Mazzola v. Deeplands Dev. Co.

329 Mich.App. 216

942 N.W.2d 107

Thomas MAZZOLA, Kathryn Mazzola, Edward Schervish, Rhonda Schervish, Lillian Kachadourian, Behrouz Oskui, Anthony Said, Aristidis Thanasas, Panagiota Thanasas, Peter Macuga, Lisa Macuga, Gregory Ahee, Elizabeth Ahee, Benjamin Best, Lynne Best, and Bharani Yerramalli, Plaintiffs-Appellants,

v.DEEPLANDS DEVELOPMENT COMPANY LLC, Defendant-Appellee.

No. 343878

Court of Appeals of Michigan.

Submitted June 4, 2019, at Detroit.

Decided July 25, 2019, 9:00 a.m.

Giarmarco, Mullins & Horton, PC, Troy (by Dennis M. Rauss ) and John B. Lizza, Grosse Pointe Farms, for plaintiffs.

Abbott Nicholson, PC, Detroit (by William D. Gilbride, Jr., Christopher R. Gura, and Erin R. Cobane ) for defendant.

Before: Gadola, P.J., and Boonstra and Swartzle, JJ.

Swartzle, J. Restrictive covenants and negative reciprocal easements on real property implicate two fundamental freedoms—the freedom to contract and the freedom to use property. When an owner voluntarily agrees to restrict a particular use of real property, the owner need not, at the same time, also reserve all of the other, lawful uses of the property. The freedom to use real property is the baseline, and it is the restriction of that freedom through covenants and easements that must be made with clarity and particularity.

In this action, plaintiffs seek to impose a restrictive covenant or reciprocal negative easement on their neighbor's real property to prevent the development of a cul-de-sac and 18 residential buildings. Because the neighbor's proposed development plan does not run afoul of the actual restrictive covenants and there is no basis to impose a reciprocal negative easement, we affirm the trial court's grant of summary disposition to the neighbor.

I. BACKGROUND

Plaintiffs reside in the village of Grosse Pointe Shores in subdivisions known as Deeplands Subdivision One (Subdivision 1) and Deeplands Subdivision Two (Subdivision 2). In the early 1950s, the land now occupied by the two subdivisions and the land at issue in this appeal (the subject property)—a 7.83-acre parcel of land located at 55 South Deeplands Road—were owned by common owners. In 1953, the owners chose to divide their property and create the subdivisions, and in so doing, the owners subjected the subdivisions to specific deed restrictions outlined in two formal declarations. With respect to Subdivision 1, the declarations provide:

II A – Building Sites

1. Definition and Minimum Sizes – Nothing contained herein shall be so construed as to prevent any owner of property from erecting a permitted type of residential building on a site consisting of one full platted lot, plus all or any fraction of adjacent lots in the Grantors, without reference to the platted lot lines other than to observe the building line requirements set forth in Section III C hereof. The minimum size of building sites shall be, for each lot, the lot as shown on said plat except that in no case shall any site have smaller frontage on a street than one hundred (100) ft.

Subdivision 2 is subject to a similar, albeit more specific requirement:

II A – Building Sites – Definition and Minimum Sizes

Nothing contained herein shall be so construed as to prevent any owner of property from erecting a permitted type of residential building on a site consisting of one full platted lot, plus all or any fraction of adjacent lots in this subdivision and other adjacent subdivisions of the Grantor, without reference to the platted lot lines other than to observe the building line requirements set forth in Section III C hereof. The minimum size of building sites shall be, for each lot, the lot as shown on said plat except that in no case shall any site have smaller frontage on a street than as follows:

1) On South Deeplands Road – 100 ft.

2) On North Deeplands Road and on the west side of Ballantyne Road – 80 ft., providing 80 ft. sites become permissible under the Zoning Ordinance.

Not all of the original lots in Subdivision 2 have building frontage on South Deeplands Road, North Deeplands Road, or Ballantyne Road—for example, Lots 88 and 89 front Deeplands Court.

As part of the declarations and in consideration for her retention of the 7.83-acre subject property, one of the original owners, Annette Stackpole, made specific commitments with respect to any future development that might occur on the subject property:

Annette S. Stackpole, one of the parties to these covenants and the sole owner of certain unplatted lands abutting South Deeplands Road to the south between Sheldon Road and Ballantyne Road, which lands are not included in the recorded plat referred to herein, does hereby, in consideration of valuable benefits to be derived from such mutual undertakings, agree to the following commitments regarding only the portion of said lands which directly abuts South Deeplands Road, namely:

Not to build on said portion or to sell all or any part thereof for building purposes unless the following restrictions be imposed, namely:

1) The front building line shall be no less than thirty-five (35) ft. from South Deeplands Road. 2) Side building lines shall be such that no dwelling may be built closer to the dwelling owner's side boundary lines than 10% of the average width of site on one side and 15% on the other side.

