Palmetto Dunes Resort, Div. of Greenwood Development Corp. v. Brown

• Decision Date: 27 May 1985
• Docket Number: No. 0558,0558
• Citation: 287 S.C. 1,336 S.E.2d 15
• Court: South Carolina Court of Appeals
• Parties: PALMETTO DUNES RESORT, a DIVISION OF GREENWOOD DEVELOPMENT CORPORATION, Respondent, v. George F. BROWN, Appellant. . Heard

Page 15

336 S.E.2d 15

287 S.C. 1

PALMETTO DUNES RESORT, a DIVISION OF GREENWOOD DEVELOPMENT CORPORATION, Respondent, v. George F. BROWN, Appellant.

No. 0558.

Court of Appeals of South Carolina.

Heard May 27, 1985.

Decided Oct. 3, 1985.

James M. Herring and Curtis L. Coltrane, of Herring & Meyer, Hilton Head Island, for appellant.

Joseph R. Barker, of Bethea, Jordan & Griffin, Hilton Head Island, for respondent.

SANDERS, Chief Judge.

Respondent Palmetto Dunes Resort sued appellant George F. Brown seeking an injunction prohibiting him from constructing a house on a lot which he owned in a subdivision it had developed. The trial court granted the injunction. We affirm.

Palmetto Dunes developed a residential and resort subdivision on Hilton Head Island. It recorded an instrument containing covenants that restricted certain tracts designated as "Limited Residential" areas. The covenant central to this appeal provides that no building may be constructed upon any lot without Palmetto Dunes' written approval of the building plans and the building location plans, and accords Palmetto Dunes the discretion to disapprove plans for "purely aesthetic considerations."

Palmetto Dunes also created a nine person committee known as the Architectural Review Board to evaluate the exterior positioning and aesthetics of proposed homes, and to approve or disapprove plans pursuant to the covenant. In addition, Palmetto Dunes published a document entitled Policy, Procedures and Building Guidelines to Follow When Building in Palmetto Dunes Resort, which describes the approval process and the operation of the Board. The preamble of this document explains that the restrictive covenants were established to "assure and preserve certain high standards of aesthetics and materials ... and to create certain procedures to enable the community to permanently control the quality of its neighborhoods."

The document goes on to provide that the Board is concerned with "all elements of aesthetics," and specifies the "major considerations" to be: "(1) how the house will look to the neighbors (2) color of stain (3) roof line (4) window treatments and exposure (5) general harmony with area and natural surroundings (6) landscaping plans."

The procedures described in the document require an owner to submit an "Application for Residential Construction" along with a "site plan" and "elevation drawing" to the Board. The document admonishes that the Board "often withholds final approval and makes suggestions for improvements that [its] experience [has] shown to be wise."

In December 1980, Brown purchased an unimproved lot subject to the restrictive covenants discussed above on which he intended to build his personal residence. He was familiar with the "policy, procedures and building guidelines" as published by Palmetto Dunes. In February 1981, he filed an application for approval of construction along with proposed building and site plans. The Board reviewed the application and refused to approve the plans. The minutes of the Board's meeting state: "[Brown's] house is rejected due to aesthetics and the uniform opinion of the Board is that the finished product does not represent the quality we are striving for." The chairman of the Board informed Brown by letter that, although other matters concerning the plans were discussed, the general reason for the rejection "was on the basis of aesthetics." The chairman suggested that Brown work on the plans to make them more "pleasing and acceptable."

At the next meeting of the Board, in March 1981, Brown appeared personally to present proposed "cosmetic" changes to make the plans acceptable, such as landscaping alternatives and the installation of dormer windows in the roof over the garage entrance. The Board continued to find the plans unacceptable. The minutes from the meeting state: "It was the unanimous decision of those present that the house is still unapprovable. The garage front and roofline overpower the house entirely too much."

By a second letter, the chairman of the Board informed Brown of its decision that: "The house is still unacceptable to the Board--basically because the garage simply overpowers the house, both the front elevation and the roof line."

Shortly thereafter, Brown's lot was discovered with trees marked for cutting and with stakes placed as if construction was imminent. On March 16, 1981, Palmetto Dunes sought and obtained a temporary order restraining Brown from commencing construction on the lot. Brown then agreed not to attempt construction until there was a final adjudication of the dispute, and the trial judge issued a temporary injunction pendente lite.

