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Homeowners Ass'n v. Witrak, 61 Wn. App. 177, 810 P.2d 27 (1991)
May 1991 HOMEOWNERS ASS'N v. WITRAK 177
61 Wn. App. 177, 810 P.2d 27
[No. 25506-1-I. Division One. May 6, 1991.]
THE LAKES AT MERCER ISLAND HOMEOWNERS ASSOCIATION,
Appellant, v. BONNIE WITRAK,
ET AL, Respondents.
[1] Covenants -- Construction -- Intent of Parties. Restrictive
covenants are interpreted in conformity with the intent of the parties. A
court must determine what the parties intended to accomplish by the
covenant.
[2] Covenants -- Construction -- Plain Meaning. A restrictive
covenant should not be interpreted so as to defeat the plain and
obvious meaning of the restriction.
[3] Covenants -- Construction -- Conflict Between Property
Owners. A restrictive covenant that creates a conflict between property
owners should be interpreted so as to protect the property owners'
collective interests.
[4] Contracts -- Construction -- Extrinsic Evidence -- Context
Rule. Contractual words are construed in the context of (1) the subject
matter and objective of the contract, (2) the surrounding
circumstances, (3) the subsequent conduct of the parties, and (4) the
reasonableness of the parties' conflicting interpretations.
[5] Covenants -- Construction -- "Fence" -- What Constitutes
-- Trees. For purposes of a restrictive covenant regulating fences that
delineate lot lines, a row of trees planted along a property line may
constitute a "fence."
Nature of Action: A homeowners association sought to
require a property owner to remove 12 Douglas fir trees planted slightly
inside the property line. A restrictive covenant required the
association's approval for fences, walls, or shrubs that delineate lot
lines.
Superior Court: The Superior Court for King County,
No. 88-2-17983-2, Edward Heavey, J., on December 22, 1989, granted
a summary judgment in favor of the property owner.
Court of Appeals: Holding that unresolved factual
issues remained regarding whether: (1) the trees constitute a "fence"
or "shrubs," (2) the trees were part of the property owner's previously
rejected remodeling plan, and (3) the association had waived its right
to enforce the convenant, the court reverses the judgment.
H. Michael Fields, for appellant.
Stephen O. Kenyon, for respondents.
FORREST
FORREST, J.-The Lakes at Mercer Island Homeowners
Association (Homeowners) appeals the trial court's grant of summary
judgment, arguing that issues of fact were presented relating to Bonnie
Witrak's compliance with provisions of the Homeowners Declaration of
Covenants, Conditions and Restrictions (CCR). We reverse.
Bonnie Witrak and Tom Gumprecht live in a residential subdivision
located on Mercer Island, known as "The Lakes at Mercer Island" (The
Lakes). In spring of 1987, John and Maryann Deming began
construction on the lot adjacent to Witrak. In May 1987, Witrak planted
55 pyramidalis trees on her property to screen her property from the
Demings. She did not seek the approval of the Homeowners
Architectural Control Committee (ACC), nor was it required. She then
built a 6-foot fence on the lot line between the two properties. Prior to
construction, Witrak had sought and obtained ACC approval to build
the fence pursuant to article 2, section 8 of the CCR.
In January 1988, Witrak hired an architect to design an addition to her
home. In July 1988, she submitted the architect's plans to the ACC. It
denied approval of the addition by letter dated August 15, 1988. Witrak
requested that the ACC reconsider. It refused. A meeting between
Witrak, the ACC and the Homeowners board of directors on September
19, 1988, did not change the ACC's decision.
On September 23, 1988, workers began excavation on Witrak's
property. By September 25, 1988, they had planted a row of 12
Douglas fir trees, each between 25 and 30 feet in height immediately
adjacent to the Witrak/ Deming boundary line. On September 26,
Witrak renewed her request for approval of the proposed addition. The
May 1991 HOMEOWNERS ASS'N v. WITRAK 179
61 Wn. App. 177, 810 P.2d 27
ACC again refused to allow the remodel; it also claimed the trees were
planted in violation of the CCR and referred the matter to the Board.
Witrak refused to remove the trees. The Board filed suit on October 18,
1988, seeking an order that the trees be removed. Both parties moved
for summary judgment. On December 22, 1989, the trial court held that
there were no material facts in dispute and concluded, as a matter of
law, that the language of the CCR did not prohibit the trees. The
Homeowners motion for reconsideration was denied. This appeal
followed.
