Rick and Terri Wimer, Curtis and Cynthia Li, Harv Gloe, Harold Reimler and Harold Reimler Trustee of the Reimler Family Trust v. Jerry and Cheri Cook and Cook's Construction, LLC, a Wyoming Limited Liability Company ( 2016 )

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 29OCTOBER TERM, A.D. 2015
March 3, 2016
RICK and TERRI WIMER, CURTIS and
CYNTHIA LI, and HARV GLOE,
Appellants
(Plaintiffs),
and
HAROLD REIMLER, and HAROLD
REIMLER TRUSTEE of the REIMLER
FAMILY TRUST,
Appellants
(Third Party Defendants),
v.
S-15-0154
JERRY and CHERI COOK, and COOK'S
CONSTRUCTION, LLC, a Wyoming
Limited Liability Company,
Appellees
(Defendants/Third Party Plaintiffs).
JERRY and CHERI COOK, and COOK'S
CONSTRUCTION, LLC, a Wyoming
Limited Liability Company,
Appellants
(Defendants/Third Party Plaintiffs),
S-15-0155
v.
RICK and TERRI WIMER, CURTIS and
CYNTHIA LI, and HARV GLOE,
Appellees
(Plaintiffs),
and
HAROLD REIMLER, and HAROLD
REIMLER TRUSTEE of the REIMLER
FAMILY TRUST,
Appellees
(Third Party Defendants).
Appeal from the District Court of Natrona County
The Honorable Daniel L. Forgey, Judge
Representing Appellants in Case No. S-15-0154:
Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.
Representing Appellees in Case No. S-15-0154:
P. Craig Silva of Williams, Porter, Day, and Neville, P.C., Casper, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.
[¶1] Rick and Terri Wimer, Curtis and Cynthia Li, and Harv Gloe (hereinafter
collectively referred to as the Wimers) filed a complaint against their neighbors, Jerry and
Cheri Cook and Cook’s Construction, LLC (hereinafter collectively referred to as the
Cooks), seeking an injunction prohibiting the Cooks from placing multiple single-family
housing structures on a twenty-acre parcel of land owned by the Cooks because, in the
Wimers’ view, the conduct violated the neighborhood’s covenants. The Cooks
responded with a counterclaim and a third-party complaint against all their neighbors,
including Harold Reimler, individually and as trustee of the Reimler Family Trust,
seeking a declaration from the district court that the covenants had been abandoned.1
After a bench trial, the district court determined the covenants had not been abandoned
and the Cooks’ plan to develop the twenty-acre parcel did not violate the covenants.
Thereafter, the Wimers filed this appeal and the Cooks cross-appealed. We affirm in part
and reverse in part.
ISSUES
[¶2] The Wimers raised several issues on appeal, which can be distilled to the
following:
Whether the district court erred when it denied the Wimers injunctive relief after
determining that the Cooks’ plan did not violate the protective covenants.
The Cooks cross-appealed and raised the following issue:
Whether the trial court erred as a matter of law when it drew the legal conclusion
that the restrictive covenants have not been abandoned.
FACTS
[¶3] On June 7, 1978, Van R. and Kathy Jane Irvine recorded a “Declaration of
Covenants, Conditions, and Restrictions” with the Natrona County Clerk for an area that
will be referred to as the “Phillips Lane area” in Natrona County. All of the land
involved in this case is subject to these covenants. The purpose of the covenants was “to
insure the use and development of said property for exclusive residential and agricultural
purposes only, to prevent the impairment of the attractiveness of said property for such
purposes, and to maintain property values therein[.]” Although lengthy, it is important at
the outset to quote the following portions of the covenants:
1
In addition to Harold Reimler, the following individuals were named as third-party defendants in the
Cooks’ third-party complaint: Kay A. Page, Sid and Zari Ghaffari, Andrew and Michelle Jozwik, George
and Jennifer Marble, and Patrick and Debra Munsell. However, Harold Reimler, individually and as
trustee of the Reimler Family Trust, is the only third-party defendant that is participating in this appeal.
1
ARTICLE I
DEFINITIONS
1. Residential Use: All of the land designated in this
area shall be utilized for single family residential purposes
only, except that any and all agricultural operations of any
nature may be carried on on any of the land at any time
without restriction.
