RENDERED: APRIL 1, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2021

- CA

- 0171

- MR
DAVID CIOCHETTY AND ROBIN CIOCHETTY APPELLANTS

v. APPEAL FROM WARREN CIRCUIT COURT

HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 18

- CI

- 01397

FOUNTAIN TRACE HOMEOWNERS ’ ASSOCIATION, INC. AND STEVE NELSON, D/B/A PROVIDENCE HOMES APPELLEES
AND

NO. 2021

- CA

- 0177

- MR STEVE NELSON, D/B/A PROVIDENCE HOMES APPELLANT

v. APPEAL FROM WARREN CIRCUIT COURT

HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 18

- CI

- 01397- 2

-

FOUNTAIN TRACE HOMEOWNERS ’ ASSOCIATION, INC.; DAVID CIOCHETTY; AND ROBIN CIOCHETTY APPELLEES
AND

NO. 2021

- CA

- 0243

- MR
FOUNTAIN TRACE HOMEOWNERS ’ ASSOCIATION, INC. CROSS

- APPELLANT

v. CROSS

- APPEAL FROM WARREN CIRCUIT COURT

HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 18

- CI

- 01397

DAVID CIOCHETTY; ROBIN CIOCHETTY; AND STEVE NELSON, D/B/A PROVIDENCE HOMES CROSS

- APPELLEES

OPINION REVERSING AND REMANDING

**   **  **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES. GOODWINE, JUDGE: David and Robin Ciochetty (“the Ciochettys”) appeal
from the September 13, 2019 and November 5, 2020 order s of the Warren Circuit
Court . Steve Nelson, d/b/a Providence Homes (“ Nelson ”) appeals from the sam e .- 3

-

Fountain Trace Homeowners’ Association, Inc. (“Fountain Trace”) cross

- appeals. After careful review and consideration of the parties’ oral arguments, we reverse
and remand for entry of an order consistent with this O pinion

. BACKGROUND The C iochettys own property in the Fountain Trace subdivision in Bowling Green, Kentucky. Properties in Fountain Trace are subject to various deed restrictions. In 2018, the Ciochettys planned to construct an addition to their home in Fountain Trace with Nelson acting as their contractor for the project. On June 27, 2018, the Ciochettys sent Barry Cummings (“Cummings”) , the Chairman of the Fountain Trace Architectural Review Committee (“ARC”), an email stating the following:

I understand you are on the [ARC] . Attache d is the exterior view of our addition to our house; we are adding bedrooms, and an office, and a garage, plus added a storage room and a laundry room (our existing one looks like a broom closet). Our builder is Steve Nelson of Providence Homes; he has be en given a copy of the [Fountain Trace] restrictive covenants, plus the separate ones for Fountain Trace Estates. Exterior building materials will match the existing structure, adding approx. 3100 sq. feet. He is taking care of permits and inspections. I combined the lots into one soon after we moved in 2006. The existing structure on the exterior front view ends at the shuttered window; because of the length; we are adding a secondary front door, per fire code.- 4

-

Record (“R

. ”) at 333

. Attached to the ema il was a one

- page document depicting the front exterior of the addition. The image contained no notations as to the size, height, depth, elevation, or floorplan of the addition. No additional details, images, plans, or blueprints were attached to the ema il or given to the ARC at that time

. Neither Cummings nor any other member of the ARC responded to the email.

Thereafter, Nelson commenced construction of the addition for the Ciochettys . On September 6, 2018, after construction had begun , Cummings se nt the Ciochettys an email on behalf of the ARC demanding they cease construction because “the requisite plans and specifications have not been submitted for review to or approved by the Architectural Committee of Fountain Trace Homeowners Association, as required by Article III, Section One of the Declaration of Restrictive Covenants for Fountain Trace.” Id . at 335. Cummings requested the Ciochettys send the ARC the relevant blueprints, elevations, and detailed
spec ifications . On the same day, David Cio chetty responded to Cummings’ email by sending him the blueprints for the addition to “satisfy the Article III provision.”
Id . at 336. Within his message, David also takes responsibility by stating, “this is my fault; go easy on ou r builders.” Id. The blueprints provided detailed information regarding the proposed construction. In addition to having a second front entrance, the blueprints indicated the addition would contain a dining room, kitchen, family room, two master suites, an additional bedroom and bathroom, and- 5

