Green v. Normandy Park
| Decision Date | 05 February 2007 |
| Docket Number | No. 57230-0-I.,57230-0-I. |
| Citation | 137 Wn. App. 665,151 P.3d 1038 |
| Court | Washington Court of Appeals |
| Parties | David GREEN and Cindy Green, and the marital community composed thereof; Plaintiffs, William M. Edleman and Kathie A. Edleman, and the marital community composed thereof, Appellants, v. NORMANDY PARK, Riviera Section, Community Club; a Washington corporation, Respondents. William M. Edleman and Kathie A. Edleman, husband and wife, Appellants, v. Normandy Park Riviera Section Community Club; Respondents. Brent L. Cook and Sherri Cook, husband and wife; and Shannon Fawcett and Roxanne Fawcett, husband and wife, Defendants. Sue Benway and George Benway, husband and wife, Respondents, v. William M. Edleman and Kathie A. Edleman, husband and wife, Appellants. |
Peter J. Eglick, Joshua Adam Whited, Eglick Kiker Whited PLLC, Seattle, WA, for Appellants.
Roxanne Fawcett (Appearing Pro Se), Shannon Fawcett (Appearing Pro Se), Jerry H. Kindinger, Ryan Swanson & Cleveland, Robin Alison Schachter, Annmarie Barbara Petrich, Seattle, WA, for Respondents.
¶ 1 William and Kathie Edleman built a house in a Normandy Park neighborhood that does not comply with provisions of the neighborhood's restrictive covenants and without obtaining prior approval from the Normandy Park Riviera Section Community Club, Inc. (Community Club), the organization that enforces the covenants. The ensuing litigation led to the trial court's entry of judgment in favor of the Community Club and the Benways, neighbors of the Edlemans, and issuance of an injunction requiring complete demolition of the Edlemans' house and garage.
¶ 2 The Edlemans appeal, assigning error to the trial court's summary judgment ruling that the Community Club had the authority to enforce the restrictive covenants, to the trial court's conclusion that the Edlemans' construction must meet interior setback requirements as measured from the common boundary of the two lots upon which the house sits, and to several other findings and conclusions of the trial court. Because we agree that the Edlemans were entitled to build across their two lots without complying with interior setback requirements, we reverse the judgment and remand the matter to the trial court for a determination of the appropriate remedy in light of this decision. In all other respects, we affirm the decisions of the trial court.
¶ 3 In November 2000, the Edlemans purchased a house sitting on land in the neighborhood known as the Riviera Section of the City of Normandy Park. The Edlemans made plans to demolish the existing house and to construct a new house on the land.
¶ 4 In January 2002, after construction plans had been drafted but before construction began, the Edlemans received a letter from the Community Club requesting that they conform their planned construction to the provisions of the neighborhood covenants.1 The letter further stated that all construction in the neighborhood was subject to Community Club approval and requested that the Edlemans submit a site plan and preliminary building plan to the Community Club for review. Enclosed with the letter was a petition signed by several residents of the neighborhood, requesting that the Edlemans voluntarily comply with the covenants.
¶ 5 In February 2002, the Edlemans responded by letter to the Community Club, offering a "compromise" plan under which the Edlemans' house would span the two lots, be set back fifteen and one half to sixteen feet from the property line to the south of the southern lot, eight feet from the property line to the north of the northern lot, and twenty feet from the street.2 An attached diagram illustrated the house's proposed placement.
¶ 6 In March 2002, the Community Club responded by letter. The letter stated that the Edlemans' neighbors were opposed to the Edlemans building a home outside those setbacks established by the covenants, and requested that the Edlemans submit new plans in compliance with the setback requirements. Over the next few months, the Community Club sent several further letters to the Edlemans requesting compliance with the covenants and submission of building plans to the Community Club.
¶ 7 The Edlemans demolished the existing house in late 2002, and commenced construction of their house and garage in early 2003, without submitting further proposed plans to the Community Club or obtaining Community Club approval.
