No reason for a photo on this post because nothing happened except for correspondence between November 2018 and March 2019. We did manage to secure our well/septic permits as well as our building permit. This means that we have 6 months before we are required to have an inspection in order to extend the permit.
The by-laws state that the board had 30 days to respond to our plan submission. After sending our plans and letter to the Architectural Committee and Board Members on February 11th, we heard nothing. Crickets. In fact, you will see below that we heard nothing until mid-May. In the meantime, we felt that it might be good to have a law professional remind them of the 30-day rule and here is what was sent on March 26th, 2019 to the board President and members of the Architectural Committee:
I represent Mr. Tim Claflin and Mrs. Shelly Claflin. As you may be aware, pursuant to
Article VI, Section 1 of the Cherry Home Shores Declaration and covenants, Mr. and Mrs. Claflin were required to submit their plans to remodel and improve the above the building on the referenced property to the Architectural Control Committee (the “Committee”) for its’ review. They did so. It has been over thirty (30) days since their plans were submitted to the Committee and said Committee has failed to provide any formal approval or disapproval of their plans.
According to Article VI, if no decision is made within this time frame, then no approval is required for their plans and that Mr. and Mrs. Claflin are considered to be in full compliance with this Article. Therefore, Mr. and Mrs. Claflin will be moving forward with executing their plans.
Mr. and Mrs. Claflin would like to emphasize that they have and will continue to be open and transparent with the Board of XXX Association regarding the steps they take to remodel and improve the building on their property. They sincerely hope there will be no future harassment or unnecessary obstacles from overzealous Board Member(s) so that they may bring the existing building up to full compliance with the Cherry Home Shores Declaration.
What transpired was a cease and desist that was drafted on May 6, 2019 from the association’s law firm as follows:
This office represents (the “Association”), which is responsible for, inter alia, the enforcement of covenants and restrictions recorded against the real property located in XXXXX. Our client received your March 26, 2019 correspondence regarding Tim and Shelly Claflin, and thus subject to the Declaration recorded in Liber 138, Pages 1 through 12, inclusive, Leelanau County Register of Deeds (the “Original Declaration”), and the Amendment to Declaration recorded in Liber 549, Pages 286 through 372, inclusive, Leelanau County Register of Deeds (the “Amended Declaration”).
Your March 26, 2019 correspondence states that your clients submitted plans for the Association’s approval to remodel and improve the building on Lot #81, and because the Association did not provide any formal approval or disapproval of these plans within 30 days, your clients’ plans are deemed to be in compliance with Article VI, Section 1 of the Original Declaration. The Association rejects this claim as your clients’ submission did not comply with the requirements of Article VI, Section 1 of the Original Declaration and Article VI, Section 2 of the Amended Declaration. Furthermore, your clients’ intent to change the use of their building from an outbuilding to a dwelling requires that they bring the building into compliance with the requirements of Article VII, Section 1 of the Amended Declaration before they can occupy it as such.
I. Your clients’ submission did not comply with Article VI, Section 1 of the Original Declaration and Article VI, Section 2 of the Amended Declaration.
Article VI, Section 1 of the Original Declaration states, in pertinent part, the following:
No building, fence, wall or other structure shall be commenced, erected or maintained upon The Properties, nor shall any exterior addition to or change or 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 Board of Directors of the Association, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said board or its designated committee fail to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the addition, alteration or change has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully complied with. (emphasis added).
“Negative covenants … are grounded in contract.” Stuart v Chawney, 454 Mich 200, 210; 560 NW2d 336 (1997). A “… contract is to be enforced according to its plain language.” Rory v Contl Ins Co, 473 Mich 457, 489; 703 NW2d 23 (2005). “‘Reviewing courts must interpret the terms of the contract in accordance with their commonly used meanings.’ … ‘When determining the common, ordinary meaning of a word or phrase, consulting a dictionary is appropriate.’” Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 515; 773 NW2d 758 (2009).
The plain language of Article VI, Section 1 of the Original Declaration mandates that any changes or alterations made within a building or structure must be approved by the Board of Directors or architectural committee upon the submission of plans and specifications showing the nature, kind, shape, height, materials, and location of the changes or alterations. The sketch your clients submitted to the Association (see enclosure) is not a plan and does not show any specifications, such as the height of the changes and alterations and the materials to be used. Accordingly, your clients did not comply with the requirements of Article VI, Section 1 of the Original Declaration as they failed to submit plans and specifications that included the nature, kind, shape, height, materials, and location of all the changes and alterations to be made. By failing to comply with these submission requirements, your clients cannot rely on the Association’s alleged failure to disapprove the improper plans and specifications within 30 days as the Association’s deemed approval of the same.
