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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN REKK THE BOARD OF DIRECTORS OF SHIBUI __ ) CASE NO. ST-2013-CV-395 CONDOMINIUM ASSOCIATION ) ) ACTION FOR TEMPORARY Plaintiff, ) RESTRAINING ORDER, ) PRELIMINARY INJUNCTION, v. ) PERMANENT INJUNCTION, ) DECLARATORY JUDGMENT, DARIAN SOLUTIONS, LLC, JANUSZ ) BREACH OF FIDUCIARY, PIWOWAR, AND DARIUSZ CHUDYK, ) MISREPRESENTATION, ) AND DAMAGES Defendants. ) ) MEMORANDUM OPINION Before the Court is Plaintiffs Motion for Summary Judgment (Plaintiff's “Motion”), which was filed on October 1, 2014. Defendants filed their Opposition to Plaintiff's Motion (Defendants’ “Opposition”) on October 24, 2014, and on February 19, 2015, Plaintiff filed a Reply to Defendants’ Opposition pursuant to a Court Order dated February 9, 2015. In its Motion, Plaintiff seeks summary judgment in its favor on its requests for declaratory relief! and injunctive relief,’ set forth in Counts I and II respectively of its Complaint. The remaining counts of Plaintiff's Complaint are not implicated in Plaintiff's Motion. Plaintiff also seeks summary judgment on all counts of Defendants’ Counterclaim.’ In Count I of Plaintiff's Complaint, Plaintiff alleges that it is “entitled to an Order declaring the building and/or construction permit issued to Darian in regards to Unit 10 within the Condominium is void.” Plaintiff is entitled to summary judgment in its favor on this request for several reasons. Not only has the building permit at issue expired due to the passage of time, the building permit was obtained in violation of the Shibui Condominium Association’s Declaration (“Declaration’’), the Shibui Condominium Association’s Bylaws (“Bylaws”) and certain provisions of the Virgin Islands Condominium Act (“VICA”). Consequently, summary judgment shall be granted in Plaintiffs favor on Count I of Plaintiff's Complaint. The Court will reserve ruling on the remainder of Plaintiff's Motion. ' See Pl.’s Mot. for Summ. J. 1 (requesting a judgment “declaring that the building and/or construction permit issued to Darian for Unit 10 is void”). ? See id. (requesting summary judgment on Plaintiff's request for a permanent injunction “enjoining demolition and/or any exterior work on Building 10 that does not strictly comply with Virgin Islands law and the Shibui governing documents”). 3 See id. (excluding any mention of Counts III-V of Plaintiff's Complaint). 4 Td. 5 Compl. § 49. The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION PROCEDURAL HISTORY On July 30, 2013, Plaintiff filed suit against Defendants Darian Solutions, LLC (“Darian”), Janusz Piwowar (“Piwowar”), and Dariusz Chudyk. Defendants filed their Answer to Plaintiffs Complaint on September 9, 2013. Defendants’ Answer contains a Counterclaim which purports to state five causes of action against Plaintiff and Counter-Defendant Lorie Graham. The following facts are undisputed for the purposes of ruling on this motion. Plaintiff is the board of directors of an unincorporated association of condominium owners formed pursuant to the Declaration Establishing a Plan for Condominium Ownership of Parcels 7 and 112 Estate Contant, No. 7A Southside Quarter, St. Thomas, U.S. Virgin Islands, Pursuant to Chapter 33, Title 28, Virgin Islands Code.® The Shibui Condominiums (“Shibui”) consist of twenty-five individual condominium units located on Parcels 7 and 112 Estate Contant, No. 7A Southside Quarter, St. Thomas, U.S. Virgin Islands (the “Property”).’ Each unit at Shibui consists of “the area measured horizontally from the unit side of the exterior walls of the building to the unit side of the walls and/or partitions separating such unit and vertically. Each unit consists of the space between the top surface of each floor and the under surface of each ceiling and the porch for the unit.”® The common areas and facilities “consist of the entire Property? including, but not limited to, all parts of the [bJuildings other than the [uJnits, including, without limitation the land on which the [bJuildings are erected, all roofs, foundations, columns, beams and supports, all exterior walls of the buildings, all walls and partitions separating [uJnits from steps, stairways, and landing platforms, or from other common or limited common areas; all floors and ceilings; [and] all landscaping, all roads and walkways . . . .”!° Shibui is governed by its Declaration and its Bylaws.'' The parties agree that, under the Bylaws, the common areas “are for the servicing of the [uJnits only and owners are prohibited from interfering with the proper use of the whole Property by other owners.”!? Each owner may use the common areas in accordance with the purposes for which they were intended, without hindering or encroaching upon the lawful rights of other apartment owners.'? The Bylaws also specify that unit owners shall not place or cause to be placed any obstructions in the common areas.'* Any improvements to a unit must first be approved by Shibui’s Board of Directors (the ° Pl.’s Stmt. of Undisp. Material Facts 1, { 1; Defs.’ Resp. to PI.’s Stmt. of Undisp. Material Facts 1, § 1. 7PI.’s Stmt. of Undisp. Material Facts 1, {| 1; Defs.” Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, § 1. * Pl.’s Stmt. of Undisp. Material Facts 2, 3. See also Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 2, q3 (agreeing that this fact is undisputed for purposes of ruling on Plaintiff's Motion). ° Plaintiff's Statement of Undisputed Material Facts defines “Property” as real property located at Parcels 7 and 112 Estate Contant, No. 7A Southside Quarter, St. Thomas, U.S. Virgin Islands. When referring to the “Property,” Plaintiff and the Court are referring to the same parcels of land. '© P].’s Stmt. of Undisp. Material Facts 2-3, 9. See also Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 2, 49 (agreeing that this fact is undisputed for the purposes of ruling on Plaintiff's Motion for Summary Judgment). '' Pl.’s Stmt. of Undisp. Material Facts 1-2, 1; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, 4 1. 