Bellemeade Co. v. Priddle
Decision Date | 28 September 1973 |
Citation | 503 S.W.2d 734 |
Parties | The BELLEMEADE COMPANY et al., Appellants, v. Dr. Harold D. PRIDDLE et al., Appellees. |
Court | United States State Supreme Court — District of Kentucky |
W. Pelham McMurry, Paducah, for The Bellemeade Co. and Owners.
Samuel S. Boaz, Paducah, for Paducah Planning Commission.
J. William Howerton, Paducah, for City of Paducah and Bd. of Commissioners of the City of Paducah.
William B. Byrd, Paducah, for appellees.
Appellee Dr. Harold D. Priddle and his neighbors are owners of residential lots in Sections I, II, III or IV of Bellemeade, approved and recorded sections of a subdivision. On an appeal and a petition for a declaration of rights they obtained a circuit court judgment setting aside certain acts of the Paducah Planning and Zoning Commission and enjoining it from '* * * further proceedings in connection with the pending application by * * *' appellant, The Bellemeade Company, its owners and developers (hereinafter developers) '* * * for approval of the proposed neighborhood development unit and for approval of the construction of the proposed Holiday Inn motel * * * on Section V of Bellemeade Subdivision * * *.' That section contained twelve acres adjacent to Lone Oak Road (U.S. Highway 45). The developers also were enjoined '* * * from taking any further action in connection with * * *' those applications or to put the property to '* * * uses other than one-family residential uses thereon, as a result of or based upon the Planning Commission's * * * actions * * *.' From that judgment the developers have appealed. We reverse.
Although zoning restrictions and deed restrictions are independent of each other, 1 a burning issue raged throughout this litigation as to whether Section V is encumbered by restrictive covenants. Relying on First Security National Bank & Trust Company of Lexington v. Peter, Ky., 456 S.W.2d 46 (1970), the trial court, in its findings of fact (CR 52.01) and conclusions of law, said that Section V was embraced by the deed restrictions which went to record as each of the first four sections were approved. The judgment did not make this declaration but the conclusions of law stated 'Since findings of fact have been made herein which support the plaintiffs' contention that the 'reciprocal negative covenant doctrine' would apply, it is concluded that said actions by the Planning Commission on August 5, 1970, December 2, 1970, and December 16, 1970, are null and void by reason of the application of said doctrine to the facts in this case.' The parties have treated this conclusion as if the judgment had declared that Section V was restricted so that it may '* * * be used for one-family residential purposes only and no commercial or professional activities shall be conducted on the premises.' The developers argue that if this '* * * finding is upheld by this Court the twelve (12) acres involved in this litigation will be rendered completely useless.'
All parties rely on statements made in First Security National Bank & Trust Company of Lexington v. Peter, supra. There we quoted from 20 Am.Jur.2d, Covenants, Conditions, Etc., Sec. 173, p. 733, as follows:
'* * * in order for a reciprocal negative easement to arise, there must have been a common owner of the related parcels of land, and in his various grants of the lots he must have included some restriction, either affirmative or negative, for the benefit of the land retained, evidencing a scheme or intent that the entire tract should be similarly treated, so that once the plan is effectively put into operation, the burden he has placed upon the land conveyed is by operation of law reciprocally placed upon the land retained.'
The developers deny emphatically that any restriction, act or deed indicated a scheme or intent that their entire tract should be similarly treated.
In 1960 the developers negotiated with an organization to develop Section V commercially, and in 1963 that property was optioned for the construction of a retirement home complex. Negotiations for the erection of a motel and restaurant were carried on in 1966, and in 1967 an option was granted to an oil company to build an automobile service station. The owners employed an architect in 1968 to draw up preliminary plans for the erection of a motel and shortly thereafter a contract was entered into with a franchise holder to build and operate a motel on that section.
