NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

JERRY ALLEN

APPELLANT

V.

MARK GOINGS, ET AL.

APPELLEE

CA00-823

March 14, 2001

APPEAL FROM THE LONOKE COUNTY CHANCERY COURT

[NO. E99-304]

HONORABLE PHILLIP THOMAS WHITEAKER, CHANCELLOR

AFFIRMED

On April 19, 1999, appellant, Jerry Allen, filed his complaint in chancery court praying that title in eighteen-and-one-tenth acres of real property be quieted in him and that a declaratory judgment be granted voiding certain restrictive covenants on the property. Appellant's complaint stated that although the real property was part of a proposed subdivision, Windwood Country Estates, no bill of assurance or plat was ever recorded. He alleged that not all of the properties in the subdivision were subject to restrictive covenants and that those subject to restrictive covenants did not contain identical restrictions. Appellant concluded that "[t]here was no general building development and scheme for Windwood Country Estates."

Appellant named as separate defendants other owners of lots in the subdivision, Mark Goings, Kurt Lueken, Fred Inman, Jeffery Baker, and Clyde Brockett. The court permitted the intervention of other parties who were real property owners in the subdivision, including the wives of the defendants, George and Linda Brown, Robert and Jeanne Conger, Richard and Terry Hill, James and Gywn Kiddy, Brent and Danise Larsen, Harry and Peggy Roberts, Christopher and Rebecca Rowan, Mark and Julie Severns, William and Cathy Smith, Danny and Patricia Vance, Charles Ward, and Ralph and Vicki Wells. Most of the defendants and intervenors asserted at trial that they not only knew of the restricted nature of the subdivision but also relied

on the restrictions when purchasing their property.

After hearing testimony, the court issued an order denying appellant's complaint because of a "lack of proof." In a letter opinion, the chancellor cited Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981), and stated that "[r]estrictive covenants will be enforced in unplatted subdivisions even when some of the deeds contain no restrictions at all."

Appellant argues on appeal that there was no general plan of development regarding Windwood Country Estates because the restrictions varied regarding the size of the lots, with eight pieces of property limited to two-and-one-half acres, five limited to two acres, one limited to one-and-seven-tenths acres, two limited to one-and-one-half acres, and seven without limitation on size. Thus, he argues that the chancellor should have declared the restrictive covenants void and unenforceable. On review of this matter, this court will not reverse a finding of fact by a chancellor unless it is clearly erroneous. See Constant v. Hodges, 292 Ark. 439, 443, 730 S.W.2d 892, 894 (1987). We disagree with appellant and affirm.

Where there is no general plan of development, restrictive covenants in either a bill of assurance or a deed conveying the land are not enforceable. See McGuire v. Bell, 297 Ark. 282, 290, 761 S.W.2d 904, 909 (1988). Where a general plan of development exists, restrictive covenants are enforceable. Harbour v. Northwest Land Co., Inc., 284 Ark. 286, 288, 681 S.W.2d 384, 385 (1984). The test for determining whether there is a general plan of development is whether "substantially common restrictions apply to lots of like character or similarly situated." Id. "[T]o create a general plan of development the restrictions need not be identical, or completely uniform, so long as the scheme of creating a uniformsubdivision is apparent." 20 Am. Jur. 2d Covenants, Conditions, and Restrictions § 160 (1995). Furthermore, "restrictions may vary in different sections of the same tract in accordance with the original grantor's design ...." Id. "[A] general plan of development may be found to exist even though there are complete omissions of restrictions in the deeds to some of the lots in the area affected by the plan." 20 Am. Jur. 2d Covenants, Conditions, and Restrictions § 161 (1995). "If the general plan has been maintained from its inception, has been understood, accepted, relied on, and acted upon by all in interest, it is binding and enforceable on all." Id. However, "extensive omissions of restrictions from deeds tend to ... weaken the inference of the existence of any general plan of development." Id. Parol evidence is admissible to establish a general building plan or scheme of development and improvement. See Warren v. Detlefsen, 281 Ark. 196, 199, 663 S.W.2d 710, 711-12 (1984).

Appellees' witness, Paul Schmidt, a principal owner and developer of Windwood Country Estates, testified that the property was developed under a plan to maintain estate-type tracts, with the property nearest Mt. Carmel Road, or Highway 321, developed in the largest tracts. Because of a creek and other natural objects on the property, the property further away from the road had to be developed in either larger or smaller tracts. Upon questioning by the court, Schmidt testified that the minimum lot size was to be one and one-half acres. A deed to the other principal owner, Don Bevis, which constituted three of the properties without restrictive covenants, did not mention covenants because he was one of the principals, was aware of the restrictions, and did not intend to deviate therefrom. Moreover, at the time the property was deeded to Bevis, several properties had already beendeeded with restrictive covenants to a number of other people. Further, the current owners of these three properties testified that they were aware of restrictions on the properties and made their purchases because of the restrictions. The four other properties which appellant describes as without restrictions all made reference to a schedule of restrictions, but the schedules were not filed of record. Schmidt, however, testified that he consistently represented to purchasers that Windwood Country Estates was a restricted development.

Even though there were omissions from the deeds, as noted by appellant, sixteen of the twenty-three deeds contained lot-size restrictions. Four of the deeds without restrictions alluded to a schedule of restrictions. The three remaining lots without restrictions were originally sold to a principal who had knowledge of the restrictions and did not intend to deviate from the restrictions. The current owners of the three properties were aware of the restrictions and made their purchases based on the restrictions. As is apparent from the testimony of Schmidt, geographical considerations played a part in determining the size of the lots, but in no event was a lot to be less than one and one-half acres.1 Moreover, Schmidt testified that he consistently represented to purchasers that Windwood Country Estates was a restricted development. Furthermore, there is no evidence of noncompliance with the restrictions. Given this evidence, the chancellor did not clearly err in determining that there was a general building plan of development.

Appellant also argues that even if the restrictive covenants are enforceable, thecovenants should be construed to permit him to construct multi-unit housing on his property. Nothing in the abstract, however, suggests that this issue was raised in chancery court or ruled upon by the chancellor. We will not address this latter argument because we do not address arguments raised for the first time on appeal. See Barber v. Watson, 330 Ark. 250, 255-56, 953 S.W.2d 579, 583 (1997).

Affirmed.

Pittman and Vaught, JJ., agree.

1 Because it was an approximation, we do not consider as significant the Goings deed description of their property as "1.49 acres, more or less."