Opinion
D071854
10-04-2018
THE GRANDE SOUTH AT SANTA FE PLACE HOMEOWNERS ASSOCIATION, Plaintiff and Respondent, v. ROGER D. WILLIAMS, Defendant and Appellant.
Blackmar, Principe & Schmelter, Timothy D. Principe and Matthew A. Law for Defendant and Appellant. Green Bryant & French, Jeffrey A. French; Williams Iagmin and Jon R. Williams for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00029784-CU-PT-CTL) APPEAL from an order of the Superior Court of San Diego County, Lisa C. Schall, Judge. Affirmed as modified and remanded. Blackmar, Principe & Schmelter, Timothy D. Principe and Matthew A. Law for Defendant and Appellant. Green Bryant & French, Jeffrey A. French; Williams Iagmin and Jon R. Williams for Plaintiff and Respondent.
The Grande South at Santa Fe Place Homeowners Association (the Association) filed a petition under Civil Code section 4275 to reduce the percentage of votes necessary to amend its Declaration of Covenants, Conditions and Restrictions (CC&Rs). Roger D. Williams, a member of the Association acting in propria persona, challenged four of the 246 proposed amendments. Williams appeals the order granting the petition. He contends: (1) the Association misused the section 4275 procedure, (2) the order signed by the court did not conform to the court's oral pronouncement, and (3) the trial court committed legal error and thus abused its discretion because the Association failed to present any competent evidence regarding the reasonableness of the proposed amendments. Section 4275 provides, in relevant part: "If in order to amend a declaration, the declaration requires members having more than 50 percent of the votes in the association . . . to vote in favor of the amendment, the association, or any member, may petition the superior court . . . for an order reducing the percentage of the affirmative votes necessary for such an amendment."
Undesignated statutory references are to the Civil Code.
Williams forfeited his challenge to the section 4275 procedure, and the trial court did not abuse its discretion in granting the petition. However the trial court's order does not conform to its oral pronouncement. We therefore modify the order and, as modified, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Association is a nonprofit mutual benefit association organized to manage a common interest development of 222 condominium units and common areas in a condominium building known as "The Grande South at Santa Fe Place" (the Building) located in downtown San Diego. The Building is subject to CC&Rs.
The Association's board of directors drafted proposed amendments to its CC&Rs (the Restated CC&Rs) to: (1) eliminate and modify sections of the CC&Rs to conform to the Association's historical operating practice, (2) make the CC&Rs more user friendly by using everyday language and eliminating legal jargon where possible, (3) clarify the maintenance and repair responsibility of owners and the Association, (4) bring the CC&Rs into compliance with existing (and new) law concerning homeowners associations, and (5) remove the supermajority requirement necessary to amend the CC&Rs and replace it with having a bare majority requirement so as to make future amendments easier and less costly.
In January 2016 the Association submitted the Restated CC&Rs to a vote of its members. The CC&Rs provided that the Association may amend its CC&Rs with the approval of its owners representing at least 67 percent of the total members of the Association. Because only 54.8 percent of the owners voted to approve the amendments, the proposed amendments failed under the terms of the CC&Rs. The Association filed a verified petition under section 4275 seeking court approval of the failed amendments. The trial court set a hearing on the petition and ordered that the Association's members be provided with notice of the proceeding.
Williams opposed the petition arguing that the trial court should deny the Petition because: (1) the Association failed to satisfy its burden of proof on reasonableness, (2) the proposed amendments to the CC&Rs were material and created substantial new restrictions on the Owners' ability to use and to lease their properties, and (3) the Petition sought relief that the CC&Rs require be submitted to arbitration. He argued that one of the proposed amendments would critically impact his property rights because it imposed a new minimum lease period of 12 months (the rental period amendment), where the existing CC&Rs have no minimum lease period. The rental period amendment stated in relevant part:
Although not included in the record on appeal, the Association represented to the trial court that it had adopted a rule implementing a minimum six-month rental period. The validity of this six-month rule is not before us.
