Jarrett v. Valley Park, Inc.

NO. 95-417
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

JUL 25 1996

CLERKOFSUPA&VlECOURT,
STATE OF MONTANA
Plaintiffs and Respondents,
v.
VALLEY PARK, INC. and ST. MARIE VILLAGE
ASSOCIATION, INC.,
Defendants and Appellants

APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable John C. McKeon, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
J. David Penwell, Attorney at Law,
Bozeman, Montana
For Respondents:
Kathleen H. Richardson; Young, Brown &
Richardson, Havre, Montana

Submitted on Briefs: February 29, 1996
Decided: July 25, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Valley Park, Inc. and St. Marie Village Association, Inc.
appeal from the judgment entered on the order of the Seventeenth
Judicial District Court, Valley County, granting the plaintiffs'
motion for summary judgment and permanently enjoining enforcement
of the restrictive covenant at issue. We reverse and remand with
instructions.
We restate the issues on appeal as follows:
1. Did the District Court err in granting the plaintiffs'
motion for summary judgment based on its conclusion that the
restrictive covenant at issue is void and unenforceable?
2. Are Valley Park, Inc. and St. Marie Village Association,
Inc. entitled to summary judgment?
3. Did the District Court abuse its discretion in
permanently enjoining enforcement of the restrictive covenant at
issue?
Valley Park, Inc. (Valley Park) is the developer of a
retirement community (the village of St. Marie) located in Valley
County, Montana, and the original owner of all of the property
comprising the village of St. Marie. In September of 1988, it
subjected the village of St. Marie to Montana's Unit Ownership Act
by filing the statutorily-required declaration. & § 70-23-103,
MCA. Pursuant to the Act, each unit owner must comply with the
covenants governing the property. See § 70-23-506, MCA. By the
time this action commenced, Valley Park had sold 208 lots and
condominium units to other individuals and entities and still owned
the remaining unsold property and 464 condominium units.
On August 12, 1992, Valley Park executed the "First Amended
Protective Covenants of the Village of St. Marie" (Protective
Covenants). By their express terms, the Protective Covenants run
with the land and are binding on Valley Park and its grantees,
successors and assigns. The stated purpose of the Protective
Covenants is "maintaining a uniform and stable value, character,
architectural design, use and development of the property."
The Protective Covenants are divided into eleven sections
which cover subjects ranging from the use of the property to the
procedure for amending the Protective Covenants. Section II
establishes an architectural committee and contains numerous
restrictions on alterations and improvements by lot and unit
owners; under many of the restrictions, owners must obtain approval
from the architectural committee prior to undertaking alterations
or improvements. Section III provides for the establishment of the
St. Marie Village Association, the purpose of which is to carry out
the "intent, purpose and function of [the Protective Covenants]."
On August 1, 1994, Maurice Jarrett applied to the
architectural committee for permission to install an eighteen-inch
television satellite receiving dish on the exterior wall of his
condominium unit. The architectural committee denied his request
based on Section II(Q) of the Protective Covenants (Covenant II(Q))
which prohibits the installation of "television satellite receiving
dishes" within the village of St. Marie except by Valley Park or

3
its designate. Approximately three weeks later, he applied to
install a television antenna and the architectural committee
approved his request.
In November of 1994, Maurice Jarrett and thirty-four other
owners of either lots or condominium units (collectively, Jarrett)
filed a complaint against Valley Park and the St. Marie Village
Association (collectively, VPI) . Jarrett requested the District
Court to declare Covenant II(Q) void and unenforceable and
permanently enjoin VP1 from enforcing it. In response, VP1 denied
that the covenant was void and unenforceable. Both parties
conducted discovery.
In May of 1995, both Jarrett and VP1 moved for summary
judgment. The District Court granted Jarrett's motion, declaring
Covenant II(Q) void and unenforceable and ordering that VP1 be
permanently enjoined from enforcing it. Thereafter, Jarrett filed
a motion to amend, pursuant to Rule 59(g), M.R.Civ.P., to include
an award of attorney's fees and the District Court awarded Jarrett
$5,000 in attorney's fees. VP1 appeals.
1. Did the District Court err in granting Jarrett's
motion for summary judgment based on its conclusion that
Covenant II(Q) is void and unenforceable?
Summary judgment is proper when no genuine issues of material
fact exist and the moving party is entitled to judgment as a matter
of law. Rule 56(c), M.R.Civ.P. We review a district court's
grant of summary judgment de novo, applying the same Rule 56(c),
M.R.Civ.P., criteria used by that court. In re Estate of Lien

