HomeMy WebLinkAboutSuperior Court Decision - Decision - 0000 Quarry Hill RoadSTATE OF VERMONT
CHITTENDEN COUNTY, SS.
CUPOLA GOLF COURSE, INC., and
JOHN LARKIN,
Plaintiffs,
V.
JOHN A. DOOLEY, III and
SANDRA S. DOOLEY,
Defendants.
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CHITTENDEN SUPERIOR COURT
DOCKET NO. S0402-03 Cne
ORDER ON THE PARTIES' CROSS -MOTIONS FOR SUMMARY JUDGMENT
In this declaratory judgment action, Cupola and Larkin ("Developers') seek a determination
that the Dooleys ("Homeowners') cannot prevent development of multi -story buildings on
Developers' land based on a restrictive covenant in Homeowners' chain of title stating: "No
building higher than one story shall be erected on any land of Grantor lying easterly of the land
herein conveyed and lying in Green Mountain Park." This Court has previously granted partial
summary judgment for Homeowners on Developers' Count I, ruling that res judicata principles
did not preclude Homeowners' reliance on this covenant because the prior judgment was a
declaratory judgment which did not expressly address this covenant.
Homeowners have now filed a motion for partial summary judgment on Developers'
remaining claims: (1) that Homeowners wrongfully asserted that the covenant was not
extinguished by the prior litigation (Count 11); (2) that the covenant is unenforceable under the
Marketable Record Title Act (Count III); (3) that the covenant should not be enforced due to
changed circumstances (Count IV); and (4) that Homeowners should be precluded from relying
on the covenant based on waiver and equitable estoppel (Count V). Additionally, Developers
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have filed a cross -motion for partial summary judgment on their Marketable Record Title Act
claim (Count P.
The Court concludes that summaryjudgment on Counts II and V flows naturally from its
reasoning in the prior grant of partial summary on Count I: given the nature and purpose of a
declaratory judgment, Homeowners had no duty to raise (and Developers had no concomitant
right to rely on their failure to raise) any issue which was not necessary to resolve the immediate
dispute. Additionally, summary judgment for Homeowners is appropriate on the Marketable
Record Title Act claim because at the time Homeowners filed their notice of claim., forty years
had not passed since the first transfer of title in Cupola's chain of title after the restrictive
covenant was created. Lastly, the Court concludes that alleged changes in the character of the
area do not defeat the purpose of the covenant (i.e., to protect Homeowners' direct easterly view
of Mount Mansfield), and thus do not provide a basis for not enforcing the covenant.
Accordingly, Homeowners' motion for partial summary judgment is GRANTED, leaving only
the issue of the scope of the restrictive covenant in light of its language and purpose. It follows
that Developers' motion for partial summary judgment is DENIED.
Summary Judgment
Summary judgment is appropriate if there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. V.R.C.P. 56(c). In evaluating
whether a genuine issue of material fact exists, the court relies only on facts which are "clear,
undisputed, or unrefuted," and gives the non-moving party the benefit of all reasonable doubts
and inferences. Toys. Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990). When both parties
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have moved for summary judgment, "both parties are entitled to these benefits when the
opposing party's motion is being judged." Id.
I -
Background
Homeowners own property in a development called Green Mountain Park ("the
development"). Developers own property which was also part of the development as originally
planned. A set of restrictive covenants ("the Park covenants"), including one which restricted
the height of buildings to two stories, applied to properties in the development generally. In
addition, a deed in Homeowners' chain of title contained the covenant quoted above: "No
building higher than one story shall be erected on any'land of Grantor lying easterly of the land
herein conveyed and lying in [the development]"; and this covenant was incorporated by
reference in Homeowners' deed.
In 1978, a group of property owners in the development, including Homeowners, filed a
declaratory judgment against Cupola,' seeking a determination that the Park covenants were
applicable to Cupola's land. See Bingham v. Cupola Golf Course, C275-78 Cnc. More than ten
years later, judgment was entered in favor of Cupola. This judgment was the basis of
Developers' res judicata argument in Count I of this case, which the Court rejected in its Order
on the Parties' Cross -Motions for Partial Summary Judgment issued November 19, 2003, on the
grounds that the res judicata effects of a declaratory judgment are limited to those things
explicitly declared.
' Larkin bought part of Cupola's property in December 2002, and thus was not involved
in the earlier litigation.
