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City Attorney Memo/Issuance of Building PermitsTO: Charlie FROM: Rich SUBJECT: Buffalo Commons -Issuance of Building Permits DATE: November 15, 2002 Charlie: I reviewed the Declarations and the underlying Development Agreement. I also read the three cases you provided which discuss enforcement of restrictive covenants. It is my conclusion that the City would be in violation of its obligations under the May 17, 1995 Development Agreement, if it issued a Building Permit without design approval by the Architectural Committee. Ordinance No. 1226, dated June 5, 1996, approved the Buffalo Commons PUD, subject to various Declarations and Covenants which pertain to the improvements anticipated for the development area. Single -Family dwellings require approval of the Architectural Committee as a prerequisite for issuance of a building permit. See, Article II, Sec.3 of Exhibit "D," Declarations for Single - Family dwellings and §§6.01 (I) and 4.01 , Development Agreement. I find no language in the documents which would confer authority on the City to override the decision of the ARC. While the City has authority to enforce Covenants, this is discretionary. It is my recommendation that the City NOT exercise this authority, leaving disputes to be resolved between the Homeowner's Association and Owner as the real parties in interest. Rich. Buffalo Commons 1 JARRETT v. VALLEY PARK, INC. Decided July 25, 1996. Justice GRAY Montana Supreme Court 277 Mont. 333 (1996) No. 95-417. 922 P.2d 485 MAURICE JARRETT, HARRY S. WALLS, JUDITH S. KENNEDY, KEN KIVLIN, JOAN BELL, ELIZABETH M. BROGAN, WILLIAM BROOKS, JAKE CROUNSE, ANNETTE DUNSETH, HENRY AND MARY ENDLER, EDGAR H. GREENE, THOMAS AND ANN JOCHUM, KENNETH AND MYRNA KAUTZ, ELWOOD T. KENNEDY, EDWARD LENAHAN, WILLIAM McCOSTLIN, JOE MULLINS, JERRY AND ALPHA MYERS, VINCE AND OLGA ORME, CARRI , PASEWARK, CARL AND BETTY PENLY, JOHN AND JUNE ROACH, DELPHIN AND ROSARIO SANTOS, DOUG STEIN, EUNICE AND BETTY TAYLOR, and KEVIN ROBERTS, Plaintiffs and Respondents, u VALLEY PARK, INC. and ST. MARIE VILLAGE ASSOCIATION, INC., Defendants and Appellants. No. 95-417. Submitted on Briefs February 29, 1996. Decided July 25, 1996. 53 St.Rep. 671. 277 Mont. 333. 922 P.2d 485 .[277 Mont. 333, 334] Purposefully Blank [277 Mont. 333, 335] Appeal from the District Court of Valley County. Seventeenth Judicial District. Honorable John C. McKeon, Judge. See C.J.S. Deeds Sec. 163.[277 Mont. 333, 336] Reversed and remanded with instructions. JUSTICE LEAPHART dissenting, joined by CHIEF JUSTICE TURNAGE and JUSTICE HUNT. For Appellants: J. David Penwell, Attorney at Law, Bozeman. For Respondents: Kathleen H. Richardson; Young, Brown & Richardson, Havre. JUSTICE GRAY delivered the Opinion of the Court. Valley Park, Inc. and St. Marie Village Association, Inc. appeal from the judgment entered on the order of the Seventeenth Judicial District Court, Valley County, granting the plaintiffs' motion for summary judgment and permanently enjoining enforcement of the restrictive covenant at issue. We reverse and remand with instructions. We restate the issues on appeal as follows: 1. Did the District Court err in granting the plaintiffs' motion for summary judgment based on its conclusion that the restrictive covenant at issue is void and unenforceable? 2. Are Valley Park, Inc. and St. Marie Village Association, Inc. entitled to summary judgment? 3. Did the District Court abuse its discretion in permanently enjoining enforcement of the restrictive covenant at issue? Valley Park, Inc. (Valley Park) is the developer of a retirement community (the village of St. Marie) located in Valley County, Montana, and the original owner of all of the property comprising the village of St. Marie. In September of 1988, it subjected the village of St. Marie to Montana's Unit Ownership Act by filing the statutorily -required declaration. See Sec. 70-23-103, MCA. Pursuant to the Act, each unit owner must comply with the covenants governing the property. See Sec. 70-23-506, MCA. By the time this action commenced, Valley Park had sold 208 lots and condominium units to other [277 Mont. 333, 337] individuals and entities and still owned the remaining unsold property and 464 condominium units. On August 12, 1992, Valley Park executed the "First Amended Protective Covenants of the Village of St. Marie" (Protective Covenants). By their express terms, the Protective Covenants run with the land and are binding on Valley Park and its grantees, successors and assigns. The stated purpose of the Protective Covenants is "maintaining a uniform and stable value, character, architectural design, use and development of the property." The Protective Covenants are divided into eleven sections which cover subjects ranging from the use of the property to the procedure for amending the Protective Covenants. Section II establishes an architectural committee and contains numerous restrictions on alterations and improvements by lot and unit owners; under many of the restrictions, owners must obtain approval from the architectural committee prior to undertaking alterations or improvements. Section III provides for the establishment of the St. Marie Village Association, the purpose of which is to carry out the "intent, purpose and function of [the Protective Covenants]." On August 1, 1994, Maurice Jarrett applied to the architectural committee for permission to install an eighteen -inch television satellite receiving dish on the exterior wall of his condominium unit. The architectural committee denied his request based on Section II(Q) of the Protective Covenants (Covenant II(Q)) which prohibits the installation of "television satellite receiving dishes" within the village of St. Marie except by Valley Park or its designate. Approximately three weeks later, he applied to install a television antenna and the architectural committee approved his request. In November of 1994, Maurice Jarrett and thirty-four other owners of either lots or condominium units (collectively, Jarrett) filed a complaint against Valley Park and the St. Marie Village Association (collectively, VPI). Jarrett requested the District Court to declare Covenant II(Q) void and unenforceable and permanently enjoin VPI from enforcing it. In response, VPI denied that the covenant was void and unenforceable. Both parties conducted discovery. In May of 1995, both Jarrett and VPI moved for summary judgment. The District Court granted Jarrett's motion, declaring Covenant II(Q) void and unenforceable and ordering that VPI be permanently enjoined from enforcing it. Thereafter, Jarrett filed a motion to amend, pursuant to Rule 59(g), M.R.Civ.P., to include an award of [277 Mont. 333, 338] attorney's fees and the District Court awarded Jarrett $5,000 in attorney's fees. VPI appeals. 1. Did the District Court err in granting Jarrett's motion for summary judgment based on its conclusion that Covenant II(Q) is void and unenforceable? Summary judgment is proper when no genuine issues of material fact exist and the moving parry is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a district court's grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by that court. In re Estate of Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532 (citation omitted). Ordinarily, such a review requires that we first determine whether the moving party met its burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. See Estate of Lien, 892 P.2d at 532. In this case, however, the parties agree on the material facts relating to the legal issue of whether Covenant II(Q), which prohibits the installation of television satellite receiving dishes in the village of St. Marie except by VPI or its designate, is enforceable. Through their cross motions for summary judgment, each parry asserted entitlement to judgment as a matter of law. The District Court granted Jarrett's motion, concluding that Covenant II(Q) is ambiguous, lacking quantifiable and objective standards of review by the architectural committee and insufficiently connected to a general plan or scheme. We address in turn the District Court's conclusions. a. Ambiguity We interpret restrictive covenants by applying the rules of construction applicable to contracts. Gosnay v. Big Sky Owners Ass'n (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250 (citation omitted). The language of the covenant is to be understood in its plain and ordinary sense. Hillcrest Homeowners Ass'n v. Wiley (1989), 239 Mont. 54, 56, 778 P.2d 421, 423; Sec. 28-3-501, MCA. "[W]here the words [used in restrictive covenants] are plain, unambiguous, direct and certain and admit of but one meaning, then it is the duty of this Court to declare what the terms of the covenants contain ...." Higdem v. Whitham (1975), 167 Mont. 201, 208, 536 P.2d 1185, 1189. Covenant II(Q) states: No television satellite receiving dishes shall be placed on any portion of the property except by [VPI] or its designate. Radio and [277 Mont. 333, 339] television antennas and aerials maybe placed on the property as approved by the architectural committee. The first sentence of the covenant, which