ANALYSIS OF JUNE 6, 2024 SUPREME COURT ORDER

(Posted June 6, 2024) Today is the 80^th anniversary of the most important day of the Twentieth Century. On this date, over 150,000 men summoned far more courage than I have ever had to call upon over the entire course of my life, and embarked across roiling seas to land on well-defended beaches in Normandy. Today we honor their sacrifice and their determination.

Some of you may know that a single woman accompanied the landing force. Journalist Martha Gellhorn, denied permission to sail, stowed away on a hospital ship, hiding in a bathroom. When the ship arrived across the Channel, she disguised herself as a litter bearer and waded ashore, with no one’s suspecting her sex.

Before D-Day, Gellhorn might have been best known as the estranged wife of Ernest Hemingway. Nowadays she’s better known as one of America’s great journalists. Today we can recall her for her sheer guts.

The Supreme Court announces one published decision this morning. Westrick v. Dorcon Group, LLC involves a ritzy neighborhood in Loudoun County where ten-acre lots are the norm. A developer created the subdivision in 1981, establishing 30 lots, one of which – Lot 5 – comprises 40 acres and some historic properties.

The subdivision document included a set of covenants that prohibited commercial uses on 26 of the lots. It expressly excluded four lots, including Lot 5, from that restriction. It also stated that “these restrictions may be excepted, modified, or vacated in whole or in part at any time upon an affirmative vote of the owners of twenty[-]three (23) lots in said subdivision.”

Early in March 2020, Dorcon Group bought Lot 5, planning to set up a wedding-venue business and a bed-and-breakfast facility. The new neighbor’s plans didn’t sit well with most of the other residents, so two months later, the clerk of court received for recordation an amendment to the subdivision deed. It bore the signatures of the owners of 25 lots, so they plainly cleared the vote threshold. The amendment barred certain commercial activities, specifically including operation of a wedding venue, in all 30 lots.

The 25 signatories to the amendment evidently hadn’t consulted Dorcon when considering this new course of action. Recognizing a NIMBY maneuver when it saw one, Dorcon sued in circuit court, seeking declaratory and injunctive relief against the new restriction.

The circuit court ruled in favor of the neighbors. It held that the original deed contemplated actions like this, and a supermajority of the owners had the right to modify the restrictions. That, the court ruled, included the right to expand the existing restrictions to cover the previously exempted lots.

The Court of Appeals felt otherwise. In an unpublished opinion, the court reversed, holding that the word modify doesn’t include inserting an entirely new restriction.

Today the Supreme Court agrees and affirms the judgment in favor of Dorcon. The justices note that restrictions must be narrowly construed, and that courts resolve any ambiguities in favor of the free use of land. Additionally, the court observes that while the other owners may modify the restrictions, the subdivision document doesn’t allow them to modify the exceptions to those restrictions.

Accordingly, wedding bells will soon ring out in this corner of Loudoun. Today’s order is unanimous; as with most published orders, we can’t know which of The Robes wrote this one.

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This is the third decision from the six appeals argued in the April session. We have three unresolved cases from February, and yesterday’s two from the June session make eight pending appeals in all among the argued cases.

I mention this because the stats geek in me will be following the court over the summer to see if the justices will decide all eight of those appeals before the September session convenes. That would give the court a clearance rate of 100% for the first time in my 19½ years of covering appeals.