FILE 

IN CLERKS OPFICE This opinion was filed for record 

m~ Rnai~Pt &upreme Court Clark 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

RIVERVIEW COMMUNITY GROUP, a 

non-profit Washington Corporation, 

Petitioner, 

v. 

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SPENCER & LIVINGSTON, a Washington ) 

Partnership, and/or its successors-in-interest; 

GEORGE T. and SHEILA LIVINGSTON, 

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) 

husband and wife, and the marital community) 

composed thereof; DEER MEADOWS, INC., ) 

a defunct Washington Corporation, 

and/or its successors-in-interest; DEER 

MEADOW DEVELOPMENT, INC., a 

Washington corporation, and/or its 

successors-in-interest; S.O.S., LLC, a 

Washington Limited Liability Company, 

and/or its successors-in-interest; DEER 

MEADOWS GOLF, INC., an inactive 

Washington corporation, and/or its 

successors-in-interest; also all other persons 

or parties unknown claiming any right, title, 

estate, lien, or interest in the real estate 

described in the complaint herein, 

Respondents. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

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__________________________ ) 

No. 88575-3 

En Bane 

Filed NOV 2 0 2014 -------
Riverview Communi~y Group v. Spencer & Livingston, et. al., No. 88575-3 

GONZALEZ, J.--We are asked whether property developers' representations 

about a property anchoring a development may impose an equitable servitude on that 

property. We find that such representations may impose a servitude if, among other 

things, they are made by someone with the authority to burden the property. We are 

also asked whether the Riverview Community Group has the authority to pursue 

equitable relief based on the developers' representations to its members. We find that 

it does. We reverse the dismissal ofRiverview's lawsuit and remand to the trial court 

for further proceedings consistent with this opinion. 

FACTS 

In the 1980s, Charles Spencer and George Livingston formed a partnership to 

develop and sell property in rural Lincoln County near the confluence of Lake 

Roosevelt and the Spokane River. Over the next 20 years, this partnership and its 

successors built the Deer Meadows Golf Course Complex (including a golf course, 

restaurant, hotel, store, and club), platted several nearby parcels of property into 

subdivisions (the Deer Meadows arid Deer Heights subdivisions), and sold lots to 

private land owners for homes and vacation properties. A plat identifying the golf 

course was recorded, and an image of the plat was used to help advertise the 

development. A local newspaper quoted Spencer as saying he built the golf course 

complex '"so it would help sell the residential lots around here,"' and the lots were 

advertised accordingly. Clerk's Papers (CP) at 107. Over the next 20 years, 

ownership of the unsold lots and the golf course changed forms and hands several 

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Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

times. After Spencer passed away and after most of the lots were sold, Livingston 

closed down the golf course complex and began the process of platting the course into 

new residential lots. 

Many of those who had bought homes in the various subdivisions developed by 

Spencer and Livingston believed they had been promised that the golf course complex 

would remain a permanent fixture of their community, and they made the decision to 

purchase homes based in part on that promise. Some ofthose homeowners formed 

the Riverview Community Group, which filed this lawsuit seeking to bar the 

defendants from selling off the former golf course as individual homes, among other 

0 ' 

things. Riverview argued that the golf course complex was the heart of the 

community and provided necessary amenities and that its members had bought their 

property reasonably believing it would remain a part of their development. Riverview 

named as defendants the original Spencer & Livingston partnership, George and 

Sheila Livingston, the partnership's alleged successors, and anyone else claiming an 

interest in the golf course property. Riverview sought to impose an equitable 

servitude on the golf course property that would limit its use to a golf course or, if that 

was untenable, for other equitable relief. It also sought injunctive relief. 

The Livingstons responded that Riverview's attempt to bring any claims 

amounted to fraud on the court. They moved for dismissal under CR 12(b )(7) for 

failure to join indispensable parties under CR 19. S.O.S. LLC, later joined by 

3 
Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

Livingston, moved for summarY. judgment, arguing, among other things, that equitable 

servitud~s were not availabl_e in Washington unless created in writing. 

