Summary
finding that outlook standard did not provide objective guidance by which architectural review committee could establish a setback requirement
Summary of this case from Alapocas Maint. Corp. & Alapocas Maint. Corp. Bd. of Dirs. v. Wilmington Friends Sch.Opinion
C.A. No. 18487-NC.
Date Submitted: November 20, 2000.
Date Decided: November 29, 2000.
Richard L. Abbott, Esquire and Jill S. Abbott, Plaintiffs, pro se, Wilmington, Delaware.
Andrew J. Aerenson, Esquire, AERENSON AERENSON, Wilmington, Delaware, Attorney for Defendants FD Builders t/a DiSerafino Custom Homes and Frank DiSerafino.
Joseph Setting II, Defendant, pro se, Wilmington, Delaware.
Francis J. Trzuskowski, Esquire and William L. Doerler, Esquire, TRZUSKOWSKI, KIPP, KELLEHER PEARCE, P.A., Wilmington, Delaware, Attorneys for Intervenors-Defendants.
MEMORANDUM OPINION
Plaintiffs Richard L. Abbott and Jill S. Abbott seek to enjoin the construction of a dwelling by Defendant Frank DiSerafino within 146 feet of their common boundary line in a subdivision known as Centreville Estates. They challenge the approval of such construction at 126 feet from the common boundary line by Defendant Joseph Setting II, constituting the Architectural Review Committee established by the Declaration of Restrictions for Centreville Estates, as (i) arbitrary, capricious and otherwise not in compliance with the Declaration of Restrictions and (ii) violative of a purported settlement agreement entered into by Plaintiffs and Defendants Setting and DiSerafino. For the reasons set forth below, following an expedited trial on the merits, I deny Plaintiffs' application and enter judgment accordingly.
I. PROCEEDINGS
Plaintiffs, on November 8, 2000, filed a Verified Complaint seeking injunctive relief and moved for a temporary restraining order to preclude construction of the dwelling as proposed by Defendant DiSerafino. A hearing treating that application as one for a preliminary injunction was scheduled for November 20, 2000. Adjacent land owners within Centreville Estates, Marci Saggese, Daniel Truono and his wife, Teresa Truono, were permitted to intervene as defendants. They asserted cross-claims against Setting that in effect would require the construction to be as proposed by Defendant DiSerafino. The parties agreed to treat the hearing on November 20, 2000 as the trial on the merits, see Court of Chancery Rule 65(a)(2), and the matter was tried on that date.
The factual findings set forth below are based on my assessment of the credibility of the witnesses.
II. PARTIES
Plaintiffs own and reside on Lot 3 of Centreville Estates (the "Subdivision") in New Castle County, Delaware.
Defendant Frank DiSerafino ("DiSerafino") is a builder who does business as FD Builders t/a DiSerafino Custom Homes. He owns Lot 1 of the Subdivision and has commenced construction of a dwelling on that lot.
Defendant Joseph Setting, II ("Setting") is a partner in J D Development Co., which pursued the land use approval process for the Subdivision. Although he has since attempted to resign, he was the only member of the Subdivision's Architectural Review Committee during the events leading up to these proceedings.
Intervenors-Defendants Marci Saggese ("Saggese") and Dr. Daniel Truono and Teresa Truono ("the Truonos") reside in the Subdivision. Saggese owns Lot 2 and the Truonos own Lot 4. The dwellings of the Intervenors are adjacent to both Plaintiffs' parcel and DiSerafino's parcel.
III. BACKGROUND
The Subdivision consists of four lots. The Saggese lot contains a historic mansion. Dwellings owned by the Plaintiffs and the Truonos occupy two lots. DiSerafino owns and is constructing a dwelling on the fourth lot. All lots are subject to the Subdivision's Declaration of Restrictions (the "Declaration"). The Declaration, dated January 22, 1998, establishes an Architectural Review Committee (the "ARC"), whose function is to assure that:
The Saggese lot is approximately 3.3 acres; the other lots are each two acres or slightly larger. A plan (Plaintiffs' Exhibit 7) showing the general layout of the Subdivision appears in the Appendix to this Memorandum Opinion.
Plaintiffs' Exhibit 2.
"No building, fence, wall, or any other structures shall be erected, altered, or placed on any land covered by this Agreement until detailed and adequate plans and specifications of the proposed structure, addition or alteration have been submitted in writing and approved in writing as to conformity and harmony of external design with existing structures and as to location of the building with respect to typography [sic] and finished ground elevation by an architectural review committee. . . ."
