Illinois Official Reports 

Appellate Court

Neufairfield Homeowners Ass’n v. Wagner,

2015 IL App (3d) 140775

Appellate Court 

Caption

NEUFAIRFIELD HOMEOWNERS ASSOCIATION, PlaintiffAppellant, v. KEVIN WAGNER, MELISSA WAGNER, and KIDS 

ON THE GO DAYCARE, INC., Defendants-Appellees.–

NEUFAIRFIELD HOMEOWNERS ASSOCIATION, PlaintiffAppellant, v. STEVEN P. GURLEY, DENISE M. GURLEY, and 

PATRICIA A. MADER, Defendants-Appellees.

District & No. Third District

Docket Nos. 3-14-0775, 3-15-0003 cons.

Rule 23 order filed

Motion to publish

allowed

Opinion filed

September 25, 2015

November 4, 2015

November 4, 2015

Decision Under 

Review

Appeal from the Circuit Court of Will County, Nos. 14-CH-118, 

13-CH-3805; the Hon. John Anderson, Judge, presiding.

Judgment Affirmed.
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Counsel on

Appeal

Anna Stanley Kahriman and Thomas W. Toolis (argued), both of 

Frankfort Law Group, of Frankfort, for appellant.

Gary S. Mueller (argued), of Gary S. Mueller & Associates, Ltd., of 

Joliet, for appellees Kids On The Go Daycare, Inc., Kevin Wagner, 

and Melissa Wagner.

Scott Pyles (argued), of Rathbun, Cservenyak & Kozol, LLC, of 

Joliet, for other appellees.

Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.

Justices Carter and Holdridge concurred in the judgment and opinion.

 OPINION 

¶ 1 Plaintiff, Neufairfield Homeowners Association (NHOA), sought declaratory relief to 

enforce a restrictive covenant prohibiting the operation of two daycare businesses against 

homeowners, Kevin and Melissa Wagner and Steven and Denise Gurley. The trial court 

granted summary judgment in favor of the homeowners and NHOA appeals. We affirm. 

¶ 2 BACKGROUND 

¶ 3 NHOA is the homeowners association for a subdivision known as Neufairfield. The 

development includes approximately 500 residential lots. There is only one entrance into and 

out of the subdivision. 

¶ 4 In September of 2004, NHOA recorded a declaration of covenants, conditions and 

restrictions, which set forth the developer’s purpose of developing single family homes and 

provided for the formation of the homeowners association. 

¶ 5 To promote the development of single family homes, section 3.1 of the declaration states 

that “[a]ll Lots shall be used only for Single Family Dwellings.” Section 3.12 lists certain 

exceptions for the operation of personal businesses: 

“Personal Business. The restriction in Section 3.1 shall not, however, be construed in 

such a manner as to prohibit an Owner from: a) maintaining his personal professional 

library therein; or b) keeping his personal business records or accounts therein; or c) 

handling his personal or professional telephone calls or correspondence therefrom; or 

d) operate [sic] a home-based business, but only if (i) the business is conducted within 

the residence, (ii) the business is not prohibited by the ordinances or regulations of the 

City and (iii) no motor vehicle with business markings is parked on the Lot or Common 
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Area overnight ***. Such uses are expressly declared customarily incident to the 

principal residential use and not in violation of said section.”

Section 3.13 further provides: 

“Other Commercial Activities. No commercial activities of any kind whatsoever shall 

be conducted in any building or any portion of the property except as provided in 

Section 3.12 hereof; no such activities shall require or allow customers or the public to 

frequent the Property for such home occupation.”

¶ 6 In September 2013, Kevin and Melissa Wagner purchased a lot within the Neufairfield 

subdivision. Melissa operates a home-based daycare center from the residence between the 

hours of 6 a.m. and 6:30 p.m., Monday through Friday. She is licensed by the state to provide 

daycare services for a maximum of seven children and currently provides services for that 

number. 

