Wilson v. Artsruni

7ermont Superior Court
Filed 05/22/25
Rutland nit

VERMONT SUPERIOR COURT Ky CIVIL DIVISION
Rutland Unit Case No. 23-CV-02924
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

Mark Wilson et al v. Gegham Artsruni et al

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

In this land-use dispute, Plaintiffs Mark Wilson and Carrie Wilson request a
declaratory judgment establishing that a particular lot may not be developed and an
injunction prohibiting building and improvement on that lot. Defendants Gegham
Artsruni, Ani Adzhemyan, Tigran Avetisyan, and Sona Antonyan move for summary
judgment, and Plaintiffs cross-move for summary judgment.

Facts

The following facts are undisputed unless otherwise noted. Deux Mondes, Inc.
created the Cricket Hill Development ("Cricket Hill') and recorded a Declaration of
Protective Covenants, Restrictions and Reservations ("Covenants," "Declaration," or
"Declaration of Covenants") in the Town of Killington land records. Exhs. 1 and A. The
Declaration defines Cricket Hill as a residential area subdivided into "lots, streets and
roads" as shown on a plan on file or to be filed in the land records. Id. Three plans
depicting Cricket Hill were recorded, depicting Cricket Hill as a residential subdivision.
Exh B. The Declaration expressly states that the lots are to be subject to the protective
covenants, restrictions, and reservations to benefit all present and future owners, and are
set forth in the Declaration so that they may be incorporated by reference in future
conveyances. Exhs. 1 and A. The Declaration states that its covenants, restrictions, and
reservations are "binding on all lots and the owners thereof in Cricket Hill as if set forth in
detail in each conveyance," and shall run with the land. Id. Although the three plans
appear to have been submitted after the Declaration, there is no evidence that a majority of
lot owners objected to them. Pursuant to the Declaration, any owner of any lot in Cricket
Hill may enforce the provisions of the Covenants against another owner.

Deux Mondes applied for and received an Act 250 permit for Cricket Hill in 1973.
Deux Mondes also applied for and received a subdivision permit in 1973. Plaintiffs
acquired Lot 19 in Cricket Hill in 2020. Defendants purchased Lot 18 in Cricket Hill in
2020. Defendants assert that they acquired Lot 20 at the same time, but the exhibit they
submitted in support of this assertion, Exh. D, includes a description of that second lot in
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Schedule A as “known as the ‘community property lot’ of the Deux Mondes Subdivision”
and not as “Lot 20” (hereinafter, “Community Property”).1 The Covenants refer to
surveys that label the property in question as “community property,” not as Lot 20. See
Exhs. B and 2. All three plans label the property in question as “community property,” and
the third plan depicts Lot 20 as a separate lot that is a different lot than the “community
property” and unrelated to this action. Exh. B at 3. The Community Property has not
been subdivided since its creation and is approximately 3.06 acres in size.

The Covenants provide that “[n]one of the lands affected by the protective
covenants shall be subdivided into other than a minimum of 4 acre parcel.” Exh. A, § 1(a).
Defendants assert that the Covenants do not restrict development on the Community
Property. Plaintiffs contend that the Covenants incorporate the recorded development
plans, which in turn depict the Community Property as under 4 acres (and thus,
undevelopable), and label the Community Property as “community property” rather than
numerically, implying that the lot is to be left undeveloped and for the benefit of Cricket
Hill as a whole.

Plaintiffs assert, yet fail to establish with admissible evidence that there is an absence
of disputed fact, that ever since Cricket Hill was developed, the residents understood that
they were allowed to use the Community Property, and that the residents always wanted it
to remain open and undeveloped for the benefit of the entire community. It is undisputed
that some residents of Cricket Hill have used the Community Property for riding three- and
four-wheelers, fishing, walking, relaxing, enjoying scenery, watching wildlife, having
bonfire, setting up tents, and playing at the ponds. Plaintiffs have not established based on
evidence that residents of Cricket Hill on the whole understood that they had a right to use
the Community Property or if they did understand that they had a right to use it, what the
scope of that right entailed.

