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Kohl v. Legoullon (1/24/97), 936 P 2d 514
NOTICE: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
PATRICK KOHL and THU THI )
KOHL, ) Supreme Court No. S-7229/7239
Appellants and ) Superior Court No.
Cross-Appellees, ) 4FA-95-867 CI
v. ) O P I N I O N
ROGER LEGOULLON and SANDRA ) [No. 4469 - January 24, 1997]
Appellees and )
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Lance C. Parrish and James A.
Parrish, Parrish Law Office, Fairbanks, for
Appellants and Cross-Appellees. William R.
Satterberg, Jr., Law Offices of William R.
Satterberg, Jr., Fairbanks for Appellees and
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
This appeal involves issues relating to the enforcement
of covenants setting height and setback restrictions on appellants
Patrick and Thu Thi Kohls' home. Appellees Roger and Sandra
Legoullon seek to enforce either the height or setback restrictions
against the Kohls, requiring them to remove the top floor of their
house. The Kohls argue that they are not in violation of the
height covenant, that they received a waiver of the setback
covenant, that the Legoullons should be prevented by laches from
enforcing the setback covenant, and that the superior court erred
in enforcing the setback covenant by requiring the Kohls to lower
the height of the home.
II. FACTS AND PROCEEDINGS
The Legoullons purchased a lot and built a house in
Montclair Subdivision in Fairbanks in 1989. The location afforded
them a majestic view. From their living room and dining room, they
had views of the University of Alaska, the airport, the City of
Fairbanks, the Tanana Valley, and the Alaska Range.
There was another lot across the street from the
Legoullons, between them and their view. They recognized that if
a house were built there, a portion of their view could be lost.
The Legoullons' living room was sunken two steps below grade, and
they knew restrictive covenants in the neighborhood allowed houses
as high as thirty-five feet. They considered purchasing the lot in
order to protect their view, but ultimately declined to do so.
In 1994, the Kohls purchased the lot across the street
from the Legoullons and began to construct a house there. A year
later, they had completed a five story structure. The Legoullons
describe the structure as "an imposing fortress, complete with a
tower, which would look down upon all of Fairbanks." The Kohls'
house substantially impairs the Legoullons' previously unobstructed
The Kohls began construction in June 1994. That summer,
the Legoullons first became aware of the activity across the
street. They expressed concerns to the Kohls about the potential
impact on their view in a chance meeting in late September. The
Legoullons left the meeting with the understanding that
construction would be limited to the then-existing three stories.
In October, the Legoullons noticed that the walls of a
fourth story had gone up. They wrote the Kohls on November 18,
complaining the house did not comply with Montclair Subdivision's
height and setback rules. Restrictive covenants in that
subdivision limit dwellings to three stories or thirty-five feet in
height and require they be set back at least twenty-five feet from
the property line. The Kohls replied on November 22, promising
they would comply with these requirements. On December 7, the
Kohls also informed the Legoullons they were seeking "information
from professional third parties"with regard to the relevant
The Legoullons retained an attorney, who notified the
Kohls on December 13 that legal action would ensue if an amicable
compromise could not be reached. The Kohls' attorney responded on
January 9, 1995, that the house was not in violation of the
restrictive covenants. The Legoullons' attorney wrote back on
February 10 and March 9, once again threatening to commence
litigation if there were no compromise. He received no response.
In April, the Legoullons noticed the walls of a fifth story going
up. That month, they filed an action against the Kohls seeking
both declaratory and injunctive relief.
The superior court found the Kohls' house violated the
setback requirement but not the height requirement. As relief, it
ordered the removal of the fifth floor of the Kohls' house. The
Kohls now appeal the superior court's rulings that the Legoullons
had standing to enforce the covenants in question, that the Kohls
had not obtained a valid waiver of the setback requirement, and
that laches is not a bar to the Legoullons' action against the
Kohls. The Kohls also assert that the remedy ordered by the
superior court for the setback violation, removal of the top floor
of the house, is inappropriate. The Legoullons cross-appeal the
superior court's determination there was no violation of the height
requirement and its refusal to award them full attorney's fees.
III. DISCUSSION (EN1)
The Legoullons have standing to enforce Montclair
Subdivision's restrictive covenants against the Kohls. It is
established that when a common grantor imposes restrictive
covenants on a tract of land as part of a common plan or general
scheme of development, an owner of a lot in the tract may enforce
the covenants against the owner of any other lot in the tract.
Ruffinengo v. Miller, 579 P.2d 342 (Utah 1978). (EN2) The
Legoullons' home is located in Tract C of Montclair Subdivision.
