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These consolidated appeals involve disputes between severalhomeowners in a residential community and those who claim to act onbehalf of all the homeowners in the community. Plaintiffs, HaroldE. Scott, Peter G. Spelson, and Timothy M. Mlsna, live in YorkWoods in Oak Brook. Defendant York Woods Community Association(the Association) asserts that it is the duly formed homeowners'association for York Woods. The individual defendants belong tothe Association's board of governors (the Board). York Woodsoriginated from a "Declaration of Protective Covenants" (theDeclaration) recorded in 1962. The original York Woods CommunityAssociation (the Old Association) was incorporated in 1963 but wasdissolved in 1988.

Plaintiffs Scott and Spelson appeal a judgment declaring thatthe Association is the legitimate successor to the Old Association. Plaintiff and counterdefendant Mlsna appeals a judgment declaringthat the Association is the legitimate successor to the OldAssociation and striking down the Declaration's restrictions on theamendment process. The court also invalidated several amendmentsto the Declaration (the 1989 covenants), but that ruling is not atissue here. On appeal, plaintiffs have filed a single briefasserting that (1) the Association was not validly incorporatedunder the General Not For Profit Corporation Act of 1986 (the Act)(805 ILCS 105/101.01 et seq. (West 1996)) and thus did not inheritthe Old Association's powers; and (2) the Declaration's"restrictive windows" for amendments are valid. We agree withplaintiffs, and we reverse the judgments and enter judgments forplaintiffs.

To frame the issues, we must recount some of the checkeredhistory of the York Woods community. On October 5, 1962, a privatedeveloper recorded the Declaration. Several sections of thatdocument are pertinent here. Article VI specifies the organizationand powers of the homeowners' association. It reads in part:

"1. Creation and Purposes

There shall be formed an Illinois not-for-profitcorporation to be known as the York Woods CommunityAssociation *** whose purposes shall be to insure highstandards of maintenance and operation of all property inYork Woods reserved by the Declarant for the common useof all residents and owners of property therein ***."

Article VI elsewhere states that every record owner of property inthe community shall become a member of the homeowners' associationand shall have one vote on all matters submitted to a vote by theassociation. Paragraph 7 of article VI provides that article VImay be amended at any time by the written consent of two-thirds ofthe members of the homeowners' association.

Article VII sets out the procedure for amending the covenantsin the Declaration. It provides in pertinent part:

"1. Each of the Covenants set forth in this Declarationshall continue and be binding as set forth in paragraph 2 ofthis Article VII for an initial period of 30 years from thedate of October 4th 1962, and thereafter for successiveperiods of 25 years each.

* * *

3. The record owners in fee simple of the residentiallots in York Woods may revoke, modify, amend or supplement inwhole or in part any or all of the Covenants and conditionscontained in this Declaration and may release from any part orall of said Covenants all or any part of the real propertysubject thereto, but only at the following times and in thefollowing manner:

a. Any such change or changes may be made effective atany time within ten years from the date of recording of thisDeclaration if the record owners in fee simple of at leastthree-fourths of said lots consent thereto;

b. Any such change or changes may be made at the end ofsaid initial 30 year period or any such successive 25 yearperiod if the record owners in fee simple of at least two-thirds of said lots consent thereto at least five years priorto the end of any such period;

c. Any such consents shall be effective only if expressedin a written instrument or instruments executed andacknowledged by each of the consenting owners and recorded inthe Office of the Recorder of Deeds of Du Page County,Illinois; provided, however, that Article VI hereof may be amended atany time in the manner therein set forth." (Emphasis inoriginal.)

The Old Association was duly incorporated in 1963 and functionedaccording to the Declaration. However, on August 1, 1988, theIllinois Secretary of State's office dissolved the Old Association,apparently for neglecting to timely file an annual report. Theparties agree that nobody from York Woods intended to cause thedissolution of the Old Association. Indeed, no homeowner, officer,or Board member even knew about the dissolution until 1997, whenattorney Walter O'Brien, who had just started to work for thehomeowners' group, came across records of the dissolution.