Lot 18 is adjacent to the Community Property along the eastern border of the
Community Property. Exh. B. The Covenants provide that “[a]n owner of adjoining lots
may combine his parcels so as to disregard the set-back requirements regarding these lot
lines which divide his separate premises.” Exh. A, § 1(b).

The parties agree that Deux Mondes no longer exists. The Community Property
was sold at a tax sale to Edward Godnick and Gilbert Godnick in 1987. The sale price was

1 Defendants refer to the lot in question, throughout their filings, as Lot 20. The Court does not follow this designation, since it
is apparent that the lot in question is labeled “community property” in the site plans to which the Declaration refers, as well as
later deeds, whereas Lot 20 refers to a different lot entirely on the recorded plans. Defendants appear to take their notion that
the lot in question is Lot 20 from a later map related to wastewater permitting, and correspondence with another resident, that
the Court cannot identify, based on the undisputed material facts, as meaningfully authorized to redesignate the Community
Property lot as Lot 20, especially when it appears that Lot 20 is a lot unrelated to this litigation.

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$455.57, which was the equivalent of $1,263.00 in November 2024. The tax sale deed
incorporates a description from one of the recorded plans that identifies the lot as
“community property.” The Godnicks never developed the lot. E&K Asset Management
LLC (“E&K”) acquired the Godnicks’s respected interests in the lot via a trustees deed in
1999 and quitclaim deed in 2004. Exhs. H and I. E&K deeded the lot to Edwin J. Fowler
in 2004. Exh. J.

Fowler applied for and obtained permits for Lot 18 and the Community Property.
In 2008, he acquired a wastewater permit. Exh. K. The permit allowed for wastewater
disposal systems for the volume of wastewater that would be produced by maximum four-
bedroom single-family dwellings on Lot 18 and the Community Property. Id. The site plan
approved by the permit shows a four-bedroom house on each of Lot 18 and a lot labeled
“Lot #20.” Exh. L.

In 2008, District Environmental Commission No. 1 granted Fowler an Act 250
permit amendment authorizing him to combine Lot 18 and the Community Property “into
one larger Lot #18.” Exh. M. Fowler constructed three ponds on Lots 18 and the
Community Property, then sought permission and received another Act 250 permit
amendment for the three ponds. The Ponds Site Plan that Fowler submitted to the District
Environmental Commission No. 1 depicts the largest of the three ponds almost entirely on
the Community Property. Despite having constructed the three ponds, Fowler did not
begin construction on the combined-lots project within three years of obtaining the Act
250 Amendment, and the District Environmental Commission No. 1 deemed the Fowler
Act 250 amendment to have been abandoned. Exh. P.

Fowler never developed the Community Property for unequivocally private
purposes, and it is a disputed fact whether the ponds, despite being Fowler’s initiative, were
developed for community use. During Fowler’s ownership of the Community Property, at
least one other resident of Cricket Hill used it for fishing, and Fowler acknowledged that
residents could use the lot. When Fowler proposed building a home on the Community
Property, another resident pointed out that the Covenants did not allow homes on lots
smaller than four acres. It is disputed whether the residents successfully discouraged
Fowler from further developing the lot and if so, for which reasons, but it is undisputed
that Fowler did not develop the lot in a manner that clearly indicates that the residents, or
Fowler, recognized that it could be used for private purposes.

Defendants hired Stephen Pro of SepticPro LLC to design a septic system on their
adjacent lots. Pro designed a system for a combined single lot, in which the system was
located entirely on the Community Property. At Defendants’ request, Pro visited the lots
to consider whether he could design a septic system for a smaller house located entirely on
Lot 18. In Pro’s opinion, a septic system for a house on Lot 18 cannot be situated within
Lot 18. Defendants lament that if they cannot build a septic system on the Community
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Property, their entire $155,000 investment will have been lost, and they will be left with tax
responsibilities for the lots, which are taxed at a residential rate. The parties dispute
whether the relatively low price for which the Community Property was conveyed over the
years is indicative of acknowledgement that its development was restricted.

