Mountain Park Homeowners Ass'n, Inc. v. Tydings

• Citation: 72 Wn.App. 139,864 P.2d 392
• Decision Date: 21 December 1993
• Docket Number: No. 15247-9-II,15247-9-II
• Parties: MOUNTAIN PARK HOMEOWNERS ASSOCIATION, INC., Appellant, v. Paddy L. TYDINGS and "John Doe" Tydings, Wife and Husband, Respondents. Division 2
• Court: Court of Appeals of Washington

Page 139

72 Wn.App. 139

864 P.2d 392

MOUNTAIN PARK HOMEOWNERS ASSOCIATION, INC., Appellant, v. Paddy L. TYDINGS and "John Doe" Tydings, Wife and Husband Respondents.

No. 15247-9-II.

Court of Appeals of Washington,

Division 2.

Dec. 21, 1993.

Brian L. McCoy, Puyallup, for appellant.

Robert K. Ricketts, Tacoma, for respondents.

MORGAN, Judge.

The Mountain Park Homeowners Association appeals a summary judgment granted to Richard and Paddy Tydings. We reverse and remand.

The Mountain Park subdivision is a 244-unit planned community. It is governed by a Declaration of Covenants, Conditions and Restrictions (CC & R's) that includes a covenant against antennas. That covenant provides:

Section 17. Utility lines; Radio and Television Antennas. All electrical service, telephone lines and other outdoor utility lines shall be placed underground. No exposed or exterior radio or television transmission or receiving antennas shall be erected, placed, or maintained on any part of such premises except as approved by the ACC [Architectural Control Committee ¹] prior to installation or construction.

CC & R's, Article IX, § 17; App. Brief, Appendix A-16. ²

The Association is a non-profit corporation whose members are homeowners in the planned community. Its board of directors is responsible for enforcing the CC & R's.

Tydings are members of the Association because they own a home in Mountain Park. During the summer of 1988, they erected a satellite dish in their backyard. When another resident complained to the Association, it sent a letter asking Tydings to remove the dish. Tydings did not do so.

On October 17, 1988, the Association filed suit against Tydings to compel compliance with the covenant against antennas. At about the same time, it also filed suit against a homeowner named Winslow, who also had erected a satellite dish. It appears that the Winslow suit, like the one against Tydings, was designed to compel compliance with the covenant against antennas. It further appears that Winslow defended on grounds that other homeowners in the community were violating various covenants contained in the CC & R's, and that he was being unfairly singled out for enforcement. In February 1989, a trial judge different from the one here ruled that there was no genuine issue of fact for trial and granted summary judgment in favor of the Association.

On November 23, 1988, the Association moved for summary judgment in this case. In responsive affidavits, Tydings admitted they had erected a satellite dish. ³ They claimed, however, that "numerous other violations" of the CC & Rs were being committed by various homeowners, and that the Association was "singling out our satellite dishes unfairly."

Apparently in response, the Association investigated other CC & R violations occurring in the subdivision. A letter was sent to each perceived violator, asking that he or she comply with the CC & R's.

On February 17, 1989, the trial court denied the Association's motion for summary judgment. The court stated in its written order:

[I]f all covenants and/or restrictions contained in the Mountain Park Declaration of Covenants, Conditions and Restriction are not uniformly enforced this action [will be] found to be discriminatory [and] will be dismissed.

App. CP 85.

In March 1989, the Association believed that 7 to 12 homeowners remained in violation of the CC & R's. ⁴ It sent a letter to each of these homeowners stating it would join him or her in the Tydings' litigation if he or she did not comply with the CC & Rs within 60 days. Apparently, it also contemplated that the ACC would conduct a survey to identify additional violations. However, nothing further was done at that time.

In May 1989, the Association moved to reconsider the denial of summary judgment. The court denied the motion on June 21, commenting that "there is an issue of fact as to the uniformity of enforcement of the restrictive covenants at issue."

Almost 2 years elapsed. Then, on March 8, 1991, Tydings moved to dismiss. They based their motion on the trial court's February 1989 declaration that "if all Covenants and/or Restrictions ... are not uniformly enforced this action [will be] found to be discriminatory [and] will be dismissed"; and, further, on several affidavits asserting that the Association had failed to enforce the CC & Rs during the preceding 2 years. Responding, the Association estimated there were "approximately the same number of CC & R violations within the subdivision that there were a couple of years ago." It said this was a 4 percent noncompliance rate, which is "very good and constitutes reasonably uniform enforcement." It said it was planning a curbside inspection of each home in the subdivision, and that it had, that month, sent every homeowner in the subdivision a letter and a summary of the CC & Rs.

