Opinion

Kevin Chreston v. Lake Huron Manor Association Inc

Court: Michigan Court of Appeals
Filed: Sep 1, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 1.4%

The opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

KEVIN CHRESTON, HOLLY CHRESTON, UNPUBLISHED

RICHARD MOODY, MARY MOODY, and September 1, 2022

ROBERT HAGGERTY,

Plaintiffs-Appellants,

and

KEITH CHRESTON, STEVE MOODY, ANNA

MOODY, MURRAY MCNEILL, and BEVERLY

MCNEILL,

Plaintiffs,

v No. 356448

St. Clair Circuit Court

LAKE HURON MANOR ASSOCIATION, INC., LC No. 19-002566-CZ

Defendant-Appellee.

Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.

PER CURIAM.

In this property dispute, plaintiffs1 appeal as of right the trial court’s judgment following a

bench trial. The trial court concluded in relevant part that defendant did not violate the applicable

deed restrictions, violate the applicable by-laws, or obstruct plaintiffs’ view of Lake Huron by

installing a new swing set and planting a new tree in the beach park (“the Park”), which was located

For purposes of this opinion, we refer to plaintiffs-appellants collectively as “plaintiffs.” We

recognize that there were other plaintiffs involved in the trial court who are not parties to this

appeal. Our use of the term “plaintiffs” should not be understood to refer to plaintiffs who are not

parties on appeal unless specifically stated otherwise.

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on the shore of Lake Huron and designated for the common use of owners of lots in the subdivision.

For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

Plaintiffs are owners of property in a platted subdivision called Lake Huron Manor, located

in Fort Gratiot Township, Michigan. Defendant is the homeowners’ association, consisting of

Lake Huron Manor property owners, which maintains the subdivision’s common-use areas such

as the Park. According to the plat, the eastern side of the Park2 is situated along Lake Huron. The

Park is bordered by Elmwood Drive on the north, Manor Drive on the west, and Maplewood Drive

on the south. The lots along the north, west, and south sides of the Park are separated from the

Park by these roads.

At issue in this case is a specific restriction that evidently was contained in the deeds for

all of the lots in the subdivision. Defendant’s bylaws had also specifically incorporated this

restrictive covenant. The deed restriction provided as follows:

Together with the right to use and enjoy in common with other grantees and

persons who shall become lot owners in said plat as grantees of the parties of the

first part, their heirs and assigns, all land lying between the platted portion of said

Lake Huron Manor Plat and the meander line of Lake Huron, which use and

enjoyment by said second party and the other grantees and persons shall be limited

to such use as is usual for residents and visitors at a family summer resort to make

of a beach in connection with such resort. Together with all and singular the

hereditaments and appurtenances [thereunto] belonging or in anywise appertaining.

There is established a general plan of restrictions to apply to all lots

numbered from one to one hundred and twenty, both inclusive, only, of said Lake

Huron Manor Plat. The lands herein conveyed are part of said Lake Huron Manor

Plat and it is understood and agreed that the lands herein conveyed shall be subject

to and conditioned upon the following restrictions and reservations:

* * *

(h) No building, tent, or other structure of any kind or nature (except

Community flag pole) whether permanent or temporary shall be erected or

maintained on that portion of land lying between the platted lots and the waters of

Lake Huron, nor shall any vehicle park thereon, nor shall anything be placed

thereon that shall obstruct the lot owners’ view of the lake.

This area is designated as “Beach” on the Plat. The record indicates that this area includes both

a sandy beach area next to the water and a grass and tree covered park area extending to its western

boundary.

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In August 2019, there was a meeting of defendant’s board of directors at which the board

discussed planting a new tree and replacing an old swing set in the Park. According to board

president Sue Mogle, a memorial tree planted several years earlier had died and another diseased

tree had been removed. Mogle believed that the discussion at the board meeting involved replacing

the memorial tree. In response to the board’s plan, plaintiff Holly Chreston objected to planting

any new trees in the Park. Holly3 and her husband, Kevin Chreston, lived on Manor Drive, and

the front of their house faced the Park. From their house, looking directly across the Park, Lake

Huron was visible.

