United States District Court, N.D. Georgia, Gainesville Division
RICHARD W. STORY UNITED STATES DISTRICT JUDGE.
case comes before the Court on Defendant's Motion for
Partial Summary Judgment . After reviewing the record,
the Court enters the following Order.
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.
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
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
16. No trade, commercial venture, or activity shall be
carried on upon any lot.
(Id. at D-1 to D-3.)
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