|Height limitations in deeds,||
Coppotelli v. Dawson (1969) 269 Cal.App.2d 731
King v. Kugler (1961) 197 Cal.App.2d 651
Petersen v. Friedman (1958)162 Cal. App. 2d 245
Rancho Santa Fe Ass’n v. Dolan-King (2004) 115 Cal.App.4th 28
Seligman v. Tucker (1970) 6 Cal.App.3d 691
Smith v. North (1966) 244 Cal. App. 2d 245
White v. Dorfman (1981) 116 Cal.App.3d 892
Zabrucky v. McAdams (2005)129 Cal.App.4th 618
Height limitations in local ordinances
Kucera v. Lizza (1997) 59 Cal.App.4th 1141 (Tiburon, Cal.)
Ekstrom v. Marquesa (2008) 168 Cal.App.4th 1111
Ezer v. Fuchsloch (1979) 99 Cal. App.3d 849
Mock v. Shulman (1964) 226 Cal.App.2d 263
California Coastal Act
Bel Mar Estates v. California Coastal Commission (App. 2 Dist. 1981) 115 Cal.App.3d 936
In Bel Mar Estates, the owners of a large tract of land in the Santa Monica mountains, overlooking the Pacific Coast Highway desired to subdivide 531 acres of that property, into 174 single family residential lots, averaging 2.3 acres each, together with a 5-acre parcel for stables and pasturage and two open-space areas. The plan would involve construction of a new four-lane highway in Piedra Gorda Canyon, filling that canyon by from 30 to 90 feet. Since the home sites would be on the top of ridges, the houses will restrict ocean view from other parts of the Santa Monica mountains and view of the mountains from significant parts of the ocean and ocean frontage.
The developers secured approval of the proposed subdivision from the County of Los Angeles and their application for a permit was approved by the Regional Coastal Commission. However, the California Coastal Commission denied the application.
The Court of Appeal held the Commission properly denied it in view of prospective major increase in traffic using Pacific coast highway and showing that, without proposed development, highway was already overused, and in view also of prospect that natural vegetation would be removed, that hills would be leveled and that natural and scenic canyon would be destroyed.
Coppotelli involved a view dispute between owners of neighboring tracts on a steep slope in Laguna Beach. The uphill neighbor sued the downhill neighbor for breach of deed restriction limiting the height of homes because the second story of the downhill residence extended above street level on the uphill side of the tract, although the floor of the second story began below street level.
The restriction at issue permitted on each lot “one detached, single family dwelling which may exceed one story in height, provided, however, that the top or higher story shall be on street level or lower.” Thus, whether the downhill neighbor’s home was in violation of the restriction required the court to interpret the phrase “on street level.” The court concluded “on street level” meant “the floor of the second story is at street level” rather than requiring that all parts (including the roof) of the residence be below street level. The court reasoned that “[t]he plain and clear meaning of a house on street level is the house stands at street level. It does not mean the top of the roof is at street level. Similarly, a second story on street level means the floor of the second story is at street level. It does not mean the top of the second story is at street level.” As a result, the downhill neighbor’s home was not in violation of the restriction and the defendants prevailed.
Eckstrom involved several homeowners in a development whose views had been blocked by neighbors’ palm trees. They sued the homeowners association for refusing to enforce the CC&Rs, which provided:
All trees, hedges and other plant materials shall be trimmed by the Owner of the Lot upon which they are located so that they shall not exceed the height of the house on the Lot; provided, however, that where trees do not obstruct the view from any of the other Lots in the Properties, which determination shall be within the sole judgment of the [Architectural Review Committee], they shall not be required to be so trimmed.
Despite the clear language of the covenant (i.e., “[a]ll trees”), the association did not enforce it as to palm trees because trimming a palm tree would require removal of the palm tree. After the homeowners sued the association, the association adopted one new rule that defined “view” so narrowly that it would have precluded most homeowners from ever claiming a view obstruction under the CC&Rs and a second rule that permitted tree removal only when the owner of the tree consented.