In 2012, the trial judge issued a memorandum decision granting the 

Livingstons' motion under CR 12(b )(7) f()r failure to join indispensable parties. The 

decision gave Riverview a "reasonable period of time"_ to join the Deer Meadows 

property owners. CP at 212. The following month, the trial court issued an order 

stating that "the legal issue of whether an equitable servitude can be created by 

implication is a question of first impression in the State of Washington" and granted 

summary judgment in favor of the defendants to expedite review. Id. at 248. 

The Court of Appeals largely reversed the trial court's legal rulings, finding 

that Riverview had organizational standing and the individual property owners were 

not essential parties, and concluding that Washington recognized equitable covenants. 

Riverview Cmty. Grp. v. Spencer & Livingston, 173 Wn. App. 568, 295 P.3d 258 

(2013). However, it affirmed summary judgment on the grounds that it would be 

"irrational to require the defendants to rebuild and operate a failing business." Id. at 

591. We granted Riverview's petition for review. Riverview Cmty. Grp. v. Spencer & 

Livingston, 178 Wn.2d 1009, 308 P.3d 643 (2013). We affirm most of the Court of 

Appeals' legal rulings but find its dismissal was based on facts not found in the 

record. We affirm in part, reverse in part, and remand to the trial court for further 

proceedings. 

4 
Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

ANALYSIS 

We review summary judgment de novo, taking all inferences in favor of the 

nonmoving party. Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600,260 

P.3d 857 (2011) (citing Mulcahy v. Farmers Ins. Co. of Wash., 152 Wn.2d 92, 98, 95 

P.3d 313 (2004)). We review CR 12(b)(7) dismissals for failure to join an 

indispensable party under CR 19 for abuse of discretion "with the caveat that any 

legal conclusions underlying the decision are reviewed de novo." Gildon v. Simon 

Prop. Grp., Inc., 158 Wn.2d 483,493, 145 P.3d 1196 (2006) (citing Equal Emp't 

Opportunity Comm 'n v. Peabody W Coal Co., 400 F.3d 774, 778 (9th Cir. 2005)). 

Such dismissals "should be employed sparingly when there is no other ability to 

obtain relief." I d. at 494 (citing 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & 

MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1609, at 130 (3d ed. 

2001)). 

1. MAY RIVERVIEW MAINTAIN THIS ACTION? 

Cases should be brought and defended by the parties whose rights and interests 

are at stake. See Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994) (citing 

Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 138, 744 P.2d 1032, 

750 P.2d 254 (1987)). This principle is reflected in the court rules and in common 

law limitations on who can bring suit. I d.; see also CR 17(a). S.O.S. LLC and the 

Livingstons argue that Riverview lacks standing to sue on behalf of its members, that 

5 
Riverview Community Group v. Spencer & Livingston, et. a!., No. 88575-3 

it is not a real party in interest, and that the individual landowners are indispensable 

parties. The Court of Appeals rejected these arguments. We affirm. 

"Organizations have standing to assert the interests of their members, so long 

as members of the organization would otherwise have standing to sue, the purpose of 

the organization is germane to the issue, and neither the claim nor the relief requires 

the participation of individual members." Five Corners Family Farmers v. State, 173 

Wn.2d 296,304,268 P.3d 892 (2011) (citing Int'l Ass'n of Firefighters, Loca/1789 

v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002) 

(Firefighters)). Riverview has satisfied this test. Several of its members have filed 

sworn declarations that establish the basis of a claim, satisfying the first element of 

the Firefighters test. The homeowners formed Riverview with the purpose of 

defending their interests, satisfying the second element. Finally, Riverview can 

pursue this claim for equitable or injunctive relief without the participation of 

individual members. The relief requested-the imposition of an equitable servitude 

on the land and/or some sort of injunctive relief--does not require the participation of 

the individual members. 1 

. . 1 We respectfully disagree with our dissenting colleagues that the standing inquiry turns on 

whether Riverview members will be called upon to testify. Dissent at 2 (citing Firefighters, 146 

Wn.2d at 214; Ironworkers Dist. Council ofPac. Nw. v. Univ. ofWash. Bd. of Regents, 93 Wn. 

App. 735,741, 970 P.2d 351 (1999)). We have never held that "testimony" is the equivalent of 

"participation" for the purposes of the third prong of the standing analysis we adopted in 

Firefighters, and the Court of Appeals has explicitly rejected that argument as "without merit." 