2 Pl.’s Stmt. of Undisp. Material Facts 3, 911. See also Defs.’ Resp. to PI.’s Stmt. of Undisp. Material Facts 1, § 11 (agreeing that this fact is undisputed for the purposes of ruling on Plaintiff's Motion). '3 P].*s Stmt. of Undisp. Material Facts 3, { 13; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, J 13. '4 Pl.’s Stmt. of Undisp. Material Facts 3, {| 12; Defs.’ Resp. to PI.’s Stmt. of Undisp. Material Facts 1, § 12. The Board of Directors of Shibui Condominium Association v, Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION “Board”),'> and any application to any department of the Government of the Virgin Islands or any other government authority for a permit to alter a unit requires the Board’s signature.'° The Bylaws empower the Board to enjoin or abate any violations of the Declaration or the Bylaws. On August 19, 2011, Darian, through Piwowar, submitted a request to the Board to “rebuild Unit #10 to like new status.”!” After the Board approved Darian’s proposal, the Board learned that the proposal that was presented was not what was being implemented by Darian.'* Piwowar has admitted that he hired an architect to revise the drawings that he had submitted to the Board after the Board had given its approval to rebuilt Unit 10,! However, the Board did not sign any permit applications relating to Unit 10.2 A letter rescinding the Board’s initial approval of Darian’s proposal to rebuild Unit 10 was delivered to Darian, through Piwowar, on or about May 14, 2012.7! At the January 27, 2013 annual meeting of unit owners, those voting unanimously voted to disapprove the rebuilding of Unit 10.2? The next day, Darian was notified in writing of this result.?3 SUMMARY JUDGMENT STANDARD “A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought.”** The party moving for summary judgment bears the burden of demonstrating that there is no genuine issue of any material fact and that it is entitled to judgment as a matter of law.2> This burden may be met by pointing out that there is an absence of evidence to support a particular element of the nonmoving party’s case,76 Once the moving party makes its showing, the opposing party must “make a showing sufficient to establish existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.”?’ The opposing party “may not rest on mere allegations ' Pl.’s Stmt. of Undisp. Material Facts 3, | 15; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, 4 15. '° PI.’s Stmt. of Undisp. Material Facts 4, §] 24; Defs.’ Resp. to PI.’s Stmt. of Undisp. Material Facts 1, § 24. '” Pl.’s Stmt. of Undisp. Material Facts 3, §] 14; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, 14. 'S Pl.’s Stmt. of Undisp. Material Facts 4, 18; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, § 18. '° P].’s Stmt. of Undisp. Material Facts 4, {| 19; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, § 19. *° PI.’s Stmt. of Undisp. Material Facts 5, 25; Def.’ Resp. to PI.’s Stmt. of Undisp. Material Facts 1, § 25. 21 P].’s Stmt. of Undisp. Material Facts 5, {| 28; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 2, § 28. * Pl.’s Stmt. of Undisp. Material Facts 5, } 33; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 2, ] 33. 23 P].*s Stmt. of Undisp. Material Facts 5, {| 34; Defs.” Resp. to PI.’s Stmt. of Undisp. Material Facts 2, §] 34. *4 Fep. R. Civ. P. 56(a). Federal Rule of Civil Procedure 56 applies to this case through the operation of Superior Court Rule 7. 25 Id. 26 Td. 56(c)(1)(B). Accord Bordeaux v. Swift Transportation Co. Inc., 402 F.3d 536, 544 (5th Cir. 2005); Martinez v. CO2 Services, Inc., 12 Fed. Appx. 689, 694 (10th Cir. 2001); Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000); Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996); Geonaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). 77 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION but must present actual evidence showing a genuine issue for trial.”2® The opposing party must provide more than a scintilla of supporting evidence to survive a motion for summary judgment.”? The Court will consider the evidence provided by both parties and view all inferences to be drawn from that evidence in a light most favorable to the nonmoving party before ruling.*° If the Court does not grant all of the relief requested by the motion, it “may enter an order stating any material fact—including an item of damages . . . that is not genuinely in dispute and [treat] that fact as established in the case.”3! “A fact is material if it can affect the outcome of the case,’”?? and a genuine dispute exists if the evidence is such that a reasonable jury could find in favor of the nonmoving party on the disputed fact.*° ANALYSIS Plaintiff asks the Court to construe its rights under the laws of the Virgin Islands, the Declaration, and the Bylaws, and determine that the permit issued by the Department of Planning and Natural Resources (“DPNR”) to Darian is void.** Plaintiff maintains that Darian’s proposed alterations to Unit 10 encroach on the common areas and facilities of the Property.*> Plaintiff claims that the Virgin Islands Condominium Act (“VICA”) obligates Darian to receive unanimous consent from all Unit owners before performing renovations that encroach on Shibui’s common areas and facilities, but that Darian received no such consent.*° Plaintiff also argues that the VICA grants all Unit owners the right to access the common areas and facilities of the Property, but that Darian’s proposed expansion would deprive the other Unit owners of this right.” Plaintiff claims that Darian’s proposed expansion violates the Bylaws because the Bylaws prohibit unit owners from placing things in the Property’s common areas and facilities.