2. Owner: Shall mean and refer to the record owner,
whether one or more persons or entities, of a fee simple title
to any parcel which is part of the property, including contract
buyers, but excluding those having such interest merely as
security for the performance of an obligation.
3. Property: Shall mean and refer to that certain real
property described in exhibit “A” attached hereto.
ARTICLE II
GENERAL RESTRICTIONS ON ALL OF THE
PROPERTY
1. Zoning Regulations: No land within the area shall
be occupied, used by, or for, any structure or purpose which
is contrary to the zoning regulations of Natrona County,
Wyoming.
2. Uses: Each parcel within the area shall be utilized
for single family residential building and agricultural
activities of any type, all other uses shall be expressly
prohibited.
3. Prohibited Activities: Except that the dwelling on
any parcel in the area may be leased by the owner or owners
thereof for rental income purposes, no business, commercial,
or manufacturing enterprise, or any enterprise of any kind or
nature, whether or not conducted for a profit, shall be
operated, maintained or conducted on any parcel in the area
or on any improvement erected or placed therein, nor shall
any dwelling or any part thereof be used as a boarding or
rooming house, nor shall any mining or quarrying operations
or operations for drilling of any oil or gas well be conducted
or permitted in the area, nor shall any signs, billboards or
advertising devices, except as hereinafter provided, be
erected, placed or permitted to remain on any parcel in the
area.
....
2
5. Animals and Livestock: It shall be permissible for
the owners of any parcel, in addition to household pets, to
own and maintain on the parcel horses, cattle, sheep, chickens
and rabbits. No animal or animals shall be maintained in the
area even though permissible within this provision, if it is
determined that such animal or animals constitute a nuisance
to other owners in the area. It is expressly understood that all
dogs will be controlled and confined to the immediate
household yard area of each and every residence in the area.
No dogs shall be allowed to run loose and in any way become
a nuisance or danger to the other residents of the area or the
surrounding area.
6. No Resubdivisions: No parcel less than twenty (20)
acres in size shall be sold or conveyed; however, conveyances
or dedication of easements for utilities or private lanes or
roads may be made. This provision shall be effective through
May 1, 1983. After this date, additional subdivision into
parcels less than twenty (20) acres in size may be allowed if
provided for under Natrona County zoning regulations.
7. Service Yards and Trash: Clothes lines, service
equipment, trash, woodpiles, or storage areas shall be
screened by planting or fencing to conceal them from view of
neighboring parcels, drives and roads. All refuse and trash
shall be removed from all parcels and shall not be allowed to
accumulate.
8. Fences: All parcels shall be fenced with at least
five (5) barbed wires or sheep-tight woven wire and two (2)
barbed wires and shall be maintained according to good
ranching and management practices. In the event that the
fences are not properly maintained, the adjoining property
owner shall have the right to perform the necessary repairs
and maintenance and share the cost of any repairs and
maintenance with the owner.
ARTICLE III
RESTRICTIONS ON RESIDENTIAL TRACTS
1. Number and Location of Buildings: No buildings
or structures shall be placed, erected, altered, or permitted to
remain on any residential tract other than:
(1) one detached single family dwelling;
(2) an attached or detached garage; and
(3) a service type barn, stable or shed.
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2. Mobile Homes: Mobile homes shall be deemed to
be within the definition of a single family dwelling (assuming
the square footage requirements of paragraph 4, below, are
met) if the mobile home is placed on a solid and sightly
concrete or concrete block foundation and all portions of the
running gear are completely removed. Modular or
component houses are also acceptable provided they are
placed on a similar foundation.
....
6. Used or Temporary Structures: No temporary
house, mobile home, basement, trailer or other structure of a
non-permanent nature shall be allowed on any parcel as a
place of residence or habitation either permanently or
temporarily, except during construction periods, and no new
dwelling shall be occupied in any manner prior to its
completion. Construction of any new residential structures or
outbuildings shall be completed in no more than one (1) year
from the date construction commences.
....
ARTICLE V
GENERAL PROVISIONS
1. Severability: Should any part or parts of these
covenants be declared invalid or unenforceable by any court
of competent jurisdiction, such decision shall not affect the
validity of the remaining covenants.
On September 28, 1978, the Irvines recorded an amendment to the covenants in order to
allow one parcel of land to be divided into two parcels of 19.88 acres and subsequently
conveyed.