Defendants admit that Gegham Artsruni received a copy of the Declaration prior to
purchasing the Community Property. Plaintiffs assert that Fowler attempted to get the
residents of Cricket Hill to amend the Covenants to allow homes to be built on lots with a
minimum of three acres.

Discussion

The Court denied Defendants’ motion to dismiss on October 16, 2023. In that
decision, the Court noted that “[t]he issue presented by this case is whether the general-
plan servitudes include, in addition to those specifically stated in the Declaration, one that
may be implied to prohibit individual private development on the ‘community property’
lot.” Wilson v. Artsruni, No. 23-CV-02924, slip op. at 3 (Vt. Super. Ct. Oct. 16, 2023)
(Teachout, J.). The first basis from which such a servitude might be implied is reference to
it in a related creation document such as the survey of Cricket Hill. Id. The second basis is
agreement among owners. Id. at 4.

Summary judgment is appropriate if the evidence in the record, referred to in the
statements required by Vt. R. Civ. P. 56(c), shows that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law. Vt. R. Civ. P.
56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994) (summary judgment will be granted if,
after adequate time for discovery, a party fails to make a showing sufficient to establish an
essential element of the case on which the party will bear the burden of proof at trial). The
Court derives the undisputed facts from the parties’ statements of fact and the supporting
documents. Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413. A party
opposing summary judgment may not simply rely on allegations in the pleadings to
establish a genuine issue of material fact. Instead, it must come forward with deposition
excerpts, affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt.
621, 628 (1991). Where, as here, there are cross-motions for summary judgment, the
parties opposing summary judgment “are entitled to the benefit of all reasonable doubts
and inferences.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181 Vt. 154. In order to be
entitled to summary judgment, Defendants must show that Plaintiffs cannot succeed in
proving that there is a restrictive servitude that prohibits private development on the
Community Property. Plaintiffs, in order to be entitled to summary judgment in their
favor, must show that the undisputed material facts show that there is a restrictive servitude
that prohibits development on the Community Property.

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“Covenants are ‘agreement[s] or promise[s] of two or more parties that something is
done, will be done, or will not be done,’ and are characterized by the type of burden they
impose: an affirmative covenant calls for the covenanter to perform an act, while a negative
covenant requires the covenanter to refrain from performing one.” Patch v. Springfield Sch.
Dist., 2009 VT 117, ¶ 8, 187 Vt. 219 (quoting R. Powell, Powell on Real Property § 60.01[2]
(M. Wolf ed. 2007)). Negative covenants that restrict owners’ uses of their land, known as
restrictive covenants, “can be established via a common development scheme for a general-
plan development.” Id., ¶ 8 (citing Creed v. Clogston, 2004 VT 34, ¶¶ 20–21, 176 Vt. 436).
Restrictive covenants may be established “(1) through ‘explicit written language ... in the
deed ... or another recorded document’ and (2) ‘by implication ... usually ascertained from a
common plan of development.’”. Id. (quoting Leon N. Weiner & Assocs. v. Krapf, 623 A.2d
1085, 1088 (Del.1993)). The issue at stake in both parties’ motions is whether the
Community Property is subject to a restrictive servitude that prohibits its development for
private use, and if so, whether it prohibits all development for private use whatsoever, or
instead prohibits only development that would interfere with the community use of the lot.

1. Defendants’ motion for summary judgment

Defendants first argue that the term “Community Property” does not, on its own,
mean that the Covenants impose restrictions on the development of the Community
Property. They argue that because “community property” is not a term of art in this
context, the use of the phrase “community property” to label the lot, on its own, does not
unambiguously create a restrictive covenant prohibiting private development of the lot.
Making reasonable inferences in favor of Plaintiffs as the opposing party—the “community
property” label for the lot on the survey plans, where all the other lots to be sold are
numbered, combined with the restriction on subdividing lots, where the Community
Property is below the minimum size, implies that the lot was to remain open for
community use and not to be developed for private purposes that would interfere with the
community use. Plaintiffs assert further facts that are consistent with that construction of
the documents: the later history of the lot—the continued reference to its description as
“community property” in later deeds, the fact that Deux Mondes did not sell the lot to an
individual owner for development of a residence as it did the (numbered) lots in the plans,
the fact that even after the tax sale, subsequent owners did not develop the lot for private
purposes and appear to have acquiesced to use of the lot by residents of Cricket Hill, the
fact that the lot sold for a relatively low price in the tax sale and to subsequent buyers. The
Court cannot at this time rule that the failure to use more express terms in the Declaration
eliminates the possibility that a factfinder could conclude that there is a restrictive servitude
that limits the private use of the Community Property.