°° Plaintiff claims that the proposed expansions also violates the Declaration because the Declaration states that Unit 10 shall occupy approximately 800 square feet, and Darian’s proposed construction would result in a Unit that occupies +/- 1496 square feet.*? Finally, Plaintiff contends that Darian violated the Bylaws when it obtained a building permit from DPNR by submitting an application to DPNR without the Board’s signature.*° *8 Williams v. United Corp., 50 V.I. 191, 194-95 (V.I. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 29 Joseph v. Hess Oil Virgin Islands Corp., 54 V.I. 657, 664 (V.I. 2011). 30 7d. 3! Fep. R. Civ. P. 56(g). * Burd y. Antilles Yachting Services, Inc., 57 V.1. 354, 360 (V.I. 2012) (quoting Anderson, 477 U.S. at 254) (internal quotation marks omitted). 33 Anderson, 477 U.S. at 248. *4 Pl.’s Mem. of Law in Supp. of PI.’s Mot. for Summ. J. 7-9. 35 Td. at 5. 36 Td. at 4-5. 37 Td. 38 Td. at 5-9. 39 Td. at 4-5. 40 Td. at 6. The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION Defendants respond that the Bylaws authorize unit owners to encroach upon the common areas and facilities of the Property under certain circumstances.*! Defendants argue that they initially received Board approval for the construction of a lower level to Unit 10, and also argue that Plaintiff has not proven that the common areas and facilities of the Property include the airspace into which the proposed lower level to Unit 10 would be built.42 Defendants also argue that the record is devoid of evidence that an encroachment on the common areas and facilities has occurred, or will occur. Finally, Defendants claim that summary judgment in Plaintiffs favor is improper because Plaintiff has not addressed Defendants’ affirmative defense of ‘unclean hands,’** because Plaintiff is not the proper party to bring this suit,5 and because no justiciable controversy exists. I. PLAINTIFF MAY ASSERT ITS CLAIMS AGAINST DEFENDANTS. In their Opposition, Defendants claim that “a board of directors cannot sue other parties because it ‘is not a suable entity,”’*° and consequently, that “the Shibui Board of Directors, as an internal structure within the condominium association, has no . . . power to sue.”*” Defendants are incorrect. The VICA provides that “actions may be brought by the manager or Board of Directors . . with respect to any cause of action relating to the common areas and facilities... . . ‘on Defendants citations to case law from Ohio and the Northern District of West Virginia do not persuade this Court to overlook the authority granted to Plaintiff under the Virgin Islands Code. Il. THE LEGAL BASIS OF PLAINTIFF’S REQUEST: THE VIRGIN ISLANDS DECLARATORY JUDGMENT ACT “Any person . . . whose rights, status or other legal relations are affected by a statute... [or] .. . contract . . . may have determined any question of construction or validity arising under the instrument [or] statute . . . and obtain a declaration of rights, status or other legal relations thereunder.”*? “A declaratory judgment is a statutory remedy for the determination of a justiciable controversy where the plaintiff is in doubt as to [its] legal rights.”*° Although the Supreme Court of the Virgin Islands has not opined on the issue, the Superior Court has explained that “declaratory judgment is only permissible where a justiciable controversy exists.”>! The controversy at issue *! Defs.’ Opp. to Pl.’s Mot. for Summ J. 7-8. 42 Id. at 8. 43 Td. at 9. 44 Td. at 4-5. 45 Td. at 3-4. 46 Td. at 3 (citing Board of Directors of Shibui Condominium Association vy. McGuire, 16 V.1. 300, 307-08 (V.I. Super. Ct. 1979)). 41 Td. 48 VJ. CODE ANN. tit 28 § 926 (LEXIS 2015). 49:5 V.I.C.§ 1262. °° Hill v. De Jongh, Civil No. ST-10-CV-585, 2012 V.I. LEXIS 11, at *13 (V.I. Super. Ct. Apr. 19, 2012) (citing Tip Top Construction v. Department of Property & Procurement, 41 V.1. 72, 78 (V.I. Super. Ct. 1999)). 5! Walsh v. Daly, Case No. ST-01-CV-165, 2014 V.I. LEXIS 36, at *28 (V.I. Super. Ct. June 18, 2014) (citing Companion Assurance Co. v. Alliance Assurance Co., Ltd., 585 F. Supp. 1382, 1384-85 (D.V.I. 1984)). See also Pate v. Government of the Virgin Islands, Case No. ST-14-CV-479, 2014 V.I, LEXIS 112, *10-11 (V.I. Super. Ct. Dec. 11, The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION must be “definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”°? The existence of an injury is not a prerequisite to declaratory relief. The power to construe granted by the VICA may be exercised before a breach occurs. The statement of policy that prefaces the Uniform Declaratory Judgments Act—the act upon which the Virgin Islands Declaratory Judgment Act was based—explains that “it is not requisite that any wrong should have been done or any breach committed” before a party may be entitled to a declaratory judgment,* and that parties “ought not be forced to the necessity of encountering damage or assuming ruinous responsibilities before they are permitted to seek and secure a court decision as to their rights and duties.”*> “The standard for granting summary judgment on an action for declaratory judgment is the same as for any other type of relief.”*° III]. | THE PERMIT ISSUED TO DARIAN HAS EXPIRED. A building permit issued by DPNR expires 360 days after a project is suspended or abandoned.*’ Plaintiff has provided documentation purporting to show that, on or about July 12, 2012, DPNR issued a stop work order to Darian.*® Plaintiff has also provided documentation purporting to show that, on July 10, 2013, the Commissioner of DPNR issued a letter in which DPNR asserted that the permit was properly issued, but that DPNR would take no further action until this case had been resolved.*? Regardless of whether Darian suspended its work on the date of the stop work order or the date of the Commissioner’s letter, 360 days have passed, and the permit issued by DPNR has expired. In the Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, Defendants acknowledge that Darian’s permit has expired.