THIS POST HAS BEEN UPDATED IN LIGHT OF THE 6/20/19 COURT OF APPEAL DECISON. CLLICK HERE
Marquez Knolls’ view rights under attack again (Eisen vs. Tavangarian)
Since the 1950s, property owners in the Marquez Knolls tracts in Pacific Palisades have relied on the recorded CC&Rs to protect their views. Although the original architectural committee’s powers expired on December 31, 1995, many property owners believed that their view rights continued by CC&Rs Paragraph 11, which did not have a termination date, and which provides:
“No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future unreasonably obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot.”
(The word “unreasonably” was added to ¶11 by the Court of Appeal in its 2005 decision in Zabrucky v. McAdams (2005) 129 Cal.App.4th 618.)
For the reasons discussed below, it could now be the perfect storm to reverse or materially change the view rights that were provided in Zabrucky.
There is a case currently on appeal that is seeking to reverse or limit the view rights the court affirmed in the 2005 Zabrucky case. The current case is Eisen vs. Tavangarian (See opening brief served on Sept. 25, 2017.) Concerned Marquez Knolls’ property owners can voice their concern by submitting an amicus brief by the court deadline. (Contact us for information on the deadline.)
The plaintiffs in Eisen sued a well known local developer for obstructing their view. The trial judge found in favor of the plaintiffs and ordered the defendant to remove a portion of the new “spec” house he had constructed. The defendant is presently appealing the judgment against him, and in his opening appellate brief is seeking to the view rights it affirmed in the Zabrucky case.
The plaintiffs in Zabrucky had actually argued that ¶11 precluded any obstruction of their ocean view. The Court of Appeal in that case was apparently aware that its decision would have a significant impact on the ability to remodel the original aging homes in Marquez Knolls. The court tried to find a balance, while acknowledging the CC&Rs’ intent to provide view rights. As the court stated at pages 623-624:
“In common with most coastline housing in Southern California, the prime thing the Marquez Knolls development sold its prospective homeowners was a beautiful ocean view. In fact, like most such housing, much of the value of any property within the development depends on the quality of the view. To significantly obstruct any homeowner’s view of the Pacific Ocean is to depreciate the economic worth of their property-often by several hundred thousand dollars – as well as dramatically reduce their enjoyment of the home they bought and live in. Thus, it is not surprising the rest of the Zabruckys’ neighbors, the MKPOA, filed an amicus brief seeking to enforce the development’s CC&Rs. These provisions, and especially the Paragraph 11 at issue in this case, form their only bulwark against rampant expansions of existing residences that would obstruct views and depreciate land values throughout the entire Marquez Knolls neighborhood.”
The plaintiffs argued that ¶11 prohibited any obstruction. But the court of appeal in the published decision rejected that argument and instead added the word “unreasonably” to ¶11”. At page 629 the Court stated:
“However, it is not reasonable to interpret the CC&Rs as prohibiting any obstruction of existing views as urged by appellants. We agree with the trial court’s observation that it would have been impractical for the original drafters of the CC&Rs to have intended that no house be built which obstructed any other owner’s view. Thus, we conclude it would be in keeping with the intent of the drafters of the CC&Rs to read into Paragraph 11 a provision that the view may not be unreasonably obstructed, thus the sentence would read, “may at present or in the future unreasonably obstruct the view from any other lot.” (Change underlined.)”
Unfortunately for the plaintiffs, on re-trial, the trial court judge inspected the properties and decided that defendants’ remodeling project was not an unreasonable obstruction. (See then Judge John L. Segal’s Statement of Decision 3-1-2006.)
Since 2005, there have been a number of lawsuits filed challenging new construction and remodeling projects and also landscaping on the grounds that the construction or landscaping was or would be an unreasonable obstruction. (See partial list of case here.) The many of those cases went to trial and were decided by a judge, not a jury, and it seems the result depended on the particular’s judge’s interpretation of what constitutes to be “unreasonable obstruction.”
The trial judge for the Zabrucky re-trial is now one of the three appellate justices that is deciding the Eisen appeal. In Zabrucky and supposedly in the other Marquez Knolls cases he decided as a trial court judge, Judge (now Justice) Segal did not find for any plaintiff seeking to enforce ¶11.
But the main concern now is that the Presiding Justice for the Eisen appeal, Justice Dennis M. Perluss, wrote the dissenting opinion in Zabrucky. In Zabrucky, Justice Perluss disagreed with the majority’s interpretation of paragraph 11, explaining that its “plain language . . . particularly when considered together with other provisions in the CC&R’s,” did not support the majority’s conclusion. (Zabrucky, supra, 129 Cal.App.4th at p. 630 (dis. opn. of Perluss, J.).)
“Apparently uncomfortable with the harsh consequences of their restrictive reading of the view protection clause, my colleagues adopt the suggestion advanced by amicus curiae Marquez Knolls Property Owners Association (but notably not endorsed by the Zabruckys) and create a reasonableness limitation on the absolute prohibition of view obstruction contained in paragraph 11. This effort to mitigate the impact of their decision for homeowners like McAdams and Baines who may wish to renovate homes that are now 40 years old is in many respects commendable, but it constitutes an impermissible rewriting of the express terms of the CC & R’s.”
“The majority’s legitimate concern that paragraph 11 may be applied unreasonably suggests to me it has misinterpreted that provision. Its apprehension, however, is not a justification for a judicial rewriting of the parties’ agreement.”
But more problematic is that Judge Perluss’s dissent in Zabrucky went further by concluding that ¶11 should not even apply to structures:
“Although in other contexts the word ‘structure’ may include the residence itself, given the apparent object of paragraph 11, particularly when read together with paragraph 2, ‘structures’ in this paragraph is properly limited to landscaping or other outdoor items separated from the residence itself—gazebos, trellises, carriage or pool houses.”
The Appellant (Ardie Tavangarian) in Eisen is arguing among other things that “Paragraph 11 applies only to landscaping structures and therefore does not restrict alterations to a residence.“ (Opening Brief, p. 35) With Justices Perluss and Segal as the appellate justices, it seems from the sidelines that the view rights that many have taken for granted in Marquez Knolls could be eliminated or severely limited by the Court’s decision in Eisen.
NEWS: The case was fully briefed as of September 10, 2018, but a group of homeowners, led by the usual suspects, Judith A. Gelfand and Wayne Marcus, sought and obtained permission to file an amicus brief (friends of the court). The editor of this blog has asked for copies of those briefs. At this point we assume the the oral argument will be scheduled for late winter or so.
To get updates about the case directly from the Court of Appeal, CLICK HERE and enter the COA case number: B278271.
||Amicus curiae brief filed by:
||Amicus curiae for appellant: Marquez Knolls Homeowners et al.
Attorney: Judith A. Gelfand Marquez Knolls Homeowners Judith A. Gelfand, Wayne Marcus, Bernard Hathaway, William R. Fado, H. Peter Grassl, Kathleen A. Kerrigan, Silgia Grassl, Emil Kadrnka, Simon T. Halff, Brian Faris, Peter J. Zomber, Sabrina Diaz and Renate Hecht in support of plaintiffs Glenn Eisen and Alison Eisen.
||Response to amicus curiae brief filed by:
||Defendant and Appellant: Ardeshir Tavangarian
Attorney: Faryan Andrew Afifi
Defendant and Appellant: Tania Tavangarian
Attorney: Faryan Andrew Afifi
Defendant and Appellant: 619 Properties, LLC
Attorney: Faryan Andrew Afifi Defendant’s response to amicus brief