Declaration, paragraph 2.
Initially, the ARC consisted of Setting and his partner in J D Development Co., Dennis Snavely ("Snavely"), who, in 1999, resigned as a member of the ARC, leaving Setting as its sole member.
Plaintiffs were the first to build on any of the three vacant building lots created by the subdivision process. They submitted detailed plans, including a lines and grades plan, to the ARC and secured the ARC's approval before
commencing construction. Plaintiffs chose to place their home to the rear of their lot because (a) the house would then be set back approximately as far from Kennett Pike as the Saggese historic mansion, and (b) they would be afforded more buffer from Kennett Pike and its potential future expansion. However, the decision also resulted in their home being roughly 126 feet from the boundary of the Truonos' lot.
The Truonos were the next to build in the Subdivision. To some extent, at least in the judgment of the ARC, they did not secure the necessary approvals before construction. However, their home was completed and there are no pending objections to it. Some large trees were cut down during construction of the Truonos' home due, at least in part, to siting requirements for a conventional septic system. The Truonos' home is approximately 87 feet from the boundary of their lot and Plaintiffs' lot.
Saggese is constructing a large garage, which has been approved by the ARC, behind her historic mansion.
Snavely and his wife were the first purchasers of Lot 1 following subdivision approval. He had considered building a dwelling near the middle (as measured along the north-south axis) of Lot I. However, those plans were never executed and, on July 31, 2000, he and his wife sold Lot I to DiSerafino. Before closing on Lot 1, DiSerafino insisted upon receiving ARC approval of the home he proposed to build there.
DiSerafino submitted detailed house plans to Setting for his review, as the ARC, a few weeks before the anticipated closing. In late July, Plaintiffs were aware that Lot 1 was under contract and met with Setting to review the proposed construction. They stated their support for the architectural plans but were concerned about the house's location. Plaintiffs expected that Setting would review the location with them prior to making a decision on whether to approve the plans. Shortly before July 31, DiSerafino submitted a sketch showing the general location of the proposed dwelling. Although it had some topographical information, the sketch did not show building elevations. DiSerafino did not want to incur the cost (approximately $1,200) of preparation of a detailed lines and grade plan without an expectation that it would be approved.
All dates are in the year 2000, unless otherwise noted.
Plaintiffs' Exhibit 4.
Setting, on July 31, without further discussion with Plaintiffs, approved DiSerafino's plans. Although DiSerafino had requested that the house be set back 120 feet from the boundary of Plaintiffs' lot, Setting, cognizant of Plaintiffs' concerns, required that it be set back 126 feet. He chose that distance because it was his understanding that Plaintiffs had erected their home approximately 126
Plaintiffs' Exhibit 6.
feet from the Truonos' boundary. He also conditioned formal approval on submittal by DiSerafino of a detailed lines and grades plan. Thereafter, DiSerafino submitted a detailed lines and grades plan, dated August 15, 2000, although it is unclear when the plan was delivered to Setting.
Setting also considered the proposed location to be good for the general presentation of the Subdivision.
Plaintiffs' Exhibit 5.
In mid-October, upon seeing stakes set for construction layout on Lot 1, Plaintiffs contacted Setting to express their concerns. Ms. Abbott and Setting met at the site to review the proposed layout and Ms. Abbott complained about the proximity of the proposed dwelling to her boundary line. Mr. Abbott also called Setting, voiced his opposition to the location, and represented that a lawsuit would follow if the location was not moved. In response, Setting scheduled a meeting.
Thus, on October 24, Plaintiffs, DiSerafino, Setting and Richard E. Franta, Esquire, who had been retained by Setting to represent the ARC, convened on the site. Plaintiffs renewed their litigation threats against Setting and DiSerafino. Mr. Franta, in an effort to mediate the disagreement, met separately with both DiSerafino and Mr. Abbott. By this time, Setting and Mr. Franta had focused their efforts on trying to reach a resolution that would satisfy' Plaintiffs and DiSerafino, and, perhaps to a lesser extent, the Truonos and Saggese. Although, initially the
Plaintiffs wanted the DiSerafino home set back a greater distance, they eventually offered to forego litigation if the house were set back at least 146 feet.
