prior
amendments. As the third amendment approved these plantings, the trial court found that it materially
interfered with the purposes of the easement and was invalid as a matter of law. The trial court found
that the third amendment's provisions with regard to the plantings were not severable from the rest
of the agreement. The trial court explained that the basis for this finding was testimony from
Association representative Bartram that the Association would not have executed the third
amendment if it had been aware of nonconforming landscaping.
Based on these findings, the trial court found that the third amendment was invalid and
unenforceable. The Drapers were ordered to remove certain vegetation within 90 days. The trial
court awarded the plaintiffs their costs. The trial court denied the plaintiffs all the other relief that
they requested. On November 8, 2006, the plaintiffs filed a timely notice of appeal. On November
17, 2006, the Drapers filed a timely notice of cross-appeal.
II. Plaintiffs' Appeal
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A. Whether the Conservation Easement Could be Amended
The plaintiffs' first contention on appeal is that the trial court erred in determining that the
conservation easement could be amended. Specifically, the plaintiffs argue that the intent of the
parties who created the conservation easement was that it be perpetual. The plaintiffs note that the
easement uses the phrase "in perpetuity" on at least five occasions. The plaintiffs maintain that there
is nothing in the easement to indicate that it could be amended.
It is well established that an easement is " 'a right or a privilege in the real estate of another
[citation]' " (McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 20 (1992)), which may
be created by an express grant that determines the extent of the easement (Duresa v. Commonwealth
Edison Co., 348 Ill. App. 3d 90, 101 (2004)). The same rules that apply to deeds and other written
instruments apply to grants of easements: in the construction of instruments creating easements,
courts ascertain and give effect to the intentions of the parties. Duresa, 348 Ill. App. 3d at 101;
McDermott, 240 Ill. App. 3d at 20. That consideration should include the circumstances at the time
of the conveyance, including the nature of the interest conveyed and the objective of the conveyance.
McDermott, 240 Ill. App. 3d at 20. Where an easement exists by express grant, and the language
thereof is clear and free from doubt, the use of the easement must be confined to the terms and
purposes of the grant. Duresa, 348 Ill. App. 3d at 101. Courts generally construe easement
agreements strictly, so as to permit the greatest possible use of the property by its owner. Duresa, 348
Ill. App. 3d at 101; McMahon v. Hines, 298 Ill. App. 3d 231, 235 (1998). We review the language
of an easement de novo. See River's Edge Homeowners' Ass'n v. City of Naperville, 353 Ill. App.
3d 874, 880 (2004).
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The easement at issue sets forth that its purpose is "to assure that the Property will be retained
forever predominantly in its scenic and open space condition, as lawn and landscaped grounds." The
easement later provides, in section 23(d), that "[n]o alteration or variation of this instrument shall be
valid or binding unless contained in a written amendment first executed by Grantors and Grantee, or
their successors." As the above provisions are not ambiguous, the plain language controls. See
Duresa, 348 Ill. App. 3d at 101. Consequently, the easement could be amended.
In arguing that the easement could not be amended, the plaintiffs insist that, because the
document uses the phrase "in perpetuity" on five different occasions, such language indicates that the
drafters intended that it never be amended. We disagree. The first three references to "in perpetuity"
occur in the preamble. The preamble first sets forth that the "Grantors further intend, as owners of
the Property, to convey to Grantee the right to preserve and protect the conservation values of the
Property in perpetuity." Later, the preamble states:
"[The] Grantee agrees by accepting this grant to honor the intentions of [the] Grantors stated
herein and to endeavor to preserve and protect in perpetuity the conservation values of the
Property for the benefit of this generation and the generations to come."
Both of these references refer to the property's "conservation values" being protected in perpetuity.
The conservation values of the property are not synonymous with the language of the easement.
Thus, although the easement sets forth that the conservation values of the property are to be protected
in perpetuity, it does not logically follow that the language of the easement could never be amended
to allow that to occur. Indeed, it is conceivable that the easement could be amended to add land to
the easement. Such an amendment would most likely enhance the conservation values of the
property.
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The third reference to "in perpetuity" provides that "Grantors hereby voluntarily grant and
convey to Grantee a conservation right and easement (the 'Easement') in perpetuity over the Property
of the nature and character and to the extents hereinafter set forth." (Emphasis added.) In order to
understand this reference, one must look to the language that the entire easement "set[s] forth."
