Rock Lake Estates Unit Owners Ass'n, Inc. v. Township of Lake Mills
| Decision Date | 15 June 1995 |
| Citation | 195 Wis.2d 348,536 N.W.2d 415 |
| Parties | ROCK LAKE ESTATES UNIT OWNERS ASSOCIATION, INC., Plaintiff-Respondent, v. TOWNSHIP OF LAKE MILLS, Defendant, DeLoris E. McLay, Defendant-Third Party Plaintiff-Appellant, d Carolyn R. Farrell-Campbell, John E. Campbell, William R. Avery, Patricia M. Avery, Wayne E. Elliott, Delores C. Elliott, Harold Heitz, Margaret Heitz, Edward J. Thompson, June M. Thompson, Peter H. Boer, Janice M. Boer, Martin G. Lira, Robert D. Nelson, Lois P. Nelson, Eugene Lauritzen, Mary Lauritzen, Leroy E. Sobania, Bonnie J. Sobania, John A. McInnis, Jacqualin Schenck, Mary Ann I. Spangler, Clifford R. Roach, Joan R. Roach, Ruth M. Berthold, Jean E. Swanson, Marcelo A. Peinado, Judith L. Peinado, Laura M. Schroeder, Roy T. Lacey, James G. Gates, Georgiana Gates, First American Bank & Trust Co., as Co-Trustee of the Baumann Management Trust, Edward J. Dobbratz, Janet E. Dobbratz, Alfred W. Marshall, Geraldine M. Marshall, Emil Patrick, Dawn A. Lira, Third-Party Defendants. 94-2488. |
| Court | Wisconsin Court of Appeals |
For the defendant-third party plaintiff-appellant the cause was submitted on the briefs of Chris J. Trebatoski and Paul E. Benson of Michael, Best & Friedrich of Milwaukee.
For the plaintiff-respondent the cause was submitted on the brief of John H. Short of Vance, Wilcox, Short & Ristow, S.C., of Fort Atkinson.
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
This appeal involves a dispute between the Rock Lake Estates condominium owners' association and one of its members, DeLoris McLay, who is also the condominium's developer. The association commenced the action when, several years after creating the condominium, McLay attempted to expand it. The trial court granted the association's motion for summary judgment declaring McLay's actions illegal under the Condominium Ownership Act, ch. 703, STATS., and the original condominium declaration, and McLay appeals.
The issues are whether the trial court erred as a matter of law in determining that: (1) McLay failed to qualify Rock Lake Estates as an "expanding condominium" within the meaning of § 703.26, STATS., 1 so as to allow its expansion; (2) McLay's attempted dedication of a roadway over condominium lands to gain access to an adjacent parcel of property was void; and (3) McLay had failed to establish her entitlement to an easement for access to her property. All are questions of law, involving either the interpretation of contract provisions or the interpretation and application of statutory and case law to the facts. As a result, our review is de novo. Dippel v. Wisconsin Patients Compensation Fund, 161 Wis.2d 854, 858, 468 N.W.2d 789, 791 (Ct.App.1991). We affirm the judgment.
The basic facts are not in dispute. 2 In 1983, McLay created the condominium 3 on a parcel of land she owned in Jefferson County by subjecting the property to a condominium declaration under ch. 703, STATS. A condominium is created by filing a declaration with the register of deeds in the county in which the land is located. Section 703.07(1), STATS. Pursuant to § 703.09(1), STATS., the declaration is to contain, among other things, a description of the condominium lands showing the intended units and common areas, together with other specified information about the project and the rights and interests of persons purchasing the units. A declaration may be amended only upon the written consent of at least two-thirds of the unit owners (or such greater percentage as may be stated in the declaration). Section 703.09(2).
Of particular import in this case is § 703.26, STATS., which governs expansion of condominiums. If a developer wishes to expand the condominium beyond its initial size at some time in the future, he or she may include in the condominium declaration a reservation of expansion rights for a period not to exceed ten years. Section 703.26(2)(d). In order for the project to be considered an "expanding condominium" under the statute, the declaration must, among other things, state the maximum number of units that may be added in the future and include a general outline of the land, buildings and common areas that may be added. Section 703.26(2)(b) and (c).
