Smith v. Jack Nicklaus Development Corp.

587 N.E.2d 1243, 225 Ill. App. 3d 384, 167 Ill. Dec. 628, 1992 Ill. App. LEXIS 238
CourtAppellate Court of Illinois
DecidedFebruary 20, 1992
DocketNo. 2-91-0404
StatusPublished
Cited by1 cases

This text of 587 N.E.2d 1243 (Smith v. Jack Nicklaus Development Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Jack Nicklaus Development Corp., 587 N.E.2d 1243, 225 Ill. App. 3d 384, 167 Ill. Dec. 628, 1992 Ill. App. LEXIS 238 (Ill. Ct. App. 1992).

Opinions

JUSTICE WOODWARD

delivered the opinion of the court:

The trial court dismissed the amended verified complaint of plaintiffs, James and Cynthia Smith. On appeal, plaintiffs argue that the court below erred in doing so. No issues are raised regarding the injunction entered pursuant to a third-party complaint filed by Harvey and Elaine Silets (the Silets) against plaintiffs and Wynstone Property Owners Association (WPOA).

This case arises out of the development of Wynstone, a 750-acre residential community built around a Jack Nicklaus signature golf course. In developing that community, Jack Nicklaus Development Corporation (JNDC) had to deal with environmental issues and the concerns of adjacent property owners, including defendants, the Si-lets. The Silets owned property which is located off Arrowhead Lane in North Barrington, Illinois, and which is situated immediately to the west of the Wynstone development. Since the 1970’s, the Silets have owned their property which, prior to the Wynstone development, was secluded and rural in character. A prominent feature of the Silets’ property is a pond which is adjacent to their residence and also borders upon the Wynstone development. Before Wynstone’s development, the Silets viewed a forested, natural setting from their house across their pond.

The Silets first learned in 1986 of JNDC’s intention to develop a residential and golfing community in the area next to their property. The Silets were concerned as to the impact said development of the adjacent property might have upon the water level and water quality of their pond and upon their view across the pond.

These concerns, and others, were dealt with during a process of negotiations between the Silets and JNDC which culminated in the execution of the unrecorded December 1987 agreement and the creation of a conservation easement and a drainage easement, both of which were recorded. The conservation easement burdens the three lots in the Wynstone development which are situated side by side at the west border of the development, adjacent to the Silets’ property and across the pond from the Silets’ house. Lot G-11 (G-11), which plaintiffs purchased on August 10, 1988, is the southernmost of the three. The conservation easement applies to a rectangular area, roughly along the pond’s edge, which runs north to south across the entire width of the three affected Wynstone lots and extends from the west border of the development (the property line shared with the Silets) to a distance 75 feet to the east of that property line.

The drainage easement burdens the same three lots. On G-11, the physical boundaries of the drainage easement are a triangular area in the northwest corner of the lot formed by the west and north property lines and a diagonal line bisecting those two property lines at a distance (on both property lines) of more than 100 feet from their intersection. Thus, the northwest corner of the plaintiffs’ property is subject both to the conservation easement and to the drainage easement.

Under the unrecorded December 1987 agreement, among other concessions, JNDC promised to construct a retention basin on G-11, G-12 and G-16 and to construct a berm on G-11 and G-12 at the shoreline between the retention basin and the Silets’ pond. The purpose for the retention basin and the berm was to prevent erosion, runoff or other damage to the Silets’ pond during and after the construction of the Wynstone development. In the agreement, JNDC also agreed to establish the conservation easement, consisting of the westernmost 75 feet of the same three lots. Finally, JNDC promised that, after the berm was constructed, it would landscape across the berm for the purpose of screening the Silets’ property from the development. The Silets were given a right of reasonable approval over the landscaping.

The plaintiffs first viewed G-11 in August 1987 at a time when they were considering building a house in the Wynstone development. Prior to viewing G-11, the Smiths had been provided with a plat of survey which showed a triangular area in the northwest corner of G-11, indicating a retention and drainage area that would run across that particular portion of the property. The area in question was planned for the collection of surface water runoff from other areas of Wynstone, before it drained into the above-mentioned pond.

During their initial viewing of the G-11 property, plaintiffs inquired of the JNDC representative what was planned for the drainage area but received no definite answer. In September 1987, plaintiffs decided to buy G-11 and retain an architect, general contractor and landscape architect. The resulting house plan sought to maximize the views of the pond.

Late in 1987 or 1988, JNDC began working on the retention and drainage areas. By August 10, 1988, when plaintiffs formally closed on the purchase of G-11, the work on said area had progressed substantially. At some point, seven Austrian pines were planted in the berm. Plaintiffs testified that the pines were not planted until after the August 1988 closing. Defendants presented evidence that the pines were planted in July 1988.

There was a conflict in the evidence as to whether Mrs. Smith, during a July 1988 conversation with Mrs. Silets, had been specifically advised that the Silets had the right of approval over the landscaping to be installed on the berm. Mrs. Silets testified to so advising Mrs. Smith, who denied the conversation took place.

On the day before their closing, plaintiffs met with a JNDC representative, who told them that JNDC was responsible for landscaping in the retention basin and on the berm. This representative assured plaintiffs that the landscaping would be of high quality consistent with other common areas in the development. Plaintiffs did not pursue this matter further.

After the closing, the parties met on a number of occasions to iron out their differences as to the landscaping of the subject area. No satisfactory resolution was achieved. In November 1989, a crew of the JNDC landscape workers appeared on G-11 and installed a screen of evergreen trees on the berm between the pond and the drainage and retention basin. According to plaintiffs’ landscape architect, said evergreens will grow to a height of approximately 45 feet at maturity, and these trees will quickly grow together to create a solid screen between G-11 and the pond. Moreover, at an unspecified time, a fence which followed the general perimeter line of the Wynstone development was installed along the berm’s crest. As stated above, plaintiffs filed their complaint on November 15, 1989.

On November 15, 1989, plaintiffs filed a verified complaint which primarily sought injunctive relief. The only named defendant was JNDC. Plaintiffs claimed that the installation of the contested landscaping and disputed placement of the perimeter fence would constitute an unlawful trespass, resulting in irreparable damage to their property. Based upon the alleged injury, plaintiffs sought injunctive relief enjoining JNDC from undertaking the disputed landscaping. The trial court denied plaintiffs’ motion for a temporary restraining order, finding that the temporary relief being sought was also the ultimate relief requested in plaintiffs’ complaint.

On March 12, 1990, the trial court granted JNDC’s motion to add the Silets as necessary defendants.

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Cite This Page — Counsel Stack

Bluebook (online)
587 N.E.2d 1243, 225 Ill. App. 3d 384, 167 Ill. Dec. 628, 1992 Ill. App. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-jack-nicklaus-development-corp-illappct-1992.