Second Division                                                             March 31, 1997No. 1-95-2262BOARD OF DIRECTORS OF 175 EAST DELAWARE )  Appeal from thePLACE HOMEOWNERS ASSOCIATION,           )  Circuit Court of                                        )  Cook County.     Plaintiff-Appellant,               )                                        )     v.                                 )                                         )JORGE HINOJOSA, DONNA HINOJOSA,         )  INDEPENDENCE ONE MORTGAGE CORPORATION,  )  NANCY LEE CARLSON, and BENJAMIN TESSLER,)  Honorable                                        )  Michael B. Getty,     Defendants-Appellees.              )  Judge Presiding.     JUSTICE RAKOWSKI delivered the opinion of the court:     Plaintiff, board of directors of 175 East Delaware PlaceHomeowners Association (the Board), filed suit against defendants,Nancy Lee Carlson and Benjamin Tessler, Jorge and Donna Hinojosa,and Independence One Mortgage Corporation, seeking to foreclose ona statutory lien under the Condominium Property Act (the Act) (765ILCS 605/9(h) (West 1994)).  The trial court dismissed plaintiff'scomplaint.  Plaintiff appeals, contending that the trial courterred in finding the Board's no-dog rule unreasonable.  For thereasons that follow, we reverse.                                   FACTS     175 East Delaware Place was organized as a condominium in 1973by the recording of a declaration and bylaws.  The propertyincludes floors 45 through 92 of the John Hancock building andcontains 705 condominium units.  The declaration and bylaws weresilent on the issue of pet ownership in the building.  In 1976, theBoard adopted a rule allowing owners to have pets, including dogs,only with the permission of the Board.  On January 21, 1980, duringa regular board meeting, the Board adopted a rule barring unitowners from bringing additional dogs onto the premises.  In Octoberof 1985, defendants Nancy Lee Carlson and Benjamin Tesslerpurchased a unit in the building.  At this time, they signed a petagreement acknowledging the no-dog rule.  In February of 1993,while leasing out another one of their units, they signed the sameagreement again.  In March of 1993, the no-dog rule was reincludedin the Board's rules and regulations.     In June of 1993, defendants Carlson and Tessler acquired adog.  This same month, a group of owners brought suit against theBoard challenging the no-dog rule.  Rodgers v. Board of Directorsof 175 East Delaware Place Homeowners Ass'n, No. 93 CH 5602.  Thissuit was eventually abandoned and is not part of this appeal.  InSeptember of 1993, defendants Carlson and Tessler received noticeof a hearing for their violation of the no-dog rule.  The hearingwas held on November 30, 1993, and the committee recommended to theBoard that Carlson and Tessler be ordered to remove the dog within30 days.  If the dog remained on the premises after 30 days,defendants Carlson and Tessler should be assessed a fine of $100per day for each day the dog remained.  The Board adopted thecommittee's recommendation and on January 23, 1994, began assessingfines on defendants Carlson and Tessler.  On April 20, 1994, afterCarlson and Tessler failed to pay the fines, the Board recorded anotice and claim of statutory lien.     In August of 1994, defendants Carlson and Tessler sold theunit to defendants Jorge and Donna Hinojosa subject to the lien. In November of 1994, the Board filed the instant action seeking toforeclose on the lien.  Defendants moved to dismiss the suitpursuant to section 2-619(a)(9) of the Code of Civil Procedure (735ILCS 5/2-619(a)(9) (West 1994)), claiming the Board had noauthority to adopt the no-dog rule because the rule conflicted withthe declaration and bylaws.  The trial court ruled that the Boardhad the power to promulgate the rule but held that the rule wasunreasonable.                                   ANALYSIS                           A.  LEGAL BACKGROUND     Condominiums are creatures of statute and, thus, any actiontaken on behalf of the condominium must be authorized by statute. "When a controversy regarding the rights of a condominium unitowner in a condominium arises, we must examine any relevantprovisions in the Act and the Declaration or bylaws and construethem as a whole."  Carney v. Donley, 261 Ill. App. 3d 1002, 1008(1994).     A condominium is an interest in real estate created by statutethat gives each owner an interest in an individual unit as well asan undivided interest in common elements.  Administration andoperation of the condominium are vested in the condominiumassociation, which is comprised of all unit owners.  Theadministration is exercised through the board of directors, whichis elected by the owners.  In addition to the Act, the operationand administration of the condominium are governed by threeprincipal documents.  These are the declaration, bylaws, and boardrules and regulations.  The declaration and bylaws form the basicframework of the administration, and the day-to-day operations aremanaged by board rules and regulations.     A condominium comes into being by the recording of adeclaration.  The declaration is prepared and recorded by eitherthe developer or association.  