is at issue here, absolutely prohibits installation of television satellite receiving dishes except by VPI or its designate. The second sentence authorizes the placement of radio and television antennas in the event the architectural committee approves such placement. In interpreting Covenant II(Q), the term "television satellite receiving dish" must be understood in its ordinary and popular sense. See Hillcrest, 778 P.2d at 423. Here, the parties do not dispute that the eighteen -inch dish Jarrett wanted to install is, in fact, a "television satellite receiving dish." Thus, by the plain meaning of the language used, Covenant II(Q) prohibits installation of satellite dishes except by VPI or its designate. Nor does Jarrett contend that the term "television satellite receiving dish" is susceptible to two definitions or understandings. Rather, Jarrett argues that the term "television satellite receiving dish" is ambiguous under the facts of this case due to advancing technology. In this regard, Jarrett states that "television satellite receiving dishes" were commonly understood to be large, metal contraptions installed on the ground ... [which were] arguably unsightly. The new eighteen inch dishes can be affixed to the exterior of buildings in the same way that radio and television antennas and aerials are, and are no larger than other antennas and aerials. Notwithstanding the myriad values and impacts of "advancing technology," technology does not --in and of itself --render ambiguous language which is otherwise direct and clear. Nothing in the language used in Covenant II(Q) relates to the size of the dish. Moreover, nothing in Covenant II(Q) qualifies the prohibition based on the means or manner by which the television satellite receiving dishes are affixed to buildings. We conclude that Covenant II(Q) is unambiguous and, according to the plain meaning of the language used, prohibits the installation of television satellite receiving dishes --regardless of size or manner of installation --except by VPI or its designate. Jarrett's final argument relating to the term "television satellite receiving dish" used in Covenant II(Q) is that the District Court properly relied on Higdem in determining that applying that language to the eighteen -inch dishes would result in a prohibited exten-[277 Mont. 333, 340] sion of the covenant to cover a "question later developing." We disagree. In Higdem, the defendants commenced construction of a garage on their property and the plaintiffs sued based on restrictive covenants governing use of the property in the subdivision. Higdem, 536 P.2d at 1187. The restrictive covenants at issue provided, in relevant part, that purchasers of lots in the subdivision were prohibited from erect[ing] any building other than a single detached dwelling house, either with or without a garage or other like and necessary outbuilding ... [and from using] any building to be erected upon said lot of land ... for any purpose other than those incidental to the use of a private dwelling house only; this provision being intended to prohibit the use of any housing for ... any commercial purpose .... Higdem, 536 P.2d at 1187. The defendants testified that they had abandoned any intention of using the garage for "odd jobs" due to opposition from neighbors, that the garage that came with their house was inadequate based on the number of vehicles their family owned and that the new garage was needed as additional storage space for vehicles, tools, lawn equipment and firewood. Higdem, 536 P.2d at 1187. Without referencing a specific covenant, the district court concluded that "the additional building, its size and the purpose intended are in violation of the restrictive covenants." Higdem, 536 P.2d at 1188. On appeal, we set forth the threshold rules for interpreting restrictive covenants. Where the words are plain, unambiguous, direct and certain and admit of but one meaning, it is our duty to declare what the terms of the covenants contain and not to insert a limitation not contained therein. Higdem, 536 P.2d at 1189. Moreover, restrictive covenants must be strictly construed and should not be aided or extended by implication or enlarged by construction. Higdem, 536 P.2d at 1189-90. We noted that the covenant at issue made no reference to the size of garages permitted and, on that basis, rejected the plaintiffs' efforts to support the size restriction the district court read into the covenants. Accordingly, we concluded that the district court should not have broadly interpreted and imposed these restrictive covenants in terms of what the parties would have desired had they initially been confronted with questions later developing. Higdem, 536 P.2d at 1190. While our use of the term "broadly interpreted" --in a situation where the district court's interpretation [277 Mont. 333, 341] rendered the covenant more restrictive than its plain and unambiguous language could support --is not absolutely clear, our meaning was that the district court could not "broaden" the covenant by adding a limitation not contained therein. Thus, in Higdem, the district court erred by imposing the restrictive covenants beyond their terms, in contravention of the rules of construction applicable to restrictive covenants, in order to encompass what the neighboring landowners might have desired "had they initially been confronted with questions later developing." Here, while the District Court determined that the term "television satellite receiving dishes" was not clearly defined, we have concluded above that the language is clear and unambiguous. Based on its erroneous determination of ambiguity, the District Court then apparently relied on Higdem in further determining that inclusion of the eighteen -inch dishes within Covenant II(Q)'s prohibition would improperly "extend" the restriction to cover the later developed technology. The reverse, however, is true. As discussed above, the term "television satellite receiving dishes" is clear and unambiguous and Covenant II(Q) does not contain size, or other, limitations on the meaning of the term. In order to exempt the newer dishes from the prohibition contained in Covenant II(Q), it would be necessary to insert limitations regarding the size of, and/or manner of installing, television satellite receiving dishes which do not exist in the unambiguous language used in the covenant. Injecting such limitations would result in a covenant which, for example, prohibited the installation by anyone other than VPI or its designate of television satellite receiving dishes more than eighteen inches in diameter which are installed by placement on the ground or on a roof, but not on an exterior wall; such a judicially -revamped covenant, however, would bear little resemblance to the plain language of Covenant II(Q) prohibiting the installation of television satellite receiving dishes except by VPI or its designate. Like the neighboring landowners in Higdem, Jarrett clearly would have preferred a differently worded covenant had this "question later developing" with regard to smaller dishes installed in a manner similar to television and radio antennas existed at the time Covenant II(Q) was written. However, we must strictly construe covenants and may not insert limitations not contained therein. Higdem, 536 P.2d at 1189-90. We hold that the District Court erred in concluding that Covenant II(Q) is ambiguous and, on that basis, unenforceable. [277 Mont. 333, 342] b. Lacking Quantifiable and Objective Standards The District Court further based its determination that Covenant II(Q) is void and unenforceable on its conclusion that [t]here is no quantifiable and objective standard of review for approval by the architectural committee ... [and that] [1]acking such standards, the actions of the architectural committee are subject to such arbitrary determination of sufficient degree as to deny substantive due process. The District Court's conclusion apparently is based on Town & Country Estates Assn v. Slater (1987), 227 Mont. 489, 740 P.2d 668. Town & Country Estates involved a prior -approval covenant which provided that: No residential ... structure ... shall be made ... upon the Properties ... until plans and specifications ... have been submitted to and approved in writing as to harmony of exterior design ... by a Design Review Committee .... Town & Country Estates, 740 P.2d at 669-70. The owners of a lot presented plans for a proposed house with a shake roof, wood siding and 2,600 square feet of living space. Town & Country Estates, 740 P.2d at 670. The Design Review Committee rejected the plans, stating that the home was not in harmony of external design as required by the covenant and that " 'the neighborhood consists of $200,000 plus homes, and this is the kind of conformity that you should look to.'" Town & Country Estates, 740 P.2d at 670. The owners began construction without approval and the subdivision homeowners' association sued. Town & Country Estates, 740 P.2d at 670. We recognized that, although prior -approval covenants properly may be based on aesthetic considerations, every house in the subdivision