The homeowners won an injunction requiring the association to enforce the CC&Rs in good faith. As one argument on appeal, the association claimed that its selective non-enforcement the CC&Rs as to palm trees was not subject to judicial review under the “judicial deference rule.” Under that rule, courts defer to the authority and expertise of homeowners association boards where the board, within the scope of its authority, exercises in good faith and upon reasonable investigation its discretion to maintain common areas of the development. The Eckstrom court refused this argument because, among other reasons, the association had authority only to determine whether a tree obstructed a view and not to decide which species of trees were subject to the CC&Rs. The appellate court also rejected the new rules the association adopted during trial because they would have rendered certain CC&Rs meaningless. As a result, the ruling in favor of the homeowners was affirmed.
Marquez Knolls’ area of Pacific Palisades (Los Angeles), California is a hotbed of view disputes. (See Zabrucky v. McAdams (2005) 129 Cal.App.4th 618) The area is in the Santa Monica Mountains, and provides some of the best “combination” views in Los Angeles: the scope or range of the views range from the San Gabriel Mountains, east of downtown Los Angeles, the entire Los Angeles basin, and the Santa Monica bay, including the “Queens necklace” and Catalina Island.
This case involved a pine tree that was obstructing a property owner’s view in the The recorded CC & Rs included the following view rights provision: “nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot.” 99 Cal. App.3d at 862. The court held that permitting trees or shrubs to exceed one story in height violated that provision.
The Court of Appeal in Ezer upheld the trial court’s granting of a mandatory injunction to maintain a pine tree at the same height as the house to which it was adjacent. The court found the tree at any taller height to be an “unreasonable” obstruction despite the fact that, according to the defendants, “this pine tree only blocked one degree of a 175 degree view enjoyed by plaintiffs.” Id. at 858.
Finally, the court rejected defendants’ request to adopt a legal principle that would give defendants’ pine tree “an independent right to exist,” without being trimmed to rooftop level-a right that would be paramount to the rights created by the restrictive-covenant document. Id., at 863.
This case concerned a one-story height limitation provision in the recorded restrictions, which specifically provided no structures shall be erected, altered, placed or permitted to remain on any residential building plot other than one detached single family dwelling not to exceed one story in height.” 197 Cal.App.2d 654.
The court found “nothing vague, ambiguous or uncertain in the meaning of the restrictive phrase ‘one story in height,’” and absent a limit in feet or inches, it interpreted the phrase “in its ordinary and popular sense rather than according to some strict legal or technical meaning. Id. at 656. “[O]ne story in height” means, the court held, the “measure …. upward from the ground” of a “set of rooms on the same floor or level.” Id.
Defendants contended that the addition was not two stories, but rather a garage with a story on top. King rejected defendants’ argument. A “garage” in its “ordinary usage does not normally encompass a second story; the term is commonly used to mean a structure for the housing of a vehicle.” Id. at 657. For this type of building, the court added, “a second story is not necessary, contemplated or reasonable.” Id.
The case concerned a challenge of a view rights ordinance that the Town of Tiburon had enacted. The trial court gave judgment for defendants, concluding that the ordinance was unconstitutional and void as preempted by state law and an arbitrary and unreasonable exercise of the police power. However, the court of appeal reversed, and held that the it was within the city’s police powers to preserve views and sunlight by regulating tree growth by ordinance, and that this exercise of the police power was neither arbitrary nor unreasonable.
Tiburon’s ordinance provided:
“the right to preserve and seek restoration of views or sunlight which existed at any time since they purchased or occupied a property, when such views or sunlight are from the primary living area or active use area and have subsequently been unreasonably obstructed by the growth of trees.” Id. at 1144-45.
“No person shall plant, maintain, or permit to grow any tree which unreasonably obstructs the view from, or sunlight reaching, the primary living area or active use area of any other parcel of property” within the town, and “[b]ecause the maintenance of views and sunlight benefits the general welfare” of the town, such obstruction also constitutes “a public nuisance.” Id. at 1145.
Although safety considerations were peripheral to the ordinance, the court stated that a local government may legitimately exercise its police powers to advance aesthetic values, including providing protected view rights. Id. at 1147-48. The preservation of sunlight is a valid exercise of the police power through height limitations on buildings, as well as through the regulation of tree planting or growth. Id. at 1148-49. Furthermore, under the ordinance, any affected property owner shared with other owners the benefits and burdens of the city’s exercise of its police power. Id. at 1153-54.