© At the very least, Plaintiff is entitled to a declaratory judgment that the permit is void because the permit has expired due to the passage of time. IV. A JUSTICIABLE CONTROVERSY EXISTS DESPITE THE EXPIRATION OF THE DPNR PERMIT. Although not asserted in their Opposition, Defendants claim that “[tJhere is an actual controversy between [Plaintiff and Defendants] regarding [Defendants’] rights and [Plaintiffs] 2014) (observing that, “[a]lthough the decision to entertain a declaratory action is within the discretion of the Court, the matter must involve an actual and justiciable controversy’) (internal quotation marks omitted). %? Luis v. Dennis, 751 F.2d 604, 607 (3d Cir. 1984) (citing Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240— 41 (1937)). 53:5 VLC. § 1263, 5# UNIFORM DECLARATORY JUDGMENTS ACT, Prefatory Note at 4 (1922) (available at http://www.uniformlaws.org/shared/docs/declatory%20judgments/udja%20 1922.pdf). Td at 3. °° Monoson v. Blyden, 45 V.I. 81, 84 (V.L. Super. Ct. 2002) 57 29 V.L.C. § 294(b). °8 Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. 5, 432. 9 Id.435. °° Defs.’ Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. 8. The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION obligations under the By-Laws.”®! Each party has dedicated several pages of their brief to arguing whether the Declaration, Bylaws, and Virgin Islands Code obligate Darian to obtain the unanimous consent of all other unit owners before making its proposed alterations to Unit 10. By arguing that Plaintiffs alleged failure to prosecute both past and present violations of the Declaration and Bylaws committed by other unit owners deprives Plaintiff of the right to enforce those same restrictions against Defendants in this case,°? Defendants demonstrate that, although Darian’s building permit has expired, the circumstances surrounding the issuance of that permit may be capable of repetition but may nonetheless evade judicial review. Thus, there is a definite and concrete controversy that touches upon the legal relations between Plaintiff and Defendants under the Declaration, Bylaws, and Virgin Islands Code, and the question of whether Darian complied therewith is neither hypothetical nor abstract. The existence of this controversy compels further inquiry into the obligations created by the Declaration, Bylaws, and Virgin Islands Code in order to determine whether the permit issued to Darian is void for reasons in addition to the passage of time. V. DARIAN VIOLATED THE VICA AND THE BYLAWS WHEN IT FAILED TO OBTAIN THE BOARD’S SIGNATURE ON ITS PERMIT APPLICATION TO DPNR. The VICA demands that all unit owners comply strictly with any governing bylaws and regulations.* The Bylaws require any application for a permit submitted to DPNR to bear the Board’s signature. The parties do not dispute that Darian never received such a signature.* By obtaining its permit from DPNR without a signature form the Board, Darian violated the Bylaws. In failing to comply with the Bylaws, Darian also violated the VICA. Defendants argue that Plaintiff's alleged failure to prosecute both past and present violations of the Declaration and Bylaws committed by other unit owners deprives Plaintiff of the right to enforce those same restrictions against Defendants in this case.® This argument is not persuasive. The question of whether other unit owners may have violated the Declaration and Bylaws is irrelevant in determining whether the Defendants have violated the Declaration and Bylaws in this instance. Defendants either complied with the Declaration and Bylaws, or they did not. Another unit owner’s noncompliance cannot transmute the Defendants’ noncompliance into compliance. Additionally, Defendants have not argued that the restrictions contained in the Declaration and Bylaws have become inoperable due to changed conditions, have not established that Virgin Islands law recognizes a doctrine that permits this Court to exercise its equitable powers and abrogate servitudes, and have not established that any such doctrine would apply to the provisions of the Declaration and Bylaws at issue in this case.” To the contrary, the Declaration °' Countercl. 4] 32. 62 Td. 63 28 V.LC. § 906. 6 Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. Ex. 2, at 21. °° P].’s Stmt. of Undisputed Facts 6, {| 25; Defs.’ Resp. to Pl.’s Stmt. of Undisputed Facts 1, § 25. 66 Td. °7 Some jurisdictions recognize what is known as the Changed Conditions Doctrine. The Changed Conditions Doctrine is an equitable remedy employed by courts to alleviate the burden of an equitable servitude that no longer serves the purpose for which it was created, due to changes in conditions of the area in which the burdened parcel is The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION provides that none of its provisions “shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.” The Bylaws are attached to the Declaration as an exhibit, and are thus part of the Declaration itself.°* Consequently, the Court is not persuaded to overlook Darian’s violation of the Bylaws due to the fact that other alleged violators of the Bylaws may have escaped prosecution for similar violations. VI. DARIAN VIOLATED THE VICA AND THE BYLAWS BECAUSE IT DID NOT RECEIVE BOARD APPROVAL FOR THE CONSTRUCTION IT ULTIMATELY SOUGHT TO COMPLETE. The Bylaws provide that a unit owner may only make structural additions, alterations, or improvements to his or her unit with the prior written consent of the Board. Darian had requested approval to “rebuild Unit #10 to like new status,”® and received that approval. The parties do not dispute that Darian submitted the blueprints for Unit 14 to the Board when Darian requested permission to rebuild Unit 10.”