"No units shall be rented or leased for a period of less than twelve (12) months. All Owners who rent their condominiums shall submit names and contact numbers for their tenants to the management company for the Project on a form provided by the Association that further certifies that the Residential Unit has been leased or rented for a minimum of twelve (12) months to said tenants."
Williams noted that he used his property for family vacations and if the court approved the amendments he would be unable to lease his property for any time period during which he is not personally using it, regardless of the duration. He did not oppose a 30-day minimum lease period, but argued that the proposed 12 month limit was unreasonable. He claimed that the amendment was "unfair and discriminatory, in that [it] prevent[ed] [him] and other Owners who do not live at their properties year-round from leasing their properties for any time period less than one year."
He also argued that the proposed amendments sought to add unreasonable use restrictions to the CC&Rs by limiting occupancy, requiring notification and contact information for anyone who uses any condominium and limiting guest stays (the occupancy, notice and guest stay amendments). The occupancy, notice and limit on guest stay amendments provided:
We collectively refer to the rental period, occupancy, notice and limit on guest stay amendments as the "challenged amendments."
"Limit on Occupancy. The upper limit on the total number of occupants who may reside in a Unit at any one time is 2 persons per bedroom plus 1 person per living room."
"Notification of Guest Stay. A Resident who permits anyone to occupy the Unit when the Resident is not in residence must submit each occupant's name and contact information to Management for emergency purposes."
"Limit on Guest Stays. The Rules and Regulations may limit the number of guest stays for which the Resident is not in residence in a Unit in any calendar year."
Williams argued that the occupancy amendment was unreasonable because it did not address units with a den or account for families with multiple children or with live-in grandparents. He claimed that the notice amendment violated the privacy rights of the owners and their guests. He argued that the Association's assertion that the notification requirement "is for emergency purposes is a subterfuge, as emergency access is already provided for in the CC&Rs at Section 4.3.5 (Right of Entry and Enforcement). The notification requirement really is just a way for the Association to track guest stays and rentals . . . ." He claimed that the proposed limit on guest stays was unspecific and left the entire discretion on the permitted amount of stays up to the Association's board and would serve as a loophole for the board to restrict the property rights of owners without formal approval required by the CC&Rs or the court.
In reply, the Association explained that the rental period amendment was a reasonable response "to the recent increase in short-term vacation rentals caused by popular websites such as Airbnb and VRBO" and that "[h]omeowners in a residential community do not want to live . . . where some of their neighbors are using their units as . . . a short-term vacation rental business," resulting in higher costs to the Association. The Association stated that the occupancy amendment was consistent with Department of Housing and Urban Development guidelines and were meant to "address security concerns and serve to protect the interests of the Association and its members by eliminating random strangers in the building when the homeowners are not present."
After hearing oral argument, the trial court granted the petition. The court noted, however, that under section 4740 "these new rental restrictions" would not apply to any owner who purchased his or her unit before the amendments went into effect and specified that any proposed order contain the section 4740 limitation. The court stated, "Make sure that language is clearly in there."
Section 4740, subdivision (a) provides: "An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to his or her separate interest." (Italics added.)
The Association submitted a proposed order to the court and mailed a copy to Williams. Two days later, Williams filed a written objection to the proposed order complaining that it did not comply with the court's directive regarding section 4740. The trial court, however, had signed the proposed order the day before. Williams, now represented by counsel, timely appealed.
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
The Davis-Stirling Common Interest Development Act (the Act), set forth in section 4000 et seq. (formerly section 1350 et seq.), provides general rules for the governance of condominium associations. Section 4275 of the Act provides a procedure for an association, or an individual member, to petition the court for relief when the CC&Rs require a supermajority vote to effectuate an amendment. Upon filing of a petition, the matter must be set for hearing with notice of the hearing given to all eligible members. (§ 4275, subd. (b).) The court has the discretion to grant the petition if it finds notice was properly given; the balloting was properly conducted in accordance with the governing documents, a reasonable effort was made to permit all eligible members to vote, members having more than 50 percent of the vote voted in favor of the amendment, and the amendment was "reasonable." (§ 4275, subd. (c)(1)-(6).) "[T]he purpose of [former section 1356] [now section 4275] is to give a property owners' association the ability to amend its governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures authorized by the declaration. [Citation.] In essence, it provides the association with a safety valve for those situations where the need for a supermajority vote would hamstring the association." (Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472, 477.)