The Kohls' property is on Block 1. Tract C was included in the
original plat creating Blocks 1, 2, and 3. Note 9 of the plat
states, "This subdivision is subject to protective covenants
recorded 6-12, 1986 at the Fairbanks Recording District, Book 481,
Page 618 + 6-13-86 Bk 481 Pg. 859." Thus, it is clear that the
various parcels of Montclair Subdivision are part of a common plan
of development and their covenants are mutually enforceable. (EN3)
The Kohls contend they have obtained a valid waiver of
Montclair Subdivision's setback requirements. In July 1994, the
Kohls distributed ballots and won a majority vote of all homeowners
in Block 1 in favor of a setback waiver for their property. In
December 1994, the Kohls also won a waiver of the setback
requirement from a reconstituted Montclair Subdivision
Architectural Control Committee. They contend these measures
immunize them from enforcement of the setback requirement.
Montclair Subdivision's setback requirements for
dwellings are not subject to waiver. The relevant covenant states:
No building shall be erected, placed, or
altered on any lot until the construction
plans and specifications and a plan showing
the location of the structure have been
approved by the Architectural Control
Committee as to quality of workmanship and
materials, harmony of external design with
existing structures, and as to location with
respect to topography and finished grade
elevation. No fence or wall shall be erected,
placed or altered on any lot nearer to any
street than the minimum building set-back line
unless similarly approved.
The superior court determined that this last sentence,
which authorizes waivers for walls and fences, applies only to
barriers and does not authorize waivers for houses. We agree. The
first sentence discusses buildings, while the second sets rules for
"fences and walls." By negative implication, the inclusion of
"walls"in the second sentence is only a reference to barriers, not
houses. The first sentence alone regulates buildings; it does not
authorize waivers by the Architectural Control Committee.
The Kohls' block-vote waiver theory also founders on the
express language of the covenants. The relevant covenants specify
are to run with the land and shall be binding
on all parties and all persons claiming under
them for a period of twenty five (25) years
from the date these covenants are recorded,
after which said covenants shall be
automatically extended for successive periods
of ten (10) years unless instrument signed by
a majority of the then owners of said lots has
been recorded, agreeing to change said
covenants in whole or in part.
The Montclair Subdivision covenants were recorded in 1986. By
their own terms, they are not subject to modification by majority
vote before 2011. The Kohls' 1994 attempted block-vote waiver of
the setback requirement was thus ineffective.
The Kohls also contend the Legoullons should be barred in
their suit for declarative and injunctive relief from enforcing the
setback covenant because they delayed unreasonably in filing suit.
(EN4) An aggrieved party must file suit promptly once it is clear
the transgressor has committed to an irrevocable course of conduct.
Equity will not aid one who sits on her rights. The ultimate
questions are whether and when a reasonable person would have been
galvanized into legal action. City and Borough of Juneau v. Breck,
706 P.2d 313, 316 (Alaska 1985).
Lamoreux v. Langlotz, 757 P.2d 584 (Alaska 1988),
provided an occasion for this court to consider application of the
doctrine of laches in the context of enforcement of restrictive
covenants. There we noted the "[m]ore recent decisions reflect a
willingness to allow the complaining neighbor some time to pursue
extra-judicial avenues of redress." Id. at 586. Once the
neighbors have "informed the homeowner of the existence of the
controversy, . . . equity [does] not require them to file suit
immediately." Id. Courts agree that a violating homeowner builds
at his own risk once his neighbors have complained. Id. (citing
Leaver v. Grose, 610 P.2d 1262, 1264 (Utah 1980); Dickstein v.
Williams, 571 P.2d 1169, 1171 (Nev. 1977)).
The Kohls began construction in June 1994. The
Legoullons could have sued on the setback restriction at that time.
As soon as the first level went up, a breach of the covenant was
patent and the Legoullons could not reasonably expect it would be
cured. When the Legoullons first spoke to the Kohls in September,
they discussed only the height of the house. The Legoullons did
not complain of a setback violation until October, when it became
clear the new house would obstruct their view.
We nevertheless hold that the Legoullons' setback
complaint is not barred by laches. Since the Kohls led them to
believe their construction plans did not implicate their view, the
Legoullons cannot be faulted for declining to immediately commence
litigation. Substantial evidence supports the superior court's
finding the Kohls assured the Legoullons construction would halt at
three stories. (EN5) As late as November, the Kohls continued to
promise compliance with the height covenants. Had the Kohls
actually stopped at three stories, the house would not rise above
Crestmont Drive and the setback violation would have no effect on
the Legoullons' view.
Under these circumstances, the Legoullons acted
reasonably. To apply laches here would be tantamount to holding
that the Legoullons should have sued for a breach which would not
have injured their interests. We think such an interpretation
inequitable. The doctrine of laches should not be applied so as to
require a grievant to litigate every possible claim, lest she pass
over a minor infringement which later grows into a more serious
intrusion upon her rights. Equity demands greater flexibility. So
long as a breach remains such that a reasonable person would
overlook it, and plaintiff reasonably believes it will not become
otherwise, laches will not bar a claim for an ensuing substantial
When the Kohls' fourth floor was completed in October,
the Legoullons could no longer dismiss the setback violation as de
minimis. That next month, they complained to the Kohls in writing.