(1995), 270 Mont. 295, 298, 892 P.2d 530, 532 (citation omitted).

4
Ordinarily, such a review requires that we first determine whether
the moving party met its burden of establishing both the absence of
genuine issues of material fact and entitlement to judgment as a
matter of law. & Estate of Lien, 892 P.2d at 532.
In this case, however, the parties agree on the material facts
relating to the legal issue of whether Covenant II(Q), which
prohibits the installation of television satellite receiving dishes
in the village of St. Marie except by VP1 or its designate, is
enforceable. Through their cross motions for summary judgment,
each party asserted entitlement to judgment as a matter of law.
The District Court granted Jarrett's motion, concluding that
Covenant II(Q) is ambiguous, lacking quantifiable and objective
standards of review by the architectural committee and
insufficiently connected to a general plan or scheme. We address
in turn the District Court's conclusions.
a. Ambiguity
We interpret restrictive covenants by applying the rules of
construction applicable to contracts. Gosnay v. Big Sky Owners
Ass'n (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250 (citation
omitted). The language of the covenant is to be understood in its
plain and ordinary sense. Hillcrest Homeowners Ass'n v. Wiley

(19891, 239 Mont. 54, 56, 778 P.2d 421, 423; § 28-3-501, MCA.
"[Wlhere the words [used in restrictive covenants] are plain,
unambiguous, direct and certain and admit of but one meaning, then
it is the duty of this Court to declare what the terms of the
covenants contain . . . .'I Higdem v. Whitham (1975), 167 Mont.

5
201, 208, 536 P.2d 1185, 1189.
Covenant II(Q) states:
No television satellite receiving dishes shall be placed
on any portion of the property except by [VPI] or its
designate. Radio and television antennas and aerials may
b e placed on the property as approved by the
architectural committee.
The first sentence of the covenant, which is at issue here,
absolutely prohibits installation of television satellite receiving
dishes except by VP1 or its designate. The second sentence
authorizes the placement of radio and television antennas in the
event the architectural committee approves such placement.
In interpreting Covenant II(Q), the term "television satellite
receiving dish" must be understood in its ordinary and popular
sense. See Hillcrest, 7'78 P.2d at 423. Here, the parties do not
dispute that the eighteen-inch dish Jarrett wanted to install is,
in fact, a "television satellite receiving dish." Thus, by the
plain meaning of the language used, Covenant II(Q) prohibits
installation of satellite dishes except by VP1 or its designate.
Nor does Jarrett contend that the term "television satellite
receiving dish" is susceptible to two definitions or
understandings. Rather, Jarrett argues that the term "television
satellite receiving dish" is ambiguous under the facts of this case
due to advancing technology. In this regard, Jarrett states that
"television satellite receiving dishes" were commonly
understood to be large, metal contraptions installed on
the ground . . . [which were] arguably unsightly. The
new eighteen inch dishes can be affixed to the exterior
of buildings in the same way that radio and television
antennas and aerials are, and are no larger than other
antennas and aerials.