Similarly, the lack of formation of a homeowners’ association could be considered by
a factfinder in weighing the evidence for and against the implication of a restrictive
servitude on the Community Property, but Defendants have not shown that it is dispositive
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as a matter of law. The situation in In re N. Acres, LLC related to restrictions on a parcel
labeled “common land” on a final plat. 2007 VT 109, ¶ 13, 182 Vt. 618. However, there is
nothing about In re N. Acres, LLC that persuades the Court that those facts are the only
ones in which a restrictive servitude can be found.

Defendants insist that the tax sale of the Community Property in 1987 removed any
conceivable implied restrictions on its development. Defendants cite a single authority for
the proposition that “where property sold for delinquent taxes is assessed without
reference to a restrictive covenant, such covenant is sometimes regarded as having been
extinguished by the tax sale.” 20 Am. Jur. 2d Covenants, Etc. § 232. The tax sale deed
incorporates as a description of the lot in question a description from an earlier deed in
which the lot is described as “community property.” Exh. G. Defendants have not come
forward with any further authority, nor has the Court located any such authority, to show
that under Vermont law, a tax sale resulting from a subdivision developer’s failure to cure a
tax delinquency on a lot held by the developer and subject to Covenants along with other
parcels in a general-plan development extinguishes the obligations of the new owner to
comply with the Covenants that bind all the lots in a development and run with the land.
Although it is undisputed that the Community Property was conveyed pursuant to a tax
sale, Defendants have not met their burden to show that because of that fact, they are
entitled to judgment as a matter of law.

Defendants further argue that the Community Property has never been subdivided
since its creation, so the Covenants’ provision restricting further subdivision is inapplicable
and irrelevant. The issue before the Court is not whether the owners of the Community
Property may subdivide it. However, the provision restricting subdivision of parcels into
parcels smaller than four acres—in the context of the general-plan development of Cricket
Hill, in which numbered parcels of greater than four acres were sold for private residential
use and a single lot of fewer than four acres, labeled “community property” rather than
being numbered in the original plans submitted at the time of the Declaration of
Covenants—may be considered with regard to the question of whether the intention was to
retain the lot for community use and restrict it from any development for private use that
would interfere with the community use.

Defendants contend that Lot 18 cannot support a septic system, and the only place
for a septic system would be on the Community Property. Further, they point to the
Department of Environmental Conservation and Act 250 District Environmental
Commission No. 1 approvals for a septic system on the Community Property to support
houses on Lot 18 and the Community Property. To begin with, Defendants have not
brought forth any authority from which the Court can conclude that the Wastewater and
Act 250 permits regarding development of Lot 18 and the Community Property supersede
any express or implied restrictive servitudes governing those parcels. Further, Defendants
have not shown that the current unsuitability of Lot 18 for septic system development
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would entitle them to develop the Community Property for private use if the Community
Property is burdened by the restrictive servitude that Plaintiffs ask the Court to find, or
even that such a consideration is relevant to the issue.

Because Defendants have not shown that Plaintiffs cannot succeed in their claim
that the Community Property is subject to a restrictive servitude that would prohibit them
from building a residential home or septic system on it, they are not entitled to summary
judgment.2

2. Plaintiffs’ motion for summary judgment

Plaintiffs, in their cross-motion for summary judgment, argue that there are two
sources for the conclusion that the Community Property may not be developed for private
purposes: the documents that established Cricket Hill, and the characteristics, purposes,
and history of the Community Property. Plaintiffs contend that the restrictive covenant
against developing the Community Property for private purposes is implied. See Patch v.
Springfield Sch. Dist., 2009 VT 117, ¶ 19, 187 Vt. 21.