° However, assuming that the Board’s approval encompassed the exact duplication of Unit 14 where Unit 10 now stands, Darian took action to build a structure larger than the one for which it received permission. The parties do not dispute that, after the Board initially approved Darian’s proposal, the Board then learned that “the proposal that was presented was not what was being implemented.” Nor do the parties dispute that, after receiving the Board’s approval, Piwowar testified that he hired an architect to revise the blueprints upon which the reconstruction of Unit 10 would ultimately be based. Copies of portions of the revised blueprints are attached to Plaintiff's Motion as Exhibit 14. Copies of those blueprints are also attached to Defendants Motion for Summary Judgment as Exhibit 3, and copies of the blueprints for Unit 14 are attached to that same motion as Exhibit 2. These exhibits reveal that the Board initially approved reconstruction of Unit 10 based on blueprints for a unit of +/- 1200 square feet. But the revised blueprints obtained by Piwowar after the Board’s approval contemplate a structure that would occupy +/- 1496 square feet. The revised blueprints were never submitted for Board approval. Consequently, Darian is attempting to construct at least +/- 296 square feet that have not received Board approval. Citing to a letter dated August 7, 2012, Defendants argue that the Board’s approval, although initially rescinded, was later granted again. However the approval contemplated in the located. See Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. CAL. L. REV. 1261, 1276-81 (1981) (discussing the traditional uses of equitable servitudes and their treatment by courts). See also id. at 1275-76 (explaining that some courts have extended the changed conditions doctrine to alleviate the burdens of real covenants that no longer serve the purposes for which they were created). Neither party has identified the nature of the restrictions at issue and neither party has briefed the question of whether the changed conditions doctrine should apply in this case. Consequently, this opinion does not address whether the doctrine applies in this case, or whether the Virgin Islands recognizes such the doctrine. 68 P].’s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. Ex. 1, at 7, 9 18. % PI.’s Stmt. of Undisp. Material Facts 3, 4 14; Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 1, 4 14. 7 See Pl.’s Stmt. of Undisputed Material Facts 4, {| 19 (stating that Piwowar admitted to hiring an architect to revise the drawings he submitted to the board after the board had given its preliminary approval to rebuild Unit 10 in accordance with the blueprints for Unit 14); Defs.’ Resp. to Pl.’s Stmt. of Undisputed Material Facts 2, J 19 (agreeing that this fact is not in dispute). The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION August 7, 2012 letter is the approval based on the blueprints for Unit 14, not the approval of the revised blueprints that Darian and Piwowar obtained after receiving the Board’s initial approval. Consequently, the August 7, 2012 letter does not constitute evidence that the Board ever approved the construction of a unit that would occupy +/- 1496 square feet. By attempting to build a structure that would occupy +/- 1496 square feet without first receiving Board approval to do so, Darian violated the Bylaws. By violating the Bylaws, Darian also violated the VICA. VII. DARIAN’S PROPOSED CONSTRUCTION WILL VIOLATE THE VICA UNLESS DARIAN OBTAINS THE UNANIMOUS CONSENT OF ALL OTHER UNIT OWNERS. Plaintiff argues that VICA obligates Darian to receive unanimous consent from all unit owners before constructing its proposed design. As authority, Plaintiff cites to 28 V.I.C. § 907, which provides in pertinent part that “no apartment owner shall do any work which would . . . impair any easement . . . without in every such case the unanimous consent of all of the other apartment owners being first obtained.” Plaintiff's argument presupposes the existence of an easement that would be encroached upon if Darian were allowed to proceed with any enlargement of Unit 10. Although it has addressed other aspects of easements,”! the Supreme Court of the Virgin Islands has not issued an opinion that explains how this jurisdiction demarcates between easements, covenants, and other servitudes.’2 As the following sections illustrate, the submission of the Property to the VICA created easements appurtenant to unit ownership, including an easement entitling Shibui unit owners to access the Property’s common areas and facilities. By proposing to expand its unit into the Property’s common areas and facilities, Darian proposes to impair the scope of that easement. a. Defining ‘easement’ in this jurisdiction Generally, the term easement refers to an “interest in land owned by another person, consisting in the right to use or control the land . . . for a specific limited purpose... .”73. There are two types of easements: easements appurtenant and easements in gross. The Territorial Court has previously observed that an easement appurtenant is “an incorporeal right which is attached to and belongs with some greater and superior right, and is incapable of existence separate and apart See Hodge v. Bluebeard's Castle, Inc., 8. Ct. Civil No, 2012-0087, 2015 V.I. Supreme LEXIS 15, at *41 (V.I. June 10, 2015) (acknowledging that “‘[t}he right of an abutting owner to access a public street or highway is a private property right in the nature of an easement and is an interest in land’ [that] appears to be universally recognized among other United States jurisdictions, and by fundamental notions of common sense”) (quoting 46 AM. JUR. PROOF OF FACTS 3D 493 § 14 (1998)); Malloy v. Reyes, 61 V.I. 163, 178-179, (V.I. 2014) (determining the soundest rule of the Virgin Islands concerning the abandonment of public easements). ” Despite the fundamental nature of the concepts discussed in this section, the Supreme Court of the Virgin Islands requires this Court to review the past practices of this jurisdiction as well as the practices of a majority of other jurisdictions—and any competing minority approaches—in order to determine the soundest rule of law for the Virgin Islands when the Supreme Court has not yet opined on a question of common law. King v. Appleton, 61 V.1. 