6
Notwithstanding the myriad values and impacts of "advancing
technology," technology does not--in and of itself--render
ambiguous language which is otherwise direct and clear. Nothing in
the language used in Covenant II(Q) relates to the size of the
dish. Moreover, nothing in Covenant 11 (Q) qualifies the
prohibition based on the means or manner by which the television
satellite receiving dishes are affixed to buildings. We conclude
that Covenant II(Q) is unambiguous and, according to the plain
meaning of the language used, prohibits the installation of
television satellite receiving dishes--regardless of size or manner
of installation--except by VP1 or its designate.
Jarrett's final argument relating to the term "television
satellite receiving dish" used in Covenant II(Q) is that the
District Court properly relied on Hiqdem in determining that
applying that language to the eighteen-inch dishes would result in
a prohibited extension of the covenant to cover a "question later
developing.t' We disagree.
In Hisdem, the defendants commenced construction of a garage
on their property and the plaintiffs sued based on restrictive
covenants governing use of the property in the subdivision.
Hisdem, 536 P.2d at 1187. The restrictive covenants at issue
provided, in relevant part, that purchasers of lots in the
subdivision were prohibited from
erect[ing] any building other than a single detached
dwelling house, either with or without a garage or other
like and necessary outbuilding . . . [and from using] any
building to be erected upon said lot of land . . for
any purpose other than those incidental to the use of a
private dwelling house only; this provision being
7
 intended to prohibit the use of any housing for . . . any
commercial purpose . . .
Hisdem, 536 P.2d at 1187.
The defendants testified that they had abandoned any intention
of using the garage for "odd jobs" due to opposition from
neighbors, that the garage that came with their house was
inadequate based on the number of vehicles their family owned and
that the new garage was needed as additional storage space for
vehicles, tools, lawn equipment and firewood. Hiodem, 536 P.2d at
1187. Without referencing a specific covenant, the district court
concluded that "the additional building, its size and the purpose
intended are in violation of the restrictive covenants." Hisdem,
536 P.2d at 1188.
On appeal, we set forth the threshold rules for interpreting
restrictive covenants. Where the words are plain, unambiguous,
direct and certain and admit of but one meaning, it is our duty to
declare what the terms of the covenants contain and not to insert
a limitation not contained therein. Hisdem, 536 P.2d at 1189.
Moreover, restrictive covenants must be strictly construed and
should not be aided or extended by implication or enlarged by
construction. Hisdem, 536 P.2d at 1189-90. We noted that the
covenant at issue made no reference to the size of garages
permitted and, on that basis, rejected the plaintiffs' efforts to
support the size restriction the district court read into the
covenants. Accordingly, we concluded that the
district court should not have broadly interpreted and
imposed these restrictive covenants in terms of what the
parties would have desired had they initially been
8
 confronted with questions later developing.
Hisdem, 536 P.2d at 1190. While our use of the term "broadly
interpreted"--in a situation where the district court's
interpretation rendered the covenant more restrictive than its
plain and unambiguous language could support--is not absolutely
clear, our meaning was that the district court could not "broaden"
the covenant by adding a limitation not contained therein. Thus,
in Hiqdem, the district court erred by imposing the restrictive
covenants beyond their terms, in contravention of the rules of
construction applicable to restrictive covenants, in order to
encompass what the neighboring landowners might have desired "had
they initially been confronted with questions later developing."
Here, while the District Court determined that the term
"television satellite receiving dishes" was not clearly defined, we
have concluded above that the language is clear and unambiguous.
Based on its erroneous determination of ambiguity, the District
Court then apparently relied on Hisdem in further determining that
inclusion of the eighteen-inch dishes within Covenant II(Q
prohibition would improperly "extend" the restriction to cover the
later developed technology.
The reverse, however, is true. As discussed above, the term
"television satellite receiving dishes" is clear and unambiguous
and Covenant II(Q) does not contain size, or other, limitations on
the meaning of the term. In order to exempt the newer dishes from
the prohibition contained in Covenant II(Q), it would be necessary
to insert limitations regarding the size of, and/or manner of