The above -quoted restriction on buildings of more than one story was created by a 1956
deed from Roland and Evangeline Deslauriers to Borys and Frida Surawicz. After obtaining this
restrictive covenant, the Surawiczes built a home with many large picture windows taking
advantage of spectacular views of Mount Mansfield to the east. This home was subsequently
conveyed to Homeowners, pursuant to a deed which incorporated by reference this restrictive
covenant.
Since May 13,1964, Cupola has owned property which was also part of the development
as originally planned. Cupola also received its property from Roland and Evangeline
Deslauriers, who had received it in 1952 from Fiske. In December 2002, Larkin purchased a
portion of Cupola's property, on which he hopes to build multi -story condominiums. The
restrictive covenant which appeared in the Surawiczes's deed was not recorded or referenced in -
any document in the Cupola chain of title, until May 3, 2004, when Homeowners filed a notice of
claim.
In 1956, when the restrictive covenant was created, this area was primarily rural and
agricultural, and was just beginning to have residential development and become suburban. The
rural, agricultural feel is now gone, and the surrounding area is quite busy and full of commercial
activity.
Analysis
1. Counts 11 and V - Wrongful Assertion that the Covenant Was Not Extinguished by Earlier
Litigation, and Waiver and Estoppel Based on Previous Litigation
Although acknowledging the Court's prior ruling that enforcement of the covenant is not
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precluded by res judicata, Developers nonetheless contend that enforcement should be precluded
based on waiver and equitable estoppel. However, this contention ignores the Court's reasoning
in its prior order, in which it explained that the rule that res judicata is narrowly applied in the
declaratory judgment context is based on logic rather than a mere technicality: "The purpose of
most lawsuits is to resolve an overall dispute, and the interests of efficiency and repose are best
served if all aspects of the dispute can be addressed at the same time in the same proceeding.
Thus, the law encourages the parties to address all their claims at once by precluding them from.
litigating those claims later if they do not. The purpose of a declaratory judgment action, on the
other hand, is to avert an impending violation of rights before it happens. Thus, it works best if
the issues are limited to those that must be addressed to avert the impending violation; and the
system has no interest in encouraging parties to bring all possible related claims or penalizing
them for not doing so." Order at p. 4. This logic, and the resulting conclusion that a party has no
duty to raise related issues which are not necessary to resolution of the impending dispute,
applies equally to the equitable considerations underlying waiver and estoppel. Thus, no genuine
issues of material fact exist with respect to waiver and estoppel, and partial summary judgment
will be granted on Counts II and V.
2. Count lII - Marketable Record Title Act
Under the Vermont Marketable Record Title Act, 27 V.S.A. §§ 601-03, a person who can
trace his chain of title back to a transaction more than forty years earlier has marketable record
title to the property free and clear of any interests or claims which were created prior to that
transaction but not recorded or otherwise noticed or reflected in the deeds or other muniments of
the traced -back forty -year chain of title-2 The purpose of a marketable record title act is to
simplify and facilitate land transfers by limiting how far back a title searcher has to go; if the
searcher goes back to a title transfer more than forty years earlier without seeing any record of or
reference to liens, easements, restrictive covenants, etc., he or she should not have to go further.
See Roger D. Schwenke, Applying and Enforcing Institutional Controls in the Labyrinth of
Environmental Requirements —Do We Need More Than the Restatement of Servitudes to Turn
Brownfelds Green? 38 Real Prop. Prob. & Tr.J. 295, 334-35 (Summer 2003); Sue Ortman,
USLTA: Marketable Record Title Act — A New Title Theory and its Effect on Texas Law, 12 St.
Mary's L,J. 462, 464 (1980) (citing Vermont as one of approximately eighteen states which at
that time had enacted marketable title legislation "designed to provide a concept of title allowing
a title examiner to trace the title history for a limited number of years and be reasonably certain
of its security").
The pivotal question here is when the forty years began to run. Developers contend that
the period began to run in 1956 when the restrictive covenant was created. Thus, they reason,
since no notice of the restrictive covenant was recorded in their chain of title within forty years of
the creation of the covenant, it was extinguished. Homeowners, on the other hand, contend that
the forty years began with the May 13, 1964 transfer of the property to Cupola, and that since
they filed a Notice of Claim in Developers' chain of title before May 13, 2004, the covenant was
not extinguished.
