Opinion
No. 1D21-2362
07-20-2022
Richard BARNETT and Martha Barnett, Appellants, v. HIBISCUS HOMEOWNERS ASSOCIATION, INC., Joel Richard Breyne, and Blair Breyne, Appellees.
Clifford W. Sanborn of Barron & Redding, P.A., Panama City; Katherine E. Giddings and Nancy M. Wallace of Akerman LLP, Tallahassee, for Appellants. M. Stephen Turner and Jennifer A. Winegardner of Rayboun Winegardner PLLC, Tallahassee for Appellee Hibiscus Homeowners Association, Inc.; Clayton B. Studstill of The Studstill Law Firm, PLLC, Port St. Joe, for Appellees, Joel Richard Breyne and Blair Breyne.
Clifford W. Sanborn of Barron & Redding, P.A., Panama City; Katherine E. Giddings and Nancy M. Wallace of Akerman LLP, Tallahassee, for Appellants.
M. Stephen Turner and Jennifer A. Winegardner of Rayboun Winegardner PLLC, Tallahassee for Appellee Hibiscus Homeowners Association, Inc.; Clayton B. Studstill of The Studstill Law Firm, PLLC, Port St. Joe, for Appellees, Joel Richard Breyne and Blair Breyne.
Per Curiam.
Appellants, Richard and Martha Barnett, appeal the trial court's Amended Final Declaratory Judgment, in which the court upheld the Hibiscus Beach and Hibiscus Bay Subdivision's Architectural Review Committee's rejection of their proposed shared access drive and pronouncement that it would not approve an additional access route to their three lots. Because we agree with Appellants that they are legally entitled to a shared access drive, we reverse the amended judgment.
Factual Background
This case involves a dispute between the parties over a shared access drive that has been contemplated for more than a decade. As found by the trial court:
3. The northern portion of the Subdivision plat (the "Plat") shows the lots at issue. The five lots to the right of the Hibiscus Drive entry into the Subdivision are, from left to right, Lots 5, 4, 3, 2, and 1.
4. The Subdivision is situated along State Road 30-E, also referred to as C 30-E and Cape San Blas Road. However, access into the Subdivision from C 30-E is limited to Hibiscus Drive. The only other access from C 30-E shown on the Plat is a shared driveway into Lot 2, for Lots 1-3.
....
6. If [Appellants] the Barnetts are not entitled to construct a driveway across [Appellees] the Breynes’ Lot 4, their access for Lots 1, 2, and 3 is as depicted on the Plat, which is the shared driveway into Lot 2 from C 30-E.
7. [Appellee] [t]he Association maintains the shared driveway was never approved and any site plans submitted for approval must show the platted access routes.
8. [Appellees] [t]he Breynes do not dispute that they signed the Shared Access Drive Agreement and are bound to it....
....
12. The original owner and developer of the Subdivision was Kurt Hofer .... Hofer is now deceased.
13. The Architectural Review Committee (the "ARC") has the authority to approve all construction within the Subdivision, including driveways, and prior written approval must be obtained, pursuant to Article V of the Declarations. In the event of any unresolved disputes regarding plan approval, an owner may request appointment of an arbitration panel composed of three members, one appointed by the owner, one by the Board, and one by the ARC. Decisions
of the panel are final and binding on all parties. The initial members of the ARC, in 2003, were the Hofers and Elliott Varnum ..., a civil engineer.
14. The Hofers sold Lots 1 and 2 to the Barnetts in 2010. At that time, the Hofers still owned Lots 3 and 4....
15. Around April of 2010, Rick Barnett ("Barnett") discussed access to Lots 1-3 with Hofer. When Hofer sold Lots 1 and 2 to the Barnetts without reserving access to Lot 3, Hofer was left with no access to Lot 3. Access from Lot 3 to Hibiscus Drive is blocked by Lot 4.
16. The shared access drive across Lot 4 was Hofer's idea. In August 2010, Hofer came up with the idea to "construct an access road to Lots 1-3 from the inside of Hibiscus Beach directly along the boundary line of Lot 4"....
