No. 2--99--1346

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

FOREST GLEN COMMUNITY 	)	Appeal from the Circuit Court

HOMEOWNERS ASSOCIATION,	)	of Du Page County.

	)

     Plaintiff-Appellee,	)

		)	

v.	)	No. 98--CH--0590

	)

JOHN S. BISHOF, JR., and	)	

ANTOINETTE A. BISHOF,			)	Honorable

	)	John W. Darrah,

	Defendants-Appellants.	  )	Judge, Presiding.

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court:

	Defendants, John Bishof and Antoinette Bishof, appeal from the

judgment of the circuit court of Du Page County granting the motion

of plaintiff, Forest Glen Community Homeowners Association

(Association), for summary judgment and denying defendants’ motion

for summary judgment and from the court’s order granting

plaintiff’s petition for attorney fees.  We affirm.

	Defendants own a lot, approximately the size of one-half acre,

located in the Forest Glen subdivision in Oak Brook, Illinois.  The

owner or owners, collectively, of each lot in this subdivision are 

members of the Association.  Prior to 1996, each member had paid the same annual assessment of $127.50.  This figure had been

arrived at by multiplying the subdivision’s minimum lot size of

15,000 square feet by $0.085.  In 1996, the Association's board of directors (board) voted to calculate assessments by multiplying the

actual square footage of each member's lot by $0.085.  Because

defendants’ lot is larger than 15,000 square feet, their annual

assessment increased by $64.57 to a total of $192.07.  Thus, even

though the board's action in 1996 did not change the assessment

rate of $0.085, defendants' assessment increased because the rate

of $0.085 was multiplied by the actual square footage of their lot

rather than 15,000 square feet.

	On February 23, 1996, the board sent to each member a letter

that stated:

	"Prior Boards used the smallest allowable lot size per

zoning (15,000 sq. ft. x $0.085 = $127.50) because they did

not have the actual lot sizes.  The board feels that in order

to replace the plantings lost over the past several years we

need to increase the assessment to the maximum allowed within

our covenants."

	Defendants initially refused to pay their assessment,

explaining to the board in a letter dated February 29, 1996, that

they believed it was "fair" for them to pay $127.50 but they did

not want to pay the increased assessment because most of the rear portion of their lot was "encumbered by an easement for a detention

pond which fills after every rainfall," the water detention was a

"constant source of aggravation," the backyard had been "resown

twice due to malfunctions of the drainage system that is assembled

beneath the surface," and they were deprived of any "enjoyment" of

their backyard in that they could not build on it or excavate for

a swimming pool.  At that time, defendants did not contest the

board’s authority to establish the annual assessment for 1996.  On

February 29, 1996, the board rejected defendants’ request for

"special consideration."

	On June 3, 1997, defendants paid $255.00, or $127.50 on their

1996 assessment and $127.50 on their 1997 assessment.  Defendants

explained in a letter that accompanied their payment that they

"deducted costs incurred in mantaining [sic] the detention easement" located in their backyard "as a result of soil erosion,

reseeding and removal of debris."  We note that the difference

between the assessments they owed and the assessments they paid is

$64.57 for each year and that this is the exact amount of the

increase in defendants’ assessments.

	On May 1, 1998, the Association filed a lien against

defendants’ lot, claiming that $489.70 was owed.  On June 1, 1998,

the Association filed a two-count complaint against defendants.  In count I of the complaint, the Association sought the foreclosure of

defendants’ property to satisfy the payment of the lien if

defendants persisted in their refusal to pay.  Count II of the

complaint alleged breach of contract in that defendants had agreed

to pay assessments when they bought the lot but that defendants

failed to pay and now owed $489.70 in unpaid assessments and late

fees.  The Association also sought from defendants reimbursement of

attorney fees and costs.  An amended complaint was filed on July 8,

1998, but the amended complaint differed from the original

complaint only in that a copy of the Association’s "Declaration of

Easements, Covenants and Restrictions for Forest Glen"

(declaration) was attached as an exhibit.

