Court of Appeals Division III
State of
Opinion Information Sheet
Docket Number: 26589-7
Title of Case: Morris Mack, et ux v. Byron Armstrong and Laurie Armstrong
File Date:
SOURCE OF APPEAL
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Appeal from
Docket No:
Judgment or order under review
Date filed:
Judge signing:
Honorable C James Lust
JUDGES
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Authored by Dennis J. Sweeney
Concurring: John A. Schultheis
Kevin M. Korsmo
COUNSEL OF RECORD
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Counsel for Appellant(s)
Jerome R. Aiken
Attorney at Law
Counsel for Respondent(s)
James Ketner Adams Jr.
Wagner Luloff and Adams
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IN THE COURT OF
APPEALS OF THE STATE OF
MORRIS MACK and KARILEE No. 26589-7-III
MACK, husband and wife, )
)
Respondents, )
) Division Three
v. )
)
BYRON ARMSTRONG and LAURIE )
ARMSTRONG, husband and wife, )
) PUBLISHED OPINION
Appellants. )
)
Sweeney, J. --
Specific provisions of real estate covenants take precedence over
more general
consent-to-construction provisions of those same covenants. Here, the
covenants permitted construction of
a residence up to 30 feet in height. The
covenants
also provided for approval of plans
by an architectural committee. The trial
court
concluded that the appellants'
house was under the 30-foot limit set out in the covenants
but, nonetheless, ordered the
owners to adhere to a decision of the architectural
committee and remove the top four
feet of their house. We conclude this
was error and
reverse.
No. 26589-7-III
Mack v. Armstrong
FACTS
History: Byron and Laurie Armstrong and Morris and Karilee Mack own lots in
the Vista Ridge Subdivision in
Selah,
subdivision's twelve lots are
developed and generally face southward and westward for
views of the
The
subdivision's developer recorded a "Declaration of Restrictive and
Protective
Covenants and Subjection to Assessment and
Utility Liens." The relevant portions of the
covenants state:
1. Paragraph 3 ("Land Use"): "No structure shall be more than thirty
(30) feet
in height, measured vertically from the highest point of the
lot . . . without
the express written
consent of the Architectural Control Committee."
Clerk's Papers (CP) at 288.
2. Paragraph 4 ("Architectural Control
Committee"): "the terms
'building or
structure' shall include, but not be limited to, any
building, chimney, pole,
antennae or tower, fence, tennis court, swimming pool,
outbuilding, storage
shed, dwelling, garage, carport and landscaping. No building or structure
shall be built or placed or thereafter altered on any lot, .
. . until the details
and written plans and specifications thereof disclosing
clearing size,
materials, location, finish and elevations have been
submitted to and
approved by the Architectural Control Committee." CP at 288-89.
3. Paragraph 4(1): "The Committee shall consider the
orientation and location
of the dwellings with the intent of preserving the views
from any other
dwelling." CP at 289.
4. Paragraph 4(3): "The dwellings may be single story or
multiple story,
provided that multiple story dwellings will not
significantly impair the view
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No. 26589-7-III
Mack v. Armstrong
from any other lot." CP at 289.
5. Paragraph 8
("Enforcement"): "In the
event of violation of the terms
hereof, any owner of any lot subject hereto, or the Vista Ridge
Association,
may institute proceedings for abatement or injunction or for
damages and
reasonable costs, including plaintiff's reasonable
attorney's fees." CP at
291.
The Armstrongs purchased their home from a previous owner in
1994. The Macks
purchased a lot in the development
also around 1994. The Macks sought and received
approval from the subdivision's
architectural control committee and built their home.
Several of the
subdivision lot owners served as officers in the Vista Ridge
Association. These same homeowners made up the
architectural control committee
established by the covenants. At least one of the subdivision residents, an
attorney,
expressed concerns that the
covenants were "anemic" and unenforceable. Report of
Proceedings (RP) at 216-17. He
drafted proposed amendments to the covenants that have
not yet been adopted.
The Armstrongs began construction of a significant addition to
the back of their
home in November 2002. The roof trusses arrived while the Armstrongs were out of
town in early January 2003. Neighbor Linda Zingerman
contacted the Armstrongs'
builder and left a voice message on
the Armstrongs' home phone to express her concern
that the Armstrongs'
addition would negatively affect her view of the surrounding
scenery. Several informal and formal meetings
followed. The meetings included, at
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No. 26589-7-III
Mack v. Armstrong
various points, Mr. Armstrong, Mr.
