Opinion
C.A. No. 205-N.
Date Submitted: July 9, 2004.
Revised November 18, 2004.
Clifford B. Hearn, Jr., Esquire, Wilmington, DE.
John E. Tracey, Esquire, Young Conaway Stargatt Taylor, LLP, Wilmington, DE.
Dear Counsel:
Plaintiffs James and Linda Caccamo, Michael and Maureen Emmett, Charles and Elizabeth Pope, Timothy and Stacy Shepps (the "Shepps"), Victor and Georgiana Trietley, William and Susan Wright (the "Wrights"), Joseph and Charlotte Skomorucha, and David and Mary Simpson are owners of lots in Sections 3 and 4 of the Greylag subdivision in New Castle County, Delaware. They, along with Plaintiff The Greylag 4 Maintenance Corporation (the "Maintenance Corporation"), a civic association which purports to govern the private lane providing ingress and egress to Section 4 (the "Private Lane"), have sought injunctive relief against Defendant Heather Lynch-James ("Lynch-James" or the "Defendant"), the owner of Lot 4 of Greylag Section 4. The Plaintiffs ask this Court to prevent Lynch-James from using her property as a Recuperation Center — a place for patients who have been discharged from a hospital, but still do not have the strength to return home, to rest and be cared for over the course of a limited time period — because they claim it violates deed restrictions in the Greylag community, restrictions on the Greylag 4 subdivision plan, conditions adopted by the Maintenance Corporation to control the use of the private lane, and New Castle County (the "County") zoning requirements. Lynch-James has moved for summary judgment, an effort which, for the reasons set forth below, is partly successful.
The owners of all of the lots of Section 4 are plaintiffs in this action except, of course, the Defendant.
I. FACTUAL BACKGROUND
Plaintiffs' Motion for a Preliminary Injunction and Defendant's Motion for Summary Judgment were argued at the same hearing, two weeks after the filing of Plaintiffs' Verified Complaint (the "Complaint"). The motion for interim injunctive relief was denied. As such, the factual record before the Court is less developed than the record typically supporting a motion for summary judgment.
Greylag is a residential development located in St. Georges Hundred on land at one time owned by Ruth Tindall ("Tindall"). It is divided into four sections, each of which contains a number of lots of varying size. Greylag 1 contains 11 lots; Greylag 2 contains 10; Greylag 3 contains 7; and Greylag 4 is the smallest, containing only 5.
Affidavit of Loretta Murphy ("Murphy Aff.") ¶¶ 5-8. The Defendant has argued that the Murphy Affidavit "consists of nothing but hearsay on all of its allegedly salient points." Letter from John E. Tracey, Esq. to the Court, dated July 7, 2004, at 2. The facts for which this affidavit is cited are those which are uncontested or could be considered within the affiant's personal knowledge.
On February 15, 1990, Tindall recorded with New Castle County a major subdivision plan for Greylag 4 (the "Record Plan"). Note 9 on the Record Plan set forth the following provision: "All building structures shall maintain a minimum of 100 feet separation and an area of less than 3,000 sq. ft. as per off. of state fire marshall [sic]."
Compl. ¶ 12. The Record Plan appears at App. to Def.'s Opening Br. in Supp. of Her Mot. for Summ. J. ("Def.'s App.") at 28; Compl. Ex. G.
Compl. Ex. G.
Lots 2, 3, and 5 of Greylag 4 were sold by Tindall shortly after the Record Plan was recorded by deeds dated March 16, 1990, February 28, 1990, and April 16, 1999, respectively. Although lots were each subject to various deed restrictions, the restrictions were not uniform from deed to deed. The restrictions present in all three deeds are as follows:
(1) No business, commercial or industrial enterprise shall be conducted on the demised premises.
(2) Said premises may be used only for the residence of a single family.
(3) Not more than one single family residence with appropriate outbuildings such as a garage may be constructed on the premises.
(4) The premises shall not be subdivided.
(5) No dwelling house will be erected on the premises which has less then 1,800 square feet of usable floor space and before any building is erected, the plans for approval shall be submitted for signature.
(6) The aforesaid conditions and restrictions shall terminate on the expiration of twenty-five (25) years from the date of settlement.
(7) In the event that a single family dwelling has not been constructed in the manner herein provided within three (3) years of the date of settlement, the lands herein conveyed will be conveyed, at the parties of the first part's option to the party of the first part, or their survivor for the original purchase price.
Def.'s App. at A-32 to A-33, A-34 to A-35, A-44 to A-45. The numbering presented here is slightly different from that present in the deeds for the sake of convenience.
