Friedberg v. Riverpoint Bldg. Committee
| Citation | 239 S.E.2d 106,218 Va. 659 |
| Decision Date | 23 November 1977 |
| Docket Number | No. 761297,761297 |
| Parties | J. F. FRIEDBERG et al. v. RIVERPOINT BUILDING COMMITTEE. Record |
| Court | Supreme Court of Virginia |
Robert M. White, Norfolk (White & Selkin, Norfolk, on briefs), for plaintiffs in error.
James C. Howell, Norfolk (Willcox, Savage, Lawrence, Dickson & Spindle, P. C., Norfolk, on brief), for defendant in error.
Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
The broad question which confronts us in this appeal, in a declaratory judgment proceeding at law, is whether the owners of a platted lot in a residential subdivision may resubdivide and build on the newly created parcels, under the circumstances of this case, considering the applicable restrictive covenants.
In an amended motion for judgment, appellants J. F. Friedberg and Martha Friedberg, his wife, proceeded against Riverpoint Building Committee, the defendant below, seeking a declaration that "plaintiffs have the right to subdivide their property in the manner set forth (in the amended motion); and that they have the right to proceed with the construction of the residential dwelling described (therein)." After a trial without a jury, the court below found that the plaintiffs failed to establish their right to subdivide and further found that the dwelling in question did not conform to the restrictive covenants, as applied and administered by the defendant Committee. Accordingly, the plaintiffs' action was dismissed in a June 1976 order, from which we granted plaintiffs a writ of error.
In early 1941, approximately 100 acres of "highland" in the City of Norfolk was conveyed by deed, with a plat attached, to Riverpoint Corporation. The tract, to be developed as a residential subdivision, was bounded on the east by Granby Street and on the west and south by branches of the Lafayette River. Shown on the plat were 230 lots, in 18 blocks, plus Sites A, B, C (the property in controversy here), D, E and F. The great majority of the lots contained an area which exceeded 7500 square feet; most of these symmetrical parcels had from 9,000 square feet to 15,000 square feet of space. There were at least three platted, but undesignated, irregular-shaped parcels of less than 7500 square feet, located adjacent to areas reserved for boat basins. The "Sites", waterfront lots much larger in area than the inland parcels, were located on each of six peninsulas extending into the river. At least three other such points of land were not denominated "Sites" and were divided into designated lots. Also, a large area near the center of the tract was undivided and designated "Proposed Park and Playground".
The evidence showed that the six Sites, each abutting a cul-de-sac, served to increase circulation of land and water breezes between the interior of the development and the Lafayette River. These large lots on the water also encouraged construction of more expensive homes on the parcels, thus "upgrading" the surrounding neighborhood and preserving property values.
Restrictive covenants governing the use of the land conveyed were set forth in the deed and, insofar as pertinent to this appeal, provide as follows:
The evidence showed that the defendant Committee, in administering paragraph B in order to attain dwelling "conformity, and harmony of external design," and to keep "cracker boxes out", had consistently required that homes in Riverpoint have two useable stories or, if they contained only one story, that the structure, including enclosed porches and garages, contain 3000 square feet of space. In addition, if a planned one-story home contained less than 3000 square feet of area, the Committee required that dormer windows be included, to give the impression that the home had more useable space. The testimony showed that, although no common style of architecture had been required, the square-footage standards had been uniformly enforced by the defendant, which resulted in the maintenance of "a relatively stable, high-class residential area".
In 1963 plaintiff Martha Friedberg purchased Site C, upon which was located a one-story house with about 3500 square feet of space. The land area approximated 75,000 square feet or about "an acre and three quarters", a significant percentage of which was "lowland". The deed of conveyance was expressly made subject to the foregoing restrictions. Mrs. Friedberg testified that when the property was bought, she had no intention of subdividing it but planned to use it for residential purposes.
In 1969, a plat of survey was recorded which showed the division of Site C into two parcels, one containing 0.30 acres and the other 1.45 acres. Mrs. Friedberg testified that she made this subdivision, apparently without prior notice to the defendant Committee, because she was afraid "to live out there (on the point)" alone, stating that she "would have liked" for her son to build a home there and live "next door" to her. In 1972 the home on Site C was destroyed by fire.
By a letter dated in May of 1973, the chairman of defendant Committee advised Mrs. Friedberg that "attention has been invited to the re-subdivision of Site C which you made of this property (in 1969)." The letter stated that such action on her part "would indicate that you at sometime might attempt to sell these two separate parcels as separate sites for two individual residences." The letter then said that pursuant to paragraph A of the restrictions, "only one single-family dwelling can be placed on your original Site 'C'."
In 1974, plaintiffs employed surveyors who subdivided Site C into three building sites and a plat to this effect was duly recorded in January of 1975. The Site is divided longitudinally into three parcels, C-1, C-2 and C-3, the two nearly parallel lines of division extending from the edge of the water inland to an original cul-de-sac adjacent to the Site. Parcels C-1 and C-3 have an area of about 20,000 square feet; parcel C-2 has approximately 35,000 square feet of space.
During the Fall of 1975, the plaintiffs began construction of the house in question on parcel C-2, without notice to the Committee. Upon information received from one of plaintiffs' neighbors, Edward S. Ferebee, a retired attorney and chairman of the defendant Committee, went to the site and found the plaintiffs' building contractor preparing to commence work. Ferebee notified the builder of the advance approval required by paragraph B of the restrictive covenants. Approximately two weeks later, the plans were submitted to the Committee and were rejected because: (1) the proposed home consisted of one story and contained less than 3000 square feet without dormer windows, and (2) the plans showed that the original site had been divided into three building lots. Nevertheless, construction proceeded and the house was completed in May of 1976, about six months after this action was filed. The plaintiffs' architect testified at trial that the house contains 2880 square feet and that the original contract price was $74,000.
The parties agree that the first issue is whether the trial court erred in holding that the "plaintiffs failed to prove that they had a right to subdivide their property". Actually, the question is whether the restrictive covenants prohibit the subdivision of originally platted sites into smaller building lots.
Plaintiffs point out that the restrictions do not expressly prohibit a resubdivision of their property and, citing the principle of strict construction of such covenants, contend that a resubdivision of Site C into three parcels is a proper utilization of their property. They note that paragraph A expressly limits the size of the dwellings to two and one-half stories in height and limits the sizes of garages permitted, saying that "surely if resubdivision were prohibited, it would be mentioned."
At the bar, plaintiffs commented on the use of "lot" and "Site" in paragraph A and the use of "plot" in paragraphs B and D, but urged that all three terms are used synonymously. They say that if, as defendant contends, the language of paragraph A controls to prohibit resubdivision, then paragraph D contradicts A, or at least renders A "hopelessly ambiguous". This is because D provides that each building plot must have an area of 7500 square feet, and
(Emphasis supplied).
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