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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GEORGE UGHTNER,
No. 70746-9-1
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
CHAD SHOEMAKER and JANE DOE
SHOEMAKER, husband and wife and the
marital community composed thereof,
Respondent. FILED: December 22, 2014
Appelwick, J. — Lightner sued Shoemaker for injunctive relief when he refused to
trim cedar and arborvitae trees on his property that obstruct Lightner's view. Both
properties are subject to a covenant that restricts the removal of certain plants and trees
and limits certain plants and trees to six feet in height. The trial court found this covenant
ambiguous, interpreted it not to apply to naturally occurring growth, and applied the six
foot limitation to Shoemaker's artificially planted arborvitae trees but not to his naturally
occurring cedar trees. We conclude that the trial court erred in finding the covenant
ambiguous. The covenant proscribes removal of only natural growth that was consistent
with the owner's plan of development. It imposes a six foot height limitation on all trees
and shrubs not protected under the owner's plan of development. No evidence was
presented as to whether Shoemaker's trees were part of the owner's plan of development.
We reverse and remand for further proceedings.
No. 70746-9-1/2
FACTS
George Lightner and Chad Shoemaker live in Birch Bay Village (Birch Bay). Birch
Bay is a residential community with a golf course, a marina, lakes, community streets,
and other common property. The marina is at the bottom of a hill, and there are several
houses on the surrounding hillside. Several of the community's properties have sweeping
views of the mountains and other community amenities. The community has many tall
trees, some over 60 feet tall.
In 1966, Birch Bay Investors recorded the "Declaration of Rights, Reservations,
Restrictions and Covenants of Birch Bay Village" (Covenants) applicable to every lot or
parcel in the community. In addition to establishing covenants on all of the land, this
document created the Birch Bay Village Community Club Inc. (BBVCC)1 and the
Architectural Control and Maintenance Committee (ACC).
Lightner purchased his property, lot 31, on April 15, 1987. At the time Lightner
purchased the property, he was aware of covenants on the land. In fact, Lightner
contends he would not have purchased the land without a covenant protecting his views.
Lightner began construction on a home in 2002.
Shoemaker purchased his property, lot 29, on February 4, 1999. His property is
adjacent to and downhill from Lightner's property. The Covenants apply to both the
Lightner property and the Shoemaker property.
The primary subject of this appeal is paragraph 8(h) of the Covenants. Paragraph
8(h) imposes two distinct restrictions: one on the removal of certain trees or natural
shrubbery, the other a six foot height limitation on some trees, hedges, shrubbery, or
The BBVCC is essentially a homeowner association.
No. 70746-9-1/3
plantings in the community. It provides the ACC the authority to waive either of these
restrictions in writing.2
When Lightner purchased his property, he enjoyed a virtually unobstructed view.
The lot had a view of Birch Bay, the Strait of Georgia, the Birch Bay Marina, and Mount
Baker. At the time ofthe purchase, there were trees growing on the neighboring property
near the common boundary line. Many of these trees were well above six feet tall. The
Shoemakers' predecessor in title either topped the trees on the boundary line or granted
Lightner permission to do so in order to preserve Lightner's view.
The trees at issue consist of a row of arborvitaes on the property line between the
Lightner and Shoemaker properties and an apple tree, two Douglas firs, and 42 cedar
trees on the Shoemaker property. When Shoemaker purchased the property, all of the
cedar trees at issue were already there. But, Shoemaker planted the row of arborvitae
trees along the back property line himself, and the trees have grown to be over six feet
tall. The cedar trees on the property have also grown in excess of six feet in height,
obscuring Lightner's view.
Lightner made requests to trim the trees directly to Shoemaker and also requested
assistance from the BBVCC. Since 2005, Shoemaker has denied the requests to trim the
trees to six feet3 or cut them down altogether. The BBVCC contacted Shoemaker
2The Covenants can be amended by official action and approval of the lot owners.
Paragraph 12 of the Covenants stipulates that the Covenants enumerated in paragraph
8 were to run with the land for 25 years and thereafter be automatically extended for
successive periods of 10 years unless a majority of the then owners agree to extinguish
or change the covenants and restrictions in whole or in part.