Between the time the Old Association was dissolved and theYork Woods community learned of the dissolution--approximately nineyears--business continued as before. The Old Association was nolonger incorporated, but, as none of its members knew that, theydid not alter their business practices. Annual meetings took placeconsistently, as did elections of officers and Board members.

Shortly after O'Brien discovered that the Old Association hadbeen dissolved, he told Joseph Lizzadro and Stewart Ward, whoserved as officers and Board members of what they had heretoforebelieved was the Old Association. Lizzadro and Ward directedO'Brien to file articles of incorporation. On August 20, 1997,O'Brien did so. On August 28, 1997, the articles were recorded.

On January 15, 1998, Mlsna filed his complaint. At thispoint, the complaint challenged only the 1989 covenants and somerecently proposed amendments, alleging that the 1989 covenants werenot approved in accordance with article VII of the Declaration andthat the proposed amendments would also violate article VII. The newer amendments were never adopted and are not at issue on appeal.

On January 20, 1998, at an annual meeting, Lizzadro, Ward, andO'Brien disclosed that the Association had been incorporated. Theyalso told the meeting that the homeowners would need to decidewhether to approve the incorporation. The meeting was continued toFebruary. When the vote on the new incorporation was taken, 113homeowners voted "yes," 66 voted "no," 5 abstained, and 74 did notattend the meeting or return ballots.

On July 15, 1999, the Association filed an amendedcounterclaim against Mlsna. Count I of the counterclaim sought adeclaration that the Association was properly incorporated andsucceeded the Old Association's powers. Count I relied partly onarticle VI, paragraph 1, of the Declaration, which states that"There shall be formed an Illinois not-for-profit corporation to beknown as the York Woods Community Association." (Emphasis added.) The Association alleged that the Declaration required the creationof the Association and that, in any event, the Association had beenduly incorporated. Count II of the counterclaim sought adeclaratory judgment that article VII's restrictive windows foramendments (and identical restrictions in the 1989 covenants) werevoid as unreasonable burdens on property.

On July 15, 1999, Mlsna filed an "amendment" to his complaint. As later amended, the amendment asked the court to declare that theAssociation was not a valid nonprofit corporation and could notsucceed to the powers of the Old Association. Mlsna's amendmentasserted that, after the Old Association was dissolved, it could doonly what it needed to wind up its affairs, which did not includeincorporating the Association. The amendment also alleged that theindividual defendants had been acting illegally as the Boarddespite long having had notice that they could not properly do so.

The Association moved for summary judgment on the issue ofwhether it had the authority to act on behalf of the homeowners. Emphasizing that the dissolution of the Old Association wasunintended and resulted from a technical oversight, the Associationalso noted that the Declaration required the York Woods homeownersto form a nonprofit corporation to carry out the duties of thehomeowners' association. According to the Association, thehomeowners had acted for nine years as a proper association, albeitan unincorporated one, and merely "reincorporated." Also, theAssociation invoked section 112.16 of the Act (805 ILCS 105/112.16(West 1996)), which allows a corporation undergoing dissolution totransfer assets to a newly formed corporation.

Mlsna responded that the Association was a new corporation,not a reinstatement or "reincorporation" of the Old Association. Mlsna noted that reinstatement requires filing an applicationwithin five years of the dissolution (see 805 ILCS 105/112.45 (West1996)) and that nobody had done so here. Also, Mlsna contended,the Association could not rely on section 112.16 because the OldAssociation never adopted a plan to transfer its assets to a newentity (see 805 ILCS 105/112.17 (West 1996)).

The trial court ruled that the Association properly succeededthe Old Association and granted partial summary judgment in favorof the Association. Mlsna then answered the amended counterclaim. On June 7, 2000, Scott and Spelson filed their complaint, whichalleged that the Association was not authorized to act on behalf ofthe homeowners because it had not been validly incorporated. Scottand Spelson's complaint relied on section 102.35(a) of the Act (805ILCS 105/102.35(a) (West 1996)), providing:

"When an unincorporated association or society, organizedfor any of the purposes for which a corporation could beformed under this Act, authorizes the incorporation of theassociation or society by the same procedure and affirmativevote of its voting members or delegates as its constitution,bylaws, or other fundamental agreement requires for anamendment to its fundamental agreement ***, then following thefiling of articles of incorporation under Section 102.10setting forth those facts and that the required vote has beenobtained and upon the issuance of a certificate ofincorporation, the association or society shall become acorporation and the members of the association or societyshall become members of the corporation in accordance withprovisions in the articles to that effect." (Emphasis added.) 805 ILCS 105/102.35(a) (West 1996).

