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Bekken v. Greystone Residential Association Inc.

Alabama Court of Civil Appeals

January 13, 2017

Andrew Bekken
v.
Greystone Residential Association, Inc., and Greystone Architectural Review Committee

         Appeal from Shelby Circuit Court (CV-14-900090)

          ON APPLICATION FOR REHEARING

          DONALDSON, Judge.

         This court's opinion of September 16, 2016, is withdrawn, and the following is substituted therefor.

         Andrew Bekken appeals from the judgment of the Shelby Circuit Court ("the trial court") granting Greystone Residential Association, Inc. ("the association"), and the Greystone Architectural Review Committee ("the committee") an injunction to enforce residential restrictive covenants. Bekken argues that the restrictive covenants contain ambiguities; that the trial court should have applied the relative-hardship test before issuing the injunction; and that the affirmative defenses of statute of limitations, laches, and unclean hands applied in this case. We determine that Bekken's arguments fail to establish a ground for reversal. Accordingly, we affirm the judgment.

         Facts and Procedural History

         In July 2007, Bekken purchased a residence on Greymoor Road ("the property") in the Greystone subdivision ("the subdivision") located in Shelby County. The pool area and backyard of the property adjoins the Greystone Founders golf course around which the subdivision was developed. It is undisputed that the property is subject to the provisions of the "Greystone Residential Declaration of Covenants, Conditions, and Restrictions" ("the restrictive covenants"). The restrictive covenants were recorded in the Shelby Probate Court in 1990. The committee acts on behalf of the association in considering proposed plans to alter exterior features of properties in the subdivision and in enforcing compliance with the restrictive covenants. After purchasing the property, Bekken removed a wall enclosing the pool area on the property and made other improvements on the property.

         On January 23, 2014, the association and the committee filed a complaint against Bekken in the trial court, alleging that Bekken had removed the wall enclosing the pool area on the property and had materially altered the landscaping on the property without the approval of the committee as required by the restrictive covenants. The association and the committee initially sought declaratory relief and monetary damages in addition to injunctive relief and attorney fees. Bekken filed an answer generally denying the allegations in the complaint and asserting, among others, the defenses of laches, statute of limitations, and unclean hands. The claims for declaratory relief and monetary damages were later dismissed by the association and the committee.

         On May 14, 2015, the association and the committee filed a motion for a summary judgment, arguing that Bekken had violated the restrictive covenants by removing the wall around the pool area, by expanding the concrete deck around the pool, and by altering the landscaping on the property without the approval of the committee. In materials filed in opposition to the motion, Bekken argued, among other things, that the action was barred by the six-year statute of limitations set out in § 6-2-34, Ala. Code 1975. The motion for a summary judgment was denied.

         The trial court conducted a bench trial on October 21, 2015, and November 5, 2015, at which it received ore tenus testimony and documentary exhibits. The evidence established that the 2007 deed conveying the property to Bekken contained the notation that the conveyance was subject to "all matters of public record, including, but not limited to easements, restrictions of record, and other matters which may be viewed by observation." Below the reference to "restrictions of record, " the deed states: "IN WITNESS WHEREOF, the undersigned have hereunto set our hands and seals on this the 13th day of July, 2007." (Capitalization in original.) The restrictive covenants provide that all alterations to the exterior of a property located within the subdivision, which includes the property, must be approved by the committee; specifically, § 5.05 of the restrictive covenants provides, in pertinent part:

"5.05 Approval of Plans and Specifications.
"(a) IN ORDER TO PRESERVE THE ARCHITECTURAL AND AESTHETIC APPEARANCE AND THE NATURAL SETTING AND BEAUTY OF THE DEVELOPMENT, TO ESTABLISH AND PRESERVE A HARMONIOUS DESIGN FOR THE DEVELOPMENT AND TO PROTECT AND PROMOTE THE VALUE OF THE PROPERTY, THE LOTS, THE DWELLINGS, THE MULTI-FAMILY AREAS AND ALL IMPROVEMENTS THEREON, NO IMPROVEMENTS OF ANY NATURE SHALL BE COMMENCED, ERECTED, INSTALLED, PLACED, MOVED ONTO, ALTERED, REPLACED, RELOCATED, PERMITTED TO REMAIN ON OR MAINTAINED ON ANY LOT OR DWELLING BY ANY OWNER OR MULTIFAMILY ASSOCIATION, OTHER THAN DEVELOPER, WHICH AFFECT THE EXTERIOR APPEARANCE OF ANY LOT OR DWELLING UNLESS PLANS AND SPECIFICATIONS THEREFOR HAVE BEEN SUBMITTED TO AND APPROVED BY [the committee] IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF SECTION 5.05(b) BELOW. WITHOUT LIMITING THE FOREGOING, THE CONSTRUCTION AND INSTALLATION OF ANY ... DECKS, PATIOS, COURTYARDS, SWIMMING POOLS, ... WALLS, FENCES, ... GARAGES OR ANY OTHER OUTBUILDINGS, SHALL NOT BE UNDERTAKEN, NOR SHALL ANY EXTERIOR ADDITION TO OR CHANGE OR ALTERATION BE MADE (INCLUDING, WITHOUT LIMITATION, PAINTING OR STAINING OF ANY EXTERIOR SURFACE) TO ANY DWELLING OR IMPROVEMENTS, UNLESS THE PLANS AND SPECIFICATIONS FOR THE SAME HAVE BEEN SUBMITTED TO AND APPROVED BY [the committee] IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF SECTION 5.05(b) BELOW.
"(b) [The committee] is hereby authorized and empowered to approve all plans and specifications and the construction of all Dwellings and other Improvements on any part of the Property. Prior to the commencement of any Dwelling or other Improvements on any Lot, Dwelling or Multi-family Area, the Owner thereof shall submit to [the committee] plans and specifications and related data for all such improvements, which shall include the following:
"(i) Two (2) copies of an accurately drawn and dimensioned site development plan indicating the location of any and all Improvements, including, specifically, the Dwelling to be constructed on said Lot, the location of all driveway, walkways, decks, terraces, patios and outbuildings and the relationship of the same to any set-back requirements applicable to the Lot or Dwelling.
"....
"(iii) Two (2) copies of written specifications and, if requested by [the committee], samples indicating the nature, color, type, shape, height and location of all exterior materials to be used in the construction of the Dwelling on such Lot or any other Improvements thereto, including, without limitation, the type and color of all brick, stone, stucco, roofing and other materials to be utilized on the exterior of a Dwelling and the color of paint or stain to be used on all doors, shutters, trim work, eaves and cornices on the exterior of such Dwelling.
"....
"(v) Three (3) copies of a landscaping plan prepared and submitted in accordance with the provisions of Section 5.06 below.
"(vi) Such other plans, specifications or other information or documentation as may be required by the Architectural Standards.
"(c) [The committee] shall, in its sole discretion, determine whether the plans and specifications and other data submitted by any Owner for approval are acceptable. One copy of all plans, specifications and related data so submitted to [the committee] shall be retained in the records of [the committee] and the other copy shall be returned to the Owner or Multi-Family Area Association submitting the same marked 'approved, ' 'approved as noted' or 'disapproved'. [The committee] shall establish a fee sufficient to cover the expense of reviewing plans and related data and to compensate any consulting architects, landscape architects, designers, engineers, inspectors and/or attorneys retained in order to approve such plans and specifications and to monitor and otherwise enforce the terms hereof. Notwithstanding anything provided herein to the contrary, an Owner may make interior improvements and alterations within his Dwelling that do not affect exterior appearance and a MultiFamily Association may make interior improvements and alterations within any buildings or structures it maintains or owns that do not affect exterior appearance and, in each case, without the necessity or requirement that [the committee's] approval or consent be obtained.
"(d) [The committee] shall have the right to disapprove any plans and specifications upon any ground which is consistent with the objectives and purposes of this Declaration, including purely aesthetic considerations, any failure to comply with any of the provisions of this Declaration or the Architectural Standards, failure to provide requested information, objection to exterior design, appearance or materials, objection on the ground of incompatibility of any such proposed improvement with the scheme of development proposed for the Development, objection to the location of any proposed Improvements on any such Lot or Multi Family Area, objection to the landscaping plan for such Lot or Dwelling, objection to the color scheme, finish, proportions, style of architecture, height, bulk or appropriateness of any Improvement or any other matter which, in the sole judgment of [the committee], would render the proposed Improvement inharmonious with the general plan of development contemplated for the Development. [The committee] shall have the right to approve any submitted plans and specifications with conditions or stipulations by which the Owner of such Lot or Dwelling shall be obligated to comply and must be incorporated into the plans and specifications for such Improvements or Dwelling. Approval of plans and specifications by [the committee] for Improvements to one particular Lot, Dwelling or Multi-Family Area shall not be deemed an approval or otherwise obligate [the committee] to approve similar plans and specifications or any of the features or elements for the Improvements for any other Lot, Dwelling or Multi-Family Area within the Development.
"(e) In the event [the committee] fails to approve in writing any such proposed plans and specifications within forty-five (45) days after such plans and specifications have been submitted, then the plans and specifications so submitted will be deemed to have been disapproved.
"(f) Any revisions, modifications or changes in any plans and specifications previously approved by [the committee] must be approved by [the committee] in the same manner specified above."

         (Capitalization in original.) Any landscaping work on a property subject to the restrictive covenants also must be approved by the committee:

"5.06 Landscaping Approval.
"(a) In order to preserve, to the extent practicable, the natural landscaping and plant life currently situated on the Property and in order to enhance the aesthetic appearance of the Property, no landscaping, grading, excavation or fill work of any nature shall be implemented or installed by any Owner or Multi-Family Association, other than Developer, on any Lot, Dwelling or Multi-Family Area unless and until landscaping plans therefore have been submitted to and approved by [the committee]. The provisions of Section 5.05 above regarding the method that such plans are to be submitted to [the committee], the time for approval or disapproval of the same and the method of approving modifications or changes thereto shall be applicable to such landscaping plans.
"(b) In addition to the requirements of Section 5.06(a) above, the landscaping plan for any Lots, Dwellings or MultiFamily Areas adjacent to the Golf Club Property shall also be subject to the terms of the Reciprocal Easement Agreement, which require, among other things, a natural, undisturbed buffer of thirty (30) feet adjacent to the Golf Club Property."

         The alteration of previously approved improvements or landscaping without the approval of the committee is prohibited:

"5.07 Construction Without Approval. If (a) any Improvements are initiated, installed, maintained, altered, replaced or relocated on any Lot, Dwelling or Multi-Family Area without [the committee's] approval of the plans and specifications for the same or (b) [the committee] shall determine that any approved plans and specifications for any Improvements or the approved landscaping plans for any Lot, Dwelling or Multi Family Area are not being complied with, then, in either event, the Owner of such Lot, Dwelling or Multi-Family Area shall be deemed to have violated this Declaration and [the committee] shall have the right to exercise any of the rights and remedies set forth in Section 5.13 below."

         Section 6.33(f) of the restrictive covenants requires the committee's approval regarding the alteration of the vegetation or the construction of a swimming pool within a 50-foot buffer zone surrounding the golf course:[1]

"Notwithstanding anything provided to the contrary in this Section 6.33, (i) a fifty (50) foot natural, undisturbed buffer free from any Improvements of any nature, shall remain and at all times be maintained along all portions of each of the Fifth Sector, Phase I Lots (as defined in the Eighth Amendment to Greystone Residential Declaration of Covenants, Conditions and Restrictions dated as of July 16, 1993 and recorded in the Probate Office of Shelby County, Alabama) which abut and are contiguous to the Golf Club Property and (ii) no trees, shrubbery, bushes or other vegetation lying within the aforesaid fifty (50) foot natural, undisturbed buffer area may be cut, pruned, removed or mutilated without the prior written consent of [the committee]. Furthermore, each Owner, by acceptance of a deed to any of the Fifth Sector, Phase I Lots, acknowledges and agrees that [the committee] may require additional landscaping, berming and screening to be placed, replaced and maintained in and along the aforesaid fifty (50) foot natural undisturbed buffer area and that, unless expressly approved in writing by [the committee] and the Club Owner, no fences, walls, berms, mounds, barriers, decks, terraces, patios, tennis courts, swimming pools, outdoor furniture, swingsets, outdoor recreational facilities and equipment and any other devices, equipment, tools, machinery, buildings, structures or appurtenances of any nature shall be placed or permitted to remain in or upon the aforesaid fifty (50) foot natural, undisturbed buffer areas."

         Section 5.13 of the restrictive covenants provides for the following remedies in the event of a breach of the restrictive covenants:

"5.13 Enforcement and Remedies. In the event any of the provisions of this Article V are breached or are not otherwise being complied with in all respects by any Owner or Occupant or the respective family members, guests, invitees, agents, employees or contractors of any Owner or Occupant, then [the committee] and the Association shall each have the right, at their option, to (a) enjoin any further construction on any Lot or Dwelling and require the removal or correction of any work in place which does not comply with the plans and specifications approved by [the committee] for such Improvements and/or (b) through their designated agents, employees, representatives and independent contractors, enter upon such Lot or Dwelling and take all action necessary to extinguish such violation or breach. All costs and expenses incurred by [the committee] or the Association in enforcing any of the provisions of this Article V, including, without limitation, attorneys' fees ... shall be paid by such Owner .... Notwithstanding anything provided herein to the contrary, the rights and remedies of [the committee] and the Association set forth herein shall not be deemed exclusive of any other rights and remedies which [the committee] or the Association may exercise at law or in equity or any of the enforcement rights specified in Sections 6.37, 8.09, 11.01, 11.02 and 11.03 below."

         The testimony at trial showed that in 2000 the previous owner of the property built a swimming pool, a concrete deck around the pool, and a wall enclosing the pool area with the advance approval of the committee in compliance with the restrictive covenants. The deck extended approximately four feet from the edge of the pool to the wall. The wall was 48 inches in height and had a finish matching the exterior walls of the house located on the property. The committee's approval included a 10-foot variance from the otherwise required 50-foot buffer zone extending from the golf course.

         At the time Bekken purchased the property in 2007, the exterior walls of the house were clad with an exterior insulation and finishing system ("EIFS"). Bekken testified that a neighbor informed him that he needed to submit plans for improvements to the committee for approval. Bekken submitted a plan to the committee to replace the EIFS with brick. The committee approved the plan on September 25, 2007. The documentation in the record shows that the plan submitted by Bekken included changes only to the house and not to the pool area or the wall enclosing the pool area.

         Bekken testified that, in December 2007, he and his sons removed the wall enclosing the pool area and cut down trees in the area behind where the wall had been. A picture dated January 20, 2008, shows the pool area on the property without the wall that had been constructed by the previous owner. Bekken testified that in the spring of 2008 he extended the concrete deck further from the pool, erected a wrought-iron fence in place of the wall, and graded the dirt in the area behind the area where the wall had existed. Bekken testified that he made those improvements out of concern for the safety of his children, who were jumping off the wall into the pool, and to avoid violating the building code for Shelby County. According to Bekken's testimony, replacing the exterior of the wall with brick would have extended the wall in the direction of the pool and thereby violated the Shelby County building code requiring a certain distance between the pool and the wall. Bekken testified that he also made landscaping changes in the spring of 2008, including placing sod and replacing the existing shrubbery and plants with different shrubbery in the area behind where the wall had been.

         Steve Janney is a member of the committee and is the director of operations for the association. Janney's responsibilities include ensuring that property owners comply with the restrictive covenants. Bekken testified that, before removing the wall, he and Janney orally agreed on a plan for the removal of the wall and on the landscaping alterations, including the placement of sod in the area behind the swimming pool. Bekken testified that he submitted a written plan to the committee that described the planned removal of the wall, the installation of a fence, the expansion of the pool deck, the grading of the backyard, and the placement of sod. Although Bekken claimed that he had received approval for the plan from the committee, he was unable to produce written evidence of such approval. Bekken testified that he had kept the documentation at issue with his business records and that he had lost the documentation when his business began failing in 2008.

         Janney testified that he had never approved of the plan Bekken claimed to have submitted and that the committee had no record of the submission or approval of such a plan. Janney testified that his discussions with Bekken in 2007 were related only to the proposed improvements to the exterior of the house and did not include the pool area, the wall, or alterations to Bekken's backyard.

         Janney testified that he met with Bekken on August 16, 2008, at the property after learning of the removal of the wall around the pool area. Bekken testified that Janney never expressed disapproval of the removal of the wall during that meeting. Janney testified to telling Bekken that he needed to restore the wall, that a wrought-iron fence could not be approved for any properties within the buffer zone of the golf course, and that the plants placed by Bekken behind the fence needed to be replaced. Bekken and Janney both testified that they had discussed the placement of sod. Janney testified that Bekken showed him a sketch of the landscaping changes and that he told Bekken to submit the landscaping proposal for approval by the committee. Janney testified that the landscaping "had nothing to do with the wall."

         Janney testified regarding the committee's process for reviewing proposed improvement plans, which is outlined in a document titled "Greystone Residential Architectural and Construction Standards." That document declares that the committee has the right to enter and inspect properties "at any time before, during, and immediately upon completion of any [improvements]." Janney testified that the last step of the review process involves a final inspection of the improvements by him on behalf of the committee. Janney testified that, although he was responsible for those inspections, he did not inspect the property immediately after the approved plan for replacing the exterior walls of the house was completed.

         Bekken and Janney testified regarding a number of letters sent to Bekken on behalf of the association requesting that he replace the wall that had been removed from his property, beginning with a letter dated June 10, 2009. In that letter, Janney stated: "If this work is not completed by August 3, 2009, [the committee] will turn this item over to our attorneys." ...


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