Thomas G. Zeal v. Ron Hill Estates Architectural Control

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 5, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2117 Cir. Ct. No. 2017CV208

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

THOMAS G. ZEAL AND CHRISTINE M. ZEAL,

PLAINTIFFS-APPELLANTS,

V.

RON HILL ESTATES ARCHITECTURAL CONTROL COMMITTEE,
KELLY ERRTHUM, STEVEN J. ERRTHUM, ELIZABETH A. QUINN,
RUSSELL C. QUINN, THOMAS K. SCHENKEL, MELISSA SCHENKEL,
PETER J. SWENSON, LANA J. SWENSON, DUANE A. BERNET,
JOHN L. BJERKE, STORMIE A. BJERKE, BRANDON J. BUSCH,
ALLISON J. BUSCH, LEE R. SHERVEN, DEBORAH K. SHERVEN,
JEREMY J. ACE, KARIN R. FEHRMAN A/K/A KARIN R. ACE,
STEVEN P. MUELLER, CATHERINE MUELLER, CRAIG R. JOHNSON,
KRISTI M. JOHNSON, GERALD L. ANDERSON, BETH A. ANDERSON,
MARK W. VINJE AND CARMEN L. PRECHEL,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Green County:
THOMAS J. VALE, Judge. Reversed and cause remanded with directions.
No. 2018AP2117

Before Fitzpatrick, P.J., Blanchard, Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Thomas and Christine Zeal, lot owners in a
residential subdivision, appeal an order denying their summary judgment motion
and granting summary judgment in favor of the other subdivision lot owners and
the subdivision’s Architectural Control Committee (collectively, “the neighbors”).
Under restrictive covenants that govern lots in the subdivision, the Committee
must approve proposed alterations to existing structures on any lot. The
Committee denied the Zeals’ request to build a second attached garage based on a
covenant that governs garages.

¶2 The Zeals sought declaratory relief in circuit court, namely, a
declaration that the garage covenant does not prohibit the Zeals from adding a
second attached garage, and also sought an order that the Committee must grant
the Zeals’ request. The circuit court rejected this relief. The court instead agreed
with the neighbors that the garage covenant unambiguously restricts each lot to a
single attached garage and granted summary judgment to the neighbors.

¶3 Case law requires that, in order to be enforceable, restrictive
covenants must be “‘expressed in clear, unambiguous, and peremptory terms.’”
Diamondback Funding, LLC v. Chili’s of Wis., Inc., 2004 WI App 161, ¶13, 276
Wis. 2d 81, 687 N.W.2d 89 (quoting Crowley v. Knapp, 94 Wis. 2d 421, 435, 288
N.W.2d 815 (1980)). We conclude that the garage covenant does not contain a
clear, unambiguous, and peremptory prohibition on the Zeals’ lot having more
than one attached garage. Accordingly, we reverse the order granting summary
judgment in the neighbors’ favor. Further, because the neighbors concede that

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summary judgment in favor of the Zeals is appropriate if the garage covenant does
not contain such a prohibition, we remand with directions that the circuit court
enter summary judgment in the Zeals’ favor.

BACKGROUND

¶4 The Declaration of Restrictions and Covenants for the subdivision
(“the covenants”) governs specified uses of the Zeals’ lot. Under § 7.01 of the
covenants, lot owners seeking to erect or alter structures on their lots are required
to obtain approvals from a committee of lot owners established under the
covenants, known as the “Architectural Control Committee.” Section 7.01
requires submitting to the Committee detailed plans meeting certain
specifications.1

¶5 At all times pertinent to this appeal, the Zeals’ lot has had a single
dwelling with a three-car attached garage. The Zeals submitted plans and
specifications to the Committee pursuant to § 7.01 seeking approval to build a
second three-car attached garage.
1
Section 7.01 reads in full:

Section 7.01. General Provisions. No dwelling,
building or structure shall be erected, placed or altered on any
Lot until the construction plans and specifications and a plot plan
showing the location of the structure have been approved by the
Architectural Control Committee as to quality of workmanship
and materials, harmony of exterior design with existing
structures in the subdivision and as to location with respect to
topography and finish grade elevation. The plot plan must
indicate the top of the foundation of the proposed structure in
relation to the nearest street and the proposed water drainage
patterns of the Lot. Approval of the proposed plans shall not be
granted in the event that the proposed finished grade elevation
and drainage patterns are not compatible with the adjacent Lots
and the overall drainage plan for [the subdivision].