These were the only restrictions in the deed for Lot 2. In addition to those restrictions, the deeds for Lots 3 and 5, when first sold, contained these additional restrictions:
Id. at A-32 to A-33.
(8) The Party of the first part, her heirs and assigns, shall have the first option for a reasonable time to purchase the premises at the best bona fide price then offer by any other person for the same.
(9) Lot 2, 3 and 5 will form its [sic] own Civic Association for the purposes of allowing "right of way" passage for a private lane.
Id. at A-34 to A-35, A-44 to A-45.
A subsequent deed, dated September 6, 1994, for Lot 3 between the original buyer and seller for nominal consideration, substituted for the last quoted provision a restriction that "Lot 3, 4, and 5 will form its [sic] own Civic Association for the purpose of allowing `right of way' passage for a private lane." The deed for Lot 5 remained unchanged. The deeds for Lots 1 and 4, the last two lots sold by Tindall's attorney-in-fact in November and December 1996, contained no deed restrictions.
Id. at A-36 to A-37.
Id. at A-32 to A-33 A-40 to A-41. The Record Plan shows that the private lane only provides access to Lots 3, 4, and 5. Id. at A-28. It has been asserted that Tindall intended for Lots 1 and 4 to be subject to similar restrictions, but that Tindall's attorney-in-fact was not aware of her plans. Murphy Aff. ¶ 11. The lots in the first three sections of Greylag, sold before Defendant's lot, were generally burdened with a restriction limiting them to residential use. An unusual feature of the Greylag restrictions is their limited duration (25 years). Thus, for some lots in Greglag, the restrictions have expired because of the passage of time.
Lynch-James, a registered nurse at St. Francis Hospital in Wilmington, Delaware, has desired to open a Recuperation Center since 2001. To this end, she began communicating with various state and county officials and agencies, including the Land Use Department of New Castle County, to determine the requirements for opening such a facility.
Lynch-James finally settled on Lot 4 of Greylag 4, also known as 207 Ruth Drive, as the site for her Recuperation Center. She purchased the property, with its existing dwelling, in June 2003. She had a title search performed on the property which revealed, quite correctly, that this property was not subject to any recorded restrictions. She immediately began preparations for the opening of her facility.
Compl. ¶ 4, Def.'s App. at A-42 to A-43.
Extensive renovations would be required to make the existing house on Lot 4 compatible with Lynch-James' plans for the Recuperation Center and for this she had need of a contractor. Based on the recommendation of the previous owner of her home, she hired Plaintiff Michael Emmett ("Emmett"), the owner of Lot 1 in Greylag 4, in the latter part of June 2003. Emmett was paid more than $117,000 to transform the garage into living space, to build an addition, to enlarge the family room, to install a deck, and to make improvements to the kitchen.
The parties dispute what Lynch-James initially told Emmett about the purpose of the renovations; however, he testified at deposition that around September 23, 2003, he was informed that the renovations were made "to have folks staying in the house other than her family." Emmett raised no objections at the time, other than expressing some irritation that the drywall work he had completed might have to be removed to install a sprinkler system in the house due to recent requirements of the State Fire Marshal.
The Plaintiffs contend that Lynch-James informed Emmett the space would be used for friends visiting from Jamaica and advised other neighbors that the alterations and additions would be used to accommodate her parents. The Plaintiffs have asserted that "[h]er parents have not moved in and [Lynch-James] is not certain if they will." Pls.' Answering Br. at 4. In addition, their Complaint alleges that Lynch-James was "less than forth right [sic] in that none of her applications to the various government agencies indicated" her true intentions until she applied for the use variance. Compl. ¶ 38.
App. to Pls.' Answering Br. at A-64.
Lynch-James applied for the necessary building permits for each of the alterations performed by Emmett. For instance, on July 10, 2003, she sought from the County a building permit for "a 2-story addition to family room, enlarge entry with covered porch, convert garage to living areas and 10×19 deck." On July 22, 2003, she applied for an additional building permit for a residential addition of 634 square feet, for a one and one-half story addition, and a 20-square foot interior renovation. A conversation with the State Fire Marshal's Office led to the installation of the sprinkler system about which Emmett complained. By the time the work was completed in September 2003, the area of the house had increased from 2,875 square feet to 4,448 square feet. The property which once consisted of four bedrooms, a living room, a dining room, a kitchen, and a family room now contained seven bedrooms, a living room, an office, a kitchen, and five and one-half bathrooms.
Compl. ¶ 19.