3 The parties disagree as to whether Lightner always wanted Shoemaker to trim
the trees to six feet or instead just to the Shoemakers' roof line. This dispute is immaterial
to the interpretation of paragraph 8(h).
No. 70746-9-1/4
informing him of Lightner's wishes, but ultimately said, "This issue is between you and
your neighbors." The BBVCC's position is that if the parties could not work it out as "good
neighbors," the homeowners should take their dispute to court as the Covenants provide.4
After another of Lightner's requests, BBVCC's general manager wrote Lightner informing
him that paragraph 8(h) had never been used in deciding a tree issue in the history of
Birch Bay. Further, he informed Lightner that the height of plantings and maintenance of
trees, shrubs, and other vegetation is a matter of "'good neighbor/neighborhood'" policy
and is strongly encouraged.
On February 15, 2011, Lightner sued Shoemaker for injunctive relief and
enforcement of paragraph 8(h). Lightner sought a permanent injunction prohibiting
Shoemaker from allowing any of his trees, hedges, shrubs, and/or plantings to grow to
heights in excess of six feet per the terms of paragraph 8(h). Additionally, Lightner sought
attorney fees and costs.
The trial court found that the Covenants had not been abandoned, a finding not
challenged on appeal. It found that the Covenants were unclear and ambiguous.
Construing the two restrictions together, the court found that the Covenants' clear intent
was to preserve the natural growth. It concluded that the restrictions did not require the
protection of views.
4 Paragraph 14 of the Covenants states, "[l]n the event that the community club
fails to take appropriate action for the enforcement of the covenants and restrictions
hereof within a reasonable time after a violation or threatened or attempted violation is
brought to its attention in writing, any person or persons then owning lots within the said
property may take such steps in law or in equity as may be necessary for such
enforcement."
No. 70746-9-1/5
Based on those conclusions, the trial court interpreted paragraph 8(h) to require
trimming of only "human-planted" trees or shrubs to six feet in height. Thus, it concluded
that the arborvitae Shoemaker planted were subject to the six foot limitation. It
determined that the cedar trees on Shoemaker's property were naturally occurring and
were therefore not subject to the limitation in the Covenant.5 Further, it concluded that
neither party substantially prevailed in the litigation and that no attorney fee award to
either party was reasonable. The trial court entered an order the same day memorializing
its conclusions. That order did not address the merits of Lightner's request for injunctive
relief.
Lightner filed a motion for reconsideration on June 17, 2013, arguing that one of
the purposes of paragraph 8(h) is to preserve views in the community and that the
Shoemakers' cedar trees are also subject to the Covenant's height restrictions. The trial
court denied Lightner's motion. Lightner appeals the findings of fact and conclusions of
law, the superior court's June 7, 2013 order, and the order denying his motion for
reconsideration.
DISCUSSION
I. Plain Meaning of Paragraph 8(h)
The interpretation of the language in restrictive covenants is a question of law. Day
v. Santorsola, 118 Wn. App. 746, 756, 76 P.3d 1190(2003). Questions of law are subject
to de novo review. Mariners Cove Beach Club, Inc. v. Kairez, 93 Wn. App. 886, 890, 970
P.2d 825 (1999). We must give effect to all the words, not read some out of the covenant.
5The trial court does not appear to have entered an order with respect to the apple
tree or the Douglas fir trees.
No. 70746-9-1/6
See Ross v. Bennett. 148 Wn. App. 40, 49, 203 P.2d 383 (2008) (courts examine the
language of the covenant and consider the instrument in its entirety); Restatement
(Third) of Property: Servitudes § 4.1 (2000) (a servitude should be interpreted to give
effect to the intention of the parties ascertained from the language used in the instrument).
Paragraph 8(h) provides two distinct restrictions, each of which is subject to waiver:
Trees, shrubs. No trees or natural shrubbery shall be removed unless
approved in writing by the architectural control and maintenance committee,
it being the intention to preserve natural growth, in accordance with the
Owner's plan of development. No trees, hedges, shrubbery or plantings of
any kind whatsoever in excess of six feet in height shall be placed, planted
or maintained on any of the said property, nor shall any such tree, hedge,
shrub or planting be allowed to grow in excess of such height, without
written permission of the architectural control and maintenance committee.
