Blanche S. Marsh Inter Vivos Trust v. McGillvray

• Decision Date: 01 March 2013
• Docket Number: No. 12–060.,12–060.
• Citation: 67 A.3d 943,2013 VT 6
• Court: Vermont Supreme Court
• Parties: BLANCHE S. MARSH INTER VIVOS TRUST, Blanche S. Marsh Trustee v. Burton and Margaret McGILLVRAY, William and Lisa Pezzoni, Louis and Rosemarie Scibetta, Peter Steffens and Suzanne Kelliher.

67 A.3d 943

2013 VT 6

BLANCHE S. MARSH INTER VIVOS TRUST, Blanche S. Marsh Trustee

v.Burton and Margaret McGILLVRAY, William and Lisa Pezzoni, Louis and Rosemarie Scibetta, Peter Steffens and Suzanne Kelliher.

No. 12–060.

Supreme Court of Vermont.

March 1, 2013.

Matthew T. Birmingham, III of Birmingham & Moore, P.C., Ludlow, for Plaintiff–Appellant.

Thomas Hayes and Susan J. Manley of Hayes & Windish, Woodstock, for Defendants–Appellees.

Robert S. DiPalma and Kristina M. Roomet of Paul Frank + Collins P.C., Burlington, for Amicus Curiae Quechee Lakes Landowners' Association, Inc.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

ROBINSON, J.

¶ 1. This case involves the interplay between rulings and requirements relating to zoning in connection with a planned development and enforcement of restrictive covenants and deed restrictions applicable to property within the development. Plaintiff obtained municipal zoning approval to reconfigure the lot lines in her two-lot farmstead parcel within the Quechee Lakes subdivision, as well as to construct a dwelling on the second, yet-to-be-developed lot. The Environmental Division affirmed the zoning board's award of the latter permit. Notwithstanding this order, in a declaratory judgment action also initiated by plaintiff, the civil division concluded that plaintiff's proposed construction violated the applicable restrictive covenants and deed restrictions. On appeal, plaintiff argues that the Environmental Division's decision resolves the dispute, that the civil division improperly considered extrinsic evidence when the disputed deed restrictions were clear on their face, that defendants' challenge to plaintiff's right to build the proposed dwelling is time-barred, and that the character of the development has changed so much that the disputed deed restrictions are no longer valid. We affirm.

¶ 2. The Quechee Lakes subdivision includes up to 2500 residential units on approximately 6000 acres, together with specified commercial uses. In 1971, plaintiff ¹ purchased a “farmstead” parcel, consisting of two contiguous building lots abutting Hillside Road at Quechee Lakes. The larger lot was about 5.73 acres, and the smaller lot, identified in the deed as the saleable lot, was one acre. The warranty deed conveying the property to plaintiff from the Quechee Lakes Corporation states that the property is subject to the Declaration of Covenants, Restrictions, Rights and Benefits (“Covenants”) pertaining to the Quechee Lakes Subdivision. It also specifically provides that “the dwelling to be erected on this Farmstead shall be erected at the set back line of seventy (70) feet from Hillside Road and that the dwelling to be erected on the Salable Lot shall be erected at the set back line of 40 feet from Hillside Road.”

¶ 3. The Covenants referenced in the deed contain the following pertinent provisions:

Section 1.01 Definitions.

....

(e) “Farmstead” shall mean a single family parcel consisting of two Lots and containing not less than a total of four acres.

(f) “Lot” shall mean a portion of the Subdivision intended for separate ownership, including thereon a residence for use as permitted in this Amended and Restated Declaration.

....

Section 5.01. General Restrictions.

(a) Residential Use. Each Lot ... shall be used, improved and devoted exclusively to residential occupancy by a single family.

....

(iv) Other than Farmsteads, Woodsteads or Plantations which are provided with separate buildable parcels, Lots which contain 2 acres or more, may have a guest house. Farmsteads, Woodsteads and Plantations may have a barn.

....

(e) Multiple Lots. Two or more Lots may be used by an Owner for the erection and construction of a single family dwelling and incidental buildings permitted under this Amended and Restated Declaration, but the area consisting of such combined Lots shall not thereafter be subdivided unless the requirements of the Amended and Restated Declaration, as to area conveyed and location of buildings are complied with according to the original Lot boundaries....

(f) Setback. Side Yards. No building or part thereof shall be erected, placed or permitted to remain on any Lot within forty (40) feet from any private or public way or greenbelt ... without the consent of the Association.