at issue had a "unique external design, in a cacophony of styles[;]" the covenant did not contain any design standard and the Design Review Committee was unable to state one. Town & Country Estates, 740 P.2d at 671. Moreover, the record reflected that the submitted plans met the only common design characteristics extant in the subdivision, which related to minimum size and type of roof. We concluded that where a prior -approval covenant fails to define a standard of approval for the entity charged with review and approval of plans, it is too vague to be enforceable. Town & Country Estates, 740 P.2d at 671. Since the subdivision at issue had a "broad architectural spectrum," and the owners' proposal fell within that spectrum, we held that the covenant was vague to a degree which denied the [277 Mont. 333, 343] owners substantive due process. Town & Country Estates, 740 P.2d at 671. Town & Country Estates involved a prior -approval covenant which was vague due to a lack of design standards under which the required review and approval of plans would be conducted. In the present case, Covenant H(Q) contains a prohibition against the installation of television satellite receiving dishes by unit owners. The prohibition totally precludes such installation and, as a result, no plans or applications are subject to review by the architectural committee. Thus, the quantifiable and objective standards for review which were necessary in Town & Country Estates have no applicability here. We hold, therefore, that the District Court erred in concluding that the absence of quantifiable and objective standards of review renders Covenant II(Q) unenforceable. c. Insufficiently Connected to General Plan or Scheme The District Court also concluded that Covenant H(Q) is not enforceable because "[i]t does not clearly connect the restriction to any general plan or scheme" in that no statement in the Protective Covenants specifically shows how the restriction on installation of satellite dishes is connected to the stated purpose of the Protective Covenants. That purpose, as set forth above, is to maintain "a uniform and stable value, character, architectural design, use and development of the property." The District Court apparently relied on Town & Country Estates in reaching its conclusion. As discussed above, Town & Country Estates involved a prior -approval covenant requiring "harmony of external design." In addressing the covenant, we set forth the rules to be applied when the terms of a restrictive covenant were ambiguous; we also stated that, generally, restrictive covenants are valid if they tend to maintain or enhance the character of a particular residential subdivision. However, such covenants are enforceable only when used in connection with some general plan or scheme. Town & Country Estates, 740 P.2d at 671. In the context of the prior -approval covenant at issue, we observed that approval of plans by an architectural committee is one method which helps maintain the value and general plan of subdivision construction. We also noted that prior -approval covenants necessarily and properly include aesthetic considerations not susceptible of absolute standards. Town [277 Mont. 333, 344] & Country Estates, 740 P.2d at 671. While the term "harmony of external design" was not per se ambiguous, we determined that it was too vague to be enforceable absent defined standards of approval. Town & Country Estates, 740 P.2d at 671. On that basis, we concluded on the record before us that "neither a uniform standard of design, nor a general plan regarding 'harmony of external design' " existed. Town & Country Estates, 740 P.2d at 671. Our statement and application of the "maintain and enhance" and "general plan or scheme" principles in Town & Country Estates occurred in the context of a prior -approval covenant to which those principles had a substantially direct relationship. Such a context is lacking in the present case. Here, as discussed above, Covenant H(Q) is neither ambiguous per se nor vague as a result of the absence of quantifiable and objective standards of approval. Thus, the referenced Town & Country Estates principles are of limited applicability in the case presently before us. Moreover, it is clear that the Town & Country Estates principles are not ironclad rules susceptible of concrete and clear application. Covenants are generally "valid if they tend to maintain or enhance the character" of the property and are "used in connection with some general plan or scheme." Town & Country Estates, 740 P.2d at 671 (emphasis added). To the extent the "maintain and enhance" and "general plan or scheme" principles apply in a given case, it is sufficient that the particular covenant at issue generally can be said to further, and not be at odds with, the stated purpose of the protective covenants. Such a covenant tends to maintain and enhance the character of the property and is being used in connection with a general plan or scheme, as required by Town & Country Estates. Subsequent to Town & Country Estates, we decided Hillcrest. There, the defendants had completed construction of a garage on their subdivision lot in late 1980 or early 1981; by 1987, no residence had been built and the homeowners' association filed suit contending that the garage violated a covenant restricting use of the lot to residential purposes. Hillcrest, 778 P.2d at 422. The district court concluded that the garage did not violate the covenant and the association appealed, contending that a garage by itself, without a residence, was inconsistent with the "residential purposes" limitation. Hillcrest, 778 P.2d at 422. In setting forth the principles applicable to our interpretation of restrictive covenants, we first cited to Town & Country Estates for the proposition that such covenants are generally valid if they tend to maintain or enhance the character of a particular subdivision; we [277 Mont. 333, 345] then enunciated the principles that covenants must be construed to give their language its ordinary and popular meaning and that plain and unambiguous language will control our interpretation. Hillcrest, 778 P.2d at 422-23. We construed the ordinary meaning of the term "residential purposes" and concluded that a garage not used in conjunction with a residential dwelling violated the covenant at issue. Hillcrest, 778 P.2d at 423. Although we made a passing reference to the "maintain or enhance" principle, we did not apply it when faced with covenant language which was plain and unambiguous. Here, as in Hillcrest, we have concluded that the covenant at issue is plain and unambiguous; thus, the approach we used in Hillcrest is more directly applicable to the case presently before us than that used in Town & Country Estates. We recognize, and have stated above, that a covenant which is clearly at odds with the stated purpose of the overall covenants and the general plan for the properties subjected to those covenants cannot be enforced. The reason is that such a covenant, no matter how plain and unambiguous the language, cannot be harmonized with the overall covenants of which it is a part. In such a circumstance, interpreting and enforcing only the plain language of one covenant would violate our obligation to read the covenants as a whole rather than reading any one covenant in isolation. See Hillcrest, 778 P.2d at 422-23; Gosnay, 666 P.2d at 1250 (citation omitted). Conversely, however, we are obligated to enforce a covenant containing plain and unambiguous language wherever possible as a result of our obligation to refrain from inserting language not contained therein (Higdem, 536 P.2d at 1189) and because covenants are generally binding, by their terms and pursuant to Sec. 70-23-506, MCA, on each owner of property subject to the covenants. Thus, a plain and unambiguous covenant will be upheld if it is possible to harmonize it with the general plan for the property which is stated as the purpose of the overall covenants. Here, Covenant II(Q) is plain and unambiguous in prohibiting the installation of television satellite receiving dishes by individual lot or unit owners. It is not at odds with the general plan for the village of St. Marie, as stated in the Protective Covenants, of maintaining a uniform character, use and development of the overall community. Moreover, Covenant II(Q) generally can be said to further that purpose by limiting the number and location of receiving dishes. While Jarrett contends that the installation by VPI's designate of three ten -foot satellite dishes at Unit 192-A of the village of St. Marie [277 Mont. 333, 346] undercuts Covenant II(Q)'s validity in some way, such installation tends to maintain the uniform character and development of the property by concentrating the installations in one location. Nothing more is required of a plain and unambiguous covenant. We conclude, therefore, that Covenant II(Q) is sufficiently connected to a general plan for the uniform and stable character and development of the village of St. Marie and that the District Court erred in concluding otherwise. In summary, the District Court erred with regard to each of the conclusions upon which it based its ultimate conclusion that Covenant II(Q) is void and unenforceable. We hold, therefore, that the District Court also erred in granting Jarrett's motion for summary judgment on that basis. 