Effective January 1, 2013, and operative January 1, 2014, the Act was reorganized and recodified from section 1350 et seq. to section 4000 et seq. (Stats. 2012, ch. 180, §§ 1-2.) (See McArthur v. McArthur (2014) 224 Cal.App.4th 651, 660, fn. 9.)
"[T]he party petitioning for relief from a supermajority vote requirement has the burden of proving reasonableness. The term 'reasonable' in the context of use restrictions has been variously defined as 'not arbitrary or capricious' [citations], 'rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments,' and 'fair and nondiscriminatory.' " (Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 577 (Seith).)
We review the trial court's ruling on the petition for abuse of discretion. (Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, 1139 (Kozina).) The court is not required to recite evidence pertaining to each subfinding. (Id. at p. 1140.) It is sufficient if the record shows that the court considered the requisite factors in making its ruling. (Ibid.) A court abuses its discretion when insufficient evidence supports its decision. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 805 [holding that, "because the trial court's decision is not supported by substantial evidence, it abused its discretion"].)
II. ANALYSIS
A. Williams Does Not Lack Standing to Appeal
During oral argument the Association asserted, for the first time, that Williams "had no standing" to argue the reasonableness of the rental period amendment because he was not "aggrieved" by the change based on the operation of section 4740 that "grandfathered" him out of that amendment. We challenged this conclusion, noting that the rental period amendment may impair the marketability of Williams's property because future owners would be subject to the one-year rental period requirement. Additionally, assuming all buildings in the area have the same one-year rental period requirement, we asked whether defeating this amendment would make Williams's property even more valuable.
Standing to appeal is jurisdictional and cannot be waived. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) The issue whether a party has standing is a question of law. (IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299.) A party must be legally aggrieved by a challenged ruling to have standing to appeal it. (Code Civ. Proc., § 902; Marsh v. Mountain Zephyr, Inc., supra, 43 Cal.App.4th at p. 295.) "One is considered 'aggrieved' whose rights or interests are injuriously affected by the judgment. [Citations.] Appellant's interest ' "must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment." ' " (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) Standing to appeal is construed liberally and doubts are resolved in its favor. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 948.)
Here, Williams is a member of the Association and is aggrieved by the order implementing all the amendments. As we noted, the challenged amendments impact the marketability of Williams's property and thus adversely impact his interests. Additionally, as we discuss post in section II.C, Williams is aggrieved because the written order does not conform to the trial court's oral pronouncement. Accordingly, we conclude that Williams has standing to appeal from the order.
B. Challenge to Section 4275 Procedure
Williams asserts that the court's ruling should be reversed because the Association misused the section 4275 procedure for the improper purpose of changing the governing documents without the required 67 percent supermajority vote, while retaining the supermajority vote for any future amendments. Williams, however, failed to make this argument below. Accordingly, we decline to consider this claim because Williams's failure to make this argument below deprived the Association and the trial court of the opportunity to consider it. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [" ' " 'issues raised for the first time on appeal which were not litigated in the trial court are [forfeited]' " ' "].)
Additionally, Williams's counsel conceded at oral argument that the Association followed all the appropriate procedures under section 4275 and that Williams's sole challenge was to the reasonableness of some of the proposed amendments (See § 4275, subd. (c)(1)-(6).) While argument is outside the record, it is a reliable indication of a party's position on the facts as well as the law, and we may consider statements during argument as admissions against the party. (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1019, fn. 3, superseded by statute on another ground as stated in Ramona v. Superior Court (1997) 57 Cal.App.4th 107, 112, fn. 6.)
C. The Order Requires Amendment to Conform to the Court's Oral Ruling
Williams argues that the trial court found the challenged amendments to be reasonable because they did not impact him or other current homeowners based on application of section 4740. He complains that the order prepared by the Association, and signed by the trial court, simply states that it is "subject to" section 4740 and sets forth the language of the statute, but a dispute exists whether the court ruled that section 4740 applied to all challenged amendments, or just the rental period amendment.