9
installing, television satellite receiving dishes which do not
exist in the unambiguous language used in the covenant. Injecting
such limitations would result in a covenant which, for example,
prohibited the installation by anyone other than VP1 or its
designate of television satellite receiving dishes more than
eighteen inches in diameter which are installed by placement on the
ground or on a roof, but not on an exterior wall; such a
judicially-revamped covenant, however, would bear little
resemblance to the plain language of Covenant II(Q) prohibiting the
installation of television satellite receiving dishes except by VP1
or its designate. Like the neighboring landowners in Hiqdem,
Jarrett clearly would have preferred a differently worded covenant
had this "question later developing" with regard to smaller dishes
installed in a manner similar to television and radio antennas
existed at the time Covenant II(Q) was written. However, we must
strictly construe covenants and may not insert limitations not
contained therein. Hisdem, 536 P.2d at 1189-90. We hold that the
District Court erred in concluding that Covenant II(Q) is ambiguous

and, on that basis, unenforceable.
b. Lacking Quantifiable and Objective Standards
The District Court further based its determination that
Covenant II(Q) is void and unenforceable on its conclusion that
[tlhere is no quantifiable and objective standard of
review for approval by the architectural committee . . .
[and that] [llacking such standards, the actions of the
architectural committee are subject to such arbitrary
determination of sufficient degree as to deny substantive
due process.
The District Court's conclusion apparently is based on Town &
10
Country Estates Ass'n v. Slater (1987), 227 Mont. 489, 740 P.2d
668.
Town & Countrv Estates involved a prior-approval covenant
which provided that:
No residential . . . structure . . . shall be made . . .
upon the Properties . . . until plans and specifications
. . . have been submitted to and approved in writing as
to harmony of exterior design . . . by a Design Review
Committee . . . .
Town & Country Estates, 740 P.2d at 669-70. The owners of a lot
presented plans for a proposed house with a shake roof, wood siding
and 2,600 square feet of living space. Town & Country Estates, 740
P.2d at 670. The Design Review Committee rejected the plans,
stating that the home was not in harmony of external design as
required by the covenant and that "'the neighborhood consists of
$200,000 plus homes, and this is the kind of conformity that you
should look to."' Town & Countrv Estates, 740 P.2d at 670. The
owners began construction without approval and the subdivision
homeowners' association sued. Town & Countrv Estate, 740 P.2d at
670.
We recognized that, although prior-approval covenants properly
may be based on aesthetic considerations, every house in the
subdivision at issue had a "unique external design, in a cacophony
of styles[;ltt the covenant did not contain any design standard and
the Design Review Committee was unable to state one. Town &
Countrv Estates, 740 P.2d at 671. Moreover, the record reflected
that the submitted plans met the only common design characteristics
extant in the subdivision, which related to minimum size and type

11
of roof. We concluded that where a prior-approval covenant fails
to define a standard of approval for the entity charged with review
and approval of plans, it is too vague to be enforceable. Town &
Countrv Estates, 740 P.2d at 671. Since the subdivision at issue
had a "broad architectural spectrum," and the owners' proposal fell
within that spectrum, we held that the covenant was vague to a
degree which denied the owners substantive due process. Town &
Countrv Estates, 740 P.2d at 671.
Town & Countrv Estates involved a prior-approval covenant
which was vague due to a lack of design standards under which the
required review and approval of plans would be conducted. In the
present case, Covenant II(Q) contains a prohibition against the
installation of television satellite receiving dishes by unit
owners. The prohibition totally precludes such installation and,
as a result, no plans or applications are subject to review by the
architectural committee. Thus, the quantifiable and objective
standards for review which were necessary in Town & Countrv Estates
have no applicability here. We hold, therefore, that the District
Court erred in concluding that the absence of quantifiable and
objective standards of review renders Covenant II(Q) unenforceable.
c. Insufficiently Connected to General Plan or Scheme
The District Court also concluded that Covenant II(Q) is not
enforceable because "[iIt does not clearly connect the restriction
to any general plan or scheme" in that no statement in the
Protective Covenants specifically shows how the restriction on
installation of satellite dishes is connected to the stated purpose