Mack, and neighbors Ken Kiest, James and Linda
Zingerman, and Mark Smith.
They discussed the architectural control committee's
disapproval of the Armstrongs' plans and possible adjustments to the Armstrongs' project
to satisfy the subdivision
residents involved. The Armstrongs ultimately finished the
roofline that winter.
Procedural History. The parties tried to resolve the dispute
short of litigation.
They were, however, unsuccessful. The Macks then sued
for equitable and legal relief.
The Armstrongs moved for summary
judgment. The judge concluded that the
Armstrongs' remodel resulted in a
height less than the 30 feet as required by the
covenants but nonetheless concluded
that there remained material issues of fact that
precluded summary dismissal of the Macks' suit.
After a bench
trial, the court ordered the Armstrongs to remove the
top four feet
from the roof of their
addition. The Armstrongs
moved for reconsideration. The court
denied that motion and entered
findings of fact and conclusions of law and an order and
judgment.
DISCUSSION
Standing
The Armstrongs first contend that the Macks
had no standing to assert violations
of the covenants since it is the Zingermans' view that will be impaired, not the Macks'
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No. 26589-7-III
Mack v. Armstrong
view. And they assert that the court erred by
admitting and relying on evidence regarding
damages to subdivision residents,
James and Linda Zingerman, because they were not
parties to the suit.
The trial
court's determination that the Macks had standing to
sue is a conclusion
of law that we review de novo. See Sunnyside Valley Irrigation Dist. v. Dickie, 149
Wn.2d 873, 880, 73 P.3d 369 (2003).
Our goal here
is to construe these restrictive covenants by reading them in their
entirety to ultimately determine
the intent of the parties. Riss v. Angel, 131 Wn.2d 612,
621, 934 P.2d 669 (1997). "[I]f more than one reasonable
interpretation of the covenants
is possible regarding an issue, we
must favor that interpretation which avoids frustrating
the reasonable expectations of
those affected by the covenants' provisions." Green v.
(2007), review denied, 163 Wn.2d 1003 (2008).
The covenants'
plain language grants standing to any owner of a subdivision lot or
the Vista Ridge Association to
enforce the covenants in law or equity. CP at 291
(Declaration of Restrictive and Protective
Covenants, ¶ 8). The Macks own a parcel in
the subdivision. They then have
standing to sue to enforce the covenants' terms.
The Armstrongs argue that the trial court's conclusion that the
Macks had standing
unreasonably subjects subdivision
residents to suits from any or all fellow residents
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No. 26589-7-III
Mack v. Armstrong
whether they were damaged or
not. However, even apart from the
explicit standing
language of the Vista Ridge
covenants, the general rule is that the owners of individual
parcels are all individually
entitled to enforce the restrictive covenant benefiting their
properties. 2 Restatement (Third) of Property: Servitudes
§ 5.7 (2000). And the
"increase in the number of
persons holding the benefit of the servitude alone does not
constitute an unreasonable increase
in the burden, even though it subjects the person
burdened by the servitude to a
potentially greater number of enforcement actions and
higher transaction costs in
negotiating with the benefit holders."
2 Restatement, supra,
§ 5.7 cmt. c. We agree with the
trial court that the Macks had standing.
Restrictive Covenants --
General Versus Specific Provisions
The Armstrongs argue that the holding of Riss
v. Angel sets out a bright line
rule -- where a document contains
both a specific objective covenant and a general
consent-to-construction covenant,
the specific covenant controls. 131 Wn.2d at 624-26.
So a homeowners association may not impose restrictions
under a general consent
covenant that are more burdensome
than those provided by specific objective covenants.
The Macks respond that Riss is not
the "bright line authority" that the Armstrongs
claim it to be. They argue that it is more nuanced and
specifically allowed the trial court
here to determine the intent of the
covenants and interpret the meaning of the covenants
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No. 26589-7-III
Mack v. Armstrong
based on that intent. And the court, therefore, properly found that
the intent of the
covenants was to protect the views
of the Macks and the Zingermans. The Macks also
argue that even if the Riss
holding is the bright line rule the Armstrongs claim
it to be, the
Armstrongs violated the covenants
on another ground. The covenants
prohibit multiple
story dwellings that significantly
impair the view from other lots in the subdivision. Ex.