The Association argues that it properly referenced section 4740 in its order, that section 4740 applies to the rental period amendment, but does not apply "to any of the other omnibus changes [it] made." The Association concludes: "[A]s Williams' chief complaints appear to be with the leasing and rental restrictions contained in the Restated CC&Rs, it is unclear why he maintains that the inclusion of section 4740 in the trial court's final Order is somehow inadequate."
To resolve this dispute, we must interpret the court's order. "The meaning and effect of a judgment [or order] are determined according to the rules governing the interpretation of writings generally. If a judgment [or order] is ambiguous, we may examine the entire record to determine its scope and effect, including the pleadings." (Rancho Pauma Mutual Water Co. v. Yuima Municipal Water Dist. (2015) 239 Cal.App.4th 109, 115.)
As a preliminary matter, we note that the Association violated the rule regarding the preparation and submission of proposed orders. California Rules of Court, rule 3.1312(a) provides that the prevailing party must serve a proposed order within five days after the court rules and that the other parties have five days to approve the order or "state any reasons for disapproval." (Ibid.) After expiration of the five-day period, the prevailing party must "promptly transmit the proposed order to the court together with a summary of any responses of the other parties or a statement that no responses were received." (Id. at rule 3.1212(b).)
Here, the Association improperly transmitted the proposed order to the trial court without waiting the required five days after service on Williams. Although Williams timely filed a written objection two days after the Association mailed the order, the court had already signed the order the day after it had been mailed to Williams. Williams's objection noted this rule violation and stated:
"At the beginning of the hearing the Court informed the parties that it intended to grant the Petition, but that it welcomed any substantive arguments I may have. Before allowing me to make my arguments, the Court also stated that its order would be prospective and that the proposed amendments and revised CC&Rs would not affect existing property owners within the Association. [¶] I asked the Court if I had understood it correctly, confirming that the proposed amendments to the CC&Rs would not impact me as a property owner and would only impact owners who purchased units in the future? The Court confirmed my understanding and confirmed that the originally recorded CC&Rs would remain applicable to existing owners. Relying on the Court's prospective order, the arguments I had raised in my Opposition were no I longer at issue, since the revised CC&Rs would not impact my ability to lease my unit or have guests stay in my unit. Accordingly I accepted the Court's proposed order without further argument.
Setting aside the Association's rule violation, we first turn to the court's written order. The order prepared by the Association, and signed by the court without its knowledge of Williams's objections, finds that "the proposed restatement to the CC&Rs is reasonable," that "[t]he restatement to the CC&Rs is adopted and the restatement is confirmed as validly approved, however, it shall be subject to [section 4740], which states. . . ." The statement "it shall be subject to [section 4740]" is ambiguous with respect to whether "it" refers to all amendments challenged by Williams, or only the rental period amendment. Accordingly, we examine the context of the ruling, as reflected in the reporter's transcript of the hearing.
One of the obvious purposes of rule 3.1312(a) is to give the trial court the first and often best opportunity to clarify ambiguity in its written order. Had the Association complied with rule 3.1312(a), it is likely that at least this issue, and perhaps others, would have been resolved at the trial court level.
The court started the hearing by stating its tentative ruling, providing in part:
"[THE COURT:] Here I note as to your concerns, Mr. Williams, that you would be unable to both use your condo for vacations and rent if [sic] for the rest of the time, I understand, is legitimate. [¶] I'm sure you are not likely the only owner who often uses your condo in this fashion. Therefore, to purchase a condo with the intent to use it in this way makes this amendment a serious disposition. [¶] However, under [section 4740], these new rental restrictions would not apply to any owner who purchased his or her unit before the amendment goes into effect. If an owner purchased the condo with knowledge of these restrictions, then they would not be considered unreasonable because they are clearly put on notice. In your case, you were grandfathered in. Therefore, I think the proposed amendments appear to be reasonable." (Italics added.)
