Hebert v. Spring Creek Easement Owners Ass'n

• Decision Date: 23 March 2021
• Docket Number: No. 37215-4-III,37215-4-III
• Court: Washington Court of Appeals
• Parties: CYNTHIA HEBERT AND JAMES D. HEBERT, husband and wife, Appellant, v. SPRING CREEK EASEMENT OWNERS ASSOCIATION, (RMA) BOARD OF TRUSTEES, Respondent.

CYNTHIA HEBERT AND JAMES D. HEBERT, husband and wife, Appellant, v. SPRING CREEK EASEMENT OWNERS ASSOCIATION, (RMA) BOARD OF TRUSTEES, Respondent.

No. 37215-4-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

March 23, 2021

UNPUBLISHED OPINION

FEARING, J. — Cynthia and James Hebert appeal summary judgment rulings granted a homeowners association to which they belonged. The association, Spring Creek Easement Owners Association, removed boulders and a gate placed by the Heberts in a road easement. In turn, the association charged the Heberts for the costs of the removal. When the Heberts failed to pay the assessment and regular assessments, Spring Creek sued to foreclose on the assessments lien, and the Heberts sued for damage to their gate and boulders. We affirm the superior court's dismissal of the Heberts' suit and the superior court's foreclosure of the assessments lien.

FACTS

In 2003, Sapphire Skies, LLC created Spring Creek, an eight-parcel development in pristine Kittitas County. Two roads, Thunder Road and Ridge Crest Road, serve the development. At least one road traverses each of the eight plots. The developer recorded easements for the two roads.

In addition to recording road easements, Sapphire Skies recorded covenants, conditions, and restrictions (covenants) to create a homeowners association to maintain the two roads and to impose duties on the lot owners within the association. In 2018, the association adopted the name Spring Creek Easement Owners Association. We refer to the association simply as Spring Creek. A three-member board of directors, consisting of a president, a secretary, and a treasurer, manages Spring Creek. All parcel owners are members of the homeowners association and hold nonexclusive easements for access, ingress, and access along the two roads.

Cynthia and James Hebert own Parcel 7 of Spring Creek, where Ridge Crest Road eventually ends. The appeal concerns boulders placed and a gate installed by the Heberts along and across Ridge Crest Road. James Hebert is the former president of Spring Creek, having resigned on February 23, 2017.

Many provisions of the recorded covenants pertain to the dispute on appeal. Paragraph 1.2 of the covenants broadly states Spring Creek's powers and duties:

The duties and powers of the Association are those set forth in this Declaration, the Articles and Bylaws adopted by the Association, together with its general and implied powers of a nonprofit corporation, generally to do any and all things that a corporation organized under the laws of the State of Washington may lawfully do which are necessary or proper in operating for the peace, health, comfort, safety and general welfare of its Members, subject only to the limitations upon the exercise of such powersas are expressly set forth in this Declaration, the Articles and Bylaws. Without limiting the generality of the foregoing, the primary functions of the Association shall be enforcement of the covenants, the maintenance, operation and repair and insurance of the entry statement, private road easements over and across the Property for the purpose of ingress and egress to the Lots.

Clerk's Papers (CP) at 315. The last sentence omits an "and" somewhere. Paragraph 1.10 limits the owners' ability to build or improve on their lot without approval by the Architectural Control Committee (ACC), which, per paragraph 1.9, is a three-member committee designated by the board. The paragraph reads:

Subject to the exemption of Declarant hereunder, no structure, improvement, or alteration of any kind which will be visible from other Dwellings, private roadways serving the Property or any public right of way shall be commenced, erected, painted or maintained upon the Property, until the same has been approved in writing by the ACC.

CP at 64.

Paragraph 3.2 of the Spring Creek covenants requires Spring Creek to maintain the easements in the HOA:

The Association shall maintain and repair the Easements, or shall contract for such maintenance and repair to assure maintenance of the Easements in good condition.

CP at 304. Paragraph 4.1 governs the homeowners association owners' obligation to pay assessments to Spring Creek. The paragraph declares in part:

each Owner of any Lot by acceptance of a deed or contract therefore, whether or not it shall be so expressed in such deed or contract, is deemed to covenant and agree to pay to the Association the following Assessments,which shall be established and collected as provided herein and in the bylaws of the Association:

—Regular Assessments;

—Extraordinary Assessments; and

—Special Assessments

CP at 318.

Paragraph 5.1 of the covenants expresses the declarant's authority to install gates and forbids the owners from infringing on other owners' right of access to the easements. The paragraph declares, in relevant part:

Declarant expressly reserves for the benefit of the Owners reciprocal, nonexclusive easements for access, ingress and egress, over and under all of the Easements. Declarant expressly reserves the right to install entry gates and move the location of the road and therefore the easement. . . . In addition, in the Easements, the Owners of the Lots may install utilities, including but not limited to: sanitary sewer, water, electric, gas, television receiving, or telephone lines or connections, provided, however such use of the Easements shall be reasonably necessary for use and enjoyment of a Lot in the Property and such use shall not infringe on any Lot Owner's use of the Easement for access, ingress and egress.

CP at 306.

Paragraph 10.1 grants the homeowners association board or an owner the right to enforce the covenants. The paragraph also governs an award of attorney fees in any lawsuit to enforce the covenants:

The Board, any Owner, and any governmental or quasi-governmental agency or municipality having jurisdiction over the Property shall have the right to enforce, by any proceedings at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by this Declaration, and in such action shall be entitled to recover costs and reasonable attorneys' fees as are ordered by the Court.

Failure by any such person or entity to enforce any such provision shall in no event be deemed a waiver of the right to do so thereafter.

CP at 320.

We move to the facts that give rise to the appeal. In 2004, Cynthia and James Hebert erected a chain fence across Ridge Crest Road as the road traverses their land. The Heberts had already installed a separate gate in front of their home along their driveway outside Ridge Crest Road.

In January 2005, the Spring Creek board of directors convened a meeting. The meeting minutes indicate that Spring Creek discussed potentially erecting a permanent gate across Ridge Creek Road and on the Heberts' parcel:

Following all the discussion above, the topic of gates were [sic] raised again. Jim and Cynthia Hebert had placed a chain across the easement on the property line between Lot 7 and Lot 8. There was a discussion on safety concerns with a chain across the road and Cynthia commented she would replace it with a gate. There was a lengthy discussion on the legality of placing a gate on the easement and putting a gate up without written approval from Plum Creek and Sapphire Skies who both have legal easements.

An [sic] majority of the homeowners agreed (7-1) to install a gate at the entrance to the Spring Creek Property where it comes up from Ridge Crest Road and Pat Deneen's property. To do this, Cynthia Hebert was going to get written approval from Plum Creek and Sapphire Skies prior to erecting the gate. If written approval cannot be obtained, it was agreed to authorize Cynthia Hebert to install a temporary gate at the location of the chain. This temporary gate would be reviewed in the summer and a definite timeline established for its removal.

CP at 94 (emphasis added).

Cynthia and James Hebert insist that the homeowners association board, during the January 2005 meeting, approved a permanent gate, even though the minutes refer to the approval as temporary and conditional. Current Spring Creek President Marion Deardorff averred in a declaration that the Heberts did not obtain written permission from Sapphire Skies or Plum Creek to build a permanent gate.

Sometime between January and June 2005, Cynthia and James Hebert constructed a permanent gate on their property across Ridge Crest Road. The Heberts erected the gate further inside their parcel, rather than on the property line between Lots 7 and 8, contrary to their representation during the board meeting.

On May 26, 2005, the Spring Creek board of directors conducted a meeting, during which they discussed the Heberts' permanent gate. Cynthia Hebert explained that she wanted a permanent gate due to safety concerns arising from individuals entering her property with firearms. She added that, because of these concerns and on the advice of their attorney, the couple constructed the permanent gate on Ridge Crest Road. The meeting minutes further state:

The cost of the gate was stated by Cynthia as being $7000 and would not be removed even if the association voted for its removal. The condition for removal of the gate would be upon installation of another gate elsewhere.

. . . .

Perry LaCelle took issue with Cynthia taking action outside of the Easement Association—1) She didn't get correct approvals from Plum Creek, and 2) didn't get signatures per request from Sapphire Skies. Cynthia replied that she did get permissions requested and sent them to theeasement association. Perry commented that the permissions were from a third party (Plum Creeks [sic] Legal Council [sic]) with area's [sic] blacked out and the request from Sapphire Skies was never complied with.

. . . .

John Craig proposed revisiting the gate at the end of the summer and give time for Chad Allen to talk with Pat Deneen about putting up a more permanent gate coming up the mountain. .

...