NO. 95-417

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

Plaintiffs and Respondents,

v.

VALLEY PARK, INC. and ST. MARIE VILLAGE

ASSOCIATION, INC.,

Defendants and Appellants

JUL 25 1996

CLERKOFSUPA&VlECOURT,

STATE OF MONTANA

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

Filed:

Submitted on Briefs: February 29, 1996

Decided: July 25, 1996
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]."

O n 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 priorapproval 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

Covenants

We concur.

Chief Justice

the Protective

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 scheme. 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

22