[¶4] All of the parties to this litigation moved into the Phillips Lane area after the
covenants had been recorded. Mr. Gloe moved into the area in 1981, followed by Mr.
Reimler and the Lis in 1994, the Cooks in 2005, and Mr. and Mrs. Wimer in 2006. At
some point in time, relations between the Cooks and the other neighbors soured, resulting
in several accusations, disagreements and conflicts involving law enforcement and court
intervention. The facts behind those incidents are not relevant and will not be discussed.
Suffice it to say that the Cooks and their neighbors have a rancorous relationship.
[¶5] In 2011, the Cooks bought a twenty-acre parcel of land on Phillips Lane across the
road from the approximately 150-acre parcel where they live and farm. That same year
and through 2012, the Cooks developed the twenty-acre parcel by building a road, having
the property surveyed into ten two-acre lots, and having the county assign addresses to
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each of the ten lots. The Cooks also had electrical power installed on the lots and septic
systems installed on six of the ten lots. Additionally, each of the lots has a water tap that
connects to the Poison Spider Water District main line. Importantly, per county zoning
regulations, the Cooks are required to maintain ownership of the entire twenty acres—
they cannot sell any of the individual two-acre lots.
[¶6] The Cooks placed a house on one lot for Mrs. Cook’s mother to live in. The
Cooks planned to place single-family housing structures, including modular homes,
mobile homes, and RVs, on the remaining lots and rent the lots and homes or simply rent
the lots for $500 per month for people to park and live in their own RV or fifth-wheel
trailer. The renters would be allowed to keep livestock on the lots. The Cooks advertised
the lots in the newspaper and on the internet and have had two different renters that
stayed in RVs for short periods of time.
[¶7] On November 2, 2012, the Wimers filed a Complaint for an Injunction and
Damages against the Cooks, arguing that the Cooks’ plan for the property violates the
covenants. The Cooks then filed a Counterclaim and Third-Party Complaint against all
of the landowners in the area, seeking a declaratory judgment that the covenants had been
abandoned due to various covenant violations.
[¶8] After a bench trial, the district court determined that the Cooks had failed to
demonstrate that the covenants had been abandoned by the landowners. The district court
also concluded that the Cooks’ development of the twenty-acre parcel does not violate
the covenants. It stated that Article II, Paragraph 6 of the covenants “specifically allows
the Cooks to divide the property without selling or conveying it and while maintaining
singular ownership of it in the manner that the Cooks propose.” After finding the
division of the property appropriate, the court pointed out that Article II, Paragraphs 1
and 2 allow for the placement of a single-family dwelling on each of the ten lots, and
Article II, Paragraph 3 allows the Cooks to lease the dwellings for rental income.
However, the court concluded that the Cooks’ plan to rent lots for people to live in RVs
or fifth-wheel trailers does violate Article III, Paragraphs 2 and 6.
STANDARD OF REVIEW
[¶9] When reviewing a bench trial, this Court reviews the trial court’s findings of fact
for clear error and its conclusions of law de novo. Moore v. Wolititch, 2015 WY 11, ¶ 9,
341 P.3d 421, 423 (Wyo. 2015). Additionally,
[t]he factual findings of a judge are not entitled to the limited
review afforded a jury verdict. While the findings are
presumptively correct, the appellate court may examine all of
the properly admissible evidence in the record. Due regard is
given to the opportunity of the trial judge to assess the
5
credibility of the witnesses, and our review does not entail
reweighing disputed evidence. Findings of fact will not be set
aside unless they are clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
Id. (quoting Miner v. Jesse & Grace, LLC, 2014 WY 17, ¶ 17, 317 P.3d 1124, 1131
(Wyo. 2014)). “‘We assume that the evidence of the prevailing party below is true and
give that party every reasonable inference that can fairly and reasonably be drawn from
it.’” Id., ¶ 10, 341 P.3d at 423 (quoting Miner, ¶ 17, 317 P.3d at 1131).
DISCUSSION
Abandonment
[¶10] The district court determined that while there were some “infrequent, minor, and
unoffensive” violations of the covenants, those violations did not result in a radical and
permanent change in the agricultural and single-family residential character of the area.
Consequently, the district court ruled that the covenants had not been abandoned. After
a thorough review of the trial evidence, we find no clear error in reaching that conclusion.
