Foster v. Orchard Dev. Co. Llc
| Citation | 705 S.E.2d 816,227 W.Va. 119 |
| Decision Date | 23 November 2010 |
| Docket Number | No. 35308.,35308. |
| Court | West Virginia Supreme Court |
| Parties | Jason FOSTER, Plaintiff Below, Appellantv.ORCHARD DEVELOPMENT COMPANY, LLC, a West Virginia Limited Liability Company, and Peteler, LLC, a West Virginia Limited Liability Company, Defendant Below, Appellee. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. Of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. “The question to be decided on a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined.” Syllabus Point 5, Aetna Cas. & Sur. Co. v. Federal Ins. Co. Of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
4. “The granting or refusal of an injunction, whether mandatory or preventive, calls for the exercise of sound judicial discretion in view of all the circumstances of the particular case; regard being had to the nature of the controversy, the object for which the injunction is being sought, and the comparative hardship or convenience to the respective parties involved in the award or denial of the writ.” Syllabus Point 4, State ex rel. Donley v. Baker, 112 W.Va. 263, 164 S.E. 154 (1932).
5. “Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse to modify, continue, or dissolve a temporary or a permanent injunction, whether preventative or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.” Syllabus Point 11, Stuart v. Lake Washington Realty, 141 W.Va. 627, 92 S.E.2d 891 (1956).
6. “ Syllabus Point 2, Allemong v. Frendzel, 178 W.Va. 601, 363 S.E.2d 487 (1987).
Gregory A. Bailey, Esq., Christopher P. Stroech, Esq., Arnold & Bailey, PLLC, Shepherdstown, WV, Attorneys for Appellant.Joseph L. Caltrider, Esq., Bowles, Rice, McDavid, Graff & Love, Martinsburg, WV, Attorney for Appellee Orchard Development Company, LLC.
I.
This appeal arises from the denial of a permanent injunction to stop the building of townhouses as well as a grant of summary judgment in favor of the appellees, Orchard Development Company, LLC (hereinafter referred to as “Orchard”) and Peteler, LLC (hereinafter referred to as “Peteler”), and against the appellant Jason Foster, regarding the applicability and meaning of certain restrictive covenants and other regulations affecting The Gallery subdivision (hereinafter referred to as “The Gallery”) in Martinsburg, Berkeley County. The appellant, Jason Foster (hereinafter referred to as “Foster”) is the owner of a single-family residence in The Gallery. He purchased this house in June or July of 2007, for the sum of $282,500. Orchard is the developer of The Gallery Subdivision. Peteler is a builder who purchased several tracts of land from Orchard with the intention of constructing 100 townhouses within The Gallery subdivision.
The Gallery subdivision was established after Orchard purchased a tract of land from the C.J. Seibert Orchard Company. Orchard began developing The Gallery in 2004, with plans calling for a mix of single family homes and townhouses. Orchard marketed this subdivision as Martinsburg's premier subdivision and as a planned community 1, within the definition of W. Va.Code § 36B–1–101(2005), et seq.2 A maximum of 2,000 units were planned for The Gallery subdivision. When this litigation began, Orchard was still the owner of a majority of the lots and development was continuing within the subdivision.
After its first acquisition of property, Orchard wrote and recorded a document entitled “Declaration of Covenants, Conditions and Restrictions for the Gallery Subdivision,” (hereinafter referred as the Covenants) in the Berkeley County Clerk's office. After later property acquisitions, Orchard recorded a supplemental document acknowledging the applicability of the Covenants to every unit in the subdivision, regardless of whether the deed specifically references the Covenants.
The Covenants established The Gallery as a planned community, and tracked the language of the Uniform Common Interest Ownership Act, W. Va.Code § 36B–1–101 () Throughout the Covenants, individual homes within the subdivision were referred to as “units.” The word unit applies to single family homes as well as townhouses.
In order to establish a mechanism for control of the common interest areas of the subdivision, the Covenants established a homeowners' association known as “The Gallery Subdivision Unit Owners Association, Inc.,” (hereinafter referred to as the Association). The association was incorporated by G. Timothy Shaw, a member of Orchard, as a non-profit West Virginia corporation on January 10, 2005. While each unit owner in The Gallery subdivision was a member of the Association, the actual management of the Association fell to an Executive Board. The initial members of the Executive Board were G. Timothy Shaw and Robert C. Adams, members of Orchard Development; James M. Siebert, a realtor; and Telena A. Spies, another realtor.
The Covenants established in Article VIII Section 8.10, that “there shall be a period of Orchard Development control of the Association, during which Orchard Development, or persons designated by Orchard Development, may appoint and remove officers and members of the Executive Board.” It was only after seventy-five percent (75%) of the lots were sold, or two years after Orchard ceased selling lots within The Gallery subdivision that control of the Executive Board would be granted to the unit owners as opposed to Orchard, the developer.
The Covenants also reserved certain rights to the Orchard Development, which must be exercised within 15 years after the recording of the Covenants. These rights were enumerated in Section VIII as follows:
Section 8.1 Reservation of Development Rights. The Declarant reserves the following Development Rights which may be exercised individually or in any combination:
(a) The right by amendment to add real estate to the Common Interest Community.
(b) The right by amendment to create Units, Common Elements, or Limited Common Elements within the Common Interest Community.
(c) The right by amendment to subdivide and combine Units or convert Units into Common Elements.
(d) The right by amendment to withdraw real estate from the Common Interest Community.
(e) The real estate to which the Development Rights specified in Paragraph D is shown on Schedule 7.3
Section 8.4 reserved Special Declarant Rights, including the right to appoint or remove an officer of the Association or Master Association or an Executive Board or Master Executive Board member during a period of Declarant control subject to the provisions of 8.10 of the Covenants.
The Covenants also established land use and restriction rules in Article X, Section 10.1. The first restriction is that Also restrictions included prohibitions against subdivision of lots, commercial vehicles, unregistered vehicles, campers, above-ground storage tanks, yard art, clotheslines as well as other requirements.
The Covenants detailed a mechanism by which the covenants themselves could be modified. In Article XIV, Section 14.1 of the Covenants the amended procedure is as follows:
[T]his Declaration, including the Plan and Plans, may be amended only by vote or agreement of Unit Owners of Units to which at least sixty-seven percent (67%) of the votes in the Association are allocated.
In Article XIV, Section 16.4(a) of the Covenants, document amendment is detailed as follows:
Document changes. Notwithstanding any lower requirement permitted by this Declaration or the Act, no amendment of any material provision of the Documents by the Association or Unit Owners described in this Subsection 16.4(a) may be effective without the vote of at least sixty-seven percent (67%) of the Unit Owners.
The word “documents” is defined in Article 1, Section 1.16 of the Covenants as:
The Declaration, Plan and Plans recorded and filed pursuant to the provisions of the Act, the Bylaws, Articles and the Rules of the Association as they be amended from time to time. Any exhibit, schedule or certification accompanying a Document is part of that Document.
The Covenants themselves did not reference minimum unit size or other particulars about the construction of homes in The Gallery Subdivision. Instead, the Covenants established a committee known as The Gallery Subdivision Architectural and Development Review Committee, known generally as the “Review Committee”, in Article I, Section 1.32, as the entity responsible for approving the plans for each unit with The Gallery Subdivision. The Executive Board of the Association was charged with establishing the Review Committee. Article XXIV, Section 24.2 of the Covenants provides...
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