3) Minimum sizes of building sites and of dwellings shall conform to those stipulated herein for lots 25-44 inclusive, Deeplands Subdivision.

4) Architectural Control will be provided for in no less restrictive form that [sic] set forth in Section III D hereof.

Defendant acknowledges that Condition 3 means that all of the declarations for building sites in Subdivisions 1 and 2 apply to the subject property.

Following the death of Stackpole's heir, defendant purchased the subject property and planned to develop it by adding a street with a cul-de-sac and dividing the 7.83-acre parcel into 18 parcels for the construction of single-family residences. Plaintiffs filed this action seeking to halt defendant's development. Plaintiffs argued that defendant's proposed development plan violated the declarations and commitments applicable to the subdivisions and the subject property. Specifically, plaintiffs argued that the covenants prohibited defendant from building a new street on the subject property and prohibited defendant from dividing the property to create smaller properties that did not directly abut South Deeplands Road, which borders the subject property to the east. Plaintiffs argued that the subject property could not be divided in a way that would create parcels of land that did not abut and face South Deeplands Road. Plaintiffs also argued in the alternative that the doctrine of reciprocal negative easements precluded defendant from carrying out its development plan.

Defendant filed a motion for summary disposition, arguing that the language of the declarations and commitments did not restrict the development of the subject property in the manner argued by plaintiffs. Plaintiffs opposed the motion, arguing that summary disposition was premature because the parties had not conducted discovery. The trial court agreed with defendant that the covenants did not limit the development of the subject property as described by plaintiffs. Without addressing the doctrine of reciprocal negative easements or plaintiffs' argument that summary disposition was premature, the trial court granted defendant's motion for summary disposition.

Plaintiffs appealed.

II. ANALYSIS

A. STANDARDS OF REVIEW

Defendant moved for summary disposition under MCR 2.116(C)(5), (C)(8), and (C)(10), but the trial court did not specify which rule formed the basis for its ruling. It is clear from the record, however, that the trial court did not grant summary disposition on the basis of (C)(5) (lack of legal capacity to sue), nor was it a ground for appeal.

When a motion seeks summary disposition under both (C)(8) and (C)(10), but the parties and trial court rely on matters outside of the pleadings, we review the matter through the lens of (C)(10). Silberstein v. Pro-Golf of America, Inc. , 278 Mich. App. 446, 457, 750 N.W.2d 615 (2008). This Court reviews de novo a trial court's decision to grant or deny summary disposition under MCR 2.116(C)(10). Pace v. Edel-Harrelson , 499 Mich. 1, 5, 878 N.W.2d 784 (2016). " ‘The interpretation of restrictive covenants is a question of law that this Court reviews de novo.’ " Eager v. Peasley , 322 Mich. App. 174, 179, 911 N.W.2d 470 (2017), quoting Johnson Family Ltd. Partnership v. White Pine Wireless, LLC , 281 Mich. App. 364, 389, 761 N.W.2d 353 (2008).

B. RESTRICTIVE COVENANTS

Plaintiffs first argue that the trial court erred because it so misinterpreted the language of the restrictive covenants that it effectively rewrote and restated them. Restrictive covenants involve two fundamental freedoms—the freedom to contract and the freedom to use property. In the context of restrictive covenants, a tension between the two can sometimes arise. The covenants are contracts pertaining to real property that Michigan courts perceive as having particular value: "Because of this Court's regard for parties' freedom to contract, we have consistently supported the right of property owners to create and enforce covenants affecting their own property." Eager , 322 Mich. App. at 180, 911 N.W.2d 470 (quotation marks and citation omitted). At the same time, by their very nature, restrictive covenants can also negatively impact the free use of property.

Accordingly, courts must apply unambiguous restrictive covenants as-written "unless the restriction contravenes law or public policy, or has been waived by acquiescence to prior violations." Id. (quotation marks and citation omitted). "The general rule with regard to interpretation of restrictive covenants is that where no ambiguity is present, it is improper to enlarge or extend the meaning by judicial interpretation." Webb v. Smith (After Remand) , 204 Mich. App. 564, 572, 516 N.W.2d 124 (1994)...