                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

MARYBETH LEAMER, as                  NOT FINAL UNTIL TIME EXPIRES TO
Trustee of the Marybeth Leamer       FILE MOTION FOR REHEARING AND
Lifetime Trust,                      DISPOSITION THEREOF IF FILED

      Appellant,                     CASE NO. 1D13-4573

v.

MARILYN B. WHITE and
OMNI AMELIA ISLAND LLC, a
foreign limited liability company,

     Appellee.
_____________________________/

Opinion filed January 27, 2015.

An appeal from the Circuit Court for Nassau County.
Brian J. Davis, Judge.

J. Thomas McKeel, Fernandina Beach, for Appellant.

John R. Hamilton of Foley & Lardner LLP, Orlando; Scott D. Richburg of Foley &
Lardner LLP, Jacksonville, for Appellee Omni Amelia Island LLC.

Arthur I. Jacobs, Richard J. Scholz and Yvonne R. Mizeras of Jacobs, Scholz &
Associates, LLC, Fernandina Beach, for Appellee Marilyn B. White.



MAKAR, J.

      If good fences make good neighbors, what do yard lights make? Answer:

This litigation in which neighboring townhouse owners scuffle over a yard lighting

system to which one strenuously objects. The trial court granted summary
judgment for the objector, Marilyn White, 1 as well as Omni Amelia Island LLC

(Omni), whose architectural review board interpreted its covenant against

“ostentatious site features” as granting Ms. White a veto over any lighting system

that her neighbor, Marybeth Leamer, might propose. As explained below, we

conclude that the trial court erred in its interpretation of the covenant.

                                           I.

      The beatific Long Point neighborhood at the center of this controversy is a

private subdivision within the Amelia Island Plantation at the southern tip of the

island, bordering the marshlands of Nassau Sound. The Whites and Leamers live in

adjoining luxury waterfront townhouses that share views of the Intracoastal

Waterway—they also share a common wall. Their townhouses are among the five

currently built on the ten townhouse lots that are subject to a “Declaration of

Covenants, Conditions, Restrictions, and Easements for The Pointe at South

Pointe” (the Covenants). The restriction at issue in this dispute is section 3.17,

which deals with landscaping, lighting, and service courts. Subsection (b) of that

covenant provides, in relevant part:


1
  Initially this dispute involved the husbands, Mr. Gerald White and Mr. Fred
Leamer, but both were dropped from this litigation prior to final judgment as
named parties because neither is listed as an owner of the two townhouses (their
respective wives replacing them as named parties). For simplicity, we will refer
generally to the owners/parties as Mr. Leamer and Mr. White because it is their
names that appear on most of the relevant emails, letters, and other correspondence
regarding the matter.
                                         2
      (b) Ostentatious Site Features. The construction of ostentatious site
      features such as topiary, sculpture, free standing fountains in the
      foreground of townhouses or lighting systems which may be offensive
      to adjacent neighbors is unacceptable.

(Emphasis added). The italicized language is the focal point of the parties’

squabble, which began in May 2012 when Mr. Leamer had landscape lighting

installed on his side of the property. He did so without submitting the requisite fee

and application for approval by the Amelia Island Plantation Architectural Review

Board, which is controlled by Omni. Deeming the lighting offensive, Mr. White

complained to the Board, the management of which is one of the many

responsibilities of Mr. William Moore, Omni’s director of planning and

development. The Board’s responsibility is to review plans submitted by

homeowners and approve them if they comply with the Covenants; the Board has

no enforcement authority and does not canvass the neighborhood for violations.

