*1 Second, appellant authority sug- cites no
gеsting the is required. instruction ever It civil, criminal,
is found jury guide,
instruction with the comment that optional
the “instruction and should not also, given Id.; typical in the case.” see Co.,
e.g., Unique Theatre Greenfield 17, 21, 666, (1920) Minn. 177 N.W.
(instruction aid”). is “often doubtful
Finally, inapplicable instruction only if applies
these facts. It has witness wilfully
“knowingly falsely testified Stevens,
to a material fact.” State v.
Assuming question the road in is owned
appellant, there is no indication that they
State’s witnesses knew this when tes- road; township appellant
tified it awas
himself testified he did not believe offi- actually
cers private would know it was his
road. ownership road is also not fleeing
material. Neither the nor the reck- driving require
less statutes that the acts place road, public appellant
take on a speeding on admittedly pub-
was observed
lic roads.
DECISION
Affirm.
STATE of Minnesota the CROW
WING ENVIRONMENT PROTECTION INC.,
ASSOCIATION, Respondent, POINT,
CITY OF BREEZY et
al., Defendants,
Whitebirch, Inc., Appellant.
No. C2-86-420. Appeals
Court of of Minnesota.
Oct. 1986. 17, 1986. Dec.
Review Denied *2 Rathke, Borden, Steinbauer,
Stephen C. Brainerd, Krueger, for State of Rathke & by the Crow Environment Minnesota Association, Inc. Protection Mason, Dorsey Whitney, Min- M. & John Whitebirch, neapolis, for Inc. Heard, considered and decided FORS- LANSING, P.J., BERG, and FOLEY and JJ.
OPINION LANSING, Judge. appeal is from an order entered
This Whitebirch, Inc., perma- against appellant developing its nently enjoining it from membership campground. campground as a We affirm. Breezy Point. The re-
FACTS
also
quired Whitebirch to execute a declaration
Whitebirch,
develops real
owns and
embodying
provisions
of covenants
city
estate in and around
as covenants which run with
In 1974 Whitebirch an-
Minnesota.
the land.
develop 2,300
plan
acres near
nounced
3,000
city.
plan
included
condo-
completely developed camp-
homesites,
lots,
camping
minium
*3
ground cluster no. 1 and sold all but 20 lots
lots,
apartments
256 condominium
estate
campsites
ownership
as condominium
in fee
recreational facilities. The
and associated
However,
to individuals.
in 1983 White-
appeal
in
dispute
resulted
this
arose
campsite
birch abandoned the condominium
development
proposed
of condo-
from the
plan
develop
camp-
and undertook to
camping lots on 80 acres
minium
within
membership
sites in cluster no. 2 as a
project.
campground.
plan,
Under this new
White-
prepared an Environmental
ownership
Whitebirch
would retain
birch
the lots
(EIS)
in
Impact
project
for
“membership rights”
Statement
and sell
to use the
compliance with the Minnesota Environ-
campground facilities. Purchasers would
(MEPA),
ment Protection Act
Minn.Stat.
Breezy
Membership
contract with
Point
original
pre-
116B.01-11
EIS
(BPMCI),
Campground,
corporation
§
Inc.
a
one-day occupancy
maximum
rate
dicted
formed Whitebirch to administer the
campsite development
30
for the
scheme,
campground
campsites
to use the
final,
accepting
cent. Before
the EIS as
first-come,
basis,
on a
first-served
similar
Quality
the Minnesota Environmental
arrangement.
to a time-share
Whitebirch
required
supplemental
Council
EIS to
expected
many
to sell ten times as
member-
higher
occuрancy
consider
rates
than 30 ships
campground
as it had
lots.
percent.
appended
Whitebirch
information
brought
enjoin
a second suit to
CWEPA
impact
peak
on the
rates of
90
violating
from
Whitebirch
terms of the
percent,
original
and 100
and the
EIS was
settlement. CWEPA contends the
finally accepted.
