Village of Wadsworth v. Kerton, No. 2-98-1661
2nd District, 3 March 2000
| THE VILLAGE OF WADSWORTH, Plaintiff-Appellant, v. MICHAEL KERTON, Defendant-Appellee. | Appeal from the Circuit Court of Lake County. No. 97--MR--217 Honorable Charles F. Scott, Judge, Presiding. |
PRESIDING JUSTICE BOWMAN delivered the opinion of the court:
Plaintiff, the Village of Wadsworth (Village), filed a two-count complaint in the circuit court of Lake County againstdefendant, Michael Kerton. In count I, the Village asked the court to declare that defendant's installation of a fence, removalof vegetation, planting of new vegetation, and placing of mulch within the scenic corridor and deed-restricted open areas(protected areas) within defendant's lot were prohibited and unlawful. The Village sought an injunction requiring theremoval of the fence, mulch, and newly planted vegetation and prohibiting any further disturbance of the protected areas. Incount II, the Village sought a fine for defendant's violations of the protected areas.
Following a bench trial, the trial court denied the Village's request that defendant be ordered to remove the fence. The courtenjoined defendant from removing or planting any other vegetation within the protected areas without approval from theplan commission. It also ordered defendant to submit a landscape plan to the plan commission for approval of landscapingalready done and to abide by its decision or, if defendant chose not to submit such a plan, to remove the trees planted andmulch installed from the protected areas. As to count II, the court found the complaint failed to specify the particular zoningordinance or scenic corridor provision violated. The Village immediately moved to amend count II to conform to theproofs, in particular, to specify the precise scenic corridor provisions violated. The trial court denied the motion. TheVillage appeals.
On appeal, the Village contends that (1) the trial court abused its discretion in denying the Village's request for injunctiverelief to require defendant to remove his fence as well as the trees planted and mulch installed in the protected areas; (2) thetrial court erred in finding that count II of the complaint was not sufficiently specific to apprise defendant of the section ofthe zoning ordinance violated; and (3) the trial court abused its discretion in denying the Village's request to amend itspleadings to conform to the proofs.
In 1990 the Village approved a subdivision known as the Willows Planned Unit Development (the Willows). The plat wasduly recorded on August 10, 1990. The Village impressed certain conditions upon the subdivision as reflected in therestrictions on the plat. One of the restrictions pertained to the areas designated on the plat as "deed restricted open space"areas or "scenic corridor" areas. The restriction provided as follows:
"ALL AREAS DESIGNATED SCENIC CORRIDOR OR DEED RESTRICTED OPEN SPACE ON THIS PLATSHALL BE MAINTAINED IN THEIR NATURAL, UNDISTURBED CONDITION AND NO MAN-MADESTRUCTURES OF ANY KIND SHALL BE CONSTRUCTED THEREON, NOR SHALL ANY GRADING BEPERMITTED ON ANY SCENIC CORRIDOR OR DEED RESTRICTED OPEN SPACE AREA EXCEPTACCORDING TO THE REGULATIONS IN THE WADSWORTH ORDINANCE THAT APPLY TO THESEAREAS. NATURAL VEGETATION SHALL BE PRESERVED AND MAINTAINED AND SHALL NOT BEMOWED, CULTIVATED, SPRAYED OR IN ANY WAY DISTURBED WITHOUT FOLLOWING THEREQUIRED PROCEDURES OF THE VILLAGE OF WADSWORTH. NOXIOUS PLANT MATERIAL MAY BEREMOVED SUBJECT TO A LANDSCAPE PLAN APPROVED BY THE PLAN COMMISSION."
As part of the subdivision approval process, covenants and restrictions were recorded with the plat. The covenantscontained a provision for the deed-restricted open space areas that was identical to the restriction on the plat pertaining tothese areas. The covenants also contained a provision granting the Village the right to enforce the covenants. Paragraph 2 ofclause VII provided:
"The Covenants herein set forth shall run with the land and bind Declarant, its successors, grantees and assigns, andall parties claiming by, through, or under them. Declarant, the Association, any Homesite owner and the Village ofWadsworth shall each have the right to sue for and obtain a prohibitive or mandatory injunction or any equitableremedy to prevent the breach of, or to enforce the observance of, the Covenants above set forth, or any of them, inaddition to the right to bring an ordinary legal action for damages."
In 1991 the Village adopted a comprehensive zoning ordinance that superceded the prior zoning ordinance. The new zoningordinance included provisions for the scenic corridor areas:
"5.3 OVERLAY DISTRICT REGULATIONS
A. Scenic Corridor Overlay District Regulations
1. Intent
The Scenic Corridor Overlay District is established to preserve the scenic qualities of the Wadsworth area in a periodof transition from a rural farming community to a low density, non-farm residential community. The vistas, openfields, wetlands, and majestic stands of hardwood forest are primary scenic resources which make Wadsworth apleasant place to live. These resources form the basis for both planning and zoning for low density, open residentialsubdivisions. It is the intent of this section to preserve highly visible portions of this scenic resource so that futuredevelopment and future residents can continue to enjoy the qualities which first attracted non-farm residents to theVillage and its environs.
