Agenda - Planning Commission - 11/01/2007

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Zoning Bulletin the subdivision or the alteration of the boundary Lines, and it requested that the court issue a declaration to that effect. Ultimately, the court granted judgment to Fenwick Tarragon, noting that Penny Creek did not specify in the covenant that the property could not be used for condominiums. The court found Fenwick Tarragon did not need permission.prior to converting the apartments and ord~red that the conversion could proceed. Penny Creek appealed. DECISION: Affirmed. Restrictive covenants were contractual in nature, and, therefore, the language used in a restrictive covenant had to be construed according to its plain and ordinary meaning. The appeals court noted that restrictions on the use of property were historically disfavored, finding that: "toen- force a restrictive covenant, a party must show that the restriction applies to the property either by the covenant's express language or by a plain un- mistakable implication...Restrictions on the use of property will be strict- ly construed with all doubts resolved in favor of free use of the property, although the rule of stri~t construction should not be used to defeat the plain and obvious purpose of the restrictive covenants." The lower court had found that the. relevant language of the covenant was clear and unambiguous; the restriction on subdividing the property without obtaining the prior written consent of Penny Creek 'applied only to the subdivision of the land and not to the division of the landown- ers'ownership interest in the property. The lower court had found further that the covenant did not speciilcally prohibit the use of the land for con- dominiums, and changing apartments to condominiums did n<;>t amount . to a change in u!!e. . The appeals court agreed with this finding. The plain language in the subsection of the covenant that related to' subdivision indicated a "clear intention" to prevent any change of the size or boundary of ~he property or land by requiring prior written permission for subdivision or altera- tion of the boundary lines. Supporting the interpretation that this subsec- tion was created so that Penny Creek could retain control of the lot size, within the same subsection, Penny Creek reserved the right to replat the property or change the boundary lines in a manner to improve the value and aesthetic appearance of the existing development. FUrther, the appeals court found that language in the subsection that fol- lowed also dealt with altering boundary lines by requiring written permis- sion to combine lots or parcels to create one larger. one. It was clear that the controlling section of the covenants was designed so that Penny Creek would control any subdivision of land which would alter boundary lines in such a manner as would change the size of a lot or parcel. The covenant also included definitions of the words "lot" and "parcel," demonstrating further that the covenant dealt primarily with the physical 'nature of the land. The appeals court found that nothing in the covenants indicated that 8 94 .. " \ .1 .~---.... \ ) " il J! :1 II II ,I ., 'I !I il II il II I, q ;1 II il I, II l! I, 'I ! I , I I 1 I