IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE LAKE TRUST, a revocable trust governed by the laws of Washington, No. 83761-3-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
SKAGIT COUNTY, a Washington municipal corporation including its PLANNING & DEVELOPMENT SERVICES,
Defendant,
RICHMOND JPJ ENTERPRISES INC., a Washington corporation, and NIELSEN BROTHERS, INC., a Washington corporation,
Respondents.
MAXA, J.1 – The Lake Trust appeals the trial court’s rulings after a bench trial that
(1) a subdivision plat’s restrictive covenant that prohibited the use of lots for commercial
business purposes did not apply to real estate holding company Richmond JPJ
Enterprises, Inc.’s (JPJ) and logging company Nielsen Brothers, Inc.’s (NBI) use of a lot
in the subdivision for their commercial logging operations, and (2) the restrictive
covenant had been abandoned. The trial court stated that the term “commercial
business” normally would apply to a logging operation. But the court concluded that the
1 The Honorable Bradley Maxa is a judge on the Court of Appeals, Division Two, sitting
in Division One pursuant to RCW 2.06.040 by order of the Associate Chief Justice. No. 83761-3-I
historical context of the area when the subdivision was platted in the 1940s, specifically
the fact that timber was actively being harvested and transported through the
subdivision, showed that the covenant was not intended to apply to logging operations.
The trial court also held that the abandonment defense applied because after the
subdivision was platted, the area continued to be used for logging activities.
We reverse the trial court’s decision and remand for the trial court to enter
judgment in favor of the Lake Trust.
FACTS2
Parties and Relevant Properties
The Lake Trust owns two lots in division 3 of the Lake Cavanaugh Subdivision in
Skagit County (Lake Trust property). Both of the lots are located on South Shore Drive.
One of the lots abuts the shore of Lake Cavanaugh and is improved with a single family
residence. The other lot is upland across South Shore Drive and is vacant. Robert
McCullough is trustee of the Lake Trust. McCullough and his wife acquired the Lake
Trust property in September 2004 and later transferred ownership to the Trust.
JPJ, West Side Logging, LLC and Timberline Logging, Inc. are real estate
holding companies either affiliated with, run by, or owned by brothers Robert Nielsen
and David Nielsen. NBI is a logging and contracting company that also is either
affiliated with or owned by the Nielsen brothers. NBI contracts with JPJ, West Side and
Timberline to harvest timber from their properties.
2 The parties stipulated to many of the relevant facts, and the stipulation was adopted by
the trial court in its findings of fact. Other facts come from unchallenged findings of fact.
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In 2018, JPJ acquired a lot in division 3 of the Lake Cavanaugh Subdivision (“JPJ
property”). The lot is located on South Shore Drive approximately 2,500 feet away from
the JPJ Property. JPJ purchased the lot for the sole purpose of using it for an access
road for NBI’s logging operations on the timberlands.
Timberline and West Side own four parcels of land totaling approximately 276
acres abutting the Lake Cavanaugh Subdivision (“Timber property”). The zoning of the
Timber property allows timber cultivation and harvest of forest products.
Historical Background
In the early 1940s, the English Lumber Company owned much of the land
surrounding Lake Cavanaugh, including what is now the Timber property, the Lake
Trust property, and the JPJ property. English Lumber harvested timber on the
properties using a series of roads and rail lines to move equipment and to remove and
transport timber.
In January 1945, English Lumber sold most of its timberlands around Lake
Cavanaugh (“timberlands”) to Puget Sound Pulp and Timber Company, including most
of the Timber property. English Lumber retained the property it owned abutting Lake
Cavanaugh (“Lake Cavanaugh lands”).
In September 1945, English Lumber sold the Lake Cavanaugh lands to Leslie
Eastman. The deed to Eastman stated that the deed was subject to an easement
created under an agreement dated as of January 1, 1945 (1945 agreement) between
the seller, English Lumber, and the purchaser, Puget Sound Pulp.3 Under the 1945
3 The original 1945 agreement was not independently recorded and the parties to this
lawsuit have been unable to find a copy of the original agreement.