Developers correctly point out that the forty -year period can include periods in which the
` Certain types of interests and claims are excepted from this rule, but none of the
exceptions are applicable here. See 27 V.S.A. § 604.
6.
property was owned by a person's predecessor(s) in interest, see 27 V.S.A. § 602(a)(2), so the
date on which the person received title is not necessarily when the forty -year period begins to
run. Nonetheless, the Court cannot accept that the pertinent point in time is he creation of the
covenant. Given the purpose of the Act, it would make no sense to have the forty -year period
begin to run from a transaction in a totally separate chain of title — which is what we would be
doing if we timed the forty years from the creation of this restrictive covenant as Developers
suggest. Nor would it make sense to go back to the 1952 transfer from Fiske to the Deslauriers,
because then the period would be running from a transaction which pre -dated the creation of the
covenant, and the Act extinguishes interests and claims which existed before the transaction from
which the forty -year period runs. C£ 27 V.S.A. § 603 (if unbroken chain of title for forty years is
established, person takes free and clear of any interests or claims "the existence of which depends
in whole or in part upon any act, transaction, event, or omission that occurred prior to such forty -
year period").
The only logical way to apply the Act's provisions is to begin the forty -year period with
the earliest transaction in the chain of title for the property in question after the covenant was
created. And in this case, that does happen to be the title transfer to Cupola on May 13, 1964.
Thus, Homeowners' filing of a Notice of Claim prior to May 13, 2004 was within forty years and
effectively prevented the extinguishment of the covenant, as a matter of law.
3. Count TV - Changed Circumstances in Neighborhood
"The changed conditions doctrine is simple and succinct: when conditions have so
changed since the making of the covenant that it is no longer possible to secure in substantial
measure the benefits originally contemplated, the covenant is unenforceable." Glen O.
Robinson, Explaining Contingent Rights: The Puzzle of "Obsolete" Covenants, 91 Colum. L.
Rev. 546, 546 (April 1991). Under this equitable doctrine, courts have declined to enforce
neighborhood or development -wide restrictive covenants where the nature of the neighborhood
or development has changed so dramatically in the intervening years that the value of the
covenants for the dominant estates has been substantially destroyed. See, e.g., El Di. Inc. v.
Town of BeLhanxBeach, 477 A.2d 1066,1069 (Del. 1984); Duffy v. Mollo, 400 A.2d 263, 266
(R.I. 1979); Young v. Cerone 487 A.2d 965, 969 (Pa. Super. Ct. 1985). See also Camelback Dei
Este Homeowners Ass'n v. Warner, 749 P. 2d 930, 934-35 (Ariz. Ct. App. 1988) (recognizing
doctrine but affirming trial court decision that commercial development along main street
bordering neighborhood was not enough to undermine purpose and benefit of covenant).
Developers' reliance on this doctrine in this context is misplaced, however, because of
the nature and purpose of this restrictive covenant. The cases in which changed circumstances
doctrine has been invoked involved neighborhood -wide covenants designed to preserve the
general character and feel of the neighborhood from an earlier time. Thus, when the general
character and feel of the neighborhood changed over time anyway, the benefit to the dominant
estates was necessarily lost, and the burden on the servient estate was unwarranted.
Here, on the other hand, we have a covenant specific to Homeowners' property, designed
to protect the property's view of Mount Mansfield rather than the general character and feel of
the neighborhood.' Cf. Lange v. Scofield 567 So.2d 1299, 1301-02 (Ala. 1990) (change of
3 Developers assert that the purpose of the covenant is a disputed. fact. Given that the
restriction is specific to the height of buildings in a particular direction, however, and that it was
obtained by purchasers of property prior to building a home with numerous picture windows and
neighborhood doctrine inapplicable where restrictive covenants in question applied to only one
or two lots and were not part of neighborhood development scheme). And while there may be a
dispute as to whether there are multi -story buildings in some parts of the lands previously held by
the Grantor of the covenant, there is no dispute that there are no multi -story buildings directly
east of Homeowners' property which currently interfere with their views of Mount Mansfield. It
follows that the particular purpose of the covenant can still be accomplished and the dominant
estate still benefits from it. Accordingly, the covenant is not unenforceable based on the doctrine
of changed circumstances.
4. Scone
This leaves only the scope of the covenant to be determined. Although this issue has not
been thoroughly briefed, the Court notes that the reference to land "lying easterly" of
Homeowners'. land, combined with the purpose of protecting Homeowners' view of Mount
Mansfield, certainly seems to leave open the possibility that the covenant allows multi -story
development on portions of Developers' property not lying directly east of Homeowners'
property, or on a direct line from Homeowners' windows to Mount Mansfield. Cf. Creed v.