Setting and Mr. Franta were concerned not only with the opinions of the Plaintiffs' and DiSerafino, but also with the opinions of Saggese and the Truonos as to the location of the DiSerafino home. Setting thought that Saggese and the Truonos might go along with the 146-foot setback and, accordingly, indicated to Plaintiffs that he would approve construction with a minimum setback of 146 feet. After the meeting on site, he called Saggese's husband, Dr. Ronald Saggese, and inquired of him if they would agree to the 146-foot setback. Apparently, Dr. Saggese advised Setting, at least initially, that he thought he could agree to the 146-foot setback. Setting also believed that Mrs. Truono would agree to that setback because he had heard that she would have been happier if the DiSerafino house were further away from her lot as well. It is clear that Setting based his approval of the 146-foot setback upon the agreement of Saggese and the Truonos. In his communications with the Plaintiffs, however, he did not convey the conditional nature of his position. DiSerafino, by contrast, was clear: he would consider acquiescing in the 146-foot setback, which he did not want, only if the Truonos and Saggese were in agreement with it. At the October 24 meeting, DiSerafino made no agreement with Plaintiffs or anyone else. He told Plaintiffs that he wanted to think about it and that he probably would agree to 146 feet, but only if he was assured that the other neighbors, the Saggeses and the Truonos, would not challenge the placement.
Plaintiffs point out, and DiSerafino concurs, that DiSerafino told a newspaper reporter that there was an agreement to move the house to the 146-foot setback; I specifically find that, to the extent the comment to the reporter is germane, it was premised upon DiSerafino's understanding and his express condition that the Saggeses and the Truonos were in agreement with that location. DiSerafino also had preliminary discussions with the project engineer about revising the lines and grades plan to show a setback of 146 feet.
Believing incorrectly that he had the support of the Saggeses and the Truonos, Setting sent a note to DiSerafino on October 25, which read:
"As per our meeting at the site on 10/24/00, your Lines Grades plan is approved, based on moving the house back 20 feet from where it is currently staked."
Plaintiffs' Exhibit 8.
Based on that communication to DiSerafino and the assumption that Setting would not have sent it if DiSerafino had not agreed to it, Plaintiffs reasonably believed that the setback issue had been resolved at 146 feet. Setting may also have communicated his approval directly to one of the Plaintiffs.
If Setting thought that the question of where the DiSerafino house was to be built was resolved, he could hardly have been more mistaken. First, the neighbors, the Truonos and the Saggeses, were not content with the 146-foot setback. On October 30, their attorney, Francis J. Trzuskowski, Esquire, wrote to Setting and objected to the new location. Indeed, he threatened litigation if the house were constructed at 146 feet. Thus, Setting's goal of agreement within the Subdivision was not achieved. His efforts and those of Mr. Franta, in particular, to mediate the dispute had failed. Second, a community group also complained about the new placement.
A copy of Mr. Trzuskowski's letter appears as Exhibit B to the Motion to Intervene.
Both Mr. Trzuskowski and the community group focused on a Norway maple tree that would be lost if the house were relocated to the 146-foot setback. The tree is more than a century old and is the second largest known (as cataloged by the Delaware Department of Agriculture) Norway maple in Delaware. Because of the reaction to the possible destruction of the tree, Setting, on November 2, directed DiSerafino not to remove the tree until he could review the matter further with his attorney.
Plaintiffs' Exhibit 9.
Setting, recognizing that he could not achieve a consensus within the subdivision, authorized the ARC's attorney, Mr. Franta, to advise DiSerafino that he had approval to build at 126 feet. That approval was provided verbally to DiSerafino on November 2 and written confirmation was transmitted on November 6.
Plaintiffs' Exhibit II.
Relying upon the verbal authorization from Mr. Franta, DiSerafino commenced construction on November 3 and has poured the footers. When Plaintiffs saw construction activity at a setback of 126 feet, they promptly
Although the references to the setback are to 126 feet, the actual setback chosen by DiSerafino in the field is slightly more than 127 feet, as measured from the left front corner of the DiSerafino home to Plaintiffs' boundary line.
contacted both Setting and DiSerafino, demanding that the work be moved to the 146-foot line and threatening suit if their demands were not met. On November 8, this action was filed.
Plaintiffs' Exhibits 10, 13.
IV. ISSUES
Plaintiffs seek (i) reversal of the ARC's decision of November 2, as memorialized by the written approval of November 6, to authorize construction at the 126-foot setback or, alternatively, (ii) specific performance of the "agreement" of October 24 that would have required a setback of at least 146 feet from Plaintiffs' boundary line.
By paragraph 11 of the Declaration: "All of the provisions of this Agreement shall be enforceable at law or equity by any owner of a lot within this minor subdivision whose property is subject to these restrictions."