At the time the subdivision plat of Section I went to record there was in existence a contract with a real estate firm, by the terms of which it was given the exclusive right to sell the residential lots and included also was a separate provision giving those agents '* * * the exclusive rights to sell, lease or develop the property facing the Lone Oak Road (Section V) owned by the party of the first part which is described in the plat dated December 3, 1952, as multi-family, duplex housing, shopping center and parking area.' On November 10, 1959, the owners entered into a covenant of restrictions which applied to all lots in Section I through IV except for six lots. It provided that the land in those sections: '* * * shall be used for one family residential purposes only and no commercial or professional activities shall be conducted on the premises.' It provided as to the type of construction, the size and the set-back requirements and it stated '* * * that these restrictions constitute covenants running with the land which will be binding upon all future owners of property within the limits of the heretofore described portion of Bellemeade Subdivision.' It was stipulated by the parties to this litigation that 'At all times during the development and marketing of the lots on the * * * four sections of Bellemeade there were in * * * effect * * * covenants of restrictions as set forth in the indenture of covenants and restrictions dated November 10, 1959 * * *.' No plat in the record showed that the subject property was restricted in any way or that it was reserved for any particular purpose.
A large sign was posted on Section V so that it could be seen from a main highway. On the sign appeared the agent's name and the words Some purchasers of Bellemeade lots were handed a printed sheet by the real estate agents which was headed 'Bellemeade Building Restrictions.' It contained the statement that 'All parcels shall be used for one family residential purposes only and no commercial or professional activities shall be conducted on the premises.' These sheets did not specify to what area they applied. The record is silent as to what explanation, if any, was made at the time the sheets were delivered to the purchasers of lots. However, there is no proof that any of the lots in Section V were offered for sale for residential purposes. Additional contra evidence showed a series of events before 1959 which clearly indicated the intent of the developers to use Section V for commercial purposes. For instance, in 1952 there were negotiations for the construction of a Woolworth Shopping Center and in 1958 an option for still another shopping center was given, which latter project was announced in the Paducah Sun Democrat, a newspaper of general circulation in that area. It is our opinion that the sign and the printed sheets referred to were not calculated to deceive the purchasers nor did this or any other evidence or stipulation furnish sufficient basis on which the trial court reasonably could find that the restrictive covenants embraced Section V.
We distinguish the facts in the present litigation from those in First Security National Bank & Trust Co. of Lexington v. Peter, supra, in that the activities of the developers of the property in that case created great confusion as to just what land the restrictive covenants covered. We find no evidence showing confusion in this case; furthermore, the recorded restrictions, having used the words '* * * within the limits of the heretofore described portion of Bellemeade Subdivision,' of which all purchasers had at least constructive knowledge, made the area of their application perfectly clear. These expressions must '* * * be strictly construed and given the effect which the language in which they are expressed authorizes when considered in connection with the circumstances surrounding the transaction and the objects which the parties had in view at the time of their creation.' Foos v. Engle, 295 Ky. 114, 174 S.W.2d 5 (1943). Also see LaVielle v. Seay, Ky., 412 S.W.2d 587 (1966). Those who contend that the restrictive covenants apply to Section V had the burden of showing by clear and convincing evidence that they so apply. Vittitow v. Dodson, 302 Ky. 418, 194 S.W.2d 996 (1946); 21 C.J.S. Covenants § 19, p. 896. They have failed to do so.
The reciprocal covenant doctrine must be applied with extreme caution. McCurdy v. Standard Realty Corp., 295 Ky. 587, 175 S.W.2d 28 (1943). It is our opinion that the statement appearing in 144 A.L.R. 916 is applicable. It reads in pertinent part:
'The mere fact that a grantor imposes restrictions upon a lot conveyed, with respect to the manner of using or subdividing the lots raises no inferences or implications that the remainder of his property, not covered by the conveyance, will be similarly restricted.'
See Galbreath v. Miller, Ky., 426 S.W.2d 126 (1968). We hold that the evidence did not support a finding that Section V was embraced by the restrictive covenants under the 'reciprocal covenant doctrine' or at all. Cf. Vittitow v. Dodson, supra.
The application which appellant made to the Paducah Planning Commission pursuant to section 13 of the 1961 zoning ordinance precipitated this litigation. That section authorized the Planning Commission to establish a neighborhood development unit which, in 'zoning' parlance, is frequently referred...
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