Section 23(d) clearly provides that the easement may be amended.
The fourth reference to "in perpetuity" occurs in section 16. This section provides that
"Grantee shall require the transferee to agree that the conservation purposes that this grant is intended
to advance shall continue to be carried out in perpetuity." The plain language of this section indicates
that the "conservation purposes" of the easement are to be carried out "in perpetuity." Like the
property's "conservation values," the easement's "conservation purposes" being protected in perpetuity
is not the same as the easement's language being protected in perpetuity. It is possible that the
conservation purposes of the easement could remain the same even if the language of the easement
were subsequently altered. Indeed, the drafters of the easement envisioned this, as is evident by their
insertion of section 23(d), which specifically allows for amendments.
The final reference to "in perpetuity" occurs in section 20. This section provides that "Grantee
may, prior to the fortieth anniversary of the date of this Easement and at such other times as Grantee
deems necessary, record a claim pursuant to the Illinois Code of Civil Procedure, 735 ILCS 5/13--18,
for the purpose of preserving the lien of this Easement in perpetuity." This provision provides that
the lien of the easement, not its specific language, will last "in perpetuity." Thus, none of these
references support the plaintiffs' argument that the specific language of the easement prohibited it
from being amended.
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The plaintiffs additionally argue that the trial court erred in relying on section 23(d) to
determine that the easement could be amended, because that section conflicts with those provisions
that set forth the purposes of the easement. See Premier Title Co. v. Donahue, 328 Ill. App. 3d 161,
166 (2002) (explaining that " 'it is a basic principle of contract construction that where two clauses
conflict, it is the duty of the court to determine which of the two clauses most clearly expresses the
chief object and purpose of the contract' [citation]"). In making this argument, the plaintiffs rely on
the above references to the easement being granted "in perpetuity." As noted above, none of the
provisions that the plaintiffs rely upon specifically provide that the language of the easement could
not be amended. Additionally, it is well settled that, when construing a document, a reviewing court
should avoid any interpretation that would render a section meaningless. See Srivastava v. Russell's
Barbecue, Inc.,168 Ill. App. 3d 726, 730 (1988) (contracts should be interpreted as a whole, giving
meaning and effect to each provision thereof). We reject the plaintiffs' request for this court to ignore
the plain language of section 23(d).
The plaintiffs next argue that amendments to this type of conservation easement are not
allowed under either the Code (26 U.S.C. §170(h)(5)(A) (2000)) or the Act (765 ILCS 120/1 (West
2004)). This argument is premised on the plaintiffs' assertion that "[t]here is no provision in the
Conservation Easement that allows the parties to amend or modify the Conservation Easement."
However, as explained above, this argument is without merit because section 23(d) of the easement
sets forth that the easement may in fact be amended.
B. Validity of First and Second Amendments to the Conservation Easement
The plaintiffs' second contention on appeal is that the trial court erred in ruling that the first
and second amendments to the conservation easement were valid. The plaintiffs argue that, even if
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the easement could be amended, those amendments are invalid because they materially alter the
easement and materially interfere with the conservation purposes. Specifically, the plaintiffs note that
section 3 of the easement prohibits certain uses of the property. The plaintiffs maintain that any
amendment to section 3 constitutes a per se material interference with the conservation purpose. The
plaintiffs insist that certain uses or activities are prohibited because the original parties determined
that such uses and activities would materially interfere with the conservation purposes. The plaintiffs
argue that the trial court should not be allowed to substitute its judgment of what uses or activities
interfere with the conservation purposes for the parties' clearly stated intent.
Section 3(a) of the easement specifically prohibited any improvement on the subject property.
Thus, the easement did not allow the Drapers to use any part of lot 2 to install their new driveway.
However, the first and second amendments specifically allowed the Drapers to build on part of lot 2
in exchange for transferring into the easement property an equal amount of land from lot 1.
As explained above, a contract should be interpreted as a whole, giving meaning and effect
to each provision thereof. See Srivastava, 168 Ill. App. 3d at 730. Here, the easement set forth in
section 1 that its purpose was to assure that the property would be "retained forever predominantly
in its scenic and open space condition, as lawn and landscaped grounds." Section 3 provided that this
purpose would be achieved, in part, by "expressly prohibit[ing]" "[t]he placement or construction of
any buildings whatsoever, or other structures or improvements of any kind." Section 15 provided that
the easement could "only be terminated or extinguished, whether in whole or in part, by judicial
proceedings in a court of competent jurisdiction."
