Noble v. Kalanges, No. 878-03 Cncv (Katz, J., Aug. 31, 2004)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. 878-03 CnCv

NOBLE

v.

KALANGES

ENTRY

Some of the plaintiffs in this action bought homes in the Countryside subdivision of the Essex Housing Partne rship around 1985 and after. The plat setting out their homesites ha d been approved by the Essex Planning Commission in May 1984, and was pres umably recordedsoon thereafter. It depicted a parcel on the west side of the subdivision,

consisting of about 13.8 acres, as “RESERVED ELEMEN TARY

SCHOOL SITE.” Individual homesite deeds all refere nce the plat. Some Countryside homeowners now seek to enjoin developme nt of that “elementary school site” by defendant.

Immediately to the south of Countryside lies anoth er residential development, Essex Park. Originally, the two were commonly owned by Essex Housing Partnership. Within the Essex Park d evelopment a “COMMON OPEN SPACE” parcel was designated, which is apparently 20 acres. The two undeveloped parcels, together, e xceeded the open space zoning requirements Essex Junction had for bo th subdivisions at the time they were created. In 1985, the common granto r Essex Housing Partnership deeded the elementary school site to th e school district and included the following language in its conveyance:

If, at any time, Grantee [the school district], its successors or assigns, shall exercise its option to purchase anot her parcel of land, said parcel being known and referenced as “Es sex Park Common Open Space” in accordance with the terms and conditions of a Purchase Option dated 2/7/85 . . . the lands and premises conveyed herein [the reserved school site] shall revert to the Grantor [Essex Housing Partnership], its suc cessors and assigns, subject to the restriction, however, that said lands and premises shall be forever reserved as common open s pace for the benefit of the Essex Park Condominium Regimes.

The purchase option referenced in this deed was ex ecuted and recorded the same day. It contained recitation of the parties’ intent for the 20 acre common open space parcel which including th e “school district wish[] to have the option of selecting one of two s ites for future school construction.” It also contained the following con dition:This grant shall revert back to the Owner [Essex Ho using Partnership] and be forever null and void if either of the following two circumstances should occur: a)Within five years after the completion of the above-mentioned subdivi sion known as Country Side in the Village, the School District has not commenced construction of an elementary school buil ding to be used for instructional purposes upon the Essex Park Common Open Space; or b) The School District commences con struction of an elementary school building to be used for ins tructional purposes upon the school site [reserved school site ] it obtained from Owner by the 2/7/85 Warranty Deed above refere nced. In case of reversion under either a or b, said Common Open Space shall forever remain Common Open Space as is curren tly required.

Beyond this restriction, the option defined the ter m “completion” and how notice of it was to be given. It also dictated tha t the school district would show its intent to exercise the option by notice to Essex Housing Partnership and receipt of a warranty deed, which t he school district and Essex Housing Partnership exchanged in 1992.

In the end, the school district chose neither site , deeded its rights in both properties back to the developers, who then co nveyed the elementary school site to defendant. In 1995, Essex Housing P artnership completed the Countryside subdivision as defined in the deeds and purchase option.

Defendant has now built a house on the school site and plans to construct several others. The Essex Park “common open space” remains undeveloped. At least this defendant, who does not own it, asserts that it is truly permanent open space. These appear to be the relevant facts. Both sides seek summary judgment.Implied Open Space Easement from 1985 Plat

Plaintiffs’ first argument is that since their dee ds reference the 1985 plat that marked the 13.8 acre site as a “rese rved elementary school site,” it created an implied easement. In Vermont , an easement or servitude can arise by a deed’s reference to a plat marking out certain roads, parks, or similar public uses, even when the deed makes no explicit reference to the right to such features. Clearwat er Realty Co. v.

Bouchard , 146 Vt. 359, 363–64 (1985); see also 4 J. Backman , Powell on Real Property § 34.06 (1999). Such easements are created becaus e the plat’s physical descriptions are in essence incorpo rated into the deed and promised to the individual buyers, and the court pr esumes, without the need for actual proof, that the sellers intended an d the buyers understood the subdivision property to have such features. Th us, when the purchasers

in Clearwater

bought their Lake Champlain property, they receive d a deed in their chain of title that referenced a 1945 plat showing a beach-access easement 25 feet wide. 146 Vt. at 363. Even thoug h there was no proof that purchasers relied or even saw this plat when t hey bought the property in 1982, the right to the 25-foot easement had been acquired by the original purchaser and passed down through their pr edecessors in title. This method of establishing such rights goes beyond mere right of ways or other easements that touch or directly affect a cer tain parcel. As enunciated by the Court, purchasers acquire a right to “all roads, streets, parks, and other designated ways shown on the plat map unless a contrary intent is affirmatively shown.” Id . at 364. This is known as the “broad” or “unity” rule of easements implied by reference. Lalonde v. Renaud

, 157 Vt. 281, 283–83 (1989).

