The building site at this location was enlarged by the acquisition of land from an adjacent lot, which trigged questions about the applicable restrictions to width of residence. The legal opinion obtained by AHHA is memorialized below.

After review, I believe that there are three reasonable interpretations (described below) and that the correct/intended interpretation is not 100% clear. However, it is my opinion that the either the second or third interpretation described below is the most likely intended interpretation. Under both the second and third interpretation, the total width of the residence of 55 feet 4 inches shown in the site plan is less than the maximum width and is permissible.

Relevant Facts and Declaration Language:  

The “Definition of Terms Used” Section of the Declaration states “the word ‘lot’ may mean either any lot as platted, or any tract or tracts of land as conveyed, which may consist of one or more lots or part or parts of one or more lots as platted, and upon which a residence may be erected in accordance with the restrictions hereinafter set forth . . .”

Section 5 of the Declaration is titled “Ground Frontage Required” and provides in part:

Any residence erected on any of the following lots or part or parts thereof, as indicated in this section, shall have appurtenant thereto not occupied by any other residence, at least the number of feet off ground fronting on the street, upon which the lot or lots or part or parts thereof front as follows:

Lots land 12, 75 feet.

Lots 2 to 11 both inclusive, and Lots 13 to 21 both inclusive, 50 feet.

Lots 22 to 26 both inclusive 50 feet.

Section 7 of the Declaration is titled “Free Space Required” and provides:

The main body of any residence, including attached garages, attached greenhouses, ells and porches, enclosed or unenclosed, but exclusive of all other projections set forth above in Section 6, erected or maintained on any of the lots in this block; shall not occupy more than 80%, of the width of the lot on which it is erected, measured in each case on the front building line, or the front building line produced to the sidelines of the -lot which ever line is of greater length; any such residence, exclusive of those projections referred to in paragraphs c and d of Section 6, shall be set back at least four feet from both of the side lines of the lot upon which such residence is erected. It is provided, however, that the maximum width of any residence which may be erected on any of said lots, may with the consent in writing of The J. C. Nichols Investment Company, he increased by not to exceed 10% of the width M. ally such lot, measured along the front line thereof. It is further provided, that the required set back from the side lines of the lot as herein provided, may, with the consent in writing of The J. C. Nichols Investment Company, be reduced by, not to exceed 33 1/3% of the amount of such required set back; provided, however, that this reservation shall in no way whatever, affect the provision relative to the change in said building lines as set forth in Section 6 herein. In any case where the frontage of ground used with any residence is greater than the required frontage, then for the purpose of limiting the width of the residence and establishing its location with respect to the side lines of the lot the frontage so used shall be deemed to be the required frontage and the provisions of this section shall be construed accordingly; and if any residence of the maximum width is build or maintained on any such lot, then thereafter, the frontage so used may not be reduced on any such lot as long as said residence is maintained thereon, and the same provision shall apply as to the location of any residence with respect to the side lines of the lot. The used frontage may be reduced at any time by the conveyance of a part of the lot; provided, that it be not reduced below the minimum number of feet required with any residence of a width that might then be erected thereon, based on the provisions of this section; and provided, further that, in no case may it he reduced below the required frontage herein specified by Section 5. No tank for ‘the storage of fuel may be maintained thereon above the surfact of the ground without the consent in writing of The J. C. Nichols Investment Company.

Section 5 lists the minimum number of feet of street frontage a lot must have if it has a residence erected thereon. Lot 13 and Lot 14 both meet or exceed that minimum in the initial plat at 63.9 feet and 50 feet of street frontage, respectively.

Section 7 attempts to describe the restriction on the width of the actual residence, based on a percentage of the feet of frontage.

The first question is whether the beginning of the second highlighted sentence in Section 7, “In any case where the frontage of ground used with any residence is greater than the required frontage. . .” means that this highlighted sentence applies to 206 E 66th Street property (Lot 13 + 10 feet of Lot 14) because the frontage of ground used is 73.9 feet, which is greater than the 50 feet of frontage required for Lot 13 and Lot 14 by Section 5.

If the answer to that first question is yes it does apply, then the next question is what the calculation of the maximum width of the residence (80% of what distance) is to be based on. That question comes down to the interpretation of the terms in the remainder of the second highlighted sentence of Section 7. More narrowly, the question is what is intended by the language, “the frontage so used shall be deemed to be the required frontage.”

Interpretation #1

The first interpretation is the potential interpretation that Mr. Serra asked about in his attached 12/4/2022 email.

Under this interpretation, the frontage of the ground used with the residence (73.9 feet) is greater than the “required frontage” under Section 5 for Lot 13/14, and therefore, the second highlighted sentence of Section 7 is applicable. Section 5 requires that if a residence is erected on Lot 13, Lot 14, or part(s) of those Lots, the minimum frontage of each of those Lots respectively must be at least 50 feet. Thus, taking “required frontage” to mean those distances listed in Section 5, the 73.9 feet of ground used with the residence is greater than the 50 feet of required frontage.

