Opinion

Green v. Lawrence

Court
Superior Court of Maine
Filed
Oct 1, 2004
Status
Unpublished
On the bench
S. Kirk Studstrup
Cited by
0 cases

The opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC ss. DOCKET NO. RE-03-23

JEFFREY E. GREEN, et al.,

Plaintiffs

v. JUDGMENT

JAMES H. LAWRENCE, pen Loe Sata seyr

Defendant

NOV 5s 004

This matter comes before the court on the plaintiffs’ motion for summary

judgment on their complaint seeking declaratory judgment and a permanent injunction

with regard to certain lots in the Camp Menatoma development in Readfield, Maine.

The four lots in question are owned by the defendant. The defendant does not suggest

that there are material facts in dispute. Rather, he takes the position that he is the party

who should be entitled to judgment as a matter of law.

Facts

In late 1979, the Menatoma Realty Corporation owned an 89-acre parcel of real

property in Readfield on the shores of Lovejoy Pond. The property was a former

summer camp for youngsters, which the corporation intended to subdivide into 18 lots.

Defendant James Lawrence, president of the corporation, filed for the necessary

approval from the Department of Environmental Protection and the Town Planning

Board. The intent was to develop all 18 lots, but it was found that lots 8-11 did not have

soil conditions suitable for construction of a wastewater septic system. Asa result, the

DEP required that lots 8-11 be limited to “wood lot use only.” As a result, the initial

plan was amended by adding on each of the four lots on the plan the notice “Lot_ Not

Suitable For Subsurface Sewerage Disposal” and adding conditions that include the

following:

7. No more than one single-family dwelling shall be maintained on

lots 1, 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, and 16. Lots 8 9,10 and 11 are

restricted to use as wood lots only.

15. The above restrictions apply to all purchasers of property in Camp

Menatoma, their heirs, successors, and assigns.

(emphasis provided) The Readfield Planning Board approved the subdivision plan

with these restrictions, and the restrictions were subsequently incorporated into the

deed for each parcel as it was sold.

Following the approval by both the DEP and the Planning Board, in August of

1980 the Menatoma Association — an owners organization to administer certain aspects

of the subdivision - was founded. The bylaws of the Association included the

following language concerning the budget for the group:

The general assessment shall be computed as follows: The general budget

shall be divided into 34 equal parts and each lot and/or building will be

assessed 1/34" of said budget with the exception of lot seventeen (17)

which will be assessed 2/34" of said budget. In the event that any one of

lots eight (8) through eleven (11) can lawfully be and is developed for

seasonal or year round dwelling purposes, each lot shall bear its

proportionate share and the fractional assessments for each lot will be

adjusted thereafter accordingly.

In 1984, the corporation sold the remaining unsold lots, including 8-11, to James

Lawrence.

Some 20 years passed before the next chapter in this tale. In the interim, changes

in the soil requirements for subsurface disposal systems took place such that it

appeared that lots 8-11 might be able to qualify for residential development. In early

2003, Mr. Lawrence unilaterally amended the restrictions to eliminate the “wood lots

only” provision and filed applications with the DEP and the Planning Board seeking

approval for development of these lots in light of the changes. Both of these regulating

agencies approved the request. However, the present litigation challenging the sale of

these lots for purposes other than as a wood lot was filed by a group of other property

owners in the development and none of the lots have yet been sold.

Discussion

The plaintiffs argue that the “wood lots only” language in the Camp Menatoma

plan and deeds constitutes a restrictive covenant enforceable by the owners of property

within the subdivision. Such restrictive covenants are to be interpreted so as to

determine the intent of the grantor as expressed in the plain language of the contract.

Here, the plaintiffs argue there is no ambiguity in the “wood lots only” language and it

is not necessary to consider extrinsic evidence for purposes of interpretation of the

contract. The defendant argues in response that the term “wood lot” is ambiguous and

extrinsic evidence must be considered. The court agrees with the plaintiffs. The term

“wood lot” is a common term describing the use of a piece of property for growing and

harvesting trees; a commonly understood term, at least in Maine.

Having found no ambiguity in the restrictive covenant, there is no need to

consider the extrinsic evidence offered by the defendant in the form of articles in the

Menatoma Association bylaws and correspondence from DEP. However, if it were

relevant, such extrinsic evidence is not all one-sided. For example, the plaintiffs could

have pointed to 1980’s advertising for the subdivision suggesting that deed restrictions

would protect each owner from changes in the property of the subdivision.