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Agreement, Puget Sound Pulp was permitted reasonable rights of way over the Lake
Cavanaugh lands for the purpose of logging its timber. These rights of way and Puget
Sound Pulp’s rights expired 10 years from the date of the agreement. The deed to
Eastman also was subject to easements granted to the State Division of Forestry to
construct and maintain roads for forest protection purposes and other agreements.
Between 1946 and 1948, Eastman, Eastman’s estate, and other successors-in-
interest (primarily Richard Shorett, trustee) subdivided the Lake Cavanaugh lands into
the Lake Cavanaugh Subdivision. Lake Cavanaugh division 3 was recorded in July of
1948 and created approximately 244 lots.
The plat maps for divisions 2 and 3 of the Lake Cavanaugh Subdivision
dedicated rights of ways for public travel including what would later become South
Shore Drive. The plat map for division 3 also dedicated a right of way between lots 20
and 21 of Block 2. The face of the plat division 3 includes the following “Restriction”:
“No lots shall be used for commercial business or manufacturing purposes.” Clerk’s
Papers (CP) at 449. The face of the plat also contains a “Title Certificate,” which
identifies easements that encumber the lots in division 3 granted to the State Division of
Forestry and Puget Sound Pulp. CP at 449.
Use of JPJ Property
Tract A of division 3, together with tracts A, B, and C of division 2 and other
property conveyed by English Lumber to Puget Sound Pulp in 1945, make up the whole
of the Timber property. Westside and Timberline acquired the Timber property from
Weyerhaeuser Company in 2018.
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In July 2019, West Side, Timberline, and JPJ (as landowner) and NBI (as timber
owner and operator) submitted a Forest Practice Application (FPA) to the Department of
Natural Resources (DNR) for the harvest of timber on approximately 25 acres of the
Timber property. The FPA proposed using the JPJ property for access to the Timber
property. DNR approved the FPA in August 2019.4 Under the FPA, logging operations
could take place only from May 15 through September 30.
The FPA proposed three separate harvest areas: units 1, 2 and 3. Units 1, 2 and
3 are separated by streams and/or gullies. The FPA proposed two separate road
systems to access the harvest areas from South Shore Drive because unit 1 cannot
connect to units 2 and 3 without construction of a large and expensive bridge. Road A
accesses unit 1 from South Shore Drive through the right of way between lots 20 and 21
as designated in the plat for division 3. Road B provides access to units 2 and 3 from
South Shore Drive by connecting with Road C. Road B connects South Shore Drive to
the Timber property by going through the JPJ Property.
After DNR approved the FPA, JPJ submitted a County Road Access Application
to construct access from the JPJ property to South Shore Drive for Road B. The
application identified the access as commercial. The County approved the application
and required JPJ to construct the access to Commercial Class Road Approach
standards.
The JPJ property was used for the transit of vehicles (including but not limited to
logging trucks, bulldozers and logging equipment) to and from the Timber property to
4 The Lake Cavanaugh Trust appealed the FPA. Robert McCullough is a board member of the Lake Cavanaugh Trust.
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South Shore Drive. JPJ and NBI have used and continue to use the JPJ property to
remove timber from Units 2 and 3. The removal of timber included the transport of
logging equipment and road building machinery and equipment as well as the
employees needed to remove approximately 900,000 board feet of timber from units 2
and 3 and to transport the timber to various mills in the region. Log trucks went through
the JPJ property to haul timber out of the Timber property.
Lawsuit and Trial
In October 2019, the Lake Trust filed a lawsuit against JPJ and NBI that included
a claim for breach of the commercial business restrictive covenant and requested
declaratory judgment and injunctive relief. The Lake Trust alleged that JPJ’s and NBI’s
use of the JPJ property for commercial access associated with commercial logging
violated the restrictive covenant. In their answer, JPJ and NBI asserted affirmative
defenses of abandonment of the covenant, equitable cancellation or modification of the
covenant, and waiver. They also asserted counterclaims for a private way of necessity
and implied easement.
