Normandy Square Ass'n, Inc. v. Ells, 81-666

• Decision Date: 10 December 1982
• Docket Number: No. 81-666,81-666
• Parties: NORMANDY SQUARE ASSOCIATION, INC., et al., Appellees, v. Elma M. ELLS, Appellant.
• Court: Nebraska Supreme Court

Page 101

327 N.W.2d 101

213 Neb. 60

NORMANDY SQUARE ASSOCIATION, INC., et al., Appellees, v. Elma M. ELLS, Appellant.

No. 81-666.

Supreme Court of Nebraska.

Dec. 10, 1982.

Syllabus by the Court

Restrictive Covenants. Where powers are granted to a committee to approve or disapprove the erection of a fence based on a standard of whether it conforms to the harmony of external design and location in relation to surrounding structures, such a standard, per se, is not ambiguous and, in proper circumstances, it is enforceable, provided that the authority is exercised reasonably within the framework of the covenant purposes. Such rule is to be applied on a case-by-case basis.

Terry K. Barber of Johnston, Barber & Wherry, Lincoln, for appellant.

Barlow, Johnson, DeMars & Flodman, Lincoln, for appellees.

Heard before KRIVOSHA, C.J., HASTINGS, and CAPORALE, JJ., and RIST, District Judge, and COLWELL, District Judge, Retired.

COLWELL, District Judge, Retired.

Defendant, Elma M. Ells, appeals from a mandatory injunction requiring relocation of a fence she built contrary to restrictive covenants and the approval of plaintiff Normandy Square Association, Inc. (Association).

The Association includes all owners of housing units in the Normandy Square addition to Lincoln, Nebraska. Pursuant to restrictive covenants, defendant made application to build a new fence on her property, Lot 11, Block 4. Upon review by the Association's architectural committee (committee) changes were required and conditional consent was given. Defendant disregarded the restrictions and constructed the fence as she had proposed. This suit followed. Upon trial, plaintiff Hassan Sharifi was the only witness; defendant offered no evidence. After a personal inspection, the trial judge found for the plaintiffs, ordering the specific location of the fence, including a 25-foot setback from the street and enclosure of the utility box. Defendant appeals, assigning as error, considered together, (1) the covenants were vague and ambiguous, and (2) they were arbitrarily applied.

The only issue here is whether article VII of the corporate "Declaration of Covenants, Conditions and Restrictions" is enforceable. It reads in part as follows:

"Architectural Control

"No building, fence, wall or other structure shall be commenced, erected or maintained upon the property, nor shall any exterior additions to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall be submitted to and approved in writing as to the harmony of external design and location in relation to the surrounding structures and topography by the directors of the Association, or by an architectural committee composed of three or more representatives appointed by the board."

Defendant's application was to build a 6-foot stockade-type fence beginning about 5 feet from her south front lot line, running thence west 7 feet, thence north along the west side of her residence 111 feet, thence east 35 feet, thence south 6 feet, and east 5 feet (to exclude a metal utility box), and thence south 23 feet to the midpart of the dwelling.

Within a few days the committee considered the application, and on December 8, 1980, approved the application with changes, material here, that the fence must commence 25 feet north from the south lot line; on the north, it must run straight east on the lot line, so that the utility box was south of the fencing; and "Should you desire during the winter to put up a temporary removable snow fence on the front twenty-five feet on the west, we see no objection to that." The approval was personally delivered to defendant by Sharifi, the Association's secretary. It appears defendant understood the approval, but said "she wanted the fence and it was her property"; also, she had indicated that one purpose for the fence at the front was for protection from drifting snow.

Defendant contends Ross v. Newman, 206 Neb. 42, 291 N.W.2d 228 (1980), is dispositive here. We do not agree. Ross turns on the lack of a standard for "alteration." Here, the structure in question is a fence, which requires no further description or standard. Defendant understood the restriction, as shown by her application.

The record does present the question of whether or not the powers of the committee are ambiguous and enforceable. These issues are fully discussed in the...