17. Hofer made it clear that approval from the Board and the ARC would be needed....
18. The Breynes knew about the planned access drive across Lot 4 before they purchased Lot 4 from the Hofers in September 2010....
19. In April 2011, the Declaration was amended to allow shared driveways, subject to ARC approval.... It was unanimously approved by the property owners.... The Declaration Amendment provided that several lots would be served by shared driveways, including Lots 1-5, and plans submitted to the ARC had to include detailed plans for the driveway. Additionally, the ARC had the authority to determine and direct the location, configuration, and size of all individual and shared driveways, and the ARC would determine and mandate the use of materials and method of construction for any driveway. Drives were to be constructed to meet or exceed Gulf County specifications for subdivision roads....
....
21. The owners of Lots 1-5 signed an agreement for a shared access drive in 2012. The owners of Lots 1 and 2 (the Barnetts), Lot 3 (the Hofers), Lot 4 (the Breynes), and Lot 5 (the Bryants) executed a Shared Access Drive Agreement for Hibiscus Lots 1-4.... The Association was not a party to the Shared Access Drive Agreement....
....
23. The Breynes’ plans for a residence and driveway on Lot 4 were approved in October 2012.... [T]he Breynes’ plans had the shared drive in the location ... that was attached to the Shared Access Drive Agreement. However, ... what was ultimately approved and built on Lot 4 did not include the shared driveway plan.
24. The plans for and the progress of the shared driveway for Lots 1-5 were announced at the Association meetings for 2012, 2013 and 2014, indicating Association approval with no objections....
25. When the Barnetts bought Lot 3 from the Hofers in 2013, the Barnetts acquired all the Hofers’ rights to an access drive across Lot 4, based on a sales contract ... drafted by Dunlap, who was a member of the Board....
26. The Sales Contract made it clear that the Board and the ARC would need to approve the shared drive....
....
29. The Breynes and the Barnetts were unable to agree on a location for the access drive and agreed to turn it over to the "committee" for a decision in 2014.... The location of the shared access drive was determined by an arbitration panel, who were Board members Dunlap and Hofer....
....
31. However, the Barnetts "totally" rejected the arbitrated solution in 2014.... According to trial testimony, the Barnetts did not agree to the arbitrated location until 2019....
32. The ARC rejected plans that Barnett submitted for approval. Emails in 2016 reflect that Barnett submitted plans to the ARC for approval. One response from the ARC in 2016 included concern that Barnett's plan for the access drive deviated from the arbitrated driveway location.... Another response in 2016 raised numerous obstacles and rejected Barnett's statement that the ARC had previously approved a roadway access. Graves, as chair of the ARC, further suggested that an access drive would require a plat amendment and a subdivision vote.... The requirements for a plat amendment and a subdivision vote had not been previously raised.
33. In 2018, the Board proposed two alternatives for an access road, but neither was accepted....
34. In May 2019, Mr. Burg, as counsel for the Association, sent a letter to Mr. Sanborn, as counsel for the Barnetts, regarding a drive over Lot 4 for access to Lot 3. The letter stated that the Plat shows that Lots 1-3 must construct a driveway directly to State Road 30-E, and that the Plat could not be changed without unanimous consent of the lot owners. Any plans would have to be approved by the ARC and the Breynes as the owners of Lot 4....
35. In 2019, Barnett submitted a plan with the arbitrated location for a driveway. The ARC responded that the shared driveway had never been approved by the Board or the ARC, stated the ARC would never approve an alternate access drive, and raised safety concerns for the first time. The October 2019 letter from the ARC rejected the shared drive previously suggested by Hofer and Varnum based on safety and traffic concerns. The letter stated that the Board and ARC never approved a shared driveway; that the ARC was not accountable for statements by Hofer before the Barnetts purchased Lot 3; that the Board and the ARC did not have the authority to convey a road across another person's property; that the property owners were opposed to the drive; that the Shared Access Drive Agreement was not approved by the Board or the ARC; that there was never a complete agreement; and that the ARC would not approve an additional access route to the Barnetts’ three lots. Any plans submitted to the ARC would need to use the access routes "as platted"....
