Allchin v. Normandy on the Heights Homeowners Association, No. 33758-4-II (WA 4/4/2006)
| Decision Date | 04 April 2006 |
| Docket Number | No. 33758-4-II,33758-4-II |
| Court | Washington Supreme Court |
| Parties | CAROL L. ALLCHIN, Appellant, v. NORMANDY ON THE HEIGHTS HOMEOWNERS ASSOCIATION, a Washington non-profit corporation; JOHN USKOVICH and MARY E. USKOVICH, husband and wife; ALBERT POOL and JOHANNA POOL, husband and wife; GARY R. ROBBINS and KATHERINE S. ROBBINS, husband and wife; RICHARD J. ANDERSON and PALMA J. ANDERSON, husband and wife; MEL M. PALMQUIST and JUNE E. PALMQUIST, husband and wife; LAWRENCE E. FISHER and LORETTA E. FISHER, husband and wife; BRAD BODENMAN and JODI BODENMAN, husband and wife; WILLIAM MACKAY and NANCY T. MACKAY, husband and wife, Respondents. |
Appeal from Superior Court of Pierce County. Docket No: 04-2-05390-6. Judgment or order under review. Date filed: 11/24/2004. Judge signing: Hon. Rosanne Nowak Buckner.
Counsel for Appellant(s), Steven Leonard Larson, Attorney at Law, 1201 Pacific Ave Ste 1725, Tacoma, WA 98402-4380.
Counsel for Respondent(s), James Benjamin II Meade, Forsberg & Umlauf, 950 Pacific Ave Ste 400, Tacoma, WA 98402-4441.
Roy Andrew Umlauf, Forsberg & Umlauf, 900 4th Ave Ste 1700, Seattle, WA 98164-1039.
Mark Ronald Roberts, Davis Roberts & Johns PLLC, 7525 Pioneer Way Ste 202, Gig Harbor, WA 98335-1166.
Carol L. Allchin appeals from a jury verdict that an architectural control committee acted reasonably and in good faith when it approved a house design that Allchin alleged interfered with her views. We affirm.
`Normandy on the Heights' is a residential subdivision situated on a cliff outside Gig Harbor. The houses in this nine lot subdivision look out toward the Tacoma Narrows Bridge, Point Defiance, Vashon Island, Mt. Rainier, and the Cascade Mountains.
As a condition of plat approval by Pierce County, engineers recommended that: (1) houses on lots 1-4 be set back approximately 50 feet from the top of the cliff; (2) a house on lot 5 be set back approximately 65 feet from the top of the cliff; and (3) houses on lots 6-9 be set back approximately 75 feet from the top of the cliff. As Allchin notes, `The `jogs' in the County setback line are at the heart of the dispute that gives rise to this litigation.' Br. of Appellant at 5.
In 1988, Normandy Associates, a general partnership consisting of Steve W. Lewis, Richard J. Kelley, and Roy D. Ovist, developed the subdivision and recorded protective covenants. Among other things, the covenants provide for a homeowners association and an architectural control committee.
Article V of the covenants establishes a three-member architectural control committee. In part, Article 5.3 states:
5.3 `Initial Committee Membership'.
(a) Members. The initial membership of the Committee shall be composed of the Board of Directors of the Association, whose names and addresses are as follows:
Richard J. Kelley {address omitted}
Steve W. Lewis {address omitted}
Roy D. Ovist {address omitted}
(b) Duration. The initial Committee members have been appointed by the Declarant {Normandy Associates}. The Declarant shall have sole and exclusive power to replace, terminate or appoint all members of the committee until such time as nine (9) Lots have a permanent residential building occupied by a bona fide resident and the initial landscaping is completed. At such time all members shall formally resign and concurrently the Board of Directors shall appoint all committee members.
Article 5.4 states:
5.4 `Selection of Members'. Except as provided in paragraph 5.3 of the Article, all members shall be appointed, replaced or terminated by the Board of Directors: members shall serve until terminated or replaced by the Board of Directors or until the member resigns.
In part, Article 5.6 states:
(b) `Plans and Specifications.' Unless otherwise approved by the Committee, the plans and specifications required for any improvement or alteration shall include, but not be limited to the following:
(i) site plan(s) defining the horizontal dimensions of and the physical relationship between proposed improvements.
(ii) construction plan(s) defining the external dimensions and vertical appearance, including material and color samples, of all proposed improvements.
. . . .
(viii) graphic analysis, i.e.{,} cross-sections depicting lines of sight etc., of view obstruction caused by the proposed improvements.