[¶11] The question of “whether a protective covenant has been abandoned as a result of
acquiescence in violations of the covenant is [one] of fact that depends on the particular
circumstances of each case.” Moore, ¶ 12, 341 P.3d at 423. For abandonment to exist,
the violations must be
so great, or so fundamental or radical as to neutralize the
benefits of the restriction to the point of defeating the purpose
of the covenant. In other words, the violations must be so
substantial as to support a finding that the usefulness of the
covenant has been destroyed, or that the covenant has become
valueless and onerous to the property owners.
Hammons v. Table Mountain Ranches Owners Ass’n, 2003 WY 85, ¶ 14, 72 P.3d 1153,
1156 (Wyo. 2003) (quoting Keller v. Branton, 667 P.2d 650, 654 (Wyo. 1983)). In
addition to being radical, the changes must also be permanent in nature, and the burden of
proving such is on the party asserting the covenant’s abandonment. Keller, 667 P.2d at
654.
[¶12] To support their claim that the covenants have been abandoned, the Cooks
presented evidence of the following violations:
6
 Mr. Gloe has antlers on his property that have been there for years. Further, there
are several vehicles that have not been registered for some time. Mr. Gloe also
has a tire on his property that he uses to cover his phone line. The Cooks allege
this conduct violates Article II, Paragraph 7 of the covenants, which prohibits the
accumulation of trash and refuse on the property. Mr. Gloe’s fence has only one
strand of barb wire, which is inconsistent with Article II, Paragraph 8 of the
covenants, which requires all fences be either five strands of barbed wire or sheep
tight woven wire with two barbed wires.
 Mr. and Mrs. Lis’ livestock and dogs have been out of their immediate control
when the animals wandered off the Li property. Mrs. Li has observed the
neighbors’ livestock and dogs running at large in the neighborhood. The Cooks
contend this conduct violates Article II, Paragraph 5, which states that animals
shall not be a nuisance to other owners in the area and dogs will be confined to the
immediate household yard area of each residence. Further, in addition to their
home, the Lis have a mobile home on their property, which the Cooks claim
violates Article III, Paragraph 1, which limits a residential tract to one single-
family dwelling. The Lis also have more than one barn, stable, or shed, in
violation of Article III, Paragraph 1.
 Mr. Reimler owns a business and he stores his tractors, seeders, and trailers for
that business at his residence. He also lists his home phone number on his
business cards and he receives faxes for the business at his home. The Cooks
argue this violates Article II, Paragraph 3, which prohibits businesses from being
operated in the area. Mr. Reimler has also had zoning violations, in violation of
Article II, Paragraph 1, and has junk on his property and too many barns, stables,
and sheds.
 Mr. Munsell owns five acres in the area, which violates the county zoning
ordinances that requires parcels of at least 35 acres and, thereby, violates Article
II, Paragraph 1 of the covenants. He has also allowed people to live in a fifth-
wheel trailer on his property, in violation of Article III, Paragraph 6, which
prohibits individuals from living in a structure of a non-permanent nature. Mr.
Munsell has also operated numerous businesses from his home.
 Mr. Ghaffari operates a rental business on his property, has too many
outbuildings, has allowed his animals to wander off his property, and has improper
fencing.
 Mr. Jozwik has removed topsoil from his property in violation of Article II,
Paragraph 3, which prohibits mining or quarrying operations. He also has too
7
many outbuildings and admitted to having junk on his property and that his dog
has not always been confined to the immediate household area.
 Ms. Page has junk, two homes, and improper fencing on her parcel.
 Mr. and Mrs. Wimers’ parcel is only 27 acres, which is in violation of the zoning
ordinances and, thereby, in violation of the covenants. The Wimers’ horses and
dogs have gotten loose in the neighborhood and they admitted they have had
garbage and junk on their property. They have three small sheds in addition to
their house and garage, and they have had people stay in a travel trailer on the
parcel. Mrs. Wimer owns a business and the business address is her home
address, she has received business calls at home, and prints invoices and flyers for
the business on her home computer and printer. She has also operated a nonprofit
organization, the address of which is the Wimers’ home address.
 Mr. Marble has had junk on his parcel, his dogs have gotten loose, and he had a
limited veterinary practice at his home.
[¶13] Based upon these various covenant infractions, the Cooks believe the covenants
have been abandoned in their entirety. However, the Cooks have failed to acknowledge
or appreciate the fact that the covenants also contain a severability provision in Article V,
Paragraph 1:
1. Severability: Should any part or parts of these
covenants be declared invalid or unenforceable by any
court of competent jurisdiction, such decision shall
not affect the validity of the remaining covenants.