The defendant also argues that it was not intended that individual property

owners, such as the plaintiffs, would be able to enforce the deed restrictions pointing to

paragraph 16 of the conditions which states:

The failure to comply with said restrictions or to meet the obligations

regarding membership in the Menatoma Association will result in court

action, the cost of which, including reasonable attorney’s fees, will be the

responsibility of the purchaser or association member of his heirs,

successors, or assigns.

Somehow the defendant interprets this as meaning that the restrictions can only be

enforced by the Association itself. The defendant is simply misreading the condition

and the court concludes that these deed restrictions must be enforceable by other

property owners to have any legal significance.

The defendant also argues that the purchasers knew of the Association bylaws

and they should have been aware of the provision noted above concerning division of

the budget. However, the court concludes that purchasers of the property had the right

to depend upon the unambiguous restrictive covenants in their deeds when compared

with an ambiguous and scarcely related provision in the bylaws of the property owners

association.

Finally, the defendant argues that the court should apply the “relative hardship

doctrine” which would lead to the voiding of a restrictive covenant if that restriction

will harm the defendant without substantially benefiting the plaintiff's land. The

defendant also suggests that the change in circumstance with new soil requirements

should cause the court to terminate the covenant. Two facts lead the court to disagree.

First, there is no hardship to the defendant except in the sense that he still is unable to

reap additional profit from the sale of the four lots in question. The hardship created by

the restrictive covenant occurred at the time that the plan was amended in 1980. At that

time, apparently a business decision was made by the corporation that it would live

with reduced profits of not being able to sell lots 8-11 for residential purpose for the

greater benefit of being able to develop the remaining 14 lots. Presumably when Mr.

Lawrence purchased these lots from the corporation, the purchase price reflected this

restriction because. Second, since Mr. Lawrence was the president of the corporation,

any hardship could be said to have been his own making in light of the corporation

decision to proceed with the reduced plan in 1980.

In count II of their complaint, the plaintiffs seek injunctive relief to prevent the

defendant from marketing these four lots for anything other than wood lot use.

According to representations made during oral argument, no sales had been made due

to the pending litigation. The court anticipates that future sales efforts will be limited

by this declaratory judgment and does not see the need for additional injunctive

remedies at this time.

In light of the foregoing, the entry will be:

(1) The plaintiffs’ motion for summary judgment is GRANTED

as to both counts.

(2) | The court DECLARES that the use of lots 8, 9, 10, and 11, as

shown on the Camp Menatoma Subdivision Plan dated March 18, 1980,

and recorded in the Kennebec County Registry of Deeds at Plan File

80106, are limited to wood lot use only as provided in the provisions of

the Camp Menatoma restrictive covenants unless this restriction is

removed by those property owners benefiting from this restriction.

Dated: October L , 2004 Ulu /

S. Kirk Studstrup

Justice, Superior Court

JEFFREY E GREEN - PLAINTIFF

114 BEAUFORT AVE

NEEDHAM MA 02492

Attorney for: JEFFREY E GREEN

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

Attorney for: JEFFREY E GREEN

MARY A DENISON - RETAINED 08/25/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

BETH Z GREEN - PLAINTIFF

Attorney for: BETH Z GREEN

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

PAMELA L CAHILL - PLAINTIFF

Attorney for: PAMELA L CAHILL

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

BRADLEY W CAHILL - PLAINTIFF

Attorney for: BRADLEY W CAHILL

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

EILEEN M REGAN - PLAINTIFF

Attorney for: EILEEN M REGAN

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

FRANK H FERREL - PLAINTIFF

Attorney for: FRANK H FERREL

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

RICHARD J DEMARCO - PLAINTIFF

Page 1 of 14

SUPERIOR COURT

KENNEBEC, ss.

Docket No AUGSC-RE-2003-00023

DOCKET RECORD

Printed on:

