Meresse v. Stelma
| Decision Date | 19 May 2000 |
| Docket Number | No. 24264-8-II.,24264-8-II. |
| Citation | 999 P.2d 1267,100 Wash.App. 857 |
| Court | Washington Court of Appeals |
| Parties | Robert H. MERESSE and Susan P. Meresse, husband and wife, Respondents, v. Daniel L. STELMA, a single person; Stanco Financial Corp.; Paul R. Pargeter and Lisa K. Pargeter, husband and wife; John Lee Holland and Penelope D. Paynter, husband and wife; PHH U.S. Mortgage Corp.; Columbia River Banking Company; Kurt S. Rohrbacher and Julee A. Rohrbacher; Riverview Savings Bank; and any other party in possession; Appellants. |
Ann Elizabeth Setty-Rosevear, Marsh & Higgins, Vancouver, for Respondents.
Ronald H. Reynier, Hood River, OR, for Appellants.
Daniel L. Stelma, Paul R. and Lisa K. Pargeter, John L. Holland, Penelope D. Paynter, and Kurt S. and Julee A. Rohrbacher (Stelma)1 appeal a trial court judgment declaring invalid amendments to their subdivision's restrictive covenants; the amendments purported to move the common access road, the beginning of which had been constructed outside the recorded easement. Stelma also appeals dismissal of his counter-claim. Both parties request attorney fees under the restrictive covenants. Holding that a majority of subdivision owners could not expand the road maintenance covenant to force realignment of the access road on a dissenting owner, we affirm.
On February 11, 1985, Robert and Brenda Constant recorded a plat for a six-lot residential subdivision, "CONSTANT OAK SUBDIVISION,"2 in Skamania County. The restrictive covenants for this subdivision provide:
(Emphasis added.)
Access to the subdivision is by Constant Drive, from Corner Road. The recorded plat depicts the Constant Drive easement as illustrated above. But the mouth of this gravel access road actually intersects Corner Road further east, where Constant Drive cuts across the southwest portion of Lot 6.
The Constants knew about this discrepancy 16 years ago, before their subdivision plat was recorded. In June 1984, during the preliminary platting process, the Skamania County Engineer wrote the Constants:
(Emphasis added.) Constant Circle Drive was not relocated.
Thirteen years later, in March 1995, the Meresses purchased Lot 1. By 1997, Daniel Stelma owned Lot 2; Paul and Lisa Pargeter owned Lot 3; John Holland and Penelope Paynter owned Lot 4; and Kurt and Julee Rohrbacher owned Lots 5 and 6.
In May or June 1997, the parties attended a "FIRST ANNUAL MEETING FOR: CONSTANT OAKS SUBDIVISION/CONSTANT PRIVATE DR." to discuss, among other things, "Road location and easement equality for all lot owners" and "Creation of a Constant Private Dr. road easement/maintenance agreement by vote." By a vote of five (Stelma) to one (the Meresses), the subdivision owners purported to adopt the following "AMENDMENT TO THE CONSTANT OAKS SUBDIVISION RESTRICTIVE COVENANTS":
The Meresses filed a declaratory relief action,4 seeking a decree that (1) they "have the exclusive right to the use and enjoyment of that portion of the common area within Constant Oaks Subdivision between [their] lot and Constant Drive as it is now situated"; (2) Stelma has "no right to a view easement or conservation easement on the property of [the Meresses] or the portion of the common area between [the Meresses'] lot and Constant Drive"; (3) "the relocation of Constant Drive" is prohibited; or (4) in the alternative, Stelma is required "to bear the full expense of such relocation, including the resulting diminution in value to [the Meresses'] property." Stelma counterclaimed for declaratory relief, seeking approval of the amendments to the restrictive covenants. Following a bench trial, the court entered findings of fact and conclusions of law and invalidated the amended covenants.
On appeal, Stelma challenges the following conclusions of law:5
2. The lot owners do not have had [sic] the power to amend the Covenant for Road Maintenance to provide for road relocation and a scenic easement. The amendment here was a major change in the original covenant. It not only required the total abandonment of an existing road and its relocation, it also changed the easement from simply a 60 foot wide roadway easement to now what was designated as a 40 foot, (20 foot on either side of the roadway) scenic easement, and the scenic easement put more restrictions on the easement than previously were stated.
3. The authority to amend restrictive covenants is restricted by the limitation that the amendment may not impose restrictions that are more restrictive or burdensome than those imposed by specific objective covenants.
4. This is a restrictive covenants interpretation case and not a contract case.[6]
5. The amendment in this case that was decided by majority of the Lot owners went beyond the original intent of the covenant. That is, the original intent was for the construction, maintenance and repair of the Constant Road. In this case, there is, as I said, a relocation, a rebuilding, also a reconfiguration, reestablishment of a different type of easement which is certainly more restrictive than the original roadway easement and it is also more burdensome on the lot owners.
6. The adoption of a more restrictive covenant would require a total, 100% vote, which we do not have here.
At oral argument, both parties asked us to clarify the respective rights of the lot owners.
Where, as here, "the facts are undisputed, and the only issues are questions of law, review is de novo." Wallace Real Estate Inv., Inc. v. Groves, 72 Wash.App. 759, 766, 868 P.2d 149, aff'd, 124 Wash.2d 881, 881 P.2d 1010 (1994). "The interpretation of language contained in a restrictive covenant[7] is a question of law." Parry v. Hewitt, 68 Wash.App. 664, 668, 847 P.2d 483 (1992).
Riss v. Angel, 131 Wash.2d 612, 623, 934 P.2d 669 (1997). "In determining intent, language is given its ordinary and common meaning." Riss, 131 Wash.2d at 621, 934 P.2d 669.
At issue is whether Stelma, as the owner of a majority of the lots, can override the minority owner, Meresse, to impose a major change — relocating the access road — by calling it "road maintenance," "construction," or "repair," which do not require unanimous approval.
Stelma contends that the power to relocate Constant Drive and to create a scenic easement is given in (1) the original restrictive covenants, which provide in part:
Such reservations, covenants restrictions, and agreements shall be...
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