After reading the relevant provisions of the CCR the trial court
concluded as a matter of law that the trees did not constitute a wall or
fence. The material portion of article 2, section 8 of the CCR states:
Landscaping and Fencing. . . . Fences, walls or shrubs are permitted to
delineate the lot lines of each lot, subject to Architectural Control
Committee approval, . . .. In any event, no fence erected within the
subdivision shall be over six feet (6') in height. No barbed wire, chain
link or corrugated fiberglass fences shall be erected on any lot. All
fences, open and solid, are to meet the standards set by the
Architectural Control Committee and must be approved by the
Committee prior to construction.
[1] While restrictive covenants were once disfavored by
the courts, upholding the common law right of free use of privately
owned land, modern courts have recognized the necessity of enforcing
such restrictions to protect the public and private property owners from
the increased pressures of urbanization. /1 The primary objective in
interpreting restrictive covenants is to determine the intent of the
parties to the agreement. /2
---------------
1 Thayer v. Thompson, 36 Wn. App. 794, 796-97, 677 P.2d 787,
review denied, 101 Wn.2d 1016 (1984).
2 Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d
68 (1965); Hagemann v. Worth, 56 Wn. App. 85, 782 P.2d 1072
(1989); Thayer v. Thompson, 36 Wn. App. at 796; Fairwood Greens
Homeowners Ass'n, Inc. v. Young, 26 Wn. App. 758, 614 P.2d 219
(1980); Foster v. Nehis, 15 Wn. App. 749, 551 P.2d 768 (1976), review
denied, 88 Wn.2d 1001 (1977).
180 HOMEOWNERS ASS'N v. WITRAK May 1991
61 Wn. App. 177, 810 P.2d 27
We agree with the reasoning expressed by the Missouri
Court of Appeals in Thomas v. Depaoli /3 that the clear intent of a
restrictive covenant is determined by the purposes sought to be
accomplished by the covenant. The Thomas court determined that a
fence which obstructed the view of neighbors was a "building" as
contemplated in a setback restriction. /4 This reasoning is consistent
with prior Washington law. In Foster v. Nehls /5 the court declined to
specifically define "one and one-half stories in height", opting instead
to determine the purpose of the restriction and enjoin the building of a
structure that obstructed a neighbor's view.
[2, 3] Witrak suggests the courts must adopt literal definitions for the
words of a covenant, claiming restrictive covenants should be "strictly"
construed. While it is true that the courts should not give a covenant a
broader than intended application, it is well settled that a covenant
should not be read in such a way that defeats the plain and obvious
meaning of the restriction. /6 Witrak also contends that any doubts
regarding the interpretation of the covenants should be resolved in her
favor. /7 While such a rule may have some validity when the conflict is
between a homeowner and the maker of the covenants, it has limited
value when the conflict is between homeowners. /8 In such a
---------------
3 778 S.W.2d 745, 748 (Mo. Ct. App. 1989).
4 The Thomas court cited the following: "The marked
tendency of the courts is to give effect to the intention of the parties,
and, in so doing, to extend the meaning of the term to cover structures
that ordinarily would not fall within the strict definition of the word."
Thomas, at 748, quoting 26 C.J.S. Deeds SS 164(1), p. 1108 (1956).
5 15 Wn. App. 749, 750, 551 P.2d 768 (1976).
6 Fairwood Greens, at 762.
7 See Fairwood Greens, at 761-62.
8 The Homeowners Association in this case is made up of
other homeowners and clearly reflects objections by Witrak's neighbors.
May 1991 HOMEOWNERS ASS'N v. WITRAK 181
61 Wn. App. 177, 810 P.2d 27
case the court should place special emphasis on arriving at an
interpretation that protects the homeowners' collective interests.