2. Is VPI entitled to summary judgment? In the usual summary judgment case where we reverse an order of the district court granting summary judgment, that resolution is based on our conclusion that genuine issues of material fact exist which preclude the moving party's entitlement to judgment as a matter of law. Under that circumstance, a reversal of the district court necessitates a remand for trial in which the factual issues will be determined by the trier of fact. Where all of the facts bearing on the resolution of the legal issues are before us, however, this Court has the power to reverse a district court's grant of summary judgment and direct it to enter summary judgment in favor of the other party. Matter of Estate of Langendorf (1993), 262 Mont. 123, 128, 863 P.2d 434, 438; Duensing v. Traveler's Companies (1993), 257 Mont. 376, 386, 849 P.2d 203, 210. As stated above, the parties in the present case agree that the material facts are undisputed. We concluded in Issue 1 that Covenant II(Q) is clear and unambiguous in prohibiting installation of television satellite receiving dishes except by VPI or its designate and that it is sufficiently connected to the general plan for the village of St. Marie to be enforceable. Based on those conclusions, we hold that VPI is entitled to summary judgment in its favor on the enforceability of Covenant II(Q). 3. Did the District Court abuse its discretion in issuing a permanent injunction enjoining enforcement of Covenant HOP We review a district court's grant or denial of an injunction to determine if the court abused its discretion. See Butler v. Germann (1991), 251 Mont. 107, 114, 822 P.2d 1067, 1072; Sampson v. Grooms (1988), 230 Mont. 190, 194, 748 P.2d 960, 963. In addressing the [277 Mont. 333, 347] foregoing issues, we held that the District Court erred in granting Jarrett summary judgment and, further, that VPI is entitled to summary judgment in its favor on the enforceability of Covenant II(Q). On those bases, we also hold that the District Court abused its discretion in permanently enjoining VPI from enforcing Covenant II(Q). We reverse the District Court's grant of summary judgment in Jarrett's favor and vacate its related award of attorney's fees. We remand for entry of summary judgment in favor of VPI on the enforceability of Covenant II(Q) and for proceedings on VPI's entitlement to attorney's fees pursuant to the Protective Covenants. JUSTICES NELSON, TRIEWEILER and ERDMANN concur. JUSTICES NELSON, TRIEWEILER and ERDMANN concur. JUSTICE LEAPHART, dissenting. JUSTICE LEAPHART, dissenting. I dissent. As the District Court correctly concluded, the restrictive covenant at issue is not tied to a common plan or scheme for the Village of St. Marie, and it confers a personal benefit upon the designate --in this case the brother of the developer who drafted the covenants. Paragraph II(Q) of the restrictive covenants provides that: No television satellite receiving dishes shall be placed on any portion of the property except by Valley Park, Inc. or its designate. Radio and television antennas and aerials may be placed on the property as approved by the architectural committee. Thus, as the covenant makes clear, satellite dishes are not prohibited by the covenants. Rather, the covenant merely requires that the satellite dishes must be installed by VPI or its designate. Further, there is no absolute prohibition against radio and television antennas and aerials which are arguably more unsightly than the 18" DSS dish at issue here. If, as the Court asserts, Paragraph II(Q) is enforceable because it is tied to, or enhances, the common plan or scheme of the development there must first be some common plan or scheme. As Paragraph II(Q) demonstrates, there is no such common plan or scheme --antennas and aerials may be installed on the property. More interestingly, so can satellite dishes as long as they are installed by VPI or its designate. Clearly, there is no uniform plan to be maintained where antennas and aerials may be installed on the condominium units. As the District Court aptly noted, the covenant: does not clearly connect the restriction to any general plan or scheme.... There is no statement whatsoever within the covenants that shows how the restrictions on the use of television satellite receiving dishes is connected to this stated purpose. Rather, it [277 Mont. 333, 348] appears that the restrictive covenant exists merely to meet the developer's promise to provide exclusive television satellite service to a family member. The fact that only VPI, the developer, or its designate, may install satellite dishes appears to be an exclusive franchise granting VPI and/or the designate a personal benefit not tied to the common plan of the Village of St. Marie. As the Court recognizes, restrictive covenants are valid "if they tend to maintain or enhance the character of a particular residential subdivision. However, such covenants are enforceable only when used in connection with some general plan or scheme." Town & Country Estates, 740 P.2d at 671. Although the Court speculates that Paragraph II(Q) "tend[s] to maintain or enhance the character" of the property and is connected to a common plan or scheme, this speculation is insufficient to enforce the covenant --especially when coupled with the District Court's specific finding that the restrictive covenant served only to fulfil a personal promise to a family member. Satellite dishes are permitted in the development if installed by VPI or its designate. Further, the architectural committee approved Jarrett's request for a television antenna. I fail to see how lending our judicial imprimatur to an exclusive franchise contributes to the common plan or scheme as required by Town & Country Estates. Restrictive covenants which serve a valid purpose of mutual benefit to all lot owners are enforceable; restrictions that inure solely to the benefit of the developer at the expense of the owner's unrestricted use and enjoyment of their premises are not. DeWolf v. Usher Cove Co. (D. R.I. 1989), 721 F. Supp. 1518, 1531 (citing Urban Farms, Inc. v. Seel (N.J. Sup. Ct. App. Div. 1965), 208 A.2d 434, affd, 217 A.2d 888 (1966)). The covenant at issue here falls into the second category and, as the District Court correctly concluded, it is not enforceable. Accordingly, I would affirm the judgment of the District Court. CHIEF JUSTICE TURNAGE and JUSTICE HUNT join in the foregoing CHIEF JUSTICE TURNAGE and JUSTICE HUNT join in the foregoing dissent of JUSTICE LEAPHART. dissent of JUSTICE LEAPHART. TRIEWEILER v. SPICHER Decided Aug. 17, 1992. Justice Montana Supreme Court 254 Mont. 321(1992) No. 91-309. 838 P.2d 382 TERRY N. TRIEWEILER, Plaintiff and Respondent, V. WILLIAM R. SPICHER and EMILY SPICHER, husband and wife, Defendants and Appellants. No. 91-309. Submitted on briefs Dec. 5, 1991. Decided Aug. 17, 1992. 49 St.Rep. 711. 254 Mont. 321. 838 P.2d 382 [254 Mont. 321, 322] Appeal from the District Court of Flathead County. Eleventh Judicial District. The Honorable Robert S. Keller, presiding. See C.J.S. Judgments sec. 220. Affirmed in part; reversed and remanded in part. THOMAS M. McKITTRICK, District Judge, filed dissenting opinion. For Defendants and Appellants: Steven E. Cummings; Murphy, Robinson, Heckathorn, & Phillips, Kalispell. For Plaintiff and Respondent: Brian Bulger, Great Falls. HONORABLE EDWARD P. McLEAN, District Judge, delivered the Opinion of the Court. Defendants, William R. Spicher and Emily Spicher (Spichers), appeal from the judgment of the Eleventh Judicial District, Flathead County, granting summary judgment in favor of Plaintiff, Terry N. Trieweiler (Trieweiler). We affirm in part and reverse and remand in part. We restate the dispositive issues as follows: (1) Did the District Court err in finding as a matter of law that the Board of Directors appointed by the developer on July 17, 1990, was not validly appointed and had no authority to appoint members to a new Architectural Committee? [254 Mont. 321, 323] (2) Did the District Court err in finding that the Architectural Committee was reasonable in its determination not to approve Spichers' choice in roofing tile and exterior color? In May 1989, Spichers purchased Lot 64 in the Grouse Mountain Subdivision in Whitefish, Montana, subject to a number of covenants including provisions for review by the Architectural and Environmental Control Committee (Committee) of any plans for new construction. The Committee was made up of five persons appointed by the Board of Directors of the Grouse Mountain Home Owners Association (Homeowners Association). The Committee operated under a set of Minimum Guidelines for Architectural Review in Grouse Mountain, Phase I (Guidelines), adopted in 1988 by the Homeowners Association, which set minimum requirements for new construction. The Spichers contracted with Scott Ping (Ping), a Whitefish contractor, to construct