Noble v. Kalanges

Annotate this Case
Noble v. Kalanges (2004-437); 179 Vt. 1; 886 A.2d 767

2005 VT 101

[Filed 26-Aug-2005]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2005 VT 101

                                No. 2004-437


  Denise A. Noble, et al.	                 Supreme Court

                                                 On Appeal from
       v.	                                 Chittenden Superior Court


  William C. Kalanges	                         April Term, 2005


  Matthew I. Katz, J.

  Christopher J. Smart, Montpelier, for Plaintiffs-Appellants.

  Mark L. Sperry of Langrock Sperry & Wool, LLP, Burlington, for
    Defendant-Appellee.


  PRESENT:  Reiber, C.J., Johnson and Skoglund, JJ., and Hayes, Supr. J.
            and Grearson, D.J., Specially Assigned


       ¶  1.  JOHNSON, J.   In this appeal, we consider whether plaintiffs
  have the right to prevent defendant from developing his property, which at
  one time was designated on a subdivision plat as "reserved" for an
  elementary school.  Plaintiffs argue that because their deeds reference the
  subdivision plat, they acquired an implied easement that limited the use of
  the site to a school.  Alternatively, they argue that through a
  reversionary clause of a 1985 warranty deed, they acquired an equitable
  servitude that required the site to remain open space.  The trial court
  rejected these arguments and granted summary judgment for defendant.  We
  affirm.
   
       ¶  2.  The following facts are undisputed.  Plaintiffs and defendant
  reside in Essex, Vermont.  Defendant owns real property in a subdivision
  called "Countryside," as do some plaintiffs.  The remaining plaintiffs own
  property in an adjoining subdivision called "Essex Park."  

       ¶  3.  The subdivisions were created as follows.  In 1984, Essex
  Housing Partnership (EHP) recorded a plat depicting the Countryside
  subdivision.  The plat designated an approximately fourteen-acre parcel as
  "reserved elementary school site."  EHP also recorded a plat for the Essex
  Park subdivision.  The Essex Park plat depicted an approximately
  twenty-acre parcel of land as "common open space area."  Both plats
  expressly stated that they had been approved by the town's planning
  commission in May 1984 "subject to all requirements and conditions" of the
  commission's resolution of the same date.  As discussed in greater detail
  below, the planning commission approved the plats on the condition that EHP
  deed land to the school district for an elementary school. (FN1)
   
       ¶  4.  Consistent with this agreement, EHP executed two documents in
  favor of the school district. (FN2)  In February 1985, it conveyed the
  Countryside site to the school district by deed subject to the following
  terms and conditions.  If the school district did not begin construction of
  an elementary school building within five years after the completion of the
  Countryside subdivision, EHP could prompt the planning commission and
  zoning board to review the Countryside site.  If both bodies made
  unconditional determinations that the school site should not continue to be
  reserved for public school use, they would notify the school district's
  governing board of their decision in writing and file a certified copy of
  their official resolution in the town's land records.  If the school
  district exercised a purchase option for the Essex site in accordance with
  the terms and conditions of the option (discussed below), then the
  Countryside site would revert to EHP subject to the restriction that it
  would be forever reserved as common open space for the benefit of the Essex
  Park subdivision.

       ¶  5.  As noted above, EHP also provided the school district with a
  purchase option for the Essex site in February 1985.  The option reiterated
  that the planning commission's final approval of the Countryside
  subdivision plat was conditioned on the dedication of a school site, and
  the school district wanted the option of choosing between the Countryside
  site and the Essex site for future construction.  It explained that the
  Countryside site had been conveyed to the school district with restrictions
  by warranty deed but EHP still held title to the Essex site.  Thus, and as
  partial consideration of the final approval of the planning commission, EHP
  granted the school district an exclusive option to purchase the Essex site
  for nominal consideration. 
   
       ¶  6.  The option provided that the grant would revert back to EHP
  and be forever null and void: (1) if the school district had not commenced
  construction of a school building on the Essex site within five years after
  the completion of the Countryside subdivision; or (2) if the school
  district commenced construction of a school building on the Countryside
  site.  In the case of reversion under either of these clauses, the Essex
  site would forever remain common open space "as [was] currently required." 
  The option also provided that if the school district gave timely and proper
  notice of its intent to exercise the option, then EHP must execute and
  deliver a warranty deed conveying the Essex site to the school district. 
  In July 1992, EHP conveyed the Essex site to the school district via
  warranty deed.  Ultimately, the school district did not build on either
  site.  