The trial court presided over a two-day bench trial. The court entered a
Memorandum and Order Following Trial. In addition to adopting the parties’ stipulated
facts, the court issued detailed findings of fact and conclusions of law.
Findings of Fact
The trial court found that the January 1, 1945 agreement allowed for Puget
Sound Pulp to have an easement for purposes of transporting timber across the Lake
Cavanaugh lands. And after the timberlands were conveyed to Puget Sound Pulp,
Puget Sound Pulp used the timberlands to harvest timber. In the late 1940s and early
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1950s, Puget Sound Pulp removed the railroads and converted those grades to trucking
roads.
The trial court further found as follows:
Because Leslie Eastman was aware of the January 1, 1945 Agreement, [Puget Sound Pulp’s] logging operations in the timberlands, and [Puget Sound Pulp’s] continued rights of way over what was to become Subdivision 3 when he created the subdivision. It was his intention to exclude logging transit to and from the timberlands from the term “commercial business.”
CP at 544 (emphasis added).
Regarding Road B, the trial court found that Road B connects the Timber
property to South Shore Drive via the JPJ property. The court found that Road B was in
existence, either as a road or a railroad grade, before English Lumber’s sales to Puget
Sound Pulp and Eastman. The road was in use after conveyance of the timberlands to
Puget Sound Pulp and into the 1950’s, but there is no evidence that Road B remained
in use on or after January 1, 1955.
Regarding the JPJ property, the trial court found that JPJ purchased the property
solely to use it as an access road for NBI’s logging on the timberlands. The court found,
“JBJ [sic] and NBI’s interests on the property are purely related to the commercial
business of logging.” CP at 543. JPJ/NBI’s anticipated use of the JPJ property was to
have logging and dump trucks pass through the lot for at least eight weeks each year
over the course of three or four years. The logging trucks would be expected to cross
the property up to 24 times a day while going to and from the timberlands. It takes a
couple of minutes for trucks to cross the JPJ property. The timber harvest on the
timberlands is expected to produce a gross amount of $4 million of timber.
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The trial court found that the restrictions for division 3 include a prohibition on use
“for commercial business or manufacturing purposes.” CP at 545. The court
specifically found that “JBJ [sic] and NBl’s intended use of the JBJ [sic] Property is for
commercial business.” CP at 545.
Regarding JPJ/NBI’s abandonment defense, the trial court discussed the uses of
four properties in division 3 of the Lake Cavanaugh subdivision. In 2004, James and
Amy Weppler were granted a permit for the purposes of harvesting merchantable
timber, along with road construction, on their lot. The logging was not for purposes of
clearing the lot for construction of a residence. The Weppler property was logged at
some point between 2004 and 2008.
The Linert property also is in division 3, and the property’s primary use is as a
single family residence. The property owner, Brett Linert, has lived there for 25 years.
Linert operates a handyman business in which he goes to other properties to do work
on them. Linert has a small pickup truck for the business that he parks on his property.
The Secretary of State’s address for the business is Linert’s property.
Another property within division 3 had a connection with Happy Valley Trucking,
Inc. That property address was registered with the Secretary of State as the principal
mailing address for the business and its registered agent. The lot also contained an
occupied residence. The lot had several commercial vehicles parked on it, primarily
dump trucks and a trailer, and piles of rocks that likely were gravel until the property
changed hands shortly before trial. Happy Valley Trucking was actively running its
operations from that address. Trucks for Happy Valley Trucking had been observed
entering and exiting that property over the last several years.
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At least one home within division 3 was rented as a VRBO vacation property.
Nothing about the outward appearance of that building would suggest that it was
anything other than a residence.
Conclusions of Law
The trial court denied the Lake Trust’s breach of covenant claim and dismissed
that claim. The court provided the following analysis:
Here, [Puget Sound Pulp] was actively logging the timberlands at the time that phrase was added to the plat restrictions. The January 1, 1945 Agreement and evidence of multiple old railroad grades and truck roads leading into South Shore Drive indicate that the Lake Cavanaugh Lands and specifically Subdivision 3 would be used for access to the timberlands at least through 1954 and potentially longer depending on the use of the right of way or the easement contemplated in the January 1, 1945 Agreement.