On October 9, 2003, pursuant to a request by Lynch-James, the County's Department of Land Use issued a zoning certification, which verified that her parcel, zoned NC2a (Neighborhood Conservation, minimum two-acre lot size), permitted her to have "up to three people stay in [her] home for patient aftercare." On November 24, 2003, Lynch-James applied for an Institutional/Residential Type 1 Use Variance with New Castle County that would have permitted her to care for between four to ten patients.
Def.'s App. at A-64.
Compl. ¶ 27.
During the review process for this application, Lynch-James first became aware that her neighbors objected to her proposed use of the property. They informed her that they believed her property was subject to deed restrictions against commercial uses and that her home, by virtue of note 9 on the Record Plan, was subject to a 3,000 square foot area limitation.
As a result of the concerns voiced by Lynch-James' neighbors, the County scheduled a public meeting to discuss her site plan application and request for a Certificate of Use to permit an Institutional-Residential use. Following the meeting, the County issued a comment letter which found the site plan for the variance unacceptable until various problems, unrelated to any deed restrictions or the 3,000 square-foot limitation, were resolved. Instead of complying with the County's additional demands, Lynch-James withdrew her application on January 9, 2004, and proceeded with the number of patients, three, that had been previously approved. To this end, she began printing revised brochures and talking to medical professionals, and soon she accepted her first patient.
Compl. ¶ 29.
The patient cancelled her reservation after being apprised of this lawsuit.
The Shepps and the Wrights, Lynch-James' neighbors on either side of her property, were still concerned about the possible effects of Lynch-James' proposed use of her property and took an action which could be considered creative at best. Relying on language in their deeds, the Shepps and Wrights met and formed "The Greylag 4 Maintenance Corporation" on January 15, 2004. The purpose of the Maintenance Corporation was, among other things, to maintain the private drive that provides access to their homes and to enforce deed restrictions they claimed were applicable to the use of the private drive and their properties. The Shepps and the Wrights purported to make Lynch-James a member of the Maintenance Corporation. At this meeting, they also adopted a Declaration of Maintenance and Restrictions (the "Declaration") which, in part, purports to prevent "business, commercial, industrial or institutional traffic" on the private lane providing access to Greylag 4 (the "Private Lane Restrictions"). In addition to subjecting their properties to the terms of the Declaration, the Shepps and the Wrights sought to impose them on the property of Lynch-James without her approval.
Compl. ¶ 34, Ex. R. The Declaration, at Art. III ¶ 2, provides:
No business, commercial institutional, or industrial traffic is permitted access to any lot, by route of the easement, other than delivery or maintenance vehicles necessary for the maintenance of a single family home or for the well being and care to the members of that family.
The Declaration also addresses collection of funds needed to maintain the private lane. It provides, at Art. II ¶ 3, that each lot owner "is deemed to covenant and agree to pay to the [Maintenance] Corporation when due annual assessments or charges, or special assessments or charges established and collected from time to time as set and deemed necessary by a majority vote of the membership. . . ."
Following the formation of the Maintenance Corporation and the recording of the Declaration, the Maintenance Corporation along with all other residents of Greylag 4 and some residents from the adjoining Greylag 3 (the "Plaintiffs") commenced this action.
II. CONTENTIONS
The Complaint attacks Lynch-James' intended use of her property on myriad grounds; however, the Plaintiffs' contentions can be summarized in four arguments: (1) the deed restrictions preventing "business, commercial or industrial enterprise" and limiting use of the property to a "single family residence" that bind Lots 2, 3, and 5 of Greylag 4 and other sections of Greylag also bind Lynch-James' property by implication even though they do not appear in her chain of title; (2) Lynch-James' use of the property as a Recuperation Center violates the newly adopted and recorded Private Lane Restrictions governing use of road that provides access to Greylag 4; (3) the renovations to Lynch-James' property have violated the 3,000 square-foot limitation that is present in note 9 of the Record Plan; and (4) Lynch-James' intended use of the property violates the County zoning ordinance, specifically, the Home Based Business Ordinance.
Lynch-James has moved for summary judgment on all of the Plaintiffs' claims because: (1) she had no actual or constructive notice of any deed restrictions because they were not recorded in her chain of title and there is no common scheme or plan of development in the Greylag area; (2) the Private Lane Restrictions cannot be enforced against her because they were adopted and recorded without her consent or knowledge; (3) there is no private right of action allowing the Plaintiffs to enforce the 3,000 square-foot limitation set forth in the Record Plan and, even if one exists, the limitation is no longer valid; and (4) the Plaintiffs have no private right of action to enforce the Home Based Business Ordinance.
