Opinion
No. 21991-7-III.
Filed: March 11, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County. Docket No. 02-2-00332-1. Judgment or order under review. Date filed: 03/21/2003. Judge signing: Hon. Donald W Schacht.
Counsel for Appellant(s), Ronald Kurt McAdams, McAdams Ponti Wernette, 103 E Poplar St, Walla Walla, WA 99362-3028.
Counsel for Respondent(s), Michael Sherman Mitchell, Attorney at Law, 129 W Main St, Walla Walla, WA 99362-2817.
— Protective covenants of a residential subdivision can be abandoned if they are routinely ignored over a period of time. White v. Wilhelm, 34 Wn. App. 763, 769, 665 P.2d 407 (1983). For 30 years, the residents of Stubblefield Subdivision in Walla Walla, Washington, ignored covenants restricting the location and height of fences. We affirm the trial judge's ruling that the covenants may not now be asserted to prohibit construction of a fence.
FACTS
A. Ritchie and Co. developed Stubblefield Subdivision, a residential subdivision, in Walla Walla in 1965. Ray T. and Barbara Pringle bought a corner lot in 1973. The Pringles then partially enclosed their property with an arborvitae hedge, which they maintained at 8 to 10 feet. The Pringles also installed a two-rail split rail fence along this hedge. They obtained no permits from the subdivision's architectural committee. Over the years, 21 other lot owners put up hedges or fences, all without architectural committee approval. In the 1980s, the Pringles built a 540-square-foot addition to their home, again without committee approval. Toomas and Carmen Eisler bought the house next door to the Pringles in 1979. The previous owner of the Eisler property had installed a six-foot wooden fence along about 70 percent of the Pringle-Eisler property line. Six-foot tall rose bushes border the Pringles' arborvitae hedge and the back fence.
The Stubblefield Subdivision is subject to recorded protective covenants dating back to 1965. The covenants run with the land until July 1, 1975, then automatically extend for successive periods of 10 years, unless a majority of the owners vote to change or abolish them. Any owner may sue for legal or equitable relief to enforce the covenants. Two of the covenants are at issue here.
2. ARCHITECTURAL CONTROL: No building shall be erected, placed or altered on any lot until the construction plans and specifications, the plan showing the location of the structure and all improvements, and the contractor selected to build have been approved by the Architectural Control Committee as to quality of workmanship, materials, harmony of external design with existing structures, location with respect to topography and finished grade elevations. No fence, hedge, mass planting (other than foundation planting, walls, or any other improvements (such as swimming pools) shall be erected, placed or altered on any lot unless similarly approved.
The Architectural Control Committee is composed of: A. Ritchie, Gordon Gilmore, L.A. Ritchie, Duane Gilmore, Don Ritchie, H.H. Hahner.
A majority of the committee may designate a representative to act for it. In the event of death or resignation of any member of the committee, the remaining members shall have full authority to designate a successor. Neither the members of the committee, nor its designated representative shall be entitled to any compensation for services performed pursuant to the covenants. At any time, the then record owners of a majority of the lots shall have the power through a duly recorded written instrument to change the membership of the committee or to withdraw from the committee or restore it any of its power and duties.
The committee's approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its designated representative, fails to approve or disapprove within 30 days after the plans and specifications have been submitted to it in full, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with. Clerk's Papers (CP) at 698.
15. PROTECTIVE SCREENING: No fence, hedge, mass planting or other screening device shall be permitted on any lot that would obstruct the view of neighboring dwellings. CP at 699.
By the spring of 2002, the architectural committee had been reduced to a single member, Don Ritchie. Other members had either died or resigned. The last time anyone had sought the approval of the committee was in the early 1980s. Mr. Ritchie, one of the original members, could not remember the committee ever holding a hearing. He did not remember the covenants ever having been raised.
The Pringles' bedroom was exposed to the street on the western (Eisler) side. They decided to put up a five- to six-foot fence for privacy, security, and sound protection. The fence would run behind the rose bushes between the Eislers' fence and the Pringles' arborvitae hedge. The Pringles started to place the fence posts. Ms. Eisler objected. Mr. Pringle removed the posts.