While the intention in subdividing the property was to create a more residential area around Lake Cavanaugh, Leslie Eastman clearly contemplated that logging operations would be a component of the area. Under the January 1, 1945 Agreement, logging operations were required to transit through Subdivision 3 for several more years after the subdivision was platted in 1948. The term “commercial business” would normally apply to a logging operation, but it does not given the historical context of the area surrounding Lake Cavanaugh. The intended use for Subdivision 3 at the time of its creation was for it to be a residential area around the lake that allowed access to the timberlands, where [Puget Sound Pulp] was actively harvesting timber and entitled to liberal rights of way through Subdivision 3 through the end of 1954.
CP at 548 (emphasis added).
The trial court also ruled that JPJ/NBI’s abandonment affirmative defense
applied.5 The court stated,
Here, there is substantial evidence that the timberlands continued to be logged after Subdivision 3 was platted and that areas such as Road B within the subdivision continued to be used into the 1950s for purposes of accessing the timberlands for logging. Even if the restrictive covenant was
5 The trial court declined to address the additional affirmative defenses of equitable cancellation and waiver.
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intended to exclude that type of use, it was immediately abandoned by then- owners of lots in Subdivision 3 who permitted such use.
CP at 549. The court did not mention the four uses of other lots discussed in the
findings of fact.
Finally, the trial court denied JPJ/NBI’s implied easement counterclaim. The
court stated, “Given the express language of the January 1, 1945 Agreement, the court
concludes that Road B was a temporary right of way and that an implied easement does
not exist for this potential access road to the timberlands.” CP at 550.
Lake Trust appeals the trial court’s Memorandum and Order Following Trial.
ANALYSIS
A. FAILURE TO PROPERLY ASSIGN ERROR
Initially, JPJ/NBI argue that all of the trial court’s findings of fact are verities on
appeal because Lake Trust did not specifically challenge any numbered findings of fact
in its notice of appeal or assignments of error. In reply, Lake Trust argues that it
sufficiently identified the issues for appeal. And in its reply brief, the Lake Trust also
formally assigns error to the trial court’s finding of fact 10 and the court’s conclusion of
law stating that the Lake Trust’s predecessors in interest abandoned the restrictive
covenants in the 1950s.
RAP 10.3(g) states, “A separate assignment of error for each finding of fact a
party contends was improperly made must be included with reference to the finding by
number. The appellate court will only review a claimed error which is included in an
assignment of error or clearly disclosed in the associated issue pertaining thereto.” The
Lake Trust assigned error generally to the trial court’s Memorandum and Order
Following Trial and did not specifically reference finding of fact 10 or any other finding.
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Unchallenged findings of fact are verities on appeal. Real Carriage Door Co. ex rel.
Rees v. Rees, 17 Wn. App. 2d 449, 457, 486 P.3d 955, review denied, 198 Wn.2d 1025
(2021).
Based on RAP 10.3(g), we typically do not review a claimed error not included in
an assignment of error. See Phillips v. Greco, 7 Wn. App. 2d 1, 9, 433 P.3d 509 (2018).
Nevertheless, in the exercise of discretion we can address findings of fact not included
in specific assignments of error where the nature of the challenge is apparent from the
content of the opening brief. Harris v. Urell, 133 Wn. App. 130, 137–38, 135 P.3d 530
(2006).
Here, the Lake Trust did not comply with the requirements of RAP 10.3(g).
However, the Lake Trust’s brief clearly indicated that it was challenging finding of fact
10, that Eastman’s intention was “to exclude logging transit to and from the timberlands
from the term ‘commercial business.’ ” CP at 544. And the Lake Trust’s brief clearly
challenged the trial court’s conclusion that abandonment had occurred. The issues
raised and grounds for appeal were clear enough that JPJ/NBI were able to discern
them and address Lake Trust’s arguments. Accordingly, we exercise our discretion and
consider the Lake Trust’s challenge to finding of fact 10 and the trial court’s finding of
abandonment.