[4] The trial court appears to apply a "plain meaning" interpretation of
the covenants. However, this decision was made prior to the Supreme
Court holding in Berg v. Hudesman /9 rejecting such analysis in favor
of the "context rule". In Berg the Supreme Court recognized that even
the most ordinary words are only understood in the context of the
surrounding document, the subject matter and objective of the
contract, the surrounding circumstances, the subsequent acts and
conduct of the parties, and the reasonableness of the respective
interpretations of the contract. /10 The wooden fence previously built
by Witrak was approved because it did not block the Demings' light or
view. Witrak's proposed remodel was denied because it would
adversely affect the neighbors' "outlook". It is only after such
considerations that the language can be interpreted to arrive at the
intent of the parties. Of particular interest to this case is the Berg
court's emphasis on rejecting interpretations that are unreasonable
and imprudent and accepting those which make the contract
reasonable and just. /11
The overall purpose of the CCR seems clear: protect the aesthetic
harmony of the community, preserve an open natural appearance, and
maintain the view and light of each property owner. Adopting a
definition of "fence" as excluding trees and being limited only to a
structure frustrates the purpose of the covenants. Article 2, section 8
specifically cites height, placement and appearance as primary factors
to ACC approval of fences. In view of the
---------------
9 115 Wn.2d 657, 801 P.2d 222 (1990).
10 Berg, 115 Wn.2d at 666-67. This reasoning is
consistent with rules of statutory interpretation that words which are
capable of various meanings are best understood in a given case from
the context in which it is used. See Moran v. Washington Fruit &
Produce, 60 Wn. App. 548, 555, 804 P.2d 1287 (1990).
11 Berg, at 672.
182 HOMEOWNERS ASS'N v. WITRAK May 1991
61 Wn. App. 177, 810 P.2d 27
overall purposes and the specific control of "fences, walls and shrubs"
delineating a boundary, it is almost inconceivable that the developer
had any actual intent to allow a row of trees immediately adjacent to a
property line without any control. If such is the meaning, it surely was
not deliberate.
[5] Contrary to Witrak's contention, even the literal meaning of "fences"
does not exclude a row of trees along a property line. A common and
ordinary meaning of "fence" is "a barrier", Webster's Third New
International Dictionary 837 (1969), or "[a] hedge, structure, or
partition, erected for the purpose of inclosing a piece of land, or to
divide a piece of land . . . or to separate two contiguous estates."
Black's Law Dictionary 745 (4th ed. 1968). These definitions preclude a
summary judgment that trees may under no circumstances constitute a
fence.
Witrak urges the court to reject as a matter of law the notion that
fences may be naturally grown because it is not expressly provided for
in the covenant. We are not persuaded. Normally, a property owner
can plant a row of trees or other foliage to create a barrier between two
contiguous pieces of property. Such "fencing" occurs on a regular
basis. Prior courts have recognized that planting large bushy trees
close together along a property line is indeed a "fence." /12 Shrubs
performing the role of a fence in delineating property lines are
expressly subject to ACC control. The difference between a "shrub"
and a "tree" seems to be primarily botanical rather than functional. /13
What is the
---------------
12 Clyde Hill v. Roisen, 111 Wn.2d 912, 767 P.2d 1375 (1989) (While
the court was discussing a city fence ordinance that specifically defined
"naturally grown fences", the court recognized that absent the legal
definition, the trees were "factually" a fence. This discussion clearly
indicates that it is not a strained interpretation of the covenant to
include naturally grown barriers as a "fence".).
13 Webster's New World Dictionary 1351 (college ed. 1968)
defines "shrub" as "a bushy, woody plant with several permanent stems
instead of a single trunk", while a "tree" is "a woody perennial plant with
one main stem or trunk which develops many branches . . . 2. a treelike
bush or shrub . . .". Webster's, at 1552.
May 1991 HOMEOWNERS ASS'N v. WITRAK 183
61 Wn. App. 177, 810 P.2d 27
difference for these purposes between a line of 15-foot cedar trees
and line of 15-foot laurel shrubs? Given the covenant's clear concern
with height and obstruction of neighbors' light and view, it would be a
strange reading indeed that would require prior approval of relatively
low shrubbery delineating a lot line but allow a property owner to plant
large trees along the same lot line without ACC approval. Clearly the
language cannot be interpreted as a matter of law to require such a
result.
Witrak contends that since trees are expressly referred to in other
sections of the CCR limiting their placement they may not be
considered a fence. This argument is unpersuasive. The sections
specifically dealing with trees address other concerns and do not limit
the interpretation that should be given to article 2, section 8. Also
unpersuasive is Witrak's argument that the trees do not delineate the
lot line. The fact that the trees are slightly inside the legal boundary
and there is a wooden fence on the boundary is immaterial. The trees
are planted in such a manner that visually they mark the property line
which makes it impossible to say as a matter of law that they do not
delineate the lot line. /14
The Homeowners also argue that the trees should be considered part
of Witrak's remodel plans and require prior ACC approval pursuant to
article 7, section 5. /15 Witrak asserts that the trees were planted in
response to her longstanding concern for privacy and were totally
independent of the remodeling plan. This claim seems disingenuous
---------------
14 The weakness of Witrak's position became clear during oral
argument when counsel was given the hypothetical removal of the
6-foot wooden fence. Under Witrak's theory the trees would then
unquestionably delineate the lot line.