The Act defines the declaration asthe "instrument by which the property is submitted to theprovisions of [the] Act."  765 ILCS 605/2(a) (West 1994).  Itsprimary function is to provide a constitution for the condominium--to guide the condominium development throughout the years.  Thedeclaration contains the property's legal description, defines theunits and common elements, provides the percentage of ownershipinterests, establishes the rights and obligations of owners, andcontains restrictions on the use of the property.  R. Otto,Illinois Act in Condominium Titles, in Illinois Condominium Law �1.15, at 1-27 (Ill. Inst. for Cont. Legal Educ. 1994).  Allrestrictions contained in the declaration are covenants that runwith the land and bind each subsequent owner.  They are given astrong presumption of validity.  M. Kurtzon, Representing theCondominium Association, in Illinois Condominium Law � 10.19, at10-17 (Ill. Inst. for Cont. Legal Educ. 1994).  Section 4 of theAct details what elements must be contained in the declaration. Paragraph (i) states: "Such other lawful provisions notinconsistent with the provisions of this Act as the owner or ownersmay deem desirable in order to promote and preserve the cooperativeaspect of ownership of the property and to facilitate the properadministration thereof."  765 ILCS 605/4(i) (West 1994).     The second document is the bylaws, which deal withadministration and procedural matters concerning the property. Bylaws may be embodied in the declaration or be a separatedocument.  In either case, the bylaws must be recorded with thedeclaration.  765 ILCS 605/17(a) (West 1994).  Should the bylawsconflict with the declaration, the declaration prevails.  Section18 of the Act sets forth certain provisions that shall be includedin the bylaws.  Relevant to the issue before us is paragraph (k),which states: "[R]estrictions on and requirements respecting theuse and maintenance of the units and the use of the commonelements, not set forth in the declaration, as are designed toprevent unreasonable interference with the use of their respectiveunits and of the common elements by the several unit owners."  765ILCS 605/18(k) (West 1994).     The third item governing condominium conduct is the boardrules and regulations.  Section 18.4 of the Act deals with powersand duties of the board and provides that the board may:          "[A]dopt and amend rules and regulations          covering the details of the operation and use          of the property, after a meeting of the unit          owners called for the specific purpose of          discussing the proposed rules and regulations."           765 ILCS 605/18.4(h) (West 1994).Under this rule, "a board of managers may not take any action thatis beyond the authority granted it under the condominiuminstruments and the Condominium Property Act."  765 ILCS 605/18.4,Historical & Practice Notes, at 129 (West 1993).  The board shallexercise for the association all powers, duties, and authorityvested in the association by law or the condominium documents.  Itgenerally has broad powers and its rules govern the requirements ofday-to-day living in the association.  Board rules must beobjective, evenhanded, nondiscriminatory, and applied uniformly. See J. Shifrin, Cooperative, Condominium, and Homeowners'Association Litigation, in Real Estate Litigation �11.20, at 11-17(Ill. Inst. for Cont. Legal Educ. 1994).           B.  POWER OF THE BOARD TO PROMULGATE THE NO-DOG RULE     As noted, pursuant to section 18.4 the Board has the power toadopt rules and regulations.  Section 18(k) does discussrestrictions that shall be included in the bylaws.  However, thisprovision merely gives the association the authority to includerestrictions in the condominium instruments that will clothe therestrictions with a strong presumption of validity and make themless susceptible to attack.  The provision does not state that if arestriction is not contained in the bylaws it will beunenforceable.  We thus conclude that the Board's no-dog rule isnot in conflict the Act.     The 175 East Delaware Place declaration and bylaws do not makeany reference to pet ownership or dogs, in particular.  As to theBoard's powers, the declaration provides:          "The Board, may adopt such reasonable rules and          regulations as it may deem advisable for the          maintenance, conservation and beautification of          the Property, and for the health, comfort,          safety and general welfare of the Owners and          occupants of the Property.  Written notice of          such rules and regulations shall be given to          all Owners and Occupants and the entire          Property shall at all times be maintained          subject to such rules and regulations."The declaration clearly gives the Board authority to promulgaterules regarding use of and restrictions on the use of units. Because the Board is authorized to promulgate reasonable rules forthe general welfare of the owners and the declaration is silent onthe issue of dog ownership, the instant rule does not conflict witheither the declaration or the bylaws.     Courts that have addressed the issue have held that dogs maybe prohibited or restricted by provisions in the declaration orbylaws.  