Scott and Spelson's complaint maintained that, after the OldAssociation was dissolved, the now unincorporated homeowners'association did not get the new Association ratified by theprocedure and affirmative vote that the Declaration required foramendments. Specifically, the Declaration could not be amendedwithout a two-thirds vote of all the owners and certain formalitiessuch as notarization and recording. Yet, in 1998, only 113homeowners out of 258 in all voted to approve the incorporation ofthe Association. Scott and Spelson prayed for a declaration thatthe Association could not act on their behalf and that none of itsacts had any effect.

Scott and Spelson then moved for summary judgment. Again,they argued that the Association had not been incorporated by therequired vote. They also claimed that the Association was not avalid reinstatement of the Old Association because it was notincorporated within five years after the Old Association wasdissolved. See 805 ILCS 105/112.45(a) (West 1996).

The Association filed a response and a cross-motion forsummary judgment. Essentially, the Association defended itslegitimacy on the same grounds it had used against Mlsna, notingthat the Declaration required all York Woods homeowners to belongto a nonprofit corporate homeowners' association. The Associationalso observed that until 1997 no one had challenged the Board'sauthority to act as before. According to the Association, thehomeowners had the right to "reincorporate" and, in any event, theyhad "reincorporated" after a proper vote.

In the Scott action, Judge Byrne granted summary judgment infavor of the Association and held that the Association properlysucceeded to the powers of the Old Association. The court reasonedthat, as the Board, the officers, and the homeowners consistentlyconducted "business as usual" between 1988 and 1997, theincorporation of the Association, which the Declaration required,was a "mere formality" and did not require two-thirds approval. The court added that section 102.35(a) of the Act did not requirea two-thirds vote for incorporation because article VII of theDeclaration (the "fundamental agreement") spoke only to the voteneeded for amendments, not that needed for "reincorporation."

In the Mlsna action, Judge Wheaton conducted a bench trial. Most of the evidence that the parties presented is not pertinent tothis appeal; what is pertinent has been set out heretofore. Afterthe trial, the court granted the Association's counterclaim,holding that article VII's "window for amendment" was anunreasonable restraint on alienation. The judge explained that shehad not heard "any explanation for this long period *** [25 to 30years] between amendments." Thus, the Association's members werefree to amend the Declaration at any time as long as they followedthe valid rules for executing and acknowledging amendments. Thejudgment also invalidated the 1989 covenants.

Scott and Spelson timely appealed. The trial court in theMlsna action modified its judgment to make the invalidation of the1989 covenants operate prospectively, and Mlsna timely appealed. We have consolidated the appeals. Plaintiffs have filed one briefon appeal, and, in discussing the issues they raise, we shall notdistinguish among plaintiffs unless the context requires.

On appeal, plaintiffs argue first that the trial court erredas a matter of law when it held that the Association has the powerto act on behalf of them or any other York Woods homeowners. Weagree with plaintiffs that the Association is not a valid not-for-profit corporation that can succeed to the powers of the OldAssociation. Therefore, we reverse the judgments of the trialcourts on this issue and enter judgments for plaintiffs.

We note that, in the Scott action, the trial court decided the"reincorporation" issue on cross-motions for summary judgment (see735 ILCS 5/2--1005(c) (West 2000)) and, in the Mlsna action, thecourt decided the same issue after a trial. This proceduraldifference has no ultimate significance. In either appeal, thepertinent facts are undisputed and we conclude that the only soundconclusion is that the "reincorporation" was invalid. Thus, allplaintiffs are entitled to judgment as a matter of law on thisissue. See generally Petrovich v. Share Health Plan of Illinois,Inc., 188 Ill. 2d 17, 30-31 (1999) (summary judgment is proper whenmaterial facts and the reasonable inferences to draw from thosefacts are not in dispute); Maple v. Gustafson, 151 Ill. 2d 445, 453(1992) (judgment n.o.v. is proper if, and only if, the evidence,viewed most favorably to the prevailing party, so overwhelminglyfavors the movant that no contrary verdict based on that evidencecould ever stand).