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¶6 The Committee eventually took the position that the plans and
specifications submitted by the Zeals complied with the review provisions of
§ 7.01. However, the Committee denied the request on the ground that § 4.03 of
the covenants prohibits the Zeals from constructing a second attached garage.

¶7 Section 4.03, which we will call “the garage covenant,” is the
primary focus of this appeal. The garage covenant reads in its entirety: “Garages.
All dwellings must have at least a two car (and not more than three car) attached
garage.”

¶8 The Zeals commenced this action against the neighbors in circuit
court, seeking a declaration that the covenants do not prevent the Zeals from
building the second attached garage described in their plans and specifications.

¶9 Both sides moved for summary judgment. The circuit court
concluded that the neighbors presented the only reasonable interpretation of the
garage covenant, and on this basis granted their summary judgment motion and
denied the Zeals’ motion. The court’s order declared that the garage covenant
prohibits the Zeals from building a second attached garage and granted the
neighbors their attorney fees under a covenant that calls for shifting onto any lot
owner found in violation of the covenants the attorneys fees expended in
enforcement.2

¶10 The Zeals appeal. We will address additional background as needed
below.

2
The Zeals do not present a standalone challenge to the grant of the neighbors’
attorneys’ fees, but our reversal of the circuit court’s summary judgment order removes their
obligation to pay the fees.

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No. 2018AP2117

DISCUSSION

¶11 The parties dispute whether the garage covenant prohibits the Zeals
from building a second attached garage. The neighbors focus their arguments
exclusively on the garage covenant and do not argue that, if it does not prohibit the
second attached garage, some other covenant does. Nor do the neighbors argue
that the Zeals’ requested relief of summary judgment is otherwise inappropriate.3

¶12 We summarize applicable legal standards, then present the parties’
interpretations of the garage covenant and explain our conclusion.

¶13 We review a grant or denial of summary judgment independently of
the circuit court, applying the same standards as employed by the circuit court.
Solowicz v. Forward Geneva Nat’l, LLC, 2010 WI 20, ¶13, 323 Wis. 2d 556, 780
N.W.2d 111. This includes when summary judgment is rendered pursuant to
granting or denying a request for declaratory relief, “particularly [a request for
declaratory relief] that turns upon a question of law.” Olson v. Town of Cottage
Grove, 2008 WI 51, ¶33, 309 Wis. 2d 365, 749 N.W.2d 211. Summary judgment
is appropriate in cases in which there is no genuine issue of material fact and the
moving party has established his or her right to judgment as a matter of law. WIS.
STAT. § 802.08(2).

3
The Committee initially took the position that a covenant limiting the number and scale
of permitted outbuildings on each lot was a further basis to deny the Zeals’ request to build a
second garage. However, after this action was filed, the neighbors have conceded both in the
circuit court and on appeal that the second attached garage proposed by the Zeals would not
violate the covenant limiting outbuildings.

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¶14 The interpretation of a restrictive covenant and the determination of
whether the language of a restrictive covenant is ambiguous present questions of
law. Zinda v. Krause, 191 Wis. 2d 154, 165, 528 N.W.2d 55 (Ct. App. 1995).