a home on Lot 64. In August 1989, Ping and the Spichers submitted a building plan to Trieweiler, who was a member of the Committee. The Committee (Committee I) approved the plan, with the following three exceptions: (1) the proposed siding material, (2) the proposed roofing tile, and (3) the proposed exterior color. After further efforts by Ping to gain Committee I's approval for these three items, Spichers retained an attorney who requested an appearance before Committee I. Trieweiler replied appearance before Committee I was not necessary and Committee I would not reconsider its determinations. At this point Spichers conceded to the wishes of Committee I on the siding material but continued to attempt to negotiate with Trieweiler for approval on the Spichers' choice of roofing tile and exterior color. In September 1989, Ping gave Committee I, through Trieweiler, samples of roofing tiles promoted as superior in quality to the tiles called for in the Guidelines. Committee I agreed to one of the samples which resembled cedar shakes. Spichers subsequently discovered the manufacturer did not recommend that specific the for cold climates. The manufacturer did recommend the style Spichers had originally chosen. At that point Trieweiler told Ping he did not have time to deal with the problem further and was washing his hands of the entire matter. In light of Trieweiler's statement Spichers instructed Ping to roof the house with the the recommended by the manufacturer and to stain the home with the exterior color of their choice. On November 15, 1989, Trieweiler filed, as a property owner in the subdivision, a complaint for injunctive relief alleging Spichers were applying roofing tile in violation of the minimum requirements in the [254 Mont. 321, 324] Guidelines and were staining the home a gray color which had been specifically disapproved by Committee I. On May 23, 1990, the Homeowners Association held its annual meeting and elected a new Board of Directors which appointed a new Committee (Committee II). Committee II granted Spichers an appearance before the Committee but chose not to take any action at that time. Because Committee II would not act, the original developer of the subdivision appointed a new Board of Directors on July 17, 1990. The new Board designated its own members as the new Committee (Committee III) and invited Spichers and Trieweiler to attend a meeting to resolve the controversy. Trieweiler declined to attend. Spichers did attend the meeting on July 30, 1990, and Committee III approved the Spicher residence as built. On December 21, 1990, the District Court concluded Committee III was invalidly appointed and did not have authority to approve the Spicher residence as built. As a result Spichers did not have valid Committee approval for the roofing the and exterior color used on the home and the home was in violation of the Guidelines. In light of these findings the District Court granted summary judgment for Trieweiler, and ordered Spichers to remove and replace the roofing the with a the known as Spectile No. 122, to execute an agreement to replace the new roofing if it is damaged due to weather or incorrect application, and to repaint the exterior of the house. Spichers appeal. I. Subsequent to appeal Spichers filed with this Court a Motion to Permit Supplementation of Record on Appeal asking this Court to take into account circumstances occurring subsequent to the appeal on the issue of reasonableness of the Committee's determinations. Rule 9(f), M.R.App.P., permits supplementation of the record on appeal when something is omitted from the record "... by error or accident or is misstated therein ..." Such is not the case here and Spichers' motion is denied. II. Did the District Court err in finding as a matter of law that the Board of Directors appointed by the developer on July 17, 1990, was not validly appointed and had no authority to appoint members to a new Architectural Committee? On May 23, 1990, the Homeowners Association held its annual meeting and elected a new Board of Directors which appointed a new [254 Mont. 321, 325] Committee (Committee II). Committee II granted Spichers an appearance before the Committee but chose not to take any action at that time. Because Committee II would not act, the original developer of the subdivision appointed a new Board of Directors on July 17, 1990. The new Board designated its own members as the new Committee (Committee III) and invited the Spichers and Trieweiler to attend a meeting to resolve the controversy. Trieweiler declined to attend. The Spichers did attend the meeting on July 30, 1990, and Committee III approved the Spicher residence as built. The District Court found as a matter of law that "the Board of Directors that was appointed by the developer on July 17, 1990, was not validly appointed, or in excess of the number of directors provided for, and as such, the July Board of Directors had no authority to appoint anyone, much less themselves, as members of [Committee III]. Section 35-2-402(2), (3), and (4), MCA [1989]." Spichers argue the developer had the right under the Articles of Incorporation to appoint a Board of Directors. Article VII of the Articles of Incorporation provides: The affairs of the Corporation shall be managed by a Board composed of at least five (5) directors but not more than seven (7) directors who need not be members of the Corporation. The initial Board shall be composed of five (5) members. A change in the number of directors may be made by amendment to the Bylaws of the Corporation. Until such time as ninety percent (90%) of the lots or units of present and future phases of Grouse Mountain have been sold by the Developer, the directors shall be selected by the incorporator, or his successor or assign. All directors shall be elected annually for a term of one (1) year unless otherwise provided in the Bylaws. The names and addresses of the persons who are to act in the capacity of directors until the election of their successors are:... Article V of the Articles provides that "every person or entity who is a record owner of a fee or an undivided interest in a lot or unit" is a member of the Corporation. Article VI of the Articles provides that "[i]n all elections for directors, every member entitled to vote shall have the right to cumulate his vote and to give one candidate a number of votes equal to his vote multiplied by the number of directors to be elected or by distributing such votes on the same principal [sic] among any number of such candidates." The members of the Association had the authority under the [254 Mont. 321, 326] Articles to elect the new Board of Directors at its annual meeting on May 23, 1990. That Board had the authority under Article VIE of the Bylaws of Grouse Mountain Homeowners, Inc., to "appoint committees as deemed appropriate in carrying out its purpose." The Architectural Review Committee was a committee that had been formed by a prior Board under the authority of that provision to review plans for new construction to enforce the Minimum Guidelines for Architectural Review in Grouse Mountain, Phase I, which had been adopted by the Association membership. Article VII of the Articles of Incorporation provides for a one-year term for elected directors on the Board. Section 35-2-403, MCA (1989), provides that "a director may be removed from office pursuant to any procedure therefor provided for in the articles of incorporation." There are no provisions in the Articles of Incorporation of Grouse Mountain Homeowners, Inc., giving the developer the authority to remove a duly -elected Board of Directors prior to the end of the one-year term of office provided for in the Articles. Since the developer did not have the authority to remove the Board to appoint a new Board, any actions taken by the new Board and Committee III which was created by the new Board are invalid and unenforceable. We hold that the District Court did not err in finding as a matter of law that the Board of Directors appointed by the developer on July 17, 1990, was not validly appointed and had no authority to appoint members to a new Architectural Committee. Did the District Court err in finding that the Architectural Committee was reasonable in its determination not to approve Spichers' choice in roofing tile and exterior color? Both parties cite Gosnay v. Big Sky Owners Ass'n. (1983), 205 Mont. 221, 666 P.2d 1247, in support of their legal arguments. Spichers also cite Higdem v. Whitham (1975), 167 Mont. 201, 536 P.2d 1185; Town & Country Estates Assn v. Slater (1987), 227 Mont. 489, 740 P.2d 668; and Hillcrest Homeowners Ass'n v. Wiley (1989), 239 Mont. 54, 778 P.2d 421. These four cases represent Montana case law on the issue of validity and enforceability of restrictive covenants. None of the Montana cases address the issue currently before the Court dealing with reasonableness of determinations of a committee empowered with the right to approve or reject building plans. It is clear the well -established rule in most jurisdictions is that a committee's power of approval must be governed by the applicable [254 Mont. 321, 