Later that fall, a red rocket maple tree was planted in the Park and a new swing set was

installed in the Park. Holly claimed that the tree blocked her view and that her view would become

worse as the tree grew. The Park previously contained two swing sets and a play structure that

included a slide and three swings. The play structure and one swing set were removed

approximately a few weeks before the new swing set was installed. The other swing set had been

removed earlier during the course of a storm drain project. Holly claimed that the new swing set

was bigger than the old swing set.

Plaintiffs subsequently initiated this action. As relevant to the issues presented on appeal,

plaintiffs alleged that defendant had violated the restrictive covenants and bylaws by planting the

new tree and installing the new swing set in the park. Plaintiffs sought a declaratory judgment, a

permanent injunction prohibiting defendant from planting trees or installing structures other than

a flag pole in the Park, and an order requiring defendant to remove the swing set and new tree.

At the bench trial, there was testimony that the two swing sets and play structure had been

in the Park for decades. Holly admitted that there were three swing sets in the Park when she

moved into her house in 2004: on the south side of the Park, there was a metal swing set with two

swings. On the north side of the Park, there was an identical metal swing set, as well as a play

structure made of wood that had three swings and a slide. Plaintiff Mary Moody had lived in the

development with her husband, Richard Moody, since 1967. They currently lived on Manor Drive

next to the Chrestons but had previously lived in a different house within the development and

near the Park. Mary4 testified that in 1967, there was a swing set at north end of the Park and a

swing set at the south end of the Park. There was also testimony that the old metal swing set in

front of the Chreston’s was installed at some point after 1978. Plaintiff Robert Haggerty owned a

residence on Elmwood. His parents had originally bought the property in 1967 when he was three

years old, and he “grew up” there. Haggerty testified that the wood play structure had been in the

Park “since the mid ‘90s.” He indicated that there had been different pieces of playground

equipment in the Park over time.

According to Holly, the swing set on the south side of the Park was removed in 2016 during

the course of a storm drain project, and the swing set and play structure were removed from the

north side of the Park in late August and early September 2019. The new swing set was installed

Because there are multiple plaintiffs that share the same last name, we refer to them individually

by first name.

Because multiple plaintiffs share the same last name, we refer to them individually by first name.

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during September and October 2019. The record evidence indicates that the new swing set was

installed on the north side of the Park, in the same general vicinity as the two swing sets that were

previously located on the north side of the Park. Holly claimed that the new swing set was not in

the exact same location as the old swing set, but Mogle testified that the new swing set was

installed “in the same holes as the other one.” There were four swings and a slide on the new

swing set.

Holly testified that the new swing set is taller, wider, and longer than the previous set.

Kevin agreed that the new swing set was larger and obstructed more of his view than the old swing

sets. Haggerty and Mary also agreed that the new swing set was larger. Haggerty testified,

however, that he did not “really . . . object to the, to the swing sets” because there had “always

been swing sets there” and “replacing them in basically the same spot doesn’t affect me.” Mary

testified that she only objected to the placement of the new swing set on the north side of the Park

because it blocked her view. She would not have been opposed to putting the swing set on the

south side of the park. Mogle believed that the new swing set was not bigger than the old one; she

also thought the view had been improved by replacing three swing sets with one.

There was also testimony that the Park had historically included trees for decades and that

there were currently approximately 15 to 20 trees in the Park. There was also testimony that some

trees had been lost to storm damage or disease over time. Mary testified that there were trees in

the Park in 1967. Holly had objected when the memorial tree was planted in 2013, although it was

not in her direct view of the water. Holly and Kevin each testified that the new tree that was

planted in 2019 blocked their view of Lake Huron from their house and that their view would

become worse as the tree grew. Mary also testified that the new tree planted in 2019 blocked the

view of the water from her house.