The trial court's construction of the easement essentially rendered the above provisions
meaningless. Although section 23(d) provided that the easement could be amended, that section must
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be interpreted in harmony with the other provisions of the easement. That is accomplished by
interpreting section 23(d) to mean that, although the easement allows amendments, no amendment
is permissible if it conflicts with other parts of the easement. Section 3 expressly prohibits
improvements of any kind to the easement property. However, that is what the first and second
amendments specifically authorize, allowing the Drapers to construct a driveway that encroaches onto
the easement property. As the first and second amendments conflict with the plain language of
section 3, the trial court erred in determining that those amendments were valid. We therefore reverse
the trial court's judgment on that matter. As we determine that the first and second amendments were
not valid based on the plain language of the easement, we need not address whether the amendments
were also invalid on public policy grounds.
Having determined that the first and second amendments were not valid, we next address to
what relief the plaintiffs are entitled. The plaintiffs insist that there is no provision in section 4(c) of
the Act to require a balancing of the equities or great necessity for specific performance. The
plaintiffs maintain that, if a finding of great necessity were required for specific performance of a
conservation easement, it is unlikely that any adjacent property owner could meet the criteria for
enforcement of a conservation easement. The plaintiffs contend that the trial court should not be
allowed to substitute its judgment, under the guise of balancing the equities, as to what uses of the
property interfere with the conservation purposes of the easement for the clearly stated intent of the
parties.
A court may grant such relief as it deems equitable to enforce an easement, and the granting
or denying of such relief is a discretionary ruling by the court. Page v. Bloom, 223 Ill. App. 3d 18,
23 (1991). Absent an abuse of discretion, such a ruling will not be overturned upon review. Schnuck
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Markets, Inc. v. Soffer, 213 Ill. App. 3d 957, 974 (1991). However, when an encroachment of an
easement is intentional or culpably negligent, the court may properly refuse to balance the equities.
Borrowman v. Howland, 119 Ill. App. 3d 493, 502 (1983).
We believe that in this case it is appropriate for the trial court to exercise its discretion and
balance the equities to determine to what relief the plaintiffs are entitled due to the Drapers' violations
of the conservation easement. The Drapers' violations were not intentional or culpably negligent such
that they would preclude the trial court from balancing the equities of the case. Prior to making most
of the alterations, the Drapers did enter into oral agreements with the Association as well as consult
with an attorney. Under these circumstances, preventing the trial court from considering the equities
of this case would be contrary to the trial court's obligation to achieve a just result. See Mellon v.
Coffelt, 313 Ill. App. 3d 619, 626 (2000).
That being said, the plaintiffs' concern is valid that an adjacent property owner would have
great difficulty demonstrating the need for the specific performance of a conservation easement. The
detriment and cost to the landowner associated with returning the affected property to its original
condition would in most cases far outweigh any benefit to the adjacent landowner. Moreover, if a
landowner could avoid complying with the terms of a conservation easement by making alterations
and then claiming that it would be too costly (and, thus, inequitable) to return the property to its
original condition, then the restrictions placed in a conservation easement could be rendered
meaningless. As explained above, we must avoid interpreting an easement such that any provision
becomes superfluous. See Srivastava, 168 Ill. App. 3d at 730.
Based on the above considerations, we remand this cause for the trial court to equitably
consider which of the alterations to the property the Drapers must remove. We note that the trial
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court determined that the third amendment was not valid and thus equitably determined which of
those alterations should be removed. However, as we have now determined that neither the first nor
the second amendment is valid, we believe that, on remand, the trial court should equitably consider
again whether any of the alterations to the property should be removed. If the trial court were to
consider the changes individually or consider only those approved by the first and second
amendments, the trial court could determine that none of the alterations should be removed. This
would in effect validate the plaintiffs' concern that an adjacent property owner would be deprived of
any relief if a conservation easement were violated. By considering all of the changes together, the
trial court is in the best position to equitably exercise its discretion as to which alterations, if any,
must be removed and which, if any, may be retained.