12
of the Protective Covenants. That purpose, as set forth above, is
to maintain "a uniform and stable value, character, architectural
design, use and development of the property." The District Court
apparently relied on Town & Countrv Estates in reaching its
conclusion.
As discussed above, Town & Countrv Estates involved a prior-
approval covenant requiring "harmony of external design." In
addressing the covenant, we set forth the rules to be applied when
the terms of a restrictive covenant were ambiguous; we also stated
that, generally, restrictive covenants
are valid if they tend to maintain or enhance the
character of a particular residential subdivision.
However, such covenants are enforceable only when used in
connection with some general plan or scheme.
Town & Countrv Estates, 740 P.2d at 671. In the context of the
prior-approval covenant at issue, we observed that approval of
plans by an architectural committee is one method which helps
maintain the value and general plan of subdivision construction.
We also noted that prior-approval covenants necessarily and
properly include aesthetic considerations not susceptible of
absolute standards. Town & Countrv Estates, 740 P.2d at 671.
While the term "harmony of external design" was not per se
ambiguous, we determined that it was too vague to be enforceable
absent defined standards of approval. Town & Count??? Estates, 740
P.2d at 671. On that basis, we concluded on the record before us
that "neither a uniform standard of design, nor a general plan
regarding 'harmony of external design“' existed. Town & Country
Estates, 740 P.2d at 671.
13
 Our statement and application of the "maintain and enhance"
and "general plan or scheme" principles in Town & Countrv Estates
occurred in the context of a prior-approval covenant to which those
principles had a substantially direct relationship. Such a context
is lacking in the present case. Here, as discussed above, Covenant
II(Q) is neither ambiguous per se nor vague as a result of the
absence of quantifiable and objective standards of approval. Thus,
the referenced Town & Countrv Estates principles are of limited
applicability in the case presently before us.
Moreover, it is clear that the Town & Country Estates
principles are not ironclad rules susceptible of concrete and clear
application. Covenants are generally "valid if they tend &o
maintain or enhance the character" of the property and are "used b
connection with some general plan or scheme." Town & Countrv
Estates, 740 P.2d at 671 (emphasis added). To the extent the
"maintain and enhance" and "general plan or scheme" principles
apply in a given case, it is sufficient that the particular
covenant at issue generally can be said to further, and not be at
odds with, the stated purpose of the protective covenants. Such a
covenant tends to maintain and enhance the character of the
property and is being used in connection with a general plan or
scheme, as required by Town & Countrv Estates.
Subsequent to Town & Countrv Estates, we decided Hillcrest.
There, the defendants had completed construction of a garage on
their subdivision lot in late 1980 or early 1981; by 1987, no
residence had been built and the homeowners' association filed suit

14
contending that the garage violated a covenant restricting use of
the lot to residential purposes. Hillcrest, 778 P.2d at 422. The
district court concluded that the garage did not violate the
covenant and the association appealed, contending that a garage by
itself, without a residence, was inconsistent with the "residential
purposes" limitation. Hillcrest, 778 P.2d at 422.
In setting forth the principles applicable to our
interpretation of restrictive covenants, we first cited to Town &
Country Estates for the proposition that such covenants are
generally valid if they tend to maintain or enhance the character
of a particular subdivision; we then enunciated the principles that
covenants must be construed to give their language its ordinary and
popular meaning and that plain and unambiguous language will
control our interpretation. Hillcrest, 778 P.2d at 422-23. We
construed the ordinary meaning of the term "residential purposes"
and concluded that a garage not used in conjunction with a
residential dwelling violated the covenant at issue. Hillcrest,
??a P.2d at 423. Although we made a passing reference to the
"maintain or enhance" principle, we did not apply it when faced
with covenant language which was plain and unambiguous. Here, as
in Hillcrest, we have concluded that the covenant at issue is plain
and unambiguous; thus, the approach we used in Hillcrest is more
directly applicable to the case presently before us than that used
in Town & Country Estates.
We recognize, and have stated above, that a covenant which is
clearly at odds with the stated purpose of the overall covenants

