Valenti v. Hopkins

• Decision Date: 26 October 1994
• Docket Number: CV-0323-TM
• Citation: 883 P.2d 882,131 Or.App. 100
• Parties: John G. VALENTI and Margaret M. Valenti, Appellants-Cross-Respondents, v. Benjamin T. HOPKINS and Susan Hopkins, Respondents-Cross-Appellants. 90; CA A74166.
• Court: Oregon Court of Appeals

Page 882

883 P.2d 882

131 Or.App. 100

John G. VALENTI and Margaret M. Valenti, Appellants-Cross-Respondents, v. Benjamin T. HOPKINS and Susan Hopkins, Respondents-Cross-Appellants.

90CV-0323-TM; CA A74166.

Court of Appeals of Oregon.

Argued and Submitted July 16, 1993.

Decided Oct. 26, 1994.

James E. Mountain, Jr., Salem, argued the cause for appellants-cross-respondents. With him on the reply brief were Milo R. Mecham and Harrang Long Watkinson Laird & Rubenstein, P.C. On the opening brief was James W. Walton.

Barry L. Adamson, Portland, argued the cause for respondents-cross-appellants. With him on the briefs was Michael W. Peterkin, Bend.

Before ROSSMAN, P.J., and LANDAU and LEESON, JJ.

LANDAU, Judge.

This is an action to enforce restrictive covenants in a residential subdivision. Plaintiffs appeal from the trial court's denial of their request for injunctive relief requiring defendants to move or modify their house so as not to obstruct plaintiffs' view of the mountains. Defendants cross-assign error to the trial court's failure to dismiss plaintiffs' action. They also cross-appeal, contending that the award of attorney fees is inadequate.

In 1988, plaintiffs purchased their two-story home in the West Ridge Subdivision in Deschutes County. Located on a ridge, the subdivision lots have views of the Cascade mountains to the west and the Paulina and Ochoco mountains to the east. Plaintiffs' lot is on the east side of West Ridge Avenue. At the time they purchased their house, there were restrictive covenants applicable to the subdivision. One of those covenants prohibited the construction of improvements that materially restricted the view of "other lot owners." Plaintiffs had an unimpeded view in all directions.

In 1989, the subdivision lot owners adopted "amended covenants" that controlled, among other things, the design of newly constructed homes. Article I of the amended covenants provides for the creation of an "Architectural Control Committee" (the committee):

"(A) An Architectural Control Committee is hereby established. This Committee shall consist of three (3) lot owners with the selection being made by an annual vote of all then [sic ] lot owners to be held on or about May 1st of each year, with each lot owner entitled to one vote regardless of the number of lots owned. * * *

"(B) Generally, the Committee will be responsible for approval of plans and specifications of private areas and for promulgation and enforcement of its rules and regulations governing the use and maintenance of private areas and improvements thereon.

" * * * * *

"(D) Neither the Architectural Control Committee nor any member thereof shall be liable to any lot owner for any damages, loss or prejudice suffered or claimed, on account of any action or failure to act of the Committee, or a member thereof, provided only that the member, in accordance with actual knowledge possessed by him/her, has acted in good faith.

"Section 2. Architectural Control Committee Consent.

"Consent of the Architectural Control Committee is required for all new construction, exterior remodel, landscaping, and any major improvements upon the lot. In all cases, the following provisions shall apply:

"(A) Materials Required to be Submitted.

" * * * * *

"When construction is approved, the Architectural Control Committee will stamp 'APPROVED' on one set of plans and retain the second set. There will be no alteration in plans or construction without Architectural Control Committee approval.

"(B) Architectural Control Committee Discretion and Guidelines.

"The Architectural Control Committee may at its discretion withhold consent with respect to any proposal which the Committee finds would be inappropriate for the particular lot or would be incompatible with the neighboring homes and terrain within West Ridge Subdivision. Considerations such as size, height, color, design, view, effect on other lots, disturbance of existing terrain and vegetation, and any other factor which the Committee reasonably believes to be relevant, may be taken into account by the Committee in determining whether or not to consent to any proposal." (Emphasis supplied.)