      In response to Mr. White’s complaint, Mr. Moore spoke about the situation

with Mr. Leamer, who lives part of the time in the Atlanta, Georgia area. Soon

thereafter in June 2012, Mr. Moore wrote to Mr. Leamer to explain that progress

had been made as to the specific objections Mr. White had about the lighting, such

as mitigating “light spillage.” He explained that a “procedural” problem existed,

which could be corrected by Mr. Leamer submitting a fee along with an

application and plan for the Board’s review. As a part of this submission, however,

Mr. Leamer was required to submit “statements from the two adjacent property
                                         3
owners that your proposed plan for outdoor lighting is acceptable to them and they

do not find it offensive.” The Board deemed these statements as necessary because

section 3.17(b) was a “unique provision” that “provides neighbors with a veto over

the installation of your lighting.” Mr. Moore characterized the “neighbor veto” as a

“substantive problem” over which the Board had no control, but suggested

modifications to the lighting plan to assuage Mr. White, such as using “moon

glow” effects rather than “hot spot” lighting, turning off the system entirely when

not present, and so on. He encouraged reaching an accommodation with Mr.

White.

      In response, Mr. Leamer took the position that no fee, application, or plan

would be forthcoming because other similar lighting systems existed on home sites

in the Long Point community that had not been approved by the Board (which was

apparently the case for some non-townhouse properties). The Board met to discuss

the situation and followed up with a July 18, 2012, letter from Mr. Moore, who

again said that Mr. Leamer must submit an application, noting that no property

owner is “authorized to unilaterally decide what provisions they may want to

follow and what provision[s] they want to ignore.”

      Mr. Leamer capitulated by submitting the necessary fee and paperwork,

which became the focus of a Board meeting on August 14, 2012, at which Mr.

White objected to the plan. In its letter sent a week later, the Board found the

                                         4
current lighting plan was “generally consistent” with its standards except, for

example, that some driveway lights close to the property line “need to have the

intensity reduced or dialed back.” It again noted that it deemed itself powerless to

approve any plan unless Mr. White withdrew his ongoing general objection to the

lighting plan. The Board said it “would like to find a resolution to this issue

without any party having to resort to a judicial solution,” suggesting it would

approve a slightly modified plan that Mr. White “seemed willing” to consider “but

made no commitment.” It concluded by saying that the two neighbors “need to

talk” (“Perhaps a little personal communication at this stage would be fruitful to

both of you”) and reemphasizing its view that “it must abide by” section 3.17(b)

“as long as it remains a part of the documents.”

      The Board’s ambassadorial efforts did not pay off. In early September, Mr.

White filed a lawsuit against Mr. Leamer alleging that the landscape lights were

“excessively bright and positioned such that they shine onto [his] property and into

[his] home between dusk and midnight everyday regardless of [Mr. Leamer’s]

presence in the home.” He further complained that the lighting “flooding in [his]

home” was a source of “serious discomfort, distress and inconvenience” to him and

also to “any person of normal sensibilities.” The lighting caused “serious

annoyance and discomfort as well as mental and physical distress.” He sought a




                                         5
temporary and permanent injunction restraining Mr. Leamer from operating the

outdoor lights.

      In the interim, Mr. Leamer made the suggested changes to the lighting plan,

which the Board now deemed to be consistent with its standards. The Board’s

December 3, 2012, letter to Mr. Leamer explicitly acknowledged the lighting plan

was acceptable and would be approved but for Mr. White’s continuing objections.

(“Your neighbor has clearly stated that he finds all outdoor lighting of the type

installed to be offensive to him.”) For this reason, the Board refused to approve the

modified plan “unless your neighbor provides written documentation that the

lighting as currently installed is acceptable to him or a judge strikes” section

3.17(b) from the Covenants.

      Once again, the Board’s diplomatic approach failed and the impasse between

the neighbors devolved into dismissal motions and counter-claims (one that made

Omni a party to the litigation), answers and defenses, and a deposition of Mr.

Moore, as manager of the architectural review board process. His conciliatory

letters tried to keep the Board at arm’s length from the neighbors’ dispute while

tactfully brokering a détente, but now both he and the Board were enmeshed in the

property owners’ litigation.

      Mr. Leamer moved for summary judgment, seeking a legal ruling that the

Board’s interpretation of section 3.17(b), which required the written approval of

                                         6
his neighbors, was arbitrary and unreasonable. Omni responded with its own

motion for summary judgment, joined by Mr. White, seeking a ruling that its

interpretation should be upheld. In response, the trial judge denied Mr. Leamer’s

motion, entered an unadorned final summary judgment in favor of Omni and Mr.

