Brookside Townhouse Ass'n v. Clarin

682 N.W.2d 762

2004 SD 79

BROOKSIDE TOWNHOUSE ASSOCIATION, an unincorporated association, Plaintiff and Appellee, v. Oliver CLARIN and Inez Clarin, Defendants and Appellants.

No. 22969.

Supreme Court of South Dakota.

Argued April 29, 2003.

Decided June 16, 2004.

Thomas E. Brady of Brady Plumier, P.C., Spearfish, South Dakota, Attorneys for plaintiff and appellee.

David L. Claggett, Spearfish, South Dakota, Attorney for defendant and appellant.

ZINTER, Justice.

[¶ 1.] Brookside Townhouse Association sought a mandatory injunction against Oliver and Inez Clarin after they installed non-approved windows and siding on their townhome. Clarins counterclaimed for damages. The trial court bifurcated the equitable relief sought in the complaint from the legal relief sought in the counterclaim. After conducting a court trial on the equitable issues, the court granted the injunction and determined that its ruling mooted the legal issues. Clarins appeal, and we affirm.

Facts and Procedural History

[¶ 2.] Brookside Townhouse Association is an unincorporated residential development association. The Association is comprised of the owners of the residential structures located on the north and south sides of Washington Street in Spearfish, South Dakota. There are forty-two household units in these structures. Twenty units are in five ranch-style four-plexes on the north side of the street. These four-plexes have vertical, brown fir siding with pewter gutters and windows. Eighteen units are in six structures on the south side of the street. Two of those structures are ranch-style three-plexes, and three are ranch-style four-plexes. Those five structures all have vertical, brown fir siding with white gutters and windows. The remaining structure on the south side of Washington Street is a two-story four-plex with horizontal, lighter colored steel siding.

[¶ 3.] In 1998, Oliver and Inez Clarin purchased a unit in a four-plex on the north side of the street. The purchase was subject to the Association's Declaration of Covenants, Conditions and Restrictions, which required unit owners to submit written plans and specifications to the Association's Board for approval prior to making exterior changes or alterations. In 2000, a committee of owners revised the Association's By-Laws and Declaration of Covenants. Inez Clarin served on that committee. The relevant section of the amended covenant also required prior written approval of the Board before making external changes. It further required that the Board determine whether exterior changes were in "harmony or external design and location in relation to surrounding structures and topography."¹ There is no dispute that Clarins were subject to this covenant.

[¶ 4.] During the summer of 2000, two events caused Clarins to decide to replace their windows and siding. First, a hailstorm caused damage to their windows, as well as the windows in several units in the development. Second, Clarins claimed that their unit was drafty, which exacerbated Oliver's health condition. Clarins claimed that as result of these problems, they ordered replacement windows. They also decided to replace their siding with light-colored, horizontal steel siding. However, they failed to submit their plans and specifications to the Board as required by the covenant.

[¶ 5.] Inez first contacted the President of the Board in September 2001 to request permission to make the changes. Clarins followed this contact with a letter to the Board on November 3, 2001. Although Clarins' four-plex had vertical, brown fir siding and pewter windows, Clarins' letter requested the installation of white windows and horizontal light-colored steel siding. The photographs in evidence reflect that Clarins' proposed windows did not conform to the color and appearance of the street-side windows in any of the four-plexes on their side of the street. Their steel siding was substantially different from all but one structure on both sides of the street. Nevertheless, Clarins believed that their changes in color and building materials were more "practical," and that others should change their exteriors to conform to Clarins' proposal. They wrote:

It was my understanding after the June 2001 meeting that the windows on the north side that had hail damage in Aug. 2000 were to be replaced. It is now Nov. 3, 2001, and as far as we know, there has been no window work done. These are very cheap windows and we have had them repaired once, but the vinyl edge is loose again. We have a very loud whistle in the house when we have a strong wind, so we plan to replace all of ours. We also want good windows, so have ordered Pella windows on Oct. 4, 2001. They cannot be returned, so please let us have them installed when they come this following week before the weather gets too cold. If there is an objection to the white color, perhaps the windows on the south side of the street should have theirs painted brown as this street had brown first. I believe that when further work is required on these town houses, that the east end of this street will be planning on white too, as there is no fading and they will look nice much longer. We think it is practical. Also there are some windows on the north side of this street with white already² and these have been in for some time.