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a laundry room, as well as a two

- car garage, lawnmower garage, additional storage space, and two covered porches. The addition was planned to total 4,557 square
feet. After reviewing information and documentation provided by the Cioche ttys and Nelson, the ARC declined the request for approval of the addition on September 14, 2018. The ARC determined the addition violated the neighborhood’s restrictive covenants, including Article III, Section I,

as they are not in harmony with the int ended design of Fountain Trace Subdivision and Section II of Fountain Trace Subdivision, and are not in harmony with the external design and location in relation to the surrounding structures and topography. The proposed construction is also two houses an d more than a single family dwelling, as prohibited by Article IV Section One of the Declaration of Restrictive Covenants of Fountain Trace[.] Id . at 343. The Ciochettys were given thirty days to remove the partially

constructed addition from their proper ty.

Article III, Section I of Fountain Trace’s restrictive covenants states No building, fence, wall, pool, or other structure (including a detached garage) shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to o r change in alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Developer. The Developer shall, at its sole d iscretion, retain the right to disapprove building plans that it does not feel are in- 6

- harmony with the intended design of the Subdivision. Such disapproval may follow even though submitted plans meet all other requirements and guidelines, including square footage minimums, as outlined below. After Developer shall have conveyed title to all Lots, the architectural control shall be vested in the Association, or in an architectural committee composed of three (3) or more members of the association appointed by the Association. In the event said Developer, Association, or Association’s designated committee, as the case may be, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitte d to it, approval will not be required and the Article will be deemed to have been fully complied with. The Developer, or after the delivery of architectural control to the Association or its architectural committee, said Association or committee, may var y the established building lines, in its sole discretion, where such variance is not in conflict with applicable zoning regulations. No building shall be constructed except in accordance with the plans and specifications approved by the developer or the a ssociation. Id . at 247

- 48

.

The Ciochettys filed a complaint in the Warren Circuit Court seeking a declaratory judgment that they had complied with the neighborhood ’s restrictive

covenants and were authorized to proceed with construction

. Nelson later
i ntervened in the lawsuit.

The parties filed cross

- motions for partial summary judgment regarding whether the Ciochettys’ June 2 7 , 2018 email was a n adequate submission to the ARC under Article III, Section I. In its September 13, 2019 order, the circui t court grant ed the Ciochettys’ motion for partial summary- 7

-

judgment, f

inding their email was “near the bare minimum of what [was] required to trigger a response” from the ARC. Id . at 356

. In reference to the attached exterior drawing, the court found “[t ]his attachment contained no scale as to the height of the addition. However, many details can be inferred from the exterior view because it shows a front door and the edge of the Ciochettys’ existing house. For some reason unknown to this [c]ourt, the C iochettys’ chose not to send the builder’s plans that they apparently then possessed.” Id . at 349

. The court further determined “[t]he plain meaning of ‘plans and specifications’ in the restrictive covenants required the Ciochettys disclose what they disclosed in the email to Mr. Cummings.” Id. at 355

- 56

. The court concluded that, while the Ciochettys could proceed with construction because the ARC failed to respond to their submission within thirty days, they were limited to building what was disclosed in the June 27, 2018 email. Id. at 356.

Thereafter, the parties attempted mediation and, when that was unsuccessful, the circuit court scheduled a hearing to determine whether the Ciochettys’ addition , as it was constructed, was in conformity with the June 27, 2018 email and the court’s prior order. The primary issue before the court was how “square f

ootage” was defined and calculated under the restrictive covenants.
The circuit court heard testimony from Cummings, the Ciochettys, and Liz Nelson, a representative of Providence Homes. The court permanently enjoined the- 8

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Ciochettys from constructing the addition as planned because it did not conform with the email. The court found the Ciochettys were limited to building 3,100 square feet in total and ordered the removal of a retaining wall they failed to disclose in their email. Id . at 497 . The circui t court denied the Ciochettys’ motion to alter, amend, or vacate the order.