¶ 8 In March 2004, the Edlemans sent the Community Club the plans for the house and garage then under construction. In April 2004, the Community Club replied to the Edlemans by letter disapproving of the planned construction.3 The letter detailed the setback and consent-to-construct requirements of the covenants, as well as the steps taken and information reviewed by the Community Club in making its determination, and made specific recommendations for bringing the plans into compliance with the covenants.
¶ 9 The Edlemans continued with the construction as planned. To date, both the house and garage have been substantially completed. The structures span the Edlemans' two lots, with the house to the south and the garage to the north. The house sits on top of the boundary line between the two lots and, thus, is not set back from that boundary line on either of the lots. The house complies with the covenants' setback requirement to the south, and the garage complies with the covenants' setback requirement to the north. However, the house and the garage both encroach onto the covenants' 45-foot street-side setback to varying degrees.4
¶ 10 The present litigation is the result of three separate lawsuits that were eventually consolidated by the trial court.
¶ 11 In the first case, the Edlemans filed a complaint in April 2002 against the Community Club, seeking a judgment declaring that the Community Club lacks the right, standing, and authority to enforce the covenants.
¶ 12 In the second case, the Edlemans filed a complaint in October 2002 against the Community Club and neighbors of the Edlemans, the Cooks and the Fawcetts. The Edlemans again sought a judgment declaring that the Community Club lacks the right, standing and authority to enforce the covenants. The Edlemans also sought either a declaration that the covenants have been abandoned or enforcement of the covenant restrictions against the Cooks and the Fawcetts, whose property the Edlemans alleged to be in violation of covenant provisions.
¶ 13 In the third case, the Benways, the Edlemans' neighbors to the south, filed a complaint in December 2002 seeking an injunction prohibiting the Edlemans from constructing a house outside the setback lines and without Community Club approval. The Benways immediately moved for a temporary restraining order prohibiting the Edlemans from commencing construction. The trial court denied the motion.
¶ 14 In May 2002, the Edlemans moved for summary judgment in the first case, arguing that the Community Club is not a valid successor to the interests of the developer and, therefore, lacks the authority to enforce the covenants. The Edlemans did not argue that the Community Club lacks authority to enforce the covenants for any reason other than its successor status. The trial court denied the motion, noting that "it is a question of fact whether defendant is a successor with respect to the 1929 covenant."
¶ 15 In July 2003, the Community Club moved for summary judgment in the first case, arguing that the Community Club is a valid successor to the interests of the developer and, therefore, has the authority to enforce the covenants. The Edlemans responded to the motion, arguing that the Community Club is not a valid successor to the developer and, therefore, does not have the authority to enforce the covenants. As with their prior motion for summary judgment, the Edlemans did not argue in that response that the Community Club lacked authority to enforce the covenants for any reason other than its successor status.5
¶ 16 The trial court granted the Community Club's motion for summary judgment, ruling that: "The defendant has the right, standing and authority to enforce covenants."
¶ 17 In February 2004, the Community Club moved to consolidate all three cases pursuant to CR 42(a).6 The Edlemans responded, requesting that the trial court consolidate only the second and third cases. The Edlemans argued that the first case should not be included in the consolidation because the singular question in that case was whether the Community Club had the right, standing, and authority to enforce the covenants, and the summary judgment ruling resolved all issues related to that question. After a hearing, the trial court granted the Community Club's motion to consolidate.
¶ 18 The consolidated case proceeded to bench trial on August 2, 2004. During trial, the Edlemans sought to introduce evidence that the board of the Community Club was not elected, a circumstance potentially relevant to the issue of the board's authority to enforce the covenants. The Community Club objected based on the prior summary judgment ruling. The trial court ruled that the Edlemans had abandoned any issues regarding the board's authority to enforce the covenants by asserting to the court in a pleading that all issues relevant to the board's authority had been resolved by the summary judgment ruling rendered in the first case. Accordingly, the trial court held that evidence regarding how the board of the Community Club was constituted was admissible only for its potential relevance to the question of the reasonableness of the board's decision-making, not to the board's authority to enforce the covenants.