339, 348-50 (VI. 2014). 73 BLACK’S LAW DICTIONARY 585-86 (9th ed. 2009). Accord RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 1.2 (defining an easement as “a nonpossessory right to enter and use the land in the possession of another”). The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION therefrom” that “must be attached to a dominant estate . . . by unity of title in the same person to both the dominant estate and the easement claimed.””4 No court in this jurisdiction has previously opined on the nature of an easement in gross. The definition of an easement is well established in other jurisdictions, all of which recognize the distinction between easements appurtenant and easements in gross.” As with the Superior Court, other jurisdictions define an easement appurtenant as an easement that burdens a servient estate for the benefit of a dominant estate; there is no dispute that the existence of two estates is a prerequisite to the existence of an easement appurtenant.’° By contrast, easements in gross are created in individuals or groups without regard to ownership of land.’’ Easements may be created with express language or implied from the language of an instrument, but in the absence of express language creating an easement, the nature of an easement will be inferred from the language of an instrument; when the absence of express language necessitates such construction, jurisdictions favor the implicit creation of easements appurtenant over easements in gross.”° ” East St. Croix Beach Club v. Caribe Isle, 17 V.1. 119, 122 (V.1. Super. Ct. 1980). 73 Solana Land Co. v. Murphey, 210 P.2d 593, 596 (Ariz. 1949): Lobato v. Taylor, 71 P.3d 938, 945 (Colo. 2002); D. M. Goodwillie Co. v. Commonwealth Electric Co., 89 N.E. 272, 284 (Ill. 1909); Smith v. Dennedy, 194 N.W. 998, 999 (Mich. 1923); Shingleton v. State, 133 S.E.2d 183 185-86 (N.C. 1963); McAusland v. Carrier, 880 A.2d 861, 863 (R.I. 2005); M.K.K.I., Inc. v. Krueger, 145 P.3d 411, 416, (Wash. Ct. App. 2006); R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo. 1999). ”© Bradshaw v. Enterprise Realty, Inc., 115 So. 3d 922, 930 (Ala. Civ. App. 2012); Wallner v. Johnson, 730 S.W.2d 253, 256 (Ark. Ct. App. 1987); Wright v. Best, 121 P.2d 702, 710 (Cal. 1942); Giardino v. Belle Haven Land Co., 757 A.2d 1103, 1111 (Conn. 2000); Sears v. Catholic Archdiocese of Washington, 5 A.3d 653, 659 (D.C. 2010); Yaali, Ltd. v. Barnes & Noble, 506 S.E.2d 116, 117-18 (Ga. 1998); Lizama v. Dep't of Pub. Works, 2005 Guam 12, 4 18; Goo Leong Shee v. Young Hung, 36 Haw. 132, 147-48, (1942); Hodgins v. Sales, 76 P.3d 969, 974 (Idaho 2003); Rank v. Frame, 522 N.W.2d 848, 852 (Iowa Ct. App. 1994); Smith v. Harris, 311 P.2d 325, 334 (Kan. 1957): Meade v. Ginn, 159 $.W.3d 314, 320 (Ky. 2004); Stickney v. City of Saco, 2001 ME 69, 431, 770 A.2d 592, 605; Supervisor of Assessments v. Bay Ridge Properties, Inc., 310 A.2d 773, 776-77 (Md. 1973); Wisconsin Ave. Properties, Inc. v. First Church of the Nazarene, 768 So. 2d 914, 918 (Miss. 2000); Broadwater Dev., L.L.C. v. Nelson, 2009 MT 317, {1 33-34 219 P.3d 492, 503-04; Arcidi v. Town of Rye, 846 A.2d 535, 539-40 (N.H. 2004); Luevano v. Group One, 1989-NMCA-061, 4 13, 108 N.M. 774, 777, 779 P.2d 552, 555; Passaic Valley Council vy. Hartwood Syndicate, Inc., 348 N.Y.S.2d 883, 886, (N.Y. Sup. Ct. 1973); Lutz v. Krauter, 553 N.W.2d 749, 753 (N.D. 1996); College Inns of America, Inc. v. Cully, 460 P.2d 360, 361 (Or. 1969); Lindenmuth v. Safe Harbor Water Power Corp., 163 A. 159, 161 (Pa. 1932); Wildwood Association v. Harley F. Taylor, Inc., 2003 SD 98, 4] 20, 668 N.W.2d 296, 303; Cellco Partnership v. Shelby County, 172 S.W.3d 574, 588 (Tenn. Ct. App. 2005); Dansie v. Hi-Country Estates Homeowners Ass'n, 2004 UT App 149, 4] 10-12 92 P.3d 162, 165; Rowe vy. Lavanway, 2006 VT 47, 9] 4-5, 180 Vt. 505, 506, 904 A.2d 78, 80-81; Newman v. Michel, 688 S.E.2d 610, 616-17 (W. Va. 2009); Gojmerac v. Mahn, 2002 WI App 22 $f 19-21, 250 Wis. 2d 1, 11-13, 640 N.W.2d 178, 183-84. See also note 75, supra (collecting additional authorities). ” Lobato 71 P.3d at 945; Giardino 757 A.2d at 1111; North Dade Water Co. y. Florida State Turnpike Authority, 114 So. 2d 458, 461 (Fla. Dist. Ct. App. 1959); Lizama, 2005 Guam 12, J 18; D. M. Goodwillie Co., 89 N.E. at 284; Meade, 159 $.W.3d at 320; Smith, 194 N.W. at 999: Broadwater Dev., L.L.C., 2009 MT 317, 4 33, 219 P.3d at 503: Spilker v, First Nat'l Bank & Trust Co., 319 N.W.2d 429, 431-32 (Neb. 1982); McAusland, 880 A.2d at 863: Long Island Owner's Ass'n v. Davidson, 965 S.W.2d 674, 684-85 (Tex. App. 1998); M.K.K.I, Inc., 145 P.3d at 416. ’8 SOP, Inc. v. Dep't of Natural Res., 310 P.3d 962, 969 n.32 (Alaska 2013); Elliott v. McCombs, 109 P.2d 329.333 (Cal. 1941); Broadwater Dev., L.L.C., 2009 MT 3 17, §] 33, 219 P.3d at 503; McAusland, 880 A.2d at 863-64; Cellco Partnership, 172 8.W.3d at 588; Long Island Owner's Ass n, 965 S.W.2d at 685; Dansie, 2004 UT App 149, $9 10- 12, 92 P.3d at 165; Rowe, 2006 VT 47, 9 5, 180 Vt. at 506, 904 A.2d at 81. The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION Although jurisdictions use different language to express them, the principles discussed in the preceding paragraph do not vary by jurisdiction. Consequently, the soundest rule of law for the Virgin Islands is to recognize the definition of ‘easement’ that is already firmly established across the jurisdictions of the United States. The Court perceives no reason to deviate from such a fundamental principle of law. b. The Declaration and Bylaws create easements appurtenant to the ownership of a unit. When an individual purchases a unit at Shibui, he or she purchases real property”? and becomes bound by the Declaration and Bylaws.