“A ‘general-plan development’ is a ‘real-estate development or neighborhood in
which individually owned lots or units are burdened by a servitude imposed to effectuate a
plan of land-use controls for the benefit of the property owners in the development or
neighborhood.’ ” Creed v. Clogston, 2004 VT 34, ¶ 20, 176 Vt. 436 (quoting Restatement (3d)
of Property–Servitudes § 1.7. “General plan developments ‘are generally created by
developers who impose the servitudes before any lots or units are sold, but they may also
be created by agreement among existing property owners.’ ” Id. (quoting Restatement (3d)
of Property–Servitudes § 1.7 cmt. a). The Supreme Court has further specified that in
order to establish a general-plan development, there must be a “common declaration of
covenants” or an “agreement of … neighbors.” Id, ¶ 20.

Defendants oppose the application of the doctrine of reciprocal negative easements
or implied reciprocal servitudes and argue that the Court in its decision on the motion to
dismiss misinterpreted Patch. Defendants contend that Patch rejected the doctrine. Patch
relied on Creed, in which the Supreme Court declined to conclude that a covenant
prohibiting construction of mobile homes on eleven lots of a twenty-lot subdivision also
prohibited mobile homes in the remaining lots, in part because the record did not support
holding that the neighborhood was a general-plan development. 2004 VT 34, ¶¶ 20–21
(notably, the restriction was contained only in later-sold lots); see Patch, 2009 VT 117, ¶ 11.
In Patch, the Supreme Court held that the subdivision in question was not a general-plan

2 Defendants’ remaining arguments regarding the construction of the Declaration and referenced plans are addressed below in

the discussion of Plaintiffs’ motion.

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development where “[n]either the subdivision plat, nor the first deed, contained any
reference to restrictive covenants; only the later deeds contained such reference.” Id, ¶ 12.
“The mere existence of a recorded plat map does not constitute the creation of a general-
plan development because the map simply lays out the location of lots within a certain area
of land; it gives no indication of any restrictions that might govern those lots.” Id. The
subdivision in this case differs from those in Creed and Patch in several important respects,
including the existence of a Declarations of Covenants that was recorded before the
developer conveyed the numbered lots (and years before the tax sale of the Community
Property), as well as recorded plans that do not merely lay out the location of lots, but
rather, also label the lot in question, uniquely, as “community property.” Whereas in Creed
and Patch, “[t]he missing ingredient is a declaration of covenants imposed before the first
lot was sold, or a subsequent agreement among all lot owners to impose a set of covenants
on the involved land,” here, it is undisputed that the declaration of covenants was recorded
before the lots were sold. Id, ¶ 15.

Patch declined to apply the doctrine of implied reciprocal servitudes because,
following Creed, there could be no inference of a general-plan development in the absence
of a declaration of covenants or owners’ agreement. Patch, 2009 VT 117, ¶ 20. In other
words, it rejected the theory that the existence of a general-plan development could itself
be implied, and because there was no general-plan development, it would not consider
whether a negative servitude could be proven by implication in Patch. “A servitude may be
implied in a particular deed if a ‘general plan’ exists, and generally speaking, ‘the doctrine is
applied when: (1) a common owner subdivides property into a number of lots for sale; (2)
the common owner has a general scheme of development for the property as a whole, in
which the use of the property will be restricted; (3) the vast majority of subdivided lots
contain restrictive covenants which reflect the general scheme; (4) the property against
which application of an implied covenant is sought is part of the general scheme of
development; and (5) the purchaser of the lot in question has notice, actual or constructive,
of the restriction.’ ” Khan v. Alpine Haven Prop. Owners’ Ass’n, Inc., 2016 VT 101, ¶ 30, 203
Vt. 251 (footnote omitted) (quoting Patch, 2009 VT 117, ¶ 19).

