Opinion
No. 61071-6-I.
April 13, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-06819-0, Charles W. Mertel, J., entered October 22, 2007.
Affirmed by unpublished per curiam opinion.
Unless otherwise provided in its governing documents, a homeowners association may adopt reasonable policies to aid its evaluation of remodeling projects submitted for approval under a covenant. Robert and Janet Carlson challenge the trial court's summary judgment dismissal of their complaint challenging the policy adopted by The Innis Arden Club, Inc. to guide its consideration of plans submitted for approval. Because the policy provisions do not violate the covenant as a matter of law, we affirm.
FACTS
Robert and Janet Carlson live in the Innis Arden subdivision in northwest King County. Each lot in the Innis Arden community has one share in the Innis Arden Club, Inc. (the Club) and is subject to a restrictive covenant requiring the Club's approval for all alterations or improvements to buildings. The covenant provides that complete plans prepared by an architect must be submitted for approval prior to any remodel. The covenant allows the Club very wide discretion for consideration of submitted plans. Approval may be refused "for any reason, aesthetic or otherwise," based on consideration of materials, colors, views, harmony with surroundings, and "any and all other factors which . . . affect the desirability or suitability" of the remodel.
The covenant reserves rights to the original Grantor, who later assigned these rights to the Club, and provides:
4. APPROVAL OF PLANS BY GRANTOR. All buildings to be erected in Innis Arden No. 2 must be approved by the Grantor. Complete plans and specifications of all proposed buildings, structures and exterior alteration, together with detailed plans showing proposed location of the same on the particular building site, shall be submitted to the Grantor before construction or alteration is started, and such construction or alteration shall not be started until written approval hereof is given by the Grantor. Said plans shall be prepared by an architect or competent house-designer. A complete copy of said plans and specifications shall in each case be delivered to and permanently left with the Grantor. As to all improvements, construction and alterations in Innis Arden No. 2, the Grantor shall have the right to refuse to approve any design, plan or color for such improvements construction or alterations which is not suitable or desirable, in Grantor's opinion, for any reason, aesthetic or otherwise, and in so passing upon such design, Grantor shall have the right to take into consideration the suitability of the proposed building or other structure, and the material of which it is to be built, and the exterior color scheme, to the site upon which it is proposed to erect the same, the harmony thereof with the surroundings, and the effect of the building or other structure or alterations therein as planned on the outlook of the adjacent or neighboring property, and the effect or impairment that said structures will have on the view of surrounding building sites, and any and all other factors which, in the Grantor's opinion, shall affect the desirability or suitability of such proposed structure, improvements or alterations.
If the Grantor fails to approve or disapprove said plans and specifications within thirty days after the same have been submitted to him, or, in any event, if no suit to enjoin the erection of such building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and the provisions of this paragraph will be deemed to have been fully complied with.
The Grantor shall have the right to appoint a committee of residents of Innis Arden No. 2 or a community club or other organization comprised principally of residents of Innis Arden or Innis Arden No. 2, for such time and upon such conditions as he may designate, to exercise the powers reserved in this paragraph to the Grantor, and in such case Grantor shall incur no liability for any act or omission of such committee, club or other organization.
In 2003, the Club adopted a written policy to guide its governing board and its Building Plans Committee in this process. The policy requires homeowners to complete an application, erect visual aids such as story poles, balloons and aluminum disks, sign a "Warranty of Compliance" indicating their compliance with all the covenant restrictions applicable to their property, complete a "Neighbor Signoff" form, and publicize the project in the Club bulletin.
Early in 2006, the Carlsons filed a complaint to quiet title and for declaratory relief against the Innis Arden Club, Inc. In their complaint, the Carlsons alleged that they have plans for a remodeling project that they intend to submit for the Club's approval. They alleged that the remodeling policy adopted by the Club clouds their title by requiring lot owners "to perform significant additional tasks, and to provide further consideration to the Club, before the Club will evaluate building or remodeling plans." The Carlsons further claimed they are
entitled to the Court's judgment declaring invalid the Club's building and remodeling "policy," and preliminary and permanent injunctions barring the Club from demanding submission of the "Warranty of Compliance," or demanding any additional consideration, or any other actions beyond submission of building plans, as a condition of the Club's approval of Plaintiff's remodel.
While the litigation progressed, the Club rescinded the policy provision requiring a "Warranty of Compliance" with the submission of plans. The Club moved for summary judgment. In October 2007, the trial court granted the motion for summary judgment and dismissed the case stating:
(2) Plaintiffs' last claims concerning the Club's warranty of compliance policy are entirely moot, as the Club rescinded the challenged Warranty of Compliance policy effective March 27, 2007 and the Plaintiffs did not suffer any harm as a result of the policy. Thus, the Court hereby DISMISSES WITH PREJUDICE Plaintiffs' last claims concerning the Club's warranty of compliance policy . . . on the ground that such claims are moot.