10/04/2004

Attorney for: RICHARD J DEMARCO

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

JANICE A DEMARCO - PLAINTIFF

Attorney for: JANICE A DEMARCO

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

WARREN BOENKE - PLAINTIFF

Attorney for: WARREN BOENKE

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

BARBARA BOENKE - PLAINTIFF

Attorney for: BARBARA BOENKE

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

DOROTHY OHARE - PLAINTIFF

Attorney for: DOROTHY OHARE

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

DAVID OFESEVIT - PLAINTIFF

Attorney for: DAVID OFESEVIT

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

NANCY MAZONSON - PLAINTIFF

Attorney for: NANCY MAZONSON

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

Page 2 of 14

AUGSC-RE- 2003-00023

DOCKET RECORD

Printed on: 10/04/2004

MARTHA QUIRK - PLAINTIFF

Attorney for: MARTHA QUIRK

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

ERIC WALERYSZAK - PLAINTIFF

Attorney for: ERIC WALERYSZAK

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

CAROL WALERYSZAK - PLAINTIFF

Attorney for: CAROL WALERYSZAK

CLIFFORD GOODALL - RETAINED 10/08/2003

DYER GOODALL AND FEDERLE LLC

61 WINTHROP ST

AUGUSTA ME 04330

vs

JAMES H LAWRENCE - DEFENDANT

OLD KENTS HILL ROAD

READFIELD ME 04355

Attorney for: JAMES H LAWRENCE

ROY PIERCE - RETAINED

PRETI FLAHERTY BELIVEAU PACHIOS & HALEY

ONE CITY CENTER

PO BOX 9546

PORTLAND ME 04112-9546

Attorney for: JAMES H LAWRENCE

RONALD COLBY - WITHDRAWN 03/02/2004

LIPMAN & KATZ PA

227 WATER STREET

PO BOX 1051

AUGUSTA ME 04332-1051

LAURA BANTLY - PARTIES IN INTEREST

TONY BANTLY - PARTIES IN INTEREST

MICHAEL MCDONOUGH - PARTIES IN INTEREST

JOANNE MCDONOUGH - PARTIES IN INTEREST

DONNA MCGIBNEY - PARTIES IN INTEREST

JEFF SCOTT - PARTIES IN INTEREST

JEFF SCOTT - PARTIES IN INTEREST

HILDA SCOTT - PARTIES IN INTEREST

MIKE GRIFFIN - PARTIES IN INTEREST

BARBARA GRIFFIN - PARTIES IN INTEREST

BEN HIRSH - PARTIES IN INTEREST

Page 3 of 14

AUGSC-RE-2003-00023

DOCKET RECORD

Printed on:

10/04/2004

LINDA HIRSH - PARTIES IN INTEREST

JOHN BURDEN - PARTIES IN INTEREST

ANNE BURDEN - PARTIES IN INTEREST

JANE HARRISON - PARTIES IN INTEREST

DAVID ELS - PARTIES IN INTEREST

SUSAN ELS - PARTIES IN INTEREST

BRUCE KIDMAN - PARTIES IN INTEREST

JOAN KIDMAN - PARTIES IN INTEREST

STEVE WOLKOFF - PARTIES IN INTEREST

ADELE WOLKOFF - PARTIES IN INTEREST

DAVID CLAPP - PARTIES IN INTEREST

CAROL CLAPP - PARTIES IN INTEREST

ALFRED JACOBS - PARTIES IN INTEREST

SALLY JACOBS - PARTIES IN INTEREST

ARNOLD STURTEVANT - PARTIES IN INTEREST

LEDA STURTEVANT - PARTIES IN INTEREST

PHIL JACKSON - PARTIES IN INTEREST

FRENK H FERREL - PARTIES IN INTEREST

LINDSEY WALDO - PARTIES IN INTEREST

MARK EDELSTEIN - PARTIES IN INTEREST

SUSAN BALDI - PARTIES IN INTEREST

MENATOMA ASSOCIATION C/O HOWARD LAKE - PARTIES IN INTEREST

Filing Document: COMPLAINT

Filing Date: 08/25/2003

Docket Events:

08/25/2003 FILING DOCUMENT - COMPLAINT FILED ON 08/25/2003

08/25/2003 Party(s): JEFFREY E GREEN

ATTORNEY - RETAINED ENTERED ON 08/25/2003

Plaintiff's Attorney: CLIFFORD GOODALL

08/25/2003 Party(s): BETH Z GREEN

ATTORNEY - RETAINED ENTERED ON 08/25/2003

Plaintiff's Attorney: CLIFFORD GOODALL

08/25/2003 Party(s): PAMELA L CAHILL

ATTORNEY - RETAINED ENTERED ON 08/25/2003

Plaintiff's Attorney: CLIFFORD GOODALL

08/25/2003 Party(s): BRADLEY W CAHILL

ATTORNEY - RETAINED ENTERED ON 08/25/2003

Plaintiff's Attorney: CLIFFORD GOODALL

08/25/2003 Party(s): EILEEN M REGAN

ATTORNEY - RETAINED ENTERED ON 08/25/2003

Plaintiff's Attorney: CLIFFORD GOODALL

08/25/2003 Party(s): FRANK H FERREL

ATTORNEY - RETAINED ENTERED ON 08/25/2003

Plaintiff's Attorney: CLIFFORD GOODALL

08/25/2003 Party(s): RICHARD J DEMARCO

Page 4 of 14

Minor Case Type:

AUGSC-RE-2003-00023

DOCKET RECORD

EQUITABLE REMEDIES

Printed on: 10/04/2004

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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