Clo ston, 2004 VT 34, Para.17, 852 A.2d 577 (when doubt arises as to the extent of restrictive
covenants, the doubt should be resolved in favor of the free use of land).
With this guidance, hopefully the parties can resolve this case without further assistance
from the Court. If not, this issue will be heard at the time previously scheduled for the now
spectacular views, the Court concludes that a purpose of protecting the view is the only logical
inference that can be made.
unnecessary trial.
ORDERS
Homeowners' motion for partial summary judgment is GRANTED.
Developers' cross -motion for partial summary judgment is DENIED.
Dated at &A Vermont, this _�__ day of _14, 2004.
(_j ,� C
Alan W. Cheever
Presiding Judge
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DEC 14,2004 16:12 000-000-00000 1 Page 2
S'CATE OF VERMONT
CHITTENDEN COUNTY, SS.
CUPOLA GOLF COURSE, INC., and
JOHN LARKIN,
Plaintiffs,
V.
JOHN A. DOOLEY, III and
SANDRA S. DOOLEY,
Defendants.
DEC _ 8
pin N A i;;rA.qt.E-J
Ctt.rtK
CHITTENDEN SUPERIOR COURT
DOCKET NO. SO402-03 Cne
DECLARATORY JUDGMENT
Having previously declared the restrictive covenant at issue in this case enforceable, the
Court held a bench trial to address the scope and effect of the restrictive covenant. "the bench
trial, which included an on -site viewing, was held October 27, 2004.' Awed on the evidence and
the applicable law, the Court now makes the following findings of fact and conclusions of law,
and issues the following declaration regarding the scope and effect of the covenant:
Factual Background
Plaintiffs Cupola Golf Course, Inc., ("Cupola") and John Larkin ("Larkin")' own property
they want to develop in South 811rlington. Defendants John A. Dooley 111 and Sandra S. Dooley
' Plaintiffs submitted several exlubits with a cover letter following the bench trial and
on -site viewing, and Defendants have objected to the Court's consideration of any of these items
since they were not properly admitted as evidence. Defendants' objection is a valid one, and in
the absence of an agreement, the Court will not consider or rely on Plaintiffs' post -trial exhibits
and cover letter.
' Where appropriate to group them together, the Court may refer to Plaintiffs as
"Developers."
DEC 14,2004 16:12 000-000-00000 Page 3
("Homeowners") own a home nearby, overlooking the property to be developed.
Plaintiffs' and Defendants' chains of title trace back to a common grantor, Roland and
Evangeline DesLauriers. In 1952, the DesLauriers acquired a parcel of land from Fred C. Fiske
and created a subdivision named "Green Mountain Park Subdivision" ("GMPS"). From 1952
until 1966, the DesLauriers sold lots in GMPS, and each lot was subject to and benefitted by
subdivision -wide protective covenants. These protective covenants, dated on or about October 9,
1952, and recorded in Book 22, on Page 444 of the South Burlington land Records, included,
among ether things, a two-story height restriction on all lots in the subdivision.
On July 16, 1956, the DesLauriers conveyed Lot 5C and the southerly 25 feet of Lot 4C,
now known as 44 East "Terrace, to Rory.,; and Frida Surawicz, ("Surawicz Deed"). The; deed,
which is recorded in Book 44, Page 51 of the South Burlington Land Records, contains the
following covenant:
"No building higher than one story shall be erected on any land of Grantor lying
easterly of the land herein conveyed and lying in Green Mountain Park."
Although this covenant was written into and recorded with the Surawicz Deed, it was not
recorded or included in any document relating to the chain of title for any of the property retained
by the Desl.auriers and potentially burdened by it.
In 1966, }totand and F,vangeline DesLauriers ceased selling lots in the GMPS.
Prior to that time, on May 13, 1964, they had conveyed 27.5 acres to Cupola. The lands acquired
by Cupola in 1964 were part of the GMPS. Today, the Cupola property is bounded on the north
by the so-called Staples Plaza, to the east by Interstate 89, to the south by a residential
condominium complex and to the west by the Burlington Tennis Club and residences on fast
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DEC 14,2004 16:13 000-000-00000 1 Page 4
Terrace, including the residence at 44 East Terrace owned by the Homeowners. On December
20, 2002, Cupola sold two portions of the Cupola Property, consisting of approximately 10 acres,
to John Larkin.
