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Denherder v. Payne

September 9, 1996

KEITH DENHERDER AND NADINE DENHERDER, HUSBAND AND WIFE; JUDY MICKEL; GORDON BYRHOLDT, RESPONDENTS,
v.
WILLIAM R. PAYNE AND SUZANNE PAYNE, HUSBAND AND WIFE; JACK LOWREY AND NADINE LOWREY, HUSBAND AND WIFE, APPELLANTS.



Agid, J. WE Concur:

The opinion of the court was delivered by: Agid

AGID-- William and Suzanne Payne and Jack and Nadine Lowrey (together Payne) appeal from a permanent injunction directing them to remove the top story of the house they are building in Anacortes. We agree with the trial court that the house violates a restrictive covenant that prohibits unreasonable view impairment and affirm. FACTS

In 1993, William Payne and Jack Lowrey agreed that Payne, a contractor, would build a house on a lot Lowrey purchased in Division 5 of the Skyline Development. Keith and Nadine DenHerder, Judy Mickel, and Gordon Byrholdt, the respondents here and plaintiffs below, own homes adjacent to or in the immediate vicinity of the lot. Property in Division 5 of the Skyline Development is encumbered by covenants, conditions, reservations and restrictions (CCR) that include a covenant restricting houses built in the division to a height that will not unreasonably impair the view from other homes. The Skyline Beach Club's Architectural Committee reviews plans to determine whether they comply with applicable covenants and restrictions.

In June 1993, Payne and Lowrey selected a building plan for a 1-story rambler on a 2-foot foundation from a plan book. On July 27, Payne submitted the plans for the house he and Lowrey proposed to build to the Architectural Committee, asking that they review the plans as soon as possible. The members of the committee who reviewed the plans, Richard Johnson and Kenneth Wilson, visited the site that day and approved the plans with only minor changes after concluding that they complied with applicable covenants. Johnson and Wilson later testified that the plans they approved consisted of 6 pages numbered 1 through 6 and depicted a 1- story house with a crawl space foundation about 2 feet in height. Byrholdt, who went down to the Beach Club twice in August 1993 to review the plans, also testified that the plans he saw consisted of only 6 pages and that they depicted a foundation just high enough to provide for crawl space under the house.

On July 29, 1993, Payne submitted a set of plans to the City of Anacortes Building Department. This set included the plans the Architectural Committee had approved and two additional pages numbered 4A and 4B. Pages 4A and 4B detailed a substantial foundation and an additional floor under the residence that was depicted in pages 1-6. On the drawings submitted to the City, Payne crossed out page 4 and added the notation "See addendum 4A and B." There was no such notation on page 4 of the set of plans submitted to the Architectural Committee.

After construction started in September 1993, Byrholdt came to believe that the house under construction was different from that approved by the Architectural Committee. He went to the Building Department to review the plans on file there and saw pages 4A and 4B for the first time. DenHerder, Byrholdt and others complained to the Skyline Beach Club Board of Directors. On October 21, 1993, Byrholdt addressed the Board and demanded that the Board act on their complaint. The Board said it would take the matter under advisement and respond at a later date. Based on what they heard at the meeting, Johnson and Wilson, the members of the Architectural Committee who had approved the original plans, went to the Building Department the following day to review the plans on file there. Both later testified that this was the first time they saw pages 4A and 4B. The Board reviewed the plans on file at the Skyline Beach Club which now included pages 4A and 4B. After being informed that the total height of the building was less than 14' above the highest point of the steeply sloping lot, they took no further action and did not respond to the complaint.

On November 8, 1993, having received no response from the Board, DenHerder filed this action to enjoin construction on the ground that the house violated Skyline covenants. Payne ceased construction shortly after DenHerder filed this action, and there has been no construction activity since mid-November 1993. Following a bench trial in November 1994, the trial court issued a permanent injunction requiring Payne either to remove the top floor of the residence under construction or to conform to the 1-story building plan originally submitted to the Architectural Committee. The trial court found that, while the restrictive covenant does not prevent some impact on neighboring views, the view blockage here, which even a defense witness estimated at 75 percent, was unreasonable. The court also found that the original set of plans did not include pages 4A and 4B and that Payne and Lowrey had been deceptive and acted in bad faith. *fn1 The court denied Payne's motion for reconsideration. This appeal followed.

Discussion

Payne contends that the trial court abused its discretion when it issued the permanent injunction directing him to remove the top story or conform to the plans originally submitted to the Architecture Committee.

To establish the right to injunctive relief, the party seeking relief must show (1) that he has a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3)

that the acts complained of are either resulting in or will result in actual and substantial injury to him. Hagemann v. Worth, 56 Wash. App. 85, 87-88, 782 P.2d 1072 (1989) (quoting Washington Fed'n of State Employees, Coun. 28 v. State, 99 Wash. 2d 878, 888, 665 P.2d 1337 (1983)). Because injunctions are addressed to the equitable power of the court, the court must balance these criteria "'in light of equity including balancing the relative interests of the parties and, if appropriate, the interests of the public.'" Hagemann, 56 Wash. App. at 88 (quoting Tyler Pipe Indus., Inc. v. Department of Rev., 96 Wash. 2d 785, 792, 638 P.2d 1213 (1982)). The decision to grant injunctive relief lies within the trial court's discretion, and its exercise of that discretion is entitled to great deference on appeal. Protect the Peninsula's Future v. Clallam County, 66 Wash. App. 671, 677, 833 P.2d 406 (1992), review denied, 121 Wash. 2d 1011, 852 P.2d 1090 (1993).

In Washington, owners of land have an equitable right to enforce covenants that impose a general building scheme designed to make the land more attractive for residential purposes without having to show substantial damage from the violation. Metzner v. Wojdyla, 125 Wash. 2d 445, 450, 886 P.2d 154 (1994); Hagemann, 56 Wash. App. at 88. The primary objective in interpreting restrictive covenants is to determine the intent of the parties. Metzner, 125 Wash. 2d at 450. In determining intent, language in the covenant is given its ordinary and common meaning. Metzner, 125 Wash. 2d at 450. Restrictive covenants are strictly construed in favor of the free use of property and will not be extended to encompass any use not clearly expressed. Parry v. Hewitt, 68 Wash. App. 664, 668, 847 P.2d 483 (1992) (citing Burton v. Douglas County, 65 Wash. 2d 619, 621, 399 P.2d 68 (1965)). A covenant should not, however, be read in a way that defeats the plain and obvious meaning of the restriction. Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wash. App. 177, 180, 810 P.2d 27, review denied, 117 Wash. 2d 1013, 816 P.2d 1224 (1991). The strict construction rule thus has no significance where a covenant is read to give its language plain and ordinary meaning. Mains Farm Homeowners Ass'n v. Worthington, 121 Wash. 2d 810, 816, 854 P.2d 1072 (1993). When the meaning of language is in doubt, we must consider the whole document and the surrounding circumstances. Parry, 68 Wash. App. at 668 (citing Burton, 65 Wash. 2d at 621). The interpretation of language in a restrictive covenant is a question of law. Krein v. Smith, 60 Wash. App. 809, 811, 807 P.2d 906, review denied, 117 Wash. 2d 1002, 815 P.2d 266 (1991).

Here, section II of the CCR, entitled "Architectural Conditions," provides in pertinent part:

The following guide-points will be used by the Architectural Committee in approving building plans. It is realized that with passing time, these general criteria may change in keeping with changes in building ...


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