Mullor v. Renaissance Ridge Homeowners' Ass'n

516 P.3d 812

Miki M. MULLOR and Michal Mullor, a marital community, Appellants,

v.RENAISSANCE RIDGE HOMEOWNERS’ ASSOCIATION, a Washington Non-Profit Corporation; and Suresh Annamreddy and Divya Kiron Annamreddy, a marital community, Respondents.

No. 83025-2-I

Court of Appeals of Washington, Division 1.

Filed August 1, 2022

Ordered Published Date September 6, 2022

Jessica L. Goldman, Jesse Lee Taylor, Attorney at Law, Summit Law Group, 315 5th Ave., S Ste., 1000, Seattle, WA, 98104-2682, for Appellants.

Gabriella Wagner, Sarah Eversole, Wilson Smith Cochran Dickerson, 1000 Second Avenue, Suite 2050, Seattle, WA, 98104-3629, Aaron Paul Orheim, Talmadge/Fitzpatrick, 2775 Harbor Ave., Sw., Unit C, Seattle, WA, 98126-2168, for Respondents.

Andrus, C.J.

¶1 Miki and Michal Mullor appeal the summary judgment dismissal of claims against neighbors Suresh and Divya Annamreddy, and the Renaissance Ridge Homeowners Association (the Association), for alleged violations of Association covenants relating to the style of cedar fence the Annamreddys erected on the boundary of the two parcels. Because the Association exercised its lawful authority under the covenants to grant a variance to the Annamreddys for the cedar fence, we affirm. But because the trial court failed to enter findings of fact and conclusions of law to support its fee award to the Annamreddys, we remand to the trial court to do so.

FACTS

¶2 Miki and Michal Mullor own a home in a residential neighborhood known as the Renaissance Ridge in Sammamish, Washington. Suresh and Divya Annamreddy own a home adjacent to the Mullors’ property, also in Renaissance Ridge. The Mullors’ property is northwest of the Annamreddys’ property, and a portion of the Mullors’ property sits 10 feet below the Annamreddy backyard, with the two properties separated by a retaining wall and fencing.

¶3 Homeowners living in Renaissance Ridge are members of the Association and subject to a set of Covenants, Conditions, and Restrictions (CC& Rs). The CC& Rs set out land use restrictions for all lots within the development, including the style of fencing permitted in various locations on a lot or within the residential neighborhood. Article XV of the CC& Rs established an Architectural Control Committee (the Committee), appointed by the board of directors, to review plans and specifications for fences that residents propose to place on their properties. Currently, the Association's three board members act as the Committee.

¶4 Article XII, section 4 of the CC& Rs identifies the type of fences that homeowners may use in Renaissance Ridge:

Fences, walls or shrubs are permitted on side and rear property lines, ... subject to (1) the approval of the Committee and (2) determination whether such fences, walls or shrubs would interfere with utility easements reflected on the face of the Plat and other easements elsewhere recorded. ...

No barbed wire, chain link, or corrugated fiberglass fences shall be erected on any Lot, except that vinyl coated chain link fencing for sports [facility] or galvanized or vinyl coated chain link dog kennel enclosures (providing dog kennel is fully screened from view of adjacent lots or public right-of-way) or county owned facilities may be considered for approval by the Committee upon request. All fences, open and solid, are to meet the standards set by the Committee and must be approved by the Committee prior to construction. ... All [fencing] must be of the style shown on the attached Exhibit "C," and location approved by the Architectural Control Committee.

(Emphasis added.) Exhibit "C," referenced in article XII, section 4, is a "Wildlife Network Management Plan" (Plan), approved by King County to provide "guidelines and ongoing restrictions to preserve and protect the wildlife habitats located within" the Renaissance Ridge plat. The plan notes that the residential development contains a 150’ wide wildlife network at the two entries into the plat and near a stormwater detention facility needed for the development. The county approved encroachments into this wildlife network conditioned on approval of the plan. The relevant provision of the plan provided:

Preservation of wildlife habitat will be accomplished by limiting the disturbed area for development. ...

Protection of the non-disturbed areas will be accomplished in several ways. Fencing along wetlands and wildlife networks will be provided as shown in Figure One. Back yards of all lots adjacent to the wildlife network will be fenced with a solid type 5’ – 6’ fence per Exhibit "A." The wildlife network adjacent to SE 8th St. will be fenced with a combination of a low open fence as shown in Exhibit "B" and our standard 3’ split rail fence as shown in Exhibit "C." Fencing will be provided as shown in Exhibit "D" (fencing diagram).

