Rogers v. Watson

• Citation: 594 A.2d 409,156 Vt. 483
• Decision Date: 17 May 1991
• Docket Number: No. 88-391,88-391
• Court: Vermont Supreme Court
• Parties: Marcia M. ROGERS, Herbert & Mary Taylor, Edwina Bard, Rudolph & Dorothy Bondone, Brian & Janet Maroney, Michael & Mary Walsh, et al. v. Gerald E. & Kay F. WATSON, State of Vermont Agency of Natural Resources, and Town of Bennington v. Charles M. & Hazel L. WILKINSON.

Page 409

594 A.2d 409

156 Vt. 483

Marcia M. ROGERS, Herbert & Mary Taylor, Edwina Bard, Rudolph & Dorothy Bondone, Brian & Janet Maroney, Michael & Mary Walsh, et al. v. Gerald E. & Kay F. WATSON, State of Vermont Agency of

Natural Resources, and Town of Bennington v. Charles M. & Hazel L. WILKINSON.

No. 88-391.

Supreme Court of Vermont.

May 17, 1991.

Lon T. McClintock of Offices of Thomas H. Jacobs, Bennington, for plaintiffs-appellees.

Timothy L. Taylor and William H. Meub of Kelley, Meub, Powers & English, Ltd., Rutland, for defendants-appellants Gerald and Kay Watson.

Jeffrey L. Amestoy, Atty. Gen., and Mark J. Di Stefano, Asst. Atty. Gen., Montpelier, for defendant-appellee State of Vt. Agency of Natural Resources.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

DOOLEY, Justice.

This action began with a complaint by adjoining landowners for an injunction requiring defendants, Gerald and Kay Watson, to remove a mobile home they had placed on part of their land. The complaint alleged that the mobile home violated a restrictive covenant applicable to defendants' land. It also joined the Vermont Agency of Natural Resources, seeking to require it to enforce certain subdivision regulations that were allegedly violated by the presence of the mobile home. The Agency cross-claimed against defendants to enforce the regulations. The trial court found for the plaintiffs and the Agency and granted an injunction requiring removal of the mobile home. It also imposed a fine for violation of the regulations. Defendants appeal, and we affirm.

In 1963, defendants purchased a lot in Bennington from Olaf and Edwina Bard, the first division of a 200-acre parcel into a residential development. There are no restrictions in this deed. Thereafter, the Bards sold off other parcels, and each deed, except one to the Bards' son and daughter-in-law, contained a covenant similar to the following:

No mobile home, trailer, or other similar structure shall be placed or maintained on said premises without the prior approval in writing of the grantor herein or his heirs, executors, administrators or assigns.

In 1977, Edwina Bard (Mr. Bard having died) sold to Charles and Hazel Wilkinson a lot adjacent to that owned by defendants. The deed contained the above restrictive covenant prohibiting the placement of a mobile home on the land. In 1981, defendants purchased part of this lot from the Wilkinsons. The deed did not mention the restrictive covenant.

Because the Wilkinsons were subdividing their land, the transfer to defendants required a permit from the Agency of Natural Resources unless deferred because defendants waived development rights. Defendants applied for and received such a deferral after agreeing that they would not construct or erect any structure, "the useful occupancy of which [would] require the installation of plumbing and sewage treatment facilities" on the lot without first obtaining a permit. The deed contained this restriction.

In October 1985, defendants decided to place a mobile home on the lot they had acquired from the Wilkinsons. Their son-in-law was afflicted with a brain tumor, making it necessary for them to house him, their daughter, and two infant grandchildren. For this purpose, they purchased the mobile home, poured a slab foundation, and began to construct the septic system when they became aware that they might need a permit from the Agency. Because of soil conditions, the Agency denied a permit for a septic system. Nevertheless, defendants completed the sewage system but did not connect it within the home. Water was available from defendants' nearby house but was not connected. The mobile home does have heat and electricity. Defendants' daughter and son-in-law use the mobile home as their home, but they go to defendants' home for all living needs requiring water or sewage.

Plaintiffs in the original action are neighboring landowners, at least some of whom purchased land from the Bards after the sale from the Bards to the Wilkinsons. Edwina Bard was also a plaintiff. She died while the action was pending and was replaced by the executor of her estate.

The trial court found that the restrictive covenant ran with the land, applied to defendants, and could be enforced by plaintiffs. It further found that defendants' actions in placing the mobile home on the land required a permit under the deferral language and the applicable Agency regulation. It found the Agency regulation to be valid.