15
and the general plan for the properties subjected to those
covenants cannot be enforced. The reason is that such a covenant,
no matter how plain and unambiguous the language, cannot be
harmonized with the overall covenants of which it is a part. In

such a circumstance, interpreting and enforcing only the plain
language of one covenant would violate our obligation to read the
covenants as a whole rather than reading any one covenant in
isolation. & Hillcrest, 778 P.2d at 422-23; Gosnav, 666 P.2d at
1250 (citation omitted).
Conversely, however, we are obligated to enforce a covenant
containing plain and unambiguous language wherever possible as a
result of our obligation to refrain from inserting language not
contained therein (Hisdem, 536 P.2d at 1189) and because covenants
are generally binding, by their terms and pursuant to § 70-23-506,
MCA, on each owner of property subject to the covenants. Thus, a
plain and unambiguous covenant will be upheld if it is possible to
harmonize it with the general plan for the property which is stated
as the purpose of the overall covenants.
Here, Covenant II(Q) is plain and unambiguous in prohibiting
the installation of television satellite receiving dishes by
individual lot or unit owners. It is not at odds with the general
plan for the village of St. Marie, as stated in the Protective
Covenants, of maintaining a uniform character, use and development
of the overall community. Moreover, Covenant II(Q) generally can
be said to further that purpose by limiting the number and location
of receiving dishes. While Jarrett contends that the installation

16
by VPI's designate of three ten-foot satellite dishes at Unit 192-A
of the village of St. Marie undercuts Covenant II(Q validity in
some way, such installation tends to maintain the uniform character
and development of the property by concentrating the installations
in one location. Nothing more is required of a plain and
unambiguous covenant. We conclude, therefore, that Covenant II(Q)
is sufficiently connected to a general plan for the uniform and
stable character and development of the village of St. Marie and
that the District Court erred in concluding otherwise.
In summary, the District Court erred with regard to each of
the conclusions upon which it based its ultimate conclusion that
Covenant II(Q) is void and unenforceable. We hold, therefore, that
the District Court also erred in granting Jarrett's motion for
summary judgment on that basis.
2. Is VP1 entitled to summary judgment?
In the usual summary judgment case where we reverse an order
of the district court granting summary judgment, that resolution is
based on our conclusion that genuine issues of material fact exist
which preclude the moving party's entitlement to judgment as a
matter of law. Under that circumstance, a reversal of the district
court necessitates a remand for trial in which the factual issues
will be determined by the trier of fact. Where all of the facts
bearing on the resolution of the legal issues are before us,
however, this Court has the power to reverse a district court's
grant of summary judgment and direct it to enter summary judgment
in favor of the other party. Matter of Estate of Langendorf

17
(1993), 262 Mont. 123, 128, 863 P.2d 434, 438; Duensing v.
Traveler's Companies (1993), 257 Mont. 376, 386, 849 P.2d 203, 210.
As stated above, the parties in the present case agree that
the material facts are undisputed. We concluded in Issue 1 that
Covenant II(Q) is clear and unambiguous in prohibiting installation
of television satellite receiving dishes except by VP1 or its
designate and that it is sufficiently connected to the general plan
for the village of St. Marie to be enforceable. Based on those
conclusions, we hold that VP1 is entitled to summary judgment in
its favor on the enforceability of Covenant II(Q).
3. Did the District Court abuse its discretion in
issuing a permanent injunction enjoining enforcement of
Covenant II(Q)?
We review a district court's grant or denial of an injunction
to determine if the court abused its discretion. See Butler v.
Gennann (1991), 251Mont. 107, 114, 822 P.2d 1067, 1072; Sampson v.
Grooms (1988), 230 Mont. 190, 194, 748 P.2d 960, 963. In
addressing the foregoing issues, we held that the District Court
erred in granting Jarrett summary judgment and, further, that VP1
is entitled to summary judgment in its favor on the enforceability
of Covenant II(Q). On those bases, we also hold that the District
Court abused its discretion in permanently enjoining VP1 from
enforcing Covenant II(Q).
We reverse the District Court's grant of summary judgment in
Jarrett's favor and vacate its related award of attorney's fees.
We remand for entry of summary judgment in favor of VP1 on the
enforceability of Covenant II(Q) and for proceedings on VPI's

18
entitlement to attorney's fees pursuant to the Protective
Covenants

We concur.