Since under this interpretation, the second highlighted sentence of Section 7 is applicable, we then move to the second question of what is meant by “the frontage so used shall be deemed to be the required frontage.” Under this interpretation, “required frontage” is defined by Section 5 (50 feet), and such 50 feet of “required frontage” is the distance that should be used as the frontage of the ground on the lot(s) where the residence is built, for the purposes of determining the maximum width of a residence. Under this interpretation, the residence shown in the site plan would exceed the maximum width and be in violation of the Declaration (80% of 50 feet = 40 foot maximum width < 55 feet 4 inches shown in site plan).

Interpretation #2  

Interpretation #2 is the opposite interpretation of the second question.

The first part of this Interpretation #2 is the same as Interpretation #1. The second highlighted sentence of Section 7 does apply because the 73.9 feet of ground used with the residence is greater than the 50 feet of required frontage under Section 5.

However, the interpretation of “the frontage so used shall be deemed to be the required frontage” is the opposite of Interpretation #1. In this interpretation, “the frontage so used” defines, or “shall be deemed to be,” the “required frontage.” As applied here, the 73.9 feet of “frontage so used” would be deemed to be the “required frontage” and the 80% calculation would be based on that actual frontage used. The residence shown on the site plan would be under the maximum width and permissible under the Declaration (80% of 73.9 = 59.12 > 55 feet 4 inches).

The first reason that I lean toward this Interpretation over Interpretation #1 is the use of “so” in “the frontage so used” in the second highlighted paragraph of Section 7. When considering that entire sentence, the “so” seems to intend to reference back to the beginning of the same sentence where it says “In any case where the frontage of ground used with any residence is greater than the required frontage . . .”. To me, “the frontage so used” means that actual frontage of ground used that is greater than the Section 5 distances, referenced at the beginning of the sentence. If the intent was for the “required frontage” to define the “frontage used” for purposes of calculating the 80%, then it would have been less likely to include the “so” in the last part of the second highlighted sentence, and instead say “the[frontage used] shall be deemed to be the required frontage.”

The second reason I lean toward Interpretation #2 over Interpretation #1, is if the intent was Interpretation #1, it would have been more clear to include it in the first highlighted sentence of Section 7, with language something like the following red language “shall not occupy more than 80%, of the width of the lot on which it is erected, [but in no case greater than 80% of the required frontage].” The Declaration definition of Lot tells us that a Lot can mean tracts as conveyed and can include parts of more than one lot as platted. If the intent was to limit the width to 80% of the frontages listed in Section 5, even if a Lot is larger or has become larger by conveyance, that intent could be addressed there in that first highlighted sentence. By adding the remainder of Section 7, specifically the second highlighted sentence, it seems like an attempt (though certainly not a successful attempt) to clarify that in situations where lots are larger than those Section 5 frontage minimums, the width of the residence should not be restrained by those minimums. Rather, the “required frontage” will be a larger distance in those situations.

The third reason I lean toward Interpretation #2 over Interpretation #1 is the third highlighted sentence of Section 7. First, the end of that sentence specifies “required frontage herein specified by Section 5.” This shows that the drafters did add a reference to Section 5 when they specifically wanted to reference the required frontage from that Section, and they could have done the same in the first or second highlighted sentences if they intended to use those Section 5 distances as the basis to determine residence width limits. Second, the beginning of that third highlighted sentence (“the used frontage may be reduced at any time by the conveyance of a part of the lot; provided, that it be not reduced below the minimum number of feet required with any residence of a width that might be erected thereon . . .”) would not be necessary to include if the Section 5 requirements were always to be used to calculate the maximum residence width. If the Section 5 requirements were always to be used, even if a lot was larger than the Section 5 requirements, then we would be able to determine the maximum width of any residence. In this case, it would always be 40 feet (80% of 50 feet). The sentence could simply state that a lot with a residence is never to be reduced below the frontage specified in Section 5.

The fourth reason I lean toward this Interpretation #2 over Interpretation #1 is because the residence is built on frontage encompassing two different lots, as platted. There is nothing clarifying whether the Section 5 frontage for Lot 13, Lot 14, or some combination would be used in that scenario. Therefore, it seems more likely that the second highlighted sentence in Section 7 is an attempt to provide that the actual frontage (73.9 feet) is the required frontage in those situations.

Interpretation #3

Interpretation #3 is that under the definition of “Lot” the 206 E. 66th property complies with Section 7 under the first highlighted sentence. It does not occupy more than 80% of the current Lot. (80% of 73.9 = 59.12 > 55 feet 4 inches). The second highlighted sentence of Section 7 would contradict the first highlighted sentence of Section 7, if interpreted under Interpretation #1.