Roth Rogers Realty, LLC v. Gastaldo

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. RE-20-92
v
ROTH ROGERS REALTY, LLC,

Plaintiff

v. ORDER ON MOTION FOR
TEMPORARY RESTRAINING ORDER
ROBERT A. GASTALDO and ELVIRA
H. GASTALDO,
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Defendants t

The matter before the court is a motion for a temporary restraining order (TRO) by

plaintiff Roth Rogers Realty ("RRR") enjoining defendants Robert A Gastaldo and Elvira H.

Gastaldo ("The Gastaldos") from beginning construction of their home on the property

designated Lot 14 of the Stone Ridge Farm subdivision. For the following reasons, the motion is

denied.

This dispute primarily concerns a disagreement over the Gastalados' building plans on a

property they are purchasing from RRR. RRR is the Declarant for a subdivision known as Stone

Ridge Farm. (Opp. at 2.) The property at issue is designated as Lot 14 within that subdivision.

(Mot. at 2.) The subdivision is subject to a Declaration which imposes numerous restrictions on

improvements to be made to the lot, most importantly setbacks on the front, sides and back of the

lot. Id. The Declaration also imposes "no-cut zones" which prevent the removal of trees and

vegetation within twenty-five feet of a boundary line of the Lot without prior approval. Id. All

improvements to the lot must be pre-approved by RRR. Id.

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On March 18, 2020, the parties entered into a contract for the purchase and sale of the lot.

(Opp. at 5.) Prior to closing on the purchase of the lot, the Gastaldos prepared construction

design and site plans for the home they plan to construct on the lot. Id. The Gastaldos submitted

these plans to RRR for apprnval, pursuant to the provision in the Declaration which requires

them to do so. Id. These plans were drawn to scale and had dashed setback lines which marked

off the setbacks required by the Town of Falmouth. (Def.'s Ex. E.)

On May 12, 2020, RRR executed an addendum to the purchase and sale agreement which

approved the Gastaldos' plans. (Opp. at 5.) RRR never requested additional clarification of the

plans. (Opp. at 7.) The Gastaldos subsequently made changes to their designs and submitted
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updated plans for RRR's approval. Id. RRR executed a third addendum to the purchase and sale 11

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agreement approving these plans on June 25, 2020. Id. i1
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The parties closed on the purchase of the lot on July 24, 2020. Now the Gastaldos wish to !!

move forward with the construction of their home, but RRR contends that because their plans

violate the setbacks in the Declaration they may not do so and brought suit to enjoin

construction. Further, RRR seeks a TRO from this court to enjoin the Gastaldos from beginning

constrnction while this lawsuit is pending.

Procedural Background

RRR filed its complaint and motion for a TRO with the court on November 10, 2020. The

parties agreed by Consent Order dated November 13, 2020, that the Gastaldos would not proceed

with construction until the motion was decided. The Gastaldos responded to the motion on

November 23, 2020, submitting an answer and counterclaim on the same day. RRR replied on

December 2, 2020.

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Standard

A party seeking injunctive relief by a tempora1·y restraining order or a preliminary injunction has

the burden of demonstrating to the court that fom criteria are met. The moving party must

demonstrate that (1) it will suffer irreparable injury if the injunction is not granted; (2) such

injury outweighs any harm which granting the injunctive relief would inflict on the other party;

(3) it has a likelihood of success on the merits (at most, a probability; at least, a substantial

possibility); and (4) the public interest will not be adversely affected by granting the injunction.

Bangor Historic Track, Inc. v. Dep't of Agric., Food & Rural Res., 2003 ME 140, ~9.

Failure to demonstrate that any one of these criteria are met requires that injunctive relief be

denied. Id.,, 10. However, these four criteria " ..are not to be applied woodenly or in isolation

from each other; rather, the court of equity should weigh all of the factors together in

determining whether injunctive relief is proper in the specific circumstances of each case."

Department of Environmental Protection v. Emerson, 563 A.2d 762,768 (Me. 1989).

Discussion

The substance of the complaint is that RRR seeks to prevent the Gastaldos from moving

forward with the construction of their home, which RRR claims is in violation of the covenants

applicable to all of the lots in the subdivision. To determine whether a TRO is warranted, the

court must first examine whether RRR is likely to succeed on the merits of this claim.

The first main controversy on this point concerns whether the setback requirements in the

Declaration were ambiguous. The Gastaldos contend that they are, in virtue of the fact that the

initial subdivision plan RRR filed indicated that there would be a "Front Setback" of 25 feet, a

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"Side Setback" of20 feet and a "Rear Setback" of 40 feet. (Def.'s Ex. A at n.6.) The Declaration,

in Section 7 .7(d), provides for setbacks for front, side, and rear setbacks of 75, 50 and 50 feet,

respectively. (Def.'; Ex. B.) The Gastaldos contend that this generates an ambiguity because the

Declaration also states in Section 7.9(b) that "all structures must be located within the Building

Envelopes as depicted on the Subdivision Plan," which has different setbacks than the

declaration itself, Id.