On May 15, 1991, the court signed an order stating:

ORDERED, ADJUDGED and DECREED that, there remaining a genuine issue of material fact as to the extent of uniform enforcement of those certain covenants, conditions and restrictions of Mountain Park Residential Subdivision, Defendants Motion to Dismiss Plaintiff's Complaint shall be and the same hereby is DENIED without prejudice....

Tydings moved for reconsideration, and the motion apparently was granted. Then, on June 28, 1991, the trial court entered judgment dismissing the Association's complaint with prejudice. The court held, necessarily as a matter of law, that from February 17, 1989, to May 24, 1991, the Association

has not uniformly enforced or attempted uniform enforcement of the CC & R's of the Mountain Park Development and has failed to take any action against the numerous violations of the CC & R's except for the proceedings against defendant herein, thus [its allegations against Tydings] are discriminatory.

The court further ruled:

The prohibition against satellite dishes and TV and radio antennas in the Codes, Covenants, and Restriction[s] is an unreasonable restraint against Defendant's right to use his property and to receive TV and satellite transmissions. That this use does not impair or injure the rights of other property owners.

The court also awarded $3,140.62 in attorney's fees to Tydings, apparently on the basis of Article XIV, § 2 of the CC & R's. On August 23, the trial court entered an order denying the Association's motion for reconsideration.

The Association now appeals the June 28, 1991, order of dismissal with prejudice, as well as the court's subsequent order denying reconsideration. We must take the facts in the light most favorable to the nonmoving party, Scott v. Pacific West Mtn. Resort, 119 Wash.2d 484, 487, 834 P.2d 6 (1992), Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990), Glesener v. Balholm, 50 Wash.App. 1, 7, 747 P.2d 475 (1987), and we can sustain the summary judgment of dismissal only if there is no genuine issue of material fact. CR 56(c). Atherton Condominium Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990).

I.

Preliminarily, we consider whether the covenant against antennas constitutes a covenant running with the land. If the answer is no, Tydings are entitled to prevail, and we need not reach the parties' remaining contentions.

The prerequisites for a covenant running with the land are as follows: (1) [T]he covenants must have been enforceable between the original parties ...; (2) the covenant must "touch and concern" both the land to be benefitted and the land to be burdened; (3) the covenanting parties must have intended to bind their successors in interest; (4) there must be vertical privity of estate, i.e., privity between the original parties to the covenant and the present disputants; and (5) there must be horizontal privity of estate, or privity between the original parties.

Leighton v. Leonard, 22 Wash.App. 136, 139, 589 P.2d 279 (1978).

Tydings argue the covenant against antennas fails to satisfy the first criterion, because the CC & R's are not enforceable against the developer, and the developer was an original party. Tydings rely on Article VIII, § 1(b), which provides:

Notwithstanding any provision of this Declaration, no action taken by Developer to develop the properties in accordance with the Development Plan shall require the approval of the ACC.

The argument is not well taken. Article XIV, § 1 provides:

All present and future owners or occupants of dwelling units shall be subject to and shall comply with the provisions of this Declaration, and the By-Laws and rules and regulations of the Association, as they may be amended from time to time.

Article I, § 16 defines "owner" as "every person or entity, including Developer, which is a record owner of the fee simple title to any dwelling unit...." Thus, when the developer is acting in the capacity of an owner, it is bound by the CC & R's to the same extent as every other owner.

Tydings also argue that the covenant against antennas fails to satisfy the second criterion of Leighton. Essentially, they say the covenant does not benefit any piece of land within the subdivision.

Again, the argument is not well taken. Leighton's second criterion requires evidence that a burden "touches and concerns" the land. A covenant touches and concerns the land when, by restricting the use of one parcel, it enhances the value of another. Leighton, 22 Wash.App. at 139, 589 P.2d 279; see Seattle v. Fender, 42 Wash.2d 213, 254 P.2d 470 (1953); Bremmeyer Excavating, Inc. v. McKenna, 44 Wash.App. 267, 269, 721 P.2d 567 (1986). Here, the covenant against antennas restricts use of all lots in order to improve the appearance of each lot. This operates for the benefit of each lot, and we conclude that Leighton's second criterion is met.

Leighton's remaining criteria have not been put in issue. Thus, the covenant against antennas constitutes a covenant running with the land.

II.

We next consider whether the...