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Virginia: In the Circitit Court of the Ciiy of Richmond, ]obn Marshall Courts Buildi1'.g

JONATHAN FEREL, et al. Plaintiffs

HQ-1833-3

SCOTT BRANNAN, et al. Defendants

OPINION AND QRnER

The parties , in pe=son and by counsel, cam~ for trial

on the issues joined; evidence was presented and argument

was heard .

The plaintiff, Jonathan Peral, complains that the

• defendants Scoc~ and Melissa Brannan violated certain

5ubdivision covenants relating to the development called

River Locke. As a party to the covenants, Perel has

standing to comp la.in of violations. He asks the court to

declare violations, to order the Brannans to co;z;rect the

violations and to order the detendant Locke Lane, LC, the

develope~. to join the Brannane to correct the violations.

Plaintiff also requests an award of attorney's fees .

The Brann&ns ar..d Locke Lane, LC ask that the work be

deemed in confcrrr.ity with the covenants and that they be

awarded their attor .. ey's fees.

The Branna:is are t.he owners o:f Lot 1 in the River

Locke subdivisio~. The subdivision adjoins property owned

• ::;y P~r!!!!l. He also owns Lot 4 in ~he subdivision. Pe:rel

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and t:ie develope;::- entered an agreement binding the

developer to incl ·.1de certain reatrictione

development, to assure Perel's involvement

on

in

the

the

development ar:d execution of the restrictive covenants

called the Amended apd Restated Declaration of Right~.

~st'.rictions. Affirmative Qhligationa and conditiQn

Applicable ta All Property in River Loe~. (Hereafter

referred to as the 11 covenants 11 or 11 declarations. 11 )

These covenants were recorded and run with the land.

The arannans purchased Lot 1 and constructed a house

on it . This dispute in~olves their removal of some treee

and other vegetation and construction and excavation within

t~e setback lines and buffer area.

Facts

~ot l, a one-acre lot, had a relatively small area on

which a house c::mld be built. Because of the lot's steep

drop-off near the fro~t of the lot, aa well aa the presence

of a large rock :formation in the middle of the Lot, the

p~anner sited the home in the southeast quadrant of the lot

near th~ rear and side sethack lines. The property on the

other side of these lines ie owned by Perel.

Each :ot is burdened wit:h 50-foot rear yard and 10-

foot ~ide yard se~back buffer lines. The buffer area being

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a width of 25 feet along the rear and 15 feet along the

sice yard p=operty lines.

Tl:e declarations restrict building, excavation,

clearing, etc., within the setback and buffer areas. These

restrictions on buffer areas are somewhat different from

those of t~e setback areas.

Lot 1 generally slopes rather steeply downt11ard f:r:om

tl::.e rea.r of the ::.oc toward the frout. Along the rear

property line, tl:".e lot was significantly higher than but

close to the site selected for the house. Tha.t high g~ound

was within the rear buffer and setback lines .

A patio was planned to be built between the house and

the rear property lines within the setback lines. To

accommodate that feature, it was necessary that the

Brannans excavate the hill behind the house, cutting into

it a depth of 10 feet to 14 feet. The entire excavation

was within c:he setback and buffer areas. The excavation

also required the removal of vegetation including eight

large crees from the buffer area.

Perel claims thaL the excavation and the tree removal

violate the covenants and the violations require

rer:iediation.

All construction in the subdivision must be approved

by the Arc:1itectural Review Committee as provided in the

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covenants. That Committee approved the Brannan• s work.

The 3rllnr.ans contend that such approval is dispositive of

che issues raised by Peral. Ferel argues that the approval

was itself a violation of the declaration and asks that

both the Br~nnans and the developer be held r~sponsible for

remediation.

Removal of the Ireon

In re-5ponses co Requests for Adtniasions tha Brannans

conceded thac eight very large tress were remo~ed from the

buffer area. The Brannans also removed smaller trees and

underbrush fron tr.e buffer area .