¶15 To repeat, restrictive covenants may not be enforced unless they are
“‘expressed in clear, unambiguous, and peremptory terms.’”4 Diamondback, 276
Wis. 2d 81, ¶13 (quoting Crowley, 94 Wis. 2d at 435). Ambiguity includes the
circumstance in which the pertinent text is susceptible to more than one reasonable
interpretation. See Solowicz, 323 Wis. 2d 556, ¶36.

¶16 By the same token, if the intent or purpose of a covenant is clear
from its terms, it is to be strictly enforced. See id., ¶36 (citing Zinda, 191 Wis. 2d
at 166); see also id., ¶41 (“Courts do not determine the reasonableness of …
unambiguous servitudes.”). Under this rule, a covenant “need not expressly
prohibit the specific activity in question; when the purpose is ascertainable, the
document should be construed to give effect to that purpose.” See id., ¶36 (citing
Bubolz v. Dane Cty., 159 Wis. 2d 284, 294, 464 N.W.2d 67 (Ct. App. 1990)).

¶17 The parties present competing interpretations of the garage covenant.
According to the Zeals, it establishes nothing more or less than the following:
each dwelling is required to have at least one attached garage, which shall have a
two- or three-car capacity. They argue that, on the topic of the number of attached
garages any dwelling must or can have, the covenant exclusively addresses the
minimum number of attached garages (each dwelling must have at least one), and

4
Because this may be a somewhat uncommon use of the term “peremptory,” we provide
the following definitions: “Final; absolute; conclusive; incontrovertible.” Peremptory, BLACK’S
LAW DICTIONARY, p. 1318 (10th ed. 2014).

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No. 2018AP2117

therefore it could not unambiguously establish a maximum number of attached
garages.

¶18 The neighbors contend that the garage covenant mandates that there
be one, and only one, attached garage with a two- or three-car capacity. In the
alternative the neighbors contend that, even if the garage covenant does not
prohibit multiple attached garages, it places an aggregate car-capacity limit for all
attached garages on each lot of not less than two cars and not more than three cars.
Under this view, the Zeals have already reached the maximum allowed attached
garage capacity of three cars and impermissibly seek a total attached garage
capacity of six cars.

¶19 As we describe in more detail below, we conclude that the garage
covenant does not unambiguously prohibit the Zeals from constructing a second
attached garage. After explaining this conclusion, we further explain why we
reject the neighbors’ arguments.

A. Plain Meaning Interpretation

¶20 As we now explain, the garage covenant does not contain a
prohibition on additional attached garages that is expressed in clear, unambiguous,
and peremptory terms. Specifically, when examining the textual elements of the
garage covenant individually and as a whole, the provision does not clearly
express a maximum number for attached garages.

¶21 To repeat, the garage covenant reads: “All dwellings must have at
least a two car (and not more than three car) attached garage.” To begin, the verb
phrase “must have” gives the garage covenant the character of a requirement, but
not in the form of a maximum number of attached garages. There can be no

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reasonable dispute that the phrase “must have” in the garage covenant expresses a
command that each dwelling must possess an attached garage, without clearly
expressing a prohibition on the possession of additional attached garages.

¶22 Next, the phrase “at least,” preceding “a ... garage,” means “not less
than.” Least, AMERICAN HERITAGE DICTIONARY
(https://www.ahdictionary.com/word/search.html?q=at+least) (defining the idiom,
“at least”). This is in contrast to a phrase like “at most,” which is not used here
and means “not more than.” Most, AMERICAN HERITAGE DICTIONARY
(https://www.ahdictionary.com/word/search.html?q=most) (defining “at (the)
most” as “[a]t the maximum”).