The property originally conveyed to the Surawiczes is now the Homeowners' property.
The deed by which Homeowners acquired title states in pertinent part that:
a. Said lot is subject to certain Protective Covenants recorded in Book 22, on Page
444 of the said land records and to perpetual easement and right-of-way for a
sewer system, recorded in Book 85, Page 118 and Book 82, Page 169 of said land
records.
b. Said lot has the benefit of a covenant relating to the height of buildings to be
erected on land easterly of the premises herein conveyed contained in a Deed
recorded in book 44, on Page 51 of the said land records.
From the upper level of the I lomeowners' property there is a panoramic view of the
mountains rising in the distance, centering on Mount Mansfield directly to the east. Between
l lomeowners' property and the mountains is Developers' property, and then I-89 and other
properties. Homeowners' house captures the view with large picture windows looking out over
the view from the living and dining rooms, on the upper level of the house at the level of East
Terrace.
Any tall buildings would impact the Homeowners' view from their property. However,
the views arc now partially blocked by trees and vegetation and there is nothing in the covenant
to restrict Developers from completely blocking such views by planting trees and vegetation.
The GMPS Covenants — that is, the protective covenants for the benefit of all property
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DEC 14,2004 16:13 1 000-000-00000 1 Page 5
owners in the development referred to in Sub -section (a) above — were declared invalid in prior
litigation, Bingham v. Cupola Golf Course, C275-78Cvc. As this Court previously ruled in a
Summary Judgment Order dated March 11, 2004, however, the prior declaratory judgment did
not encompass the one-story restrictive covenant for the benefit of this one particular property
referred to in sub -section (b) above. And in another Summary Judgment Order dated September
7, 2004, the Court ruled that the one-story restriction continues in effect. Therefore,
Homeowners' one story covenant still encumbers portions of Developers' land.
The one story covenant's essential elements consist of the following:
on any land of Grantor... lying in Green Mountain Park
— lying easterly of the land herein conveyed
no building higher than one story shall be erected.
It is clear that all of Developers' potentially burdened land is land of the grantor lying in
what was Green Mountain Park subdivision. 17he meaning and effect of "easterly" and "higher
than one story" remain in dispute, however.
Is a determination of the scope of the restriction premature`!
As an initial matter, the Court will address Homeowners' contention that it is premature
to determine the meaning of the restrictive covenant. According to Homeowners, the pending
dispute warranting declaratory relief is over, because the only formal development proposal
currently on the table violates the covenant regardless of how the covenant is construed. Thus,
I lomeowners suggest, Developers must go back and start anew with a formalized new proposal,
and wait for the next dispute to develop.
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DEC 14,2004 16:13 000-000-00000 j Page 6
Declaratory relief is only appropriate if there is an actual and substantial controversy.
Williams Y. State, 156 Vt. 42, 60 (1990). "A mere abstract question or hypothetical threat" is not
enough. Id.
The Court would have to define dispute or controversy very narrowly to conclude that
this dispute or controversy has been resolved. Although the Court has determined that the
covenant is effective, questions remain regarding exactly which portions of Developers' land are
burdened by the covenant and what the exact effect of the covenant is. It is clear that 1.)evelopers
intend to develop their land, as they have the right to do. It is equally clear that Homeowners will
pursue whatever legitimate me ris they have to limit that process, as they have the right to do.
This is not a hypothetical threat, but a very real clash of legal interests. Thus, the Court has no
doubt that an actual and substantial controversy still exists, and that it will continue to exist until
a final court order specifically declares the rights of the parties with respect to exactly how this
covenant affects Developers' right to develop their land.
The purpose of the Declaratory Judgment Act is to afford relief from uncertainty and
insecurity with respect to rights, and it is to be liberally construed and administered to effectuate
that purpose. 12 V.S.A. § 4722. "When a declaratory decree will serve a useful purpose in
clarifying the Icdal relations of the parties or if it will terminate the uncertainty and insecurity of
the controversy, the court should render the relief prayed." Commercial Ins. Co. v. Papandrea,
121 Vt. 386, 392 (1960). This is an equitable proceeding, and it would be inequitable to
perpetuate the uncertainty and insecurity of Developers' position for lack of a formalized
development plan. The Court can clarify this situation, resolve this controversy, and prevent a
further clashing of rights by construing the restrictive covenant and establishing its scope at this
DEC 14,2004 16:13 ' 000-000-00000 Page 7
time; and it exercises its discretion under the Declaratory Judgment Act to do so.