In response to the ARC's rejection of their most recent proposal that contained the arbitrated location, Appellants filed a Complaint with the trial court, seeking a declaratory judgment that they were entitled to construct the driveway on Lot 4 without obtaining a plat amendment as demanded by the Association. In their Amended Complaint, Appellants sought a second declaration that the "Shared Drive Agreement and the covenants and restrictions do not permit the Association, through the ARC, to refuse to approve any shared drive."
During the bench trial, Lee Collingsworth, the planning director for the Gulf County Board of County Commissioners, was asked whether the county would require a plat amendment for the owner of Lot 3 to build a driveway across Lot 4, to which he replied, "No. That's an agreement between two parties. The county does not get involved in that." He testified, "As long as the main access was not disturbed or what was on the plat, an individual can make an agreement with another individual of a lot and make that agreement, and the county is not going to get involved..., as long as they still have their access per what the recorded plat shows." Collingsworth referenced his April 16, 2019, Memorandum of Record in which he explained that the only way to abandon the entrance from "CR-30E" to Lots 1 through 3 would be to "go through the correct replat process." His recommendation was "to leave this access as is."
Elliott Varnum, the engineer whose firm planned the subdivision and who served as chairman of the ARC until "2015 or so," claimed to have been very involved "with the solution to the access issue on lot three" and testified that one of the goals of the Declaration Amendment was to allow for shared access driveways in the subdivision. When asked if the ARC actually approved construction plans using a shared drive, he replied, "Yeah. When we approved lot four, part of it showed a driveway similar to this for their access." When asked whether the "Committee" approved the shared drive and whether it "could have been built without any further approval or review," he replied, "Correct."
Appellant Richard Barnett testified that he had no concerns about the access C 30-E provided to Lots 1 and 2. When he purchased Lot 3, he "had no question that [he] had the right to build across lot four." When asked if he knew that the ARC had the right to review and approve those plans and "have them put on the configuration," he replied, "And I still don't have a problem with that." When asked if he was requesting that the court not allow the ARC to have input on the driveway's location, he replied, "No. I'm perfectly willing to work with them on wherever they want to put the driveway."
William David Graves, the chairman of the ARC since 2015, testified that he did not know until the day of trial that the ARC had approved a shared drive over Lot 4 with "Mrs. Breyne's initial planned submission in 2012." He acknowledged that he had not contacted Gulf County to determine whether a plat amendment was necessary for the shared driveway.
In the Amended Final Declaratory Judgment, the trial court, in addition to summarizing the live trial testimony, summarized a portion of the deposition testimony as follows:
37. David Dunlap testified that the ARC has the right to determine the location of any drive; that the shared driveway did not violate the Declaration other than it was not on the Plat; that the Shared Access Drive Agreement did not mean the ARC or the Board approved the shared drive; that Dunlap was on the ARC and Hofer was on the Board when they served as the arbitration panel and spent a great deal of time determining a location; and that neither the Board nor the ARC taken [sic] the position that a Plat amendment would be required before the shared drive could be considered.... Dunlap stated that prior to the October 23, 2019 memo from Graves, the ARC had not stated as clearly that it was never going to approve a shared drive over Lot 4....
The trial court determined as follows:
I. Construction of a shared access drive in the arbitrated location will not require an amendment to the Plat if there is an agreement between the property owners and the access shown on the Plat is not disturbed.
49. It is Graves’ position, as current chair of the ARC, that a Plat amendment would be required.... However, the Gulf County Planning Department will not require a Plat amendment for construction of an access drive if there is an agreement between the property owners and access as shown on the Plat is not disturbed....
II. The ARC approved the shared drive subject to the location being finalized,
but the Barnetts rejected the location selected by the arbitration panel. Further, the Barnetts have not asked the Court to enforce the 2014 arbitration decision.
....
III. The Board, through the ARC, is not permitted to arbitrarily refuse to approve plans for "any" shared drive, but this does not require Board and the ARC to accept a plan with a shared access drive that is not shown on the Plat and is in a location the Barnetts previously "totally" rejected, or a location for which there was no agreement.