15 Article 7, section 5 reads in pertinent part:
"All plans and specifications required to be submitted
to the Committee shall . . . set forth the following with respect to the
proposed structure: the elevation of the structure with reference to the
existing and finished lot grade; the general design, the interior layout;
the exterior finish materials and color including roof materials; *the
landscape plan*; and such other information . . .." (Italics ours.)
184 HOMEOWNERS ASS'N v. WITRAK May 1991
61 Wn. App. 177, 810 P.2d 27
considering the timing of planting the trees promptly following rejection
of her remodel plans and their resubmission the following day. The
claim is even less credible given Witrak's letter to the Homeowners
suggesting the trees "improved" the planned remodeling and
eliminated the basis for objection. Apparently Witrak assumed that
since the trees obstructed the Demings' view and light just as the
proposed remodel would have, the remodel should be allowed.
Whether the trees are a part of the remodeling plan presents an issue
of fact. /16
While treating the trees as a "fence" or "shrubs" subject to ACC
approval seems more harmonious with the overall purposes of the
covenants, it remains an issue of fact to be determined after
consideration of all relevant evidence. In addition, Witrak's claim that
the pertinent covenants have been waived is a possible defense to this
action that is yet to be litigated. /17
Therefore this matter is returned for a trial on the merits. The award of
attorney fees will abide the outcome of the trial.
GROSSE, C.J., and KENNEDY, J., concur.
---------------
16 Given our decisions regarding article 2, section 8 and article 7,
section 5, it is unnecessary to determine if the trees also amount to
"improvements" under article 7, section 6. Although a broad definition
of "improvements' may include trees, in this case it more likely refers to
structures.
17 Witrak extensively argues that there are many such
trees planted at The Lakes and the ACC has never disapproved of
these trees. While this does not defeat the Homeowners' claim that
trees may be "fences" it could possibly defeat the cause of action.
May 1991 HOMEOWNERS ASS'N v. WITRAK 177
61 Wn. App. 177, 810 P.2d 27
[No. 25506-1-I. Division One. May 6, 1991.]
THE LAKES AT MERCER ISLAND HOMEOWNERS ASSOCIATION,
Appellant, v. BONNIE WITRAK,
ET AL, Respondents.
[1] Covenants -- Construction -- Intent of Parties. Restrictive
covenants are interpreted in conformity with the intent of the parties. A
court must determine what the parties intended to accomplish by the
covenant.
[2] Covenants -- Construction -- Plain Meaning. A restrictive
covenant should not be interpreted so as to defeat the plain and
obvious meaning of the restriction.
[3] Covenants -- Construction -- Conflict Between Property
Owners. A restrictive covenant that creates a conflict between property
owners should be interpreted so as to protect the property owners'
collective interests.
[4] Contracts -- Construction -- Extrinsic Evidence -- Context
Rule. Contractual words are construed in the context of (1) the subject
matter and objective of the contract, (2) the surrounding
circumstances, (3) the subsequent conduct of the parties, and (4) the
reasonableness of the parties' conflicting interpretations.
[5] Covenants -- Construction -- "Fence" -- What Constitutes
-- Trees. For purposes of a restrictive covenant regulating fences that
delineate lot lines, a row of trees planted along a property line may
constitute a "fence."
Nature of Action: A homeowners association sought to
require a property owner to remove 12 Douglas fir trees planted slightly
inside the property line. A restrictive covenant required the
association's approval for fences, walls, or shrubs that delineate lot
lines.
Superior Court: The Superior Court for King County,
No. 88-2-17983-2, Edward Heavey, J., on December 22, 1989, granted
a summary judgment in favor of the property owner.
Court of Appeals: Holding that unresolved factual
issues remained regarding whether: (1) the trees constitute a "fence"
or "shrubs," (2) the trees were part of the property owner's previously
rejected remodeling plan, and (3) the association had waived its right
to enforce the convenant, the court reverses the judgment.
H. Michael Fields, for appellant.
Stephen O. Kenyon, for respondents.
