Division Three of the Washington Court of Appeals recently circulated an unpublished decision in the case of Mitschke v Nielsen in which several legal concepts regarding land use covenants, conditions, and restrictions (CCR's) were addressed. Many people think of CCR's as the tool of homeowner associations to enforce neighborhood rules such as house color, architectural standards, use restrictions, and such that some people like to have, but are considered to be outside the power of government to enforce (or trivial from the public point of view).
CCR's are basically contracts which run with the land. When a property is sold, the new owner is obligated to accept the terms of the contract as a condition of the sale.
While the specifics of the case aren't important (except, clearly, to the individuals involved), the ruling of the court was that the purported covenant was unenforceable. That, for those who live in neighborhoods with CCR's, might be important to you. So, what happened?
The court concluded that the specific covenant was not acknowledged by each property owner when it was sold to them. That is, in order to be subject to a covenant, the new property owner must be aware of it and agree to it. Of course, agreeing to it must also be a condition of the sale of the property.
Also, there were irregularities in the documentation itself, some glaringly bizarre: the name of the subdivision was that of a different neighborhood and the name of the neighborhood the litigants lived in was handwritten at the top of the page, also, there was no reference to the location of the properties.
The covenant had several articles to which property owners were purportedly required to adhere. Number 4 limits garages to two cars. Number 6 forbade loud animals. Number 9 required that all alterations be approved by the architectural control committee (ACC). The covenant also forbade commercial enterprises without the permission of the ACC.
The trial court found as a matter of fact that each of these articles had been violated multiple times by multiple residents. Indeed, even the Mitschke family had violated the commercial enterprise requirement. It concluded that because of the frequency of violations, the neighborhood had abandoned the CCR's, even if they had been enforceable.
(The phrase that's used regarding the Mitschke family's violation of the CCR's is interesting. It's best for you all to remember that if you're going to attempt to enforce questionable CCR's, "a person must come into a court of equity with clean hands." Pierce County v. State, 144 Wn. App. 783, 832, 185 P.3d 594 (2008) (citing Income Investors, Inc. v. Shelton, 3 Wn.2d 599, 602, 101 P.2d 973 (1940)). In other words, don't violate the CCR's, then complain that someone else is, too.)
Outside this particular case, it's also important to remember that government agencies will not enforce CCR's. They are private party contracts, and need to be enforced by the people of the neighborhood. Failure to enforce your CCR's will invalidate them, so 1) make sure you're enthusiastic about doing so, and 2) make sure that when your neighborhood no longer wishes to enforce particular sections that you alter the CCR's or your failure to enforce one portion may invalidate your ability to enforce the rest.
Another thing of which you must be aware: covenants cannot be contrary to the public good. Even if your neighborhood wants to have rules which violate the law, and everyone agrees to violate the law, you still are not wise to come to a court and convince it to force someone who moves in to violate the law. So, for those neighborhoods which have limitations on the number of residential units on a lot (i.e. single family homes), if city or county law says that it's a public good that accessory dwelling units (ADU, i.e. granny flats or apartments over garages) be allowed, then the covenant will not be valid on that point, and people will be able to add the ADU.
Covenants can be useful for homeowner's associations, and homeowners associations can provide useful services to a neighborhood (such as maintaining common property like the roads, trails, and pocket parks). As a source of social control, they do leave a great deal to be desired. However, if this is your preferred method of limiting the freedoms of your neighbors, then make sure you're doing it vigorously.
Showing posts with label legal. Show all posts
Showing posts with label legal. Show all posts
Ponderosa Neighborhood Appeal Successful
Yesterday, the Washington Court of Appeals ruled that a proposed subdivision adjacent to the Ponderosa neighborhood in Spokane Valley is a potential safety hazard in the event of a wildfire, making it subject to an environmental impact statement.
This case is full of twists and turns. The City of Spokane Valley issued a mitigated determination of nonsignificance (MDNS) in approving a preliminary plat in March 2007 on the hillside above the Ponderosa neighborhood. (An MDNS says that there are some things that a developer must do--in this case, preserving any archeological sites--to gain approval for the project.) This approval was appealed by the Ponderosa Neighborhood Association (PNA) on the grounds that Ponderosa is a high fire danger area, and additional housing units on the east side of Browne's Mountain would add traffic to an area which has insufficient evacuation routes.
