Illinois Construction Law Blog : Illinois Construction Lawyer & Attorney : Foran Glennon Palandech & Ponzi Law Firm : Chicago IL

In Bjork v. Draper (Doc. No. 2-06-1145, 2^nd Dist), neighbors of a house located in the Lake Forest Historic District, included in the National Register of Historic Places, brought suit against the house owners to enforce the terms of a "Conservation Easement" (an easement agreement that creates a type of land preservation agreement that is enforceable between parties normally granted pursuant to the Illinois Real Property Conservation Rights Act) which the neighbors felt the home owners were violating with alterations to their home and subsequent amendments to the easement entered into between the home owners and the Lake Forest Open Lands Association which was the conservation entity that had been granted the easement.

The terms of the easement included a right for the amendment of the easement as well as a statement that the purpose of the easement was to assure that the property would be "retained forever predominately in its scenic and open space condition, as lawn and landscaped grounds."

The trial court heard the neighbors' claims regarding interpretation of the easement, the amendments that the owners and the Association had entered into, and determined that a portion of the landscaping improvements that the owners had made pursuant to a third amendment were in violation of the easement.  The court also determined that the two prior amendments to the easement, allowing the owners to expand their driveway and to construct an addition to their home, were valid.

The neighbors appealed the decision of the trial court and the appellate court found that all the amendments violated the easement's statement of purpose regardless of the provisions in the easement allowing for amendment.  The court then remanded the decision to the circuit court for a determination in line with its opinion regarding exactly which improvements, if any, the owners would be forced to remove from their property.

Dealing with these types of regulations in a construction context is always challenging, but usually negotiating construction terms around conservation easements can be handled in a manner that can increase the historic value and preservation of the structures.  Here, the opinion reveals that the owners took steps to comply with the easement, hired an attorney and negotiated with the Association, it was the neighbors who brought the suit.  These facts are not inconsequential and show why the court in remanding the case, emphasized that the trial court could eventually determine that none of the improvements would need to be removed.

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In an interesting case which has applied the Illinois Supreme Court's recent Buenz decision, the appellate court found that an ordinance which included an indemnification provision would be read to apply against Nicor in favor of the Village of Wilmette where the ordinance the city passed granting a fifty year easement to Nicor to "place, maintain and operate its gas pipes under the streets of Wilmette, in consideration for which Nicor would provide gas for use by the Village."  While the court properly applied Buenz, it summarily dismissed an issue that likely should have garnered more attention:  The Illinois Construction Contract Indemnification for Negligence Act (740 ILCS 35/1 et seq.)  The court simply states that Nicor's authority for the proposition does not apply, but fails to offer any merit to the idea or state why it doesn't apply. 

By invoking Buenz, using the term "consideration" and even allowing the Village to argue that "its contract with Nicor included a provision indemnifying" the village for its own negligence...  (See page 3 of the opinion) certainly we have a contract.  Whether it's a contract for an easement or whether the contract can be said to touch on issues implicated by the anti-indemnification statute should have been explored by the court.  Or, if the court wanted to say that a contract for an easement, no matter what the activities allowed under the easement are, should not be construed as a contract or agreement for construction... then it should have done so.  Instead, we are left to wonder exactly what the rational for not applying the statute to the agreement between Nicor and Wilmette that includes maintenance of the wires was, when Section 1 of the anti-indemnification act states that it applies to contracts or agreements:



• "With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable."

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