dissenting:
I respectfully dissent from that portion of the majority opinion which reverses the order of the special referee. I would affirm the order of the special referee in its entirety.
As an initial matter, I would adhere to this court’s prior opinion in Anderson v. Buonforte, Op. No. 2004-UP-270 (S.C. Ct.App. filed April 19, 2004) and dismiss the petition for rehearing as improvidently granted.
In this equitable action to enforce restrictive covenants, as noted by the majority, we may find the facts in accordance with our view of the preponderance of the evidence. We do, however, recognize that the special referee was in a better position to weigh the credibility of the witnesses.
The Buonfortes began construction with no regard for the restrictive covenants. Hank Buonforte comes to this equitable litigation with unclean hands. Mr. Buonforte engaged in a pattern of deceit throughout the process. To facilitate approval of the construction loan from the bank, Mr. Buonforte signed the name of Terry Osteen, a licensed contractor who had nothing to do with the construction. Mr. Buonforte also *499altered the survey prepared by Joseph Edwards to give the false impression that the proposed construction would be completed within the set-back requirements. Mr. Buonforte further submitted a permit for a 3,500-square-foot home, although he planned all along to build a structure in excess of 5,000 square feet.
In March of 2001, the Buonfortes were formally notified of their violation of the restrictive covenants. The Buonfortes were required to submit “plans and specifications” for review, but Mr. Buonforte only submitted a purposefully vague description of the construction plans, described in the record as a “footprint.” Robert Ross Dinkins, pursuant to the restrictive covenants, reviewed the incomplete plans and specifications and responded by letter dated April 4, 2001. The critical portion of Mr. Dinkins’ response to Mr. Buonforte reads:
You are aware that submission of plans, specs [sic], and plot plan is a requirement and their approval before construction begins, according to recorded documents, i.e., restrictive covenants.
I construe this language as disapproving of further construction, pending receipt of further and more specific information.3 Mr. Buonforte ignored the April 4 letter of Mr. Dinkins and continued construction. In light of these circumstances, numerous landowners in the Indian Hills subdivision promptly filed suit seeking to enforce the restrictive covenants.
The special referee considered the evidence and, in my judgment, reached a fair and equitable result in this difficult case. I would affirm the order of the special referee, including the award of fees and costs and the requirement that the Buonfortes remove the garage and alter the mother-in-law wing.
. Mr. Dinkins testified similarly at the hearing: "I've never approved [the plans]. I don't intend to approve them. They do not meet the requirements of the restrictive covenants[,] ... esthetically or harmoniously.” When asked about Mr. Buonforte’s intentions, Mr. Dinkins responded, "I could not know what he plans to do. He's never supplied the plans and specifications.”