Roger Ressmeyer, Respondent V. Steven Marshall, Appellant

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2015 AUG 29 	hYAQ-Ul
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROGER RESSMEYER,
Respondent,
v.
STEVEN MARSHALL and DEANNA
MARSHALL, a.k.a. DEANNA NELSON, a
married couple,
Appellants.
No. 74057-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: August 29, 2016
Appelwick, J. — Ressmeyer sued the Marshalls, his downhill neighbors, for
specific performance of a covenant that requires landscaping to be maintained at
a height no greater than the nearest roof peak/ridge. 	The Marshalls argued that
because Ressmeyer's house was the closest structure to the vegetation, their
trees could grow as tall as the roof peak of his house. 	The trial court granted
summary judgment in favor of Ressmeyer, concluding that the provision pertains
to the nearest roof peak/ridge on the same property as the vegetation. We affirm.

No. 74057-1-1/2
FACTS
Steven Marshall and his wife, Deanna Marshall, a/k/a Deanna Nelson, (the
Marshalls) own a home on Mercer Island. 	They bought the lot in 2001, when it
was undeveloped. 	The Marshalls' house was finished in 2004.
Roger Ressmeyer owns an 	adjacent lot that is directly uphill from the
Marshalls' lot. 	He purchased his home in 1996. 	The Marshalls' property stands
between Ressmeyer's home and Lake Washington.
Both the Marshalls' property and Ressmeyer's property are part of the
Mariner Cove subdivision. 	The developer that subdivided this property, Odegard
Development Corporation, prepared the declaration of covenants, conditions, and
restrictions of Mariner Cove (CC&Rs). 	The CC&Rs set out rules and regulations
for the lots in Mariner Cove.
"Article III, Section 2" of the CC&Rs is titled "Maintenance of Landscaping
and Trees." 	It provides,
To protect the outlook from each lot, and to maintain the overall
desirability of the subject properties, 	all owners are 	required 	to
maintain visible landscaping in a neat and sightly condition. 	Planted
trees (not including the natural large trees on the plat), shrubs, and/or
hedges must be maintained at a height equal to or lower than the
nearest roof peak/ridge height, 	unless the owner has secured an
instrument allowing a deviation from this restriction signed by all
owners of Mariner Cove lots uphill of the lot/owner seeking deviation.
This 	provision 	has 	caused 	an 	ongoing 	dispute 	between 	the 	Marshalls 	and
Ressmeyer.
The Marshalls have created an approximate visual representation of the
properties in the subdivision, which is included below. 	The estimated elevations

No. 74057-1-1/3
in this figure list the Marshalls' property—6934 96th Avenue SE—as 56.5 feet,1
and the Ressmeyer's property—located at 6930 96th Avenue SE—as 87 feet.
120'
110'
W'.'AvhjSS-
During the construction of their home, the Marshalls planted a row of bushes
and other vegetation one to two feet away from the western property line that they
share with Ressmeyer (the hedge row). 	The hedge row is closer to Ressmeyer's
house than it is to any structure on the Marshalls' property. The Marshalls intended
the hedge row to provide shade and privacy, and to be aesthetically pleasing.
As the hedge row grew, Ressmeyer informed the Marshalls that they were
required to trim their vegetation so that it was no taller than the roof peak/ridge of
their 	residence. 	This 	would 	require 	the 	hedge 	row 	to 	be 	maintained 	at
approximately six to seven feet high, 	as measured from 	the ground near the
1 The Marshalls also note that if a structure were placed at a 20 foot setback
on their property, it could have been up to 75 feet in elevation.