Lynch-James moved for "summary judgment on Plaintiffs' claims that her proposed operation of a business known as Serenity Gardens [the Recuperation Center] would violate" deed restrictions or the zoning code. Thus, the question of whether the Maintenance Corporation may assess and collect from Lynch-James the costs of maintaining the private lane is not before the Court.
For the reasons that follow, partial summary judgment is granted to Lynch-James with respect to the Private Lane Restrictions and the 3,000 square-foot limitation; otherwise, her motion is denied.
III. ANALYSIS
A. Applicable Standard
Under Chancery Court Rule 56, summary judgment may be granted only when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. When deciding a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party and the moving party has the burden of demonstrating that no material question of fact exists. "Importantly, in ruling on a motion for summary judgment, a judge should not weigh evidence and accept the argument perceived to be of greater weight . . . [but instead] may only determine whether or not there is a genuine issue as to a material fact. . . ."
Motorola, Inc. v. Amkor Tech., Inc., 849 A.2d 931, 935 (Del. 2004); Williams v. Geier, 671 A.2d 1368, 1375 (Del. 1996).
Cochran v. Stifel Fin. Corp., 2000 WL 1847676, at *4 (Del.Ch. Dec. 13, 2000), ( aff'd in part, rev'd in part on other grounds, 809 A.2d 559 (Del. 2002)); Tanzer v. Int'l Gen. Indus., Inc., 402 A.2d 382, 385 (Del.Ch. 1979).
Izquierdo v. Sills, C.A. No. 15505-NC, slip. op. at 3-4 (Del.Ch. June 29, 2004).
B. The Original Deed Restrictions
Lynch-James has asked that summary judgment be granted with respect to the Plaintiffs' claims that her property is burdened with certain deed restrictions preventing her from operating a Recuperation Center. For instance, the Complaint alleges that "[t]he current use of no more than 3 clients for purpose of medical recuperation violates the Deed Restrictions . . . in that it is a business and commercial use as she plans to take in clients for pay and contemplates using the premises for other than a single family home." Thus, the Plaintiffs seek to prevent Lynch-James from using her property for "Recuperation, Rehabilitation, or Respite Center or other healthcare activity," "for any commercial business, industrial or institutional purpose," or "for any purpose other than a single family residence." Because of the possibility that a restrictive covenant preventing Defendant's use may exist by implication, which presents a question of fact on the record before the Court, summary judgment cannot be granted.
Compl. ¶ 35.
Compl. Wherefore Clause § (c)(1)-(3).
This Court has long recognized the tension between protecting neighboring property owners' expectations for their community and the rights of landowners to use their property as they may lawfully choose.
The restrictive covenant calls into question competing legal interests. One is the right of a willing buyer and willing seller to enter into a binding contract. The other competing interest is the special nature of land, which has historically been permitted free use. The courts have sought to harmonize these competing interests by developing special guidelines as to the enforcement of restrictive covenants and the rule has evolved that "while the law favors the free use of land and frowns on restrictive covenants, they are recognized and enforced . . . where the parties' intent is clear and the restrictions are reasonable."
Chambers v. Centerville Tract No. 2 Maint. Corp., 1984 WL 19485, at *2 (Del.Ch. May 31, 1984) (quoting Maher v. Park Homes, Inc., 142 N.W.2d 430, 433 (Iowa 1966)).
In light of how restrictive covenants interfere with the free use of land `"[i]t is axiomatic that restrictive covenants may be enforced against a purchaser only if he or she had notice, either actual or constructive, of their existence.'"
Tusi v. Mruz, 2002 WL 31499312, at *3 n. 11 (Del.Ch. Oct. 31, 2002) (quoting Mendenhall Village Single Homes Ass'n v. Harrington, 1993 WL 257377, at *2 (Del.Ch. Oct. 31, 2002)). See also Van Amberg v. Bd. of Governors of Sea Strand Ass'n, 1988 WL 36127, at *7 (Del.Ch. Apr. 13, 1988) ("One who purchases property for value and without notice of any restrictions takes that land free of such restrictions.").
Actual notice is an awareness of the alleged restriction by the purchaser at the time of purchase. "Constructive notice is normally established by properly recording the instrument that contains the alleged restriction" The Plaintiffs do not allege that bright-line examples of either of these kinds of notice are present in this case. There is no claim that Lynch-James was actually aware of the deed restrictions or that any restrictions may be found in her chain of title — indeed her title search quite correctly revealed that were no recorded restrictions limiting the use of her property.
9 RICHARD R. POWELL, POWELL ON REAL PROPERTY § 60.04[4] (Michael Allan Wolf ed. 2002).
Van Amberg, 1988 WL 36127, at *7.