Moreover, your clients did not comply with the requirements of Article VI, Section 2 of the Amended Declaration, which states the following:
Prior to any work being done, the property owner or his representative shall supply to the Architectural Committee or the Board of Directors of the Association, the following information:
1. Name of owner, address and telephone number.
2. Lot number(s) and subdivision number.
3. A site plan drawn to a scale sufficient to show the lot on which the proposed improvement is to take place. The plan shall show location of all abutting streets, location of existing buildings, and the proposed location of structures to be built or altered. It must also show the location and type of fuel tanks to be used.
4. A detailed drawing of the proposed structure(s) indicating materials to be used in construction and type of construction.
5. The site plan shall show the location of the water well and sewage system approved by the Health Department. The Architectural Committee or Board of Directors will review plans and request additional information, if required. The following standards shall apply:
A. Minimum 4/12 roof pitch.
B. Homes must have permanent foundations. Exposed foundation no more than 36” above final grade.
C. L.P. gas tank shall be placed a minimum of 20 feet from the road.
D. Owner responsible for repair of all construction damage to roads and shoulders.
E. After determining setbacks, natural topography should be retained as much as possible. Maximum number of trees to be retained.
It is further agreed, that at the discretion of the individual owner, the lawful use of any building or structure, and of any lot existing and lawful on the date of recording of the original Declaration or Supplementary Declaration of Covenants and Restrictions, or on the date of a subsequent lawful amendment thereto, may be continued even though such use may not be in conformity with the provisions of Article VII, Sections 1 and 3, as amended herein. (emphasis added).
Again, your clients’ submitted sketch is not a site plan that shows the entirety of the lot, including the abutting streets, existing buildings, and the location of the structures to be built or altered, or a detailed drawing indicating the materials to be used in the construction and type of construction. Accordingly, your clients also did not comply with the requirements of Article VI, Section 2 of the Amended Declaration, and by failing to comply with these submission requirements, your clients cannot rely on the Association’s alleged failure to disapprove the incomplete plans and specifications within 30 days as the Association’s deemed approval of the same.
To the extent your clients continue to disagree and assert that their sketch complies with the requirements of Article VI, Section 1 of the Original Declaration and Article VI, Section 2 of the Amended Declaration, Article VI, Section 1 of the Original Declaration still permits the Association, even in the event it fails to disapprove submitted plans and specifications within 30 days, to seek an injunction to prevent any alteration or changes not already completed. Accordingly, should your clients continue to make alterations and changes not approved in writing by the Board of Directors or the Architectural Committee, the Association reserves its right under Article VI, Section 1 of the Original Declaration to seek an injunction against your clients to prevent any further unapproved alterations or changes that have not already been completed.
II. Your clients’ intent to change the use of their building from an outbuilding to a dwelling requires that they bring their structure into compliance with the requirements of Article VII, Section 1 of the Amended Declaration.
It is the Association’s understanding that the building your clients are seeking to remodel and improve originally served as a writer’s studio and was not intended for occupancy. Accordingly, your clients’ attempts to now use this building as a dwelling without meeting the requirements of Article VII, Section 1 of the Amended Declaration is a violation of the same, and your clients must cease and desist from using the building as a dwelling until such building complies with the Amended Declaration.
Article VII, Section 1 of the Original Declaration, recorded in 1965, states the following:
All land which is subject to this Declaration shall be limited to residential use. No building shall be erected, altered, placed or permitted to remain on any property other than a one family dwelling and private garage or outbuildings incidental thereto. All dwellings must have a minimum enclosed living area of 480 square feet exclusive of open porches or attached garages. All structures shall be completed on the exterior within six months from start of construction. Two coats of paint or varnish shall be required on any exterior wood surface. All structures intended for occupancy must be equipped with inside plumbing facilities. (emphasis added).
Black’s Law Dictionary (10th ed. 2014) defines “outbuilding” as “[a] detached building (such as a shed or garage) within the grounds of a main building.” Merriam-Webster’s Dictionary defines “outbuilding” as “a building (such as a stable or a woodshed) separate from but accessory to a main house”. “Dwelling”, on the other hand, is defined as the following:
1. The house or other structure in which one or more people live; a residence or abode. 2. Real estate. The house and all buildings attached to or connected with the house. 3. Criminal law. A building, a part of a building, a tent, a mobile home, or another enclosed space that is used or intended for use as a human habitation. · The term has referred to connected buildings in the same curtilage but now typically includes only the structures connected either directly with the house or by an enclosed passageway….
See Black’s Law Dictionary (10th ed. 2014).1 See also Merriam-Webster’s Dictionary (defining “dwelling” as “a shelter (such as a house) in which people live)”. Consequently, based on the definitions of “dwelling” and “outbuilding” and the fact that the building was not equipped with inside plumbing facilities, it is clear that the writer’s studio’s lawful use, when built, was as an outbuilding and was not intended for occupancy.