White, and subsequently awarded Omni its attorneys’ fees and costs, which were

approximately $32,000. This appeal followed.

                                        II.

      Florida is perhaps ground zero in legal battles between homeowners’

associations and property owners over the interpretation and enforceability of

private restrictive covenants, which are commonly used in newer subdivisions,

large developments, and condominium communities. See John N. Redding, Florida

Real Property Transactions § 10.31 (7th ed. 2013).         The State’s burgeoning

population, the desirability of maintaining uniform aesthetics and architectural

standards within a community, and the protection of property values from

detrimental activities, have made restrictions on the use of property pervasive

statewide.

      In a world without restrictive covenants, architectural review boards, and a

court system, neighboring property owners such as the Leamers and Whites would

have to resolve their disputes privately and cooperatively, a timeless and pervasive

method by which order informally and sometimes spontaneously arises without

                                         7
resort to legal process. See Robert C. Ellickson, Order Without Law: How

Neighbors Settle Disputes 4-6 (1991). But human nature prevails; differences arise

that cannot be resolved without an umpire. What one homeowner sees as clear and

unambiguous restrictions are viewed as cloudy and equivocal by another, leading

to disputes that force courts to interpret them. Florida’s appellate courts have

weighed in on covenants affecting vehicle signs, 2 satellite dishes, 3 and even a terra

cotta plaque.4 Yard lights now join this list.

      A benefit of our State’s jurisprudence on restrictive covenants is that the

framework for resolution of this type of dispute is well-established. To begin, we

review and interpret the language of the restrictive covenant de novo, meaning we

are not bound to the trial court’s view and are free to draw our own legal

conclusion about the meaning of the language used. See Klinow v. Island Court at


2
  Shields v. Andros Isle Prop. Owners Ass’n, Inc., 872 So. 2d 1003, 1006 (Fla. 4th
DCA 2004) (signs placed on inside windows of homeowner’s vehicle do not
violate covenant against vehicles with “no lettering or signage thereon”); Wilson v.
Rex Quality Corp., 839 So. 2d 928 (Fla. 2d DCA 2003) (restrictive covenant did
not prevent residents from parking their company’s vehicle in driveway).
3
  Killearn Acres Homeowners Ass’n, Inc. v. Keever, 595 So. 2d 1019 (Fla. 1st
DCA 1992) (satellite television dish is a “structure” subject to restrictive covenant,
which architectural review board applied fairly by prohibiting in front and side
yards).
4
 Lakeridge Greens Homeowners Ass’n, Inc. v. Silberman, 765 So. 2d 95 (Fla. 4th
DCA 2000) (hanging of 2’ x 4’ terra cotta plaque, “which depicts three, clothed
cherubs pouring water from a pail,” subject to approval of community architectural
control board).
                                        8
Boca W. Prop. Owners’ Ass’n, Inc., 64 So. 3d 177, 180 (Fla. 4th DCA 2011). In

doing so, we must make a judgment about the meaning of section 3.17(b) in the

context of this townhouse community.

      Our opening observation is that section 3.17(b) establishes a general

principle: the “construction of ostentatious site features” is “unacceptable.” The

key words are “ostentatious” and “unacceptable,” which raise two interpretive

difficulties. First, it is not at all clear what ostentatious means in this context. See

The New Shorter Oxford English Dictionary 2030 (1993) (“1. Characterized by

ostentation; intended or intending to attract attention or admiration, esp. of wealth

or luxury; pretentious, showy. 2. Likely to attract attention; conspicuous.”). What

standards are to guide Long Point townhouse owners as they make landscaping,

lighting, and service court decisions? Second, unclear is who is to judge that which

is ostentatious and thereby “unacceptable” versus that which is not? Ostentatious,

like beauty, is often in the eye of the beholder, so it helps to know who is tasked

with the beholding.