2. Uses Permitted
These uses permitted in the Scenic Corridor Overlay District shall be those uses as shown in Table 1-A, UsesPermitted in Overlay Districts subject to the regulations established herein. Any existing use is a permitted use in theSCOD provided such use was a legally established use and permitted use in the underlying district on the effectivedate of this ordinance.
3. Prohibited Construction
Except as noted below all buildings and structures including at-grade construction shall be excluded from the sceniccorridors.
4. Exceptions
The following uses and accessory uses are permitted in scenic corridors subject to the landscape standards establishedherein:
a. Buildings and structures including existing accessory structures existing on the effective date of this Ordinance.
b. Agricultural uses provided that no barns or other structures shall be constructed within such scenic corridor.
c. Open uses as provided in Table 1-A, Uses Permitted in Overlay Districts.
d. Entrances to subdivisions including identification signs subject to the approval of the Plan Commission and VillageBoard of Trustees.
e. Temporary real estate sales signs subject to the issuance of a temporary use permit.
5. Landscape Standards
All scenic corridor areas shall be landscaped in accordance with the following standards.
a. All landscape improvement shall be undertaken only in accordance with a landscape plan prepared by the owner,submitted to and approved by the Plan Commission. In addition to the standards below, the plan shall conform to thestandards and requirements of Wadsworth Landscape Ordinance or other suitable standards adopted by the VillageBoard." Wadsworth Zoning Ordinance, art. 5.3A (eff. April 2, 1991).
The new zoning ordinance also included an overlay map that established scenic corridors throughout the Village, includingthe eastern portion of lot 40 in the Willows. The lot also contained deed-restricted open space areas that overlapped with thescenic corridor areas.
In 1993 defendant purchased lot 40 in the Willows, which was then vacant. He subsequently constructed a home on the lotand moved into the home in 1995. Defendant acknowledged that when he purchased the lot he received a copy of thecovenants and restrictions for the Willows, the plat of survey indicating on its face that there was a deed-restricted area onhis lot, and a title insurance policy. The policy raised as objections the deed-restricted open space area over the east 148.97feet and the scenic corridor area over the east 100 feet of lot 40. Defendant admitted that he never read his copy of thecovenants and restrictions before putting up his fence. He also admitted that he never read the deed or the title policy afterhe received them.
On September 13, 1996, defendant went to the Village hall and applied for a permit to erect a fence. Deborah Mikesch, anadministrative assistant for the Village who had the authority to issue building permits, issued a permit to defendant. Whendefendant applied for the fence permit, he used a landscape drawing that did not show the location of the protected areas onhis lot or indicate the location of Route 41. Defendant acknowledged that he did not show Mikesch anything that disclosedthat the lot had deed-restricted and scenic corridor areas on it and that he planned to install the fence in the protected areas.Defendant recalled that he had a brief conversation with Mikesch regarding the fence, commenting that he was erecting itfor security purposes because his lot backed up to Route 41. Defendant stated that Mikesch did not ask for anything otherthan the application for the building permit. It was defendant's testimony that the application did not request anyinformation regarding deed restriction, conservancy, or open space areas. Defendant acknowledged that the applicationcontained a paragraph stating that he (as applicant) had provided "all the pertinent information relating to the structureand/or county ordinances pertaining thereto."
Mikesch identified the application form and landscaping drawing defendant gave her when he applied for his buildingpermit. Defendant did not provide any other documents. Mikesch stated that to obtain a fence permit a "plat of survey orlandscape plan showing the property lines" was required. The landscape plan, entered into evidence, did not show the rearproperty lines of defendant's lot or the location of Route 41.
It was Mikesch's testimony that she was unaware that the fence was to be located in the scenic corridor or deed-restrictedareas of defendant's lot. She was aware that his lot was located in the Willows and that it bordered Route 41. Mikeschacknowledged that a copy of the plat of the Willows subdivision was in her office. Mikesch stated that she would not haveissued the permit to defendant if he had told her that the fence was going to be erected in the deed-restricted or open spacearea. Mikesch thought that she was dealing with a routine fence permit. She issued the permit believing that defendant hadcomplied with the Village's requirements for a fence permit.
After the permit was issued, defendant ordered the fence. He waited approximately six weeks for the fence to arrive. Duringthis period of time, defendant was not contacted by the Village. Defendant had a stockade fence installed along the easternperimeter of his lot within the protected areas. Defendant stated that the fence cost approximately $2,000 and took 1