Compl. ¶ 10; Aff. of Heather Lynch-James ¶ 6.
The Plaintiffs instead argue that there was constructive notice under the "common plan doctrine." The common plan doctrine can be best described as using the general plan of development for a common development as a proxy for constructive notice. In other words, "[i]f the existence of a general plan is established, the reciprocal servitude burdening all the land included in the plan area will be implied on the basis of implied representation by the developer." In Tubbs v. Green, this Court articulated this doctrine by saying,
RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.14 (2000).
55 A.2d 445 (Del.Ch. 1947).
[W]here an owner of a tract of land lays it out in building lots, makes a plot showing a general building scheme, and sells to various purchasers in accordance therewith, inserting the same or similar covenants in all the deeds, it seems that an intent to benefit all the land in the tract and to induce purchases thereby may be inferred.
Id. at 448 (quoting Jackson v. Richards, 27 A.2d 857, 859 (Del.Ch. 1942)).
Recognition of an implied restrictive covenant necessarily "involves a relaxation of the writing requirement," and, thus, implied covenants "are not favored by courts and are [instead] construed in favor of the unrestricted use of free property." Thus, the inquiry becomes whether the party asserting the common plan doctrine can show, by clear and convincing evidence, that a common plan in fact existed. Whether a common plan existed is "an issue of fact, to be determined from the circumstances of each case."
9 POWELL ON REAL PROPERTY § 60.03[1] at 60-22. See also Gammons v. Kennett Park Development Corp., 61 A.2d 391, 397 (Del. 1948) (expressing the Delaware Courts' policy of favoring the free use of land).
In terms of standing, "any subsequent owner of any [burdened lot] may enforce the restrictions against the any other grantee or present owner." Welshire, Inc. v. Harbison, 88 A.2d 121, 123 (Del.Ch. 1952).
See Leon N. Weiner Associates v. Krapf, 623 A.2d 1085, 1092 (Del. 1993).
Id. at 1089.
It should also be noted that it is not necessary that all deeds contain the same restriction in order to establish a common plan. In Tubbs, this Court explicitly noted that there "need exist only a substantial uniform residential plan" for an implied restriction, based on a common plan, to be found. Nonetheless, it is important to remember that "[t]here is no legal reason why a developer cannot develop successive portions of his lands independently of one another, imposing different restrictions (or none at all) upon each, provided the deeds clearly evidence the explicit intent to limit the burden and the benefit to the designated area or definitely show an intent not to impose similar restrictions upon all." In addition, at the core of the common plan doctrine is the intent of the parties. That leads to the following question: Should the intent to create a common scheme be evaluated at the time the idea for the development is hatched, at the time the deeds are recorded, or when a common plan begins to coalesce? In Weiner Associates v. Krapf, the Supreme Court answered this question by stating, "The factual determination of an intention to implicitly impose a general plan of development must begin, necessarily, at the time the subdivision was first recorded and, thereafter, as lots were sold."
Tubbs, 55 A.2d at 449.
Gammons, 61 A.2d at 394.
Weiner Associates, 623 A.2d at 1089.
Lynch-James argues that there cannot be a general plan of development because two of the five lots in Greylag 4 have no restrictions, and the deeds to the remaining lots do not have uniform restrictions. The Plaintiffs respond by pointing out that the deeds for Greylag 3 and the rest of Greylag generally contain the same or similar restrictions; thus, they argue that an intent to create a general plan, particularly with respect to residential use, is clearly shown. They have also introduced into the record a hand written set of deed restrictions, dated November 19, 1988, which contain all of the restrictions imposed Lot 5 and which they claim were intended for Greylag 4. Thus, the mere absence of the restriction from a few deeds in Greylag may not show the absence of a general plan as argued by the Defendant.
The restrictions on at least one lot in Greylag 3 and three lots in Greylag 2 have expired by their terms. While this is a factor to consider in determining whether a general plan exists, by itself, it is not dispositive of the issue.
Compl. ¶ 6 Ex. A. The record is not clear as to the extent of Tindall's involvement with this note's creation, although she is listed as the "seller" on the document. Compl. Ex. A. Because this note was not recorded, it clearly has no weight with regard to notice to Lynch-James as to the existence of the restrictions, although it may provide some slight evidence as to the intent of Tindall to establish a general plan of development.
Because of the fact-intensive nature of the inquiry involved — whether there is a general plan of development — and the incompleteness of the record before the Court, there is not enough information to determine the intent of the parties and of the developer. Summary judgment, accordingly, cannot be granted with respect to this issue.