TeamstersLo.cal Union No. 117 v. Dep't of Carr., 145 Wn. App. 507, 512, 187 P.3d 754 (2008); 

see also Pugh v. Evergreen Hasp. Med. Ctr., 177 Wn. App. 363, 366, 312 P.3d 665 (2013), 

review denied, 180 Wn.2d 1007 (20 14 ). In Teamsters the Court of Appeals "refuse[ d] to adopt 

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Riverview Community Group v. Spencer & Livingston, et. al., No. 88575~3 

For similar reasons, we find the CR 17 and CR 19 arguments unavailing. CR 

17(a) provides that "[e]very action shall be prosecuted in the name of the real party in 

interest." Given that we find organizational standing, this rule has been satisfied. Nor 

have the respondents otherwise established that the individual property owners in the 

subdivisions were indispensable parties under CR 19(a), and we agree with the Court 

of Appeals that the trial court was incorrect in concluding otherwise. The Livingstons 

argue that the individual land owners in the developments are necessary parties 

because they could individually bring suit, raising the possibility of inconsistent 

results. Among other things, a party is indispensable when it "is needed for just 

adjudication." Gildon, 158 Wn.2d at 494 (citing Crosby v. Spokane County, 137 

Wn.2d 296, 306, 971 P.2d 32 (1999)). "[I]f an absent party is needed but it is not 

possible to join the party, then the court must determine whether in 'equity and good 

conscience' the action should proceed among the parties before it or should be 

dismissed." ld. at 495 (quoting Crosby, 137 Wn.2d at 306-07). Given that Riverview 

is seeking only equitable and injunctive relief, the other homeowners are not needed 

DOC's position that participation of an individual member as a witness abrogates the Union's 

standing to prosecute the employees wage claims." 145 Wn. App. at 514. Denying 

organizational standing based on the fact members might be called upon to testify would not 

further the purpose of the third prong. As the United States Supreme Court explained in a case 

we discussed at great length in Firefighters, this third prong is prudential and exists because 

without it "the courts would be called upon to decide abstract questions of wide public 

significance even though other governmental institutions may be more competent to address the 

questions and even though judicial intervention may be unnecessary to protect individual rights." 

Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). Neither concern is 

present here, whether or not any of the members testify. 

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Riverview Community Group v. Spencer & Livingston, et. a!., No. 88575-3 

for a just adjunction. If it succeeds, the other property owners will be benefited. See 

Auto. United Trades Org. v. State, 175 Wn.2d 214, 225, 285 P.3d 52 (2012) (noting 

that an absent party's ability to protect its interest is not impaired if that interest is 

adequately protected by existing parties). If Riverview's suit ultimately fails, we 

discern no necessary injury to the property owners who have not joined the cause. 

While we need not reach the second step, if we do, equity and good conscience do not 

cry out for dismissal, especially given that the Livingstons have not established that 

the Court of Appeals was incorrect that the various statutes of limitations on potential 

claims has or will soon run. 

We affirm the Court of Appeals on these intertwined issues and find Riverview 

may maintain this action. 

2. MAY AN EQUITABLE SERVITUDE BE IMPLIED? 

Next, we turn to whether, under Washington law, an equitable servitude 

limiting the use of land may be implied. Riverview argues that it may under either § 

2.10 of the Restatement (Third) of Property (2000) or Johnson v. Mt. Baker 

Presbyterian Church, 113 Wash. 458, 194 P. 536 (1920). We find that an equitable 

servitude and injunctive relief are available under Johnson and leave for another day 

whether§ 2.10 of the Restatement correctly articulates the law in Washington State. 

In Johnson, a Seattle a property developer platted and developed a new 

neighborhood, the "Mt. Baker Park, an addition to the city of Seattle." 113 Wash. at 

459. The developers advertised the neighborhood as a "strictly high-class residence 

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Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

section~~ that "would not permit any buildings other than residences." Id. Most of the 

deeds for lots in the neighborhood included boilerplate language limiting building to 

"'single, detached residence[s],"' which the court found increased the sale price ofthe 

lots by 15 to 20 percent. I d. at 460-41. But not all of the deeds in the development 

contained the boiler plate restriction. Id. at 460. A church congregation acquired one 

of the apparently unrestricted lots, intending to build a church, and the litigation 

followed. Id. at 461. The church acknowledged that it knew the development was 

intended to be limited to single family homes but argued that the other homeowners 

could not seek to enjoin it from building a church unless it could "show some right, 

title, interest or easement in the so-called church lot," which, it contended, would have 

to have been created in writing on the deed to avoid the statute of frauds. !d. at 462. 