Once the Kohls received the Legoullons' November 18 letter, they
were on notice that construction was at their own risk. The
Legoullons' protest was timely and barred application of laches.
Lamoreux, 757 P.2d at 586. When the erection of a fifth floor made
clear the Kohls' earlier promises could not be relied on and
further attempts at negotiation would be futile, the Legoullons
sued. These facts leave us no basis to conclude the superior
court's determination that there was no unreasonable delay
constituted clear error.
The Legoullons appeal the superior court's holding there
was inadequate evidence to establish the Kohls' house violates the
height restriction. Montclair Subdivision requires a "dwelling not
. . . exceed three above ground levels or thirty five feet in
height." The covenant does not specify how height or the number of
levels is to be determined. The superior court relied on Uniform
Building Code (U.B.C.) definitions because these "allow for the
land to be utilized to a greater extent." It then found that
it was established at the hearings that the
Kohls could potentially bring in enough fill
to make the lower two levels basement levels
under the U.B.C. -- thus leaving only three
levels "above ground"-- and bring the house
within the 35-foot height requirement.
The superior court also held the Kohls' use of fill must
be reasonable. Burying two stories would be reasonable if the
resulting grade approximated the natural contour of the land. In
regard to this issue, the superior court found that
it was established . . . that the Kohls
excavated down and into the hillside in order
to find stable soil on which to build, and
that the foundation of the home is
substantially below what was originally the
natural contour of the land. No testimony was
presented as to where the current grade is in
relation to the natural contour of the land.
The Court therefore concludes that the
Plaintiffs have not established, by a
preponderance of the evidence, that the Kohls'
house violates the height and level
restrictions of the restrictive covenants.
We affirm. The superior court correctly applied the
U.B.C. definitions. As we have held previously, since limits on
land use "are in derogation of the common law, . . . doubts should
be resolved in favor of the free use of the land." Lamoreux, 757
P.2d at 587.
The U.B.C. definitions allow reasonable use of fill.
Since there was no proof that burying the Kohls' first two floors
elevates the land around the house above its natural level, there
is no evidence the Kohls' use of fill is unreasonable. The
Montclair Subdivision covenants restrict only above ground levels.
To show that the Kohls' five stories violate the covenants, the
Legoullons needed to prove the two underground levels rise above
the land's natural level. Their failure to present evidence in
this regard is fatal to their claim. (EN7)
The Kohls concede their house violates the setback
restriction. As a consequence of this violation, the superior
court ordered the removal of the fifth floor and the lowering of
the roof. The Kohls challenge the remedy as inappropriate; they
argue they should be allowed to cure the violation by converting
their garage into an open porch or deck. (EN8) We agree.
An "injunction should always be so worded as not to
impose on the defendant any greater restriction than is necessary
to protect the plaintiff from the injury of which he complains."
Henry L. McClintock, Principles of Equity, at 392 (1948). The
Legoullons validly complain of a horizontal violation. The
superior court erred by ordering a vertical remedy. Not all of the
structure subject to removal under that order offends the setback
covenant. To fully comply with the setback restriction, the Kohls
need only remove that portion of their house above the third floor
and within twenty-five feet of the property line. (EN9)
The Kohls also argue that even a remedy narrowly
addressed to the setback violation is inequitable. They point out
that removal of their garage would not restore the Legoullons'
view. Since even the Kohls' proposed alternative order would not
benefit the Legoullons, they conclude the appropriate remedy is no
remedy at all.
If setback covenants were enforceable only when enhancing
a long distance view, they would be void in many circumstances, for
such restrictions do not necessarily prevent a structure from
blocking the view behind it. Setback limits exist not just to
protect view, but to guarantee breathing space between neighbors,
and for other purposes as well. (EN10) Any structure is less of an
affront to those nearby when it is distanced from its property
line. Eliminating the Kohls' garage does not restore the
Legoullons' view, but it does alleviate the impact that the Kohls'
house has on the Legoullons' view.
F. Attorney's Fees
We reject the Legoullons' challenge to the superior
court's refusal to award full attorney's fees. The Legoullons
argue the Kohls acted in bad faith by burying their house in order
to bring it into compliance with the height covenant. The argument
is without merit, since the Kohls were found not to have violated
the covenant's height limitations. Thus, we conclude that the
superior court did not abuse its discretion when it concluded that
a case for an award of full attorney's fees had not been
We AFFIRM the superior court's ruling that the Legoullons
had standing to enforce the Montclair Subdivision covenants against
the Kohls. We also AFFIRM the superior court's holding that there
was no effective waiver of the covenants, no unreasonable delay in
seeking enforcement, and no violation of the height restriction.