B. STANDARD OF REVIEW
We review a trial court’s decision after a bench trial to determine whether the
findings of fact are supported by substantial evidence and whether the conclusions of
law are supported by the findings of fact. Real Carriage Door, 17 Wn. App. 2d at 457.
Substantial evidence is the amount of evidence sufficient to convince a rational, fair-
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minded person that a premise is true. Id. All evidence and reasonable inferences are
viewed in the light most favorable to the prevailing party. Id. As noted above, findings
of fact that are unchallenged are treated as verities on appeal. Id.
The trial court’s application of facts to law and the conclusions of law are
reviewed de novo. Id.
C. INTERPRETATION OF RESTRICTIVE COVENANT
The Lake Trust argues that the trial court erred in determining that JPJ/NBI’s
commercial logging activities did not violate the restrictive covenant prohibiting the use
of lots in the Lake Cavanaugh subdivision for commercial business purposes. The Lake
Trust claims that the trial court improperly used extrinsic evidence to interpret the term
“commercial business” to exclude logging operations. JPJ/NBI argues that the trial
court properly applied the context rule in interpreting the restrictive covenant to exclude
logging operations. We agree with the Lake Trust.
1. Legal Principles
Restrictive covenants are enforceable promises regarding the use of land. Viking
Props., Inc. v. Holm, 155 Wn.2d 112, 119, 118 P.3d 322 (2005), abrogated on other
grounds by Yim v. City of Seattle, 194 Wn.2d 682, 702, 704, 451 P.3d 694 (2019). The
purpose of restrictive covenants is “to make residential subdivisions more attractive for
residential purposes.” Hollis v. Garwall, Inc., 137 Wn.2d 683, 699, 974 P.2d 836 (1999).
Covenants are enforceable by injunctive relief if a plaintiff shows (1) a clear legal or
equitable right, and (2) a well-grounded fear of immediate invasion of that right. Id.
The interpretation of a restrictive covenant is a question of law, and we apply the
rules of contract interpretation in determining the meaning of a covenant. Wilkinson v.
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Chiwawa Communities Ass’n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014). The primary
objective in contract interpretation is determining the drafter’s intent. Id. at 250.
Although interpretation of a covenant is a question of law, the drafter’s intent is a
question of fact. Id. But questions of fact may be determined as a matter of law if
reasonable minds could reach but one conclusion. Id.
“In determining the drafter’s intent, we give covenant language its ‘ordinary and
common use’ and will not construe a term in such a way ‘so as to defeat its plain and
obvious meaning.’ ” Id. (quoting Mains Farm Homeowners Ass’n v. Worthington, 121
Wn.2d 810, 816, 854 P.2d 1072 (1993)). When examining the covenant language, we
must “consider the instrument in its entirety.” Wilkinson, 180 Wn.2d at 250.
In general, Washington courts follow the “objective manifestation theory” of
contract interpretation, under which the focus is on the reasonable meaning of the
contract language to determine the parties’ intent. Hearst Commc’ns, Inc. v. Seattle
Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). But to assist in determining the
meaning of contract language, including restrictive covenants, courts also apply the
Berg6 “context rule.” Hollis, 137 Wn.2d at 693, 696. This rule “enables trial courts to
look to the surrounding circumstances of the original parties to determine the meaning
of specific words and terms used in the covenants.” Id. at 696. The context rule allows
consideration of extrinsic evidence, but certain extrinsic evidence is not admissible: (1)
“[e]vidence of a party’s unilateral or subjective intent as to the meaning of a contract
word or term,” (2) “[e]vidence that would show an intention independent of the
6 Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990).
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instrument,” or (3) “[e]vidence that would vary, contradict or modify the written word.”
Id. at 695.
The court in Wilkinson emphasized the limited use of extrinsic evidence. 180
Wn.2d at 251-52. The court stated that extrinsic evidence can be used only “ ‘to
illuminate what was written, not what was intended to be written.’ ” Id. at 251 (quoting
Hollis, 137 Wn.2d at 697). Further, courts “do not consider extrinsic ‘[e]vidence that
would vary, contradict or modify the written word’ or ‘show an intention independent of
the instrument.’ ” Wilkinson, 180 Wn.2d at 251 (quoting Hollis, 137 Wn.2d at 695).