       ¶  7.  In January 1995, EHP assigned defendant its "right, title and
  interest in and to the reversionary rights" in the property described in
  the February 1985 warranty deed and the February 1985 purchase option.  In
  July 1995, defendant provided formal notice to the school district that the
  Countryside development had been completed.  In May 1996, defendant
  requested that the zoning board make a determination regarding the
  revertible rights of the Countryside site.  The board concluded that
  defendant's request was premature as five years had not yet passed from the
  completion of the Countryside subdivision.  In November 1996, the school
  district executed a quitclaim deed releasing its interest in the
  Countryside site to EHP.  The next day, EHP executed a quitclaim deed
  releasing its interest in the Countryside site to defendant. 

       ¶  8.  In August 1999, defendant requested a zoning permit to
  construct a home on the Countryside site.  His request was denied pending a
  meeting of the planning commission.  At a September 1999 meeting, the
  planning commission determined that the Countryside site would not be used
  for a school and ownership of the site would therefore revert to EHP.  It
  then granted defendant's request for a permit to build a home on the
  Countryside site. 

       ¶  9.  In February 2000, the zoning board and the planning commission
  issued a notice of decision regarding the Countryside site.  The notice
  stated that both boards had agreed that the Countryside site and the Essex
  site were no longer encumbered by the original restrictions contained in
  the February 1985 deed and purchase option.  The notice was intended to
  comply with the original deed restrictions, included in deeds to both
  parcels, which required that a notice of the unconditional resolution of
  the planning commission and the zoning board be recorded in the town's land
  records. 
   
       ¶  10.  In October 2000, defendant obtained an Act 250 permit to
  construct his home.  Defendant began construction on his home in April 2001
  and moved in during June 2002.  In January 2003, the planning commission
  approved defendant's plan to build seven more houses on the site. (FN3)
        
       ¶  11.  In July 2003, plaintiffs filed suit against defendant, seeking
  the removal of his home and an injunction against the construction of any
  additional homes on the site.  Plaintiffs asserted that they possessed an
  implied easement and equitable servitude that were enforceable against
  defendant.  Specifically, the Countryside plaintiffs claimed that because
  the subdivision plat, which was referenced in their deeds, depicted the
  Countryside site as reserved for a school, they had acquired an implied
  easement that barred the construction of anything other than a school on
  the site.  The Essex Park plaintiffs argued that the open space restriction
  in the 1985 deed (conveying the Countryside site to the school district)
  was triggered when the school district received a warranty deed for the
  Essex site, and they had thereby acquired an enforceable equitable
  servitude.
   
       ¶  12.  Both parties moved for summary judgment and the court granted
  defendant's motion.  The court first addressed the Countryside plaintiffs'
  implied easement claim.  It acknowledged that under Clearwater Realty Co.
  v. Bouchard, 146 Vt. 359, 364, 505 A.2d 1189, 1192 (1985), "lot owners
  acquire rights in all roads, streets, parks, and other designated ways
  shown on the plat map unless a contrary intent is affirmatively shown." 
  The court distinguished Clearwater, however, explaining that a designated
  school site did not create the same kind of third-party easement as would a
  right-of-way, street, or park.  The court concluded that its analysis of
  plaintiffs' claim resembled more of an equitable evaluation, and the
  equities in this case favored defendant.  The court noted that implied
  easements are disfavored and that enforcing the right would create a
  particularly heavy burden to run with the land, for a purpose that had been
  disavowed by the intended party.  In light of these facts, the court found
  it difficult to see how plaintiffs would have a right to the reserved
  school site parcel merely because it was part of the plat referenced in
  their deeds.  It therefore rejected plaintiffs' implied easement claim.

       ¶  13.  The court similarly rejected the Essex Park plaintiffs'
  equitable servitude claim.  It stated that an option contract was not an
  agreement but rather a "continuing offer by one to sell and convey within
  the time and upon the conditions stated."  In this case, the court
  explained, one of the conditions of the purchase option was that the school
  district build on the property within five years of Countryside's
  completion.  The fact that the parties had exchanged deeds acknowledged
  that the school district intended to exercise its option, but the building
  term remained unfulfilled.  Thus, the  school district took possession of
  the property but it did not take it in accordance with the option's
  original terms.  Moreover, the court explained, the school district
  returned the parcel in 1995 before it could exercise the terms of the
  purchase option.  