Exhibit "A" to the plan in turn contains a diagram of a fence, in plan view, comprised of cedar boards, 5 feet in height, with 1/2 inch spacing between the vertical boards.

¶5 The Annamreddys’ fence, consisting of 5-foot vertical cedar boards spaced a 1/2 inch on alternating sides of horizontal boards, was in poor condition and needed to be replaced. In January 2020, Suresh Annamreddy attended an Association board meeting and received verbal approval to replace the fence. In late January or early February 2020, a windstorm damaged a portion of the fencing bordering the Annamreddy and Mullor properties, and Suresh Annamreddy removed the damaged fencing. He arranged to replace the remaining dilapidated fencing with a "solid cedar style wood fence" similar in design to existing fencing in various areas of Renaissance Ridge and lacking the 1/2 inch space between the vertical boards.

¶6 Before the Annamreddys had completed the fence replacement project, Mullor submitted a written complaint to the Association asking the board to order the Annamreddys to remove any new fencing and to replace it with an alternating cedar slat fence. Mullor argued that under article XII, section 4 of the CC& Rs, the only permissible fence style is that described in Exhibit "A" to the Wildlife Network Management Plan.

¶7 On August 13, 2020, two board members and the Association attorney visited the Mullors’ property to inspect the Annamreddys’ new solid cedar fence, the remaining pre-existing "alternating slat style" fencing, and the gap along the property line where a portion of the old fencing had blown over during the windstorm. On August 31, 2020, the Committee issued a written approval of the Annamreddys’ fence. It stated that

• The remaining portion of the original fence and the portion of the fence that was removed after it fell must be replaced for safety and aesthetic purposes. The fence is dilapidated and sits on top of a retaining wall, creating safety concerns.

• The Association will not require you to remove the new fencing you installed. That fencing is approved, so long as you stain the fencing in the required cappuccino color. Please complete this staining within 30 days.

• The Association approves your request to replace the remaining original fencing and missing fencing with fencing of the same style and height as that fencing already replaced, so long as that new fencing is stained the required cappuccino color. Please complete this replacement within 30 days to ensure that the dilapidated and missing fencing is promptly addressed.

The Annamreddys complied with this letter, installing solid cedar style fencing in the gap atop the retaining wall bordering the Mullors’ lot.

¶8 By letter of the same date, the Association's attorney notified the Mullors that it was rejecting their complaint. The Association determined that the CC& Rs did not mandate fencing of a design and height described in the Wildlife Management Plan unless the fencing ran along wetlands and wildlife networks. It further concluded that the solid cedar fencing that the Annamreddys had erected was the same as the type erected by many homeowners within the community. The Committee found the style to be "more modern" and "more attractive" than the original fencing, and found that the new fence did not unreasonably block sunlight in a manner that could be characterized as a nuisance or a violation of the CC& Rs.

¶9 In September 2020, the Mullors filed a lawsuit against the Association and the Annamreddys, alleging breach of duty of reasonable and ordinary care and breach of the CC& Rs. They subsequently amended their complaint to add a claim for nuisance against the Annamreddys. They sought damages and a permanent injunction requiring the Annamreddys to remove the solid cedar fencing and replace it with a fence the "same design and dimensions as the previously existing fence on the property."

¶10 The trial court granted summary judgment in favor of the Annamreddys and the Association, dismissing the Mullors’ claims. The Mullors appeal.

ANALYSIS

¶11 The Mullors assign error to the summary judgment dismissal of their claims for breach of the CC& Rs and nuisance. They contend the trial court erred in holding that the CC& Rs allow the Annamreddys to install a solid cedar fence. They argue the Committee lacked the authority to approve any fencing retroactively or to grant a variance that is inconsistent with the Wildlife Network Management Plan. They also argue the trial court erred in concluding that the fence is not a nuisance as a matter of law. We reject these arguments.

Standard of Review

¶12 We review a trial court's order on a motion for summary judgment de novo. Bangerter v. Hat Island Cmty. Ass'n , 199 Wash.2d 183, 188, 504 P.3d 813 (2022). Interpretation of covenants is a question of law based on the rules of contract interpretation. Id . at 189 , 504 P.3d 813. (citing Wilkinson v. Chiwawa Cmtys. Ass'n , 180 Wash.2d 241, 249, 327 P.3d 614 (2014) ); Kiona Park Ests. v. Dehls , 18 Wash. App. 2d 328, 334-35, 491 P.3d 247 (2021). The court's primary objective is to determine the intent of the original parties that established the covenants. Id. (citing...