Opinion
C.A. No. 712-VCN.
Date Submitted: March 21, 2007.
March 29, 2007.
Donald L. Gouge, Jr., Esquire, Heiman, Gouge Kaufman, LLP, Wilmington, DE.
Thomas C. Marconi, Esquire, Losco Marconi, P.A., Wilmington, DE.
Dear Counsel:
I have reflected on the oral argument of the pending cross-motions for summary judgment and have also reviewed the photographs forwarded by Mr. Gouge on March 25, 2007.
I am satisfied that there are material questions of fact as to whether the Plaintiff should be estopped from enforcing the restrictive covenants against the Defendant. The question of whether there is a material fact in dispute with respect to compliance with the terms of the restrictive covenants is a closer call. The pictures show a very large outbuilding, one that appears to be inconsistent with other structures in the neighborhood, but, because the Court is called upon, in loose terms, to assess the "reasonableness" of the Plaintiff's handling of the Defendant's efforts to erect such a structure, a factual determination as to "reasonableness" thus is necessary. "Reasonableness" is not frequently amenable to resolution on summary judgment. Accordingly, the cross-motions for summary judgment are denied.
IT IS SO ORDERED.