There is no contradiction here. The subdivision plan refers to the Town of Falmouth's

Code's setbacks, the Declaration sets setbacks of its own. The Declaration was also filed after

the subdivision plan, further removing any potential source of confusion. Clearly the intent was

to have the more restrictive setbacks be the binding ones.

The second point of controversy is more complex. It is undisputed that pursuant to the

Declaration the Gastaldos were required to submit building plans to RRR for approval before

they began construction. It is similarly undisputed that they did submit such plans and amended

them three times, and that each of these plans were approved by RRR. The parties disagree,

however, as to the significance of these approvals. On the one hand, RRR contends that these

plans did not provide any notice that they violated the setbacks in the Declaration, and, in the
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alternative, that the Declaration does not leave RRR with the authority to waive those setbacks if·
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via an approval. On the other hand, the Gastaldos argue that RRR effectively waived any right it ti

had to enforce the setbacks in the Declaration when it approved their plans which violated them.

RRR's contention that it had no authority to waive these setbacks is incorrect. The

Declaration requires anyone seeking to make improvements to the lot to seek approval from

RRR before doing so. (Def.'s Ex. B § 7.1.) This section also contains a brief summary of RRR's

responsibilities in the approval process, including a responsibility to "ascertain whether the

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architecture conforms to the design guidelines set forth herein." Id. The following section

elaborates more on this responsibility, saying that RRR or its designated agent shall use its "best

judgment to see that all improvements, construction, landscaping and alterations on the

properties approved by Declarant conform and harmonize with the Design Guidelines." Id.§ 7 .2.

This language strongly indicates that RRR has more discretion than it claims. At the very least,

unless RRR is claiming it failed to live up to its own responsibilities, approval of a plan reflects

RRR' s belief that the plan meets the guidelines. As the Gastaldos note, many of the other homes

in the subdivision would violate the setbacks in the Declaration as well. (Def.'s Ex. H.) From this

combination of practice and language, the court must conclude that RRR may indeed retain the

ability to waive the setbacks in the Declaration when it approves a plan.

The question, then, is what exactly RRR approved. The parties' filings refer to four plans,

the initially submitted diagrams and the three subsequent addendums. It is then of primary

importance that the court review the plan that was finally approved to see if RRR is correct to

claim that these plans gave no indication of the Gastaldos' intent to build outside of the window

allowed by the setbacks. This, however, presents a problem. The final addendum says it is

approving "the attached final building design and site plans dated 6/18/20." (Def.'s Ex. F.)

However, there are no plans in the record that bear this date. The plan diagrams tliat the

Gastaldos represent were attached to this proposal have the date "5/15/20" on them, but the court

is unsure what to make of this. (Def.'s Ex. G.).

If the court were to assume that the diagrams from the Gastaldos' Exhibit Gare in fact

the site plans referenced in the third addendum, RRR's claim that they had no knowledge that the

plans violated the setbacks in the Declaration would have no merit. The diagrams are to scale

and are clearly marked with distances, meaning a careful inspection would reveal the setback

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violations. This would imply that the Gastaldos, not RRR, have a likelihood of success on the

merits. However, given that the court is unclear as to the status of this Exhibit at this time, all the

court can conclude is that it impossible to say on the record produced with this motion that RRR

is likely to succeed on the merits, and this factor therefore weighs against granting the TRO.

One factor is not dispositive in a decision whether to grant a TRO, bnt none of the other

factors militate towards granting one. This is a purely private dispute, so public policy does not

favor either position. As far as the balance of harms is concerned, while the court is not

unsympathetic to RRR's point that mature trees can be difficult to replace, if the Gastaldos are

ultimately in the wrong they will bear the cost of any necessary replanting work or of their home

not conforming with the restrictions. Furthermore, not allowing them to pursue construction on

their home will delay the completion of the project, incurring additional costs. Due to the

difficulties anticipating when a civil trial on this case might even be held in light of the resurging

COVID-19 pandemic, there is no way for the court to be ceitain how long this case will be

pending. Thus, the balance of harms falls strongly in favor of the Gastaldos. In light of all of

these factors, the motion will be denied.'

The entry is

Plaintiff Roth Rogers Realty, LLC's Motion for a
Temporary Restraining Order is DENIED.

The Clerk is directed to enter this order into the docket by
reference pursuant to M.R.Civ.P. 79(a).

Date:~e<:., io' ,2020
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1 Although the molion is denied, the possibility remains that RRR's claims may be proven at trial, and so both IJ
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parties remain with some l'isk and uncertainty. As this project is in its lnfancy, the parties would benefit by resolving
this matter now prior to significant construction being completed,
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