Plaintiffs articulate the relief sought as either rescission of the authorization to build at 126 feet or specific performance of Setting's obligation to comply with the terms of the Declaration.
A. The ARC's Approval.
"Under Delaware law, it is legally permissible for a restrictive covenant to condition the right of a lot owner to make improvements on his or her lot in a planned subdivision or development, upon the prior approval of the developer, an association of lot owners, or a designated committee or representative of either. The delegation of so-called "architectural review' powers to a committee is a practice commonplace in Delaware and throughout the country. However, architectural review is suspect due to its tendency to be arbitrary, capricious, and therefore unreasonable. Consequently, Delaware law mandates that the architectural review function must be done reasonably and that any doubts as
to its reasonableness must be resolved in favor of the landowners."
Seabreak Homeowners Ass'n. Inc. v. Gresser, Del. Ch., 517 A.2d 263, 268 (1986), aff'd Del. Supr., 518 A.2d 1113 (1988). See also, Village of Manley Civic Ass'n v. Becker, Del. Ch., C.A. No. 16076-NC, Lamb, V.C. (December 17, 1997).
Also, "to the extent that architectural review is" based on purely aesthetic considerations,' that review is considered arbitrary and capricious and therefore not reasonable."
Point Farm Homeowners Ass'n. Inc. v. Evans, Del. Ch., C.A. No. 1505-S, Hartnett, V. C. (June 28, 1993), quoting Chambers v. Centreville Tract No. 2 Maintenance Corp., Del. Ch., C.A. No. 7144-NC, Hartnett, "V.C. (May 30, 1984)
Thus, in determining whether the Declaration can be applied to prohibit construction at less than 146 feet from Plaintiffs' boundary, the Declaration must be construed strictly in favor of DiSerafino. Furthermore, in order to have the current approval set aside, Plaintiffs must demonstrate, first, that the ARC under the Declaration could have properly required a setback of 146 feet even though the landowner wanted a setback of 126 feet and, second, that the ARC violated its obligations to the Plaintiffs under the Declaration by not requiring a minimum setback of 146 feet.
The parties have not argued, and the Court does not reach, any question as to whether the Declaration would be enforceable under the uncertain standard of "unreasonable or undesirable for aesthetic or other reasons. Declaration, paragraph 3.
It is possible to envision a scenario where the ARC could have properly approved both a 126-foot setback and a 146-foot setback.
The Declaration provides no objective guidance on the appropriate setback even though setbacks could easily have been specified. Instead, the ARC was charged with reviewing DiSerafino's plans and specifications under the following guidance:
No party has suggested that the proposed setback at 126 feet violates any land use requirements of New Castle County. Objective standards are set forth in the Declaration for other parameters, such as, for example, the barring from exterior walls of certain building materials (vinyl and aluminum siding).
See Point Farm Homeowners Ass'n v. Evans, supra
"The architectural review committee shall have the right to disapprove any such plans for [sic] specifications if it deems them to be unreasonable or undesirable for aesthetic or other reasons. In reviewing said plans the architectural review committee shall take into consideration the suitability of the proposed structure, addition, or alteration — its nature, kind, shape, floor plan, materials and construction, and location as regards to the site which said addition or alteration is to be made and the architectural suitability thereof with the neighboring surroundings and the effect of said building, addition or alteration upon the outlook from adjacent and/or neighboring properties."
Declaration, paragraph 3.
The Declaration, thus, leaves the ARC with nothing but subjective values for measuring the appropriateness of a location and, furthermore, offers very little advance notice to a landowner as to what the limits on his use of his property may be.
Plaintiffs assert that the approved placement would result in the houses in the subdivision being too close and would cause, both because of proximity and
elevation, an adverse impact on the "view" from their home. They further contend that the proposed placement would be inconsistent with the proper overall development of the subdivision. At the 146-foot setback, the house would be directly behind the Saggeses' garage and, thus, either less visible or not visible from both Kennett Pike and the Saggeses' residence. In sum, they argue that the proposed placement is inconsistent with the requirements of the Declaration.
Plaintiffs maintain that the ARC "failed to consider the impact [of the proposed DiSerafino home] on neighboring properties, the view from neighboring properties and the overall layout of development in the Centreville Estates subdivision". Verified Compl., paragraph 14.