This appeal followed.

STANDARD OF REVIEW “Because summary judgment s involve no fact finding, this Court will review the [trial] court’s decision de novo .” Isaacs v. Sentinal Insurance Company Limited , 607 S.W.3d 678, 681 (Ky. 2020) (citation omitted). Summary judgment is appropriate only where, “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Id . at 680 (citation omitted). The record must be viewed in the light most favorable to the respondent with all doubts resolved in his favor. Id. at 680

- 81 (citation omitted).

We also review a trial cou rt’s interpretation of restrictive covenants de

novo . KL & JL Investments, Inc. v. Lynch , 472 S.W.3d 540, 544 (Ky. App. 2015) (citation omitted). Under de novo review, we owe no deference to the trial court’s interpretation. Id . (citations omitted).- 9

- ANALYSIS On appeal, the Ciochettys argue : (1) the circuit court erred in its interpretation of Article III, Section I of th e restrictive covenants ; (2) the circuit court incorrectly interpreted the definition of “square footage” as it relates to the
addi tion; (3) the circuit court incorrectly found their addition did not conform with their June 27, 2018 email; and (4) the circuit court’s permanent injunction was arbitrary and capricious. Nelson joins the Ciochettys in their arguments regarding the definition of “square footage” and the court’s permanent injunction on
construction of the addition. On cross

- appeal, Fountain Trace argues, in part, the June 27, 2018 email was insufficient und er Article III, Section I to require a response from the ARC

.

W e will first address whether the Ciochettys’ June 27, 2018 email qualified as a submission under Article III, Section I necessitating a response from the ARC

. This is an issue of construction of the restrictive covenants

.

In the past, Kentucky courts strictly construed restrictive covenants, resolving any doubt as to the grantor’s intent against the enforcement of the
covenant. KL & JL Investments , 472 S.W.3d at 545 (citation omitted). Howe ver, this approach has evolved, and we no longer apply the rule of strict construction. Id . (citation omitted). W e now view restrictive covenants as “protection[s] to the property owner and the public.” Id . (citation omitted).- 10

- “[R]estrictive covenant s are to be construed according to their plain language.” Hensley v. Gadd , 560 S.W.3d 516, 521 (Ky. 2018). “Parties are bound by the clear meaning of the language used, the same as any other contract.” Id . at 522 (citation omitted). Every part of the r estrictive covenant, like any other instrument, shall be given meaning and effect when possible. Id . (citing McFarland v. Hanley , 258 S.W.2d 3, 5 (Ky. 1953)).

Where there is ambiguity, restrictive covenants must be construed according to the intention of the parties which can be ascertained from the context of the instrument. Parrish v. Newbury , 279 S.W.2d 229, 233 (Ky. 1955). “Often the surrounding circumstan ces and the object which the covenant was designed to accomplish, which may be revealed in part by a general scheme or plan of development, are important considerations where the meaning is doubtful.” Id. However, where there is no ambiguity, courts cann ot refashion the restriction to create ambiguity where none exists. Hen sle y , 560 S.W.3d at 522 (citation omitted).
We must first consider the plain meaning of the relevant terms used in Article III, Section I. The restriction, in pertinent part, sta tes

[n]o . . . structure . . . shall be commenced, erected , or maintained upon the Properties, nor shall any exterior addition to o r change in alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials , and location of the same shall have been submitted to and approved in writing as to- 11

- harmony of external design and location in relation to surrounding structures and topography by the Developer. R. at 247 (emphasis added). The circuit court’s determination that “the plain meaning of ‘plans and specifications’ in the restrictive covenants required the Ciochettys disclose what they disclosed in the email” is insufficient.