	The Association moved for summary judgment pursuant to section

2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1005(c) (West 1998)), alleging that the board was authorized under the

declaration and under the "By-Laws of the Forest Glen Community

Homeowners’ Association" (bylaws) to employ the "proper formula" in

calculating the assessments for 1996, which was also used in 1997

and 1998.

	Defendants also moved for summary judgment.  Defendants

abandoned their position that they were justified in offsetting

their assessment by the costs of maintaining the easement for the

detention pond.  Defendants argued, for the first time, that neither the declaration nor the bylaws authorized the board’s

decision to increase the "rate" in calculating annual assessments

and that, according to the declaration and bylaws, an increase in assessments must be approved by two-thirds of the membership of the

Association.  Defendants also argued, for the first time, that

their 1996 assessment was incorrect because the board miscalculated

defendants’ lot size by including in its calculation the area

located within the easement for the detention pond.

	On August 11, 1999, the trial court granted the Association’s

motion for summary judgment, denied defendants’ motion for summary

judgment, and ordered defendants to pay $489.70, interest at the

rate of 1.5% per month from May 1, 1998, and costs of the suit. 

The court reserved ruling on the issues relating to attorney fees

and costs until after the Association filed a petition.  On October

28, 1999, the court granted the petition for fees and costs brought

by the Association and ordered defendants to pay $6,107 for the

Association’s attorney fees plus costs of $258.  Defendants filed

this timely appeal.

	A trial court should grant summary judgment only if, after

construing the evidence in the light most favorable to the

nonmoving party, "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 1998); Hubert v. Consolidated Medical Laboratories, 306 Ill. App. 3d 1118, 1125 (1999).  We review a trial court's entry of

summary judgment de novo.  Hubert, 306 Ill. App. 3d at 1125.

	Defendants first contend that the board’s decision to increase

the annual assessment for 1996 was not authorized in the

declaration or the bylaws and that the annual assessment could only

be increased after such an increase was approved by two-thirds of

the membership of the Association.  Alternatively, defendants argue

that the language of the declaration and bylaws, which authorizes

an increase in annual assessments, is ambiguous and that, where the

language is ambiguous, it should be "construed against those

parties seeking to enforce it."  The cases defendants cite for this

proposition do not support it.  Lakeland Property Owners Ass'n v. Larson, 121 Ill. App. 3d 805, 810 (1984), actually addresses the issue of the presumption in favor of natural rights and against

restrictions when construing a restrictive covenant.  Moreover,

while Sinnissippi Apartments, Inc. v. Hubbard, 114 Ill. App. 3d 151 (1983), addresses the interpretation of the language of the

"Shareholder’s Proprietary Lease," the court’s analysis did not

focus on language that was ambiguous but, rather, on the meaning of

the plain language contained in that lease.

	In any event, we agree with the trial court and find no

ambiguity in the following sections from the declaration and the bylaws that are relevant to our resolution of this issue.  Article

VIII, section 6, of the declaration provides, in pertinent part:

	"Assessment Procedure. Regular Assessments.

	1.  From and after January 1, 1978, the regular

assessments shall be determined by the affirmative vote of

two-thirds (2/3) of the Board of Directors of the Association,

as provided in this Declaration and the By-Laws of the

Association *** and the maximum annual rate of assessment

which may be levied for any year shall be 85/100ths of a cent

per square foot."

Section 2(c)(i) of article IX of the bylaws provides, in pertinent

part:

	"It shall be the duty of the Board of Directors to *** 

[c]onduct a regular meeting of the Board of Directors on or

before December 1st of each year for the purpose of determining the regular assessment against each lot prior to

such regular assessment period."

Section 9 of article VII of the bylaws provides:

	"The act of a majority of the Directors present at a

meeting at which a quorum is present shall be the act of the

Board of Directors, except when the Board shall consider the

following matter, set forth at length in the Declaration:

			(a) The fixing of the amount of all regular

assessments.

In this case, the affirmative vote of two-thirds (2/3) of the

Board of Directors present at a meeting at which a quorum is

present shall be necessary to adopt any measure with respect

thereto."