In Mock, the appellate court upheld a damages award to the plaintiffs “for the past annoyance, inconvenience, discomfort and interference with the plaintiffs’ rightful use and enjoyment of their property” that were caused by trees on a neighboring lot in violation of a restriction on that lot. The restriction at issue read: “No fence, wall or hedge over six feet in height shall be erected or grown or permitted to exist on any lot or lots in said tract within fifteen feet of any boundary line of any lot . . . .” The appellate court adopted the trial court’s determination that “a line of trees some 18 to 20 feet in height with intertwining branches and foliage of a density which constituted a barrier to sight and shut off the view from” the plaintiffs’ property was a “hedge” within the meaning of the restriction because the restriction “was [intended] to prevent interference with the full and free use of adjoining property.” In affirming the damage award, the court also affirmed the injunction requiring the defendants to bring the offending trees in compliance with the restriction for the life of the restriction.
Petersen concerned a suit to enjoin owner of adjacent premises in the City of San Francisco from violating express easement of light, air and unobstructed view created in favor of plaintiff’s property and to compel removal of certain television aerials.
The deed at issue contained the following reservation of an easement:
“Reserving, however, unto the first party, her successors and assigns, as and for an appurtenance to the real property hereinafter particularly described and designated as ‘Parcel A’ and any part thereof, a perpetual easement of right to receive light, air and unobstructed view over that portion of the real property hereinabove described, to the extent that said light, air and view will be received and enjoyed by limiting any structure, fence, trees or shrubs upon said property hereinabove described or any part thereof, to a height not extending above a horizontal plane 28 feet above the level of the sidewalk of [the] Street as the sidewalk level now exists at the junction of the southern and western boundary lines of the property hereinabove described. Any obstruction of such view above said horizontal … shall be considered an unauthorized interference with such right or easement and shall be removed upon demand at the expense of second party, and his successors and assigns in the ownership of that real property described or any part thereof.” 162 Cal.App.2d at 246-47.
The Court of Appeal held that since reservation, extending to all uses to which servient estate might thereafter be devoted, was clear, there was no room for construction or determination of intent of parties, and that television aerials could be held violative of reserved easement even though easement had been created before such devices were known. Id. at 247-48 (citing Civ. Code §801).
This case addressed the validity of unrecorded regulatory codes that supplemented and aided in the interpretation of the CC&Rs. The dispute arose over a resident’s construction of a fence without first obtaining approval from the homeowners association. The covenant at issue stated:
The building of fences, walls, and similar structures, are divided into two classes: First, major construction; second; minor construction. The property owner may proceed with what he definitely thinks is a minor construction without submitting plans and specifications to the Art Jury . . . subject to the continuing jurisdiction of the Association through its Board of Directors to hear complaints against said minor construction.
While the CC&Rs did not define “major” and “minor” construction, unrecorded regulatory codes provided guidance: “All fences and walls shall constitute ‘Major Construction.’ . . . Exception: Split-Rail Fences. Wooden, unpainted split-rail fences not exceeding 36 [inches] in height, and consisting of two or fewer rails shall be considered minor construction.”
The association brought legal action to force the owner to comply with the CC&Rs (i.e., to remove the fence or obtain association approval). “[C]onsider[ing] the reasonableness of the restrictions by looking at the goals and concerns of the entire development,” the appellate court stated “it is not unreasonable for the Association and its board to enact regulations that seek to define such terms as minor construction in order to give notice to homeowners of readily discoverable, objective standards for interpretation of the Covenant.” In fact, the power of homeowners associations to clarify and define terms in the CC&Rs is “well-accepted.” As a result, the association won at both trial and on appeal.
This case concerned whether the defendant’s addition to their home violated a recorded restriction that provided “[n]o … structure shall be … erected … as to unreasonably obstruct the view from any other lot” prevented construction of a “rumpus room” to a neighboring house. 6 Cal.App.3d at 700. The plaintiff allege the addition would obstruct plaintiff’s view, and sought injunctive relief, which the court granted. The ruled held that the construction violated the plaintiff’s view rights.
