Richard Mansor & Toni Mansor v. Jabco, Inc.

• Court: Court of Appeals of Washington
• Decided: September 2, 2021
• Docket: 37771-7
• Status: Unpublished

Opinion

FILED SEPTEMBER 2, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

RICHARD MANSOR and TONI ) No. 37771-7-III MANSOR, husband and wife, ) ) Respondents, ) ) UNPUBLISHED OPINION v. ) ) JABCO, INC., a Washington corporation, ) ) Appellants. )

PENNELL, C.J. — Jabco, Inc. appeals a summary judgment order issued in favor of

Toni and Richard Mansor, enjoining Jabco’s nonresidential use of its property based on a

restrictive covenant. We affirm.

FACTS

The parties own land in a subdivision subject to restrictive covenants. The

covenant applicable to this case states:

This plat is approved as a residential subdivision and no tract is to have more than one single family residential unit. Conversion of any lot to other than its authorized occupancy must be in accordance with authorizations associated with separate application and procedure.

Clerk’s Paper’s (CP) at 171. No. 37771-7-III Mansor v. Jabco, Inc.

Despite the wording of the covenant, Jabco obtained a conditional use permit from

Stevens County allowing it to pursue commercial use of its land. The Mansors did not

contest the county’s conditional use permit. Instead, they filed an action in superior court

for declaratory judgment and for an injunction against Jabco’s nonresidential use of the

property. The Mansors claimed Jabco’s nonresidential use of its property violated the

property’s covenant. The superior court agreed and issued a summary judgment order in

the Mansors’ favor. Jabco appeals.

ANALYSIS

Jabco contends the summary judgment order should be reversed because the

wording of the covenant gave Stevens County the authority to modify the restrictive

covenant and authorize a nonresidential use of the property. Covenant interpretation

presents a legal question governed by contract interpretation rules. Wilkinson v.

Chiwawa Cmtys. Ass’n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014). Our primary

objective in interpreting covenants or contracts is to discern the drafters’ intent. Id. at 250.

Intent is a factual question. But when the available evidence warrants but one conclusion,

assessing intent may be determined by this court as a matter of law, de novo. See id.

The parties spend much of their briefing debating which entity was authorized to

issue exceptions to the covenant’s restrictions. According to Jabco, Stevens County held

2 No. 37771-7-III Mansor v. Jabco, Inc.

this power. The Mansors counter that authorization can only be obtained from the

property owners. The covenant itself is silent on this issue. Rather than try to fill in the

gaps, we find the parties’ dispute is most easily resolved by focusing on the wording of

the covenant and the nature of the applicable restrictions and exceptions.

We turn first to the initial sentence of the covenant. This sentence identifies two

governing restrictions. The first restriction pertains to the use of the subdivision and states

that the area shall be residential. The second restriction pertains to occupancy and states

no tract within the subdivision shall have more than one family unit.

The covenant’s second sentence addresses exceptions to the restrictions. It states,

“Conversion of any lot[1] to other than its authorized occupancy must be in accordance

with authorizations associated with separate application and procedure.” CP at 171.

The wording of this exception is limited. The covenant recognizes the possibility of

exceptions to the restrictions on “occupancy.” However, there is no provision allowing

exceptions to the restrictions on use.

1 The second sentence uses the word “lot” instead of “tract,” which is used in covenant’s first sentence. This distinction is immaterial. At the time the covenant was written, the two terms were interchangeable. See Former RCW 58.17.020(8) (1969). (defining “lot” to “include tracts or parcels”).

3 No. 37771-7-III Mansor v. Jabco, Inc.

Restrictions on occupancy are different from restrictions on use. Occupancy refers

to the number of people or households authorized to inhabit a piece of land. Use refers to

the purpose to which the property is directed. Covenants, like the one in this case, often

restrict both occupancy (single-family homes) and use (residential purposes). But not

always. A covenant may restrict structures to single-family occupancy, but still allow for

nonresidential land use. See Burton v. Douglas County, 65 Wn.2d 619, 622, 399 P.2d 68

(1965). Alternatively, a covenant might restrict land to residential use, but allow for

multi-family occupancy. See Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d

810, 819, 854 P.2d 1072 (1993) (discussing permissibility of roughly a dozen nuns’

residential use of property given no single-family residential restriction in Hunter Tract

Improvement Co. v. Corp. of Catholic Bishop, 98 Wash. 112, 167 P. 100 (1917)).

The covenant here restricts both occupancy and use, but the exceptions to

restrictions apply only to occupancy. By its plain terms, the covenant allows a home

owner to obtain authorization for a nonconforming multi-family building. However,

there is no procedure for avoiding the covenant’s residential use restriction.

Because the covenant does not allow for exceptions to residential use, it does not

matter whether Stevens County, or some other entity, was authorized to issue exceptions

4 No. 37771-7-III Mansor v. Jabco, Inc.

to the covenant’s restrictions. Jabco’s request for relief from the residential use restriction

is simply not available under the terms of the covenant.

As an alternative argument, Jabco contends the restrictive covenant is no longer

enforceable because, under RCW 58.17.170, the terms of a subdivision plat are effective

for no longer than 10 years. We disagree. RCW 58.17.170(3)(b) relates to the length of a

property owner’s vested development rights. See Jones v. Town of Hunts Point, 166 Wn.

App. 452, 458, 272 P.3d 853 (2011) (interpreting former RCW 58.17.170 (2010)). It does

not limit the duration of private land use covenants. See id.

As recognized in the superior court’s summary judgment ruling, enforcement of

public zoning laws and private restrictive covenants are distinct processes governed by

separate rules and interests. The fact that Jabco obtained approval for nonresidential use

of its property through the county’s zoning procedures does not mean it was entitled to

disregard restrictions contemplated by private covenant. Because the covenant pertaining

to Jabco’s property prohibits nonresidential use without the possibility of exceptions, the

superior court properly issued a summary judgment order in the Mansors’ favor.

CONCLUSION

The summary judgment order is affirmed. We deny the Mansors’ request for

attorney fees under RAP 18.1 and RAP 18.9 as Jabco’s appeal is not wholly frivolous.

5 No. 37771-7-111 Mansor v. Jabco, Inc.

A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Pennell, C.J.

WE CONCUR:

~~~'1f·l· J41 Staab, J.