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Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Assoc. (11/29/2002) sp-5646
Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Assoc. (11/29/2002) sp-5646
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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHELE and GREGORY HURST, )
) Supreme Court No. S-10249
Appellants, )
) Superior Court No.
v. ) 3AN-98-9525 CI
)
VICTORIA PARK SUBDIVISION ) O P I N I O N
ADDITION NO. 1 HOMEOWNERS )
ASSOCIATION, ) [No. 5646 - November 29, 2002]
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Allan E. Tesche, Russell,
Tesche, Wagg, Cooper & Gabbert, Anchorage,
for Appellants. Jesse C. Bell, Brena, Bell &
Clarkson, P.C., Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
The Victoria Park Subdivision Homeowners Association
built a short wood fence at the edge of Lot 43, a lot set aside
for recreational purposes. Gregory and Michele Hurst, who live
on an adjacent lot, sued, claiming that the fence violated a
restrictive covenant proscribing permanent structures on Lot 43.
The trial court granted summary judgment to the Association on
the grounds that the fence comported with the designated purpose
of the restrictive covenant and did not prevent the Hursts from
using Lot 43. Because the fence does not violate the restriction
against permanent structures as that term is used in the
restrictive covenant, and because there is no factual issue to
preclude summary judgment, we affirm.
II. FACTS AND PROCEEDINGS
A. Factual History
Gregory and Michele Hurst are the owners of Lot 16 of
the Victoria Park Subdivision, located at 7701 Canal Street in
the Sand Lake area of Anchorage. Their lot borders Lot 43 of the
Victoria Park Subdivision. Victoria Park Subdivision Addition
Number 1 Homeowners Association (the Association) is an Alaska
nonprofit corporation organized to govern Lots 32 through 56 of
the Victoria Park Subdivision Number 1. Lot 43 was set aside for
low-intensity recreational purposes and is subject to a
restrictive covenant:
Lot 43 has been deeded to the non-profit
corporation formed as provided in Part E-5,
except for the reservations of easements.
Lot 43 shall only be used for non-intensive
recreational and park purposes such as an
informal play/picnic area, limited landing
for small, manually transportable boats and
limited walkway access, while at all times
allowing for maximum protection of natural
vegetation. Only pedestrian access shall be
allowed. No motorized vehicles or aircraft
shall be permitted. No permanent structures
except incidental recreational structures
such as canoe/boat racks, docks, a gazebo,
picnic tables, barbecues, etc., will be
allowed. Signs will be permitted to help
enforce proper use of Lot 43.
The non-profit corporation formed pursuant to
E-5 shall maintain, preserve, improve and
control the interest in such lot for the use
and benefit of all owners in the Victoria
Park Subdivision, Addition No. 1, Lots 32
through 56, and for the use and benefit of
the owners of Lots 1 through 31, Victoria
Park Subdivision, provided the owners of Lots
1 through 31, Victoria Park Subdivision, pay
a pro rata share of the costs of Lot 43.
The Hursts are not members of the Association, but they do pay a
pro rata share of the costs of Lot 43 as provided for in the
covenant and are therefore entitled to the use and enjoyment of
the lot.
The Association experienced considerable difficulties
controlling access to and use of Lot 43. A stolen automobile was
abandoned on Lot 43, items such as boats and a wind surf board
were disturbed, and No Trespassing signs were removed without
permission. There were also incidents of trespassing. Previous
owners of the Hursts lot, Lot 16, had treated Lot 43 as their
private domain by filling in its wetlands with excavation dirt,
mowing the grass, and harassing other Association members who
were attempting to use Lot 43. One previous owner of Lot 16
installed flower beds extending twenty feet onto Lot 43. The
owner of Lot 17, next to the Hursts, had problems with
trespassers crossing his lot to gain access to Lot 43, so he
erected a three-foot-high, split-rail wood fence on the boundary
between Lots 17 and 43. On December 7, 1997, the Association
voted to erect a fence around the remaining open side of Lot 43.
The Hursts purchased Lot 16 in November 1997. On
September 14, 1998, the Association informed the Hursts that it
intended to construct a low, split-rail fence along the border
between Lot 43 and Lot 16. The fence was constructed in the same
style and material as the existing fence built by the owner of
Lot 17, which also borders Lot 43. It is a three-foot-high,
split-rail fence made of wood. It is secured by wood posts
inserted approximately two feet in the ground.
B. Procedural History
On September 24, 1998, the Hursts filed a complaint
alleging that the fence violated the terms of the restrictive
covenant and asking for declaratory judgment, damages, injunctive
relief, and attorneys fees.1 The Hursts and the Association both
moved for summary judgment. On April 11, 2001, Superior Court
Judge Peter A. Michalski concluded that the wood fence did not
violate the prohibition against permanent structures, considering
the covenants purpose to set aside land for non-intensive
recreational and park purposes . . . while at all times allowing
for maximum protection of natural vegetation. Final judgment was
entered on June 6, 2001. The Hursts appeal.