FORREST
FORREST, J.-The Lakes at Mercer Island Homeowners
Association (Homeowners) appeals the trial court's grant of summary
judgment, arguing that issues of fact were presented relating to Bonnie
Witrak's compliance with provisions of the Homeowners Declaration of
Covenants, Conditions and Restrictions (CCR). We reverse.
Bonnie Witrak and Tom Gumprecht live in a residential subdivision
located on Mercer Island, known as "The Lakes at Mercer Island" (The
Lakes). In spring of 1987, John and Maryann Deming began
construction on the lot adjacent to Witrak. In May 1987, Witrak planted
55 pyramidalis trees on her property to screen her property from the
Demings. She did not seek the approval of the Homeowners
Architectural Control Committee (ACC), nor was it required. She then
built a 6-foot fence on the lot line between the two properties. Prior to
construction, Witrak had sought and obtained ACC approval to build
the fence pursuant to article 2, section 8 of the CCR.
In January 1988, Witrak hired an architect to design an addition to her
home. In July 1988, she submitted the architect's plans to the ACC. It
denied approval of the addition by letter dated August 15, 1988. Witrak
requested that the ACC reconsider. It refused. A meeting between
Witrak, the ACC and the Homeowners board of directors on September
19, 1988, did not change the ACC's decision.
On September 23, 1988, workers began excavation on Witrak's
property. By September 25, 1988, they had planted a row of 12
Douglas fir trees, each between 25 and 30 feet in height immediately
adjacent to the Witrak/ Deming boundary line. On September 26,
Witrak renewed her request for approval of the proposed addition. The
May 1991 HOMEOWNERS ASS'N v. WITRAK 179
61 Wn. App. 177, 810 P.2d 27
ACC again refused to allow the remodel; it also claimed the trees were
planted in violation of the CCR and referred the matter to the Board.
Witrak refused to remove the trees. The Board filed suit on October 18,
1988, seeking an order that the trees be removed. Both parties moved
for summary judgment. On December 22, 1989, the trial court held that
there were no material facts in dispute and concluded, as a matter of
law, that the language of the CCR did not prohibit the trees. The
Homeowners motion for reconsideration was denied. This appeal
followed.
After reading the relevant provisions of the CCR the trial court
concluded as a matter of law that the trees did not constitute a wall or
fence. The material portion of article 2, section 8 of the CCR states:
Landscaping and Fencing. . . . Fences, walls or shrubs are permitted to
delineate the lot lines of each lot, subject to Architectural Control
Committee approval, . . .. In any event, no fence erected within the
subdivision shall be over six feet (6') in height. No barbed wire, chain
link or corrugated fiberglass fences shall be erected on any lot. All
fences, open and solid, are to meet the standards set by the
Architectural Control Committee and must be approved by the
Committee prior to construction.
[1] While restrictive covenants were once disfavored by
the courts, upholding the common law right of free use of privately
owned land, modern courts have recognized the necessity of enforcing
such restrictions to protect the public and private property owners from
the increased pressures of urbanization. /1 The primary objective in
interpreting restrictive covenants is to determine the intent of the
parties to the agreement. /2
---------------
1 Thayer v. Thompson, 36 Wn. App. 794, 796-97, 677 P.2d 787,
review denied, 101 Wn.2d 1016 (1984).
2 Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d
68 (1965); Hagemann v. Worth, 56 Wn. App. 85, 782 P.2d 1072
(1989); Thayer v. Thompson, 36 Wn. App. at 796; Fairwood Greens
Homeowners Ass'n, Inc. v. Young, 26 Wn. App. 758, 614 P.2d 219
(1980); Foster v. Nehis, 15 Wn. App. 749, 551 P.2d 768 (1976), review
denied, 88 Wn.2d 1001 (1977).
180 HOMEOWNERS ASS'N v. WITRAK May 1991
61 Wn. App. 177, 810 P.2d 27
We agree with the reasoning expressed by the Missouri
Court of Appeals in Thomas v. Depaoli /3 that the clear intent of a
restrictive covenant is determined by the purposes sought to be
accomplished by the covenant. The Thomas court determined that a
fence which obstructed the view of neighbors was a "building" as
contemplated in a setback restriction. /4 This reasoning is consistent
with prior Washington law. In Foster v. Nehls /5 the court declined to
specifically define "one and one-half stories in height", opting instead
to determine the purpose of the restriction and enjoin the building of a
structure that obstructed a neighbor's view.