      Preliminarily, we reject as unreasonable that section 3.17(b) was intended to

prohibit any lighting system, no matter how benign, that “may be offensive to

adjacent neighbors.” Instead, we read that portion of section 3.17(b) which says

that items “such as topiary, sculpture, free standing fountains in the foreground of

townhouses or lighting systems which may be offensive to adjacent neighbors” as

                                           9
setting forth non-exclusive illustrative examples of the types of features that can be

prone to excessiveness, but are not per se ostentatious. Hedges discreetly pruned to

look round, square, or geometric could be deemed topiary because they are clipped

to form “ornamental shapes.” See The New Shorter Oxford English Dictionary

3341 (1993) (topiary defined as “concerned with, involving, or formed by the

clipping of shrubs, trees, etc., into ornamental, geometric, animal or other shapes”).

Yet they are ubiquitous in gated and other privately-restricted communities.

Intricately carved and unobtrusively placed pathway stones are a form of sculpture,

id. at 2739 (sculpture defined as the “art or process of creating . . . representational

or abstract forms in the round, in relief, or (formerly) in intaglio [etching], by

chiseling stone, casting metal, modeling clay, or some other plastic substance,

carving wood, etc., or, now also, by assembling separate parts”); they too are not

necessarily ostentatious.

      The definitional breadth of what may constitute topiary and sculpture

suggests that aesthetic line-drawing is necessary. Whether it be topiary or

sculpture, a judgment has to be made whether the potentially offending site feature

is sufficiently “ostentatious” to warrant banishment. To interpret the sentence

otherwise would prohibit all topiary and all sculpture no matter how understated.

We see no indication that the Board desires to ban non-ostentatious displays of

topiary and sculpture; to do so would throw the baby out with the bathwater.

                                          10
      For parallel reasons, the determination of whether a lighting system that

“may be offensive to adjacent neighbors” is “ostentatious” likewise requires the

exercise of aesthetic judgment; the question here is by whom? The Board says the

language in this phrase eliminates its discretion; it has no power to approve a

lighting system that any adjacent neighbor dislikes. We find no basis for reading

this language as creating veto power. Nothing in section 3.17(b) or elsewhere in

the Covenants clearly and unequivocally gives “adjacent neighbors” a right to veto

any proposed lighting system they find personally and subjectively offensive. If

such a power was intended, it has not been explicitly stated; nor can we infer it

from the language used. The ordinary meaning of section 3.17(b) does not

establish an across-the-board veto by one neighbor over another’s use of her

property; no textual basis exists for such a severe restraint. To impute such a

restriction would cut against the principle that such restraints “are not favored and

are to be strictly construed in favor of the free and unrestricted use of real

property.” Wilson v. Rex Quality Corp., 839 So. 2d 928, 930 (Fla. 2d DCA 2003)

(citing Moore v. Stevens, 106 So. 901, 903 (1925)); see also Lathan v. Hanover

Woods Homeowners Ass’n, Inc., 547 So. 2d 319, 321 (Fla. 5th DCA 1989)

(“[R]estrictive covenants are strictly construed against those who assert the power

to limit the homeowner’s free use of his land.”).




                                         11
        A restrictive covenant “will be enforced according to the intent of the parties

as expressed by the clear and ordinary meaning of its terms.” Shields v. Andros

Isle Prop. Owners Ass’n, Inc., 872 So. 2d 1003, 1005-06 (Fla. 4th DCA 2004);

accord Klinow, 64 So. 3d at 180 (“In determining the enforceability of an

amendment to restrictive covenants, the test is one of reasonableness.”). The most

reasonable interpretation of section 3.17(b) is that the Board wields the authority

and exercises the discretion to determine whether a lighting system is

“ostentatious,” and that the phrase “may be offensive to adjacent neighbors”

merely makes a neighbor’s sensibilities an important factor, but not a decisive one,

in the Board’s decision. This interpretation ensures that aesthetic concerns can be

met by the Board without judicially engrafting a neighbor’s veto into the

restriction. Though section 3.17(b) clearly does not contain such a veto, we note

that as the drafter and enforcer of the restriction, any claimed ambiguity in section

3.17(b) would be construed against the Board and the Whites, respectively.

