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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).