	Defendants point to language in section 5 of article VI of the

bylaws that, they contend, contradicts the proposition that the

board was authorized to establish the annual assessment for 1996. 

Article VI addresses "MEETINGS OF MEMBERS," and section 5 provides,

in pertinent part:

	"Quorum:

	* * *

	In the event the Membership shall consider *** the

levying of regular assessments larger than the previous year’s

regular assessment, *** such matter or matters shall be

adopted at a Membership meeting at which a quorum is present

upon the affirmative vote of two-thirds (2/3) of the entire

Membership, except as provided for in ARTICLE VIII, Section 6,

1, of the Declaration."

	The rules of construction for contracts govern our

interpretation of the covenants contained in the declaration.  See Seven Bridges Courts Ass'n v. Seven Bridges Development, Inc., 306 Ill. App. 3d 697, 705 (1999).  A contract is ambiguous if it is

reasonably susceptible to more than one meaning, but contractual

language is not rendered ambiguous simply because the parties

disagree on its meaning.  Seven Bridges, 306 Ill. App. 3d at 705- 06.  The interpretation and construction of a contract are  matters

to be determined by a court as questions of law.  The Streams Club, Ltd. v. Thompson, 180 Ill. App. 3d 830, 838 (1989).  The meaning of the provisions of a contract must be determined from the language,

and we will not arrive at a construction that runs contrary to the

plain and ordinary meaning of the language used.  Konewko v. Kidder, Peabody & Co., 173 Ill. App. 3d 939, 943 (1988), citing Tate v. Wabash Datatech, Inc., 147 Ill. App. 3d 230, 236 (1986).

	In this case, the language of the declaration and of the

bylaws is unambiguous and clearly vests in the board the authority

to establish the amount of the annual assessments.  That language

further provides that the board may establish the annual

assessments at a maximum rate of "85/100ths of a cent per square

foot."  The board did, in fact, establish the assessment for 1996

based on the maximum rate of $0.085 of a cent per square foot of

property.  We reject defendants’ interpretation of section 5 of

article VI of the bylaws and read this language, giving the language its plain and ordinary meaning, as providing that matters

relating to "the levying of regular assessments larger than the

previous year’s regular assessment," if accomplished through

article VIII, section 6(1), of the declaration, need not be adopted

through a vote of the membership.  Thus, we conclude that the board

acted within the scope of its duties when it employed the proper

formula in establishing the annual assessment for 1996.

	Defendants also contend that their assessments were improper

in that the board incorrectly calculated their lot size, including

10in that calculation the area within the easement for the detention

pond.  We disagree.

	The plain language of the declaration requires that the board

calculate the assessment by multiplying the actual square footage

of a lot by the rate selected by the board.  Article II, section

14, of the declaration defines the term "lot area" as "[t]he area

of a horizontal plane bounded by lot lines."  Although the

declaration also provides that this definition would be modified to

make it consistent with the zoning ordinance of the Village of Oak

Brook (Village) if it is inconsistent with that language, no such

inconsistency exists.  The Village’s zoning ordinance defined "lot

area" as follows:

	"The area of a horizontal plane bounded by lot lines. 

For the purposes of meeting minimum lot area requirements, the

land area of a lot used for providing private access rights of

way shall not be included."  Oak bBrook Village Code, Appendix

A,  §XIV(77) (amended June 8, 1993).

	The rules that govern the construction of statutes are also

applied in the construction of municipal ordinances.  Crawford v. City of Chicago, 304 Ill. App. 3d 818, 823 (1999).  The construction of a statute requires the identification of

legislative intent and the effect it should be given.  Crawford, 304 Ill. App. 3d at 823.  The most reliable indicator of

legislative intent is the statute’s language and, where it is clear

and unambiguous, the plain and ordinary meaning of the words will

be given effect.  Crawford, 304 Ill. App. 3d at 823.

