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Sailak, LLC v. Forsyth County

United States District Court, N.D. Georgia, Gainesville Division

June 19, 2018




         This case comes before the Court on Defendant's Motion for Partial Summary Judgment [17]. After reviewing the record, the Court enters the following Order.


         Plaintiffs' claims arise out of a dispute regarding the desired use of Lot 38 of the Bald Ridge on Lanier subdivision in Forsyth County, Georgia, by its owner, Plaintiff Sailak, LLC.

         On February 25, 1983, long before Plaintiff Satoor purchased Lot 38, the developers and then-owners of the Bald Ridge on Lanier subdivision (“Bald Ridge”) recorded Restrictive Covenants Pertaining to Bald Ridge on Lanier (“First Bald Ridge Declaration”) with Forsyth County at Deed Book 236, Pages 604-607. (Pl.'s Statement of Additional Material Facts (“Pls.' SAMF”), Dkt. [19-1] ¶ 5.) The document purports to establish restrictive covenants for Bald Ridge, “consisting of various lots for building purposes in Forsyth County . . . and shown on the attached Exhibit ‘A' which is made a part hereof.” (Pls.' SAMF. Ex. D, Dkt. [19-1], at D-1.) Although the First Bald Ridge Declaration references an “Exhibit A, ” no such document or legal description was recorded at the time. (Pls.' SAMF, Dkt. [19-1] ¶ 6.) The First Bald Ridge Declaration does, however, state that the restrictions therein “shall become effective immediately, shall run with the land, ” and “apply to all of the said lots or any of them hereafter.” (Pls.' SAMF, Ex. D, Dkt. [19-1], at D-1.) Of particular relevance are the following purported restrictive covenants, enumerated in the First Bald Ridge Declaration:

2. No. proposed building, fences, or other structure shall be erected, placed or altered on any lot in the subdivision until after the building plans and specifications, including plot and site plans showing the proposed location of such building or structure, drives and parking areas have been approved in writing by the [Architectural Control Committee (“A.C.C.”)], its agents, successors or assigns, as to the quality of design, workmanship, materials, harmony of design with existing structures, location with respect to topography and finish grade elevation. Refusal or approval of plans, location or specifications by the A.C.C. may be based upon any ground, including purely aesthetic grounds, which in the sole discretion of the A.C.C. shall seem in keeping with the common plan for development of the subdivision. . . .
3. All lots in said area shall be used for residential purposes. Structures erected, altered, placed or permitted on any lot, shall consist only of one (1) detached single family dwelling not to exceed two stores (sic) in height and (1) accessory building which may include a detached private garage, provided the use of such accessory building does not include any activity normally conducted as a business. . . .
4. The intent of these covenants is to provide for a natural wooded environment. Therefore, alteration of the natural environment on any lot is limited to that which is required for the construction of an approved dwelling, necessary landscaping, and accessory building. Nothing herein contained, however, shall be construed as preventing the use of the same for walks, drives, and other appropriate private facilities, the planting of trees or shrubbery, the growing of flowers or ornamental plants for the purpose of beautifying said premises.
6. No trailers, campers, tents, shacks, barns or other outbuildings except as permitted herein in paragraph 3 shall be erected on a lot at any time, nor shall any structure or device of a temporary character be used as a residence or for camping.
16. No trade, commercial venture, or activity shall be carried on upon any lot.

(Id. at D-1 to D-3.)

         On June 8, 1983, after recording the First Bald Ridge Declaration, the developer-owners of Bald Ridge sold Lot 38 therein by deed recorded at Book 241, Page 710. (Pls.' SAMF, Ex. E, Dkt. [19-1], at E-1.) This deed to the first buyer of Lot 38 stated that it was “subject to subdivision restrictions of record and recorded at Deed Book 236, pages 604-607.” (Id.) Less than a year later, on April 1, 1984, the developer-owners of Bald Ridge executed a Waiver of Certain Restrictive Covenants with Respect of Lot 38 Bald Ridge on Lanier Subdivision (“Waiver”), recorded with Forsyth County at Book 262, Page 299. (Pls.' SAMF, Ex. F, Dkt. [19-1], at F-1.) The Waiver purported to waive “the restrictive covenants of record with respect to paragraphs 1, 2, 6, and 13 of said covenants in order that Grantees, their heirs and assigns, may use said property for the occupancy on said property for a horse or horses to be used by the residents of Lot 38 of said subdivision.” (Id.) The document continued:

Nothing herein contained shall grant, authorize, approve or waive rights to Grantees, their heirs or assigns, to conduct a commercial operation for the renting of stalls or the like. It is the intent herein to permit the occupants of the home located on Lot 38 to be able to use the property for occupancy of a horse or horses for the personal pleasure of the owner and family members of said lot.

(Id. at F-1 to F-2.) Following the Waiver's execution, then-owners of Lot 38 built a barn on the premises. ...

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