C. Attorney Fees
The plaintiffs' final contention on appeal is that the trial court erred in not awarding them
attorney fees. The plaintiffs note that the conservation easement provides that, in the event the
defendants are adjudicated to have violated any of their obligations, they shall then reimburse the
grantee for any expenses incurred in connection with the enforcement of its rights, including attorney
fees. The plaintiffs maintain that, since they have standing to enforce the terms of the conservation
easement, pursuant to section 4 of the Act they are entitled to reimbursement of their attorney fees
incurred in enforcing the conservation easement.
Ordinarily, the losing party in a lawsuit cannot be required to pay attorney fees to the winning
party. Chapman v. Engel, 372 Ill. App. 3d 84, 87 (2007). There is an exception to the rule, however;
contractual "fee-shifting" provisions for the award of attorney fees will be enforced by the courts.
Chapman, 372 Ill. App. 3d at 87.
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Here the conservation easement contained the following "fee-shifting" provision:
"Grantors shall reimburse Grantee for any costs or expenses incurred in connection with the
enforcement of its rights, including court costs and attorneys' fees."
Our decision on this issue turns on the precise wording of this fee-shifting provision. We are required
to strictly construe a contractual provision for attorney fees. Grossinger Motorcorp, Inc. v. American
National Bank & Trust Co., 240 Ill. App. 3d 737, 752 (1992). That is, we construe the fee-shifting
provision "to mean nothing more--but also nothing less--than the letter of the text." Erlenbush v.
Largent, 353 Ill. App. 3d 949, 952 (2004). The construction of a contract's fee-shifting provision
presents a question of law, which we review de novo. Fontana v. TLD Builders, Inc., 362 Ill. App.
3d 491, 510 (2005).
In the case herein, the Association was the grantee of the easement, not the plaintiffs. Thus,
based on the principles enunciated above, the plaintiffs are not entitled to the recovery of their
attorney fees. The trial court therefore did not err in denying them this requested relief. See
Chapman, 372 Ill. App. 3d at 87.
III. The Drapers' Cross-Appeal
In their cross-appeal, the Drapers maintain that the trial court erred in determining that the
entire third amendment was not valid. The Drapers argue that the third amendment was a severable
document and that the landscaping provisions in that amendment, which were invalid, should not
render the entire amendment invalid.
In determining whether a contract is divisible, as in other aspects of contract interpretation,
a court attempts to effectuate the intent of the parties. Kaplan v. Keith, 60 Ill. App. 3d 804, 808
(1978). Of course, in reality, especially in a case that reaches litigation, the parties often will not have
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considered the question of divisibility in making their contract, so in practice " '[t]he test is whether,
had the parties thought of it, they would be willing to exchange the part performance irrespective of
what transpired subsequently.' " Kimco Corp. v. Murdoch, Coll & Lillibridge, Inc., 313 Ill. App. 3d
768, 773 (2000), quoting Trapkus v. Edstrom's, Inc., 140 Ill. App. 3d 720, 727 (1986). In other terms:
"A contract is not divisible where the parties assented to all the promises as a single
whole so that there would have been no bargain whatsoever if any promise or set of
promises were struck out. 6 Williston, Contracts §863 (3rd ed. 1962)." Meredith v.
Knapp, 62 Ill. App. 2d 422, 425 (1965).
The trial court's determination of the intent of the parties will not be disturbed on review unless it is
contrary to the manifest weight of the evidence. Installco, Inc. v. Whiting Corp., 336 Ill. App. 3d 776,
783 (2002).
On behalf of the Association, Bartram entered into the third amendment to the easement with
the Drapers. At trial, the trial court asked Bartram if he would have executed the third amendment
had he known that the plantings had not been altered or modified in accordance with the landscape
plan. Bartram indicated that he would not have. Thus, the intent of the parties in this case is readily
apparent. The Association would not have executed the third amendment to the easement had it
known that the plantings on the property were not in conformance with the landscape plan. The trial
court therefore properly determined that the third amendment was not a divisible contract and that the
entire third amendment was not valid. See Kimco Corp., 313 Ill. App. 3d at 773.
The Drapers insist that Bartram's testimony on the matter is inconclusive because he was never
questioned as to whether he would have signed an agreement that was silent as to landscaping.
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However, in light of what Bartram did testify to, we need not speculate as to how he may have
answered other questions.
IV. Conclusion
For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed in part
and reversed in part, and the cause is remanded for additional proceedings.
Affirmed in part and reversed in part; cause remanded for additional proceedings.
BYRNE, P.J., and O'MALLEY, J., concur.
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