HEAVEN' S GATE MINISTRIES INTERNATIONAL, INC.
v.
Jewelon B. BURNETT, Burnett Investment Group, Inc., and Remlap Properties, LLC.
Rehearing
Denied July 12, 2019.
Appeal
from Madison Circuit Court (CV-18-900380).
James
T. Baxter III of Ables, Baxter & Parker, P.C.,
Huntsville, for appellant.
Bethany Sneed and Dustin D. Key of Harrison & Gammons,
PC, Huntsville, for appellees.
THOMPSON,
Presiding Judge.
Heaven's
Gate Ministries International, Inc. ("Heaven's
Gate"), appeals from a declaratory judgment entered by
the Madison Circuit Court ("the trial court") that
terminated and released five restrictive covenants connected
to the Frank Clark Acres commercial subdivision ("the
subdivision") in Huntsville.
The
record indicates the following. Jewelon B. Burnett and
Burnett Investment Group, Inc. ("the investment
group"), each owned a parcel of property in the
subdivision. Specifically, Burnett owned lot 3, and the
investment group owned lot 4. At the time the
declaratory-judgment action was filed on February 22, 2018,
Remlap Properties, LLC ("Remlap"), had entered into
a contract with Burnett and the investment group to purchase
lots 3 and 4 ("the property"). (Hereinafter,
Burnett, the investment
Page 73
group, and Remlap are collectively referred to as "the
plaintiffs.") Heaven's Gate owned lot 17 in the
subdivision and had a church at that location.[1]
The
subdivision was created in 2003. Before any of the 23 lots in
the subdivision were sold, the developers established and
recorded restrictive covenants. Five of those restrictive
covenants are at issue in this action: numbers 1, 2, 3, 8,
and 9. Those five restrictive covenants provide as follows:
"1. (A) No building shall be erected, placed or
altered on any lot until the construction specifications, a
plat showing the location of the structure on the lot and a
landscape plan, showing the type, size and location of
plants and trees, and a parking layout, have been approved
by the Architectural Control Committee. Approval will be to
(1) insure the harmony of the external design with existing
or planned structures and (2) to identify location with
respect to topography and finish grade elevation. Approval
shall be as hereafter provided.
"(B) The Architectural Control Committee (the
`Committee') is composed of Timothy D. Clark, Donald B.
Weir, Jr., and Patti R. Clark or their designated agents or
successors. Neither the members of the Committee, nor their
designated representatives, shall be entitled to any
compensation for services performed pursuant to the
Covenant.
"(C) Architectural Standards: No exterior
construction, alteration, addition, or erection of any
nature whatsoever shall be commenced or placed upon any
part of the subdivision, except such as is installed by the
Declarant, or as is approved in accordance with this
Section, or as is otherwise expressly permitted herein. No
exterior construction, addition, erection, or alteration
shall be made unless and until plans and specifications
showing at least the nature, kind, shape, height,
materials, and location shall have been submitted in
writing to and approved by the Architectural Control
Committee.
"In the event that the Architectural Control Committee
fails to approve or to disapprove submitted plans and
specifications within thirty (30) days after the plans and
specifications have been submitted to it, approval will not
be required, and this Section will be deemed to have been
fully complied with. As a condition of approval under this
Section, an owner, on behalf of himself and his
successors-in-interest, shall assume all responsibilities
for maintenance, repair, replacement, and insurance to and
on any change, modification, addition or alteration. In the
discretion of the Architectural Control Committee, an owner
may be made to verify such condition of approval by a
recordable written instrument acknowledged by such owner on
behalf of himself and his successors-in-interest. The
Architectural Control Committee shall be the sole arbiter
of such plants [sic] and may withhold approval for any
reason, including purely aesthetic considerations, and it
shall be entitled to stop any construction in violation of
these restrictions. Any member of the Architectural Control
Committee or its representatives have the right, during
reasonable hours and afer reasonable notice, to enter upon
any property to inspect for the purpose
Page 74
of ascertaining whether or not these restrictive covenants
have been or are being complied with. Such person or
persons shall not be deemed guilty of trespass by reason of
such entry. In addition to any other remedies available,
the Architectural Control Committee may record in the
appropriate land records office a notice of violation
naming the violating owner.
"Plans and specifications are not approved for
engineering or structural design or quality of materials,
and by approving such plans and specifications neither the
Architectural Control Committee or the members thereof
assumes liability or responsibility therefore, not for any
defect in any structure constructed from such plans and
specifications. Neither Declarant, the Architectural
Control Committee, employees, and agents of any of them
shall be liable in damages to anyone submitting plans and
specifications to any of them for approval, or to any owner
of property affecting [sic] by these restrictions by
mistake in judgment, negligence, or nonfeasance arising out
of or in connection with the approval or disapproval or
failure to disapprove any such plans or specifications.