¶ 19 The trial court entered judgment in favor of the Community Club and the Benways, ruling that the covenants were valid and enforceable against the Edlemans, that the Benways had standing to seek enforcement of the covenants, and that the Edlemans' house and...
To continue reading
Request your trial
-
S.S. v. Alexander
...829, 833, 906 P.2d 336 (1995). Thus, we engage in the same inquiry as the trial court." Green v. Normandy Park, Riviera Section, Cmty. Club, Inc., 137 Wash.App. 665, 681, 151 P.3d 1038 (2007). "Summary judgment is properly granted when the pleadings, affidavits, depositions, and admission o......
-
Jacob's Meadow Owners Ass'n v. Plateau 44
...State Employees, Council 28 v. Office of Fin. Mgmt., 121 Wash.2d 152, 163, 849 P.2d 1201 (1993); Green v. Normandy Park Riviera Sec. Cmty. Club, 137 Wash. App. 665, 678, 151 P.3d 1038 (2007). That record includes those documents designated in an order granting summary judgment and any suppl......
-
Wilkinson v. Chiwawa Cmtys. Ass'n, Non-Profit Corp.
...and Meaning in the Law of Subdivision Covenants, 16 Ga. L.Rev. 33, 42 (1981)); see also Green v. Normandy Park Riviera Section Cmty. Club, 137 Wash.App. 665, 683, 151 P.3d 1038 (2007). Rather than place a thumb on the scales in favor of the free use of land, “[t]he court's goal is to ascert......
-
Dillon v. Seattle Deposition Reporters, LLC, s. 69300–0–1
...the nonmoving party. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 349, 588 P.2d 1346 (1979).Green v. Normandy Park Riviera Section Cmty. Club, 137 Wash.App. 665, 681, 151 P.3d 1038(2007). ¶ 21 Washington's privacy act provides, in relevant part: (1) Except as otherwise provided in this......
-
Table of Cases
...1059, review denied, 92 Wn.2d 1025 (1979): 20.15(4) Green v. Lupo, 32 Wn.App. 318, 647 P.2d 51 (1982): 7.6(1)(b) Green v. Normandy Park, 137 Wn.App. 665, 151 P.3d 1038 (2007), review denied, 163 Wn.2d 1003 (2008): 8.4(3), 8.5(2)(a), 8.6(2)(c) Green River Valley Found., Inc. v. Foster, 78 Wn......
-
§8.6 - Termination and Equitable Defenses
...to demonstrate his or her "innocence." See, e.g., Bauman, 139 Wn.App. 78, 96-97; Peterson, 122 Wn.App. at 359; Green v. Normandy Park, 137 Wn.App. 665, 698-99, 151 P.3d 1038 (2007), review denied, 163 Wn.2d 1003 (2008); Hollis, 137 Wn.2d at 700. An appellate court's review of a trial court'......
-
§8.5 - Interpretation and Scope of Covenants
...and set-back restrictions, see Bauman v. Turpen, 139 Wn.App. 78, 160 P.3d 1050 (2007) (height restriction), Green v. Normandy Park, 137 Wn.App. 665, 151 P.3d 1038 (2007), review denied, 163 Wn.2d 1003 (2008) (set-back requirement); prohibitions against mobile homes, Parry v. Hewitt, 68 Wn.A......
-
§8.4 - Subdivisions
...Jensen v. Lake Jane Estates, 165 Wn.App. 100, 107-09, 267 P.3d 435 (2011); see also Green v. Normandy Park, Riviera Section, Cmty. Club, 137 Wn.App. 665, 684, 151 P.3d 1038 (2007), review denied, 163 Wn.2d 1003 (2008). In Jensen, recorded plat restrictions stated that lots could not be subd......