(3) Provisions which require notice to and input from neighbors, erection of visual aids, and which indicate that the Club may consider covenant compliance during its review process are recognized in law and are reasonable. Plaintiffs' challenges in this regard are therefore also DISMISSED WITH PREJUDICE. The Carlsons appeal.
ANALYSIS
This is a review of a summary judgment. The usual standard of review applies. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982) (summary judgment appropriate if there is no genuine issue of material fact and moving party entitled to judgment as a matter of law); Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996) (reviewing summary judgment by engaging in same inquiry as trial court); Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003) (viewing facts of case and reasonable inferences drawn therefrom in light most favorable to nonmoving party); Young v. Key Pharms., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989) (nonmoving party must set forth specific facts to defeat motion for summary judgment); Wendle v. Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984) (sustaining trial court's judgment on any theory established by pleadings and supported by proof).
The Carlsons contend that the Club's remodeling policy violates the terms of the covenant. Whether the policy violates the covenant is a question of law.
Bauman v Turpen, 139 Wn. App. 78, 92, 160 P.3d 1050 (2007).
Where, as here, a dispute not involving the maker of a covenant requires construction of the covenant, the "court's goal is to ascertain and give effect to those purposes intended" by the covenant, placing "`special emphasis on arriving at an interpretation that protects the homeowners' collective interests.'" Covenants providing for consent before remodeling "will be upheld so long as the authority to consent is exercised reasonably and in good faith." Where covenants contain "specific restrictions as to some aspect of design or construction," courts will enforce those specific restrictions rather than an inconsistent general standard.
Riss v. Angel, 131 Wn.2d 612, 623-24, 934 P.2d 669 (1997) (quoting Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wn. App. 177, 181, 810 P.2d 27 (1991)).
Riss, 131 Wn.2d at 625.
Riss, 131 Wn.2d at 625-26.
The Carlsons contend that any Club policy requiring any action of lot owners beyond submission of plans violates the covenant. There is no such express provision in the covenant. Neither is such a restriction implicit. In fact, to the extent such policies facilitate a more reasonable and consistent exercise of authority under a broad covenant such as the one at issue here, they may demonstrate a good faith effort to obtain full and accurate information from the homeowner regarding submitted plans and reach a reasonable, objective decision. The question of whether the Club would violate the covenant by disapproving of plans actually submitted for approval solely on the basis of a homeowner's refusal to comply with some particular policy provision is not at issue here because the Carlsons have not yet submitted any plans.
See, e.g., Heath v. Uraga, 106 Wn. App. 506, 518 n. 15, 24 P.3d 413 (2001) (nothing in covenants prevented approval committee representative from seeking input from two other homeowners, and fact that he did so, rather than act alone, and that he did not oversee their independent review, further suggests his good faith effort to reach a reasonable, objective decision); Cf. Riss, 131 Wn.2d at 628 (inaccurate and misleading photo montage prepared by board president and inaccurate letter sent to homeowners by board member contributed to unreasonable and less than fair assessment of plaintiffs' proposed structure).
The trial court determined that the Carlsons' claim regarding the "Warranty of Compliance" was moot. An issue is moot when the court can no longer provide effective relief. The Carlsons argue that their claim is not moot because the trial court could provide effective relief by declaring the rule invalid and unenforceable, barring the Club from reenacting it, and awarding the Carlsons damages for their losses. But the trial court found that the Carlsons did not suffer any harm as a result of the "Warranty of Compliance" requirement and that the Club rescinded the provision. The Carlsons do not assign error to the trial court's findings. Under these circumstances, the trial court properly dismissed the claim regarding the "Warranty of Compliance" as moot.
Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984).
Regarding the other policy provisions, as the trial court determined, provisions requiring notice to and input from neighbors and erection of visual aids could be expected to contribute to a reasonable and good faith analysis of submitted plans. The provision allowing the Club to consider during its review process whether the homeowner submitting remodeling plans has complied with other covenant restrictions is also reasonable here, given the extremely broad discretion reserved to the Club.
The Carlsons also complain that the Club's policy establishes a timeline beyond the 30-day limit provided in the covenant. Under the covenant, if the Club "fails to approve or disapprove said plans and specifications within thirty days after the same have been submitted . . . such approval will not be required." The Carlsons have not identified any policy provision purporting to extend that 30-day period.
Given these circumstances, the trial court properly determined that the Club's policy does not violate the covenant as a matter of law. As such, the Carlsons' contention that the policy violates the Washington Homeowners Association Act also fails. The trial court properly granted summary judgment to the Club.
RCW 64.38.020 provides in pertinent part: "Unless otherwise provided in the governing documents, an association may: (1) Adopt and amend bylaws, rules, and regulations[.]"
The Carlsons and the Club request attorney fees and costs on appeal based on RCW 64.38.050 and RAP 18.1. RCW 64.38.050 allows fees to the prevailing party in a dispute over violations of chapter 64.38 RCW. Given its successful defense of the Carlsons' claims of violations of this statute, the Club is the prevailing party here and we grant its request for attorney fees under RAP 18.1.
Affirmed.