54. The Declaration states that all construction and landscaping requires the ARC's prior written approval and states the procedure and criteria to be used. The 2011 Declaration Amendment permitted shared drives for lots including Lots 1-5, with ARC approval.
....
56. Although Dunlap viewed the ARC's authority to approve or disapprove plans as unlimited, that authority is limited by Fla. Stat. [section] 722.3035 and must be exercised reasonably and not arbitrarily. If a plan does not violate a specific provision of the Declaration or other applicable restrictions, it must be approved.... The ARC may not devise and impose other rules....
57. The Court cannot find that the ARC's decision to reject a shared access drive that is not shown on the Plat and either in an arbitrated location clearly rejected by the Barnetts five years ago, or in a location for which there was never an agreement, was unreasonable or arbitrary.
This appeal followed.
Analysis
"An order in a declaratory judgment case is generally accorded a presumption of correctness on appeal." Crapo v. Provident Gr. – Continuum Props., L.L.C. , 238 So. 3d 869, 874 (Fla. 1st DCA 2018). However, to the extent a court's decision rests on a question of law, an order is subject to de novo review. Id. An appellate court must defer to a trial court's factual findings if they are supported by competent, substantial evidence. Id.
In their Amended Complaint, Appellants requested a judgment declaring that (1) they were entitled to construct a driveway on Lot 4 without obtaining a plat amendment; and (2) the shared drive agreement and covenants and restrictions do not permit the Association, through the ARC, to refuse to approve any shared access drive. In the amended judgment on appeal, the trial court agreed with Appellants as to the first issue and found that construction of a shared access drive in the arbitrated location would not require a plat amendment if there was an agreement between the property owners, which there was. This finding, which has not been cross-appealed, is supported by Mr. Collingsworth's testimony and memorandum concerning a plat amendment. Although the trial court then found that Appellants rejected the arbitrated location by proposing other locations, Appellants ultimately submitted the arbitrated location for approval by the ARC. Appellants’ initial "rejection" of that location does not obviate what, as we will explain, is their entitlement to a shared access drive for their lots. While the trial court also relied upon the fact that Appellants did not seek to enforce the arbitrated location against the Breynes, the Association was not a party to the arbitration. Given the ARC's ultimate authority over various aspects of a shared drive, including its location, an action against the Breynes would have been futile.
As for Appellants’ second requested declaration in their Amended Complaint, we agree with their argument on appeal that the trial court erred in upholding the ARC's decision that it would not approve "an additional access route" to their three lots, which essentially amounted to an outright denial of a shared drive. In doing so, we are guided by both the subdivision's Declaration Amendment, which provides that sixteen lots, including Lots 1 through 5, "will be served by shared driveways," and the Shared Access Drive Agreement in which Appellants and the Breynes, among others, agreed to the construction of a shared access drive over Lot 4. Based upon these documents, Appellants are legally entitled to a shared access drive to their three lots. By proclaiming otherwise, the Association unreasonably infringed upon the rights Appellants were afforded in the Declaration Amendment. See § 720.3035(4), Florida Statutes (2019) ("Each parcel owner shall be entitled to the rights and privileges set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants concerning the architectural use of the parcel, and the construction of permitted structures and improvements on the parcel and such rights and privileges shall not be unreasonably infringed upon or impaired by the association or any architectural, construction improvement, or other such similar committee of the association.").
This is not to say, however, that the ARC is to have no input in the location of Appellants’ shared access drive over Lot 4. The Declaration Amendment provides that when a lot owner submits a plan for the construction of a home, "the [ARC] has the authority to determine and direct the location, configuration, and size of all individual and shared driveways." Appellant Rick Barnett essentially acknowledged this when he testified below that he was perfectly willing to work with the ARC "on wherever they want to put the driveway."
Based upon the foregoing, we reverse the Amended Final Declaratory Judgment. Given our pronouncement of the parties’ rights, we are hopeful that they will proceed in an amicable and timely fashion so that this matter can finally be resolved.
REVERSED .
Lewis and Osterhaus, JJ., concur; Rowe, C.J., concurs in result.