Article II of the amended covenants lists restrictions on use of property, and includes provisions regarding maintenance of lots, types of residences, temporary structures, appearance, commercial or offensive activities, animals, motorized vehicles, parking, firearms, sale of subdivision sections, and compliance with laws and regulations regarding fire protection, construction, water sanitation and public health.

Article III of the amended covenants states architectural rules. Section 4 deals with the subject of view and building height:

"The height of improvements or vegetation and trees on a lot shall not materially obstruct the view of adjacent lot owners. The Architectural Control Committee shall judge the suitability of such heights and may impose restrictions. If the Architectural Control Committee determines there is such obstruction of view of adjacent lot owners, written notice shall be delivered to the offending owner. If, after 30 days the improvement, vegetation or trees are not removed or reduced in height, as approved by the Architectural Control Committee, the Committee shall arrange to have the removal or reduction completed, charging the owner of the lot the reasonable costs for work done. * * * " (Emphasis supplied.)

Article IV contains "general provisions," among them Section 2, which provides, in part:

"Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any Covenants either to restrain violation or to recover damages and may be brought by any owner in the subdivision. In the event that suit or action is initiated, the prevailing party shall be entitled to recover all costs and reasonable attorney's fees incurred in such action."

In early 1990, defendants purchased the lot immediately to the west of and across the street from plaintiffs' home. In March, 1990, they submitted to the committee their house design proposal, which called for the construction of a two-story log home. Plaintiffs were aware of the design and objected to it on the ground that it would block their view of the Three Sisters and Broken Top mountains. A member of the committee visited with plaintiffs to discuss defendants' proposal. Plaintiffs understood that their view from the first floor would be blocked by any house built on defendants' lot; they expected the committee to protect the view from their second floor.

The committee rejected defendants' design proposal, but for reasons not relating to view. In April, 1990, defendants submitted a second proposal. Again, the design called for the construction of a two-story log home. The committee approved the proposal without imposing a height restriction. Defendants later decided that they would rather build a "stick-frame" house of the same basic design. The committee approved defendants' revised plans in August, 1990.

In its consideration of defendants' house design, the committee discussed and examined various approaches that might have diminished the house's impact on plaintiffs' westerly view. The committee expressly considered the options of placing a restriction on the height of defendants' house, of requiring them to locate the house on a different part of the lot, of requiring them to excavate the lot, or of creating staggered set backs. Each option was rejected based on perceived countervailing considerations. The committee expressly declined to withhold its consent to the design on the ground that the proposed design materially obstructed plaintiffs' view. It reasoned that plaintiffs' view was intended to be to the east, and that plaintiffs had no protected western view. The committee advised plaintiffs that their western view could be enjoyed while it was there, but that it was not subject to protection. Because it concluded that plaintiffs had no protected western view from the front of their home, the committee did not consider it significant that defendants' house materially obstructed their western view.

After the committee's decision, defendants began construction of their home. Within a week, plaintiffs filed this lawsuit, seeking injunctive relief and specific performance of the covenants. Defendants completed the construction of their home during the pendency of this lawsuit. The trial court found for defendants, concluding that the committee had not acted unreasonably in approving defendants' plans.

On appeal, plaintiffs argue that the trial court erred in failing to conclude that defendants breached the restrictive covenants that prohibit the erection of structures that materially obstruct the view from an adjacent lot. Defendants argue that the trial court reached the correct conclusion. In their cross-assignment, defendants argue that the trial court should not even have allowed the case to go to trial. According to defendants, plaintiffs' claim is legally defective because it is not directed against the committee itself as a challenge to the reasonableness of its decision.

We first dispose of defendants' argument on its cross-assignment. The restrictive covenants provide that their enforcement

"shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any Covenants either to restrain violation or to recover damages and may be brought by any owner in the subdivision."

The property owners, not the committee members, are the parties to the covenants, and they are the "persons" against whom the covenants may be enforced "by proceedings at law or in equity." The amended covenants provide, in fact, that the committee shall not be liable to any lot owner for any loss suffered on account of a good faith act or failure to act of the committee. That further indicates the intention of the parties...