Also. Please allow us to install steel siding after the windows are in. The window representative told us the siding on our house is in such poor condition that moisture coming in could cause damage to the new windows. We want to use the same siding that would be used in the unit east of us or the same as the one that already has steel siding across the street. We would like to get this work completed before the weather gets too bad this fall. We would appreciate permission to having our windows installed right away and the siding on before the weather gets too cold. We do want to keep our home in good repair. Since our unit was the second unit built on this street, and the siding was of very poor quality, we feel there should be no objection to getting the repair work done as soon as possible.

[¶ 6.] At a meeting on November 5, 2001, the Board considered the Clarins' white window proposal as well as a similar proposal from another resident. The Board denied both requests. The Board also discussed Clarins' proposal to install the steel siding. Because the Board was in the process of developing a long-term siding plan for the entire Association, Clarins' request for steel siding was also denied.

[¶ 7.] In a November 6, 2001 letter, the Board formally informed Clarins of its decision. The letter also informed Clarins of the Board's ongoing planning for replacement siding throughout the development. The letter finally informed Clarins that the insurance proceeds for the hail-damaged windows had arrived, and that the Board was seeking a contractor to replace the damaged windows.

[¶ 8.] On January 17, 2002, the Board informed Clarins and other residents that it had selected a contractor. The contractor suggested that those who had already ordered white windows could be brought into compliance by painting them the pewter color found on the other homes. Clarins, however, declined to follow that suggestion. Instead, they installed white windows in February 2002, and refused to paint them a conforming color.

[¶ 9.] On May 21, 2002, the Board met with Clarins to discuss the covenant violation and the non-compliant windows. After the meeting, Gary Reimnitz, President of the Board, sent the following letter to Clarins:

Dear Inez and Oliver:

At the monthly board meeting on May 21, 2002 you were asked by the board of your intention to conform to Brookside Townhouse Covenants regarding the window color of the recently installed windows on your unit. The windows were installed without the proper procedure of gaining permission from the Board and of an appropriate color selection.

With the encouragement of association members in attendance at the meeting[.] the Board has set a deadline of June 1 for your written response to the board. Your written response should clearly indicate whether you intend to conform to the covenances [sic] and will have the window painted (with proper maintenance done around the framing) or whether the Association attorney should proceed with legal further steps. Again those steps are outlined in the covenants.

Please remember that the window issue on your unit has generated high legal costs to ALL your neighbors and homeowners on the street as you heard reported at the meeting. It is the monthly dues from all Washington Street homeowners that are paying the legal fees for this situation. Such costs diminish funds, which provide improvements for all homeowners.

As you heard at the meeting, homeowners are concerned about the market value of their homes because of this window appearance and lack of covenant conformity. Association members and the Board are anxious to have this issue settled so life can go on for the good of all in the Association. The window issue is currently holding up other projects, too, that need to be resolved and proceeded with in the interest of all homeowners.

The Board and Association membership looks forward to your response on or by June 1. Thank you for your prompt attention to this matter.

[¶ 10.] Clarins did not respond to this letter. Furthermore, they proceeded to order the horizontal, light-colored steel siding. That siding was delivered to Clarins' home on July 30, 2002. That same day, the Board became aware of the delivery of the steel siding, and it advised Clarins in writing to not proceed with the installation. The letter also advised that if Clarins did install the steel siding, they did so at the risk of being compelled to remove it. Nevertheless, Clarins began installation the next day, July 31, 2002.

[¶ 11.] The association commenced this action for equitable relief that same day. Clarins answered, asserted affirmative...