Shields, 872 So. 2d at 1006; Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 434 (Fla.

1980)     (“Generally,    ambiguities     are construed against    the drafter of   the

instrument.”).

        In holding that section 3.17(b) cannot be read to include a neighbor veto, we

note that Mr. Moore testified that the “idea” for requiring neighbor approval “was

basically a decision of the [Board]” that was not explicitly in the Covenants, which

                                          12
cannot be altered by the Board unilaterally. The Board feared it might get

enmeshed in litigation and thereby “become the focus of the issue rather than

keeping the issue between the two owners.” While the Board may have believed

that compulsory neighbor-approval was the better course to keep the Board out of

such disputes (and out of court), a more clearly worded restriction would be

necessary under the longstanding legal principles that guide courts in these types of

enforcement actions.

      We have no quibble with the Board’s point that townhouse living,

particularly for contiguous wall-sharing owners, presents unique personal

compatibility concerns that may have been the unstated motivation for section

3.17(b). The Board felt that section 3.17(b) was unique because it “only exists in

this one subdivision for this limited group of townhouses” and, in its view, left the

Board with no authority to approve a lighting plan in the face of a neighbor’s

objection, no matter how unreasonable. Our construction of section 3.17(b)’s

language, however, does not defeat its central purpose of ensuring that the

concerns of neighboring townhouse owners are taken into account. See Robins v.

Walter, 670 So. 2d 971, 974 (Fla. 1st DCA 1995) (“[W]hile we are aware that

restrictive covenants should be narrowly construed, they should never be construed

in a manner that would defeat the plain and obvious purpose and intent of the

restriction.”). To the contrary, much elbow room is left to achieve an aesthetically

                                         13
acceptable lighting plan that meets community and neighborly norms without the

interlineation of a veto power. The natural reading of section 3.17(b) is that the

Board must consider in its calculus the views of neighbors who may be (or are)

offended. The Board may give this factor significant weight, but it cannot give it

conclusive or exclusive weight. Other factors, such as the Whites’ concerns about

the adverse effects of nighttime light intrusion on their home and the Leamers’

desire to have safety lights left on when they are away to ward off burglars (some

of whom may surreptitiously use their elongated dock at night to gain entry to the

townhouses), should be put on the Board’s decision-making scale. As it does in

other contexts, the Board must render a measured judgment about the importance

of the concerns expressed and render the ultimate decision on what to approve as

reasonable. Indeed, it appears to have done just that here. After various

modifications to the Leamers’ lighting plan, the Board deemed it reasonable and

accorded it conditional approval. But for the Whites’ veto, the Board adjudged the

new and improved lighting plan as an acceptable one.

                                        III.

      In closing, we note that our holding, which finds no support in the restrictive

covenants for an adjacent-neighbor veto, requires the Board to make the ultimate

determination regarding whether a proposed lighting system complies with section

3.17(b). The Board has been making judgment calls about the reasonableness of

                                        14
lighting systems elsewhere in the community, so we are confident that it can

navigate between the Scylla of restrictive covenants and the Charybdis of

neighbors’ sensitivities in this case as well. Because section 3.17(b) does not grant

the power to veto an adjacent neighbor’s lighting system, the entry of summary

judgment against the Leamers was error. We reverse and vacate the final judgment

on that basis, and direct entry of judgment for the Leamers on their motion for

summary judgment (which sought a ruling that no neighbor veto existed) except as

to their selective enforcement claim for which we find no error. See Killearn Acres

Homeowners Ass’n, Inc. v. Keever, 595 So. 2d 1019 (Fla. 1st DCA 1992).

      REVERSED IN PART, AFFIRMED IN PART.

RAY and OSTERHAUS, JJ., CONCUR.




                                         15
