Link to PDF file
No. 35308 - Jason Foster v. Orchard Development Company
and Peteler, LLC
Ketchum, J., concurring:
I agree with our decision which is based on the single issue argued in this case, i.e.,
whether the covenants and design guidelines adopted and published by the developer allowed the
developer to later unilaterally reduce the size of the residences to be built in the subdivision.
I am writing to point out that our decision does not extinguish causes of actions by
a purchaser to enforce sales brochures or similar materials. The law has long recognized that
purchasers will ordinarily rely on sales and promotional materials rather than attempt to interpret the
legalese in complicated development covenants and design guidelines. Promissory estoppel,
fraudulent misrepresentation, and other causes of action based on sales brochures and similar
material are still viable.