Following the trial, the trial court entered its judgment indicating in relevant part (1) that

“[i]nstallation of the new swing set in the Park is not a violation of the deed restrictions and/or by-

laws and is not an obstruction that blocks the lot owners’ view of the lake,” and (2) that “planting

of the new tree in the Park is not a violation of the deed restrictions and/or by-laws.” With respect

to planting trees, the trial court further ruled: “This is not to say Defendant has unfettered discretion

to plant as many trees as it would like because depending on the number of new trees, the location,

the type, and the mature size an obstruction could exist. An alleged violation of a deed restriction

is a fact driven question to be decided on a case-by-case basis.”

The trial court thoroughly explained its reasoning in a written opinion. Regarding the

swing set and tree, the trial court reasoned:

It is not disputed that the swing set qualifies as a structure on the park

property. As such, its placement and continued existence is properly within the

scope of the subsection (h) of the deed restrictions that prohibits structures being

erected in the park, unless the alleged violation has been waived. It was undisputed

that two swing sets and a playscape type structure existed in the park for many years

without objection. Those items were in the park when the Chrestons and the

Moodys bought their residences. While Plaintiffs acknowledge they have

acquiesced, legally, to the presence of the old swings they claim the new swing set

is a more serious violation because it is taller and longer than the old swing set, is

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not in the same location and contains more swings than the old swing set. This

Court disagrees.

The testimony at trial confirmed that at least one of the legs of the new

swing set is in the same location as one of the legs from the old swing set. Because

the dimensions of the new set do not match the old it cannot be located in the exact

same place. That being said, the new swing set is substantially in the same location

as the old one.

The photographs admitted as exhibits show the old swing set contained two

regular swings and a baby swing, and the nearby playscape contained two swings

and a slide attached to a wooden climbing structure. The swing set formerly at the

south end of the property had two swings. The new swing set has three regular

swings, a slide and a baby swing. The end result is that the new swing set contains

fewer swings in a single structure than the three prior structures combined and has

resulted in two less structures in the park. The height and the width of the new

swing set is de minimis in the court’s view. The support tubing for the new swing

set appears to be smaller in diameter than the old tubing with an equal number of

legs and a single top section. Rather than constitute a more serious violation

regarding the presence of structures in the park, the new swing set is less

conspicuous, has fewer swings, has a smaller foot print than the three prior

structures and has resulted in more open space for use by LHM residents. Rather

than constitute a more serious violation as Plaintiffs claim, the new swing set is a

less serious violation, assuming it is a violation at all because of the resort like

theme intended by the developers.

The prohibition of structures being placed on the park property was likely

intended as part of the overall theme to maintain the park as an open space for

traditional park purposes. Oblique structures such as tents or buildings are likely

to obstruct the “owners’ view of the lake.” It can be argued that a swing set is not

the kind of structure contemplated by the developers in the first part of the deed

restriction because you can see through it and they are commonly found at a beach

front resort. However, the deed restriction also prohibits the placing of anything

else on the park property that obstructs the “owners’ view of the lake.” Plaintiffs,

specifically the Chrestons and the Moodys, are claiming the new swing set obstructs

their view of the lake. This Court disagrees.

Plaintiffs claim the swing set and the new tree block their view of the lake.

During their testimony they rarely, if ever, used the word “obstruct” or

“obstruction”, instead choosing to use the term ‘block” or ‘blocks” and never

attempted to reconcile the two terms. Plaintiffs have also failed to argue what the

developers of the plat intended when they used the phrase “obstruct the lot owners’

view of the lake” in the same section that prohibits the placement of structures that

could also obstruct the lot owners’ view of the lake. They have suggested the Court

should not give any special consideration to the clear plural possessive designation

of “owners’ view of the lake”, but somehow recognize a personal or special view

of the lake because of the location of the Chrestons’ and Moodys’ lots.

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When a term in a contract or statute is not defined a generally understood

definition or meaning is used when applying the term. Dictionary definitions for

the word “obstruct” vary depending on the context in which the word is being used.

An obstruction of travel or passage is different from an obstruction of progress or

an activity, which is again different from an obstruction of view. As this case

involves a claimed obstruction of view, the other forms of obstruction are not

relevant.