As approved by the ARC, the DiSerafino house would be approximately 210 feet from the Plaintiffs' house; Plaintiffs demand that the DiSerafino house be placed approximately 230 feet from their home. Thus, the dispute is over an approximately 20-foot differential. In the abstract, it is difficult to consider houses 70 yards away from each other as "too close". The DiSerafino house is approximately the same distance from Plaintiffs' boundary line as Plaintiffs' home is from their boundary with the Truonos. Plaintiffs, as the first to build on any of the three vacant lots created by the subdivision, consciously chose to place their home to the back (away from Kennett Pike) of their lot. By that decision, they necessarily selected a location for their home that would be relatively closer to the two other to-be-constructed dwellings in the subdivision.
In short, particularly in light of the narrow construction that must be given to the Declaration as it may restrict DiSerafino's rights and the general, subjective nature of Plaintiffs' complaints about a 20-foot differential, I find that it was not arbitrary, capricious, or unreasonable for the ARC to approve construction at the 126-foot setback.
Much of Plaintiffs' frustration with the ARC's approvals of the DiSerafino house, at the 126-foot setback, grew out of the processes allegedly employed by Setting: the July approval was because of pressure of Snavely, who is Setting's business partner; Setting's agreement to review lines and grades with Plaintiffs but approving plans without affording that opportunity; approving location without first receiving a detailed lines and grades plan; and reneging on the October 24 "agreement" only because of complaints from other lot owners in the subdivision and from a community group about destruction of a Norway maple, a factor Plaintiffs do not believe should determine an ARC decision.
Setting's actions here were not in bad faith, and he acted reasonably in the circumstances. He found himself in a series of difficult positions. Snavely, the seller of Lot 1 was his business partner. One of the Plaintiffs, Mr. Abbott, had known him for almost two decades, had represented him during the land use approval process for the subdivision, and, indeed, had drafted the Declaration. It may well be that Setting's mistake was trying to make all of the lot owners happy. It, of course, is somewhat unusual to have a subdivision with an architectural review committee and only four lots, one of which contained a dwelling at the time of the subdivision process. The effort to accommodate everyone, while understandable, turned out to be unrealistic under the circumstances. In any event, when the approval of the current location was given (whether verbally on November 2 or in writing on November 6), I find that Setting had before him detailed plans and specifications including a detailed lines and grades plan, was personally familiar with the subdivision and its layout, had no personal interest in the ultimate location (other than a desire to avoid becoming a defendant in a lawsuit), understood the concerns of the various landowners in the subdivision, and, in the totality of the circumstances, acted reasonably in approving (or, abandoning any decision or objection against) the 126-foot setback, the setback accepted by the owners of three of the four lots in the subdivision.
Following completion of the dwelling on Lot 1, the ARC will consist of Plaintiffs, the Truonos, Saggese, and DiSerafino. See Declaration, paragraph 2.
Plaintiffs complain about the role of the Norway maple in the ARC's abandonment of the 146-foot setback and reversion to the 126-foot setback. As Plaintiffs point out, the Declaration is silent as to the cutting of trees. The ARC, as a general matter, is free to revisit a prior determination adverse to a landowner's application; the issue is not whether the survival of the tree constitutes good cause for revisiting the ARC's approval of 146-foot setback; what is important is whether the subsequent action was an appropriate one for the ARC to have taken. In the absence of an enforceable agreement to the contrary or of extraordinary circumstances, which are not present here, Plaintiffs have no vested rights arising from the October 24 approval of a 146-foot setback.
Accordingly, I find that Plaintiffs have failed to meet their burden of demonstrating that the decision of the ARC to authorize construction at the 126-foot setback was arbitrary, capricious, or otherwise not in accordance with the Declaration.
B. The "Agreement".
Plaintiffs also maintain that an enforceable agreement was reached on October 24 that requires a setback of at least 146 feet. As early as July, Plaintiffs made it clear that they were concerned about the location of the DiSerafino house. In mid-October, as soon as the lot was staked, Plaintiffs threatened litigation if the location was not changed. At the site meeting on October 24, Plaintiffs again threatened Setting and DiSerafino with litigation if Plaintiffs' demands were not satisfied.
Setting agreed with Plaintiffs on October 24 that his approval of the DiSerafino house's location would be changed to 146 feet. He agreed because he wanted to avoid litigation. His agreement is evidenced by the memorandum he sent to DiSerafino on October 25. Plaintiffs invoke the well-established principle that "[c]ompromises and settlements are a judicially favored manner for terminating litigation." As a general matter, relinquishment of a claim will be considered valid consideration to support a bargain if the claim is "honest, genuine,
Plaintiffs do not contend that they relied upon this agreement to their detriment.