Neither “plans” nor “specifications” are defined in Kentucky case law or Black’s Law Dictionary. The plain meaning of “plan” is “a drawing or diagram drawn on a plane: such as (a) a top or horizontal view of an object” or “(b) a large

scale map of a small area[.]” Plan , M ERRIAM

- W EBSTER D ICTIONARY , https:/ /www.merriam

- webster.com/dictionary/plan (last visited Feb. 1, 2022). Furthermore, “specification” is defined as “a detailed precise presentation of something or of a plan or proposal for something

– usually used in plural[.]” Specification , M ERRIAM

- W EBS TER D ICTIONARY , https://www.merriam

webster.com/dictionary/specification (last visited Feb. 1, 2022). Most importantly, specification requires explicit and detailed statements. Specifying , M ERRIAM

W EBSTER D ICTIONARY , https://www.merriam

- webster.com/dicti onary/specifying (last visited Feb. 1, 2022).

While the terms “plans” and “specifications” alone may appear vague
as to the specific information required of submission s to the ARC, the remaining text of Article III, Section I provides clarity . The section explains precisely what must be identified in writing by the party seeking approval from the ARC. Such a- 12

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party must provide a drawing or diagram and detailed precise presentation of the structure’s “ nature, kind, shape, height, materials, and loca tion. ” Taken together and giving the terms their plain meaning , there is no ambiguity as to the minimum requirements of Article III, Section I

.

Herein, the Ciochettys’ June 27, 2018 email fails to meet those minimum requirements

. Neither the one

- page drawing of the front exterior of the addition nor the text of the email included sufficiently detailed information. Most importantly, neither the email nor the attachment provided sufficient information as to the shape or height of the addition. The ema il also makes no mention of the retaining wall which was constructed as part of the addition. The Ciochettys themselves conceded that the June 27, 2018 email was lacking in specificity when they responded to Cummings’ September 6, 2018 email by sending hi m the blueprints “to satisfy the Article III provision” of the restrictive covenants. R. at
33 6. Because the Ciochettys’ June 27, 2018 email did not meet the minimum requirements for submissions made under Article III, Section I, the ARC
was not re quired to respond to their request. On this basis, the portion of Article III, Section I allowing a party to proceed with construction if no decision is made by the ARC within thirty days does not apply. The Ciochettys did not have

a uthorization to begin construction

. O n remand, the circuit court shall enter an- 13

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order granting summary judgment in favor of Fountain Trace and permanently enjoining the Ciochettys from building the addition as currently designed

. Nothing in this Opinion prohibits the Ciochettys from resubmitting modified plans and specifications to ARC for approval. Without approval, the addition must be removed in its entirety.

We note that best practice would be for the ARC to respond in a tim ely manner to any submission made by a resident regardless of the adequacy of the submission. Additionally, if the ARC does not respond to their submission, it would be prudent for the Ciochettys to follow up with ARC before making a substantial investmen t in a construction project without approval.

As our decision on the in adequacy of the Ciochettys’ email submission is determinative of the se appeals , we need not address the parties’ remaining arguments. CONCLUSION

Based on the foregoing, we reverse a nd remand the September 13, 2019 and November 5, 2020 order s of the Warren Circuit Court for entry of order s consistent with this O pinion.

ALL CONCUR.- 14

-

BRIEFS FOR APPELLANT S / CROSS

- APPELLEE S DAVID & ROBIN CIOCHETTY : Matthew J. Baker Bowling Green, Kentucky

BRIEFS FOR APPELLANT STEVE NELSON D/B/A PROVIDENCE HOMES: David F . Broderick R. Taylor Broderick Bowling Green, Kentucky
ORAL ARGUMENT FOR APPELLANT/CROSS

- APPELLEES DAVID & ROBIN CIOCHETTY: Matthew J. Baker Bowling Green, Kentucky
ORAL ARGUM ENT FOR APPELLAN T STEVE NELSON D/B/A/ PROVIDENCE HOMES: Brandon T. Murley Bowling Green, Kentucky BRIEFS FOR APPELLEE/ CROSS

- APPELLANT FOUNTAIN TRACE HOMEOWNERS’ ASSOCIATION, INC. : Tad T. Pardue Ian A. Loos Bowling Green, Kentucky
ORAL ARGUMENT FOR APPELLEE/CROSS

- APPELLANT FOUNTAIN TRACE HOMEOWNERS’ ASSOCIATION, INC

. : Ian A. Loos Bowling Green, Kentucky