The covenante provide

" ... a:.l exi9ting vl!!lgetation and trees within the buffer areas shall be preserved ... 11 See Declarations Part V § I(c) (il.

The purpose of the buff~r area wa~ to leave exieting

vegetation so as to provide a. sight barrier between homes

in River Locke and Perel 's property. Brarman 1 s removal of

these very large trees did not affect this pU-3:Pose as the

c~owns of these trees were much higher than any sight lines

between these properties. Nevertheless, the court finda

that the Brannans violated this section of the coven&nts by

removing the trees .

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Ariy remedy fashioned by the court in this case must be

ba.!:eci on evidence. Tha.t :r:emedy must put the plaintiff in

t~e pcsition he was before the violation and must be

e!'lforccable. In Sonoma Development v Miller, 258 Va. 163,

51= S.E. 2nd 577 :1999) the Supreme Court upheld the t'.rial

co~rc's decision that evidence did no~ have to he presented

for ~t to order the removal of a structure within a

p;r;o:-iibi ted area. Here, howev-er, what plaintiff asks the

co~::t to o:r;dex- is the replacement of eight huge trees.

Wh::.le it is common knowledge that: small trees and

ve~ecation can be succ~ssfully transplanted, the same

ca~~ot be said fer cr.e transpla~tation of very large trees.

'I'he:~e is no ev-idence that the court could order that the

eig:ct: large trees :be successf·..J.lly replaced, Of course,

w1. -:::!1 enoi.:.gh money, most anything can be done. He:?:"e the

ccu::t c::ould order that eight large trees be removed from

anc=her site, moved to th@ buffer area and planted. There

is r.o ~nswer, however, whether they are ~ikely survive, if

sc. f.or how long? Such an order could. well result in

career• long litigation as there is no evidence regarding

fe.:..:ibility.

There! is sufficier.t evidence to order replacement of

c:~ smalle:::- tree5 and bushes to compare wich the vege1;ation

ad: .:-i:iing Lot 1. 'I'hat will be ordered .

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Th@ Excavation and the Retaining Wall

Perel argues that the Brannans also violated ehe

covenancs by cutting the! natural grade in the setback and

cuffer areas by f~om 10 feet to 14 feet, and they

constructed a retaining wall and patio in the space

prepared by the excavation. He relies on Declarationa Part

v § l(ci (i) (ii) which provide in perLinent part:

(1) (cl "No buildings, structures or other improvemencs ... as approved by the Architectural Review Committee may be ... constructed or erected within any buffer area or rear building setback area ... except as follows: (i) Buff~r A;-e~,e, Within the buffer areas on Che res~ricted Lacs, no buildings or other improvements may he ... constructed ... except that privacy fences or walla ... may be constructed therein. NotwitheLanding anyt~ing in§

of Part II to the contrary, all existing vegetation and trees within buffer areas s::1all be preserved ... " (ii) Rear and sjde setback Areas Within the portion of the re~r ~nd side setback areas outside of the buffer areas on the Restricted Lots, clearing, at grade patios and walkways are pe:?'.'mi t ted ... 11

The S:r;anna.ns excavated in:.o both the buffer and side

and rear setback areas, installed a retaining wall to

prf;?venc the excavation from collapsing and constructed a

grade patio, all with the approval of the

Architeccural Review Committee. It is clear that the

=c~s:.ruction of the below grade patio is a violation of the

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cited covenants. The excavation ie permitted, however,

(except the removal of the trees previously discussed)

under Part II§ l of the declarations which provide

''Topographic and vegetation characi::.eristics of Properties within River Locke shall, to the maximum extent practi cal, consistent with the erect~on of residences on each ~roperty ... not be eignificantly altered by re~oval, reduction, cutting. excavation or any other means except as reguired to constp.1ct approved improvements on the Property. 11

(Emphasis added.)