Article 5.9 states:
5.9 Disapproval. The Committee shall withhold approval of any proposed improvement if, in the opinion of the Committee, it is either at variance with or in violation of the provisions of the Declaration, or does not follow or promote the intents and purposes of the Declaration. Further more {sic}, approval shall be withheld if in the opinion of the Committee, the proposed improvement will be detrimental to the community, based on the standards, intents and purposes of the Declaration, or because of the refusal, neglect, inability or failure either to furnish plans, specifications, reports, etc.{,} required by the Declaration or requested or ordered by the Committee, or to cooperate with the Committee or their representative.
Finally, Article VI of the covenants establishes additional restrictions and requirements. Article 6.9 states: 6.9 Preservation of View. One of the most important characteristics of the properties is the view of Puget Sound, Point Defiance, and Mount Rainier. Therefore, all improvements including existing trees, shrubs and vegetation must be planned, constructed, located and cared for so as not to unreasonably or significantly interfere with or obstruct such views. The Architectural Control Committee shall have the responsibility of determining whether improvements (including existing trees, shrubs and vegetation) on any Lot unreasonably or significantly interfere with the View of the other residences. In evaluating and judging housing and landscaping plans, the Committee shall accommodate all present and future owners and residents as much as is reasonably possible toward creating and preserving views from all residences.
In 1992, Kelley, Lewis, and Ovist resigned from the Board of Directors of the Association (Board). The homeowners association then elected Dick Carlson, Joe Ryan, and Gary Robbins to the Board.
At the same time, Kelley, Lewis, and Ovist presumably resigned from the architectural control committee. Even though Normandy Associates still had the `sole and exclusive power to replace, terminate or appoint all members of the committee until such time as nine (9) Lots have a permanent residential building occupied by a bona fide resident and the initial landscaping is completed,' Normandy Associates did not exercise this power.1 CP at 201. Instead, the homeowners association elected Carlson, Ryan, and Robbins to the architectural control committee. In a declaration before the trial court, Robbins stated:
{W}e thought there might be a technical issue with the makeup of the Architectural Control Committee and we contemplated amending the covenants to change the Committee makeup. But after seeking legal advice, we were told that the resignations of Messrs. Kelley, Lewis and Ovist were sufficient for us to act as the Architectural Control Committee. Accordingly, we did not seek to subsequently amend the covenants to address this technical issue.
In 1993, Carol Allchin bought a two-story, three bedroom house on lot 5 that was originally sited and constructed by Kelley, Lewis, and Ovist.
In 1994, the homeowners association voted to include all nine lot owners on the architectural control committee. The association approved the proposal by a 7-0 vote.
In 2003, John Uskovich purchased lot 4, the last remaining vacant lot in the subdivision. He submitted preliminary house plans to the architectural control committee and the committee considered these plans during their meeting on December 16, 2003.
At the meeting, Uskovich commented that his plans did not impact the views for lot 5 and lot 3 and that all dimensions were in compliance with county regulations. Nevertheless, among other things, the committee was concerned about: (1) the impact of his plans on the neighbors' views; (2) the need for proper dimensions in writing and drawn on plans; and (3) the need for proper setback lines. The committee concluded that Uskovich `will re-submit official drawings/building plans per the {covenant} requirements for review.' Ex. 148.
Richard Anderson, who chaired the December 16, 2003 meeting, requested that the attorney for the homeowners association review Uskovich's preliminary house plans. Ultimately, attorney Bryce Dille concluded that the committee would be acting reasonably and in compliance with preserving Allchin's view `if it permitted Mr. Uskovich to construct his residence up to the setback line even though there was some interference of a portion of the view from a portion of the residence of Dr. Carol Allchin.' Ex. 378.
On January 5, 2004, the architectural control committee held another meeting. Allchin submitted a letter in which she discussed her concerns about having her view obstructed and her property value decreased. Anderson submitted the letter from Dille. And Sloan Robbins asked Uskovich to resubmit the drawings and redo the setback line. Again, the committee concluded that: (1) the plans need to be dated; (2) the plans need to be revised to show the setback line and the footprint of the house clearly designated; and (3) a graphic analysis, as required by Article 5.6(b)(viii) of the covenants, would be required.
On February 23, 2004, the architectural control committee held yet another meeting. Allchin handed out copies of her summons and complaint filed against the homeowners association and the individual members of the homeowners association. Anderson reported on a second meeting he had with Dille to discuss Allchin's concerns.
...
To continue reading
Request your trial