I note the record in this case is not well developed because of Lynch-James' early motion for summary judgment. Perhaps, with better factual development, summary judgment would be appropriate.
The Restatement observes that, because the concept of an implied restrictive covenant "undercuts the Statute of Frauds and creates uncertainty in land titles, it should be applied only when the existence of a general plan is clear and establishment of the servitude is necessary to avoid injustice." RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.14 cmt. i (2000). In declining to grant summary judgment, I express no view as to whether enforcement of the servitude would be necessary "to avoid injustice" if a general plan were proved to exist. It may be in this instance that justice is best served merely by defaulting to the protection that zoning provides the Plaintiffs. The kind of injustice that might result if Lynch-James were planning to open a fast food restaurant or similar commercial establishment is not necessarily present in this case.
It also should be emphasized that the concept of implied restriction is a narrow one. A purchaser of real estate should be able to rely upon his chain of title to ascertain the non-regulatory limitations on the use of her property. Moreover, modern, comprehensive, municipal land use regulations may reduce the need for such a remedy for two reasons. First, to the extent that the purchaser is entitled to notice of any limits on use, it becomes more difficult to determine whether the nature of the community is the product of a plan for controlling development of the community or of the local zoning ordinance. Second, the presence of zoning regulations precludes those uses which are generally considered inappropriate for, in this instance, property in a residential zoning classification.
C. The Private Lane Restrictions
The Plaintiffs allege that Lynch-James' use of her property as Recuperation Center would violate the Declaration recorded by the Maintenance Corporation prohibiting use of the private lane providing access to Lots 3, 4, and 5 of Greylag 4 for "commercial, business or institutional traffic." They claim that the proposed use "places an unequal and unfair burden on the Plaintiffs . . . for the maintenance and care of the private lane" and ask this Court to prevent the Defendant from utilizing the private lane for any kind of business use. The Defendant argues that summary judgment should be granted to her because these restrictions are invalid. Because these restrictions were adopted without Defendant's knowledge, consent, or signature after she had acquired title to her lot and because no earlier-recorded document binding her property authorized the imposition of a restriction on the use of her property by the Maintenance Corporation, they are unenforceable, and the Defendant's motion for summary judgment is granted in this respect.
Compl. ¶ 36.
Compl. ¶ 49.
Id. Wherefore Clause § (c)(4).
As shown on the Record Plan, access to Lots 4 and 5 of Greylag 4 are by a private lane that traverses Lots 3 and 4. Access to Lot 3 is facilitated by the private lane. Lynch-James, of course, could have agreed, along with the other users of the private lane serving Lots 3, 4, and 5, to whatever reasonable set of conditions the lot owners may have chosen to impose. She did not do that.
See generally RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.3 (2000).
The question, thus, becomes one of whether her neighbors could do it for her. The provision in the confirmatory deed for Lot 3, upon which the Plaintiffs rely, reads as follows: "Lot 3, 4 and 5 will form its [sic] own civic association for the purpose of allowing "right of way" passage for a private lane." In apparent reliance on this, the neighbors, through the Maintenance Corporation, sought to adopt the following restriction that would govern use of the private lane:
For purposes of Defendant's motion for summary judgment, the Court assumes, without deciding, that the confirmatory deed for Lot 3, the only deed which places Lot 4 within the scope of the Maintenance Corporation's authority, is sufficient to impose its terms on Lot 4.
Compl. Ex. C.
No business, commercial, institution, or industrial traffic is permitted access to any lot, by route of the easement [the private lane], other than delivery or maintenance vehicles necessary for the maintenance of a single family home or for the well being and care of the members of that family.
Compl. Ex. R, Declaration, Art. III ¶ 2.
The provision in the confirmatory deed for Lot 3 which authorizes some scope of control over the private lane allowing access to the various lots may require the owners of those lots to be a member of the Maintenance Corporation; it may allow for the assessment of costs to maintain the access road; it may even authorize the imposition of additional charges if one of the users of the private access road should engage in conduct that increases the cost of maintaining the roadway. It does not, however, permit the imposition of a restriction on the use of the lots. In other words, the neighbors may not, in effect, impose restrictions on the use of the Defendant's lot under the guise of a civic association created for the purpose of "allowing" or perpetuating the right of way. With the recording of the Record Plan, and the subsequent deeds in reliance upon that recorded plot, the owners of each of the lots has the right of access over the private lane. The right of the Maintenance Corporation to exercise necessary control over the private lane, in accordance with the purposes for which it was established and in accordance with the terms of the deed upon which the Plaintiffs rely, does not authorize it to substitute a collective (but less than unanimous) judgment as to the conduct which a lot owner may carry out on her lot.