¶ 7 Steven Gurley also owns a lot in the Neufairfield subdivision. His wife, Denise, operates a 

home-based daycare business from the residence and is licensed to care for as many as eight 

children at a time. She also provides full-day daycare services Monday through Friday. 

¶ 8 In late 2013 and early 2014, NHOA filed complaints against the Wagners and the Gurleys 

for declaratory and injunctive relief. In its amended complaint against the Wagners, NHOA 

argued that section 3.13 of the association’s declaration prohibited the operation of a 

commercial activity that requires customers to frequent the property and maintained that 

Melissa’s business resulted in frequent commercial traffic in and around the Wagner residence. 

In its complaint against the Gurleys, NHOA maintained that sections 3.12 and 3.13 prevented 

Denise from operating her daycare business from the Gurley residence for similar reasons. 

¶ 9 Both defendants filed motions for summary judgment. In an affidavit in support of the 

Wagners’ motion, Melissa Wagner stated that she was licensed through the State to provide 

services to seven or fewer children, that the City of Joliet informed her that no special use 

permit was required to operate a home-based daycare center, and that her daycare business did 

not violate any ordinance or resolution of the City of Joliet. Denise Gurley’s affidavit averred 

that she was licensed through the State to operate a home-based daycare center for eight or 

fewer children, that the city informed her that she did not need a special use permit, and that her 

daycare business did not violate any city ordinance or resolution. Denise’s affidavit further 

stated that she typically provided services to five or six children at a time and that three to four 

of those children walked to her residence. 

¶ 10 In response to the Wagners’ motion, NHOA submitted an affidavit signed by Larry Miller, 

the president of NHOA’s property management company, stating that he had received multiple 

complaints from members of the association that defendants’ businesses were “prohibited by 

Neufairfield Homeowners Association’s Declaration of Covenants, Conditions and 

Restrictions.”

¶ 11 NHOA also filed a responsive pleading to the Gurley’s motion for summary judgment 

alleging that the activity the daycare created violated the declaration. NHOA attached to its 

response an affidavit submitted by another Neufairfield homeowner stating that she had 

“observed multiple cars (four to six) coming to and going from the Subject Property in the 

morning and, again, in the evening on a daily basis between Monday and Friday.”

¶ 12 The trial court conducted hearings on the motions in both cases. At the conclusion of the 

hearings, the court determined that the small number of children that attended the daycare 
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businesses would not result in the public “frequenting” the property. The court found that 

defendants’ home-based daycare centers were not in violation of section 3.13 of the 

declaration and entered summary judgment in their favor. Though defendants filed separate 

notices of appeal in circuit court, we granted their joint motion to consolidate. 

¶ 13 ANALYSIS 

¶ 14 NHOA argues that the trial court erred in granting summary judgment because genuine 

issues of material fact preclude judgment as a matter of law. Specifically, NHOA argues that a 

genuine issue exists as to whether the additional vehicles going to and coming from 

defendants’ daycare businesses constitute “frequent” commercial traffic prohibited by section 

3.13 of the declaration. 

¶ 15 Summary judgment is appropriate where “the pleadings, depositions, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 

5/2-1005(c) (West 2012). The party moving for summary judgment bears the initial burden of 

proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The movant may meet his or her 

burden of proof by affirmatively showing that some element of the case must be resolved in his 

favor or by establishing that there is an absence of evidence to support the nonmovant’s case. 

Id. The purpose of summary judgment is not to try an issue of fact but to determine whether a 

triable issue of fact exists. Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 

(2002). We review de novo an order granting summary judgment. State Farm Mutual 

Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st) 140447, 

¶ 63 

¶ 16 Generally, restrictive covenants affecting land rights will be enforced according to their 

plain and unambiguous language. Levitt Homes, Inc. v. Old Farm Homeowners’ Ass’n, 111 Ill. 