Whether there is a servitude on the use of the Community Property depends on the
language of the instruments in question and the intent at the time of execution. “When the
meaning of a declaration is ‘clear and unambiguous, ... the instrument must be given effect
according to its terms.’ ” Highridge Condo. Owners Assn. v. Killington/Pico Ski Resort Partners,
LLC, 2014 VT 120, ¶ 24, 198 Vt. 44 (quoting Creed, 2004 VT 34, ¶ 13 (quotation omitted)).
“The intention of the parties, not the language used, is the dominating factor, and the
circumstances existing at the time of the execution of the deed, the situation of the parties
and the subject matter are to be considered.” Welch v. Barrows, 125 Vt. 500, 504 (1966)
(citing Nelson v. Bacon, 113 Vt. 161, 169 (1943)); see Main St. Landing, LLC v. Lake St. Ass’n,
Inc., 2006 VT 13, ¶ 7, 179 Vt. 583 (“[T]he ‘master rule’ is that the intent of the parties
governs.”). “To ascertain the intention of the parties, it is also proper to consider the
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circumstances existing at the time the deed was made.” Okemo Mountain, Inc. v. Town of
Ludlow Zoning Bd. of Adjustment, 164 Vt. 447, 452 (1995) (citing Sheldon Slate Prods. v. Kurjiaka,
124 Vt. 261, 267 (1964)). “As a general rule,” the Supreme Court has held,

extrinsic evidence is not admissible to show the intent of the
parties to a deed unless the language of the deed is ambiguous.
We actually have two ambiguity rules. For both, the question of
whether ambiguity exists is one of law. See Isbrandtsen v. North
Branch Corp., 150 Vt. 575, 577, 556 A.2d 81, 83 (1988). First,
when looking at particular language in a deed, the court must
accept the plain meaning of the language and not look to
construction aids if the language is not ambiguous. See Simpson
Dev. Corp. v. Herrmann, 155 Vt. 332, 334–35, 583 A.2d 90, 92
(1990). Second, if the court finds some ambiguity in particular
language, it must examine the whole instrument, attempting to
determine the intent of the drafters from all of the language and
using relevant construction aids. See Isbrandtsen, 150 Vt. at 580–
81, 556 A.2d at 85 (agreement must be viewed in its entirety;
even if inartfully worded or clumsily arranged, writing is not
ambiguous if it fairly admits of one interpretation). If the court
then finds the writing is ambiguous, the proper interpretation
becomes a question of fact, to be determined on all relevant
evidence. See Breslauer v. Fayston Sch. Dist., 163 Vt. 416, 425, 659
A.2d 1129, 1135 (1995). If the court does not find the writing
ambiguous, it must declare the proper interpretation as a matter
of law.

We allow limited extrinsic evidence of “circumstances
surrounding the making of the agreement” in determining
whether the writing is ambiguous. See Isbrandtsen, 150 Vt. at 579,
556 A.2d at 84. This evidence is relevant, however, only when, in
combination with the writing, it supports an interpretation that is
different from that reached on the basis of the writing alone, and
both are reasonable. See id. It may not be used to vary the terms
of an unambiguous writing. See Tilley v. Green Mountain Power
Corp., 156 Vt. 91, 93–94, 587 A.2d 412, 414 (1991).

Kipp v. Est. of Chips, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999).

Plaintiffs’ motion recounts that the combination of the recorded Declaration and the
plans for the development show that Cricket Hill had a “general plan,” and the plan
included leaving the Community Property undeveloped so that it could be used by the
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residents of Cricket Hill. Their narrative includes accounts of residents’ use of the
Community Property over time, Deux Mondes’s lack of development of that lot for private
use, and ways in which residents have made use of the lot over the years. Even after Deux
Mondes lost ownership of the lot through a tax sale, later owners still did not develop the
lot for their private use. Defendants were also aware, before purchasing the Community
Property, that the lot was referenced as “community property” in previous deed
descriptions as well as the recorded development plans.