The condominium declaration filed by McLay in 1983 described the condominium as beginning with an initial "phase" consisting of four buildings. One, labeled "Building A," was to contain five units, and each unit in the building was described in detail. This portion of the declaration also stated: "Additional buildings shall contain five ... or more units." An attachment to the declaration contained floor plans for Building A, as well as descriptions of the condominium's common areas. A provision in the declaration entitled "Phased Development; Easements; Reservations" stated that McLay "shall from time to time subject additional residential property (approximately 23.5 acres) to development as condominiums and common areas (in the amount of 26 buildings)." 4
In May 1983, McLay and the then-unit owners signed an amendment to the declaration adding a plan for the construction of piers on the property, limited by the county zoning administrator to "130 boat slips if the condominium project proceeds to its full extent." In December 1984, McLay and the owners filed a second amendment, limited to matters of property insurance.
In July and October 1987, McLay filed a plat amendment showing an area of "Expandable Condominium Lands" and an overall "Site Development Map" outlining plans for future buildings and public roadways within the lands and describing the original declaration as "the property in which the condominium is located." The documents were filed by McLay alone, without the unit owners' signatures. Then, in September 1991, McLay dedicated a roadway within these lands to the Town of Lake Mills in order to provide access to a parcel of property adjacent to the condominium area.
Finally, on March 19, 1993, again without the approval of the unit owners, McLay filed a purported "third amendment" to the declaration stating her intention to expand the condominium to a total of 128 units in twenty-four buildings. She also filed a legal description which she claimed to represent the "original expansion real estate."
The condominium owners' association then brought this action seeking a declaration that the project was not an "expanding condominium" within the meaning of § 703.26, STATS., that McLay's attempted road dedication was invalid and that she was not entitled to an easement over condominium lands to reach her adjacent property. The trial court agreed and granted the association's motion for summary judgment.
McLay acknowledges that her initial declaration instruments "do not strictly conform to the requirements of [§ 703.26, STATS.]" She argues, however, that her "substantial conformity" to the statutory requirements should be sufficient to establish the project as an "expanding condominium." Failing that, she contends that the third amendment to the condominium declaration meets all the criteria of § 703.26. We disagree in both instances.
McLay begins her "substantial compliance" argument by referring us to § 703.30(2), STATS., which provides as follows:
The provisions of any condominium instruments and bylaws filed under this chapter shall be liberally construed to facilitate the creation and operation of the condominium. So long as the condominium instruments and bylaws substantially conform with the requirements of this chapter, no variance from the requirements shall affect the condominium status of the property in question nor the title of any unit owner to his or her unit, votes and percentage interests in the common elements and in common expenses and common surpluses.
First, as the association points out--and as the trial court ruled--the statute, on its face, deals with variances from the statutory requirements relating to "the condominium status of the property" and the title of unit owners. Its direction that the statutes be liberally interpreted is geared toward "facilitat[ing] the creation and operation of the condominium." We agree with the association that the issues raised by McLay relate to the project's status as an "expandable condominium" and affect neither its status or operation as a condominium nor the unit owners' title.
Nor do we think McLay's reliance on an Oregon case, Dickey v. Barnes, 268 Or. 226, 519 P.2d 1252 (1974), warrants the result she seeks here. She points to language in Dickey indicating that a failure to strictly follow the Oregon statutory procedures for forming a condominium was not fatal to the project's condominium status, because to hold otherwise would result in "defeating the original intention of the parties...." Id., 519 P.2d at 1254. That is, of course, the effect of § 703.30(2), STATS., and nothing in McLay's reference indicates that the Dickey court was concerned with anything other than the condominium status of the project, or that the case involved any question of an "expandable condominium" (assuming Oregon has such a statute). Even considering McLay's "substantial compliance" argument point by point, it fails.
As noted above, McLay's original condominium declaration described the project as encompassing her entire lands. She asks us to "disregard" that description as a mere "scrivener's error" and to construe (or reform) the declaration to reflect only a portion of that property. She does not point us to any portion of the record for evidence to substantiate her "scrivener's error" assertion, however. 5 Instead, she asks us to infer a drafting lapse from the following premise, which she constructs in her brief: if the declaration covered all the land, then all land not specifically assigned to the described...
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