327] covenants and guidelines and must be reasonably exercised. This Court cited the rule in Gosnay v. Big Sky Owners Ass'n. (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250; however, the issue of reasonable exercise of power of approval was not before the Court at that time. The Court hereby adopts this rule and applies it to the case now before the Court. The majority of cases in other jurisdictions deal with the issue of validity and enforceability of covenants. There are few cases addressing the issue of reasonableness of the exercise of power of approval. Most of the case's that exist merely state the reasonableness rule, followed by a conclusive statement that the committee did (or did not) reasonably exercise its power of approval, with little or no discussion or analysis of how either the trial court or the appellate court reached its conclusion. We conclude that the better reasoned cases consider the determination of whether the exercise of power to approve construction plans was reasonable or arbitrary is a factual question to be determined in light of the circumstances. LaVielle v. Seay (Ky. 1966), 412 S.W.2d 587. Also see LaBlanc v. Webster (Kan. 1972), 483 S.W.2d 647; Donoghue v. Prynnwood Corp. (Mass. 1970), 255 N.E.2d 326; Rhue v. Cheyenne Homes, Inc. (Colo. 1969), 449 P.2d 361; Otwell v. West (Ga. 1964), 137 S.E.2d 291; Bramwell v. Kuhle (1960), 183 Cal.App.2d 767, 6 Cal.Rptr. 839; Shields v. Welshire Development Co. (Del. 1958) 144 A.2d 759; Alliegro v. Home Owners of Edgewood Hills, Inc. (Del. 1956), 122 A.2d 910 (examined the evidence to determine if the facts support finding power of approval was reasonably or arbitrarily exercised). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. When the facts contained in the record are considered against the background of the rule that power of approval must be reasonably exercised, we conclude there are material issues of fact. Therefore the District Court erred in finding that the Architectural Committee was reasonable in its determination not to approve Spichers' choice in roofing tile and exterior color. The Minimum Guidelines for Architectural Review in Grouse Mountain, Phase I, provide: The following are minimum requirements that have been applied by the Architectural Review Committee to new construction in Grouse Mountain, Phase I. 5. Stain. If wood siding or shingles are used on the exterior [254 Mont. 321, 328] surface of the residence, they must be stained in a color or shade approved by the Architectural Committee. Translucent stain is permitted on redwood or cedar exteriors. However, opaque stain is required on fir exteriors. 6. Roofing. Roofing materials must be cedar shake shingles or dimensional cut Class A fire -rated asphaltfiberglass shingles. If the latter type of shingle is used, the color is subject to approval by the Architectural Committee. ... [Emphasis in original.] The roofing material selected by Spichers was neither a cedar shake shingle nor a dimensional cut Class A fire -rated asphaltfiberglass shingle. Committee I originally rejected Spichers' choices but eventually did approve one of two samples of tile presented to the Committee. Spichers subsequently discovered the approved tile was not recommended for cold climates and told their contractor to use the roofing the that was their first choice. Spichers argue they did not violate the Guidelines because the the they used was superior in quality. The Guidelines set forth "minimum requirements," one of which is the "[r]oofing materials must be cedar shake shingles or dimensional cut Class A fire -rated asphalt -fiberglass shingles." There is a material question of fact whether this requirement limits the roofing material to only those two choices or whether the minimum requirement only sets a minimum standard for quality. This factual question must be determined by the trier of fact in light of the intent of the Association in drafting the Guidelines and in light of the fact that Committee I eventually approved a tile that was not one of those two choices. There are also factual questions whether Committee I was reasonable in approving a the not suitable for cold climates and whether Committee I had knowledge of the unsuitability of the the at any time during its determination whether to approve the tile. These factual questions are in dispute and are material questions of fact precluding summary judgment in this case. Committee I specifically disapproved the gray color Spichers chose to paint the exterior of their home stating that seven out of the last ten homes built in the neighborhood had been painted with some variation of gray, including the home immediately adjacent to the Spichers' home. Committee I did approve two shades of brown. Spichers respond that more brown homes than gray homes exist in the subdivision and therefore Committee I acted arbitrarily in its rejection of gray. The power of refusal must be exercised objectively, [254 Mont. 321, 329] honestly and reasonably. Donoghue v. Prynnwood Corp. (Mass. 1970), 255 N.E.2d 326, 329. A committee may not subjectively impose its whims or aesthetic tastes on lot owners. Therefore a material question of fact exists regarding the objectivity and reasonableness of the Committee's refusal to approve the gray color preferred by Spichers. In light of the foregoing, we find there are material questions of fact which must be determined by the jury in this case, and the District Court erred in concluding that the Architectural Committee acted reasonably in its determination not to approve Spichers' choice in roofing tile and exterior color. We remand to the District Court for further proceedings consistent with this Opinion. Affirmed in part; reversed and remanded in part. HONORABLE RUSSELL K. FILLNER, District Judge, sitting in place of JUSTICE R.C. McDONOUGH, HONORABLE TED L. MIZNER, District Judge, of JUSTICE R.C. McDONOUGH, HONORABLE TED L. MIZNER, District Judge, sitting in place of JUSTICE JOHN C. HARRISON, and HONORABLE LARRY sitting in place of JUSTICE JOHN C. HARRISON, and HONORABLE LARRY W. MORAN, District Judge, sitting in place of JUSTICE FRED J. WEBER W. MORAN, District Judge, sitting in place of JUSTICE FRED J. WEBER concur. HONORABLE THOMAS McKITTRICK dissenting: I dissent from the Majority opinion. This case is about homeowners and their right to organize to establish reasonable standards for the aesthetic preservation and architectural consistency of their neighborhood and then rely on those standards when they are objected to by someone who is fully aware of their existence prior to purchasing his property. This case is also about whether developers can establish a self-governing group of directors elected from among the homeowners who reside in the neighborhood developed and then, contrary to the Articles of Incorporation, Bylaws, and Restrictive Covenants, throw those people out of office when their decisions are inconvenient or contrary to the wishes of one of the developers. In addition, this case is about whether a developer can impose restrictive covenants on other homeowners who purchase lots and build homes in his development, even though many of those homeowners incurred additional expense to comply with these requirements, and then arrogantly and deliberately ignore the requirements when he decides to build his own home in the same neighborhood. Trieweiler is a homeowner who filed an Injunction to enforce an [254 Mont. 321, 330] intentionally violated covenant at the Grouse Mountain Development (Development), a subdivision near Whitefish, Montana. In 1979, the general partner of the Development, Brian T. Grattan, filed with the Clerk and Recorder's Office of Flathead County, Montana, a Declaration of Conditions, Covenants and Restrictions. In relevant part paragraph 15 reads: Architectural Control.... that no building shall be commenced upon the property until the plans and specifications were submitted and approved by the committee. Pursuant to paragraph 15, the acting Board of Directors appointed an Architectural Committee. At the 1989 Annual Homeowners Meeting, Committee I submitted to the homeowners, for their approval, minimum Architectural Standards (Guidelines). The homeowners unanimously approved the guidelines at the meeting. Prior to the guidelines approval, Committee I had mailed a copy of the guidelines to every owner of every lot in the development. William R. Spicher (Spichers) was an original partner in the development, and in fact was one of its largest investors. As such, he was a partner of Grattans and was aware of the Articles of Incorporation, Bylaws and Restrictive Covenants. Spichers owned lot 64 in the development and had bought the land subject to the restrictive covenants. In late summer of 1989, Spicher contracted with Ping Construction (Ping) to build a home. There is no dispute that all parties, including Spichers and Ping, knew of paragraph 15 (the covenant) and the guidelines. Yet, the Spichers, through Ping, chose to disregard the guidelines by submitting plans to build their home with an imitation -tile roofing --Material I --and stain their house a gray