No. 74057-1-1/4
property line. 	Initially, the Marshalls complied. 	Then, in 2011, the relationship
between the Marshalls and Ressmeyer started to break down. 	The Marshalls
stopped trimming the hedge row, although they allowed Ressmeyer to do so at his
own expense. In 2013, the Marshalls told Ressmeyer that they would build another
structure on their property that would permit them to grow even taller vegetation,
thereby blocking Ressmeyer's view.
On August 21, 2014, Ressmeyer filed a complaint against the Marshalls.
He sought a declaratory judgment that the nearest roof peak means the nearest
roof peak of the primary residence on the same lot as the vegetation, an order of
specific performance 	requiring 	the 	Marshalls to 	trim the 	hedge 	row, 	and 	an
injunction preventing the Marshalls from 	building additional structures for the
purpose of creating a higher roof ridge line.
The Marshalls counterclaimed, seeking a declaratory judgment that they
may allow their vegetation to grow as tall as Ressmeyer's roof peak, an injunction
requiring Ressmeyer to comply with the CC&Rs, and damages for Ressmeyer's
breach of the CC&Rs. 	Both parties moved for summary judgment
The trial court heard argument on the motions on June 12, 2015. The court
concluded that the language in Article III, Section 2 of the CC&Rs pertaining to the
nearest roof peak/ridge refers to the nearest roof peak/ridge on the same property
as the vegetation, even if a structure on a different property is closer.2 	The court
2 Ressmeyer 	argued 	that 	the 	meaning 	of 	this 	language 	should 	be
established through 	reference to extrinsic evidence: the declaration of David
Odegard, who was vice president of Odegard Development Corporation when the
CC&Rs were drafted. 	However, the trial court did not refer to this declaration in

No. 74057-1-1/5
held that the purpose of this provision is to 	preserve each lot's view of Lake
Washington, and that interpreting it to permit vegetation to grow as high as the roof
peak of an uphill neighbor would make no common sense. 	As a result, the trial
court granted Ressmeyer's motion for summary judgment. The Marshalls appeal.
DISCUSSION
When a party appeals from a summary judgment, this court engages in the
same inquiry as the trial court. 	Mountain Park Homeowners Ass'n, Inc. v. Tvdinqs,
125 Wn.2d 337, 341, 883 P.2d 1383 (1994). 	Summary judgment is proper when
the pleadings, affidavits, depositions, and admissions show that no genuine issue
of material fact exists and the moving party is entitled to judgment as a matter of
law. Id.; CR 56(c). Summary judgment should be granted only if, based on all the
evidence, a reasonable person could reach only one conclusion. Folsom v. Burger
King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
The interpretation of a restrictive covenant is a question of law. Wilkinson
v. Chiwawa Cmtvs. Ass'n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014). 	We apply
the principles of contract interpretation. 	Id 	When this court interprets restrictive
covenants, the primary objective is to determine the intent of the parties who
established the covenants. 	Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669
(1997). The court construes the document in its entirety, and gives language its
ordinary and common meaning. ]d.
determining the 	meaning of the 	covenant. 	Nor do we consider 	Odegard's
declaration.

No. 74057-1-1/6
The Marshalls argue that Article III, Section 2 can be interpreted only as
tying the 	maximum vegetation 	height to the 	roof peak of whatever structure
happens to be nearest. They assert that any other interpretation would require this
court to read words into the CC&Rs.
Article III, Section 2 begins by stating the purpose of the provision: "To
protect the outlook from each lot, and to maintain the overall desirability of the
subject properties." Webster's defines "outlook" as "a view from a particular place."
Webster's Third New International Dictionary 1602 (2002). 	The Marshalls
contend that "outlook" is a place-centric word that is focused on the place from
where a thing is being observed, not the thing itself. Thus, they argue that "outlook"
is the viewpoint, not the view. 	Alternatively, they contend that even if "outlook"
does mean view, it is not limited to water views and could just as easily mean
landscape views.
It is common sense that a lakefront property is more desirable when it has
a view of the lake. 	See Wimberlv v. Caravello, 136 Wn. App. 327, 337, 149 P.3d
402 (2006) (noting that the scenic location and views of a residential community
overlooking Lake Roosevelt are an intrinsic part of the aesthetic and monetary
value of the lots). 	The value of the outlook is in the view. 	The CC&Rs call for
landscaping to be maintained to protect the overall desirability of all the properties
in the subdivision. It would be inconsistent with this provision to permit landscaping
to grow so tall that it completely blocks the view from the uphill neighbor's outlook.
And, if the word "outlook" was intended to mean a view of the landscaping, as the
Marshalls 	suggest, 	there 	would 	be 	no 	need 	to 	require 	landscaping 	to 	be

