Opinion
No. 86-1657.
October 28, 1986. Rehearing Denied December 9, 1986.
Appeal from the Circuit Court, Dade County, Herbert M. Klein, J.
Myers, Kenin, Levinson Richards, Kopelowitz, Atlas, Pearlman Trop and Robin Corwin Campbell and Jan Atlas, Fort Lauderdale, for appellant.
Taylor, Brion, Buker Greene and Arnaldo Velez, Miami, for appellees.
Before BARKDULL, BASKIN and FERGUSON, JJ.
Upon review of the record, we hold that the trial court impermissibly varied the terms of the parties' lease when it ruled that the proposed construction by appellees of two restaurants in the mall parking area was reasonable and did not materially diminish parking available to appellant. See Walgreen Co. v. American National Bank Trust Co., 4 Ill. App.3d 549, 281 N.E.2d 462 (1972); Food Fair Stores, Inc. v. Jackson Heights Shopping Center, Inc., 55 Misc.2d 205, 284 N.Y.S.2d 814, aff'd, 28 A.D.2d 1207, 285 N.Y.S.2d 1009 (1967), appeal denied, 21 N.Y.2d 645, 236 N.E.2d 863, 289 N.Y.S.2d 1026 (1968); Camichos v. Diana Stores Corp., 157 Fla. 349, 25 So.2d 864 (1946). We therefore reverse the Final Declaratory Decree and Order for Temporary Injunction and the Supplementary Order Approving Plans of the Defendants and direct the trial court to enjoin the proposed construction. See Madigan Brothers, Inc. v. Melrose Shopping Center Co., 123 Ill. App.3d 851, 79 Ill.Dec. 270, 463 N.E.2d 824 (1984).
Paragraph 11 of the amendment to the parties' lease expressly provides that appellees " shall not construct any other buildings or improvements in the Shopping Center which would in any way affect the access or visibility of the demised premises and the signs on the fascade [sic] of said demised premises. . . ." (Emphasis supplied.)
Reversed and remanded with directions consistent with this opinion.