Homeowners have also expressed concern that since Developers have not presented an
alternative development plan, the Court will be forced to consider the meaning of the covenant in
the abstract.. However, while Developers have not presented a formal alternative development
plan, they have, through their briefs, informally posited an alternative plan which would limit
development within an approximately 100' wide strip to buildings of one story and no more than
35' in height. This provides a sufficiently concrete proposal against which to construe the
covenant.
General Principles in Construing Restrictive Covenants
When the meaning of a restrictive covenant is clear and unambiguous, it must be given
effect according to its terms. See, e.g., Mann v. Levin, 2004 VI' 100, Para. 14; Creed v,
Ciogston, 2004 VT 34, Para. 13. But if the court determines as a matter of law that there is an
ambiguity (i.e., that the covenant is subject to more than one reasonable interpretation), the
yucstion of what the original parties to the covenant intended to prohibit is a question of fact to
be determined on all the evidence. Mann, 2004 VT 100 at Paras. 15 & 17. The dominant
concern is the intent of the original parties to the covenant at the time it was made: "The court
must `give effect to the; intention of the parties if it can be gathered from the language used when
interpreted in connection with, and in reference to, the subject matter and purpose sought to be
accomplished at the time the instrument was executed.' McDonough v. W.W. Snow Const. Co.,
Inc., 131 Vt. 436, 441 (1973)." Mann, 2004 VT 100 at Para. 17. See also Welch v. Barrows,
125 Vt. 500, 504 (1966) ("The intention of the parties, not the language used, is the dominating
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DEC 14,2004 16:14 1 000-000-00000 Page 8
factor and the circumstances existing at the time of the execution of the deed, the situation of the
parties and the subject matter are to be considered.").
In this case, the Court has found as a matter of law that the restrictive covenant is
ambiguous, both with respect to "easterly" and with respect to "no higher than one story,"
because these terms are subject to more than one reasonable interpretation. Moreover, neither
Homeowners nor i)evelopers have been able to present any direct evidence about the original
parties' intent when they executed this covenant back in 1956. Thus, it is up to the Court to
reason and infer, based on all the circumstances surrounding the 1956 transaction, what the
DesLauriers and the Surawiczes most probably intended.
One other rule of construction should be addressed here, particularly as it relates to the
intent of the original parties and the purpose of the covenant. The Vermont Supreme Court has
frequently stated that restrictions should not be extended by implication, and that when doubts
arise a_s to the extent of restrictive covenants, those doubts should be resolved in favor of the free
use of land. Creed, 2004 VT 34, Para.17; Fassler v. Okemo Mountain Inc., 148 Vt. 538, 542
(1987); Latchis v. John, 117 Vt. 110, 113 (1952). Homeowners cite Restatement (Third) of
Property (Servitudes) § 4.1 for the proposition that this bias in favor of the free use of land is old-
fashioned, and that the modern trend is to carry out the intent of the parties and the purpose of the
restriction even if that intent and purpose are not clearly expressed. See also Freehling v.
Development Mgmt. CIrn. Tnc., 393 N.L. 2d 646 (Ill. Ct. App. 1979) (rule that restrictive
covenants are strictly construed should not be applied to defeat obvious purpose of restriction or
obvious intention of parties even though not precisely expressed). The Court notes that our
Supreme Court relied on the criticized rule of construction just this year. Sep Crecd, 2004 VT 34
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DEC 14,2004 16:14 1 000-000-00000 Page 9
at Para.17. The Court does not believe the rule as applied in Vermont would be inconsistent with
the principles expressed in the Restatement or Freehlin, because unlike the rules of strict
construction criticized in those documents, our rule of construction only comes into play when
the exact intent and purpose of the restriction are not clearly established. See Creed, 2004 VT 34
at Para. 17 (this rule of construction is a subordinate aid to discover the parties' intent).