       ¶  14.  The court found that the purpose of the option in conjunction
  with the 1985 deed was to provide the school district with one school site
  while reserving one as open space; the fact that the school district had
  walked away from both parcels did not change this effect and intent.  The
  court thus concluded that the reversion clause in the school site deed had
  not been triggered by the 1992 transfer of title for the Essex site and any
  equitable servitude that might arise out of the deed was not kindled.  The
  court therefore granted defendant's motion for summary judgment. 
  Plaintiffs appealed.
   
       ¶  15.  Plaintiffs first argue that the trial court erred in granting
  summary judgment to defendant on their implied easement claim.  According
  to plaintiffs, the trial court misread and misapplied Clearwater, 146 Vt.
  359, 505 A.2d 1189.  Plaintiffs maintain that the touchstone of Clearwater
  is "inducement," and because they were induced to purchase their lots by
  the promises of the subdivision plat, the promises of the plat are
  enforceable.  Plaintiffs argue that Clearwater should apply to reserved
  school sites because schools convey an image analogous to a park, the
  inducement test was met, and the underlying evil ("bait and switch") was
  shown. 

       ¶  16.  We review a grant of summary judgment using the same standard
  as the trial court.  Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d 319, 321
  (2000).  Summary judgment is appropriate when, taking all allegations made
  by the nonmoving party as true, there are no genuine issues of material
  fact and the movant is entitled to judgment as a matter of law.  V.R.C.P.
  56(c)(3); Richart, 171 Vt. at 97, 758 A.2d  at 321.  As discussed below, we
  conclude that Clearwater is inapplicable in this case, and the trial court
  properly granted summary judgment for defendant.  
   
       ¶  17.  In Clearwater, we recognized the "familiar principle of law
  that where lots are sold by reference to a recorded plat, lot purchasers
  acquire the right to keep open and use roads, streets, highways, and park
  areas as indicated on the plat."  146 Vt. at 363, 505 A.2d  at 1191.  The
  Clearwater case involved a dispute over a beach path that had been depicted
  on a subdivision plat, which was referenced in defendants' deed.  The path
  did not abut defendants' property, however, and we noted that a minority of
  jurisdictions held that lot purchasers only acquired easements over platted
  streets or ways that touched their land or that were necessary for the use
  and enjoyment of their property.  Id.  We rejected this approach in
  Clearwater, holding with the majority of jurisdictions that "lot owners
  acquire rights in all roads, streets, parks, and other designated ways
  shown on the plat map unless a contrary intent is affirmatively shown." 
  Id. at 363-64, 505 A.2d  at 1192.  We explained that the object of this
  principle was " 'not to create public rights but to secure to persons
  purchasing lots under such circumstances those benefits, the promise of
  which, it is reasonable to infer, has induced them to buy portions of a
  tract laid out on the plan indicated.' "  Id. (quoting Callahan v.
  Ganneston Park Dev. Corp., 245 A.2d 274, 278 (Me. 1968)); see also Crabbe
  v. Veve Assocs., 150 Vt. 53, 55-56, 549 A.2d 1045, 1047 (1988) (explaining
  that implied easement rule is rooted in equitable considerations).

       ¶  18.  In Lalonde v. Renaud, 157 Vt. 281, 283, 597 A.2d 305, 306
  (1989), we clarified that Clearwater set forth an objective test for
  evaluating implied easement claims.  In that case, the trial court held
  that plaintiffs had acquired an implied easement in a lot that had been
  depicted as a park on a subdivision plat.  Id. at 283, 597 A.2d  at 305. 
  Defendants argued that they had been denied the opportunity to show that
  one of the plaintiffs had not actually relied on the existence of the park
  in purchasing his lot.  Defendants asserted that absent reliance on the
  plat or reliance on the park itself, plaintiff had not been injured by the
  subsequent development of the lot.  Id. at 283, 597 A.2d  at 306. We
  rejected this argument, explaining that under Clearwater, lot owners were
  granted "rights as a result of purchasing 'with reference to' a plat,
  without adding a requirement of specific reliance on depictions in the
  plat."  Id.