color. Committee I rejected: (1) Material I because it was an imitation -tile concrete composition roofing material that did not meet the guidelines and had never been used in the development before; and (2) the gray color stain because seven of the last ten homes built in the neighborhood were of some gray variation, including a home next to Spicher's lot. Committee I, in a letter to the Spichers, stated that "Committee I [was] willing to consider a broad spectrum of earth tone colors." Committee I "want[ed] to avoid [a] predominance of one or two colors [in an area] and the construction of homes in a row [of] the same color." The Spichers through their contractor resubmitted three new colors and roofing material (Material 11). Committee I again rejected [254 Mont. 321, 331] a gray color but approved a mushroom and Aspen tan color and as a compromise approved Material II on the condition the Spichers sign a written agreement to replace the roof if damaged by the weather. The Spichers were insulted and tried to meet with Committee I members without Trieweiler present. Trieweiler not wanting to waste any more of his time trying to hammer out a compromise with the Spichers, never again acted as an intermediary between the Spichers and Committee I. The Spichers then retained an attorney who wrote a letter to Committee I. Committee I wrote back saying the Spicher's actions destroyed any chance for compromise and that a meeting with the Spichers would not benefit either party. Contrary to Committee I's decision, the Spichers did what they "wanted to do in the first place ..." and built their home with the rejected imitation -tile Material I and stained the house a gray color. In May of 1990 the homeowners held a meeting to elect a new Board of Directors. Mr. Spicher's former partner and original developer (Grattan) approached the homeowners with a deal. Grattan proposed that he would not invoke his power to appoint a new Board of Directors under Article VII of the Articles of Incorporation, but would assign it to the homeowners at the meeting if the homeowners would allow him to vote his unassessed eleven lots. The deal was struck and the homeowners elected a new Board of Directors who in turn appointed a new Architectural Committee (Committee II). Spichers went before Committee II seeking approval. Committee II, largely a result of Grattan's and Spicher's votes at the May meeting, refused to approve Spicher's home. For that reason, and that reason only, Grattan broke his promise to the homeowners and unilaterally terminated the Board of Directors. He appointed himself and four others to the new Board. Prior to Grattan's appointment of the new Board, Mr. Spicher contacted each new director and asked them if they would serve on his "New Board of Directors". The new Board appointed Committee III. Committee III approved Spicher's home "as built". The Majority has trouble following Gosnay v. Big Sky Owners Assn., 205 Mont. 221, 666 P.2d 1247. The case is clearly on point but the Majority chooses to create a different result. In Gosnay, the Supreme Court reversed the District Court and enforced a similar restrictive covenant as a matter of law, against an owner with a "jackleg" fence. 205 Mont. at 227. The "construction of a fence require[d] prior approval by the Architectural Committee .... The Ar-[254 Mont. 321, 332] chitectural Committee refused Gosnays permission to build their fence [since the] Gosnay's fence [was] contrary to Big Sky's overall plan for openness." Id. The Court went on to state that although some fences had been approved, a jackleg fence had never been approved. Similarly, here, Committee I needed to approve all plans to build in the development. Committee I rejected the Spichers plans because the imitation -tile Material I failed to meet the guidelines or overall plan for uniform roofing and had never been used in the subdivision before. Rejection of the color gray was based on the overall plan to protect the property owners' investments. This Court, as a matter of law, should have followed its prior decision in Gosnay and enforced the restrictive covenant against the Spichers. But they did not. Instead the Majority uses creative reasoning when it states that "whether the exercise of power to approve construction plans was reasonable or arbitrary is a factual question to be determined in light of the circumstances." The Majority, however, seems to conveniently forget to consider the question of reasonableness in light of all the circumstances. Spichers built their home the way they "wanted to build it in the first place." They used imitationtile Material I for their roof and stained their home gray, thus violating: (1) the restrictive covenant because they did not get prior approval from any legally appointed committee to use Material I or the color gray; (2) the guidelines because the imitation -tile Material I violated the overall plan for uniform roofing as well as fire and weather safe roofs, and the gray color because the overall plan allowed the Committee to control the color of exterior materials used on homes. The Committee felt that the domination of one color would give the homes in the development the appearance of tract housing. The Committee rejected the color to protect the neighborhood's property values. See Gosnay v. Big Sky Owners Ass'n., 205 Mont. 221, 666 P.2d 1247, 1250 (1983). The Majority found a question of fact in the guidelines. They asked, does the roofing guideline mean only two choices or does it mean that superior material can be used? There is a question of fact here only if the guidelines are read alone. The facts, however, should come to this Court's rescue and clear the muddied waters. Committee I has answered the Court's and Spicher's question. There are more than two choices, but Committee I, or at least a legally appointed committee, had to approve the choices that were not spelled out in the [254 Mont. 321, 333] guidelines. Further, Committee I specifically rejected Material I and sent a message to the Spichers not to use Material I. Spichers ignored that message and so has the Majority of this Court. Spichers could have used a listed roofing material, but chose to use Material I after Committee I vehemently rejected Material I because it was imitation -tile never used in the subdivision. Committee I supplied the answer to the question --Material I did not meet the guidelines --no question of fact exists as to Material I --it did not meet the guidelines. Next the Majority finds a question of fact in whether or not Committee I objectively and reasonably rejected the gray color. Again, the Majority seems to ignore the facts. The facts clear the path to show, as a matter of law, the Committee acted objectively and reasonably. Seven of the last ten homes built in the neighborhood were of some gray variation, including a home adjacent to Spichers. The Committee felt another gray home in the area would give the appearance of tract housing which would devalue the neighborhood properties. In trying to protect property owners' values, the Committee precluded Spichers use of the gray color. See Rhue v. Cheyenne Homes Inc., 449 P.2d 361, 363 (Colo. 1969). The Committee did not, as the Majority suggests, impose its whims or aesthetic tastes on the Spichers. See Donoghue v. Prynnwood Corp., 255 N.E.2d 326, 40 ALR 3d 858 (Mass. 1970). To the contrary, Committee I objectively and reasonably followed the overall plan and tried to protect the investment of home and lot owners. No question of fact existed. The Committee acted reasonably for the protection of all owners within the development. Since there are no questions of fact, the Gosnay decision should control and the District Court's Summary Judgment' ruling should be upheld by this Court. Instead the Majority chooses to be creative and in their rush to achieve their desired result and keep this litigation alive have failed to consider the repercussions which will seriously impair the rights of property owners to establish and control architectural development and aesthetic preservation in their neighborhoods. TOWN & COUNTRY ESTATES ASS'N v. SLATER Decided July 28,1987. Justice TURNAGE Montana Supreme Court 227 Mont. 489 (1987) No. 87-91. 740 P.2d 668 TOWN & COUNTRY ESTATES ASSOCIATION, Plaintiff and Respondent, v. KEN SLATER and Alice D. Slater, Defendants and Appellants. No. 87-91. 227 Mont. 489. Submitted on Briefs May 14, 1987. Decided July 28, 1987. %EIlwe IrT.4: Appeal from the District Court of Yellowstone County. Thirteenth Judicial District. Hon. G. Todd Baugh, Judge Presiding. See C.J.S. Covenants sec. 1.[227 Mont. 489, 490] Vacated. Pedersen & Conrad; Carol Hardy Conrad, Billings, for defendants and appellants. Gary Beiswanger, Billings, for plaintiff and respondent. MR. CHIEF JUSTICE TURNAGE delivered the Opinion of the Court. Defendants Ken and Alice Slater appeal a November 5, 1986 permanent injunction by the Thirteenth Judicial District Court, Yellowstone County. The injunction prevented the Slaters from building a house in Town & Country Estates until a Design Review Committee approves the Slaters' building plans and specifications. We reverse and vacate the injunction. The Slaters present three issues for our review: 1. Did the District Court err in finding that a restrictive covenant which allows a Design Review Committee (DRC) to disapprove house plans and prevent construction is enforceable, when the disapproval is based upon "harmony of external design"? 