[2, 3] Witrak suggests the courts must adopt literal definitions for the
words of a covenant, claiming restrictive covenants should be "strictly"
construed. While it is true that the courts should not give a covenant a
broader than intended application, it is well settled that a covenant
should not be read in such a way that defeats the plain and obvious
meaning of the restriction. /6 Witrak also contends that any doubts
regarding the interpretation of the covenants should be resolved in her
favor. /7 While such a rule may have some validity when the conflict is
between a homeowner and the maker of the covenants, it has limited
value when the conflict is between homeowners. /8 In such a
---------------
3 778 S.W.2d 745, 748 (Mo. Ct. App. 1989).
4 The Thomas court cited the following: "The marked
tendency of the courts is to give effect to the intention of the parties,
and, in so doing, to extend the meaning of the term to cover structures
that ordinarily would not fall within the strict definition of the word."
Thomas, at 748, quoting 26 C.J.S. Deeds SS 164(1), p. 1108 (1956).
5 15 Wn. App. 749, 750, 551 P.2d 768 (1976).
6 Fairwood Greens, at 762.
7 See Fairwood Greens, at 761-62.
8 The Homeowners Association in this case is made up of
other homeowners and clearly reflects objections by Witrak's neighbors.
May 1991 HOMEOWNERS ASS'N v. WITRAK 181
61 Wn. App. 177, 810 P.2d 27
case the court should place special emphasis on arriving at an
interpretation that protects the homeowners' collective interests.
[4] The trial court appears to apply a "plain meaning" interpretation of
the covenants. However, this decision was made prior to the Supreme
Court holding in Berg v. Hudesman /9 rejecting such analysis in favor
of the "context rule". In Berg the Supreme Court recognized that even
the most ordinary words are only understood in the context of the
surrounding document, the subject matter and objective of the
contract, the surrounding circumstances, the subsequent acts and
conduct of the parties, and the reasonableness of the respective
interpretations of the contract. /10 The wooden fence previously built
by Witrak was approved because it did not block the Demings' light or
view. Witrak's proposed remodel was denied because it would
adversely affect the neighbors' "outlook". It is only after such
considerations that the language can be interpreted to arrive at the
intent of the parties. Of particular interest to this case is the Berg
court's emphasis on rejecting interpretations that are unreasonable
and imprudent and accepting those which make the contract
reasonable and just. /11
The overall purpose of the CCR seems clear: protect the aesthetic
harmony of the community, preserve an open natural appearance, and
maintain the view and light of each property owner. Adopting a
definition of "fence" as excluding trees and being limited only to a
structure frustrates the purpose of the covenants. Article 2, section 8
specifically cites height, placement and appearance as primary factors
to ACC approval of fences. In view of the
---------------
9 115 Wn.2d 657, 801 P.2d 222 (1990).
10 Berg, 115 Wn.2d at 666-67. This reasoning is
consistent with rules of statutory interpretation that words which are
capable of various meanings are best understood in a given case from
the context in which it is used. See Moran v. Washington Fruit &
Produce, 60 Wn. App. 548, 555, 804 P.2d 1287 (1990).
11 Berg, at 672.
182 HOMEOWNERS ASS'N v. WITRAK May 1991
61 Wn. App. 177, 810 P.2d 27
overall purposes and the specific control of "fences, walls and shrubs"
delineating a boundary, it is almost inconceivable that the developer
had any actual intent to allow a row of trees immediately adjacent to a
property line without any control. If such is the meaning, it surely was
not deliberate.
[5] Contrary to Witrak's contention, even the literal meaning of "fences"
does not exclude a row of trees along a property line. A common and
ordinary meaning of "fence" is "a barrier", Webster's Third New
International Dictionary 837 (1969), or "[a] hedge, structure, or
partition, erected for the purpose of inclosing a piece of land, or to
divide a piece of land . . . or to separate two contiguous estates."
Black's Law Dictionary 745 (4th ed. 1968). These definitions preclude a
summary judgment that trees may under no circumstances constitute a
fence.