III. STANDARD OF REVIEW
We uphold summary judgment only if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.2 The interpretation of a covenant
is a question of law to which we apply our independent judgment.3
Findings of fact will not be disturbed unless they are clearly
erroneous.4
IV. DISCUSSION
A. The Fence Is Not Prohibited by the Restrictive Covenant.
A. A. The issue before us in this case is whether the split-
rail wood fence on Lot 43 violates the terms of the restrictive
covenant. Both parties have focused on whether other courts have
considered fences to be permanent structures in other contexts.
Indeed, the Hursts primary argument is that a fence is a
permanent structure, and that it therefore violates the terms of
the restrictive covenant.5 The Hursts cite Thomas v. Depaoli,
where a Missouri appellate court concluded that [t]he majority
rule appears to be that the word building in a restrictive
covenant intended to restrain obstruction of view will include
any structure having that effect, including a fence.6 The Hursts
also rely on Freedman v. Kittle, where a New York appellate court
determined that a fence violated a propertys restrictive covenant
that prohibited structures thereon, reasoning that use of the
term thereon evinced an intent to have views remain unobstructed.7
However, both of these cases focused on the intent of the parties
drafting the covenants to prevent obstruction of views. In
contrast, the covenant at issue in this case was not drafted to
preserve views for adjacent lot owners, but to maintain Lot 43
for non-intensive recreational and park purposes. We are thus
guided in our analysis by the specific language and purpose of
the covenant restricting Lot 43.
Whether a fence falls within the operation of a
restrictive covenant prohibiting permanent structures depends
upon the purpose of the restriction and the nature of the fence.8
In keeping with this basic principle, the Association suggests
two questions that must be answered to determine whether the
fence is a structure prohibited by the covenant: what was the
purpose of setting aside Lot 43 and does the fence contravene
that purpose? The Association maintains that Lot 43 was set
aside for non-intensive recreational purposes and was meant to
have limited walkway access in order to protect the natural
vegetation. Since the fence furthers these purposes, the
Association asserts, it is not a structure under the terms of the
covenant. In general, we agree. A three-foot-high, split-rail
wood fence does not interfere with or materially obstruct the
intended use of the land for non-intensive recreational purposes.
If Lot 43 were completely surrounded by a high, impenetrable
fence, it could interfere with the intended use of the land, but
Lot 43 is accessible by two common entrances, one of which is
right next to the Hursts property.
Interpretation of restrictive covenants is guided by
several canons. Where the language of the covenant is not
ambiguous, the plain meaning governs.9 Where the language of the
covenant is ambiguous, judicial construction is necessary.10
Covenants are construed within their own four corners.11 They are
also construed to effectuate the intent of the parties.12 Once
the intentions of the parties to the covenant are known, their
intention serves to limit the scope and effect of the
restriction.13 Because restrictions are in derogation of the
common law, they should not be extended by implication, and
doubts should be resolved in favor of the free use of land.14
Several aspects of the covenant are relevant to our
inquiry. First, the covenant prohibits permanent structures and
allows incidental recreational structures by way of a non-
exhaustive list. Since a fence is not for recreation, it cannot
be included in the list of incidental recreational structures
without stretching the meaning of that language. However, the
covenant also specifically permits signs to help enforce proper
use of Lot 43.
While only Part D of the covenant actually restricts
Lot 43,15 other provisions of the covenant shed light on the
intended meaning of permanent structure. For example, Part B-8
provides that [n]o structure of a temporary character (trailer,
basement, tent, shack, garage, barn or other outbuilding) shall
be used on any lot at any time as a residence. The Association
points out that the examples of structures in this section are
all buildings of a size sufficient to house a resident. Part C-1
of the covenant instructs that no building, structure, fence or
other improvement shall be constructed, placed, erected, re-
painted, altered or made without the express approval of the
Architectural Control Committee. The Association argues that
[i]n this section, structure does not include a fence because
fence is listed separately from structure. Based upon these uses
of the term in other parts of the covenant, the trial court
concluded that the covenant drafters intended a narrower use of
the term structure. We agree. When considered in the context of
the whole document, the term structure does not include a fence.
Moreover, the purpose of the covenant is plain: Lot 43
shall only be used for non-intensive recreational and park
purposes such as an informal play/picnic area, limited landing
for small, manually transportable boats and limited walkway
access, while at all times allowing for maximum protection of
natural vegetation. Thus, the intent of the covenant was to
maintain Lot 43 for non-intensive recreational and park purposes
and the fence is consistent with that purpose. Indeed, limited
walkway access is entirely consistent with construction of a low
fence. The fence may interfere with the Hursts previously
unobstructed view of the lake and the illusion of space and
openness, but the covenant was drafted to protect Lot 43, not the
view from Lot 16. Therefore, we conclude that the low, split-
rail fence on Lot 43 is not a permanent structure within the
meaning of this covenant.