In Seligman, the nature of the construction at issue was:
“… the construction of a flat-roofed rumpus room as an addition to their home which was to extend fully along the west or rear wall of their house and 26 feet out toward the west, and which was to have a floor raised 36 inches above the lower floor of the main house (with steps leading from one level to the other) so as to provide what defendants referred to as a ‘conversation pit’ sunk into the floor level of the rumpus room and was to have windows having a view of the lower valley.” Id. at 695.
The Seligman construction was a “rumpus room” addition to an existing residence. With respect to the reasonableness of the view obstruction, Seligman stood by the general proposition that the court: “… would determine ‘what is reasonable or unreasonable in light of the matter and the circumstances involved.’” Id. at 697. Seligman considered and rejected a challenge by defendants that the words “unreasonably obstruct” were too vague to be enforced by a court in equity. The court’s analysis of this issue indicated:
“Concededly, the restrictions contain no specific type of standard as to how much obstruction is not to be tolerated, such as a given percentage of the originally available view. … In some cases the particular attribute may not be articulated but rather is implied in a contractual document or governing statute. In either circumstance the court carries out the function of determining what is reasonable or unreasonable in light of the matter and the circumstances involved and renders its decision accordingly.” Id.
The court, thus, upheld the trial court’s determination that the “rumpus room” sought be added by the defendants to their home would be an “unreasonable” obstruction of the plaintiffs’ views:
“… [Plaintiffs purchased their residence with knowledge and belief in the validity of, and reliance upon, the view restrictions; that the panoramic view of the lower valley from the rooms and pool terrace mentioned above was a significant inducement of their purchase and a source of great enjoyment and satisfaction during their occupation; that the construction of the rumpus room by defendants substantially obstructed that view; that the floor and roof elevation of the addition, for reasons of aesthetic and social use, were set three feet higher than was compatible with existing physical conditions; that defendants had both constructive and actual notice of the view restrictions; that defendants did not have a good faith belief that their addition would not substantially impair the view of plaintiffs; and that plaintiffs acted promptly in notifying defendants that they considered that the full completion of the rumpus room would violate the view restriction and in filing their injunction suit.” Id. at 695-96.
The Court of Appeal, therefore, held that the view restriction was not too vague or uncertain to foreclose injunctive enforcement. It was also held that prior violations of the restriction against aerials did not preclude enforcement.
This case concerned the construction of a split level house in light of a deed restriction that “no dwelling shall …. contain more than one floor above the ground floor.” 244 Cal.App.2d at 247. In other words, two-story structures were permitted (a second floor above the ground floor), and the issue was whether the “split level”” design, in which there was a level of rooms tucked in midway between the first and second levels of the dwelling, violated the deed restriction. Id. at 247-248.
“As proposed, the contemplated structure consisted of a garage, the floor of which at the front was 6 inches above street level and at the rear was 9 feet below the finished grade of the property; above this was a floor designated as a play room and children’s bedroom; immediately above the latter was a dining room and kitchen; adjoining the play room at a lower level to the west was a master bedroom; and above the latter was a living room adjoining the dining room at a lower level. A plan that provides for adjoining rooms at different levels is known as a split-level design.” Id. at 247.
The plaintiffs opposed the construction, contended “the proposed dwelling consists of five floors instead of two, claiming the garage and each of the levels constitute separate floors; also, even assuming the rooms on each split-level are on one floor, the dwelling, including the garage, consists of three floors; and that in either event the proposed dwelling does not conform to the aforesaid restriction.” Id.
The trial court ruled against the plaintiff by concluding “the restriction proscribing ‘more than one floor above the ground floor’ is directed to the dwelling area of the structure; the basement-garage of the proposed structure on defendant’s lot is not a part of that dwelling area; and the ground floor of the ‘dwelling,’ for the purpose of determining the number of floors therein, is the lower split-level.” Id. at 249.
The Court of Appeal, Fourth District, held that the “stated as well as the obvious purpose of the covenant restricting the number of floors in dwellings on lots in the subject subdivision was to minimize their obstruction to the view.” Id. at 248. The court affirmed the trial court’s decision by noting “the fact the proposed dwelling would not obstruct the view from plaintiffs’ lot any more than it would obstruct such were the space under the first level not used as a garage.” Id. at 249 250.