The Pringles resumed installation of the fence in May 2002. They showed the plans to Don Ritchie. Mr. Ritchie interpreted the term 'view of neighboring dwellings' in paragraph 15 of the covenants as referring to views from the dwelling of nearby mountains and Yellowhawk Creek. He inspected the Pringle site and determined that the only obstructed view from the Eislers' property was that of the Pringles' backyard. Mr. Ritchie also noted that no window in the Eislers' house faced that side. And the Pringles already had seven-foot rose bushes at the site of the proposed fence.
Mr. Ritchie approved the Pringles' fence plans. The City of Walla Walla also approved the Pringles' application to replace an existing six-foot fence and to install a new section.
PROCEDURE
The Eislers sued to enjoin construction of the fence. They alleged that the Pringles' fence had not received the required article 2 committee approval and that it violated the protective covenants' guarantee that the Eislers would have an unrestricted view of neighboring dwellings. The Pringles responded that the hedge had been at its current height for 20 years; that the Eislers themselves had a five- to six-foot fence around most of their property; and that the fence would not obstruct the Eislers' scenic views. Mr. Pringle also stated that the proposed fence simply replaced a pre-existing dilapidated fence. Mr. Ritchie affirmed that he approved the fence and was satisfied that it blocked no protected views, that the covenants did not preclude privacy fences, and that the architectural control committee had lapsed for lack of activity. The court denied a preliminary injunction. It entered written findings and conclusions and issued a letter ruling. The court explained that it found no legal or equitable right threatened. The Eislers had not shown how the fence would damage them. The court found that the fence did not obstruct the view from the neighboring dwellings. 'At worst, it obstructs the Plaintiffs' view of a portion of Defendants' back yard.' CP at 47. The court found that the Pringles' motive was to restrict the public's view into their bedroom from the street; that the Eislers had four- to seven-foot tall rose bushes in the area of the proposed fence; and that fences and hedges of similar proportions and appearance proliferated throughout the subdivision, including one maintained by the Eislers themselves. The Pringles moved for summary judgment on the affirmative defenses that articles 2 and 15 of the covenants had been abandoned and that injunctive relief was barred by the equitable defenses of unclean hands and laches. The Eislers filed a cross-motion for summary judgment. The court entered judgment for the Pringles and dismissed the complaint with prejudice. The court ruled that the relevant portions of the covenants had been abandoned by the conduct of the subdivision residents. The court also ruled that the Eislers' claims regarding the arborvitae hedge were barred by the doctrine of laches. Accordingly, the court did not reach the Eislers' issues of whether the architectural control committee properly carried out its duties. The Eislers appeal the findings, conclusions, and order denying the preliminary injunction. They also appeal the order summarily dismissing their complaint for a permanent injunction.
DISCUSSION
We first address the summary dismissal. The court denied a permanent injunction on two theories. Based on undisputed facts, the court concluded (1) that the covenants had been abandoned by the conduct of the community and were no longer in effect; and (2) that the Eislers' complaint as to the 20-year-old arborvitae hedge was barred by the doctrine of laches. The court declined to address the composition or duties of the architectural control committee. Questions regarding the composition or duties of the committee are not, then, before us. The only issues both properly before this court and adequately briefed by the parties are those of abandonment and laches. The abandonment issue is dispositive.
The Eislers contend that the court cannot summarily declare these covenants abandoned because, by their own terms, the covenants have been reinstated automatically every 10 years because a majority of the owners have never voted otherwise.
This is a summary dismissal. So we engage in the same inquiry as the trial court. Hollis v. Garwall, Inc., 137 Wn.2d 683, 690, 974 P.2d 836 (1999). Summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits, if any, show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c); Hollis, 137 Wn.2d at 690.
Covenants are deemed abandoned when habitual substantial violations have eroded the general plan so that enforcement would be inequitable. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d 337, 342, 883 P.2d 1383 (1994); Peckham v. Milroy, 104 Wn. App. 887, 890, 17 P.3d 1256 (2001).
Here, no homeowner had ever before invoked the covenants. Similar fences and hedges proliferate throughout the subdivision — including one maintained by the Eislers themselves.
The trial court properly ignored the Eislers' argument that different rules apply to fences around corner lots. The only authority for this was Ms. Eisler's own informal survey. The covenants on their face apply equally to all the lots. The court, then, properly considered only the covenants.
The court did not err in concluding that the undisputed facts established that the provisions of these covenants governing fences had been universally flouted for many years and were effectively abandoned.
We affirm the judgment.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, A.C.J. and SCHULTHEIS, J., concur.