IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BARRY REIMER and KELLY REIMER,
husband and wife, No. 70340-4-1
Appellants, DIVISION ONE
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UNPUBLISHED OPINION •
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GARY A. CROWELL and SUSAN M. crv> O -i,
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HYDE, husband and wife; and Ol r^rv'j
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CONNIE MAUREEN CONNELLY, <•/? r';
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Personal Representative of the Estate it: " " --~
of Ward B. Hunt, deceased, CO B<-'">
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FILED: August 26, 2013 en
Respondents.
Grosse, J. — When a protective covenant expressly provides that it may be
amended by a majority of land owners and a majority amends the covenant to eliminate
existing restrictions, such amendment is valid, when as here, the party challenging the
amendment fails to show that the majority imposed unlimited and unexpected
restrictions on the minority owners' use of the property. Accordingly, we affirm.
FACTS
Ward and Rose Ann Hunt owned three neighboring parcels of property on Fox
Island in Pierce County, Washington. Two parcels are located adjacent to the water
and one is located upslope not adjacent to the water. On April 9, 1998, the Hunts
recorded in Pierce County a declaration of protective covenants, conditions, and
restrictions (CC&R) that covered all three parcels. The CC&R contained a view
preservation provision that restricted landscaping and the construction of dwellings and
accessory units on each of the parcels:
With the Exception of Presently Existing Structures and
Landscaping, there shall be no construction of any kind or nature, or
landscaping of any kind or nature, which would in any way obstruct the
No. 70340-4-1 / 2
view of an adjoining lot subject to these protective covenants, conditions
and restrictions.
The CC&R also provided that after the Hunts sold any of the parcels, the CC&R could
be amended by an affirmative vote of a majority of the parcel owners.
The Hunts sold one of the waterfront parcels to Gary and Rebecca Crowell in
1998 and the upslope parcel to Barry and Kelly Reimer in 2005.1 The Hunts retained
the other waterfront parcel until their death. That parcel is now owned by the Hunts'
estate and is managed by the Hunts' daughter, Connie Connelly, who is the estate's
personal representative.
In 2011, the owners of the waterfront parcels (collectively referred to as Crowell)
decided to amend the CC&R. They believed that some of the restrictions on
construction and landscaping were too restrictive, in some instances ambiguous, and of
questionable value to the parcels as a whole. They were also satisfied that existing
state and local regulations would adequately protect the owners' interests on issues
relating to use of the property and nuisances.
They proposed an amended CC&R that, among other things, eliminated the view
protection provisions and contained no restrictions on construction or landscaping. The
Reimers objected to the proposed amendments in their entirety and did not offer any
other revisions. Crowell then revised the proposed amendments to include a section
containing some restrictions on construction and landscaping. The Reimers again
rejected the proposed amendments because the original view protections were not
included. Because the parties were unable to agree on the revisions, Crowell,
1 Rebecca Crowell has since passed away and Gary Crowell is remarried to Susan
Hyde, also a named party in the case.
2
No. 70340-4-1 / 3
representing the majority of the parcel owners, decided to adopt and record the latest
version of the proposed amended CC&R.
On January 23, 2012, the Reimers filed a complaint in Pierce County Superior
Court seeking a declaratory judgment to enforce the view protection covenants.
Alternatively, the complaint sought damages from the Hunt estate for breach of warranty
of the deed, claiming that they purchased the property in reliance on the protective
covenant ensuring view preservation. Crowell moved for summary judgment seeking
dismissal of the claims. The Reimers filed a cross motion seeking a determination that
the amended CC&R was invalid. The trial court granted Crowell's motion for summary
judgment and dismissed the Reimers' claims. The Reimers appeal.
ANALYSIS
The Reimers contend that the trial court erred by dismissing their claims because
the right to amend the CC&R was not exercised in a reasonable manner consistent with
the general plan of development. We disagree.
The Reimers rely on case law holding that an express reservation of power in a
covenant authorizing less than 100 percent of property owners to adopt new restrictions
is only valid if that power is exercised in a reasonable manner consistent with the
general plan of the development.2 Crowell contends that these cases addressed
amendments that added restrictions to covenants, not removed them, and therefore do
not control here. Assuming without deciding that this standard applies to removal of
2 Shafer v. Board of Trustees of Sandy Hook Yacht Club Estates, Inc., 76 Wn. App. 267,
273-74, 883 P.2d 1387 (1994); Meresse v. Stelma, 100 Wn. App. 857, 865-66, 999 P.2d
1267 (2000) ("The law will not subject a minority of landowners to unlimited and
unexpected restrictions on the use of their land merely because the covenant
agreement permitted a majority to make changes to existing covenants.") (quoting
Bovles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610, 617 (1994)).
3
No. 70340-4-1 / 4
restrictions in covenants as well as the imposition of them, the Reimers have failed to
make the required factual showing to invalidate the amendments on this basis. They
failed to produce facts establishing that, by removing the restrictions, the majority did
not exercise the right to amend the covenant in a reasonable manner consistent with
the general plan of the development. Accordingly, there is no basis upon which to
invalidate the amendments.
Because Crowell is the prevailing party on appeal, we grant Crowell's request for
attorney fees and costs pursuant to RAP 18.1, and the fee provision in the CC&R.3
We affirm.
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WE CONCUR:
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3The CC&R provides, "In the event of legal action, the prevailing party shall be entitled
to recover actual costs and reasonable attorney fees."