The Brannans determined that the cut in

grad~ and the construction of the retaining wall

w@re necessary to the conetruction of their

residence and that plan waa approved by the

Architectural Review Committee. such

interpretation of the declarations are delegated

to the Committee in Declarations Part I§ 9. The

interpretation necessary was whether th.e

exr:avat:ion was 11 reguired to construct a.pp:roved

improvements, '' and whether §§ (c} (i) and (ii) of

!?art V of the Declarations preclude the

excavations permitted in P~rt I § 9 of the

Declarations .

Plaintiff's argument that Part I S 9 (b)

forbids the Committee from such decision is

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incor::-ect. This section forbide \faivers cf the

prohibition found in Part V §§ (c) (i) and (ii).

The Committee did not waive compliance. It

interpreced these sections along with Part rr § 1

to permit t.he excavations. This is within the

authority of the Committee.

Declarations .su.c:h as those here are

contractual agreements and are to be c:onstrued

and enforc~d as such. Nothing prohibits parties

from delegating to non-judicial entities the

responsibility of interpreting their contract .

As interpretation was delegated here, the c:ourt

will uphold that agreement.

While the Architectural Review Colllfflittae has

the a.uthoz;;.ty to ''interpret:," the Declarations it

has no authority to permit a clear violation. An

illustration of the distinction is presented in

this case.

An interpretat~on of the Declaration is

neeeesary to determine the rela.ticnehip between

Part II § 1 and Part V § (e) (i) and (ii) of the

Declarations as regards excavation. No

interpretation is required to datarmine tbat the

construction of the below-grade patio witbin the

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setback or buffer areas as that i~ clearly

prohibited .

The Committee, however, had no autho:t""ity to

approve the plan allowing the below-grade patio

to be constructed within the rear setback area as

that is prohibited in Part V(c) (ii) of the

covenants.

The retaining wall wae a necessary adjunct

to the pe~mi~ted excavation to p~event the

collapse of the soil and rock which remained

a:fte?:' the

should the

violate the

cut was complete. Parenthetically,

excavation have been dete:rmined to

covenants, there ie no evidence on

whic:i the court could prepare an enforceable

order that the excavated area be returned to its

pre-excavation state. For examples: What was the

origini!ll grade and elope? What degree of

compaction is necessary? What type of soil,

clay, rock, needs to be used?, etc.

As its construction is a clear violation of

the covenants, the patio must be :r:emoved

notwithacanding the fact that it i~ totally

shielded from sight from the Perel property . Its

removal is easily measurable and enforceable .

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It is, tr-erefore, ORDERED and Declared that;

li The Brannan•s removal of the eight

trees and other vegetation from the

buffer area is a violation of the

covenants.

2) The Brannan'a construction of the below

grade patio within the rear setback

area is a violation of the covenants.

3) The Brannan' s excavation of 10 feet to

14 feet within the rear and. side

setback and buffer areas and the

const:?"uct ion of the retaining wall ie

permitted by the covenants.

4) The Brannan•s ~onstruction of the below

grade patio violates the covenants.

5) Each party requests an award of

attorn@y 1 s fees. Each one has

prevailed to some extent. Neither has

pr@sented evidence regarding the amount

and reasonableness of attorney I e fees .

As the evidence waa closed. at the end.

of trial. the court haa no basis for an

award of attorney's fees to any party .

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6) The Brannans are ordered to replace the

vegetation (except the eight large

trees) that was cleared in the area of

the buffer so that it is comparable in

quantity and quality to vegetation in

the area adjoining t:he rear and side

lot lines of Lot l of the River Lacki!!

subdivision.

7) '!'he Eranna.ns are ordered to remove the

patio and any other improvements in the

setback area .

al The bill of complaint as to the

remaining defendants is dismissed.

9 J Th@ defenses of "unc::lean hands" and

laches or estoppel are without merit.

10) The Clerk is ordered to place this file

among the anded causes.

Copies of this opinion and order are mailed

this day to counsel of record.

ENTER

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