¶23 Significantly, the indefinite article “a,” which the parties agree
modifies “garage,” does not necessarily mean “one and only one,” as would
clearly impose a prohibition on more than one attached garage. “[I]t is common
knowledge that in the English language, while the indefinite article ‘a/an’
sometimes does signify one-and-only-one, it may in the alternative ‘precede a
noun when the thing named is not already known to the reader. In other words,
the indefinite article ‘a’ often means ‘any’ (rather than ‘only one’).’” Local 321,
Int’l Ass’n of Fire Fighters v. City of Racine, 2013 WI App 149, ¶19, 352
Wis. 2d 163, 841 N.W.2d 830 (quoted source omitted). Therefore, it is reasonably
debatable whether the “a” in the phrase “at least a two car (and not more than three
car) attached garage” sets a maximum limit on the number of attached garages at
one, or may instead allow for additional garages, beyond “a” “garage.”

¶24 The remaining language in the garage covenant modifies “garage” in
ways that do not place a limit on the number of attached garages. “[T]wo car (and
not more than three car)” describes the car capacity of an “attached garage”—how

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many cars an attached garage can accommodate—while “attached” signifies that
all garages being referred to are connected to dwellings.

¶25 As can be readily seen in this summary, there is no clear expression
of a maximum number of attached garages per lot. In the absence of any such
language, we cannot conclude that the covenant expressly prohibits the building of
a second attached garage.

¶26 Combining textual elements, it is reasonable to interpret the garage
covenant as setting only a floor on the number of attached garages, establishing
the minimum number at one. This would match the Zeals’ interpretation, under
which “[a]ll dwellings,” are required (“must”) to possess (“have”) a minimum of
(“at least”) one—but not necessarily only one—(“a[n]”) “attached garage.” Given
this reasonable interpretation, even if the neighbors could demonstrate an
alternative, and also reasonable, interpretation that sets a maximum on the number
of attached garages at one, the covenant would not clearly express a prohibition on
the Zeals building a second garage.

¶27 It is easy to imagine a covenant expressing, in clear, unambiguous,
and peremptory terms, a rule that lot owners shall not build more than one
attached garage, using phrases such as “shall be limited to” or “not more than.”
As the Zeals point out, such phrases are used elsewhere in the covenants of the
subdivision here.5 And, case law provides an example of a covenant that
unambiguously limited the number “private garages” that could be built on a lot.
See Pietrowski v. Dufrane, 2001 WI App 175, ¶¶8-9, 18, 247 Wis. 2d 232, 634

5
Examples include one covenant that “[m]ulti-family dwellings are prohibited” and
another that “[a]ll dwellings shall be limited to two stories excluding the basement.”

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No. 2018AP2117

N.W.2d 109 (rejecting equitable defenses to enforcement of covenant stating that
on each lot “there shall be built no building other than a one family dwelling house
and a private garage for not more than three automobiles”).

¶28 The neighbors contend that the only reasonable plain language
interpretation of the garage covenant is that it clearly and expressly prohibits the
building of second attached garage by requiring that there be one and only one
garage that has the capacity for “at least” two cars and “not more than” three cars.
We need not describe the neighbors’ plain language argument in detail, because it
has a fatal flaw. The flaw is that, to the extent that the argument has merit, it
establishes only the following: most of the language in the attached garage
covenant addresses the capacity of one attached garage and not the number of
attached garages allowed. This does not even begin to equate to the expression of
a prohibition on the number of attached garages, much less one with the clarity
required by case law. One way of summarizing our conclusion is that the
neighbors fail to come to grips with the following point: a rule that a person must
possess one X is not equivalent to a rule that the person may not possess more than
one X.

¶29 In essence, the neighbors ask us to insert into the garage covenant
words that the drafters omitted or to otherwise rewrite the covenant. See
Columbia Propane, L.P. v. Wisconsin Gas Co., 2003 WI 38, ¶12, 261 Wis. 2d 70,
661 N.W.2d 776 (“In constructing a contract, ‘courts cannot insert what has been
omitted or rewrite a contract made by the parties.’”) (quoted source omitted);
Solowicz, 323 Wis. 2d 556, ¶¶34-35, 42-43 (describing interpretation of restrictive
covenants as a form contract interpretation favoring free use of property).