A comparison of Mann and Creed, two recent Supreme Court cases, clarifies this
distinction. In Mann, there was direct testimony that the purpose and intent of the covenant was
to protect a sight line by limiting the height of the building on the burdened property to the ridge
line of a nearby inn. Thus, even though the language of the covenant did not explicitly limit the
height of the building on the burdened property to the ridge line of the inn, the trial court did not
err in construing the covenant to limit the height to the ridge line of the inn. In Creed, the
question was whether a prohibition on mobile homes applied to a manufactured home brought to
the site and permanently installed on a permanent foundation. There was no direct evidence of
intent, but the trial court reasoned that the parties probably would have intended the restriction to
cover such homes. The Supreme Court reversed, citing the rule against extending a restriction by
implication. 2004 VT 34 at Para. 22. The Court synthesizes these cases as follows: Where the
intent and purpose of a restrictive covenant is clearly established, the covenant can and should be
construed to cover a thing or activity that violates that clear intent and purpose, even if the
language of the covenant does not Precisely or explicitly cover that thing or activity. But if the
contours of the original parties' intent and the covenant's purpose are unclear, the old principle
favoring the free use of land still has enough vitality to discourage an expansive view of the
intent and purpose and forbid an extension of the restriction by implication.
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DEC 14,2004 16:14 000-000-00000 1 Page 10
"Easterly"
With these principles in mind, the Court construes "lying easterly of the land herein
conveyed" to determine what portion of Developers' land is burdened by the covenant.
One reasonable interpretation of "easterly" is due east, which would result in a burdened
strip of land of approximately,100' extending straight out to the east from the eastern edge of
Homeowners' property. This interpretation, advocated by Developers, is consistent with the
manner in which easterly is frequently used in deeds, as indicated by Black's: "this word, when
used alone, will be construed to mean `due east."' �Tack's Law Dictionary, p. 458 (5" ed. 1979).
Moreover, approximately due east from Homeowners' property is Mt. Mansfield, the closest and
most prominent mountain on the horizon, and the center of 1 lomeowners' panoramic view.
Thus, a protected strip due east will serve to protect Homeowners' view of Mt. Mansfield.
As I lomeowners point out, "=terly" does not always mean due east, and may sometimes
mean in the general direction of east. Thus,'I tomeowners suggest, "easterly" could and should
describe a cone -shaped burdened area stretching from the house northeast to Mount Sterling and
southeast to Bolton Mountain. This would, of course, greatly expand the area of burdened
property and the number of burdened lots. Although there is nothing in the language of the
covenant to suggest such an expansive definition of "easterly," Homeowners say it is necessary
to effectuate the purpose of the covenant - which they say is to protect their view not of Mount
Mansfield, but of the full panorama from Mount Sterling to Holton Mountain.
The question for the Court is what the DesLauriers and Surawiczes intended "easterly" to
mean when they executed this deed in 1956. There is no direct evidence of intent. According to
I lomeowners, the Dest,auriers are deceased and the SurawiUes have no relevant recollection of
DEC 14,2004 16:14 1 000-000-00000 Page 11
the covenant. Thus, the Court must look to surrounding circumstances to infer probable intent.
In light of the circumstances surrounding the creation of this covenant, the Court
concludes that l lomeowners' claim regarding the meaning of "easterly" must fail. The one-story
restriction in contention was created for the benefit of one lot alone, against the backdrop of a
development -wide two-story restriction benefitting and burdening all property owners. The
Desi.auriers had created a development and were selling lots, and in 1956 they planned to
continue selling lots. The Surawiczes were apparently particularly concerned about their view,
and the DesLauriers were apparently willing in this single instance to give them a protective
covenant with the term "easterly." It is only logical and reasonable to conclude that the
DesLauriers would have agreed to burden the fewest possible number of lots for the benefit of
this single lot and would not have been willing to burden more, especially when they had already
established a development -wide scheme which placed a similar but less stringent restriction on
all lots, for the benefit of all.'
In a prior order on summary judgment, this Court stated that the evident Purpose of the
covenant was to protect the view toward Mt. Mansfield, which was the only view that had been
mentioned in the record at that time. This is not determinative on the question of the extent of
the view the Parties intended to protect since that question was not in issue then. Nonetheless, it
cannot he disputed that Mt. Mansfield is the closest and most prominent mountain in the view, as
' The Court also considers it noteworthy that the I)esLauriers did not record the covenant
or reflect it in their own chain of title in any way, and that the Surawiczes have no relevant
recollection of it. Certainly, if the Surawiczes had manages] to convince the Desl.auriers to
burden such a large portion of their property for the benefit of just one lot, it would have been a
memorable event for both sides.