Because of the severability clause, it does not matter whether the covenants regarding
loose horses and dogs, junk, and fencing were abandoned. Even if those covenants have
been abandoned, the other covenants remain valid. Instead, the only relevant conduct is
that which arguably shows abandonment of the covenants being enforced against the
Cooks. See Mountain Park Homeowners Ass’n, Inc. v. Tydings, 883 P.2d 1383, 1387
(Wash. 1994). The district court recognized the severability clause, and properly relied
upon it to restrict evidence that could be considered to support the abandonment claim.
[¶14] The covenants the Wimers seek to enforce are Article III, Paragraph 1, which
restricts each residential tract to one detached single-family dwelling, and Article II,
Paragraph 6, which prohibits structures of a non-permanent nature being used as housing
(i.e. RVs) on the parcels. Therefore, those are the covenants the Cooks must prove have
been abandoned in order to implement their property development plan. The evidence at
trial showed that Ms. Page has two homes on her parcel, and in addition to their home,
Mr. and Mrs. Li have a mobile home on their parcel. Ms. Page testified that nobody lived
8
in the second home on her parcel; instead, she used it as a storage facility and a place for
her dogs. Mrs. Li testified that the mobile home is used as a place for an employee to
stay while he or she is working on the ranch. The evidence also showed that, until now,
none of the landowners in the area had ever tried to enforce the covenants. With respect
to RVs, the Wimers have allowed relatives to visit and stay in a fifth-wheel trailer on
their parcel for several weeks at a time. Mr. and Mrs. Highum both testified that they had
allowed an individual to stay on their parcel in an RV trailer for approximately three
months.2
[¶15] While these few instances appear to be violations of the covenants, the Cooks have
not demonstrated that these violations radically and permanently changed the overall
neighborhood as required to prove abandonment. In fact, the Cooks have not argued that
the violations have changed the overall neighborhood at all. Their argument, instead, is
that multiple other covenants have been violated over time. They also assert that six of
the landowners want the covenants abandoned, and claim that the covenants do not serve
any practical purpose. However, those points are not applicable in determining whether a
covenant has been abandoned.
[¶16] When using the proper standard, we find the evidence supports the district court’s
conclusion that these violations did not radically and permanently change the overall
neighborhood. The covenants were created to “insure the use and development of said
property for exclusive residential and agricultural purposes only[.]” Although Ms. Page
had two homes on her property, there is no evidence that anyone else ever lived on the
property or that she sought to have another family move into the second residence. While
the mobile home on the Lis’ parcel is used to house an additional person, that person is
living there only because he or she is employed to assist in the agricultural activities on
the property. The fact that the Wimers and the Highums have allowed people to stay in
RVs on their parcels does not show a change that is permanent in nature. The Wimers’
guests have stayed on two occasions and the visits were temporary in nature. There is no
evidence the Highums intend to permanently allow people to live in an RV on their
property.
[¶17] The Cooks recognize that this Court previously has been unwilling to find that
covenants have been abandoned. See Moore, 2015 WY 11, 341 P.3d 421; Steiger v.
Happy Valley Homeowners Ass’n, 2010 WY 158, 245 P.3d 269 (Wyo. 2010); Hammons,
2003 WY 85, 72 P.3d 1153. While the Cooks argue that this case is different from all of
the other cases, they have not explained how the facts of this case vary from the facts of
past decisions.
2
The Highums are property owners in the Phillips Lane area, but they bought their property from the Jozwiks after
the Cooks had filed the Third-Party Complaint against all of the landowners. Therefore, the Highums are not listed
as a defendant in the original Third-Party Complaint.
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[¶18] For example, in Moore, 2015 WY 11, 341 P.3d 421, Moore violated her
neighborhood’s covenants by operating a daycare in her home. Id., ¶ 11, 341 P.3d at 423.
She argued that various other covenant violations by other homeowners in the
neighborhood amounted to an abandonment of the covenants. Id. In support of her
argument, she pointed out that the neighbors had numerous trailers, sheds, boats,
unregistered vehicles, and other items present on the properties that violated the
covenants. Id., ¶ 14, 341 P.3d at 424. She also alleged many neighbors engaged in
business activities on the properties, such as babysitting, storing company equipment,
occasionally meeting with crew members before going to a job site, and hosting business
related presentations. Id. We determined that Moore failed to show that any of these
activities resulted in a radical and permanent change to the neighborhood. Id., ¶ 24, 341
P.3d at 426.