Lynch-James, as the owner of Lot 4, is entitled to use the private lane for access to her property. Otherwise, her parcel would be landlocked. It should also be noted that the Plaintiffs have made no showing that the Defendant's intended use of the property, i.e., for providing respite for a maximum of three patients at any time, would materially affect the private lane, including the ease of use by the other lot owners or the cost of maintenance.
For these reasons, summary judgment is granted to Lynch-James with respect to her challenge to that portion of the Declaration which purports to preclude her to use of the private lane for access for the Recuperation Center. Accordingly, it is not necessary to reach Lynch-James' argument that the actions of the Plaintiffs in adopting the Declaration are violative of the Statute of Frauds, 6 Del. C. § 2714(a).
In Defendant's opening brief, Lynch-James mentions that these actions could constitute slander of title. Def.'s Opening Br. at 14 n. 11. Because Lynch-James has not yet filed an answer or counterclaim, I do not address this issue in this letter opinion.
D. The 3,000 Square-foot limitation
As noted earlier, note 9 on the Record Plan for Greylag Section 4 mandates that the area of any building be "less than 3,000 square feet as per off. of state fire marshall [sic]." After the renovations to Lynch-James' property were made by Emmett, the structure on Lot 4 contained 4,448 square feet, well in excess of this limitation. The Complaint asserts that "[t]he Land Use Department of New Castle County either failed to enforce the [limitation] and/or did not observe it" and that "[e]ither building permit [for the additions to the house] when issued violated this restriction." The Plaintiffs ask this Court to prevent Lynch-James from "[u]tilizing the addition[s] to the structure to extent that they violate . . . the 3,000 square foot sub-division plan restriction." The Defendant claims summary judgment must be granted to her with respect to this argument because Plaintiffs have no private right of action to enforce the provisions of the Record Plan.
Compl. ¶ 22. See also Compl. ¶ 23 ("[T]he issuance of either building permit by New Castle County was improper."). Several paragraphs in the Complaint also contend that the Lynch-James house violates the State fire regulations because of the additions to the house. Compl. ¶¶ 23, 37, Wherefore Clause §§ (b)(5). (c)(5). In their brief, the Plaintiffs have asserted that they "are not endeavoring to enforce the State Fire Prevention Code." Pls.' Answering Br. at 13. Thus, all arguments relating to alleged violations of the State Fire Prevention Code, as such, are deemed waived.
Compl. Wherefore Clause § (c)(5).
The mere existence of a violation of a code or statute does not automatically confer on the victim the right to bring a lawsuit. Instead, the right to bring a private action to remedy such a violation is "available only if legislative intent to provide such a remedy is present." Where the existence of a private remedy is not expressly provided by the terms of the legislative enactment itself, a three-part-test exists to determine if there is an implied right of action:
(1) Is the plaintiff a member of a class for whose special benefit the statute was enacted;
(2) Is there any indication of legislative intent to create or to deny a private remedy for violation of the act; and
(3) If there is no such indication, would the recognition of an implied right of action advance the purposes of the act?
Brett v. Berkowitz, 706 A.2d 509, 512 (Del. 1998); Couch v. Delmarva Power Light Co., 593 A.2d 554, 558-59 (Del. Ch. 1991).
Brett, 706 A.2d at 512.
Couch, 593 A.2d at 558-59.
Id.
In this instance, there is no need to apply the test for an implied right of action because the terms of the controlling ordinance relating to enforcement of Major Subdivision Plans clearly foreclose the rights of private plaintiffs to bring suit to remedy violations.
While the Unified Development Code (the "UDC") currently governs land use in New Castle County, at the time Tindall recorded the Record Plan for Greylag 4, the County's land use ordinance contained the following:
The provisions of this chapter, pursuant to which a record plan has been approved and all notations appearing on a record plan, other than those pertaining to certificates of occupancy, when the record plan is duly recorded, shall have the effect of restrictive covenants and shall run with the land covered by the record plan against the owners who have executed the record plan, their heirs, successors and assigns and in favor [of] the county council until the record plan is amended or superseded; provided, that the right to enforce such covenants shall lie exclusively with the county council and the fact that several parcels belonging to different owners are similarly restricted or that a restricted parcel is divided among several different owners, shall not imply the creation of any private property or contract rights, on account of reliance or otherwise, among or between such several owners.