Before hearing from Williams, the court reiterated: "[I]t would appear to me for all the reasons I've stated and the historical background and statutory authority, that the relief requested in this matter should be granted in this case under . . . [section 4740]. So my tentative would be to grant. I do not find it unreasonable. [¶] I also recognize that your property rights are still protected and that this affects new owners under the language of the declaration to be amended." During Williams's argument, the following colloquy occurred:
"MR. WILLIAMS: So am I to understand that the current CC&Rs would apply to my ownership of my unit because I would be grandfathered in, or is it specific to one aspect of the change?
"THE COURT: When CC&Rs are amended, it's from that date forward that all parties may be impacted. However, in this case, I have indicated—counsel can tell me if they disagree—that this would impact new ownership. Why? I don't believe that new owners then could claim a pattern of unreasonableness because they're buying the property with their eyes wide open. They're being provided a copy of the CC&Rs. That's what I believe should be the ruling. [¶] . . .
"[THE COURT:] If your biggest concern is that you are now going to be disallowed from using the property within the language of the original CC&Rs, I have already stated under [section] 470 [sic] these new rental restrictions would not apply to any owner who purchased his or her unit before the amendment went into effect. If an owner purchased the condo thereafter with knowledge of this, however, it does not rise to the level to suggest these provisions would be unreasonable. [¶] And then I believe that the proposed amendments are reasonable, because as we all know when you sell your property, you provide a copy of the CC&Rs almost invariably during the due diligence process. Most people request a copy of the CC&Rs. And the reason for that is because many people buy property with the idea of flipping it as vacation property. As soon as they take a look at the CC&Rs, they're going to realize it's not going to work." (Italics added.)
The trial court then heard from the Association. The Association stated its argument by noting it "differ[ed]" from some of the court's comments concerning section 4740, noting that section 4740 addressed prohibitions, not restrictions. Specifically, the Association's counsel stated:
"[MR. FRENCH:] So our focus on [section] 4740 has always been prohibition versus restriction. We agree it applies. The legislature has not gone in and told us precisely how it applies, nor have the courts as of this date—we're aware of several cases that have wound their way through the appellate courts, but we haven't had a definitive response as to whether [section] 4740 applies strictly to prohibitions, or whether it also applies to both prohibitions and restrictions. We would look at what we're putting into the CC&Rs today to be restrictions.
"THE COURT: The problem is I think overriding is the reasonable nature. Okay. And I think for this particular event, when you couple that and marry it to [section] 4740, I believe that in this case, current owners, prior to the amendment becoming effective, would not be barred from continuing to use their unit as they previously had within the original CC&Rs and rules and regs." (Italics added.)
The trial court then granted the petition, stating:
"THE COURT: So what I'm going to do is grant your petition within the one description of limitation I described, under [section] 4740. So you need to include that within the proposed order you're going to submit to the Court. Make sure that language is clearly in there. And otherwise, all other requests within the petition are hereby granted. Any questions on that?"
The court's colloquy with the Association's counsel is significant. Section 4740 provides that current owners in a common interest development shall not be subject to an amendment "that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant . . . ." (See fn. 5, ante.) As one practice guide notes, "The express language of [section] 4740, which uses the wording 'prohibition,' raises the question about 'restrictions' or 'limitations' on rentals as distinguished from 'prohibitions' against rentals. The question is: 'When does a restriction become a prohibition,' or 'when is a restriction not a prohibition'?" (Cal. Common Interest Developments Law & Prac. (2018 ed.) § 22:15.)
Here, the rental period amendment is not a complete prohibition on renting or leasing; rather, it is a limitation or restriction on renting or leasing a unit for less than 12 months. Thus, it is unclear whether the rental period amendment falls under section 4740. It is similarly unclear whether the occupancy, notice and limit on guest stay amendments are "prohibitions" subject to section 4740, or limitations that arguably are not encompassed within section 4740. As counsel for the Association correctly noted, there are no cases interpreting section 4740 or its predecessor, former section 1360.2. Additionally, those cases addressing the reasonableness of rental restrictions have not addressed section 4740. (See Watts v. Oak Shores Community Assn. (2015) 235 Cal.App.4th 466; Mission Shores Assn. v. Pheil (2008) 166 Cal.App.4th 789.)