Though not a model of clarity, we do not find the restrictions to be ambiguous.
The first limitation, the removal restriction, restricts removal of natural growth. This
sentence is perhaps more easily understood by considering its statement of intent ahead
of its directive:
It being the intention to preserve natural growth, in accordance with the
Owner's plan of development, no trees or natural shrubbery shall be
removed unless approved in writing by the architectural control and
maintenance committee.
The sentence clearly states the drafter's intent. The intention to preserve natural growth
is not absolute. Rather, it is conditioned by the next clause, "in accordance with the
Owner's plan of development."
The record contains no evidence pertaining to the owner's plan of development.
We thus cannot say whether the removal restriction protected only vegetation in existence
at the time the Covenants were written, or whether it also protected natural growth—not
yet in existence but contemplated to occur in the future—in designated areas of the
No. 70746-9-1/7
development. However, we can say that the reference to the owner's plan of development
would have no purpose and would have been omitted if the intention was to preserve all
natural growth everywhere on the property. See Ross, 148 Wn. App. at 49; Restatement
(Third) of Property: Servitudes § 4.1 (2000). Consequently, we reject that reading of
the removal restriction.
The second sentence, the height restriction, is a distinct restriction with three
components:
No trees, hedges, shrubbery or plantings of any kind whatsoever in excess
of six feet in height shall be placed, planted or maintained on any of the said
property, nor shall any such tree, hedge, shrub or planting be allowed to
grow in excess of such height, without written permission of the architectural
control and maintenance committee.
This sentence may be more easily understood by moving the negatives from the nouns
to the verbs, replacing "such" with the specific vegetation to which it refers,6 and stating
the three propositions as separate sentences:
Trees, hedges, shrubbery, or plantings of any kind whatsoever in excess of
six feet in height shall not be placed, planted, or maintained on any of the
said property. Trees, hedges, shrubbery or plantings of any kind
whatsoever whether placed, planted or maintained shall not be allowed to
grow in excess of six feet in height. The architectural control and
maintenance committee may waive these restrictions by written permission.
In contrast to the removal restriction, this restriction is absolute. It applies to all plants. It
does not state an exception for naturally growing plants. In fact, the word natural does
not appear in this sentence.
6In the second clause of paragraph 8(h), ifthe term "such" was read to include the
phrase "in excess of six feet in height," the restriction on allowing trees to grow to over six
feet would add nothing. If "such" was read to exclude the terms "placed, planted or
maintained" the clause would still apply to natural as well as placed or planted trees and
shrubs. No other reading of the language appears reasonable.
No. 70746-9-1/8
The trial court found that the words "or maintained" must apply to only "placed or
planted" trees and shrubs. It then concluded that the height restriction applied to only
placed or planted trees and had no application to natural growth. But, this interpretation
is without merit. Retaining a naturally growing tree or shrub on one's property is
maintaining that tree or shrub, just as much as is keeping a tree or shrub that a previous
owner may have artificially placed or planted. It was error to read the words "or
maintained" out of the covenant as a means to exempt natural growth from the height
restriction.
Imposing the six foot height restriction might threaten the lives of the trees at issue
here and necessitate their removal. But, the protection against removal of natural
vegetation attaches to only the natural vegetation that was a part of the owner's plan of
development—not to all natural growth on the property subject to the Covenants. The
testimony suggested the cedar trees at issue were 29-37 years old.7 Based on this
testimony, these trees did not exist when the Covenants were recorded. Whether these
trees are subject to protection under the removal restriction depends on the contents of
the owner's development plan.
The plan is not in the record before us. Nonetheless, it is not inconceivable that
the Owner's plan of development designated certain areas where natural vegetation—
even natural vegetation not yet in existence but contemplated to occur in the future—was
to be protected. Remand is necessary to allow the parties an opportunity to establish
whether the cedar trees were part of the Owner's plan of development.
7 This testimony was offered by Shoemaker's expert arborist. It was offered to
prove that the cedar trees resulted from natural seeding rather than artificial planting. The
ages of the trees were otherwise not specifically at issue at trial.
