Northwest Properties Brokers Network, Inc. v. Early Dawn Estates Homeowners' Ass'n

295 P.3d 314, 173 Wash. App. 778
CourtCourt of Appeals of Washington
DecidedFebruary 20, 2013
DocketNo. 42426-6-II
StatusPublished
Cited by13 cases

This text of 295 P.3d 314 (Northwest Properties Brokers Network, Inc. v. Early Dawn Estates Homeowners' Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northwest Properties Brokers Network, Inc. v. Early Dawn Estates Homeowners' Ass'n, 295 P.3d 314, 173 Wash. App. 778 (Wash. Ct. App. 2013).

Opinion

Van Deren, J.

¶1 The trial court issued a declaratory judgment in this dispute about the relative rights and obligations of servient and dominant easement holders. Early Dawn Estates Homeowners’ Association (EDE), the servient easement owner, appeals the trial court’s rulings granting relief to Frank Fredericks, the dominant easement owner, settling the dispute over the uses of his easement. There is no dispute that the easement is located over a road [782]*782within the development that provides access to EDE, the county road, and Fredericks’s four-house development, which includes his business and personal residence. Based on the nature of the disputed issues and the trial court’s rulings, we review the trial court’s rulings for abuse of discretion instead of reviewing them de novo, the usual standard of review for a declaratory judgment case.

¶2 EDE argues that the trial court abused its discretion when it concluded that (1) EDE unreasonably interfered with Fredericks’s easement rights when it denied him a key to the control box of the locked access gate so he could leave the gate open at will, (2) Fredericks need pay only a pro rata share of the maintenance costs for his portion of the road easement, (3) Fredericks could include his two business names on the directory at the access gate and could post a sign for his property at the entrance, and (4) Fredericks’s use of his all-terrain vehicle (ATV) did not exceed the scope of his easement.

¶3 We reverse the trial court’s conclusion that EDE unreasonably interfered with Fredericks’s easement rights when it required him to obtain permission to leave the locked gate open and refused to give him a key to the control box; thus, we vacate that order but we affirm the trial court’s other rulings.

FACTS

¶4 EDE is a 31-lot residential community created in 1978, located off Gabriel Road in Yacolt, Washington. Fredericks purchased property adjacent to EDE in 2000. In 2002, he created a four-lot short plat; he then retained one lot and sold the other three. The only access from Gabriel Road (the county road) to the Fredericks’s short plat is Northeast 159th Avenue, a private road located within EDE. When Fredericks purchased his property, he obtained [783]*783a nonexclusive 60-foot easement for ingress, egress, and utilities along 159th.1

I. Road Maintenance

¶5 In 1978, the EDE created a road maintenance agreement for roads within the boundaries of the subdivision. EDE’s covenants, conditions, and restrictions (CC&Rs), created in 1990, require EDE property owners to maintain and repair roadways in EDE including, but not limited to, 159th, and to pay for such upkeep through roadway maintenance assessments. The annual assessment was $250, but when special projects arose, EDE levied additional assessments. Various EDE members also contributed their labor and services for road maintenance, which reduced the cost of road work to less than what hired contractors would have charged for similar work. Approximately 80 percent of expenditures for road maintenance incurred by EDE were for 159th.

¶6 Although Fredericks is not a party to EDE’s road maintenance agreement, he and the other lot owners in his short plat are required to contribute to maintenance of 159th under their own road maintenance agreement. The county’s approval for the short plat required Fredericks to create a road maintenance agreement that included “the owners of Lots 1-4 [of Fredericks’s short plat] among those responsible for the maintenance of [159th].” Ex. 35, at 6. To obtain county approval, he also had to pave a 25-foot portion of 159th that connects to the county road.

¶7 Fredericks created the required agreement that provided, “[A] 11 property owners (Lots 1, 2, 3, & 4) are responsible for maintenance of N[ortheast] 159th Avenue to Gabriel Road.” Ex. 8, at 3. The agreement allowed Fredericks’s short plat property owners to meet their road maintenance obligation by (1) performing the maintenance themselves, (2) paying subcontractors to have the maintenance per[784]*784formed, or (3) paying association fees for road maintenance. If the parties chose to pay fees, Fredericks’s short plat agreement provided that the fees were to be paid first to Fredericks but, “[a]fter all the lots are sold, the property owners will vote [for] a representative to handle the road maintenance.” Ex. 8, at 3. The record does not show that the homeowners in Fredericks’s short plat had chosen a representative to handle road maintenance.2

¶8 Fredericks contributed to road and gate maintenance at various times after he purchased the property, by repairing and sandblasting the gate after its condition had deteriorated and by purchasing truckloads of rock to cover the road on two occasions. He estimated that the total cost for his road and gate maintenance was approximately $4,125.

¶9 Because Fredericks used the road and the gate, EDE asked that he pay the same annual assessment as EDE homeowners. For two years, Fredericks paid the $250 EDE road maintenance assessment, but he stopped paying because he did not believe he should be required to make the same payments as EDE members since he was not a party to EDE’s road maintenance agreement and because he had contributed to road and gate maintenance in the past.

II. The Gate

¶10 In the early 1990s, before Fredericks purchased his property, EDE installed a security gate at the entrance to 159th. Before the gate’s installation, EDE had experienced problems with trespassers who left garbage on the property and who caused road damage.

¶11 In 1999 or early 2000, out of concern for its residents’ safety, EDE installed a device that allowed the gate to open automatically in the event of a power failure. As a result of installing the device, the gate could be maintained in an [785]*785open position by turning off the gate’s power at its electrical panel.

¶12 Eventually, trespassers discovered how to turn off the gate’s electrical power to open the gate and access the property. On one occasion after the gate was left open, an EDE resident was the victim of an armed home invasion. EDE then repeatedly installed a locked plastic cover over the electrical panel, but each time EDE did so, the lock and plastic cover were broken off. As a result, in 2008, EDE installed a locked metal cover over the gate’s electrical panel. For security, only a limited number of EDE residents were given keys to the metal cover. In addition, because frequently turning off the power at the electrical panel could damage the panel and could result in increased maintenance costs, EDE did not want the gate’s electrical power turned off on a regular basis.

¶13 The gate could be opened in four ways. First, homeowners could use a remote device to open the gate from their vehicles. Second, a keypad near the gate allowed each homeowner to enter their personal four-digit code to open the gate, and they could also give the code to their guests. The code could be changed at the homeowner’s request. Third, guests could use a directory located near the keypad to find the two-digit number of the person whose property they sought to access. When the visitor entered the code, it alerted the homeowner on either their cellular or home telephone and the homeowner could remotely open the gate using his or her telephone.

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Bluebook (online)
295 P.3d 314, 173 Wash. App. 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northwest-properties-brokers-network-inc-v-early-dawn-estates-washctapp-2013.