       ¶  19.  In reaching our conclusion, we noted that Clearwater did not
  absolutely bar a different analysis in a significantly different factual
  setting.  Id. at 284 n.2, 597 A.2d  at 306 n.2.  We explained that
  Clearwater involved rights-of-way, not parks, and parks might well be
  considered distinguishable on the basis of a different degree of necessity
  to the lot owner.  Id. at 284, 597 A.2d  at 306.  We indicated that we had
  had no occasion in Clearwater to consider a third line of cases that had
  adopted the "intermediate" or "beneficial enjoyment" rule, under which the
  extent of the private right is limited to streets, alleys, or parks that
  are reasonably or materially beneficial to the grantee.  Id.  Even under
  this test, we explained, the inquiry into whether a lot owner is benefitted
  would involve an objective test, not one that depends on an owner's
  specific reliance on what was depicted on the plat map.  Id.

       ¶  20.  Plaintiffs argue that, as in Clearwater, they acquired an
  implied easement in the reserved school site because it is "reasonable to
  infer" that they were induced to purchase their lots by the promises of the
  plat. (FN4)  While plaintiffs correctly assert that inducement is an
  integral component of the implied easement analysis, there can be no
  reasonable inducement under the circumstances of this case.  The
  construction of a school, unlike a platted road or park, is completely
  outside of the developer's control.  Thus, unlike Clearwater, and the cases
  on which plaintiffs rely, plaintiffs could never acquire or enforce a
  "private right" to the construction of a school building on the Countryside
  site.  Cf. Clearwater, 146 Vt. at 363, 505 A.2d  at 1191 (platted path);
  Lalonde,157 Vt. at 283, 597 A.2d  at 305 (platted park);  Ute Park Summer
  Homes Ass'n. v. Maxwell Land Grant Co., 427 P.2d 249, 253 (N.M. 1967)
  (confirming lot owners' "private right" to construction of golf course
  depicted on plat where lot sales were based on plat and specific
  representations to this effect had been made to buyers).  

       ¶  21.  Looking at the types of cases in which the implied easement
  has been applied, it is apparent that its underlying rationale is simply
  inapplicable here.  In Callahan, 245 A.2d  at 275-76, for example, the Maine
  Supreme Judicial Court held that plaintiffs, who had purchased their lot
  with reference to a plan that depicted a cul-de-sac abutting their lot,
  acquired the right to prevent the cul-de-sac's destruction.  As the court
  explained, it is not in the public interest "to permit land developers to
  hold out the hope and expectation of the availability of streets to serve
  lots being purchased and at the same time to retain the power at their whim
  to subsequently destroy that availability."  Id. at 279.  
   
       ¶  22.  Similarly, in Ute Park Summer Homes Assoc., 427 P.2d  at 253,
  a developer sold lots  with reference to a subdivision plat that depicted a
  large open area as a "golf course."  Id. at 251.  The developer then sought
  to sell the "golf course" area without restriction as to its use.  The lot
  owners sued, and the court held that the lot owners had acquired a legally
  enforceable right in the property based on the promises of the plat.  As
  the court explained, 

    The rationale of the [implied easement] rule is that a grantor,
    who induces purchasers, by use of a plat, to believe that streets,
    squares, courts, parks, or other open areas shown on the plat will
    be kept open for their use and benefit, and the purchasers have
    acted upon such inducement, is required by common honesty to do
    that which he represented he would do.  It is the use made of the
    plat in inducing the purchasers, which gives rise to the legally
    enforceable right in the individual purchasers, and such is not
    dependent upon a dedication to public use, or upon the filing or
    recording of the plat.  

  Id. at 253. 

       ¶  23.  Unlike the cases discussed above, and similar cases involving
  platted streets, parks, and open space areas, the grantor in this case
  lacks authority to construct a school on the Countryside site and its
  reservation of the school site cannot reasonably be seen as a promise to
  purchasers that such construction would actually occur.  See generally
  Restatement (Third) of Property:  Servitudes, § 2.13, Reporter's Note at
  174 (2000) (stating that "[u]nless the grantor has the power to create the
  servitude, there would be no point to implying the servitude," and citing
  cases).  Indeed, in this case, the grantor was required by the planning
  commission to reserve the school site and convey the site to the school
  district to secure approval of the plat.  