The question raised by plaintiff’s assertion is wh ether a “reservedelementary school site” in a plat creates the same kind of third party

easement rights that a right of way, a street, or a park would. In Lalonde

, the Vermont Supreme Court reaffirmed the principle of Clearwater and expanded its holding, at least in part, to parks. Id . at 284. But, a school site is not a park, a road, or similar public use. If anything, it resembles more of a public dedication since it assigns land t o a narrow use which will benefit the public but have varying effects on immediately adjacent property. Schools will tend to be magnets for traf fic and youthful disportment. Further they inherently require a ver y large capital investment to construct. Hence they are uncertain in both outcome and effect. Parks, by contrast, will normally see far less concentrated use, do not depend on the large public investment, and are almost universally seen as an amenity by neighbors. Compare id . (“There is no doubt that the character of the neighborhood will be adversely aff ected should the park be no more.”), with 68 Am. Jur.2d Schools § 82 (“Land dedicated for school purposes may revert to the grantor or dedica tor where the purposes

of the dedication fail or the land is used for othe r purposes.”). The difference is important because while the two are n ot mutually exclusive or dependent, they embody different rights. 3 H. T iffany, The Law of Real Property § 800, at 312–13 (3d ed. 1939 & 2003 Supp.).

An easement for benefits derived by reference to a plat is a private right that only requires plaintiffs to demonstrate, as in this case, that their property references the plat. Id . This right is essentially a legal construct in that it does not require actual proof that purch asers relied upon the plat and presumes the seller/developer intended to give them such rights.

Clearwater , 146 Vt. at 364. Lalonde and Clearwater , however, suggest

this construct has two limitations. The first is c lear, affirmative evidence (such as a statement on the plat to the effect) of the seller’s intent not togive such rights to future purchasers. Id . The second, suggested in

Lalonde , is that the right to an implied easement may waiv er or be affected by its subject matter. Lalonde , 157 Vt. at 284 n.2 (citing Tesson

v. Porter Co. , 86 A. 278 (Pa. 1913) (“broad” view subject to exc eption where municipality vacates)). While easements by r eference have been recognized for streets, right of ways, parks, open space, sewers, and bayous, see generally Restatement (Third) of Proper ty § 2.13 (2000),

courts have not been as uniform for more “extensive ” rights. Compare

Ute Park Summer Homes Ass'n v. Maxwell Land Grant C o. , 427 P.2d 249, 251–52 (N.M.1967) (granting easement by refere nce to plat to areas designated as park, club house, golf course, and te nnis courts) , with Crystal Lakes Condo. Clubhouse Unit Ass’n v. Smith , 1997 WL 154104, at *3 (9th Cir.) (Rejecting plaintiffs’ claim for a n easement by reference to a clubhouse and golf course). The rationale behind this appears to have two sources. With the rise of planned communities and subdivisions that sell homes as they are constructed, there seems to be a concern with sellers who promise more than they intend to delive r. ?? This is apparent in

the Ute Park

case, where the court emphasized the developer’s e xtensive use of the plat in brochures to promote and sell lo ts. 427 P.2d at 251. Simultaneously, courts also tend to disfavor findin g implied easements

1 This kind of bait-and-switch tactic to sell lots was employed in a slightly different manner at the Forest Lawn Cemete ry in Glendale, California, satirized in Evelyn Waugh’s novella, The Loved One . As the cemetery expanded, salesmen would take prospective customers to the lots and promote the views, beautiful trees, and the reproduction of Michelangelo’s “Moses” that would watch lovingly over their dearly departed for eternity. Of course, once the lots in that section were sold, a forklift woul d come in and take Moses to the next expansion. The practice earned the reproducti on the moniker “movable

Moses.”because they burden estates and “retard building an d progress.” 25 Am.