We also AFFIRM the superior court's ruling that a setback violation
had occurred but conclude the remedy ordered by the superior court
is inappropriate. The Kohls need not remove the entire top floor
of their house. Replacing the garage with an open porch or deck
would bring the house into compliance with the setback restriction.
We thus VACATE the remedial order and REMAND to the superior court
with instructions to order the Kohls to remove that portion of
their house above the third floor and within twenty-five feet of
the property line.
1. Interpretations of covenants and standing issues are questions
of law so they are reviewed de novo. Langdon v. Champion, 745 P.2d
1371, 1372 n.2 (Alaska 1987). Decisions as to the application of
laches are reviewed only for clear error. Moore v. State, 553 P.2d
8, 15 (Alaska 1976). Factual determinations will not be disturbed
unless clearly erroneous. Klosterman v. Hickel Inv. Co., 821 P.2d
118, 121-22 (Alaska 1991). Awards of attorney's fees are reviewed
for abuse of discretion. Bromley v. Mitchell, 902 P.2d 797, 804
2. The Ruffinengo court rejected a homeowner's argument he was
immune from enforcement because the grantor had created separate
subdivisions and the plaintiff's lot was not in the same one. Id.
at 343. As long as the covenants derive from a common source and
impose substantially similar requirements, the developer's
artificial subdivision of the property should not be permitted to
3. The Kohls also challenge the superior court's finding there
was a common plan on the basis that the developer initially
considered building condominiums in the Legoullons' subdivision and
the tracts' respective covenants were recorded on different
(consecutive) days. These arguments are without merit. The
dispositive fact is the developer did eventually create a
homogenous subdivision with tracts with substantially similar
restrictions. Variations in the dates of filing or the developer's
schemes do not mute the covenants' enforceability.
4. It is uncontested laches does not bar the Legoullons' height
5. Mrs. Legoullon testified that Mrs. Kohl had told her at the
September meeting the house would not block the Legoullons' view
and was now planned for only three stories. The Kohls' version of
the conversation is similar, though they contend they never told
the Legoullons the house would not rise into their view. The trial
court is in the best position to assess the credibility of
witnesses. To the extent there are conflicts in testimony, we
normally defer to the superior court's resolution of such factual
6. See 2 Dan B. Dobbs, Law of Remedies sec. 6.4(6), at 109 (2d
ed. 1993) ("[i]f the infringement is initially minor . . ., delay
may be reasonable and thus no bar"). See also E-Systems, Inc. v.
Monitek, Inc., 720 F.2d 604, 607 (9th Cir. 1983) (noting exception
to laches when defendant's encroachment is minimal); Carter-
Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794, 803 n.4 (9th
Cir. 1970) ("no laches will be found where the defendant's
interference with the plaintiff's rights is minimal or
7. Our disposition of this issue does not require us to consider
whether the use of concealment fill above the natural surface level
is per se unreasonable.
8. In its Order Denying Motion for Reconsideration, the superior
The Kohls argue that they should be allowed to
remove the small 18þ by 12þ section closest to
the front lot line and convert 8þ of the
western side of the house into open porches.
9. Technically, the first three floors of the Kohls' house also
encroach on the twenty-five foot setback area. However, those
levels are below Crestmont Drive and out of the Legoullons' line of
sight. The Kohls point out that to "prohibit invisible,
underground [structures] strains common sense." Such structures
could, however, interfere with drainage. This is one of the
reasons communities impose setback requirements. See infra note
10. However, absent any indication the setback facilitated
drainage in this case, we agree that the underground floors are
properly excluded from the remedial order.
Our laches analysis requires the same result. We held the
Legoullons' failure to object to the bottom floors did not bar
setback relief as to the top two stories because a reasonable
person would have overlooked the initial breach. By implication,
the Legoullons' waiver of the subterranean violation bars a
subsequent objection to those floors.
10. In Town of Portland v. Wisconsin Elec. Power Co., the court
[Z]oning setback and yard requirements are
considered by courts to promote a variety of
public purposes. They are held to relate to
provision for light and air, fire protection,
traffic safety, prevention of overcrowding,
rest and recreation, solving drainage
problems, protecting the appearance and
character of a neighborhood, conserving
property values, and may, in particular cases,
promote a variety of aesthetic and
psychological values as well as ecological and
Id., 543 N.W.2d 559, 560-61 (Wis. App. 1995) (citing 3 The Law of
Zoning and Planning sec. 34B.02 (1995). See also Hanna v.
American Nat'l Bank and Trust, 639 N.E.2d 1326, 1333 (Ill. App.
1994) (holding purpose of setback restriction is to create easement
of unobstructed air, light, and vision and to insure uniformity of