       ¶  24.  Under the circumstances of this case, it would be unreasonable
  for a purchaser to rely on such a designation in purchasing his lot.  This
  is particularly true where, as here, the plat specifically provided that it
  was approved on the terms and conditions identified by the planning
  commission, and where the reservation (and subsequent reversion of
  ownership to the grantor) was consistent with the town's subdivision
  regulations.  Because there can be no reasonable inducement under the
  circumstances of this case, summary judgment was properly granted for
  defendant.  Given our conclusion, we do not address plaintiffs' claim that
  the trial court erred by suggesting that the "broad view" adopted in
  Clearwater is subject to an exception when a municipality vacates.   
   
       ¶  25.  We turn next to plaintiffs' assertion that the trial court
  erred in rejecting its equitable servitude claim.  Plaintiffs maintain that
  the open space restriction in the 1985 warranty deed, which conveyed the
  Countryside site to the school district, was triggered when the school
  district provided EHP with written notice of its intent to exercise the
  purchase option for the Essex site.  According to plaintiffs, this act
  constituted the "exercise" of the purchase option as contemplated by the
  1985 warranty deed, and the trial court erred by failing to distinguish
  between the acceptance of the offer (i.e., "exercise" of the option), and
  the performance of the resulting contract. 

       ¶  26.  Putting aside defendant's assertions regarding chain-of-title,
  the trial court properly construed the terms of the 1985 warranty deed. 
  The 1985 warranty deed provided that if the school district "exercise[d]
  its option to purchase" the Essex site "in accordance with the terms and
  conditions" of the purchase option, then the Countryside site would revert
  to EHP "subject to the restriction . . . that said lands and premises shall
  be forever reserved as common open space for the benefit of the Essex Park
  Condominium Regimes."  The school district did not exercise its option to
  purchase the Essex site in accordance with the terms and conditions of the
  purchase option, and the open space restriction was therefore not
  triggered. 
   
       ¶  27.  In construing a deed, the court must "give effect to the
  intention of the parties if it can be gathered from the language used when
  interpreted in connection with, and in reference to, the subject matter and
  purpose sought to be accomplished at the time the instrument was executed." 
  McDonough v. W.W. Snow Constr. Co., 131 Vt. 436, 441, 306 A.2d 119, 122
  (1973); accord Kipp v. Chips Estate, 169 Vt. 102, 105, 732 A.2d 127, 129
  (1999); Welch v. Barrows, 125 Vt. 500, 504, 218 A.2d 698, 702 (1966) ("The
  intention of the parties, not the language used, is the dominating factor,
  and the circumstances existing at the time of the execution of the deed,
  the situation of the parties and the subject matter are to be
  considered.").  In this case, the intent of the parties is clear-the
  warranty deed and purchase option were intended to give the school district
  the option of choosing between the Countryside site and the Essex site for
  the construction of a school.  If a school was built on the Countryside
  site, then the Essex site would remain open space.  Conversely, if the
  Essex site was used for a school, then the Countryside site would be used
  as open space for the benefit of the Essex Park subdivision.  There is no
  suggestion in either document that the parties intended to reserve both
  sites as open space if a school was not actually constructed on either
  site.  Given the existence of the purchase option, it would be unreasonable
  to draw such an inference. 

       ¶  28.  We reject plaintiffs' assertion that by providing EHP with
  written notice of its intent to exercise the option, and receiving a
  warranty deed for the Essex site in 1992, the school district exercised the
  purchase option as required by the 1985 warranty deed.  Plaintiffs'
  suggested interpretation would undermine the parties' intent in executing
  these documents.  The purpose of the option was to provide the school
  district with a site on which to build a school; it follows that exercise
  of the option in accordance with its terms and conditions, as provided by
  the 1985 warranty deed, required that construction on the site actually
  occur.  Thus, contrary to plaintiffs' assertion, the school district's
  actions did not constitute "acceptance" of the offer contained in the
  purchase option, nor did its actions give rise to a bilateral contract that
  obligated it to build a school on the Essex site within five years of the
  completion of the Countryside subdivision. (FN5)  See Ackerman v.
  Carpenter, 113 Vt. 77, 81, 29 A.2d 922, 924-25 (1943) (recognizing that "an
  acceptance which varies from the offer will not conclude a contract;" and
  explaining that "[i]n determining what one party intended and the other
  ought to have understood, regard must be had to the situation and the
  purpose of the parties, the subject matter and course of the
  negotiations.").  
                                                  