Jur.2d Easements and Licenses § 23 (1996). Together, these rationales have caused courts to look cautiously at more compl ex claims for easements by reference when the asserted right look s less like a private right to a road or open space and more like a publi c right to a dedicated purpose, such as a school site, cemetery, or recrea tional facility. See

Lalonde , 157 Vt. at 284 (indicating that a private right t o parks or other open space might be subject to the “beneficial enjo yment” rule); see also Annot., Conveyance of Lot with Reference to Map or Plat as Giving Purchaser Rights in Indicated Streets, Alleys, or A reas Not Abutting His

Lot , 7 A.L.R.2d 604, at §§ 11–15 (1949 & 2004 Supp.) ( “. . . in some cases . . . a grantee to whom a conveyance is made by reference to a map or plat upon which parks or other open areas are de lineated acquires a private right of user in such parks, etc. . . . whe re such area is ‘necessary’ to the enjoyment of his premises.”). In such cases , the facts become controlling and evidence, such as the vacating of t he “dedicated” municipal purpose, the fact that purchasers are sti ll able to enjoy the use of their lots, and the lack of evidence that seller used the plat as a tool to sell the lots, will determine if an easement by ref erence exists. Bacon v. Onset Bay Grove Ass’n , 136 NE 813 (Mass. 1922).

In this respect, our analysis of plaintiff’s claim resembles more of an equitable evaluation. See Crabbe v. Veve , 150 Vt. 53, 55–56 (1988). Given that implied easements are disfavored, that e nforcing the right would create a particularly heavy burden to run wit h the land, and for a purpose that has been disavowed by the very party i ntended, it is difficult to see how plaintiffs would have a right to the res erved school site parcel merely because it was part of the plat referenced i n their deeds. Plaintiff’s attempt to sidestep this analysis is to argue that they do not want theparcel to remain a school site but rather that the right they seek is open

space. Essentially their argument is that 13.8 acr es was far too big a site for a school building, so it inherently implies tha t there would be open space in the form of parks, playgrounds, and undeve loped land. It is this land that plaintiffs argue they have a right to thr ough an easement by reference. Beguiling as this argument may be to th ose of us who remember elementary schools surrounded by acres of open fields of corn, baseball diamonds, soccer fields, and tennis courts , the plaintiffs’ are essentially urging an implied description to suppor t an implied easement. Such double implication is too far afield. An impl ied easement has to have some definite description, whether it be “club house” or “open space.” We cannot presume that such descriptions w ould necessarily include “chilled water fountain” or “maple tree,” s imply because most

clubhouses have a chilled water fountain and most o pen fields have at least one maple tree. We decline to read implied f eatures into a legal construct that is already based upon generalities a nd policy and a plat feature that necessarily presupposes municipal supp ort.

Open Space Equitable Servitude from 1985 Deed

Unlike plaintiffs’ first argument, their second is premised on the words of the 1985 deed and their alleged intent and effect. As a matter of contract interpretation, absent ambiguity, we will interpret the contract as

a matter of law. Luneau v. Peerless Ins. Co. , 170 Vt. 442, 445 (2000). Plaintiffs argue that the 1985 deed contained a rev ersion clause, which

would cause the school site to return to Essex Hous ing Partnership—to be held forever as open space—if the School District e xercised its purchase option over the 20 acre open space parcel. By rece iving a warranty deed in 1992 for the 20 acres, plaintiffs argue the Scho ol District exercised its purchase option and thereby caused the school site to revert to Essex Housing Partnership under an open space equitable s ervitude. Setting aside defendant’s arguments concerning the chain of title for this deed, we disagree with plaintiffs’ conclusion. An option co ntract is not an agreement but rather a “continuing offer by one to sell and convey withinthe time and upon the conditions stated.” 77 Am. J ur. 2d Vendor and

Purchaser § 35 (1997).

In this case, one of the conditions of the purchas e option was that the School District build a school building on the property within five years of Countryside’s completion. The fact that t he parties exchanged deeds acknowledged that the School District intende d to exercise its option, but the building term remained unfulfilled. Thus, the School District took possession of the property, but it di d not take in accordance with the option’s original terms. Moreover, the Sc hool District returned the parcel in 1995 before it could exercise the ter ms of the purchase option. The importance of this building term is ma de clear on the first page of the option contract, where the parties note that their intention in making the option is to give the School District a choice in where to build the school, between the 13.8 acre and the 20 acre p arcels. Thus, the whole point of the purchase option in conjunction with th e 1985 deed for the school site was to provide the School District with one school site while reserving one open space. The fact that the School District walked away from both parcels does not change this effect and i ntent. Therefore, we

conclude that the reversion clause in the school si te deed was not triggered by the 1992 transfer of title for the 20-acre parce l and that plaintiffs’ equitable servitude, if it would arise from the dee d, was not kindled.

Based on the foregoing, defendant’s motion for sum mary judgment is granted. Plaintiffs’ motion is denied. Defenda nt should submit a proposed declaratory judgment, suitable for recordi ng.

Dated at Burlington, Vermont, _________________, 2 004.__________________________ Judge