In this case, it is unnecessary to decide whether section 4740 applies solely to prohibitions but not restrictions or limitations because that issue has been forfeited. The trial court's order applies section 4740 to all of the challenged amendments, regardless of whether each is characterized as a prohibition, restriction, or limitation. For example, the court referred to the CC&R's in toto, stating, "When CC&Rs are amended, it's from that date forward that all parties may be impacted." Moreover, when the Association's lawyer raised the issue of whether section 4740 applied, the court replied that under its ruling, current owners would be allowed to continue using their units "as they previously had within the original CC&Rs . . . ."
The Association did not file a cross-appeal to challenge the trial court's interpretation of section 4740. (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 587 [absent a cross-appeal respondent cannot challenge different portions of judgment from which appellants have appealed].) Accordingly, this issue is not before us and we express no opinion on whether the trial court properly interpreted section 4740 in this respect.
D. Reasonableness of the Challenged Amendments
Williams contends that the trial court's order approving the Restated CC&Rs, including the challenged amendments, must be reversed because the Association failed to present admissible evidence satisfying its burden of proof under section 4275 that the challenged amendments are reasonable.
We review the trial court's ruling for abuse of discretion. (Kozina, supra, 204 Cal.App.4th at p. 1139.) "A trial court abuses its discretion when its decision exceeds the bounds of reason by being arbitrary, capricious or patently absurd in light of the circumstances." (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 147.)
Here, the trial court's analysis turned on its conclusion that the challenged amendments were reasonable because they did not impact Williams, the only person who contested the amendments. The trial court also noted that the challenged amendments were not unreasonable as to prospective new owners as these individuals would be provided with a copy of the CC&Rs, would see the provisions regarding renting or leasing, and would know they could not "flip[] it as [a] vacation rental." The trial court necessarily concluded that the challenged amendments were " 'rationally related to the protection, preservation and proper operation' " of the Building. (Seith, supra, 159 Cal.App.4th at p. 577.) The court's decision does not exceed the bounds of reason given the express description of the project in the existing CC&Rs as a "residential development" and the restriction prohibiting any commercial use. On this record, we cannot state that the court's ruling was patently absurd in light of the circumstances.
E. New Case Authority
In his reply brief, Williams cited new case law (decided after he filed his opening brief), concluding that, where real property is located in a coastal zone (Pub. Resources Code, § 30103, subd. (a)), a homeowners association ban of short-term rentals conflicted with the Coastal Commission's goal of maximizing public access to the beach. (Greenfield v. Mandalay Shores Community Assn. (2018) 21 Cal.App.5th 896, 900-902.) The Greenfield court concluded that the trial court erred in not granting a preliminary injunction staying enforcement of the ban because banning short-term rentals is "a matter for the [c]ity and Coastal Commission to address. [Short-term rentals] may not be regulated by private actors where it affects the intensity of use or access to single-family residences in a coastal zone. The question of whether a seven-day house rental is more of a neighborhood problem than a 31-day rental must be decided by [the c]ity and the Coastal Commission, not a homeowners association." (Id. at p. 901.)
Williams argues that the Building is likewise located in a coastal zone, citing a coastal development permit recorded in 2002. This permit is not part of the record and there is no evidence in the record showing that the Building is located in a coastal zone. Accordingly, this issue does not fall within an exception allowing an appellate court to address questions not raised in the trial court for the first time on appeal. (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 326-327 [exception exists where issue involves a legal question determinable from facts uncontroverted in the record].) Accordingly, we express no opinion on this issue.
F. Summary
In summary, the trial court's order granting the Association's petition under section 4275 is affirmed as modified to note that all amendments challenged by Williams are subject to section 4740 and do not apply to Association members who purchased their units before enactment of the Restated CC&Rs.
DISPOSITION
The order is affirmed as modified and the matter is remanded for further proceedings in conformity with this decision. In the interests of justice, the parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.