8
No. 70746-9-1/9
Based on our interpretation of paragraph 8(h), we find no error as to the conclusion
that the arborvitae are subject to the six foot height limitation. Nor do we find any error
as to the conclusion that paragraph 8(h) did not create view rights. The restrictions
address vegetation and never mention views. The rules adopted by the ACC make it
clear that everyone understands that trees may impair views and that views are
important.8 However, the fact that the Covenants grant the committee unfettered
discretion to waive the restrictions in paragraph 8(h) is convincing evidence that no
absolute view rights or easements were intended.
In light of the need for remand, we decline to consider whether the trial court erred
when it failed to address the issue of a permanent injunction enforcing the Covenants
between the parties. Lightner will have an opportunity to address the issue below.
8 Paragraph 8(h) is devoid of explicit "view protection" language, but the BBVCC
acknowledged that the height of trees affects views within the community. On February
18, 1999 the BBVCC adopted the Architectural Rules and Regulations. Rule 12.11
governs "trees and shrubs." It states:
No trees or shrubs, except natural willows, alders and cottonwoods, shall
be removed unless approved in writing by the ACC. The intention is to
preserve natural growth within the Village.
. . . [T]he height of plantings and maintenance of trees, shrubs, and other
vegetation is a matter of "good neighbor/neighborhood" policy and is
strongly encouraged. . . . Planted trees or shrubs that infringe upon
neighbors' views should be reduced or removed. This is a matter of good
reason, judgment, and conscience, and is reciprocal between neighbors.
In July 2010, the architectural rules were revised. Those architectural rules include
a similar provision for "view infringement." Rule 10.4.2 provides:
Trees or shrubs that infringe upon neighbors [sic] views are to be dealt with
between neighbors. This is a matter of good reason, judgment, and
conscience, and is reciprocal between neighbors. Lot owners should keep
their trees and shrubs trimmed, de-limbed or topped so as not to infringe on
neighbors [sic] views.
No. 70746-9-1/10
II. Attorney Fees
A prevailing party may recover attorney fees if they are authorized by statute,
equitable principles, or agreement between the parties. Wiley v. Rehak, 143 Wn.2d 339,
348, 20 P.3d 404 (2001). If neither party wholly prevails, then the party who substantially
prevails is the prevailing party, a determination that turns on the extent of the relief
afforded the parties. Transpac Dev., Inc. v. Oh, 132 Wn. App. 212, 217, 130 P.3d 892
(2006).
Paragraph 14 of the Covenants provides for attorney fees to the prevailing party in
any action taken to enforce the Covenants and its restrictions. Based on its interpretation
of paragraph 8(h), the trial court concluded that neither party substantially prevailed in the
litigation. Consequently, it denied both parties' requests for attorney fees.
Both Lightner and Shoemaker argue that they are entitled to attorney fees on
appeal under RAP 18.1. Lightner also argues that he is entitled to costs on appeal under
RAP 14.2 and on remand.9 RAP 18.1(i) authorizes this court to direct that the amount of
fees and expenses be determined by the trial court after remand.
Neither party is the prevailing party on appeal. As a result, the attorney fee awards
for trial and on appeal shall be made by the trial court upon resolution of the case on
remand. See Stieneke v. Russi, 145 Wn. App. 544, 571, 190 P.3d 60 (2008) (finding that
because the prevailing party was not yet determined, the court of appeals need not yet
address the issue of fees); RAP 18.1 (i).
9Paragraph 14 of the Covenant clearly provides that the prevailing party is entitled
to attorney fees, but it does not say anything about costs. Lightner has provided no
additional authority indicating that he would be entitled to costs below.
10
No. 70746-9-1/11
We reverse the trial court's application of the Covenants as to the cedar trees on
the Shoemakers' property and remand to the trial court for further proceedings.10
WE CONCUR:
A-Car*^V
10 Lightner assigns error to several conclusions of law and findings of fact.
Additionally, he assigns error to portions of the findings of fact that he claims were
mischaracterized and should have been conclusions of law. Because we reverse, we
need not address these challenged findings and conclusions individually.
11