[¶19] The situation here is no different. There certainly have been violations of the
covenants and it appears none of the neighbors have complained. But, these violations
mostly were unrelated to the covenants which the Wimers seek to enforce. The few
violations which did relate to the prohibitions of more than a single-family dwelling on a
tract and of temporary structures simply did not change the nature of the area in a radical
and permanent way. The district court’s findings that any covenant violations did not
change the nature of the area were not clearly erroneous. Therefore, the district court
properly concluded the covenants were not abandoned.
Covenant Violations
[¶20] The district court ruled that the Cooks’ development of the twenty-acre parcel into
ten rental lots did not violate the covenants. The Wimers challenge that determination.
The Wimers argue that the Cooks’ plan to place multiple single-family dwellings on the
twenty-acre parcel violates, among other provisions, Article III, Paragraph 1 of the
covenants, which limits buildings and structures on any parcel to one detached single-
family dwelling; an attached or detached garage; and a service type barn, stable, or shed.
They claim that the twenty-acre parcel remains a single parcel for purposes of the
covenants, even though the Cooks have attempted to “subdivide” it into ten smaller
“parcels.” The Cooks, on the other hand, assert that Article II, Paragraph 6 of the
covenants permits them to make the twenty-acre parcel into smaller parcels by
“subdividing” it so long as they retain ownership of those smaller parcels and do not sell
them. The key concern in this discussion, then, is the meaning of the terms “parcel” and
“subdivision” as used in the covenants.
[¶21] The “[i]nterpretation of covenants imposing restrictions or conditions on the use of
land is a matter of law for the courts.” Omohundro v. Sullivan, 2009 WY 38, ¶ 8, 202
P.3d 1077, 1081 (Wyo. 2009). Because it is a question of law, we review the covenants
de novo, without giving any deference to the district court’s determinations at the
10
conclusion of the trial. Stevens v. Elk Run Homeowners’ Ass’n, Inc., 2004 WY 63, ¶ 12,
90 P.3d 1162, 1166 (Wyo. 2004).
[¶22] Covenants are contractual in nature and, therefore, we interpret them according to
contract law principles. Omohundro, ¶ 9, 202 P.3d at 1081. “A court’s goal is to
determine and effectuate the intention of the parties, especially the grantor or declarant.”
Id. To do so, we examine all of the covenants, and not just one clause or paragraph, and
give the words their plain and ordinary meaning. Id. If the language in the covenants is
clear and unambiguous, we look only to the four corners of the document to determine
the parties’ intent. Stevens, ¶ 13, 90 P.3d at 1166. “A disagreement between the parties
as to the meaning of covenants does not give rise to an ambiguity.” Omohundro, ¶ 9, 202
P.3d at 1081.
[¶23] The district court determined that the covenants allow the Cooks to “subdivide”
the twenty-acre parcel into ten different two-acre lots, place a single-family dwelling on
each of the ten lots, and maintain ownership of the entire parcel and the dwellings. In
reaching this conclusion, the court explained:
The [c]ourt has reviewed the terms or language used in the
written covenant documents and finds that there is no reason
to believe that the term “parcel” is intended to mean anything
other than its common definition of a tract of land, or that the
term “subdivision” is intended to mean anything other than its
common definition of a division of a thing into two smaller
parts, or that the term “tract” is intended to mean anything
other than its common definition of a specified parcel of land.
Further, the court determined that “Article II, [Paragraph] 6, of the covenants specifically
allows the Cooks to divide the property without selling or conveying it and while
maintaining singular ownership of it in the manner that the Cooks propose.”
[¶24] We disagree. While the term “subdivision” is not a defined term in Article I of the
covenants, Article II, Paragraph 6 of the covenants guides us in determining what the
term means. That Paragraph states:
6. No Resubdivisions: No parcel less than twenty (20)
acres in size shall be sold or conveyed; however, conveyances
or dedication of easements for utilities or private lanes or
roads may be made. This provision shall be effective through
May 1, 1983. After this date, additional subdivision into
parcels less than twenty (20) acres in size may be allowed if
provided for under Natrona County zoning regulations.
