Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lakes at Mercer Island Homeowners Association v. Witrak

May 6, 1991

THE LAKES AT MERCER ISLAND HOMEOWNERS ASSOCIATION, APPELLANT,
v.
BONNIE WITRAK, ET AL, RESPONDENTS



Forrest, J. Grosse, C.j., and Kennedy, J., concur.

Author: Forrest

The Lakes at Mercer Island Homeowners Association (Homeowners) appeals the trial court's grant of summary judgment, arguing that issues of fact were presented relating to Bonnie Witrak's compliance with provisions of the Homeowners Declaration of Covenants, Conditions and Restrictions (CCR). We reverse.

Bonnie Witrak and Tom Gumprecht live in a residential subdivision located on Mercer Island, known as "The Lakes at Mercer Island" (The Lakes). In spring of 1987, John and Maryann Deming began construction on the lot adjacent to Witrak. In May 1987, Witrak planted 55 pyramidalis trees on her property to screen her property from the Demings. She did not seek the approval of the Homeowners Architectural Control Committee (ACC), nor was it required. She then built a 6-foot fence on the lot line between the two properties. Prior to construction, Witrak had sought and obtained ACC approval to build the fence pursuant to article 2, section 8 of the CCR.

In January 1988, Witrak hired an architect to design an addition to her home. In July 1988, she submitted the architect's plans to the ACC. It denied approval of the addition by letter dated August 15, 1988. Witrak requested that the ACC reconsider. It refused. A meeting between Witrak, the ACC and the Homeowners board of directors on September 19, 1988, did not change the ACC's decision.

On September 23, 1988, workers began excavation on Witrak's property. By September 25, 1988, they had planted a row of 12 Douglas fir trees, each between 25 and 30 feet in height immediately adjacent to the Witrak/Deming boundary line. On September 26, Witrak renewed her request for approval of the proposed addition. The

ACC again refused to allow the remodel; it also claimed the trees were planted in violation of the CCR and referred the matter to the Board. Witrak refused to remove the trees. The Board filed suit on October 18, 1988, seeking an order that the trees be removed. Both parties moved for summary judgment. On December 22, 1989, the trial court held that there were no material facts in dispute and concluded, as a matter of law, that the language of the CCR did not prohibit the trees. The Homeowners motion for reconsideration was denied. This appeal followed.

After reading the relevant provisions of the CCR the trial court concluded as a matter of law that the trees did not constitute a wall or fence. The material portion of article 2, section 8 of the CCR states:

Landscaping and Fencing. . . .

Fences, walls or shrubs are permitted to delineate the lot lines of each lot, subject to Architectural Control Committee approval, . . . . In any event, no fence erected within the subdivision shall be over six feet (6') in height. No barbed wire, chain link or corrugated fiberglass fences shall be erected on any lot. All fences, open and solid, are to meet the standards set by the Architectural Control Committee and must be approved by the Committee prior to construction.

[1] While restrictive covenants were once disfavored by the courts, upholding the common law right of free use of privately owned land, modern courts have recognized the necessity of enforcing such restrictions to protect the public and private property owners from the increased pressures of urbanization.*fn1 The primary objective in interpreting restrictive covenants is to determine the intent of the parties to the agreement.*fn2

We agree with the reasoning expressed by the Missouri Court of Appeals in Thomas v. Depaoli*fn3 that the clear intent of a restrictive covenant is determined by the purposes sought to be accomplished by the covenant. The Thomas court determined that a fence which obstructed the view of neighbors was a "building" as contemplated in a setback restriction.*fn4 This reasoning is consistent with prior Washington law. In Foster v. Nehls*fn5 the court declined to specifically define "one and one-half stories in height", ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.