prohibits
offering
tion
from
Whitebirch
May
respondent
1976
Crow
En-
membership
campsites on a
basis and re-
(CWEPA)
Protection Association
vironment
quires
campsites
that the
be sold in fee to
MEPA, seeking
sued Whitebirсh under
to
individual owners.
enjoin
project.
alleged
the entire
CWEPA
injunction,
The trial court denied the
rul-
proposed development
that the
would cause
ing
stipulation unambiguous
and hold-
pressures
population
which would adverse-
ing
that its
did not restrict uses
ly affect the environment.
other than sale of
as condomin-
began,
parties
Shortly after the trial
iums.
stipulated
entered into a
settlement. Para-
court,
appeal to this
On
order was
graph
permits
1 of the
White-
Wing City
reversed. See State
Crow
to
and sell” not more than
birch
(Minn.Ct.
363
778
N.W.2d
3,000
(25
percent
origi-
App.1985). We held the trial court erred in
nally proposed). Campsite development is
finding
stipulated language unambig
specific
of land
restricted to
tracts
within
uous and remanded for the court to consid
project.
camp-
Of
total number
determining
er extrinsic
evidence
wheth
allowed,
sites
a maximum 366 could be
parties
er the
intended to exclude the mem
designated
developed
camp-
on a tract
bership
concept.
lease
remaining
ground
cluster no. 1. The
sites were to be confined within a tract
On remand the trial court held that the
campground
called
cluster no. 2. Para-
intended that Whitebirch could
graph
prevents
building
campsite
from
sell the
lots to
Whitebirch
individual owners.
any сampsites
memberships
“other than the
It further held that sale of
intent,
permitted
paragraph
1” within five miles
to
was
and Whitebirch
remand,
selling
after the
permanently enjoined
appeal
from
On
first
to
court,
judge
the trial
rights
campground lots.
determined that Whi-
tо the
stipulation by
tebirch violated the
develop-
requested and received reimburse-
CWEPA
ing campsites
selling
and
memberships to
provi-
attorney’s
ment for its
fees under a
developing
rather
than
agreement.
sion in the settlement
selling
campsites.
individual
appeals
in-
correctly argues
that al
fees,
junction,
attorney’s
the award of
most all of the evidence before the trial
findings
of its
to amend the
denial
motions
documentary. Documentary
court was
evi
trial,
grant
or to
a new
and the
оf fact
subject
de
dence
novo review. Merri
disquali-
of its
denial
motion
remove
Sandeen,
man v.
judge.
the trial
fy
(Minn.1978); see Northern States Power
Williams,
Co.
ISSUE
(Minn.1984). However,
reasoning
con
*4
plan to sell member-
Does Whitebirch’s
in
tained
the trial court’s order and memo
ships
part
camp-
of a leased time-share
documentary
based on
is
randum
evidence
stipulation,
ground
the
violate
instructive.
“develop
not
mits
to
and sell”
Whitebirch
membership camp-
The court
that
found
campsites?
more than 750
grounds wеre neither mentioned nor dis-
during
nego-
cussed
the 1976-77 settlement
parties
the
the
tiations. But
intent of
and
ANALYSIS
lawyers
their
from 1974 had been to devel-
and
resolved their
Whitebirch
CWEPA
op campsites
by
to be sold
in
Whitebirch
in
stipulated
first
a
settlement
lawsuit
fee to individual ownеrs who could then
judgments
March 1977. The series of
and
use, resell or lease their condominium lots.
originated in
orders entered after 1977 all
The court further found that
intent
attempts
interpret
stipulation. The
to
that
concept
excluded the
of a
prоvides:
at issue
campground.
may develop
not
Whitebirch
and sell
findings on
The court based these
(750)
Fifty
more than
Hundred
Seven
* *
*
wording
stipulation together
the
of the
within the Whitebirch
the
the declaration of covenants and
with
Project.
in
description of cоndominium the Environ
developed
366
in
Whitebirch
Impact
find this
mental
Statement.1 We
and sold 346 to individual
the first cluster
reasoning persuasive.
