Cold Brook Fire Dist. v. Adams

• Decision Date: 20 March 2008
• Docket Number: No. 07-033.,07-033.
• Parties: COLD BROOK FIRE DISTRICT v. Christopher W. ADAMS and Lesley A. Adams.
• Court: Vermont Supreme Court

950 A.2d 1206

2008 VT 28

COLD BROOK FIRE DISTRICT v. Christopher W. ADAMS and Lesley A. Adams.

No. 07-033.

Supreme Court of Vermont.

March 20, 2008.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and EATON, District Judge, Specially Assigned.

ENTRY ORDER

¶ 1. Plaintiff Cold Brook Fire District appeals from summary judgment. The trial court ruled that the pasturing of horses by defendants, Christopher and Lesley Adams, within 200 feet of two public water supply wells owned by plaintiff did not violate a restrictive covenant limiting defendants' use of their land. We reverse.

¶ 2. The following facts are not disputed. On June 11, 2004, defendants purchased thirty-three acres of land in Wilmington, Vermont, from James McGovern, III. At the time of the purchase, the parcel was burdened by a restrictive covenant in favor of plaintiff, which owns two public water supply wells on the parcel. To comply with Vermont Department of Health (DOH) standards, the covenant requires that there be no "construction or land use activity" within 200 feet of the wells unless the DOH first provides written approval. Defendants, after purchasing the parcel, and without receiving approval, pastured horses within 200 feet of the wells.

¶ 3. Plaintiff filed a complaint in August 2005, requesting that the Windham Superior Court enjoin defendants from pasturing or allowing any animal access within 200 feet of the wells. Defendants filed their answer asserting several affirmative defenses, including estoppel. Thereafter, the trial court issued an entry order in which it stated that the legal issue in the case turned on the meaning of "land use" in the restrictive covenant and requested that the parties identify the applicable DOH regulations through additional briefing. Both plaintiff and defendants agreed that the relevant regulation could be found in the "Sanitary Engineering" section of the Vermont Health Regulations. Vermont Health Regulations, chapter 5, subchapter 10, part I, § 5-906(a)(3) (effective June 15, 1970).¹ Relying on the regulation provided, the superior court held that the covenant restricted only land uses which include sewer, septic, and subsurface disposal systems, and granted summary judgment in favor of defendants.

¶ 4. As an initial matter, we hold that the superior court relied on the wrong regulation in defining the term "land use activity" in the restrictive covenant. According to the amicus brief filed by the Vermont Agency of Natural Resources (ANR), the parties incorrectly identified § 5-906(a)(3), which pertains specifically to the sanitary protection of waters in and about land subdivisions and, therefore, has no application in the present case. See Vermont Health Regulations, § 5-901. Instead, the State asserts that the Public Community Water Supply Standards provide proper guidance in the present case. Public Community Water Supply Standards, part 3, § 3.3.2.2 (effective May 27, 1988). We agree. When construing a term in a restrictive covenant, our precedent directs that we give effect to the intent of the parties as "gathered from the language used ... and in reference to [ ] the subject matter and purpose sought to be accomplished at the time the instrument was executed." Creed v. Clogston, 2004 VT 34, ¶ 17, 176 Vt. 436, 852 A.2d 577. The subject matter of the restrictive covenant at issue is plaintiff's community water system. See Vermont Health Regulations, chapter 5, subchapter 12, § 1.17 (last amended March 17, 1980) (noting a "community water system" to be a system which regularly serves twenty-five or more year-round residents);² see also 10 V.S.A. § 1671 (providing an analogous definition of "community water system"). The State asserts that such systems were governed by the Public Community Water Supply Standards in 1988. Furthermore, plaintiff created the restrictive covenant in accordance with the Public Community Water Supply Standards and intended the covenant to serve as the legal document that would enable final source approval for its community water system. See Public Community Water Supply Standards, § 3.3.2.2(D) (requiring proof of legal control of land use activities within the well isolation zone prior to source approval). Like the Public Community Water Supply Standards, the covenant created a default 200-foot isolation zone around wells and reserved certain approval authority for permitting "land use" activities within isolation zones. See id. § 3.3.2.2, 3.3.2.2(C)(1)(e). Therefore, because it was the intent of plaintiff to comply with the Public Community Water Supply Standards at the time the covenant was created in 1988, the superior court erred when it did not apply those standards in determining the scope of the term "land use activity" in the present case.

¶ 5. We further hold that, under the applicable Public Community Water Supply Standards, the pasturing of horses is a "land use activity" and is, therefore, not permitted without prior written approval from the ANR Water Supply Division.³ The Public Community Water Supply Standards employed a broad definition of "land uses," which included "any ... activity which may contaminate the water supply." Id. § 3.3.2.2(C)(2)(h). The ANR argues that the concurrence of plaintiff's shallow, gravel wells that are susceptible to contaminant infiltration and the contaminants present in horse manure create a sufficient threat to plaintiff's water system. Whether the threat is real must be decided by the Water Supply Division in the first instance, but the potential for contamination is sufficient to require defendants to seek permission for their horse pasturing activities under the terms of the covenant.

¶ 6. Finally, the trial court did not err when it ruled that plaintiff was not estopped from...