Sandy Point Improvement Co. v. Huber, 7271-4-I
| Decision Date | 02 June 1980 |
| Docket Number | No. 7271-4-I,7271-4-I |
| Citation | 613 P.2d 160,26 Wn.App. 317 |
| Parties | SANDY POINT IMPROVEMENT COMPANY, a Washington Corporation, Respondent, v. Leonard F. and Delores HUBER, husband and wife, Appellants. |
| Court | Washington Court of Appeals |
Gary M. Rusing, Rusing & Platte, Bellingham, for appellants.
Lawrence B. Daugert, Brett, Brinn, Daugert & Erickson, Bellingham, for respondent.
Plaintiff Sandy Point Improvement Company was granted a permanent injunction enjoining defendants Leonard and Delores Huber from constructing a building on the Hubers' property. We affirm.
The Hubers purchased two adjoining lots within the Sandy Point Heights development in Whatcom County. On one of the lots they started construction of a storage building to store their boats, car, tractor, camper, 32-foot travel-trailer, washer and dryer, rock-cutting equipment and canned goods. The Declaration of Restrictions, Easements and Reservations of Sandy Point Heights read in relevant part:
Except for portions of the real property as may be used for recreational purposes or common service facilities by Sandy Point Improvement Company, a Washington Corporation, no lot in the plat of Sandy Point Heights shall be used for any purpose other than for residential purposes . . .
(Italics ours.) The trial judge found that the storage building was not for residential purposes and enjoined further construction.
The Hubers first contend Sandy Point should be estopped from enforcing the covenant against them because it had allowed construction of similar structures on other lots within the development. We do not agree.
If a covenant which applies to an entire tract has been habitually and substantially violated so as to create an impression that it has been abandoned, equity will not enforce the covenant. Reading v. Keller, 67 Wash.2d 86, 406 P.2d 634 (1965); Mt. Baker Park Club, Inc. v. Colcock, 45 Wash.2d 467, 275 P.2d 733 (1954). However, the applicability of estoppel is a question of fact. Bersos v. Cape George Colony Club, 4 Wash.App. 663, 484 P.2d 485 (1971).
The Hubers attempted to show four instances in which similar buildings had been constructed in Sandy Point Heights, which consisted of over 1,000 lots. However, an examination of the record discloses that one of the buildings in question was not actually on the development property; another was used as a service building for maintaining the golf course and was permitted. Two other buildings were built without permission of the Sandy Point development committee. However, during the pendency of this litigation, attempts were being made to require their removal.
The trial judge found that:
There may be one or two buildings similar to that proposed by the Defendants in the 1000 lot development as a whole, but they are each smaller than the Defendants' proposed structure, and have never been authorized by the Plaintiff, with exception of the golf course storage building.
Finding of fact No. 8. Because that finding is supported by substantial evidence, it will not be disturbed on appeal. Grayson v. Nordic Constr. Co., 92 Wash.2d 548, 599 P.2d 1271 (1979); Beeson v. Atlantic-Richfield Co., 88 Wash.2d 499, 563 P.2d 822 (1977). That finding in turn supports the trial judge's conclusion that "(t)he Defendants have not proved the elements of estoppel." Conclusion of law No. 3.
The Hubers next contend the building did not violate the restrictive covenant because it was not intended to be used for any purposes other than residential. The trial judge found that "(t)he Defendants' building plan, given its size and purpose, is not consistent with any reasonable interpretation of residential use." Finding of fact No. 7. We conclude the finding is supported by substantial evidence.
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