For reasons not disclosed in the
owners.
good-faith
a
claim in re-
CWEPA settled
economic,
record, presumably
Whitebirch
obligations
rights
for the
and
set forth
turn
in the second
abandoned individual sales
stipulation.
does not dis-
in the
Whitebirch
began membership
cluster
a
and
pute
validity
stipulation.
of the
It is
the
beginning
ground arrangement. At the
of
parties
binding upon
and
therefore
both
camрground
1985 the
had 700-750 member-
analyzed
should
under contract
law.
to 900
ships. This number had increased
52, 193
Ryan,
v.
292 Minn.
N.W.2d
Ryan
hearing,
time of
and the ulti-
the
the
295
membership goal
4,000. The oc-
mate
considering
not
In
evidence of the
cupancy rate for the 900
had
members
intent,
properly
parties’
the trial court
re-
percent.
exceeded
argument miscon-
the EIS cannot be used. This
1. Whitebirch contends that the EIS should not
interpret
looking
purpose
the
the
We
be used to
because
of
to the EIS.
strues
EIS,
agreed
partiеs
in the
that
provisions
of the
seek not to enforce
provision
specific
land for which no
was made
contemporaneous doc-
determine from a
but to
developed
would be
in accordance with the EIS.
meaning
of words used in the
ument the
specific provision was made for the devel-
Since
tion.
argues
opment
campsites,
camping community”
lied on
declaration
covenants. The
“condominium
and as
incorporated by
“campsites-for-sale.”
covenants аre
reference
particular,
In
stipulation and
into
run with the land.
explains
EIS
the distinction between the
relating
As instruments
to the same trans
campground proposed
condominium
and a
purpose,
stipu
action and for the same
addition,
rental
situation.
and
lation
declaration
covenants are
the term
“condominium” has
common
together.
read
Koch Han-shire Invest meaning of
separate
individual or
owner
ments,
165,
155,
273 Minn.
140 ship.
Heritage
See American
Dictionary,
55,
(1966). Although
“condo
(2nd
1976).
p. 307
ed.
specifically
minium” is
mentioned
in
agree
We
with
trial court’s conclu-
settlement,
stipulated
in
it is used
intended,
sion that the
at the time
recitals of the declaration of covenants.
agreement,
that Whitebirch was to
general
rule is that
While
recitals are
tо
sell
individual owners. A
binding agreement,
not the basis of a
Berg membership campground
to this
179,
Berg,
N.W.
Although
intent.
the basis for the court’s
(1937), they
helpful
are
as an aid
finding of irreparable harm not
exten-
interpreting ambiguous language.
Id. at
sively stated,
consider
we
references to the
189,
the comments do not show bias disqualification. require removal or
would on the effect of the decision
They relate to Although campground members. un
fortunate, reasonably judge the trial ex there were no fur
plained he believed remaining. issues ther HARVEY, Relator, Lorraine E.
DECISION Affirmed. ESTATE, INC., REAL GRIFFIN & Commissioner Jobs FORSBERG, J., dissents. Training, Respondents. FORSBERG, Judge (dissenting). No. C8-86-681. respectfully I dissent. The settlement prohibit the conduct Appeals does of Minnesota. Court of enjoined. stipulation expressly re- 21, 1986. Oct. allowed at stricts number use of the property, the Whitebirch not the
property. A determination that the *6 property is restricts the use of the
tion governing interpreta- to the rule рrop- of restrictions on the free use of
tion
erty. Costley v. Caromin House (Minn.1981), the Minnesota
Supreme Court stated: strictly con-
Restrictive covenants are against strued limitations on the use of * * *
property. favors the Since law property, courts
unrestricted use will adopt a strained construction in favor
of restrictions. (citing at 26 Mission Covenant
Id. Church Nelson, Minn. (1958)). Any doubts should be in favor of the unrestricted use of
resolved Church,
property. Mission Covenant
missive, providing that “may
develop and sell not more than 750 * * If intended to sites *.”