Witrak urges the court to reject as a matter of law the notion that
fences may be naturally grown because it is not expressly provided for
in the covenant. We are not persuaded. Normally, a property owner
can plant a row of trees or other foliage to create a barrier between two
contiguous pieces of property. Such "fencing" occurs on a regular
basis. Prior courts have recognized that planting large bushy trees
close together along a property line is indeed a "fence." /12 Shrubs
performing the role of a fence in delineating property lines are
expressly subject to ACC control. The difference between a "shrub"
and a "tree" seems to be primarily botanical rather than functional. /13
What is the
---------------
12 Clyde Hill v. Roisen, 111 Wn.2d 912, 767 P.2d 1375 (1989) (While
the court was discussing a city fence ordinance that specifically defined
"naturally grown fences", the court recognized that absent the legal
definition, the trees were "factually" a fence. This discussion clearly
indicates that it is not a strained interpretation of the covenant to
include naturally grown barriers as a "fence".).
13 Webster's New World Dictionary 1351 (college ed. 1968)
defines "shrub" as "a bushy, woody plant with several permanent stems
instead of a single trunk", while a "tree" is "a woody perennial plant with
one main stem or trunk which develops many branches . . . 2. a treelike
bush or shrub . . .". Webster's, at 1552.
May 1991 HOMEOWNERS ASS'N v. WITRAK 183
61 Wn. App. 177, 810 P.2d 27
difference for these purposes between a line of 15-foot cedar trees
and line of 15-foot laurel shrubs? Given the covenant's clear concern
with height and obstruction of neighbors' light and view, it would be a
strange reading indeed that would require prior approval of relatively
low shrubbery delineating a lot line but allow a property owner to plant
large trees along the same lot line without ACC approval. Clearly the
language cannot be interpreted as a matter of law to require such a
result.
Witrak contends that since trees are expressly referred to in other
sections of the CCR limiting their placement they may not be
considered a fence. This argument is unpersuasive. The sections
specifically dealing with trees address other concerns and do not limit
the interpretation that should be given to article 2, section 8. Also
unpersuasive is Witrak's argument that the trees do not delineate the
lot line. The fact that the trees are slightly inside the legal boundary
and there is a wooden fence on the boundary is immaterial. The trees
are planted in such a manner that visually they mark the property line
which makes it impossible to say as a matter of law that they do not
delineate the lot line. /14
The Homeowners also argue that the trees should be considered part
of Witrak's remodel plans and require prior ACC approval pursuant to
article 7, section 5. /15 Witrak asserts that the trees were planted in
response to her longstanding concern for privacy and were totally
independent of the remodeling plan. This claim seems disingenuous
---------------
14 The weakness of Witrak's position became clear during oral
argument when counsel was given the hypothetical removal of the
6-foot wooden fence. Under Witrak's theory the trees would then
unquestionably delineate the lot line.
15 Article 7, section 5 reads in pertinent part:
"All plans and specifications required to be submitted
to the Committee shall . . . set forth the following with respect to the
proposed structure: the elevation of the structure with reference to the
existing and finished lot grade; the general design, the interior layout;
the exterior finish materials and color including roof materials; *the
landscape plan*; and such other information . . .." (Italics ours.)
184 HOMEOWNERS ASS'N v. WITRAK May 1991
61 Wn. App. 177, 810 P.2d 27
considering the timing of planting the trees promptly following rejection
of her remodel plans and their resubmission the following day. The
claim is even less credible given Witrak's letter to the Homeowners
suggesting the trees "improved" the planned remodeling and
eliminated the basis for objection. Apparently Witrak assumed that
since the trees obstructed the Demings' view and light just as the
proposed remodel would have, the remodel should be allowed.
Whether the trees are a part of the remodeling plan presents an issue
of fact. /16
While treating the trees as a "fence" or "shrubs" subject to ACC
approval seems more harmonious with the overall purposes of the
covenants, it remains an issue of fact to be determined after
consideration of all relevant evidence. In addition, Witrak's claim that
the pertinent covenants have been waived is a possible defense to this
action that is yet to be litigated. /17
Therefore this matter is returned for a trial on the merits. The award of
attorney fees will abide the outcome of the trial.
GROSSE, C.J., and KENNEDY, J., concur.
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16 Given our decisions regarding article 2, section 8 and article 7,
section 5, it is unnecessary to determine if the trees also amount to
"improvements" under article 7, section 6. Although a broad definition
of "improvements' may include trees, in this case it more likely refers to
structures.
17 Witrak extensively argues that there are many such
trees planted at The Lakes and the ACC has never disapproved of
these trees. While this does not defeat the Homeowners' claim that
trees may be "fences" it could possibly defeat the cause of action.