We agree with plaintiffs that the incorporation of theAssociation was ineffective because the homeowners, acting as anunincorporated association, did not follow section 102.35(a) of theAct. Statutory language must receive its plain meaning. Advinculav. United Blood Services, 176 Ill. 2d 1, 17 (1996). Section102.35(a) plainly tells an unincorporated association how to becomea nonprofit corporation. First, the association must obtainauthorization "by the same procedure and affirmative vote of itsvoting members or delegates as its *** fundamental agreementrequires for an amendment to [the association's] fundamentalagreement." 805 ILCS 105/102.35(a) (West 1996). Second, theassociation must file articles of incorporation that reflect thatthe required vote "has been obtained." (Emphasis added.) 805 ILCS105/102.35(a) (West 1996). Here, the incorporators took neitherstep.

The parties recognize that the Declaration is the "fundamentalagreement" that governed the homeowners' rights and duties evenafter the Old Association was dissolved. According to theDeclaration, amendments must have the written approval of two-thirds of the homeowners. Thus, under section 102.35(a), two-thirds of the homeowners had to approve the incorporation of theAssociation. Simply said, 113 is not two-thirds of 258. Furthermore, the articles of incorporation did not attest that theneeded vote had already been obtained. This omission isunderstandable because the articles were filed before any vote wastaken, but section 102.35(a) plainly bars such precipitate action.

The Association was never validly incorporated because theneeded homeowners' vote was "too little and too late." We cannotagree with the trial court in Scott that the "reincorporation" ofthe Association was a mere "formality." Were that so, there wouldbe no reason for the Act to specify the procedures needed toreinstate a dissolved corporation--procedures that were neverfollowed here. The homeowners may not now reinstate the OldAssociation, as too much time has passed. From all the recordshows, a new homeowners' association has yet to be approved andincorporated according to law. The Association remains a nullity.

The Association (or those individuals who assert itsexistence) attempts in several ways to avoid the plain commands ofthe Act and the Declaration. First, the Association observes thatthe Declaration requires the York Woods homeowners to create andjoin a nonprofit corporation that shall act as a homeowners'association. This is true but does not explain how the privatecompany that recorded the Declaration could have excused homeownersfrom complying with state law. The Declaration's requirement thatan incorporated homeowners' association be formed does not allowthat association to be formed illegally.

Second, the Association appears to claim that, because itsmembers continued to function as a homeowners' association evenafter the Old Association was dissolved, the formal incorporationof the Association was proper. The factual premise of thisargument is correct, but the conclusion does not follow. The issuebefore us is not whether everything or anything the homeowners didcollectively between 1988 and 1997 was unlawful but rather whetherthe Association was properly formed. It was not. Moreover, theAssociation seems to suggest that it should be excused fromcomplying with the Act solely because its members took so long tolearn that the Old Association had been dissolved. We decline toabrogate the Act merely because people who were subject to it were slow to comply with it.

Third, the Association invokes section 112.16(c) of the Act,under which certain assets held by a corporation that is undergoinga dissolution shall be transferred or conveyed to "one or moredomestic or foreign corporations, societies or organizationsengaged in activities substantially similar to those of thedissolving corporation, pursuant to a plan of distribution adoptedas provided in this Act." 805 ILCS 105/112.16(c) (West 1996)). Mlsna has asserted that the Old Association has not adopted anysuch plan, and the record does nothing to undercut that assertion. Even assuming that the Old Association fulfilled section 112.16(c),we still do not see how that could have legitimized the unlawfulincorporation of the Association.

We conclude that, as a matter of law, the Association is nota valid corporation under the Act. Therefore, we reverse thejudgment in Scott and the first part of the judgment in Mlsna andenter judgments for plaintiffs. We need not settle exactly whatthe homeowners may do as an unincorporated association. However,the Declaration still gives each homeowner the right to enforce theDeclaration's covenants. Also, because the Declaration requires anincorporated homeowners' association, an unincorporated homeowners'association may exist only as long as is reasonably needed toincorporate a new association lawfully.