On appeal, defendants argue that the trial court erred in granting plaintiffs an injunction because there was no showing that either the benefit or the burden of the restrictive covenant was intended to run with the land. As to the Agency, they argue that the placement of the mobile home on the land without connecting the water and sewage does not require a permit under Agency regulations. Alternatively, they argue that if the regulation is applicable, it is invalid because it is unconstitutionally vague, is beyond the Agency's statutory authority and represents an excessive delegation of legislative power.

We begin with defendants' argument that it was improper to enforce the restrictive covenant against them. In order to enforce a restrictive covenant against an owner other than the original covenantee, the covenant must run with the land. Chimney Hill Owners' Assoc. v. Antignani, 136 Vt. 446, 454, 392 A.2d 423, 428 (1978). At law, a covenant will run with the land if four requirements are met:

First, the covenant must be in writing. Secondly, the parties must intend that the covenant run with the land. Thirdly, the covenant must "touch and concern" the land. Lastly, there must be privity of estate between the parties.

Albright v. Fish, 136 Vt. 387, 393, 394 A.2d 1117, 1120 (1978). In equity, the requirements are relaxed in part: the touch and concern requirement is "somewhat more easily met" and the privity requirement "is replaced by one of notice." Id. at 393 n. 1, 394 A.2d at 1120 n. 1. ¹ Because this is an action for injunctive relief, we are dealing with the enforcement of an equitable servitude rather than a restrictive covenant at law.

Defendants concede that the first, third, and fourth requirements are met but argue that there is inadequate evidence of intent to have the restriction run with the land. The intent can be implied as well as expressed. See McDonough v. W.W. Snow Constr. Co., 131 Vt. 436, 441, 306 A.2d 119, 122 (1973). Intent can also be shown by extraneous circumstances. See Welch v. Barrows, 125 Vt. 500, 504, 218 A.2d 698, 702 (1966). In some instances, the "promises are so intimately connected with the land as to require the conclusion that the necessary intention for the running of the benefit is present absent language clearly negating that intent." Albright, 136 Vt. at 393, 394 A.2d at 1120.

Defendants' main argument is that there is insufficient evidence that a benefit or burden was intended to run with the land, and consequently, the restriction cannot be enforced against them. We will begin with the burden side of the equation. The restriction prohibits the placement of a particular type of structure on defendants' land. This is the sort of restriction "so intimately connected with the land" that we find the "necessary intention ... absent language clearly negating that intent." Id.

Extraneous factors also point strongly to the intent to have the burden run with the land. The Bards retained adjoining or nearby land. The inclusion of the restriction in most, if not all, other deeds from the Bards shows an intent to create a common development scheme even if it was implemented imperfectly. See id. at 394, 394 A.2d at 1120.

For the above reasons, we hold that the trial court was correct in its conclusion that the burden of the restrictions ran with the land and could be enforced against defendants. Although defendants make extensive arguments that the benefit did not run with the land, we need not reach these arguments. The covenant specifically requires "the prior approval in writing of the grantor herein or his heirs, executors, administrators or assigns." Although the grantor is now deceased, the executor has joined this action and can enforce the covenant as a named beneficiary of it. We are unpersuaded by defendants' argument that the executor has no power to enforce the covenant because the real property went directly to the heirs. It is sufficient that the executor is specifically named in the covenant. The trial court did not err in granting the injunction to enforce the restrictive covenant.

The remaining three issues involve the trial court's conclusion that placing the mobile home on the lot required a permit from the Agency of Natural Resources. Defendants first argue that the court misconstrued the applicable Agency regulation. The regulation provides:

No structure or building, the useful occupancy of which will require the installation of plumbing and sewer treatment facilities may be constructed or erected on a lot subject to a deferral of permit, unless the lot owner first obtains a permit as required by these subdivision regulations.

Agency of Natural Resources, Environmental Protection Rule § 3-06, 5 Code of Vt.Rules, Rule 1203301, at 020 (1982). Defendants concede that the mobile home is a building but argue that the useful occupancy does not require installation of either plumbing or water facilities as shown by the actual use of the home without these facilities.

We start by emphasizing that absent compelling indications of error we must accept the interpretation of administrative regulations by the agency responsible for their implementation. In re Vitale, 151 Vt. 580, 582, 563 A.2d 613, 615 (1989). As the United States Supreme Court stated in Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 1314, 99 L.Ed.2d 515 (1988), "when it is the Secretary's regulation that we are construing, ... we are properly hesitant to...