Read v. Baker, D. Del., 438 F. Supp. 732, 735 (1977), quoting Green v. John H. Lewis Co., C.A. 3, 436 F.2d 389, 390 (1970): "An agreement to settle a lawsuit, voluntarily entered into, is binding upon the parties, whether or not made in the presence of the Court, and even in the absence of a writing."
advanced in good faith, and founded on some reasonable, tenable or plausible ground."
Hensel v. U.S. Electronics Corp., Del. Supr., 262 A.2d 648, 650 (1970).
Plaintiffs' settlement agreement argument has two prongs. The first prong — that the landowner, DiSerafino, agreed to be bound by the 146-foot setback — fails for the simple reason that there never was any effective agreement made by DiSerafino. Any agreement from DiSerafino was expressly conditioned upon the acquiescence of Saggese and the Truonos. When that did not occur, DiSerafino was not bound.
Intervenors-Defendants point out that an agreement to limit the use of one's lands, such as where a landowner may construct his dwelling, is an agreement that affects an interest in land and hence implicates the Statute of Frauds. See Judge v. Rago, Del. Supr., 570 A.2d 253 (1990); Huntington Homeowners Ass'n. Inc. v. 706 Investments, Del. Ch., C.A. No. 16633-NC, Lamb, V.C. (May 28, 1999);Burns v. Baumgardner, Pa. Super., 449 A.2d 590, 594 (1982). Because I find that DiSerafino did not agree unconditionally to the 146-foot setback, I need not consider whether the Statute of Frauds would vitiate any oral agreement.
The second prong — that the ARC agreed not to approve any location closer than 146 feet — is more troubling. By the time Setting agreed to move the setback to 146 feet, he and Mr. Franta were mediators more than partisans. In essence, the principle that settlement agreements should be readily enforced works on the assumption that the parties who purport to enter into the settlement are the real parties in interest and that each has a substantive interest in the outcome of the dispute. The ARC (here, simply Setting) really did not care whether the house was constructed at 126 feet or 146 feet. It wanted to avoid litigation. Because of the circumstances surrounding Setting's "agreement", I am reluctant to elevate his
commitment to a setback of 146 feet to absolute contract status. However, even assuming the existence of an agreement between Setting and the Plaintiffs, I find that any such "agreement" cannot, on these facts, operate to require the 146-foot setback.
DiSerafino, as the landowner whose property is subject to the Declaration, has certain rights under the Declaration; in addition to those rights, he also has rights inherent in his status as the landowner, to the extent that they are not limited by the Declaration, land use laws and regulations, or other limitations on his title. One of the rights under the Declaration is that DiSerafino is the beneficiary of the ARC's duty to act reasonably. One element of the ARC's duty to act reasonably is its obligation to review and approve those plans and specifications which are not inconsistent with the Declaration. The ARC owes that duty, as a matter of contract, to DiSerafino. Without DiSerafino's agreement, Plaintiffs' cannot specifically enforce an agreement with the ARC which purports to bargain away a duty that the ARC owes to DiSerafino. The ARC, therefore, continues, regardless of what Setting might have said to the Plaintiffs, to be obligated to review fairly the plans and specifications proposed by DiSerafino. Accordingly, the "agreement" of October 24 between Plaintiffs and Setting, by itself, cannot preclude the ARC from approving appropriate plans and specifications and cannot preclude DiSerafino from building on his lot in accordance with those plans and specifications. In short, Plaintiffs, through an agreement only with the ARC, cannot achieve greater control over DiSerafino's lands than that which the Declaration otherwise would have afforded them.
V. CONCLUSION
Because the ARC's approval of construction at the 126-foot setback was not arbitrary or capricious or otherwise unreasonable, because the "agreement" of October 24, 2000 did not bind DiSerafino, and because the Plaintiffs and the ARC, at least without DiSerafino, could not enter into an enforceable agreement that would restrict DiSerafino's rights beyond the limits lawfully authorized by the Declaration, Plaintiffs have failed to prevail on any of their causes of action. Accordingly, judgment will be entered in favor of Defendants and Intervenors-Defendants and against Plaintiffs. Furthermore, given this disposition, the crossclaims of the Intervenors-Defendants are moot and will be dismissed without prejudice.
An order will be entered in accordance with this Memorandum Opinion.
[THE PETITIONER'S EXHIBIT IS ELECTRONICALLY NON-TRANSFERRABLE.]