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¶30 As summarized above, the neighbors further argue that, even if we
conclude that the garage covenant does not prohibit the building of additional
attached garages, it nonetheless creates a “clear restriction” that all attached
garages on any lot can have an aggregate capacity of no more than three cars.
This argument fails because, as we have explained, “two car” and “not more than
three car” modify “garage,” specifically the clearly required first attached garage,
without any indication of a limit on the building of additional attached garages.

¶31 The neighbors alternatively argue that interpreting the garage
covenant in a way that does not prohibit additional attached garages, with no
aggregate limit on car capacity, renders the three-car capacity maximum
“superfluous.” If by “superfluous” the neighbors mean that the three-car capacity
maximum would necessarily be meaningless, this is obviously not true. A clear
meaning would be that the required initial attached garage must have two or three
car spaces.

B. Absurdity

¶32 The neighbors apparently intend to argue that the garage covenant
must be interpreted to prohibit building more than one two- or three-car attached
garage because any other interpretation would render the limitation expressed in
the phrase “no more than three car” an absurd rule. The absurdity, they suggest, is
that no drafter of restrictive covenants for a residential subdivision would ever
intentionally limit a required initial attached garage to a maximum capacity of
three cars (showing a clear purpose to limit the capacity of attached garages) and
also fail to prohibit owners from building as many adjacent attached garages as an
owner would like (abandoning any purpose of limiting the total capacity of
attached garages on a lot).

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¶33 We are not persuaded that this is an obvious absurdity, one that
could not possibly have been intended by the drafters of the attached garage
covenant. First, the three-car capacity maximum does not reflect a clear purpose
to limit the total capacity of all attached garages on a lot; the covenant evinces a
clear purpose only to limit the capacity of the required initial attached garage.
Second, it would not be absurd for the drafters to have decided that the initial
buyer of each individual lot must build at least one attached garage of the specified
capacity of two or three cars, and that the garage covenant is concerned only with
that initial attached garage. After that, the drafters’ thinking could reasonably
have been that it would be possible, but unlikely, that a lot owner would entertain
the idea of building an additional attached garage, and in that assumed rare event
other covenants including Section 7.01 would provide sufficient protection of
pertinent subdivision interests. The neighbors fail to account for such possible
rationales.

¶34 As part of their absurdity argument, the neighbors raise
hypotheticals but fail to incorporate them into developed, supported arguments.
They suggest that, if the garage covenant does not create a maximum limit, then
there is nothing that would allow the neighbors to prevent the addition of third or
fourth garages to dwellings in the subdivision. We assume, without deciding, that
it would be absurd for any subdivision with restrictive covenants to fail to provide
some means of prohibiting the building of as many as four attached garages on a
single lot. Even with this assumption, however, the neighbors fail to persuade us
that the Committee here could not reject specific applications for specific third or
fourth attached garages, with their corresponding driveways, in order to protect
subdivision interests as clearly expressed in existing covenants, such as § 7.01,
which prohibits designs out of harmony with exterior features of other buildings or

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when there are genuine issues regarding grading or drainage. This absurdity
argument fails to take into account the possibility that some significant percentage
of hypothetical owners’ submissions of detailed specifications for attached
garages, beyond the required initial garage, might in fact pose legitimate problems
under various covenants other than the garage covenant. The neighbors concede
that there are no such problems with the Zeals’ current proposal.

C. Purpose Of Covenants

¶35 The neighbors make two arguments related to what they submit is
the ascertainable or readily apparent purpose of the covenants generally and of the
garage covenant specifically. First, the neighbors contend that interpreting the
garage covenant as not including an express prohibition on multiple attached
garages “threatens to defeat the very purpose” of the covenants generally. The
neighbors point to an opening passage of the covenants, which identifies their
general purpose as “protect[ing] and preserv[ing] the values” of the lots in the
subdivision “for the mutual benefit and protection of all owners of [l]ots.”6
Second, the neighbors rely on case law to contend that, even if the garage
covenant does not expressly impose a maximum number of attached garages per
dwelling, it has an ascertainable purpose to do so. We address these purpose-
related arguments in turn.