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well as its central focus. Further, it is notable that when Homeowners previously referred to or
described their view, it was the view towards Mt. Mansfield which was mentioned.
There is nothing; in the language of the covenant to suggest an intent to protect a view
extending from Mount Sterling to Bolton Mountain (or any view other than that directly east).
Nor is there any direct evidence that the DesLauriers and Surawiczes intended the covenant to
protect a view extending from Mount Sterling; to Bolton Mountain, In the absence of evidence of
such an intent, stretching the covenant to result in a larger burdened area would be the type of
extension of a restriction by implication which was disapproved in Crecd. 2004 VT 34 at Para.
22.
For these reasons, the Court concludes that the most reasonable interpretation, based on
the most probable intent of the original parties, is that "easterly" means due east, resulting; in a
burdened strip approximately 100' wide extending out, due cast, from Homeowners' property.
There has been some discussion about whether the 100' strip should be drawn using true
east, mag,*netic east in the year 2004, or magnetic east in the year 1956. The Court will specify
that magnetic cast in the year 1956 should be used, since it was likely the basis for the sub-
division plan and the original parties probably were using that plan when the covenant was
created.
"No Higher than One Story"
Standing alone, the meaning of "one-story" seems unambiguous —a building with one
floor, one ceiling, and no stairs. However, in the context of a covenant whose purpose is to
protect a view but which does not include either a specific height limit or a roof pitch, the term
DEC 14,2004 16:15 E 000-000-00000 Page 13
"no higher than one story" becomes ambiguous. Failure to judicially determine an intended
height limit would inevitably lead to further litigation.
Again, we have no direct evidence of what the parties intended in 1956. But we do have
expert testimony about the average heights of various types of one-story buildings. Specifically,
we know that a typical one-story ranch would be about 16' high, a typical one-story traditional
Cape Cod would be about 26' high, and a typical modern one-story duplex condominium would
be about 35' high. Developers' expert testified that the vast majority of one-story buildings in
South Burlington today are in the 26-3 S' range; and their proposal to build one-story buildings 35'
in height in the burdened swath is based on the high end of that range. The pertinent question is
what the parties would have considered one story to mean in 1956. While neither party has
provided testimony about the height of houses in the 50's, there was testimony that the trend in
heights has increased dramatically in recent years due to aging baby boomers who want larger
and more dramatic homes on a single level. Thus, it seems most probable that in 1956 the vast
majority of one-story buildings did not exceed the 26height of the Cape Cod, and that 26'
approximates what the original parties had in mind as "no higher than one story"when the
covenant was created.
Based on this }probable intent, the Court concludes that "one-story" means one story and
no more than 26' in height,4 and all buildings built in the approximately 100' wide burdened
4 In South Burlington today, building heights are measured in relationship to the
surrounding ground by taking the existing elevations at the four corners of the house and
establishing an average pre -construction grade, above which one may build to the limit specified.
To measure the height of a building on a flat piece of land, the measurement is taken from the
level ground to the peak of the roof. To ensure that there is no dispute about how to measure this
26 feet, the Court references the detailed measurement standards as set forth in Exhibit 44, the
current South Burlington Ordinance.
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Page 14
swath must fit this description. Therefore, this court declares that this covenant in the Surawicz
deed, and incorporated in Homeowners' deed is effective. It impacts a strip of Developers'
property east of Homeowners' property, as wide as Homeowners lot (approximately 100') and
heading due east. Within this strip, no buildings will be built higher than 26 feet, using the
measurement standards set forth in the South Burlington Ordinance referenced in footnote 4.
DECLARATORY .TUDGMENT ORDER
I laving considered the evidence presented by the Parties and considered the applicable
law, this court declares that this covenant in the Surawicz deed, and incorporated in
Homeowners' deed, which provides "No building higher than one story shall be erected on any
land of Grantor lying easterly of the land herein conveyed and lying in Green Mountain Park" is
eflective. It impacts a strip of Developers' property cast of Homeowners' property, as wide as
Homeowners lot (approximately 100) and heading due east. The strip will be established using
magnetic cast from the year 1956. Within this strip, no buildings will be built higher than 26
feet, using the measurement standards set forth in the South Burlington Ordinance referenced in
footnote 4.
Signed at xa •,..j- ..�• Vermont, this `r'` day of `.c.--C - 2004.
Judge Alan W. Choever
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