David D. Smalley
Stowe Mountain Club, LLC
This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.
Appeal from: Superior Court, Lam. Civ. Division. DOCKET NO. 132-6-08 Lecv. Trial Judge: Helen M. Toor.
Reiber, C.J., Dooley, and Robinson, JJ.
In the above-entitled cause, the Clerk will enter:
Plaintiff David D. Smalley appeals pro se from a superior court judgment in favor of defendant Stowe Mountain Club, LLC (SMC). Plaintiff contends the trial court committed multiple errors in rejecting his claim that portions of a golf course operated by SMC violate restrictive covenants in Smalley's deed. We affirm.
This is the second appeal to reach the Court in this matter. As set forth in the first appeal, Smalley v. Stowe Mountain Club, LLC (Smalley I), 2011 VT 51, 190 Vt. 53, 25 A.3d 539, the factual background is as follows:
Smalley's property consists of a single-family residence on a 1.97 acre parcel located on Spruce Peak Road in the Town of Stowe. The property was acquired by Smalley's predecessor-in-interest, Nancy Cooke, in a 1959 deed from the Mount Mansfield Company (MMC), which operates the Stowe Mountain Resort. The deed contained sixteen separate " restrictions and conditions" to be " treated as covenants running with the land," nearly all of which were concerned with maintaining the property's residential quality. The first condition provided that no building on the property " shall be used for purposes other than a private dwelling." Others required that the cost of the residence and garage to be constructed on the property " shall be not less" than a certain dollar amount; that the " design and materials" for the exterior of all buildings to be constructed must be " approved in writing by an architect" designated by MMC; that " the premises and buildings constructed thereon shall at no time be used or occupied for the purpose of any trade, manufacture or business or as a school, hospital, charitable institution, hotel, inn, motel, cabin, boarding house, lodging house or place of public resort" ; that no " billboards, advertising signboards or signs of any kind" were to be erected on the property; that no animals were to be kept on the property except for dogs, cats, or stabled horses; and that no timber or trees were to be cut except as necessary to the residential development of the property.
Following the list of restrictions and conditions, the deed additionally stated:
It is understood between the Grantor and the Grantee herein that the conditions, restrictions and covenants in this deed are for the purposes of this deed only and may vary from those in deeds of other property heretofore, now or hereafter owned by the Grantor, except that land within 200 ft. of the boundaries of the lot here conveyed to Grantee shall be sold and conveyed by the Grantor subject to the same conditions, restrictions and covenants as are contained in this deed.
Over the next several years, MMC subdivided and sold a number of additional residential lots on Spruce Peak Road in the vicinity of the Smalley property, all subject to the conditions and restrictions set forth in the 1959 deed. Most of the lots, like the Smalley parcel, adjoined land owned and used by MMC for resort purposes such as ski trails and access to the resort and resort parking. In 1977, Cooke and MMC entered into a second warranty deed " to correct any errors or deficiencies" relating to a boundary in the original deed. The corrected deed provided that it was " subject to certain covenants and restrictions of a residential nature as more specifically set forth" in the original 1959 deed. In January 1994, Cooke conveyed the property to Smalley. Like the corrected deed, the Smalley deed made the conveyance " subject to certain covenants and restrictions of a residential nature as more specifically set forth" in the original 1959 deed and, with one exception not relevant here, further provided that " [t]he balance of the covenants and restrictions" in the 1959 deed " shall remain valid and in effect."
In 2005 and 2006, SMC constructed a golf course in the area of Spruce Peak. Portions of two holes are located within 200 feet of the Smalley lot. The construction was preceded and facilitated by two transfers, one in 2003 in which MMC conveyed the golf course property to Spruce Peak Realty, LLC (SPR), a transfer which it characterized in its tax return as a tax-exempt capital contribution, and a second in 2004 when SPR in turn conveyed the property to its own limited liability company, SMC, similarly characterized at the time as a capital contribution.
The golf course opened for play in the summer of 2007. One year later, in June 2008, Smalley filed this action against SMC, alleging that the 2003 and 2004 transfers of property within 200 feet of his lot triggered the covenant prohibiting use of the property conveyed " for the purpose of any ... business or ... place of public resort." Accordingly, Smalley claimed that use of the property as a golf course violated his deeded property rights, and entitled him to a permanent injunction. SMC ...