¶36 The neighbors assert that the absence of a prohibition on multiple
attached garages would run contrary to the ascertainable purpose of preserving lot

6
The neighbors also point to the purpose, expressed in § 7.01, of preserving “harmony
of exterior design” of buildings within the subdivision. However, they fail to develop a
standalone argument based on this purpose, beyond what they argue about the purpose of
preserving lot values that we address in the text.

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values, because additional attached garages would lower the value of each lot with
more than one attached garage, as well as the values of some or all other lots in the
subdivision. However, the neighbors fail to explain why we must conclude that
the building of multiple attached garages on a single lot violates the purpose of lot-
value preservation. The neighbors’ argument calls for extrinsic evidence, which
we cannot consider in the context of interpreting restrictive covenants, and which
is in any case lacking in the record here. See Forshee v. Neuschwander, 2017 WI
App 43, ¶¶10 n.2, 15, 377 Wis. 2d 162, 900 N.W.2d 100 (circuit court erred “by
going beyond the text” of restrictive covenant “and considering extrinsic evidence
to determine the covenant’s intent”), aff’d on divided grounds, 2018 WI 62, ¶15,
381 Wis. 2d 757, 914 N.W.2d 643.

¶37 There may be common sense to the proposition that it might
adversely affect property values if owners are allowed to build multiple attached
garages on some lots in some subdivisions, depending on all circumstances.
However, there might also be common sense to the notion that allowing at least
some additional attached garages, at least in some subdivisions, might increase
values. Further, the authors of a set of covenants generally intended to protect
property values might not draft each individual covenant with the goal of perfectly
maximizing property values of each lot. In any case, at issue here is whether there
is an express prohibition on attached garages in this subdivision, as contemplated
in these covenants. And the neighbors cannot point to any statement in the
declaration here linking the property value concern to a purported prohibition on
additional attached garages.

¶38 The neighbors attempt to bolster their argument regarding the
general property-value purpose of the covenants by drawing parallels to our
published decision in Bubolz. Aspects of this argument are difficult for us to

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track, but the following is our best effort at summarizing and addressing the
argument.

¶39 In Bubolz, we upheld an injunction prohibiting the use of a
residential dwelling as a business, because the dwelling was subject to a restrictive
covenant that there “shall be” “[n]ot more than one (1) single family residence” on
any lot. Bubolz, 159 Wis. 2d at 290. We held that this covenant could be
enforced to prohibit business use of the single family home because the opposite
approach would “negate the general plan of the subdivision” to create a
subdivision consisting entirely of single family homes. Id. at 294. The neighbors
here contend that we should treat the garage covenant here like the covenant in
Bubolz, which lacked an express prohibition on business activity, but was
nonetheless held to prohibit business activities because it had the ascertainable
purpose of limiting use to residential: even though the garage covenant here lacks
an express prohibition on additional attached garages, it should nonetheless be
held to prohibit additional attached garages because an ascertainable purpose of
the garage covenant is to preserve lot values.

¶40 However, the neighbors’ reliance on Bubolz does not add to their
arguments that we reject elsewhere in this opinion. As we have explained, we do
not clearly discern from the terms of the garage covenant a specific purpose to set
the maximum number of garages, as opposed to only setting car-capacity
standards for an initial, required attached garage. Nor do we see how the
neighbors’ interpretation of a limit on the maximum number of attached garages
would more obviously promote the general purpose to protect lot values than
would a rule that exclusively requires that there be at least one attached garage
with a specified car capacity.