       ¶  29.  This interpretation is reinforced by the option's provision
  that the grant would become null and void if construction had not occurred
  on the Essex site within five years after the completion of the Countryside
  subdivision or if construction had occurred on the Countryside site within
  this period.  The option also provided that if the school district obtained
  and recorded a warranty deed for the Essex site, this would serve to
  "protect the rights of the school district" as granted in the purchase
  option.  In other words, the school district would retain the right to
  commence construction on the Essex site until five years had elapsed from
  the completion of the Countryside subdivision.  This provision undercuts
  plaintiffs' assertion that the school district became contractually
  obligated to construct a school on the Essex site once it provided EHP with
  its notice of intent to exercise the purchase option.  As previously noted,
  the school district did not exercise its right to commence construction on
  the Essex site, and indeed, it conveyed the site to the Essex Park
  Homeowners' Association in December 1998, before the relevant time period
  had elapsed.  

       ¶  30.  The trial court properly determined that the option was not
  exercised as required by the 1985 warranty deed, and the open space
  restriction was not triggered.  Given our conclusion, we do not reach
  plaintiffs' argument that the open space restriction is an equitable
  servitude.  Summary judgment was appropriately granted to defendant on
  plaintiffs' claims.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  At the time the plats were recorded, the town's subdivision
  regulations provided that when a proposed development consisted of one
  hundred or more dwelling units, the planning commission could require the
  subdivider to reserve a site and mark it on the subdivision plat as a
  potential school site.  Village of Essex Junction, Subdivision Regulations,
  Rule 8.48 (adopted July 14, 1981).  If the commission required that a
  school site be reserved, the subdivider was required to provide the school
  district with a warranty deed for the site, free and clear of encumbrances,
  which would be recorded prior to the initiation of improvements on the
  site.  If the school district did not initiate improvements within five
  years after the completion of the development, the commission was required
  to review the continuing need for the school site with the prudential
  committee.  If the commission determined that the site should not continue
  to be reserved for public school use, the condition of use would be
  considered void.  The regulations also provided that if a development had a
  potential development capacity of ten or more dwelling units, the
  commission could require the subdivider to reserve up to fifteen percent of
  the plat for public open space, park land, or recreational purposes.

FN2.  It appears from the record that in December 1984, EHP conveyed its
  interest in the Countryside development to A&G Investments, a Vermont
  general partnership.  A&G Investments joined in the conveyance of the
  Countryside site "for the purposes of releasing any and all interest they
  may have in the within described lands and/or interest therein."

FN3.  Plaintiffs Noble, Wasser, Connors, Cobb, Trendles, Mitchells,
  Brauneggs, Jordans, and Dalhgren, appealed the site plan approval to the
  Environmental Court.  According to plaintiffs' complaint, a hearing on this
  appeal was scheduled for July 2003.  The status of this appeal is not clear
  from the record.  It appears that the above-named plaintiffs also appealed
  the planning commission's approval of an amended Act 250 permit reflecting
  the seven-home development project. 

FN4.  Plaintiffs' assertions that they were in fact induced to purchase
  their lots by the promises of the plat are immaterial to the resolution of
  their implied easement claim.  See Lalonde v. Renaud, 157 Vt. 281, 283, 597 A.2d 305, 306 (1989).  We therefore reject their argument that the trial
  court erred by ignoring evidence to this effect. 

FN5.  In their reply brief, plaintiffs assert that the purchase option no
  longer exists because it was merged into the 1992 warranty deed for the
  Essex site.  Plaintiffs raise this argument for the first time on appeal
  and we therefore do not address it.  See Lane v. Town of Grafton, 166 Vt.
  148, 153, 689 A.2d 455, 457 (1997) ("Failure to raise a reason why summary
  judgment should not be granted at the trial level precludes raising it on
  appeal.").  Even if this argument had been preserved, however, we note that
  it would not undermine our conclusion that plaintiffs' interpretation of
  the 1985 warranty deed is at odds with the parties' intent.