2. Did the District Court err in finding that the covenant had not been abandoned, although none of the plans for previouslyconstructed houses had been approved by the DRC? 3. Did substantial credible evidence support the District Court's findings that the DRC acted reasonably, in good faith, and not arbitrarily or capriciously? Town & Country Estates Association (TCE) is a subdivision in Billings, Montana. TCE contains sixteen single-family houses, one duplex, and several vacant lots. The deeds to the TCE lots incorporate by reference a "Declaration of Covenants, Conditions and Restrictions," which was publicly recorded on December 20, 1973. The Declaration, in Article V, grants architectural control to the DRC and outlines relevant aesthetic factors. "No residential ... structure ...shall be made ... upon the Properties ... until plans and specifications showing the nature, kind, shape, height, materials, colors and location of the same shall have been submitted to and approved in writing as to harmony of external design, location and relation to surrounding structures and [227 Mont. 489, 491] topography, the construction, colors, and the materials to be used in the construction have been approved in writing by a Design Review Committee consisting of five members appointed by the Board of Directors of Town & Country Estates Association. [Emphasis added.]" Article V does not place a minimum value on TCE houses, which vary in size, shape, color, building materials, and architectural style. However, the TCE houses all have a minimum of 2,400 square feet and shake roofs. Prior to 1986, all TCE houses had either been built or approved by the developer of the subdivision. In early 1986, the Slaters expressed an interest in a TCE lot. They were aware of the prior approval restriction of Article V. In April of 1986, they learned that the developer had left the area, and that a five -member DRC was being formed to review Slaters' house plan. The plan was the first to be reviewed by the newly -formed DRC. Slaters' proposed house had a shake roof, wood siding, and 2,600 square feet of living space. On May 1, 1986, Slaters bought the TCE lot before receiving approval of their house plan. On May 19, 1986, Slaters received a letter from DRC rejecting Slaters' plan because the house did not "conform to the general tone of the area." The letter also stated, "We would suggest that the price of the lot commands a residence more near the size of houses in the surrounding area. As you know, the neighborhood consists of $200,000 plus homes, and this is the kind of conformity that you should look to." Without approval, Slaters began house construction on August 5, 1986. On August 6, 1986, TCE obtained a temporary restraining order prohibiting the Slaters from building, alleging that Slaters' house violated the minimum size restrictions contained in the Declaration. Based on the court's order, Slaters resubmitted their plans to DRC. On August 26, 1986, the DRC again rejected the plan and stated, "we find that the structure is not in harmony of external design to surrounding structures and topography as specified in [the Declaration]." (Emphasis added.) On November 5, 1986, the District Court granted a permanent injunction against Slaters, until they complied with the TCE Declaration. Issue 1 Did the District Court err in finding that a restrictive covenant which allows a Design Review Committee to disapprove house plans [227 Mont. 489, 492] and prevent construction is enforceable, when the disapproval is based upon "harmony of external design?" The District Court based its permanent injunction on the fact that the Slaters had not complied with Article V. The court held that the restrictive covenant was enforceable, and that the committee's review was performed in good faith and not unreasonable. Slaters contend that a prior approval covenant is not enforceable if it contains no specific objective standards. Slaters argue that the term "harmony of external design" is too vague and ambiguous to be enforceable. Slaters further argue that their house has major features found in existing TCE houses, and therefore their house would not differ in aesthetic merit from the other houses. TCE contends that Article V is enforceable, even without express standards of application, because the DRC acted reasonably and in good faith. TCE admits that other TCE houses share some of the same physical characteristics and materials of the Slater house, but argues that Slaters' design is not as attractive and harmonious as the existing houses. Our review of this issue is guided by Higdem v. Whitham (1975), 167 Mont. 201, 208-209, 536 P.2d 1185, 1189, where we held: "The overriding policy of individual expression in free and reasonable land use dictates that restrictions should not be extended by implication or enlarged by construction." Article V establishes several restrictive factors upon which the DRC must predicate its approval. We will closely review any enlargement of restrictions which conflict with reasonable land use, and which hinder substantive due process. As we held in State v. District Ct. (1980), 187 Mont. 126, 130, 609 P.2d 245, 248, "Moreover, restrictive covenants are to be strictly construed; ambiguities therein are to be construed to allow free use of the property." However, the free use of the property must be balanced against the rights of the other purchasers in the subdivision. Each purchaser in a restricted subdivision is both subjected to the burden and entitled to the benefit of a restrictive covenant. Generally, these covenants are valid if they tend to maintain or enhance the character of a particular residential subdivision. However, such covenants are enforceable only when used in connection with some general plan or scheme. The approval of plans by an architectural control committee is one method which helps maintain the value and general plan of subdivision construction. We recognize that aesthetic considerations have a place in [227 Mont. 489, 493] prior approval covenants, and that there are no absolute standards to guide a committee's judgment and taste. Aesthetic terms must be sufficiently flexible to cover a variety of house designs. The term "harmony of external design" is not ambiguous per se. However, a restrictive covenant which fails to define the standard of approval is too vague to be enforceable. The record reveals that every TCE house had a unique external design, in a cacophony of styles. The houses ranged from single and split-level to bi-level, the roofs from gable -end and hip to mansard, and the siding from stucco and wood to stone. The styles were a hybrid mix of traditional, Tudor, ranch, and contemporary. The only common design characteristics were a 2400 square foot minimum size and a shake roof. When questioned at the show cause hearing on August 29, 1986, DRC was unable to state any design standard for TCE. If the subdivision itself lacks consonance, the Slaters' plan cannot lack harmony. In the context of TCE and Slaters' plan, the term "harmony of external design" lacks the mutuality of obligation central to the purpose of a restrictive covenant. In view of the wide variety of designs, no one seemed burdened by the covenant except the Slaters. Slaters' plan was not discordant with others in the subdivision. The proposed house would be split-level contemporary, 2600 square feet, with a gable -end shake roof and wood siding. The single most distinguishing feature of the Slaters' house was its cost, which was not an express factor under Article V. The proposed house would be worth approximately $135,000. The other TCE houses appraised above $200,000. As revealed in its initial rejection letter, DRC seems more concerned with harmony of appraisal than harmony of design. However, DRC's review of external design was limited to the factors set forth in Article V, and to observable characteristics of all other houses in the subdivision. The approval or disapproval of plans by the DRC must be based upon an objective design standard. Without a quantifiable standard to guide them, the decision of DRC is unenforceable. The record shows neither a uniform standard of design, nor a general plan regarding "harmony of external design" in the subdivision. We hold that the Slaters' house fell well within the broad architectural spectrum of TCE houses. Applied to the TCE subdivision and Slaters' plan, we hold that Article V lacks sufficient objectivity, and is vague to a degree that denies substantive due process to the Slaters. [227 Mont. 489, 494] We therefore vacate the injunction based on this issue, and need not proceed to appellants' issues of notice and good faith. MR. JUSTICES GULBRANDSON, HARRISON, HUNT and McDONOUGH concur. MR. JUSTICES GULBRANDSON, HARRISON, HUNT and McDONOUGH concur.