¶ 4. In addition to the rights and restrictions arising from the deed and Covenants, plaintiff's property is subject to zoning restrictions under the Hartford Zoning Regulations. The Quechee Lakes Master Plan essentially functions as an “overlay” to the otherwise-applicable zoning regulations because approval of the Master Plan was part of the Town of Hartford Planning Commission's approval of the Quechee Lakes development. The Master Plan—essentially a zoning and permitting document—“is conceptual in nature,” and “represents an overall guide to the development of a large area consisting of about one fifth of the land area of the Town of Hartford.”

¶ 5. The Master Plan definition of “farmstead” is the same as the definition in the Covenants. In addition, the Master Plan defines some additional relevant terms not expressly defined in the Covenants:

3–3A Single–family Dwellings—A residential building designed for and occupied by one family only and detached from other such structures.

.... 3–3L Guest House—A non-rental accessory structure intended for occupancy by family and friends.

¶ 6. The Master Plan establishes the following relevant development standards:

4–2 Single Family Dwellings on Individual Lots. The following development standards shall apply to all single family homes built on subdivided lots within the Quechee Lake Corporation P.D.

4–2A No building or part thereof shall be erected, placed or permitted to remain on any single family lot within 40 feet from any public right of way....

4–2B Single family lots shall be used only for single family residential purposes. A dwelling may have as accessory to it a garage of not more than three car capacity and other accessory structures which may include storage buildings, boat sheds, swimming pools, tennis courts, terraces, decks, porches, playhouses, and other customary accessory structures. Lots which contain two acres or more may have a guest house. Guest houses shall not exceed twenty (20) feet in height. Farmsteads and woodsteads may have a barn.

¶ 7. In 1973, plaintiff built a single-family dwelling within the area of the one-acre saleable lot. In 1984, the Hartford Planning Commission approved the resubdivision of plaintiff's two-lot parcel into two, equal-sized lots, each approximately 3.3 acres. Effective following the 1984 reconfiguration of the lot lines, Lot A of plaintiff's parcel abuts Hillside Road and contains the existing single-family dwelling. Lot B is undeveloped and begins about 280 feet from Hillside Road. Lot B has no road frontage, and accesses the road by a right-of-way over Lot A.

¶ 8. In 1985 and 1986, plaintiff received zoning permits to build a garage with guest quarters upstairs on Lot A and constructed the building. Lot B remained undeveloped.

¶ 9. In response to objections by some neighbors that construction of a dwelling on Lot B would violate a deed restriction, and in connection with her own efforts to sell Lot B, in 2007 plaintiff filed a declaratory judgment action against a group of neighbors (defendants) in the civil division to establish her right to build a single-family dwelling on Lot B more than 70 feet from Hillside Road.

¶ 10. In 2008, while the civil suit was pending, plaintiff applied to the Town of Hartford for a building permit to construct a single-family dwelling with attached garage and deck on Lot B. The Hartford Zoning Administrator issued a building permit, and a group of neighbors appealed that decision to the Hartford Zoning Board of Adjustment, which upheld the building permit. ² The neighbors then appealed to the Environmental Division, arguing that because the Covenants did not authorize the construction of a “guest house” on Lot A, the dwelling unit constructed within the garage on Lot A in 1986 should be counted as the second single-family dwelling allowed on plaintiff's two-lot farmstead parcel, and that, therefore, the single-family dwelling now proposed for Lot B should be counted as an impermissible third single-family dwelling on the overall farmstead parcel.

¶ 11. In 2009, the Environmental Division rejected this argument on the grounds that the Covenants were not incorporated into the Master Plan and therefore did not directly bear on the applicable zoning restrictions;if the accessory guest dwelling unit was noncompliant with the Master Plan, that nonconforming use would have no effect on whether the proposal to build a single-family dwelling on Lot B should be approved; and the proposed construction on Lot B did not run afoul of the Master Plan or applicable zoning regulations.

¶ 12. Meanwhile, the civil suit progressed to trial, concluding in 2011. Defendants argued that the deed requirement that dwellings on the two lots in the farmstead parcel be built “at” 70– and 40–foot setbacks, respectively, precluded the construction of a dwelling on Lot B, which began over 280 feet from the road. They also took the position that the Covenants prohibited guest houses on farmstead lots, that the guest quarters on Lot A were therefore not permissible as a “guest house,” that the guest quarters should therefore be treated as a second dwelling, and that plaintiff was therefore precluded from building a third dwelling on Lot B. The trial testimony included a deposition of the subdivision's original developer who testified about, among other things, his vision for the development and the intent underlying various deed and Covenant provisions.

¶ 13. In 2012, the civil division entered a decision against plaintiff. The superior court credited the testimony of the subdivision's original developer in discerning the meaning of the Covenants and deed...