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¶41 The facts of Bubolz are readily distinguishable. There, the covenant
at issue had a clear nexus to the “general plan” of the covenants as a whole to
preserve the subdivision exclusively for residential use, and no amount of
commercial use was consistent with this purpose. See id. at 292-93. Thus, it was
not necessary for the covenant in Bubolz to expressly state a rule prohibiting
commercial use of residential dwellings. See Solowicz, 323 Wis. 2d 556, ¶36
(citing Bubolz, 159 Wis. 2d at 294) (prohibition of specific activity should be
enforced where purpose to do so is ascertainable from text, even where prohibition
of specific activity is not express).

D. “Driveways” Covenant

¶42 The neighbors argue that interpreting the covenants as a whole, with
particular attention to one other covenant, supports its argument regarding the
garage covenant. Specifically, the neighbors argue that covenant § 4.04, entitled
“Driveways,” supports their interpretation of the attached garage covenant.
Section 4.04 requires that “[e]ach residence shall have a concrete driveway the
width of the garage and extending at least twenty feet from the garage to which it
connects.” The neighbors contend that the lack of “at least” in § 4.04 (in what
would be the phrase “at least a concrete driveway”) and the use of the singular
“garage,” demonstrate that the covenants contemplate each dwelling having a
single attached garage with a single driveway.

¶43 It is true that the use of the definite article “the” in conjunction with
“garage” in § 4.04 provides some support for the idea that the covenants
contemplate that each lot would have only one attached garage. See State v.
Arberry, 2018 WI 7, ¶19, 379 Wis. 2d 254, 905 N.W.2d 832 (noting that using
“the” before a singular noun denotes “only one unique, specified” iteration of that

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noun). On the other hand, we note that the phrase “to which it connects” could
imply the existence of other attached garages to which “a” driveway on the lot
does not connect, with “the garage” simply being a reference to the required initial
attached garage to which the driveway connects. The neighbors fail to persuade us
that § 4.04 renders the garage covenant an expression “in clear, unambiguous, and
peremptory terms” of a limitation on the number of attached garages or that § 4.04
is itself such an expression.7

E. Instructions On Remand

¶44 Turning to next steps in this case, the Zeals in their initial brief on
appeal request that judgment be entered in their favor declaring the following:

• The garage covenant “does not limit dwellings located in [the
subdivision] to having one attached garage”;

• “An attached garage is not an ‘outbuilding’ as that term is defined in
§ 5.01” of the covenants;

• The covenants as a whole “do not prohibit the Zeals from constructing a
second attached garage on their dwelling”; and

• The Zeals “are authorized to construct a second attached garage as the
[subdivision] Architectural Control Committee found no basis under
[covenant § 7.01] to deny the Zeals’ request.”

¶45 We now recap pertinent points noted above. The neighbors concede
that covenant § 5.01, which governs outbuildings, does not preclude the
construction of a second attached garage. The neighbors also concede that the

7
In response to arguments by the Zeals involving other covenants, beyond those that we
have referred to up to this point, the neighbors pose counterarguments. However, we do not
discern in these counterarguments a contention that any of these other covenants, individually or
collectively, affirmatively support the neighbors’ interpretation of the attached garage covenant.

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Committee has found no basis under its review responsibilities, as set forth in
covenant § 7.01, to deny the Zeals’ proposal to build the second attached garage
(i.e., the specifications are adequate and proper). Further, the neighbors do not
identify any other covenant besides the garage covenant as a potential basis to
prohibit the Zeals from building the proposed second attached garage.

¶46 With those points in mind, and given our conclusion that the garage
covenant does not prohibit the second attached garage in clear, unambiguous, and
peremptory terms, the neighbors have provided no additional reason to deny the
Zeals’ requested relief. Accordingly, we direct the circuit court to enter judgment
in the Zeals’ favor consistent with their requests.

CONCLUSION

¶47 For these reasons, we reverse the circuit court’s order granting the
neighbors’ motion for summary judgment and denying the Zeals’ motion for
summary judgment, and remand to the circuit court with directions that the court
grant summary and declaratory judgment to the Zeals consistent with our
discussion above.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

18