White involved a view rights dispute of whether the defendant’s construction violated the CC&R. In that case, the court ruled, in apparent conflict with its earlier decision inSelgiman v. Tucker (1970) 6 Cal.App.3d 691, 86 Cal.Rptr. 187, that the word “structure,” as found in the restriction “no hedge or hedgerow, or wall or fence or other structure,” did not mean dwelling houses, but was instead limited to landscaping elements such as “hedgerows, wall and fences.” 116 Cal.App.3d at 897.
At issue in White was the following CC&R language:
“No hedge or hedgerow, or wall or fence or other structure shall be planted, erected, located or maintained upon any lot in such location or in such height as to unreasonably obstruct the view from any other lot or lots on said Tract.” Id. at 895.
Citing the general rule that restrictive covenants are construed strictly against the person seeking to enforce them, and that any doubt will be resolved in favor of the free use of land, the court held a fair interpretation of the declaration and the plain meaning of its language indicated that “structure” as used in this paragraph referred only to “things other than dwelling houses and garages.” Id. at 897. Accordingly, the court concluded, the referenced CC&Rs did not prevent the construction of a new house on vacant land, and defendants had not violated the restrictions.
Zabrucky was a view rights dispute involving a CC&R provision that provided that a structure could not “obstruct the view from any other lot.” The plaintiffs alleged that the defendant’s house addition would obstruction their ocean view. The proposed construction would have added living space to a floor tucked beneath the first floor of the residence, thereby maintaining a single story character.
The relevant provision of the CC&Rs, paragraph 11, provided: “nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot.” The court’s discussion concerned two issues. First, whether the proposed remodeling addition was a “structure” within the ambit of paragraph 11. The concluded that the “term ‘any structure’ if given its ordinary meaning certainly covers the erection of an addition containing several rooms, as is proposed here. 129 Cal.App.4th at 628. The decision is import because it enforces the basic principle of view rights provided for by CC&Rs and other recorded restrictions.
The published Court of Appeal provides a good general discussion of view rights provided by CC&Rs, including such statements as:
• “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.” Id. at 623-624.
• The CC&R provisions “form their only bulwark against rampant expansions of existing residences that would obstruct views and depreciate land values throughout the entire Marquez Knolls neighborhood.” Id. at 624.
The second issue and main holding of the case was the court’s specific interpretation paragraph 11 in determining whether the defendant’s home addition violated the plaintiff’s view rights.
Most of the court’s discussion was on determining “how much protection was intended” by the language. The court’s expressed goal was to make a “’just and fair’” interpretation of paragraph 11 “calculated to protect the views and property values of these residents.” Id. at 628.
One of the arguments was whether paragraph 11’s language “obstruct the view from any other lot” precluded construction that would cause any view obstruction, even an arguably minimal view obstruction, violated the CC&Rs. However, the court held that “it is not reasonable to interpret the CC&R’s as prohibiting any obstruction of existing views as urged by appellants.” Id., at 629. “We agree with the trial court’s observation that it would have been impractical for the original drafters of the CC&R’s to have intended that no house be built which obstructed any other owner’s view.” Id.
After rejecting the interpretation argument that the CC&Rs preclude zero obstruction, the court decided to add the word “unreasonably” to the language:
“Thus, we conclude it would be in keeping with the intent of the drafters of the CC&R’s 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.’”
Driving the court’s decision to add the word “unreasonably” into the view protection provision was Seligman v. Tucker (1970) 6 Cal.App.3d 691. The deed restriction in that case provided in pertinent part: “’No … structure shall be … erected … upon any lot in such location or in such height as to unreasonably obstruct the view of any other lot … .’” Id. at 693. One of the arguments was the term “unreasonably obstruct’ was not too vague or uncertain to be enforced, which the court rejected because “what is reasonable or unreasonable” can be determined “in light of the matter and the circumstances involved.” Id. 697.
In Zabrucky, the court further justified adding the word “unreasonably” to paragraph 11 is because there had been an architectural committee at the time the CC&Rs were recorded to review and approve proposed construction. The court said that “[s]uch a provision would accord with what the architectural committee actually did when it approved of the design and location of buildings as reflected by the court’s view of the development which revealed that respondents’ existing home partially blocked appellants’ view and various other homes in the tract also partially blocked other owners’ views.