Article VII, Section 1 of the Original Declaration was amended in 2000, after the writer’s studio had already been built, and now states as follows:
All land which is subject to this Declaration shall be limited to residential use. No building shall be erected, altered, placed or permitted to remain on any property other than a one family dwelling and private garage or outbuilding incidental thereto. All dwellings must have a minimum enclosed living area of 850 square feet with a minimum building size of not less than 24 feet in width for a single story home or 1150 square feet for a two story home, exclusive of open porches or attached garages. All structures shall be completed on the exterior within six months from start of construction. All structures intended for occupancy must be equipped with inside plumbing facilities. Mobile homes are not permitted structures on any lot, and the prohibition shall not be changed, modified, or added to by property owners as provided in Article VII, Section 5 of the Declaration. (emphasis added).
The last paragraph of Article VI, Section 2 of the Amended Declaration, excerpted in Section I, does not excuse your clients’ intention to use the writer’s studio as a dwelling without complying with Article VII, Section 1 of the Amended Declaration. Article VI, Section 2 of the Amended Declaration states that “the lawful use of any building or structure … as existing and lawful on the date of recording of the original Declaration or Supplementary Declaration… may be continued even though such use may not be in conformity with the provisions of Article VII, Sections 1 and 3, as amended herein.” (emphasis added). At the time the Amended Declaration was recorded, the writer’s studio’s lawful use was only as an outbuilding, not a dwelling. Accordingly, under the plain language of the Amended Declaration, your clients do not have to comply with the requirements of Article VII, Section 1 of the Amended Declaration only to the extent they intend to continue using the writer’s studio as an outbuilding.
Based on your clients’ own admissions and sketch of planned changes and alterations, it is clear that your clients intend to change the use of the writer’s studio from an outbuilding to a dwelling as their plans include the addition of a bed, sink, stove, fridge, sink, toilet, and shower. Because the writer’s studio could not lawfully be used as a dwelling on the date the Amended Declaration was recorded, your clients’ anticipated occupation of the writer’s studio as a dwelling 1 Under the term “dwelling-house” without first complying with the requirements of Article VII, Section 1 of the Amended Declaration is a clear violation of the Amended Declaration.
ENFORCEMENT AND DEMAND
Article VIII, Section 3 of the Original Declaration states the following:
Enforcement of these covenants and restrictions shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or to recover damages, and against the land to enforce any lien created by these covenants; and failure by the Association or any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Your clients’ remodeling and improvement of the writer’s studio on Lot #81 without submitting the plans and specifications as outlined in Article VI, Section 1 of the Original Declaration and Article VI, Section 2 of the Amended Declaration is a violation of those restrictions. The Association, therefore, demands that your clients cease and desist from further remodeling and improvement of the writer’s studio on Lot #81 and submit proper plans and specifications to either the Board of Directors or the Architectural Committee for their review. Please have your clients submit plans and specifications conforming to the requirements of Article VI, Section 1 of the Original Declaration and Article VI, Section 2 of the Amended Declaration to the Board of Directors or Architectural Committee within 7 days and confirm in writing within 7 days that your clients will cease and desist their remodeling and improvement of the writer’s studio until their properly submitted plans and specifications are approved in writing.
Furthermore, your clients’ occupation of the writer’s studio as a dwelling is a violation of Article VII, Section 1 as the writer’s studio’s only lawful use has been as an outbuilding. The Association, therefore, demands that your clients cease and desist from occupying the writer’s studio as it does not comply with the requirements of a dwelling, either under the Original Declaration or the Amended Declaration. Please confirm in writing within 7 days that your clients will cease and desist from occupying the writer’s studio until it meets the requirements for a dwelling as outlined in Article VII, Section 1 of the Amended Declaration.
In the event these violations continue and/or written confirmation is not obtained within the time period specified above, the Association reserves the right to exercise any and all available legal remedies to compel your clients’ compliance.
In the meantime, our well drillers began to dig but not without threats from a board member who came onto our property demanding that they stop working. Although we were not present when this occurred, we did receive a phone call from the irate owner.
With all of this, the resignations came from the entire Architectural Committee. In addition, Memorial Day Weekend brought about a few board vacancies as terms were up for a few of the members to include the board President. For me, I knew that it couldn’t get any worse from when the bullies held office. So, Tim decided to throw his hat in the ring and ran for a seat on the board. The following are the key points of the letter that our attorney sent out just before the election on May 21, 2019:
- We cannot cease and desist from living in the dwelling when we haven’t occupied the structure.
- Lawful use of any building or structure…as existing and lawful on the date of recording the original Declaration or Supplementary Declaration may be continued even though such use may not be in conformity with the provisions in Article VII Sections 1 & 3. Nevertheless we submitted our plans for the structure as a small family residence and the board did not respond within the 30 days they had to do so.
- The by-laws state that if the board does not respond within 30 days to architectural plans, then we may proceed without consequence.
- Finally, we will not tolerate any harassment or threatening behavior towards us or our business invitees pending any improvements and/or construction to the property. If this happens, we will take legal action.
Did Tim get a seat on the board? Not this time, but will he try again?…Hell yes!
Little Leelanau 