The recorded Covenants and plans demonstrate amply that Deux Mondes created
Cricket Hill as a general-plan development, and the Covenants were intended to bind the
owners of all lots in Cricket Hill. The plans label all lots with numbers except for uniquely
small lot, which is labeled as “community property.” Exh. B. The language fairly admits
the interpretation that the lot was intended to be used in some manner by the community.
Defendants argue that there is ambiguity, because if the Declaration and the designation of
the lot as “community property” in the recorded plans that the Declaration references are
ambiguous, then the rule of construction applies that “[r]estrictions will not be extended by
implication to include anything not clearly expressed, and doubts must be resolved in favor
of the free use of land.” Patch, 2009 VT 117, ¶ 20 n.5. That rule of construction only
applies, however, if the instrument is determined to be ambiguous, and “the fact that a
dispute has arisen as to proper interpretation does not automatically render the language
ambiguous.” Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 581 (1988). When viewed in light
of the whole Declaration, the designation of the lot as “community property” appears in
the context of the creation of a general plan for a community formed by the development
of residential properties laid out in a particular manner, of a particular minimum size, in
which a smaller lot was designated “community property” and therefore for community
use; and in light of the surrounding circumstances of the deeds of the numbered lots, they
were intended to benefit from the Covenants and plan that included a “community
property” for their use. Even the eventual deeds of the Community Property after the tax
sale include reference to the description of the lot as “community property.”

There is no reasonable second interpretation of Covenants and the referenced plans
in which the Community Property is not intended for community use or that the lot
designation as “community property” is meaningly and therefore it is intended to simply be
another lot to be developed by an individual owner. Therefore, there is no ambiguity that
the intention was for the lot to be used by Cricket Hill residents to some extent, and to the
extent that the lot’s owner (originally, Deux Mondes) could develop it, such development
would be restricted in such a manner that community use of the property could be retained.
Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 579 (1988) (“Ambiguity will be found where a
writing in and of itself supports a different interpretation from that which appears when it
is read in light of the surrounding circumstances, and both interpretations are reasonable.”).
The written instruments are silent, however, as to the scope of the residents’ use of the
Community Property. Plaintiffs contend that all development of the Community Property
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for private purposes is prohibited, yet fail to demonstrate with undisputed material facts
that the scope of the intended community use of the lot is so great that it excludes all
development for private use whatsoever. The scope of the other lot owners’ use of the
Community Property, and the corresponding restriction on the owner’s development of the
lot for private use, therefore remain questions of fact.

Plaintiffs’ motion succeeds in establishing that (1) Cricket Hill is a general-plan
development, (2) the residents of Cricket Hill have some right to use the Community
Property, and (3) the owners of the Community Property are correspondingly restricted
from using it in a manner that does not interfere the residents’ right to use the lot.
Plaintiffs will still have to prove the scope of the Cricket Hill lot owners’ right to use the
Community Property in order for the finder of fact to determine the extent of the
corresponding restriction on developing the Community Property. Making all reasonable
inferences in favor of the nonmoving party, the extrinsic evidence that Plaintiffs have
produced does not support the full extent of the relief they request, namely that the
Community Property is subject to a restrictive servitude that prohibits all development on
it for its owners’ private use. Depending on the finder of fact’s consideration of evidence
presented at trial, and consistent with the rule of construction that the scope of a restriction
should be resolved in favor of free use, the scope of community use of the lot may be so
minimal as to permit some or all of Defendants’ proposed development.

In accordance with the foregoing considerations, Plaintiffs’ motion is granted to a
limited extent: Cricket Hill is a general-plan development in which residents of the
numbered lots depicted in its recorded plans have some right to use the Community
Property, and the owners of the Community Property are correspondingly restricted from
developing the lot for their private use in a manner that interferes with the community use
of the lot. Plaintiffs’ motion is denied in part because the scope of the community’s right
to use the lot, and the corresponding restriction on developing it, remain in dispute.

Order

Defendants’ motion for summary judgment is denied. Plaintiffs’ motion for
summary judgment is granted in part, denied in part as described above.

Electronically signed on May 22, 2025 pursuant to V.R.E.F. 9(d)

__________________________
Alexander N. Burke
Superior Court Judge

Order Page 11 of 11
23-CV-02924 Mark Wilson et al v. Gegham Artsruni et al