Every person who submits plans or specifications and every
owner agrees that he/she will not bring any action or suit
against Declarant, the Architectural Control Committee,
employees and agents of any of them to recover any such
damages and hereby releases, remise, quitclaims and
covenants not to sue for all claims, demands and causes of
action arising out of or in connection with any judgment,
negligence, or nonfeasance and hereby waives the provisions
of any law which provided that a general release does not
extend to claims, demands, and causes of action not known
at the time the release is given.
"2. (A) Any metal exterior on the front of any
building without brick, stucco, or synthetic stucco or
decorative block or painted wood or acceptable siding shall
not be permitted. Metal exterior on the rear or
side of any building shall be permitted and approved by the
Architectural Control Committee per Paragraph 2 above.
"(B) All parking lots or facilities shall be paved,
landscaped, well lighted and kept clean.
"3. It shall be the responsibility of each owner and
occupant to prevent the development of any unclean,
unhealthy, unsightly, or unkept condition on his or her
property. No building shall be permitted to stand with its
exterior in an unfinished condition for longer than twelve
(12) months after commencement of construction. No property
within the subdivision shall be used, in whole or in part,
for the storage of any property or thing that will cause
such lot to appear to be in an unclean or untidy condition
or that will be obnoxious to the eye; nor shall any
substance, thing or material be kept that will emit foul or
obnoxious odors or that will cause any noise or other
condition that will or might disturb the peace, quiet,
safety, comfort, or serenity of the occupants of
surrounding property.
"....
"8. The authority of the Architectural Control
Committee shall include the approval of construction plans,
plot plans showing the location of the building and any and
all other
Page 75
structures to be located on said lot, landscape plans,
parking lots, exterior paint colors, exterior materials and
color, roof type and color of shingles. The builder and
subsequent owners of a building shall not change or deviate
from those selections approved by the Architectural Control
Committee.
"9. The Architectural Control Committee may issue
guidelines detailing acceptable fence styles, but in no
event will a woven wire, hog wire or barbed wire fence be
approved. Prior to starting construction of any fence a
plan showing where the fence is to be located and a cross
section of the fence must be submitted for approval to the
Architectural Control Committee."
The
plaintiffs filed this action seeking a declaratory judgment
alleging, among other things, that the restrictive covenants
at issue had "effectively been abandoned, the purpose of
the [restrictive covenants had] failed, and the reason for
the existence of the [restrictive covenants had] ended."
The plaintiffs further alleged that the five restrictive
covenants at issue were overbroad and ambiguous and,
therefore, they contended, unenforceable. The plaintiffs
asserted that all of the lot owners in the subdivision would
benefit if the five restrictive covenants at issue were
declared unenforceable.
On July
24, 2018, a trial was held on the matter. The evidence
adduced at that trial indicated that the subdivision was
zoned by the City of Huntsville for light industrial use. At
the time of the trial, the lots in the subdivision were used
for various commercial purposes. Curtis Parcus, a witness for
the plaintiffs, testified that he was a due-diligence
coordinator for the Broadway Group, which, he said is a
related entity of Remlap. Parcus said that once a parcel of
property is under contract he performs the title work,
obtains a survey and environmental reports, and begins
working with the municipality and related departments to
prepare the site for construction. In this case, Parcus said,
his company was developing the property for a "national
tenant." Later testimony indicated that that tenant was
Dollar General and that a Dollar General store was to be
constructed on lots 3 and 4.
In
performing the title work, Parcus said, he noticed there were
some restrictions on the property and that, sometimes, such
restrictions "can be an issue with our tenant." The
specific restrictions with which Parcus had difficulty were
in covenants 1, 2, 3, 8, and 9, as set forth above. Parcus
testified that a "Release of Restriction" document
("the release") was prepared to terminate the
restrictions at issue. He said that the owners of 22 of the
23 lots signed the release. Only Heaven's Gate refused to
sign it.
Parcus
said that he met with board members of Heaven's Gate to
see whether his tenant and Heaven's Gate could negotiate
a compromise. Parcus testified that the board members
complained to him of the wrecked vehicles that were stored in
the lot adjacent to Heaven's Gate's property. The lot
belonged to an automobile-repair shop; lots 3 and 4 are on
the far side of the subdivision, away from the location of
Heaven's Gate's property. Parcus said that his client
offered to erect a wooden privacy fence so that the vehicles
would not be visible from the Heaven's Gate's church
in exchange for approval to terminate the restrictions at
issue. Heaven's Gate board members requested a metal
fence instead. Parcus ...