2. Trial Court Findings and Conclusions
The trial court made unchallenged findings of fact that “JPJ purchased the JPJ
property solely for purposes of using it as an access road for NBI’s logging on the
timberlands” and “JBJ [sic] and NBI’s interests on the property are purely related to the
commercial business of logging.” CP at 543 (emphasis added). In addition, the trial
court made an unchallenged finding of fact that “JBJ [sic] and NBI’s intended use of the
JPJ Property is for commercial business.” CP at 545 (emphasis added). And the court
noted in its conclusions of law that “[t]he term ‘commercial business’ would normally
apply to a logging operation.” CP at 548.
Nevertheless, the trial court relied on extrinsic evidence to make a finding of fact
that “[i]t was [Eastman’s] intention to exclude logging transit to and from the timberlands
from the term “ ‘commercial business’ ”, and to conclude that the term “ ‘ commercial
business’ “ does not apply to logging operations “given the historical context of the area
surrounding Lake Cavanaugh.” CP at 548. The court focused on the fact that when the
restrictive covenant was included in the plat for division 3 in 1948, Puget Sound Pulp
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was actively harvesting timber in the timberlands and had a right of way to use division
3 for access to the timberlands until at least the end of 1954. As a result, the court
found that Eastman “clearly contemplated that logging operations would be a
component of the area.” CP at 548.
The dispositive issue here is whether the trial court properly relied on extrinsic
evidence to determine the meaning of “commercial business” in the restrictive covenant.
3. Analysis
There is little question that the ordinary, common, plain, and obvious meaning of
the term “commercial business” includes JPJ/NBI’s logging activities. The trial court
expressly found that JPJ and NBI used the JPJ property for “commercial business,” and
concluded that a logging operation “normally” would constitute a commercial business.
CP at 548. JPJ/NBI suggest that the term “commercial business” is ambiguous, but the
trial court’s unchallenged findings refute that suggestion. The trial court confirmed that
a logging operation is a commercial business.
As a result, the trial court necessarily was not using extrinsic evidence “to
determine the meaning of specific words and terms used in the covenant[],” Hollis, 137
Wn.2d at 696, or to “ ‘to illuminate what was written.’ ” Wilkinson, 180 Wn.2d at 251
(quoting Hollis, 137 Wn.2d at 697). The trial court already had determined the meaning
of the term “commercial business.” Instead, the trial court used extrinsic evidence to
conclude that even though a logging operation was a commercial business, Eastman
intended to exclude logging operations from the scope of the restrictive covenant. But
the covenant contained no such exclusion, and instead stated without qualification that
use for commercial business purposes was prohibited.
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The Supreme Court in Wilkinson was clear: courts “do not consider extrinsic
‘[e]vidence that would vary, contradict or modify the written word’ or ‘show an intention
independent of the instrument.’ ” 180 Wn.2d at 251 (quoting Hollis, 137 Wn.2d at 695).
But that is exactly what the trial court did here. The court essentially rewrote the
covenant to state that use of lots for commercial business purposes was prohibited
except for commercial logging operations.
JPJ/NBI argue that the restrictive covenant must be considered in its entirety,
and they focus on the title certificate on the face of the plat. JPJ/NBI emphasize that
the title certificate expressly references Puget Sound Pulp’s timber access easement
over division 3. They claim that the title certificate and the restrictive covenant are
contradictory, requiring extrinsic evidence to resolve the contradiction.
However, the trial court did not make any findings of fact or conclusions of law
regarding the title certificate. The court apparently did not find any tension between the
title certificate and the restrictive covenant. Further, the title certificate does not
contradict the restrictive covenant. The title certificate notes that Puget Sound Pulp had
an access easement across division 3. The restrictive covenant states that no lots shall
be used for commercial business purposes. Although the trial court found that Puget
Sound Pulp used Road B on the JPJ property into the 1950s, there is no indication in
the record that Puget Sound Pulp owned any lots in division 3 when the subdivision was
platted as opposed to exercising its easement right to access timber.
We conclude that the trial court erred in using extrinsic evidence to vary the plain
language of the restrictive covenant. Accordingly, we hold that the trial court erred in
ruling that the restrictive covenant did not apply to JPJ/NBI’s logging operations.
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4. “Use” of Property
In the alternative, JPJ/NBI argue the trial court’s order should be affirmed based
on the theory that temporarily transporting logs over the JPJ property does not
constitute a “use” for commercial business purposes. We disagree.
JPJ/NBI focus on the fact that their activity is temporary, not permanent. But the
trial court found that JPJ/NBI’s intended “use” of the land was for commercial business.
And the covenant’s prohibition on the use of the land for commercial business does not
include any temporal qualification. Instead, the covenant imposes a blanket prohibition
on the use of the land within the plat for commercial business. Under Wilkinson, a
temporal exception or qualification cannot be grafted onto the plain language of the
covenant. We reject JPJ/NBI’s argument.
D. AFFIRMATIVE DEFENSES
JPJ/NBI argue that we should affirm the trial court’s decision based on three
affirmative defenses: abandonment, cancellation/modification, and waiver. 7 We
disagree.
1. Abandonment of Covenant
The Lake Trust argues that the trial court erred in concluding that the restrictive
covenant was abandoned in the 1950s. JPJ/NBI argue that the trial court’s
abandonment ruling should be affirmed. We agree with the Lake Trust.
7 The trial court ruled that abandonment had occurred, but declined to rule on cancellation/modification, and waiver. But we can affirm a trial court’s decision based on any grounds supported by the record. Hoover v. Warner, 189 Wn. App. 509, 526, 358 P.3d 1174 (2015).
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a. Legal Principles
Abandonment is an equitable defense that will preclude enforcement of a
covenant. Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883
P.2d 1383 (1994). “The defense of abandonment requires evidence that prior covenant
violations by other residents have so eroded the general plan as to make enforcement
useless and inequitable.” Id. at 342. Equity will not enforce a covenant if it “has been
habitually and substantially violated so as to create an impression that it has been
abandoned.” Id. (emphasis added) (quoting White v. Wilhelm, 34 Wn. App. 763, 769,
665 P.2d 407 (1983)).
However, a few violations of covenants do not constitute abandonment.
Peckham v. Milroy, 104 Wn. App. 887, 890, 17 P.3d 1256 (2001). “Violations must be
material to the overall purpose of the covenant, and minor violations are insufficient to
find abandonment.” Mountain Park Homeowners, 125 Wn.2d at 342.
Whether a violated covenant has been abandoned generally is a question of fact.
Green v. Normandy Park Riviera Section Cmty. Club, 137 Wn. App. 665, 697, 151 P.3d
1038 (2007). However, we can decide questions of fact as a matter of law if reasonable
minds could not differ. See Meyers v. Ferndale School Dist., 197 Wn.2d 281, 289, 481
P.3d 1084 (2021).
b. Trial Court Ruling
The trial court concluded that the Lake Trust’s “predecessors in interest
abandoned the restrictive covenants in the 1950s when Subdivision 3 experienced
significant logging activity.” CP at 549. The court found that “there is substantial
evidence that the timberlands continued to be logged after Subdivision 3 was platted
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and that areas such as Road B within the subdivision continued to be used into the
1950s for purposes of accessing the timberlands for logging.” CP at 549. The court
reasoned that even if the restrictive covenant was intended to exclude that type of use,
“it was immediately abandoned by then-owners of lots in Subdivision 3 who permitted
such use.” CP at 549.
c. Analysis – 1950s Logging
It is undisputed that Puget Sound Pulp continued to use the Lake Cavanaugh
subdivision property, including Road B on what is now the JPJ property, for its logging
activities after the restrictive covenant was imposed in the division 3 plat. But there is
no indication in the record that these activities violated the covenant.
Puget Sound Pulp had the contractual right to a right of way on the Lake
Cavanaugh lands under the 1945 Agreement with English Lumber, which allowed the
right of way for 10 years. Therefore, evidence of logging in and around division 3 is
consistent with Puget Sound Pulp’s preexisting rights. And division 3 owners could not
enforce the covenant because of these contractual rights. Not coincidentally, the trial
court found no evidence that Road B was used on or after January 1, 1955 – when the
January 1945 agreement expired.
In addition, the trial court did not find and there is no evidence in the record that
Puget Sound Pulp violated the restrictive covenant. Covenants run with the land, and
burdens the owner of property subject to the covenant with a duty to comply with the
restriction. Kiona Park Estates v. Dehls, 18 Wn. App. 2d 328, 336, 491 P.3d 247
(2021). Therefore, the covenant here necessarily applied only to owners of lots in
division 3. But there is no evidence that Puget Sound Pulp or any other logging
19 No. 83761-3-I
company owned a lot within division 3 during the 1950s.8 As a result, they were not
subject to the covenant and could not have violated it.
There is no evidence that the restrictive covenant was “ ‘habitually and
substantially violated’ ” in the 1950s. Mountain Park, 125 Wn.2d at 342 (quoting White,
34 Wn. App. at 769). Therefore, we conclude that the trial court erred in concluding that
the restrictive covenant had been abandoned because of logging activity in the 1950s.
We hold that as a matter of law, no such abandonment occurred.
d. Analysis – Four Alleged Violations
The trial court did not find abandonment based on the four more recent alleged
violations of the restrictive covenant by the Wepplers, Linert, Happy Valley Trucking,
and the VRBO property. Nevertheless, JPJ/NBI argue that these violations are
sufficient to affirm the trial court’s finding of abandonment. We disagree.
Even if we find that substantial evidence supports those alleged violations, we
conclude they are insufficient to support JPJ/NBI’s defense of abandonment. The four
alleged violations involve four separate properties in a 244 lot subdivision. There is no
indication that these were habitual and substantial violations. And we cannot
reasonably conclude that these alleged violations “so eroded the general plan as to
make enforcement useless and inequitable.” Mountain Park, 125 Wn.2d at 342.
We hold as a matter of law that the four alleged violations of the restrictive
covenant cannot support the trial court’s ruling that the defense of abandonment
applied.
8 Puget Sound Pulp purchased two “tracts” in division 3, but those tracts were not lots.
20 No. 83761-3-I
2. Cancellation/Modification of Covenant
JPJ/NBI argues that we should affirm the trial court’s decision by applying the
equitable doctrine of cancellation/modification to the restrictive covenant. We disagree.
Changed neighborhood conditions is an equitable defense to the enforcement of
a restrictive covenant. Mountain Park, 125 Wn.2d at 341-42. A material change in the
character of the neighborhood can modify or eliminate a restrictive covenant. Peckham,
104 Wn. App. at 893. Whether the neighborhood’s character has changed is a question
of fact. Id.
JPJ/NBI argue that the history of the Lake Cavanaugh area demonstrates that
logging and forestry have constantly been around Lake Cavanaugh and division 3 from
before its creation to the present. But no material change has occurred in the Lake
Cavanaugh lands neighborhood. The character of the neighborhood has remained the
same for decades. Therefore, we reject this argument as a matter of law.
3. Waiver of Covenant
JPJ/NBI argues that we should affirm the trial court’s decision by concluding that
the restrictive covenant has been waived. We disagree.
JPJ/NBI argue that the equitable doctrine of waiver is applicable because the
Lake Trust took no action against past violations over the past 18 years of ownership.
But waiver is not listed among the eight equitable defenses identified by the Supreme
Court in Mountain Park that are available to preclude enforcement of a restrictive
covenant. See 125 Wn.2d at 341-42. And JPJ/NBI provide no authority suggesting that
waiver is a defense applicable to the enforcement of restrictive covenants. Therefore,
we reject this argument as a matter of law.
21 No. 83761-3-I
CONCLUSION
We reverse the trial court’s decision and remand for the trial court to enter
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
______________________________
WE CONCUR: