Bjork v Draper II

Appellate Court of Illinois, Second District, No. 2-09-1345, September 22, 2010: This appeal of the trial court’s balancing of equities when setting remedies for violation of a conservation easement was denied because the Appellate Court found the a balancing was appropriate and the trial court had not abused its discretion.

The easement violation and remedy were previously litigated and appealed (Bjork v. Draper (Bjork I), 381 Ill. App. 3d 528, 542 (2008)), and this same appellate court agreed with the trial court that the easement could be amended, disagreed as to which amendments were valid, and remanded for additional consideration. (According to the Land Trust Alliance, the Illinois Supreme Court denied review.) In Bjork I the Appellate Court, “Specifically… directed the trial court to equitably consider all of the alterations that had been made to the property and, in its discretion, determine ‘which alterations, if any, must be removed and which, if any, may be retained.’” On reconsideration, the trial court allowed a 1,900 square foot residential addition to remain but ordered removal of certain trees and a drive.

The Appellate Court reaffirmed the appropriateness of a balancing of the equities and held it could not disturb the trial court’s discretionary ruling absent an abuse of discretion. The court said the factors that may be considered when determining the appropriate remedy for the violation of an easement include “(1) the intent of the parties at the time the easement was entered into; (2) the purpose of the easement; (3) the impact of the violation in relation to the purpose of the easement; (4) the plaintiff’s interest in enforcing the easement; (5) the possible hardship to the defendant associated with the removal of the encroaching structure; and (6) reasonable alternatives to the removal of the encroaching structure.” The court noted, “[T]he trial court indicated that it had considered many factors in making its determination, including: (1) the hardship to the defendants; (2) the benefit to the plaintiffs and the public in general; (3) the character of the plaintiffs’ conduct; (4) the effect of the conduct on the easement provisions and the purpose of the easement; and (5) the actions of the Association as easement holder.”

The property is located in the Lake Forest Historic District, which is listed on the National Register of Historic Places. The easement provided that the preservation of the open and landscaped grounds of the easement property contributes greatly to the appearance of the subject house and the public enjoyment of the Lake Forest Historic District. The easement further indicated that the property is located on and visible from a public road that forms part of the system of scenic roadways circling Lake Michigan. The opinion states the plaintiffs had standing under Illinois statute 765 ILCS 120/4 (West 2002) to enforce the provisions of the conservation easement because they lived within 500 feet of the easement property.

The appellant had also attempted to get the Appellate Court to reverse itself as to other matters in Bjork I, which the court declined to do.

Decision available at

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