The hearings examiner, Michael Dempsey, received testimony from the developer's traffic engineer that evacuation was not a problem, even under the worst-case scenario. However, the hearings examiner performed his own statistical analysis and under the same conditions and found that, in fact, the evaluation was performed under ideal conditions: that there were no stalled cars, no fallen trees, and no smoke near a major fire. He concluded as a matter of fact that 20 percent of the existing residents, and none of the new residents, could escape within a 30-minute time frame. The hearings examiner directed the city to perform an environmental impact statement.
The hearings examiner reasoned that, "Preparation of an EIS [environmental impact statement] for the project would allow for consultation with local law enforcement, fire districts and emergency planning authorities regarding an evacuation plan for the Ponderosa, the search for and the feasibility of a third (3) public access, consideration of the various wildfire scenarios in the Ponderosa, and the exploration of other strategies to evacuation in wildfire events that may have merit in the Ponderosa area." He also stated that a similar EIS was performed for a similar development and was successful.
Lanzce Douglass, the developer, appealed the hearing examiner's ruling to superior court. Amongst the arguments were: there is no legal basis for a 30-minute time frame, and that, even if it were the case, there was an existing deficiency that he was not responsible for fixing. He concluded that the hearings examiner had improperly denied the plat. Superior court agreed with Douglass.
However, the PNA appealed this ruling stating that the plat had not been denied, merely sent back to the City for an EIS. The court also found that while the 30-minute standard was mentioned in the hearing examiner's ruling, it was not applied as a matter of law, but as a matter of fact. This fact was used to determine that there was a probable environmental impact of the development. This is the standard by which an EIS is deemed necessary.
Additionally, the court found that the plat was not conditioned upon improvement of an existing deficiency. Cumulative traffic impacts are precisely the kind of issue analyzed by an EIS. Consequently, the appellate court overturned the superior court and agreed with the PNA.
This case is full of twists and turns. The City of Spokane Valley issued a mitigated determination of nonsignificance (MDNS) in approving a preliminary plat in March 2007 on the hillside above the Ponderosa neighborhood. (An MDNS says that there are some things that a developer must do--in this case, preserving any archeological sites--to gain approval for the project.) This approval was appealed by the Ponderosa Neighborhood Association (PNA) on the grounds that Ponderosa is a high fire danger area, and additional housing units on the east side of Browne's Mountain would add traffic to an area which has insufficient evacuation routes.
The hearings examiner, Michael Dempsey, received testimony from the developer's traffic engineer that evacuation was not a problem, even under the worst-case scenario. However, the hearings examiner performed his own statistical analysis and under the same conditions and found that, in fact, the evaluation was performed under ideal conditions: that there were no stalled cars, no fallen trees, and no smoke near a major fire. He concluded as a matter of fact that 20 percent of the existing residents, and none of the new residents, could escape within a 30-minute time frame. The hearings examiner directed the city to perform an environmental impact statement.
The hearings examiner reasoned that, "Preparation of an EIS [environmental impact statement] for the project would allow for consultation with local law enforcement, fire districts and emergency planning authorities regarding an evacuation plan for the Ponderosa, the search for and the feasibility of a third (3) public access, consideration of the various wildfire scenarios in the Ponderosa, and the exploration of other strategies to evacuation in wildfire events that may have merit in the Ponderosa area." He also stated that a similar EIS was performed for a similar development and was successful.
Lanzce Douglass, the developer, appealed the hearing examiner's ruling to superior court. Amongst the arguments were: there is no legal basis for a 30-minute time frame, and that, even if it were the case, there was an existing deficiency that he was not responsible for fixing. He concluded that the hearings examiner had improperly denied the plat. Superior court agreed with Douglass.
However, the PNA appealed this ruling stating that the plat had not been denied, merely sent back to the City for an EIS. The court also found that while the 30-minute standard was mentioned in the hearing examiner's ruling, it was not applied as a matter of law, but as a matter of fact. This fact was used to determine that there was a probable environmental impact of the development. This is the standard by which an EIS is deemed necessary.
Additionally, the court found that the plat was not conditioned upon improvement of an existing deficiency. Cumulative traffic impacts are precisely the kind of issue analyzed by an EIS. Consequently, the appellate court overturned the superior court and agreed with the PNA.
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