We turn now to the second issue on appeal. Plaintiffs arguethat the trial court erred in invalidating article VII'srestrictive windows for amendments. Plaintiffs maintain that theDeclaration's restrictions on amendments are entitled to apresumption of validity that the Association has not rebutted. Weagree.

We have not found a published Illinois case that decided thevalidity of a declaration's restrictions on amendments. However,the law is settled that a declaration's restrictions on the use ofproperty carry a strong presumption of validity and will be upheldunless the party challenging them proves that they are whollyarbitrary in their application, violate public policy, or abrogatesome fundamental constitutional right. Board of Directors of 175East Delaware Place Homeowners Ass'n v. Hinojosa, 287 Ill. App. 3d886, 892 (1997); Apple II Condominium Ass'n v. Worth Bank & TrustCo., 277 Ill. App. 3d 345, 350-51 (1995). As we explain, we thinkthat article VII's limitations on how often the Declaration may beamended deserve no less strong of a presumption of validity.

Article VII does not actually restrict how homeowners may usetheir properties. Instead, it limits only how often the homeownersacting collectively may change the use restrictions that theDeclaration sets out elsewhere. An amendment to the restrictivecovenants may as easily lessen as increase the homeowners' freedomto use their own property. Also, making the restrictive covenantssemipermanent may promote rather than restrain the free alienationof property by providing stability and predictability toprospective owners. Thus, if use restrictions are presumed valid,amendment restrictions deserve the same presumption.

We turn to the restrictions at issue. As pertinent here,article VII provides, in effect, that (1) the Declaration'scovenants shall be binding until October 4, 1992; (2) thereafter,any amendment may take effect only at the end of one of a series of25-year intervals (i.e., October 4, 2017, October 4, 2042, and soon); and (3) any such amendment must be approved in writing by atwo-thirds vote at least five years before it actually takes effectat the end of the 25-year interval. The trial court in the Mlsnaaction ruled that these restrictions violated public policy becauseMlsna produced no evidence that they were necessary. Thisreasoning reversed the parties' burdens. The Association, whichbrought the challenge to the restrictions, had to overcome theirpresumption of validity. The Association failed to carry thisburden.

Although the amendment restrictions may strike some people asunwise, the Association never identified any statute or otherexpression of public policy that might bar them. We cannot fill inthe gaps left by the Association's failure to supply some coherentbasis to invalidate the restrictions. Furthermore, people whoconsider whether to join the York Woods community or remain theremake that decision knowing full well that the Declaration will beexceedingly difficult to change. Those who find that factunsettling have ample alternatives and may just decline theirmembership in the community. See Seven Bridges Courts Ass'n v.Seven Bridges Development, Inc., 306 Ill. App. 3d 697, 705 (1999). There is no reason to conclude that the restrictive windows areimpermissible.

The Association asserts that plaintiffs have not cited "anycase in which such severe amendment restrictions were challengedand upheld." However, the Association has identified no case inwhich such severe amendment restrictions were invalidated. Gale v.York Center Community Cooperative, Inc., 21 Ill. 2d 86 (1960), onwhich the Association relies, does state that restraints onalienation are disfavored unless they are reasonably designed tofurther accepted ends. Gale, 21 Ill. 2d at 91-92. However,article VII does not restrain alienation and, as we have explained,it carries at least as strong a presumption of validity as we wouldaccord the use restrictions in the Declaration. The other casesthe Association cites are also not on point.

The trial court erred in invalidating article VII's"restrictive windows." We reverse the trial court's grant of theAssociation's counterclaim, and we enter judgment for plaintiffMlsna on the counterclaim.

The judgment of the circuit court of Du Page County in caseNo. 2--00--1319 is reversed, and judgment is entered for plaintiffsScott and Spelson.

The judgment of the circuit court of Du Page County in caseNo. 2--01--0075 is reversed, and judgment is entered for plaintiffMlsna.

Judgments reversed.

GEIGER and CALLUM, JJ., concur.