The Association also urges this court to consider the
duties imposed upon the Association by the covenant to maintain,
preserve, improve and control the interest in such Lot for the
use and benefit of all owners in the Victoria Park Subdivision.
The construction of the fence preserves and controls the use of
the lot for the benefit of the owners in accordance with that
duty. Indeed, it appears that concern for this duty was the
reason the Association constructed the fence the Association was
attempting to maintain and preserve the lot in light of
difficulties with previous owners of Lot 16, as well as random
trespassers. In addition, the Association built the fence to
demarcate clearly Lot 43s boundary line as other landowners had
attempted adverse possession by extending their gardens and
flower beds well onto Lot 43. Thus, the fence comports with the
general, affirmative duty that the covenant imposes upon the
Association.
B. The Hursts Argument that the Fence Prevents Reasonable
Access to Lot 43 Will Not Be Considered.
In their reply brief, the Hursts argue that the fence
prevents reasonable access to Lot 43. They assert they must now
find a public easement somewhere else or literally climb over the
[Associations] fence. This argument was raised for the first
time in reply and was not made in the trial court. Therefore it
is not properly before us, and we decline to consider it.16
V. CONCLUSION
We conclude that the fence does not violate the
restrictive covenants prohibition of permanent structures on Lot
43. In addition, the fence properly effectuates the affirmative
duty imposed by the covenant on the Association to maintain and
protect Lot 43. The decision of the trial court is AFFIRMED.
_______________________________
1 The complaint was later amended to add a second count,
but no issue involving that count is before this court.
2 Stadnicky v. Southpark Terrace Homeowners Assn, 939
P.2d 403, 404 (Alaska 1997).
3 Kohl v. Legoullon, 936 P.2d 514, 516 n.1 (Alaska 1997).
4 Id.
5 The Association responds by suggesting that a fence is
not permanent where its posts are not supported by a cement
foundation. Town of Ogden Dunes v. Wildemuth, 235 N.E.2d 73, 75
(Ind. App. 1968). We find this approach unavailing and decline
to employ it.
The Hursts also point out that fences are considered
permanent structures in the Anchorage building and zoning codes.
Furthermore, they suggest that this courts decision in Persson-
Mokvist v. Anderson allows reference to state and local
regulations and building codes for interpretation of the covenant
at issue. 942 P.2d 1154 (Alaska 1997). Persson-Mokvist
concerned state land that was subdivided into five-acre lots and
had a plat note that stated, [t]his subdivision is for
residential/recreational use. Id. at 1155. In order to discern
the meaning of residential use and recreational use, we looked to
definitions of these terms in state land disposal and planning
regulations in existence when the subdivision was created. Id.
at 1156. However, Persson-Mokvist did not involve a restrictive
covenant, and the court consequently had no point of reference to
determine the meaning of the language or the intent of the
parties. Persson-Mokvist thus lacks the operative legal
instrument central to this case and is therefore of little use.
6 778 S.W.2d 745, 749 (Mo. App. 1989).
7 693 N.Y.S.2d 651, 653 (N.Y. App. 1999).
8 20 Am. Jur. 2d Covenants, Conditions, and Restrictions
190, 224 (1995).
9 Gordon v. Brown, 836 P.2d 354, 357 (Alaska 1992);
Lamoreux v. Langlotz, 757 P.2d 584, 587 (Alaska 1988); 20 Am.
Jur. 2d Covenants, Conditions, and Restrictions 171.
10 20 Am. Jur. 2d Covenants, Conditions, and Restrictions
171.
11 See Lamoreux, 757 P.2d at 587.
12 Id.; 20 Am. Jur. 2d Covenants, Conditions, and
Restrictions 16, 171.
13 20 Am. Jur. 2d Covenants, Conditions, and Restrictions
171.
14 Lamoreux, 757 P.2d at 587; see also Kalenka v. Taylor,
896 P.2d 222, 226 (Alaska 1995); Lenhoff v. Birch Bay Real
Estate, Inc., 587 P.2d 1087, 1089 (Wash. App. 1978).
15 The covenant provides that Lot Forty-three (43) shall
be subject only to the provisions of Part D herein. The parties
agree that although Lot 43 is only restricted by Part D, the
meaning of the terms in Part D should be considered in the
context of how those terms are used in other parts of the same
document; this accords with the covenant canons of construction.
20 Am. Jur. 2d Covenants, Conditions, and Restrictions 171.
16 Arguments raised for the first time in a reply brief
will not be considered. Sumner v. Eagle Nest Hotel, 894 P.2d 628,
632 (Alaska 1995). Moreover, arguments made for the first time
on appeal will not be considered. Hoffman Constr. Co. of Alaska
v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska
2001).