	Given these rules of construction, and in light of the clear

and unambiguous language of the zoning ordinance, we find that the

board correctly included the area within the easement for the

detention pond in its calculation of defendants’ easement.  The

limiting language of the ordinance would not affect the board’s

calculation and would not apply in this case, where the

determination of the lot size is for the sole purpose of

calculating defendants’ annual assessment.  Defendants do not dispute that the area located within the easement for the detention

pond is also located within their lot lines.  Hence, the board’s

determination of defendants’ "lot area," for this narrow purpose,

would properly include the square footage of the easement for the

detention pond.

	The lack of merit of defendants’ arguments now on appeal is

highlighted by the fact that they did not initially complain that

the board lacked the authority to establish the annual assessment

for 1996 nor did they complain that the board incorrectly

calculated their lot area.  Instead, defendants offered to pay a

portion of their assessment and complained about the $64.57

increase because they could not fully "enjoy" their backyard. 

Then, defendants paid a portion of the assessments due, but

explained that they deducted costs of maintenance of their

backyard, which amounted to $64.57 for 1996 and $64.57 for 1997,

precisely the amount of the increase in their assessment. 

Coincidence or not, defendants fail to point to any language in the

declaration or the bylaws that authorizes their unilateral decision

to offset their assessment by their own maintenance costs.

	Lastly, defendants contend that the court erred in awarding

attorney fees and costs to the Association.  Defendants acknowledge

that an award of attorney fees and costs would be authorized under article VII, section 8, of the declaration in cases where lot

owners refuse to pay their assessments.  That section provides, in

pertinent part, as follows:

	"Any assessments, regular or special, which are not paid

on the due date shall be delinquent. *** The Association may

recover any delinquent assessments by bringing an action at

law or in equity against the then Owner personally obligated

to pay the same or foreclose the lien against the Lot.  Such

recovery shall include interest, costs and reasonable

attorneys’ fees incurred in connection with any such action."

Defendants do not challenge the amount of the award.  Rather,

defendants argue that the award was improper where their challenge

to the annual assessment was legally justified and not capricious.

	Such an argument would be relevant if the fee award had been

entered pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137),

but it was not.  Fees and costs were awarded pursuant to article

VII, section 8, which is unambiguous and contemplates the recovery

of expenses for attorney fees and costs incurred in any legal

determination necessary to recover delinquent assessments.  The

board properly established defendants’ annual assessments, and

defendants admit they refused to pay the full amount.  Defendants’

assessments then became delinquent.

	Defendants were solely responsible for the manner in which

they chose to contest their assessments.  Since the defendant John S.

Bischof, Jr., who is a lawyer and represented himself and his wife, they

may not have incurred legal fees in litigating this $60 dispute

over the assessment of a one-half-acre lot in Oak Brook.  But they

knowingly took the risk that their arguments, which, incidentally,

we have found to be without merit, would fail and this $60 dispute

would result in liability for several thousand dollars of legal

fees.  As we noted above, defendants have acknowledged that the

declaration provides that they are liable for fees and costs, and

they have not contested the amount.  We agree with the trial court

that defendants are liable for fees and costs pursuant to the

declaration.

	In conclusion, the board acted within the scope of its duties

when it employed the proper formula in establishing the annual

assessment for 1996.  Defendants’ annual assessment was calculated

by multiplying the actual square footage of their lot by the rate

of $0.085.  We find no support for defendants’ conclusion that the

board incorrectly determined the square footage of their lot where

the calculation of the assessment correctly included the area

located within the easement for the detention pond.  Once the board

established the proper assessments, defendants were obligated to pay them.  Defendants owed the Association reimbursement of

attorney fees and costs where the Association brought legal action

to recover defendants’ delinquent assessments.  Thus, as there are

no genuine issues of material fact, the court properly granted

summary judgment to the Association, denied defendants’ motion for

summary judgment, and awarded the Association attorney fees and

costs.

	Accordingly, for the foregoing reasons, we affirm the judgment

of the circuit court of Du Page County granting the Association’s

motion for summary judgment and the court’s order granting the

Association’s petition for attorney fees and costs.

	Affirmed.

	HUTCHINSON, P.J., and RAPP, J., concur.