Webster’s Dictionary of the English Language Unabridged, Deluxe Edition

defines “obstruct” as (a) to get in the way of; to cut off (an object)from view; (b)to

block (the view). In this case the object to be viewed is Lake Huron. Not a boat

on the lake or some other object on the lake. Subsection (h) of the deed restrictions

deals with the right of all lot owners to enjoy an unobstructed view of the lake, a

view which is not unique or personalized because of the location of your lot. In

order for the meaning of the term to be fairly and consistently applied it cannot be

based on the subjective viewpoint of lake facing lot owners to the exclusion of

interior lot owners who must walk or drive to enjoy lake views. The term must be

objectively applied.

When it comes to the new swing set it cannot reasonably be argued the

swing set cuts off or blocks anyone’s view of the lake. The full landscape of the

lake from North to South can still be seen. Aesthetically, as noted above, the view

of the lake is better now than it was before. Plaintiffs argument that the new swing

set is an obstruction of their view of the lake is an unreasonably narrow subjective

interpretation of the meaning of an obstruction and is not consistent with the

developer’s intent when subsection (h) is read as a whole and in conjunction with

other language promoting a summer resort like atmosphere. The swing set is not

an obstruction that blocks the lot owners’ view of the lake.

* * *

The Court’s analysis and findings regarding the new swing set is also

applicable to the new tree. The new tree does not block or cut off “the lot owners’

view of the lake.” Whether the tree is a replacement tree or a new tree is irrelevant

if it does not obstruct the lot owners’ view of the lake. This is not to say LHMA

should have unfettered discretion to plant as many new trees as it would like

because depending on the number of new trees, the location, the type, and the

mature size an obstruction issue could exist. If a tree is truly a replacement tree in

the same area as a removed dead tree, for example, an obstruction argument

becomes moot because of acquiescence to the old tree. A replacement tree cannot

be considered a more serious violation, assuming it is a violation at all.

This Court will not engage in any form of speculation about future tree

planting projects or an alleged five year plan that was said to be on hold during the

testimony at trial. An alleged violation of a deed restriction is a fact driven question

to be decided on a case by case basis.

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II. STANDARD OF REVIEW

“Following a bench trial, we review for clear error the trial court’s factual findings and

review de novo its conclusions of law.” Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900

(2007). Because restrictive covenants are grounded in contract, the interpretation of restrictive

covenants presents a question of law that this Court reviews de novo. Thiel v Goyings, 504 Mich

484, 495; 939 NW2d 152 (2019). Bylaws adopted by an entity are also contractual in nature, and

we thus review the interpretation of bylaws de novo. Conlin v Upton, 313 Mich App 243, 254-

255; 881 NW2d 511 (2015); Tuscany Grove Ass’n v Peraino, 311 Mich App 389, 393; 875 NW2d

234 (2015).

A trial court’s decision to grant or deny injunctive relief with respect to the enforcement of

a restrictive covenant involves an exercise of the court’s equitable powers. See Webb v Smith, 224

Mich App 203, 210-211; 568 NW2d 378 (1997). This Court reviews equitable actions de novo,

although we review any findings of fact supporting the trial court’s decision for clear error. Id. at

210; McFerren v B & B Investment Group, 253 Mich App 517, 522; 655 NW2d 779 (2002).

Likewise, we review a trial court’s ultimate decision regarding a declaratory judgment de novo,

and we review the trial court’s underlying factual findings for clear error. Fed Home Loan Mtg

Corp v Werme, 335 Mich App 461, 468; 966 NW2d 729 (2021). “A court acting in equity looks

at the whole situation and grants or withholds relief as good conscience dictates.” McFerren, 253

Mich App at 522 (quotation marks and citations omitted). A factual finding is clearly erroneous

if “this Court is left with a definite and firm conviction that a mistake has been made.” Fed Home

Loan, 335 Mich App at 468 (quotation marks and citation omitted).

III. ANALYSIS

On appeal, plaintiffs maintain that the installation of the new swing set and the planting of

the new red rocket maple tree constitute violations of the restrictive covenant, and parallel bylaw

restriction, at issue. As previously stated, the pertinent restrictive covenant provides: