Agenda - Planning Commission - 06/07/2007

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Zoning Bulletin home built on the lot to be a one-story house. Turpen's lot was down- hill from Bauman's. Specifically, the covenant on Turpen's lot stated that ''''only one (1), one (1) story house with garage attached" could be built on the prop- erty. Bauman bought the property uphill from Turpen's lot firSt, tak- ing into consideration the height of any future building on the lower lot based on the restriction and the height of other homes already con- structed on lower lots. After Turpen purchased the lower lot and began planning construc- tion of a house, Bauman and other neighbors requested to see the plans. After many revisions, a plan was ultimately approved by the de- partment of construction and land use that allegedly satisfied the re- quirements for a one-story building based on the city's existing building code. Bauman did not believe that the plan conformed to the restrictive covenant, which, he argued, was designed to preserve the views from the upper lots. After the building permit was issued, Bauman filed a complaint in court seeking to prevent the construction. The trial court agreed with Bauman's belief that the covenant was in place to protect views from the upper lots and that Turpen's home, as designed, was in violation of the covenant. The court issued an injunction against Turpen, halt- ing construction. Turpen asked the court to reconsider this finding, but the court af- firmed it, stating "[t]he Turpen house [should] be abated or modified." Turpen appealed. Decision: Affumed. The court had to review the language of the restrictive covenant to de- termine the drafter's intent and the purpose of the covenant at the time it was drafted. While Turpen argued that the covenant should be inter- preted based on the building code that was in effect at the time that he applied for a building permit, the court disagreed. Turpen argued that the deed restriction did not mention view preser- vation or a height restriction specifically and asserted that the trial court erred as a matter of law by "construing intent not found in tb.e cove- nant's express language." However, the trial court had heard three days of testimony, reviewed over 200 exhibits, and visited the area, which produced a record that supporred its finding that "neighborhood con- formity and view preservation were the concerns...sought to address in iillPOSing restrictive covenants on the downhill lots. " Turpen also argued that view preservation was a "subjective, vague standard" and that Bauman's expectation that the view from his lot would remain unobstructed was unreasonable, but the appeals court disagreed. The court noted that "[p Jreservation of neighboring views [was] a recognized interest and [was] not...unreasonable." 10 198