Lakes at Mercer Island Homeowners Ass'n v. Witrak, 25506-1-I

• Decision Date: 06 May 1991
• Docket Number: No. 25506-1-I,25506-1-I
• Citation: 810 P.2d 27,61 Wn.App. 177
• Parties: The LAKES AT MERCER ISLAND HOMEOWNERS ASSOCIATION, a Washington Corporation, Appellant, v. Bonnie WITRAK and Tom E. Gumprecht, husband and wife, and their marital community, Respondents.
• Court: Washington Court of Appeals

Page 177

61 Wn.App. 177

810 P.2d 27

The LAKES AT MERCER ISLAND HOMEOWNERS ASSOCIATION, a Washington Corporation, Appellant, v. Bonnie WITRAK and Tom E. Gumprecht, husband and wife, and their marital community, Respondents.

No. 25506-1-I.

Court of Appeals of Washington,

Division I.

May 6, 1991.

Review Denied Sept. 3, 1991.

H. Michael Fields, Seattle, for Lakes of Mercer Island.

Steven O. Kenyon, Seattle, for Bonnie J. Witrak & Tom F. Gumprecht.

FORREST, Judge.

The Lakes at Mercer Island Homeowners Association (Homeowners) appeal the trial court's grant of summary judgment, arguing that issues of fact were presented relating to Bonnie Witrak's compliance with provisions of the Homeowners Declaration of Covenants, Conditions and Restrictions (CCR). We reverse.

Bonnie Witrak and Tom Gumprecht live in a residential subdivision located on Mercer Island, known as "The Lakes at Mercer Island" (The Lakes). In spring of 1987, John and Maryann Deming began construction on the lot adjacent to Witrak. In May 1987, Witrak planted 55 pyramidalis trees on her property to screen her property from the Demings. She did not seek the approval of the Homeowners Architectural Control Committee (ACC), nor was it required. She then built a six-foot fence on the lot line between the two properties. Prior to construction, Witrak had sought and obtained ACC approval to build the fence pursuant to Article II section 8 of the CCR.

In January 1988, Witrak hired an architect to design an addition to her home. In July 1988, she submitted the architect's plans to the ACC. It denied approval of the addition by letter dated August 15, 1988. Witrak requested that the ACC reconsider. It refused. A meeting between Witrak, the ACC and the Homeowners Board of Directors on September 19, 1988 did not change the ACC's decision.

On September 23, 1988, workers began excavation on Witrak's property. By September 25, 1988, they had planted a row of 12 Douglas Fir trees, each between 25-30 feet in height immediately adjacent to the Witrak/Deming boundary line. On September 26, Witrak renewed her request for approval of the proposed addition. The ACC again refused to allow the remodel, they also claimed the trees were planted in violation of the CCR and referred the matter to the Board. Witrak refused to remove the trees. The Board filed suit on October 18, 1988, seeking an order that the trees be removed. Both parties moved for summary judgment. On December 22, 1989, the trial court held that there were no material facts in dispute and concluded, as a matter of law, that the language of the CCR did not prohibit the trees. The Homeowners' motion for reconsideration was denied. This appeal followed.

After reading the relevant provisions of the CCR the trial court concluded as a matter of law that the trees did not constitute a wall or fence. The material portion of Article II, section 8 of the CCR states:

Landscaping and Fencing. ....

Fences, walls or shrubs are permitted to delineate the lot lines of each lot, subject to Architectural Control Committee approval,.... In any event, no fence erected within the subdivision shall be over six feet (6') in height. No barbed wire, chain link or corrugated fiberglass fences shall be erected on any lot. All fences, open and solid, are to meet the standards set by the Architectural Control Committee and must be approved by the Committee prior to construction.

While restrictive covenants were once disfavored by the courts, upholding the common law right of free use of privately owned land, modern courts have recognized the necessity of enforcing such restrictions to protect the public and private property owners from the increased pressures of urbanization. ¹ The primary objective in interpreting restrictive covenants is to determine the intent of the parties to the agreement. ² 2] We agree with the reasoning expressed by the Missouri Court of Appeals in Thomas v. Depaoli ³ that the clear intent of a restrictive covenant is determined by the purposes sought to be accomplished by the covenant. The Thomas court determined that a fence which obstructed the view of neighbors was a "building" as contemplated in a set-back restriction. ⁴ This reasoning is consistent with prior Washington law. In Foster v. Nehls ⁵ the court declined to specifically define "one and one-half stories in height", opting instead to determine the purpose of the restriction and enjoin the building of a structure that obstructed a neighbor's view.

Witrak suggests the courts must adopt literal definitions for the words of a covenant, claiming restrictive covenants should be "strictly" construed. While it is true that the courts should not give a covenant a broader than intended application, it is well settled that a covenant should not be read in such a way that defeats the plain and obvious meaning of the restriction. ⁶ Witrak also contends that any doubts regarding the interpretation of the covenants should be resolved in her favor. ⁷ While such a rule may have some validity when the conflict is between a homeowner and the maker of the covenants, it has limited value when the conflict is between homeowners. ⁸ In such a case the court should place special emphasis on arriving at an interpretation that protects the homeowners' collective interests.

The trial court appears to apply a "plain meaning" interpretation of the covenants. However, this decision was made prior to the Supreme Court holding in Berg v. Hudesman ⁹ rejecting such analysis in favor of the "context rule". In Berg the Supreme Court recognized that even the most ordinary words are only understood in the context of the surrounding document, the subject matter and objective of the contract, the surrounding circumstances, the subsequent acts and conduct of the parties, and the reasonableness of the respective interpretations of the contract. ¹⁰ The wooden fence previously built by Witrak was approved because it did not block the Demings' light or view. Witrak's proposed remodel was denied because it would adversely affect the neighbors' "outlook". It is only after such considerations that the language can be interpreted to arrive at the intent of the parties. Of particular interest to this case is the Berg court's emphasis on rejecting interpretations that are unreasonable and imprudent and accepting those which make the contract reasonable and just. ¹¹

The overall purpose of the CCR seems clear: protect the aesthetic harmony of the community, preserve an open natural appearance, and maintain the view and light of each property owner. Adopting a definition of "fence" as excluding trees and being limited only to a structure frustrates the purpose of the covenants. Article II, section 8, specifically cites height, placement and appearance as primary factors to ACC approval of fences. In view of the overall purposes and the specific control of "fences, walls and shrubs" delineating a boundary, it is almost inconceivable that the developer had any actual intent to allow a row of trees immediately adjacent to a property line without any control. If such is the meaning, it surely was not deliberate.

Contrary to Witrak's contention, even the literal meaning of "fences" does not exclude a row of trees along a property line. A common and ordinary meaning of "fence" is "a barrier", Webster's Third New International Dictionary 837 (1969), or "a hedge, structure, or partition, erected for the purpose of inclosing a piece of land, or to divide a piece of land ... or to separate two contiguous estates." Black's Law Dictionary 745 (4th ed. 1968). These definitions preclude a summary judgment that trees may under no circumstances constitute a fence.

Witrak urges the court to reject as a matter of law the notion that fences may be naturally grown because it is not expressly provided for in the covenant. We are not persuaded. Normally, a property owner can plant a row of trees or other foliage to create a barrier between two contiguous pieces of property. Such "fencing" occurs on a regular basis. Prior courts have recognized that planting large bushy trees close together along a property line is indeed a "fence." ¹² Shrubs performing the role of a fence in delineating property lines are expressly subject to ACC control. The difference between a "shrub" and a "tree" seems to be primarily botanical rather than functional. ¹³ What is the difference for these purposes between a line of 15' cedar trees and line of 15' laurel shrubs? Given the covenant's clear concern with height and obstruction of neighbors' light and view, it would be a strange reading indeed that would require prior approval of relatively low shrubbery delineating a lot line but allow a property owner to plant large trees along the same lot line without ACC approval. Clearly the language cannot be interpreted as a matter of law to require such a result.

Witrak contends that since trees are expressly referred to in other sections of the CCR limiting their placement they may not be considered a fence. This argument is unpersuasive. The sections specifically dealing with trees address other concerns and do not limit the interpretation that should be given to Article II, section 8. Also unpersuasive is Witrak's argument that the trees do not delineate the lot line. The fact that the trees are slightly inside the legal boundary and there is a wooden fence on the boundary is...