11
In the beginning of that Paragraph, the grantors state that no parcel less than twenty acres
shall be sold or conveyed. It then includes a date at which time that provision expires—
May 1, 1983—after which, subdivision into parcels less than twenty acres may be
allowed. The Cooks argue, and the district court concluded, that the term subdivision
does not mean to sell or convey; instead, it simply means to break up into smaller parts.
However, to accept that conclusion would require us to completely disregard that the acts
prohibited before May 1, 1983, were selling and conveying. Shaffer v. Winhealth
Partners, 2011 WY 131, ¶ 17, 261 P.3d 708, 713 (Wyo. 2011) (rules of contract
interpretation require us to avoid construing a contract in a way as to render one of its
provisions meaningless). If the term “subdivision” allows a parcel owner to maintain
ownership over the entire parcel while “dividing it into smaller parts,” there would be no
need to declare that it was acceptable to do so after May 1, 1983. The term “subdivision”
in these covenants anticipates the sale or transfer of smaller parts of land, not just
surveying those smaller parts or getting separate mail addresses for them. Without such a
sale or transfer, a single parcel remains a single parcel, whether the owner has had
separate lots surveyed or not.
[¶25] The conclusion that “subdivision” requires an act of selling or conveying a portion
of the property is further supported by the Irvines’ amendment to the covenants they
executed a little more than three months after recording the original covenants. In the
amendment, the Irvines sought to exclude one parcel of land from the twenty-acre
requirement found in Article II, Paragraph 6. The relevant part of the amendment states:
No parcel less than twenty (20) acres in size shall be sold or
conveyed; however conveyances or dedication of easements
for utilities or private lanes or roads may be made. With
respect to Parcel #5 . . . said parcel may be subdivided into
two (2) parcels of approximately equal size, each parcel
conveyed to be not less than 19.88 acres in size. This
provision shall be effective through May 1, 1983. After this
date, additional subdivision into parcels less than twenty (20)
acres in size may be allowed.
(Emphasis added.) The amendment uses the word “subdivided” immediately before
discussing conveyance, thus signifying the grantors intended that a “subdivision” was the
breaking up of land into smaller pieces for sale or conveyance. Therefore, the Cooks’
twenty-acre parcel has not been subdivided and remains one parcel and residential tract
for the purposes of the covenants.
[¶26] With that being the case, there can be little dispute that the Cooks are limited to
one single-family dwelling on the twenty-acre parcel. The Cooks’ plan to put ten single-
family dwellings on the parcel clearly violates Article III, Paragraph 1. We recognize
that the Cooks’ plan has been blessed by the county zoning authorities; however, that
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approval does not override the fact that the plan violates the covenants. As we have
previously stated: “[I]t is well settled that zoning ordinances cannot override, annul,
abrogate, or relieve land from building restrictions or covenants placed upon them.”
Anderson v. Bommer, 926 P.2d 959, 963 (Wyo. 1996) (citing Fox v. Miner, 467 P.2d 595,
597 (Wyo. 1970)). Because the covenants prohibit multiple single-family dwellings on a
parcel, we reverse the district court’s conclusion that the Cooks’ plan does not violate the
covenants.3
CONCLUSION
[¶27] Evidence in the record supports the district court’s finding that although the parties
had violated some covenants, those violations did not change the nature of the area in a
radical and permanent way. The district court’s finding was not clearly erroneous. The
district court then properly concluded that the Cooks failed to demonstrate the
appropriate legal basis for abandonment of covenants. Therefore, we affirm the district
court’s order that the covenants have not been abandoned. However, we find that the
Cooks’ plan to put multiple single-family dwellings on their twenty-acre parcel violates
the covenants. That parcel remains a single parcel for purposes of the covenants, and can
have only one single-family dwelling. Therefore, we reverse the district court’s order in
that respect.
3
The Wimers also argue that the Cooks’ plan violates Article II, Paragraph 3, which prohibits business or
commercial enterprise on the parcels, and that the plan violates county zoning regulations. The Cooks
argue that this Court should not consider the argument about business and commercial enterprises because
it was not raised in the district court and the district court did not discuss it in its order. Because we have
determined that the Cooks’ plan otherwise violates the covenants, we decline to consider whether the plan
violates additional covenants or a county zoning ordinance.
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