*° The Bylaws permit unit owners to use the Property’s common areas and facilities “for the furnishing of the services and facilities for which they are reasonable suited and which are incident to the use and occupancy of the units.”*! But although a unit constitutes real property and entitles the unit owner to an undivided interest in the Property’s common areas and facilities, the unit owner does not acquire title to the real property that comprises the Property’s common areas and facilities. It is immaterial whether ownership of the underlying real property is attributed to Caribbean Resorts, Inc.—the entity that submitted the Property to the VICA by recording the Declaration and Bylaws**—or whether ownership of the underlying real property is attributed to Shibui as an unincorporated association. Regardless, unit ownership entitles a unit’s owner to access another entity’s property for a specific purpose. Because this entitlement is contingent upon the ownership of real property in the form of a unit at Shibui, the right to access the Property’s common areas and facilities is properly characterized as an easement appurtenant; the unit is the dominant estate, and the real property on which the common areas and facilities are located is the servient estate. Pursuant to the VICA, any construction that would impair this easement must be unanimously approved by all other Shibui unit owners.*? ce. Darian’s proposed alterations to Unit 10 will impair an easement created by the Declaration and Bylaws. Although the exact square footage of the increase is disputed by the parties, it is undisputed that Darian’s proposed expansion of Unit 10 will increase the square footage of Unit 10 by at least 400 square feet through, among other things, the addition of a lower level to Unit 10. This lower level will occupy some portion of the Property that was previously regarded as part of the Property’s common areas and facilities. Consequently, other unit owners would lose the ability to utilize those portions of the common areas and facilities that the expanded Unit 10 would occupy. Because a unit owner’s right to access the Property’s common areas and facilities is an easement 79 See 28 V.1.C. § 903(a) (establishing that, once property has been submitted to the VICA, “[e]ach apartment. . . shall . . . Constitute real property”). 8° Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. Ex. 2, at 1. See also 28 VLC. § 906 (obligating owners of apartments subject to the VICA to comply strictly with all of their association’s governing documents). 8! Td. at 19. 82 7d. Ex: lat 1. 83 28 V.LC. § 907. The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION appurtenant to unit ownership, Darian’s proposed expansion of Unit 10 impairs an easement guaranteed by the Declaration and Bylaws to all unit owners. Defendants argue that “Plaintiffs Plaintiff [sic] has not Met his [sic] Burden in Establishing that the Changes Sought by Defendants Required the Unanimous Consent of all Owners,”** and that “Plaintiff Failed to Establish an Impermissible Encroachment.”*®> To support these claims, Defendants argue that the Bylaws specifically permit a unit owner to make structural additions, alterations, and improvements to his or her unit, and to repair items defined as part of the Property’s common areas and facilities such as a unit’s roof, foundation, column’s, beams, supports, and walls.*° Defendants also argue that Darian received board approval to reconstruct Unit 10, and that the Board’s approval contemplated structural additions and alternations to that unit.5’ Defendants finally argue that Plaintiff has introduced no evidence that the common areas and facilities of the Property includes the air space between the ground and Unit 10’s balcony,*® or that Darian has encroached upon these areas. Defendants’ arguments are unpersuasive. First, although Article V, Section 10 of the Bylaws obligates a unit owner to repair certain portions of the common areas and facilities— including their unit’s “roof, foundation, columns, beams, supports, walls, floors [and] ceilings” — Article V, Section 10 does not permit a unit owner to alter those items beyond their original design. To the extent that a unit owner seeks to enlarge his or her unit’s roof, foundation, columns, and the like beyond its original design, Article V, Section 10 conveys no permission for doing so. Second, although Article V, Section 13 of the Bylaws permits a unit owner to make structural additions, alterations, or improvements to his or her unit with Board approval, this section cannot be read in isolation. Article XIII Section 1 of the Bylaws explains that the requirements imposed by the VICA control over any contradictory provision contained in the Declaration or Bylaws. Article XIII operates as a reminder that, while the Board’s permission is required under Article V, Section 13 may be a prerequisite to making “any structural addition, alteration or improvement” to a unit, Board permission is not the only prerequisite for such construction. Defendants also argue that “Plaintiff testified under oath that it has ‘no documented proof that Defendants encroached into the common area.”8? But actual encroachment is not a prerequisite to the issuance of a declaratory judgment.” By proposing to enlarge Unit 10 to occupy previously unoccupied space, Darian has proposed construction that encroaches on the Property’s common areas and facilities. Before it may undertake such construction, the VICA obligates Darian to receive unanimous approval from all Shibui unit owners. Defendants have also disputed Plaintiff's claim that Darian’s proposed construction will encroach upon the Property’s common areas and facilities. Defendants claim that “Plaintiff neither *4 Defs.’ Opp. to Pl.’s Mot. for Summ. J. 7. 85 Td. at 9, 86 Td. at 7-8. 87 Td. at 8. 88 7. 89 Td. at 9. 5 VLC. § 1263. The Board of Directors of Shibui Condominium Association vy. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION identify [sic] ‘the common area’ around and in front of Unit 10, or did she [sic] provide documented proof of the size of that area.”®! However, both parties agree” that, [pJursuant to paragraph 8 of the Declaration, the [c]lommon [a]reas and facilities consist of the entire Property including, but not limited to, all parts of the [bJuildings other than the [u]nits, including, without limitation, the land on which the [b]uildings are erected, all roofs, foundations, columns, beams and supports, all exterior walls of the buildings, all walls and partitions separating [u]nits from steps, stairways, and landing platforms, or from other common or limited common areas; all floors and ceilings; all landscaping, [and] all roads and walkways... .% (Emphasis supplied.) According this agreed-upon fact, the Property consists of three areas: units, common areas and facilities, and limited common areas and facilities. The plain language of the Declaration confirms this fact with language stating that “[t]he common areas and facilities consist of the entire Property (except for the limited Common Areas and Facilities set forth below) including all parts of the Buildings other than the Units... .”% Thus, to demonstrate that Darian’s proposed construction will encroach upon the Property’s common areas and facilities—and consequently, encroach upon the easement that permits all Shibui unit owners to access that space—Plaintiff need only demonstrate that Darian’s proposed construction would enlarge Unit 10. Any enlargement to a unit necessarily decreases the size of the remaining areas of the Property. Plaintiff observes that Unit 10 is supposed to occupy approximately 800 square feet according to the Declaration, but that the blueprints submitted by Darian propose a unit that will occupy +/- 1496 square feet. The blueprints for Darian’s proposed renovation indicate that Darian intends to build a lower level to Unit 10 where none previously existed. If this lower level is constructed, every other unit owner will be deprived of their ability to access the portion of the common areas and facilities that the lower level will occupy. Defendants’ argument that Plaintiff has not demonstrated that the common areas and facilities of the Property includes air space is irrelevant. Even assuming Darian were able to construct a lower level to Unit 10 that did not touch the ground, such a feat of engineering would still deprive the other unit owners of access to the surface area over which the proposed addition would hang. Thus, given that Darian’s proposed enlargement of Unit 10 would encroach upon the Property’s common areas and facilities to some degree, and given that all unit owners enjoy an easement that grants them access the Property’s common areas and facilities, Darian must receive unanimous approval from all unit owners before constructing its proposed addition to Unit 10. °! Defs.’ Opp. to Pl.’s Mot. for Summ. J. 9. % Pl.’s Stmt. of Undisp. Material Facts 2-3, 9 9. See also Defs.’ Resp. to Pl.’s Stmt. of Undisp. Material Facts 2, | 9 (agrecing that this fact in undisputed for the purposes of ruling on Plaintiffs Motion). °3 Pl.’s Stmt. of Undisp. Material Facts 2-3, 49. ** PI.'s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. Ex. 1, at 3,98. The Board of Directors of Shibui Condominium Association v. Darian Solutions, LLC et al. Case No. ST-2013-CV-395 MEMORANDUM OPINION VIII. DARIAN’S PROPOSED CONSTRUCTION WILL DEPRIVE THE OTHER UNIT OWNERS OF THEIR STATUTORY RIGHT TO ACCESS THE COMMON AREAS AND FACILITIES OF THE PROPERTY. Plaintiff separately argues that Darian’s proposed construction will violate the statutory rights of the other unit owners to access the Property’s common areas and facilities.°° The VICA states, in pertinent part, that “[e]ach apartment owner may use the common areas and facilities in accordance with the purposes for which they were intended; without hindering or encroaching upon the lawful rights of the other apartment owners.”®° As established above, “the lawful rights of other apartment owners” includes each unit owner’s ability to make use of the easement over the Property’s common areas and facilities. As also established above, by enlarging Unit 10 as proposed, Darian would encroach upon this right. Consequently, Darian’s proposed construction would violate the VICA to the extent that the construction would deprive other unit owners from enjoying their right to access the Property’s common areas and facilities. CONCLUSION Plaintiff is entitled to summary judgment on its request for a declaratory judgment for several reasons. First, the building permit issued by DPNR has expired due to the passage of time and is, thus, invalid. The permit issued by DPNR was also obtained in violation of the VICA and the Bylaws. Finally, if Darian were permitted to proceed with its proposed construction based upon the permit that was issued, Darian would violate the VICA in two instances: first by encroaching upon an easement without the unanimous consent of all other unit owners in violation of 28 V.I.C. § 907; and second by depriving the other unit owners of access to portions of the Property’s common areas and facilities, in violation of 28 V.LC. § 905. For these reasons, the permit issued to Darian must be declared void as a matter of law. An appropriate order shall follow. Dated: August 5 / , 2015 ue) pang ATTEST: DENISE M. FRANCOIS Estrella tj. George Judge of the Superior Court Acting. Yerk of the ourt of the Virgin Islands Donna D. Bonovan a - Coun Clerk Supervisor re ld) % Td. at 4—S. % 28 V.LC. § 905(d).