New Castle County Code § 20-70(a) (1987) (emphasis added). The New Castle County Code was subsequently amended and a provision which is substantively the same as that quoted above was codified as § 32-447(a). See Hundley v. O'Donnell, 1998 WL 842293, at *1 (Del.Ch. Dec. 1, 1998) (quoting § 32-447(a)). The current version of the U.D.C. also contains substantively the same provision in § 40.31.810. Thus, at all times relevant to this action the above-quoted language, or language that is substantively similar, was in effect.
Thus, by the express provisions of the code, "exclusive" responsibility to enforce the notes appearing in record plans lies with the County. The terms of the County Code itself preclude the Plaintiffs from seeking to enforce it and eliminate any contention that there is an implied right of action to file suit.
Where, as here, the ordinance by its terms forecloses a private right of action with respect to notes on a record plan, whether the plaintiff is a member of a class the ordinance was designed to protect is irrelevant as that factor only helps to establish if there is an implied right of action.
Therefore, summary judgment is granted with respect to those portions of the Complaint that seek to enforce the 3,000 square-foot limitation.
Since Lynch-James is granted summary judgment on this issue, based on the lack of a private right of action to enforce the note on the Record Plan, the Court does not reach her contentions that the limitation is no longer valid and that Plaintiffs' claims are barred by laches and the doctrine of unclean hands. Part of her argument is based on the fact that Plaintiff Emmett's house exceeds the 3,000 square-foot limitation. Also, nothing here precludes the Plaintiffs from petitioning the County Council to enforce this note on the Record Plan.
E. The Home Based Business Ordinance
The Complaint allege that Lynch-James' intended use of the property will violate the County's Home Based Business Ordinance, codified at U.D.C. § 40.03.420. Lynch-James argues that summary judgment is appropriate in this instance because, as with the 3,000 square-foot limitation, there does not exist a private right of action to enforce this ordinance. The Plaintiffs have contended that "[t]he proposal as clarified by the Defendant in her affidavit and her deposition would appear to establish non-family residents as employees, an excessive area for the home occupation, structural alterations, or enlargement for the primary purpose of conducting the home occupation, and roomers and boarders in that all her clients are transient in that they will not reside at least 45 days."
Compl. ¶¶ 39-47. Portions of this ordinance follow:
A. Home Occupation. Any home occupation as defined in Section 40.33.221(b) which is conducted in a manner such that the dwelling housing the occupation is indistinguishable from dwellings with no business use and which meets the following standards is permitted as an accessory residential home use as set forth below.
(1) Employees: The owner of the home occupation shall be a full-time resident of the dwelling unit and subject to the following exception shall not employ any individuals other than family members who also are full-time residents of the dwelling unit
. . . .
(2) Customers/clients: The operator may meet with customers at the site provided that the frequency and consistency of traffic to and from the site in relation to the home occupation does not interfere with the community's comfort, safety, or enjoyment of the neighborhood around the subject property as a residential area or create a visual or traffic annoyance to persons of normal sensibilities such that a public nuisance is created. . . .
(3) Location, size and modifications: No home occupation shall be conducted outside the dwelling unit. The total area used to accommodate the home occupation shall not exceed twenty-five (25) percent of the total gross floor are (GFA) of the principal residential dwelling. No structural alterations or enlargements shall be made to the dwelling unit for the primary purpose of conducting the home occupation.
D. Roomers and boarders. In any one (1) family dwelling no more than three (3) nontransient roomers or boarders may be permitted subject to the following:
1. The owner of the property must reside in the dwelling.
2. No display or advertising on the premises is permitted.
3. For purposes of this Section, the term "nontransient" means a person who resides as a roomer or boarder for a period of time not less than forty-five (45) days.
U.D.C. § 40.03.420. See also Compl. ¶ 39 (quoting portions of same).
Pls.' Answering Br. at 16.
However, the Court need not reach this issue because the Plaintiffs' claims here are not yet ripe for adjudication. The Plaintiffs have asserted that the possibility still exists that the County will enforce this ordinance against Lynch-James and they will make a request that the County do so. Thus, decision on this claim is reserved until such time as it is known if the County will in fact seek to enforce this ordinance in these circumstances.
IV. CONCLUSION
For the reasons set forth above, partial summary judgment is granted in favor of Lynch-James and against the Plaintiffs with respect to those portions of the Complaint seeking enforcement of the Private Lane Restrictions and the 3,000 square-foot limitation set forth in note 9 on the Record Plan. No determination is made with regard to those portions of the Complaint dealing with the Home Based Business Ordinance as they are not yet ripe for adjudication. Lynch-James' motion for summary judgment otherwise is denied.