9, No. 1, p. 3; CP at 30. The trial court found that the Armstrongs' remodel was a
multiple story dwelling because the
2002-03 addition has a loft connected to the main
story by a staircase. CP at 30, 32.
We review
conclusions of law de novo, whether or not the trial court styles them
conclusions of law. Alexander Myers & Co. v. Hopke, 88 Wn.2d 449, 460, 565 P.2d
80
(1977)).
"[I]nterpretation of language
contained in a restrictive covenant is a question of
law for the court." Green, 137 Wn. App. at 681 (citing Parry v. Hewitt, 68 Wn. App.
664, 668, 847 P.2d 483 (1992)).
The trial court
expressed its view of the Vista Ridge covenants in both factual
findings and conclusions of
law. The court's relevant findings
included that: The
defendants' residence is on the
lower tier of the subdivision while the plaintiffs'
residence is on the upper tier. CP at 30. The covenants were "intended to protect the
views of residences on the upper
tier." CP at 30. And "[b]uildings
in the Subdivision
that exceed thirty (30) feet do not
impair or obstruct views like the [d]efendants'
addition
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No. 26589-7-III
Mack v. Armstrong
does." CP at
30. The court concluded that the Armstrongs'
property is subject to the
restrictive covenants, and their
2002-03 remodel converted their residence into a two-
story residence that substantially
impairs the views from the Macks' residence and the
nonparty Zingermans'
residence. CP at 32.
"[C]ovenants providing for consent before construction or
remodeling will be
upheld so long as the authority to
consent is exercised reasonably and in good faith."
Riss, 131 Wn.2d
at 625. But if the covenants
include both specific restrictions of some
aspect of design or construction
and a general consent-to-construction provision the
specific covenant prevails: "a homeowners association may not impose
restrictions under
a general consent to construction
covenant which are more burdensome than provided for
by specific objective restrictive
covenants."
clarified that including a specific
restriction in a covenant has the legal effect of signaling
the document's intent "that
the specific restriction apply rather than an inconsistent
standard under a general consent to
construction covenant."
objective restrictive covenants
involve primarily a nondiscretionary, ministerial
procedure."
Riss interpreted a covenant that bound owners in a
subdivision in a fashion similar
to the covenants here. In Riss, the
applicable covenants provided "specific size, setback,
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No. 26589-7-III
Mack v. Armstrong
and height requirements . . . in
terms of minimums and maximums" alongside a consent-
to-construction covenant that gave
the reviewing board discretionary authority to act
according to express criteria.
covenants in that they do not allow
the board to approve any construction over 20 feet
while the Vista Ridge covenants
permit construction over the 30-foot height maximum
with the committee's written
consent.
Peterson v.
Koester applied the Riss holding and reversed a court
order requiring
the defendants to reduce the height
of their addition. Peterson
v. Koester, 122 Wn. App.
351, 92 P.3d 780 (2004). The Macks argue
that Peterson is distinguishable because there
the covenants had a clearly
specified maximum height.
The Macks urge us to rely instead on Foster v. Nehls and Bauman v. Turpen to
uphold the trial court's injunction
on the ground that the Vista Ridge covenants' primary
intent is to preserve views. Foster v. Nehls, 15
Wn. App. 749, 551 P.2d 768 (1976);
Bauman v. Turpen,
139 Wn. App. 78, 160 P.3d 1050 (2007). But neither Foster nor
Bauman addresses covenants that, like the covenants at issue
in Riss, Peterson, and here,
contain both a general
consent-to-construction covenant and a specific, objective
restrictive covenant. See Foster, 15 Wn.
App. at 749-50; Bauman, 139 Wn. App. at 83.
Here, the trial
court found that the Armstrongs' remodel did not
violate the
specific restriction against
building a structure higher than 30 feet, as measured from the
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No. 26589-7-III
Mack v. Armstrong
highest elevation on the lot. CP at 30; see CP at 288. So here, as in Peterson, the
injunction ordering the Armstrongs to remove the highest four feet from their
2002-03
addition imposes a more burdensome
restriction on the Armstrongs under the consent-to-
construction covenant in Paragraph
4 than the specific restrictive covenant in Paragraph
3. See CP at 288-89.
The specific covenant controls. Riss, 131 Wn.2d at 625-26.
We therefore
reverse the decision of the trial court and remand for entry of
judgment in favor of the Armstrongs.
_______________________________
Sweeney, J.
WE CONCUR:
________________________________
Schultheis, C.J.
________________________________
Korsmo, J.
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