Alpenwald Improvement Corp. v. Kelly

571 A.2d 624, 153 Vt. 405, 1989 Vt. LEXIS 264

• Court: Supreme Court of Vermont
• Decided: December 1, 1989
• Docket: No. 88-459
• Status: Published

Opinions

Morse, J.

Alpenwald Improvement Corporation appeals from dismissal of its complaint seeking removal of defendants’ garage and shed claimed to have been erected at an unapproved location (within fifty feet of the road) in violation of certain restrictive covenants. The sole issue is the validity of a setback requirement imposed on homeowners under a protective covenant which requires approval of the proposed location of any building to be erected. We hold that the trial court erred in dismissing the complaint and accordingly reverse and remand for further proceedings.

Plaintiff is the developer of Alpenwald Development, a 500-lot development in Readsboro, Vermont. As such, it may enforce certain restrictive covenants as recorded in a Declaration of Protective Property Rights that was referenced in the deeds to all the parcels. McDonough v. W.W. Snow Construction Co., 131 Vt. 436, 441, 306 A.2d 119, 122 (1973). The covenant in question reads: “[A]ll building plans for any building... to be erected upon any lot and the proposed location thereof upon any lot... shall require the approval [of Alpenwald].” The covenant also provides that no building may be erected without prior approval. The Declaration does not specify a setback requirement.

According to the testimony of Alpenwald’s president, since the early 1970’s the developer has required that all structures be set back from the road’s edge at least fifty feet (seventy-five feet from the road’s centerline). Of about eighty lots developed to date, two were allowed a setback less than fifty feet for hardship reasons.

In 1983, defendants purchased a lot in Alpenwald Development, with notice of the covenants, and built their residence as approved by Alpenwald in accordance with the Declaration. In 1986, they decided to build a shed and garage that would intrude substantially into the setback area. Although they were aware that Alpen-wald considered approval necessary and insisted on a fifty-foot setback, defendants proceeded to build without approval.

The trial court, in dismissing Alpenwald’s complaint, reasoned that the setback requirement was unenforceable because it was not expressly included in the recorded Declaration. We disagree.

The Declaration gave all purchasers notice that their building plans would be subject to the developer’s approval and that one of the factors considered would be the location of the structure. While the Declaration did not expressly require a fifty-foot setback, it was reasonable to expect that in reviewing the location of a proposed building, Alpenwald would consider, among other things, its distance from the road. The Declaration was sufficient to place defendants on notice that any buildings they planned would be subject to reasonable location restrictions, such as the fifty-foot setback. It is hard to imagine what else the covenant at issue might mean to those bound by it. See Addison County Automotive, Inc. v. Church, 144 Vt. 553, 558, 481 A.2d 402, 406 (1984) (restrictive covenants to be construed to give effect to parties’ intent as gathered from language used); Syrian Antiochian Orthodox Archdiocese v. Palisades Assoc., 110 N.J. Super. 34, 41, 43, 264 A.2d 257, 258, 262 (1970) (covenant requiring approval of building plans, including “the location of the proposed improvement upon the plot,” held enforceable so long as refusal to approve plans is reasonable, in good faith and not arbitrary or capricious).

The setback requirement, as described by plaintiff’s witness, is not more restrictive than the express covenants in the Declaration. To the contrary, it gave defendants notice of one key factor upon which Alpenwald’s approval of building locations would rest, thereby easing the potential restrictiveness of an otherwise open-ended approval requirement contained in the Declaration. The setback requirement in fact reduces the tendency of approval to be “arbitrary, capricious, and therefore unreasonable,” the concern expressed in Seabreak Homeowners Ass’n v. Gresser, 517 A.2d 263, 268 (Del. Ch. 1986).

We conclude that the trial court erred in dismissing Alpenwald’s complaint on the ground that an unwritten setback requirement could not be enforced.

Reversed and remanded.