please the court well it's a privilege to again appear before the fourth the stricken argue the case i appreciate the opportunity to do so my name is david cox i represent the surviving plaintiff and the appellant in this case before i proceed with my subset of argument which will focus primarily on the restrictive covenant argument i'd like to make a few prefatory comments regarding the hierarchy of my argument calenders advanced for arguments in this case one is that the construction violates the restrictive covenants that apply to pavements addition in the village of mansfield the second argument is that the construction that was not in compliance with the mansfield city ordinance really jordan is the third argument is the commercial use argument that what violate the residential character of the restrictive covenant regards to residential character and the third is the hydrology or the environmental claim regarding flooding so forth by you i stand by all four articles but i think there's a hierarchy here that can make our discussion more efficient subject to where the score takes me to your questions and inquiry i think the case can be resolved on the restrictive cover issue and that's going to be my  argument of course i indicated that i believe that the novel standard of review of flying to be quite candid i finished this brief during the tail end of a hospitalization and intensive care and it's not exactly as concise as i would like for it to be so in the court also has a fallback position on them as you'll see organs and that is that there is at least a dispute of fact as to when construction began and when permits were again for process had to be applied and therefore perhaps an look back in a city first of all the operate a motorcycle business second they live in a residential neighborhood in mansfield and my client's affidavit indicated that she saw motorcycles and traffic in and around the property but circumstantially i think the case can be possibly bear what was in iraq that so i think when you take that in light of the fact that you have a larger structure being built that has a workshop i think one has to ask well i still think if you look back to the circumstantial evidence concerning a two car garage to an office why would you need an office if you're going to run a business on your property and then building a structure the squash the size of a two car garage with workshop and storage space this i just understand even if that's not the spine your honor the trial court still have to be concerned with the restrictive covenant argument which i'd like to get back to you which of which i've indicated is my main argument i understand your point on the commercial use and i was mentioning that in the context that the court may or may not conclude that there was disputed material fact the restrictive covenant issue i believe is the issue that's dispositive of this case there is a restrictive covenants that applies off properties in the subdivision i know the court doesn't like extensive reading but i'm going to quote just a bare portion of that the covenant certainly indicates that the lots are to be residential locks and that welling is not to exceed two stories an attic space in height and one or two or three car attached or do you charge garage here we have a situation in which the restrictive femin i think if you examine the record on the ca you want to see two you can examine and there are numerous places where you see diagrams of pictures it's clear just to observe a building that is twice the size of a two car garage which would exceed the recollection is there was there were pieces of information that were available in the building permit in applying for the building permit that indicated the dimensions of the ship and i don't have a cite for that this moment but i could look that up but the picture itself looking at the picture i tried not to leave a commonsense review of the situation behind me when i reviewed the picture of the evidence when we argued this at the trial co and it's clear that the work of the building that was constructed is a two car is twice the size to accommodate two cars it has to base and you can see that the building is twenty seven hours plus as a second story case which sent a three car garage is something that rises something that you can't or a unit that you cannot park or fit a third car in by way of analogy a three car garage in this case would be in a building that you a certainly not a standard residential garage but the other problem well it was sort of stuck there for a moment sure worth it is there any definition in the of the the subdivision dedication  statement of restrictions which sets for the restriction of the one other two or three car garage is there any definition of what a two car garage is and three cars for the restrictive covenant doesn't set out  height and lateral extension that it exceeds what could reasonably be interpreted as a three car garage but the other problem the appellee has is the two garage problem what precedent is it going to set if  landowner a residential owner can say i'm going i had a garage i mean compliance with the strictest government there was never a problem now i'm going to call that garage something else and i'm going to build another another  disputes that the garage door was removed and it was converted to an office and recreation area and that it had the entrance door that i reading it would seem the entrance door is a bill not a garage right and that's what i know the clary seven attested to but the problem here is and i'm not trying to be sarcastic in any way with that whine what back to the issue of character of the neighborhood building a much larger structure than anyone else has or anything in the record would indicate was consistent for the residential neighborhood and take you know the light of the circumstances of the specifically relying upon judge i'm asking you to sort of i believe those exist in my motion for summary judgment by reference to the record or attachments to the motion so the photographs that you referred to were context of the plaintiff's argument with respect to the commercial activity he argues that there was an increase in motorcycle traffic at the of the new construction as well as on the property generally i would suggest to the court that there is no evidence of any increase in motorcycle traffic plaintiff's affidavit herself states that she has seen motorcycle activity doesn't describe what that activity is and new construction that is the cleary and games identify this is a three car garage as the court was posing questions counsel what exactly is if we arrived and i think the court correctly i don't buy it there are no measurements no again the size of the car has some impact on your consideration as to whether it's a two three four five or ten car garage i would suggest that it's the dimensions which may give some indication that it's more than a three card detached writers on each lot i don't know how the structures are placed in respect to each individual life but yes you could turn it into a home and then go to another  quarters and then build another one because there's only one to test building a lot right i think the question with then becomes does the occult the new construction that's been turned into the mother in law home whether that becomes another resident i think you changing the character of way that there is a portion of the real estate that could be designated this is a third lot more than sell it to joe i don't know how the property was transferred whether it was all free has one or whether i think again a player argues with respect to the commercial use of the property he argues that the home up somehow has something to do with this and so i think i would suggest that that's a little bit of a specious argument with the advent of business operated on and specifically as the court noted there's no evidence of any transactions of any sort preying on the property there's no evidence of any advertising no evidence of a phone number which would give that address for a business the reality is a mr clear has been operating a business and champagne for thirty years as a suggestion by written materials it would be absurd to think that he's going to pick that doesn't suck the been there for thirty years move it to a absolutely no relevance to an analysis of genuine disputed fact the arguments that they make with respect to hydrology i think they address that in my written materials clearly plaintiff is uphill property is uphill from the defendant's property he cited no authority that water runs uphill i would suggest the surface water issue is isn't an issue at all with respect to the ground water of the subsurface  no authority for the proposition that there is some problem and they have some sebastian related to the subsurface part of the statute that they actually cite only addresses the removal of the subsurface water literally has nothing to do with the binding authority in the banner of analysis is that by way of applying to this situation four car garage door basically this would be anything that you could it would be violating the restrictive covenant if the construction exceeded what would be reasonable for a three car garage area that's the case here it was just in terms of clarification in that case it was the trial  that indicated it was the number of cars that the building couldn't accommodate that then defines whether it's a two car garage or three