App. 3d 300, 308 (1982). In interpreting a covenant, the goal of the court is to give effect to the 

actual intent of the parties when the covenant was made. Forest Glen Community Homeowners 

Ass’n v. Nolan, 104 Ill. App. 3d 108, 111 (1982). The language of a declaration of subdivision 

covenants, conditions and restrictions is determinative of the developer’s intent, and the 

declaration is construed most strongly against the developer as its author. Levitt Homes, 111 

Ill. App. 3d at 308. Covenants should be strictly construed so that they do not extend beyond 

that which is expressly stipulated; all doubts must be resolved in favor of the free use of 

property and against restrictions. Fairways of Country Lakes Townhouse Ass’n v. Shenandoah 

Development Corp., 113 Ill. App. 3d 932, 935 (1983). 

¶ 17 In the absence of a definition within the covenant, words used in the declaration should be 

given their ordinary and commonly understood meanings. See Forest Glen, 104 Ill. App. 3d at 

112. The dictionary can be used as a resource to determine the ordinary and popular meaning 

of a word. Bailey v. Illinois Liquor Control Comm’n, 405 Ill. App. 3d 550, 555 (2010). 

¶ 18 In this case, the argument presented to the trial court was whether the volume of traffic 

from defendants’ daycare clients reached an intensity that violated the “frequent” prohibition 

in section 3.13. NHOA did not dispute that defendants’ businesses satisfied the requirements 

set forth in section 3.12. The trial court found it unnecessary to hold a hearing. Given that the 

facts were not in dispute, the trial court did not err in interpreting the term “frequent” as a 

matter of law without conducting an evidentiary hearing. 
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¶ 19 A homeowner’s association has the authority to interpret the covenants, conditions and 

restrictions in its declaration. See Forest Glen, 104 Ill. App. 3d at 110-11. However, it is not 

free to ignore the express language of the declaration. See Fairways of Country Lakes 

Townhouse Ass’n, 113 Ill. App. 3d at 935. Section 3.12 allows an owner to conduct a business 

within the residence if the business is not prohibited by the city’s ordinances or regulations and 

no motor vehicles with the business logo are parked on the lot or common area overnight. 

NHOA does not dispute that defendants’ daycare businesses met these criteria and are 

therefore “incident to the principal residence” as stated in section 3.13. Nevertheless, NHOA 

claims that defendants’ must cease and desist their daycare services because their commercial 

activities, while permissible under section 3.12, require customers to “frequent” the property in 

violation of section 3.13. 

¶ 20 Frequent is not defined in the declaration. Webster’s Third New International Dictionary 

defines “frequent” as “given to some practice : HABITUAL, PERSISTENT.” Webster’s Third 

New International Dictionary 909 (1981). Construing the covenant strictly against the 

developer and in favor of free use of property, the plain language of section 3.12 and 3.13 

intends to allow home-based businesses. Nothing in the record suggests that seven or eight cars 

entering and leaving the subdivision in the morning and then again in the evening is “habitual,

persistent” commercial activity that would thwart the intent of a single family subdivision. Our 

analysis leads us to the same conclusion that the trial court reached, that the few additional cars 

entering and leaving the subdivision due to defendants’ daycare businesses do not constitute 

frequent commercial traffic in violation of section 3.13. 

¶ 21 We find that summary judgment was also appropriate because the plain language of the 

declaration demonstrates that the drafters did not intend section 3.13 to apply to the 

homeowners’ daycare businesses. Section 3.12 is entitled “Personal Business” and provides 

exceptions for certain home-based businesses operated within the subdivision. As it follows, 

the plain and unambiguous title of section 3.13 states: “Other Commercial Activities.” That 

phrase indicates that section 3.13 applies to commercial businesses other than those personal 

businesses allowed under the previous section, section 3.12. The parties agree that defendants’

daycare operations are permissible personal businesses as stated in section 3.12. Thus, section 

3.13 does not apply to the factual scenario presented in this case. Accordingly, we affirm the 

trial court’s order granting summary judgment in defendants’ favor. 

¶ 22 CONCLUSION 

¶ 23 The judgment of the circuit court of Will County is affirmed. 

¶ 24 Affirmed.