See Nahrstedt v. Lakeside Village Condominium Ass'n, 8Cal. 4th 361, 878 P.2d 1275, 33 Cal. Rptr. 2d 63 (1994)(restriction in recorded declaration barring all pets except fishand birds enforceable unless unreasonable); Chateau Village NorthCondominium Ass'n v. Jordan, 643 P.2d 791 (Colo. App. 1982) (rulebarring all pets appended to bylaws and recorded enforceable);Parkway Gardens Condominium Ass'n v. Kinser, 536 So. 2d 1076 (Fla.App. 1988) (board rule barring pets unenforceable becausedeclaration allowed them); Zeskind v. Jockey Club CondominiumApartments, Unit II, Inc., 468 So. 2d 1021 (Fla. App. 1985) (no-petrule in declaration enforceable); Wilshire Condominium Ass'n v.Kohlbrand, 368 So. 2d 629 (Fla. App. 1979) (restriction indeclaration barring replacement of lap dogs enforceable); Johnsonv. Keith, 368 Mass. 316, 331 N.E.2d 879 (1975) (board rule barringall pets unenforceable; rule must be included in bylaws); Noble v.Murphy, 34 Mass. App. 452, 612 N.E.2d 266 (1993) (restrictionbarring all pets incorporated in original recorded documentsenforceable); but see Dulaney Towers Maintenance Corp. v. O'Brey,46 Md. App. 464, 418 A.2d 1233 (1980) (board rule limiting numberof pets enforceable).  The issue before us, however, is whether theBoard may promulgate a rule restricting dog ownership.  This issuehas not been addressed in Illinois.     Apple II Condominium Ass'n v. Worth Bank & Trust Co., 277 Ill.App. 3d 345 (1995), addresses use restrictions under the Act.  InApple II, we set forth standards for evaluating such restrictionsand adopted the analysis set forth in Hidden Harbour Estates, Inc.v. Basso, 393 So. 2d 637 (Fla. App. 1981).  We differentiated userestrictions that are contained in the declaration or bylaws fromthose promulgated by board rule.  The restrictions in the firstcategory "are clothed in a very strong presumption of validity andwill not be invalidated absent a showing that they are whollyarbitrary in their application, in violation of public policy, orthat they abrogate some fundamental constitutional right.  ***'[R]easonableness' is not the appropriate test for suchrestrictions."  Apple II, 277 Ill. App. 3d at 250-51.  However,when the board promulgates a rule restricting the use of property,the second category, "the board must affirmatively show the use itwishes to prohibit or restrict is 'antagonistic to the legitimateobjectives of the condominium association.' "  Apple II, 277 Ill.App. 3d at 351, quoting Basso, 393 So. 2d at 640.  Thus, "[w]hensuch a rule [use restriction] is adopted by the board alone orrequires the board to exercise discretion, we will scrutinize therestriction and uphold it only if it is affirmatively shown to bereasonable in its purpose and application."  Apple II, 277 Ill.App. 3d at 352.     Based on the above, we conclude that the Board had the powerto promulgate a reasonable no-dog rule.                        C.  REASONABLENESS OF RULE     Because the rule was promulgated by the Board, it is notclothed with a strong presumption of validity.  Thus, we mustcarefully scrutinize the rule to determine if it is reasonable inits purpose and application.  Because the facts are not in dispute,the issue is one of law.     In Dulaney Towers Maintenance Corp. v. O'Brey, 46 Md. App.464, 418 A.2d 1233 (1980), the court stated:          "The rationale for allowing the placing of          restrictions in, or the barring of pets by way          of, house rules is based on potentially          offensive odors, noise, possible health          hazards, clean-up and maintenance problems, and          the fact that pets can and do defile hallways,          elevators, and other common areas."  Dulaney          Towers Maintenance, 46 Md. App. at 466, 418          A.2d at 1235.     The above factors, in conjunction with the specific facts ofthis case, lead us to conclude the Board's no-dog rule is areasonable exercise of the Board's rule-making power.  The JohnHancock building is located in a very urban and densely populatedarea of the city where parks, grass, and other recreational areasfor dogs are scarce.  The 705 residences are located on the 45ththrough 92nd floors.  In order to take a dog out, one must accesselevators and descend anywhere from 45 to 92 floors.     The rule was adopted to prevent possible injury or harm.  Theoriginal purpose for promulgating the rule was due to an incidentin which one dog killed another dog in the building.  The Board hadtried less restrictive measures to regulate dogs in the past. However, these measures did not cure or alleviate what the Boardreasonably perceived to be potential and real problems.  It shouldalso be noted that when the no-dog rule was adopted, owners wereallowed to retain existing dogs.  The rule only prohibitedadditional and/or replacement dogs.     Because the Board applied the rule to all owners and thepurpose for the rule was rational, we conclude that the rule isreasonable under the specific facts of this case.                                CONCLUSION     Based on the foregoing, we reverse the decision of the circuitcourt of Cook County and remand for further proceedings.     Reversed and remanded.     McNAMARA and SOUTH*, JJ., concur.*Justice South has replaced Justice Egan on the panel.