The hearing on Palmetto Dunes' suit for a permanent injunction was held in February 1983. Brown defended on the primary grounds: (1) that the language in the covenant allowing Palmetto Dunes to refuse approval for aesthetic reasons was unenforceable as a matter of law; and (2) that even if the provision was otherwise enforceable, it should not be enforced in his case because Palmetto Dunes exercised its authority to disapprove plans in an unreasonable manner. The trial judge granted Palmetto Dunes its requested relief, and this appeal followed.

I

Although Brown accepts the concept of requiring approval of plans before construction, he challenges the validity of the covenant here on the ground that it lacks objective standards to guide the Board in its approval or disapproval of plans. ¹ Specifically he argues that the provision allowing disapproval for "purely aesthetic considerations" is vague and ambiguous, thereby enabling Palmetto Dunes to be arbitrary in its decisions.

Rejecting similar arguments, courts have upheld covenants that provide no criteria to guide the approving authority in deciding upon the suitability of proposed construction. See Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, 449 P.2d 361 (1969); Hannula v. Hacienda Homes, Inc., 34 Cal.2d 442, 211 P.2d 302, 19 A.L.R.2d 1268 (1949); Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430 (1957). Other courts confronted with similar arguments have upheld covenants whose criteria for approval can hardly be said to be more specific than the "aesthetic considerations" criterion involved here. See Snowmass American Corp. v. Schoenheit, 524 P.2d 645 (Colo.App.1974) (stated purpose of all covenants was to establish and maintain mountain residential area "of the highest possible quality" and protect its "value, desirability and attractiveness"); Winslette v. Keeler, 220 Ga. 100, 137 S.E.2d 288 (1964) (covenant required building to be in "conformity and harmony of external design and general quality with the existing standards of the neighborhood"); Normandy Square Association, Inc. v. Ells, 213 Neb. 60, 327 N.W.2d 101 (1982) (covenant required plans to be approved "as to the harmony of external design and location in relation to the surrounding structures and topography"); Syrian Antiochian Orthodox Archdiocese v. Palisades Associates, 110 N.J.Super. 34, 264 A.2d 257 (1970) (covenant allowed disapproval of plans "which are not suitable or desirable in [grantor's] opinion").

Our Supreme Court has held that to be valid and enforceable a restrictive covenant must, among other things, "not be too indefinite." Vickery v. Powell, 267 S.C. 23, 28, 225 S.E.2d 856, 858 (1976). "Restrictive covenants are contractual in nature," so that the paramount rule of construction is to ascertain and give effect to the intent of the parties as determined from the whole document. Hoffman v. Cohen, 262 S.C. 71, 75, 202 S.E.2d 363, 365 (1974); Easterby v. Heilbron, 26 S.C.L. (1 McMul.) 462 (1840).

Applying these principles, we find the "aesthetic considerations" clause is not indefinite. Its settled intent, viewed in relation to the entire document, is to vest in Palmetto Dunes the authority to disapprove plans based upon its judgment of their aesthetic suitability within Palmetto Dunes Resort. Brown displayed his understanding of this by proposing to make cosmetic changes to the house following the initial rejection. The parties voluntarily bound themselves to this arrangement, which they had the right to do. See Winslette v. Keeler, 220 Ga. 100, 137 S.E.2d 288; Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430.

Brown urges that the phrase "aesthetic considerations" is ambiguous so that we must apply the rule of construction that requires ambiguities in a restrictive covenant to be strictly construed against the party seeking to enforce it. See Donald E. Baltz, Inc. v. R.V. Chandler and Co., 248 S.C. 484, 151 S.E.2d 441 (1966). We conclude, however, that this rule is not applicable here. "[T]his rule of strict construction should not be applied so as to defeat the plain and obvious purpose of the instrument." Davey v. Artistic Builders, Inc., 263 S.C. 431, 436, 211 S.E.2d 235, 237 (1975).

The covenant, by making no attempt to set forth objective "aesthetic considerations," implicitly recognizes, as do we, that it is impossible to establish absolute standards to guide a judgment of taste. ² But this does not compel the conclusion that the covenant is ambiguous. We agree with the trial judge that although people may reasonably differ as to whether a house is aesthetically appropriate, the covenant is unambiguous in leaving this solitary judgment to Palmetto Dunes. The plain and obvious purpose of the covenant is to vest this discretion in Palmetto Dunes, which is constrained only to exercise its judgment reasonably and in good faith. See Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430.

II

We next consider whether the trial judge correctly ruled that Palmetto Dunes reasonably and in good faith disapproved Brown's plans. This being an action in equity tried by a single judge, we may decide whether the evidence supports this factual finding based upon our own view of the preponderance of the evidence. See Mims v. Edgefield County Water and Sewer Authority, 278 S.C. 554, 299 S.E.2d 484 ...