Chief Justice

Justices

19
Justice W. William Leaphart, dissenting

I dissent. As the District Court correctly concluded, the

restrictive covenant at issue is not tied to a common plan or

scheme for the Village of St. Marie, and it confers a personal

benefit upon the designate--in this case the brother of the

developer who drafted the covenants. Paragraph II(Q) of the
restrictive covenants provides that:

No television satellite receiving dishes shall be placed
on any portion of the property except by Valley Park,
Inc. or its designate. Radio and television antennas
and aerials may be placed on the property as approved by
the architectural committee.

Thus, as the covenant makes clear, satellite dishes are not

prohibited by the covenants. Rather, the covenant merely requires

that the satellite dishes must be installed by VP1 or its

designate. Further, there is no absolute prohibition against radio

and television antennas and aerials which are arguably more

unsightly than the 18" DSS dish at issue here. If, as the Court

asserts, Paragraph II(Q) is enforceable because it is tied to, or

enhances, the common plan or scheme of the development there must

first be some common plan or scheme. As Paragraph II(Q)

demonstrates, there is no such common plan or scheme--antennas and

aerials may be installed on the property. More interestingly, so

can satellite dishes as long as they are installed by VP1 or its

designate. Clearly, there is no uniform plan to be maintained

where antennas and aerials may be installed on the condominium

units

20
 As the District Court aptly noted, the covenant:

does not clearly connect the restriction to any general
plan or s c h e m e . There is no statement whatsoever
within the covenants that shows how the restrictions on
the use of television satellite receiving dishes is
connected to this stated purpose. Rather, it appears
that the restrictive covenant exists merely to meet the
developer's promise to provide exclusive television
satellite service to a family member.

The fact that only VPI, the developer, or its designate, may
install satellite dishes appears to be an exclusive franchise

granting VP1 and/or the designate a personal benefit not tied to

the common plan of the Village of St. Marie.

As the Court recognizes, restrictive covenants are valid "if

they tend to maintain or enhance the character of a particular

residential subdivision. However, such covenants are enforceable

only when used in connection with some general plan or scheme."

Town & Country Estates, 740 P.2d at 671. Although the Court

speculates that Paragraph II(Q) "tend[sl to maintain or enhance the

character" of the property and is connected to a common plan or

scheme, this speculation is insufficient to enforce the covenant--

especially when coupled with the District Court's specific finding

that the restrictive covenant served only to fulfil a personal

promise to a family member. Satellite dishes are permitted in the

development if installed by VP1 or its designate. Further, the

architectural committee approved Jarrett's request for a television

antenna. I fail to see how lending our judicial imprimatur to an

exclusive franchise contributes to the common plan or scheme as

required by Town & Country Estates.

Restrictive covenants which serve a valid purpose of mutual
21
benefit to all lot owners are enforceable; restrictions that inure
solely to the benefit of the developer at the expense of the

owner's unrestricted use and enjoyment of their premises are not.

DeWolf v. Usher Cove Co. (D. R.I. 1989), 721 F. Supp. 1518, 1531

(citing Urban Farms, Inc. v. See1 (N.J. Sup. Ct. App. Div. 1965),

208 A.2d 434, aff'd, 217 A.2d 888 (1966)). The covenant at issue

here falls into the second category and, as the District Court

correctly concluded, it is not enforceable. Accordingly, I would

affirm the judgment of the District Court.

Chief Justice J. A. Turnage and Justice William E. Hunt, Sr., join
in the foregoing dissent of Justice W. William Leaphart.

Chief Justice

Justice

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