No. 74057-1-1/7
maintained at a particular height, because the landscaping itself would be the
protected view.
Article III, Section 2 requires owners "to maintain visible landscaping in a
neat and sightly condition." 	The Marshalls argue that this requirement further
supports their interpretation. 	They argue that their obligation is to maintain "neat
and sightly" landscaping, not to protect Ressmeyer's outlook. 	"Neat and sightly"
landscaping, they argue, means landscaping that is aesthetically pleasing and that
provides privacy.3 They are correct about the affirmative obligation for maintaining
visible landscaping. 	However, the language does not purport to relieve any other
obligation in the covenants, including protection of outlooks. 	And, nothing in the
landscaping portion of the covenant makes any reference to protecting the privacy
of any owner.
Article III, Section 2 also contains an exception to the requirement that
vegetation be maintained at a height no greater than the nearest roof peak/ridge,
stating that deviation is allowed if the owner obtains an instrument signed by the
owners of all uphill lots. An owner would need a deviation only to grow vegetation
that is taller than the nearest roof peak. 	There would be no need to require the
closest uphill neighbor's consent to deviate from the landscaping restrictions if the
nearest roof peak could refer to that neighbor's roof peak. 	Even though only
3 The Marshalls view the hedge row as critical to maintaining their privacy.
They wish to grow trees that are tall enough to block Ressmeyer from seeing into
their yard and back windows. 	Webster's offers multiple definitions of "neat," but
none of them mentions privacy. Webster's Third New International Dictionary
1510 (2002). The only definition relevant in this context is "orderly, tidy." \± And,
Webster's provides several definitions of "sightly:" 	"acceptable or pleasing to the
sight: decent in appearance;" "affording a fine view." 	Id\ at 2115.

No. 74057-1-1/8
neighbors located further uphill would be affected by the taller vegetation, because
the vegetation would already block the view of the immediate uphill neighbor,
Article III, Section 2 explicitly requires the deviation to be evidenced by a written
instrument signed by all uphill neighbors.
The 	Marshalls' 	interpretation 	of the 	nearest 	roof 	peak/ridge 	language
cannot 	be 	squared 	with 	the 	rest 	of Article 	III, 	Section 	2. 	The 	Marshalls'
interpretation would give downhill neighbors the right to completely obstruct the
view of their uphill neighbors. Conversely, if the downhill neighbor's roof peak was
closer to the planting area than the owner's roof peak, 	it could prevent uphill
neighbors from having plants at all. 	It also would all but eliminate the need for the
provision allowing a deviation from the height restriction.
This court does not give contracts a strained or forced construction that
would lead to absurd results.4 	Mid-Century Ins. Co. v. Henault, 128 Wn.2d 207,
213, 905 P.2d 379 (1995). The only reasonable interpretation of the nearest roof
peak/ridge language in Article III, Section 2 is that it refers to the nearest roof
peak/ridge on the same property as the vegetation.
4 At oral 	argument, 	the 	Marshalls 	recognized 	that their 	interpretation
arguably leads to an absurd result. 	However, they argued that Ressmeyer's
interpretation leads 	to an 	equally absurd 	result, 	because 	it would 	limit the
Marshalls' vegetation to three to four feet 	in 	height. 	We do not agree that
Ressmeyer's interpretation creates an absurd result. Common sense dictates that
a provision pertaining to the maintenance of landscaping and vegetation would set
limits for vegetation. 	That the Marshalls are unsatisfied by the aesthetics of
vegetation three to four feet in height does not make this covenant absurd.

No. 74057-1-1/9
We hold that the trial court did not err in granting summary judgment in favor
of Ressmeyer.
We affirm.
WE CONCUR:
JjLgL&K. f