We disagreed. We declined to apply the statute of frauds because the 

homeowners' relief did not rest on creation of an interest in the church's land but on 

"equitable principles." Id. at 464. We did not reach the issue of whether the covenant 

ran with the land to bind successors because the church was fully aware of the 

restrictions when it bought the property (i.e., all parties had notice of the restrictions). 

Id. at 468-69. Instead, we held that "if this suit had been against the improvement 

company to enjoin it from making to appellant a deed without restrictions, such suit 

must have succeeded upon equitable principles .... By its conduct and 

representations, the improvement company imposed on its remaining lots certain use 

restrictions which it may not now violate." Id. at 465-66. Accordingly, "based on 

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Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

conduct, representations and acts which in justice, between man and man, may not be 

repudiated," we affirmed an injunction preventing the congregation from building the 

church. Id. at 466, 459. 

More recently, we observed that words on the face of a plat, such as "golf 

course" on one of the recorded plats here, can establish an equitable covenant limiting 

the use ofland. Hollis v. Garwall, Inc., 137 Wn.2d 683, 691-93, 974 P.2d 836 (1999) 

(citing Thorstadv. Fed. Way Water & Sewer Dist., 73 Wn. App. 638,870 P.2d 1046 

(1994)). 2 Even more recently, we have observed that "it is even possible for 

covenants to be enforced against those who have no covenant appearing on their title." 

1515-1519 Lakeview Boulevard Condo. Ass 'n v. Apt. Sales Corp., 146 Wn.2d 194, 

204, 43 P.3d 1233 (2002) (citing William B. Stoebuck, Running Covenants: An 

Analytical Primer, 52 WASH. L. REV. 861, 908-10 (1977)). Taken together, we find 

that an equitable servitude may be implied. Under Johnson, the statute of frauds is no 

2 We find unavailing the respondents' contentions that the parol evidence rule requires the court 

to turn a blind eye to the plats and other evidence Riverview has presented in support of 

equitable and injunctive relief. The parol evidence rule limits extrinsic evidence of the parties' 

contractual intent. Hollis, 137 Wn.2d at 693 (citing Berg v. Hudesman, 115 Wn.2d 657, 801 

P.2d 222 (1990)). This case does not turn on the meaning ofthe parties' contracts; this case 

sounds in equity, not contract. Similarly, we are not persuaded that the dead man's statute, RCW 

5.60.030, is fatal to this case. Under RCW 5.60.030 testimony of an interested party shall not be 

admitted ''as to any transaction ... or any statement made" by the deceased. The test of whether 

an act is a "transaction" within the meaning of the dead man statute "is whether deceased, if 

living, could contradict the witness of his own knowledge." In re Estate of Wind, 27 Wn.2d 421, 

426, 178 P.2d 731 (1947). While the dead man's statute may bar some specific testimony from 

being offered on remartd, there is ample evidence presented that does not depend on the 

testimony of interested parties, such as the recorded plat and various real estate flyers from the 

realty company describing Deer Meadows as a golf community. CP at 132-44. Without 

testimony by Riverview members about actions of deceased defendants, the dead man's statute 

does not apply. 

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Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

barrier, at least when there is some writing, such as a plat, that supports the imposition 

of the burden.3 

Our decision that an equitable servitude may be implied is bolstered by a 

similar case from Oregon, Mountain High Homeowners Ass 'n v. J.L. Ward Co., 228 

Or. App. 424, 209 P.3d 347 (2009). Similarly to the case before us, the homeowners 

in Mountain High had bought homes in a development that contained a golf course 

complex. I d. at 427. Also like the case before us, "prospective buyers who asked for 

assurances that the golf course would remain in place were told that the golf course 

would continue to be there and that there was no need to worry about it." Id. Also 

like the case before us, the golf course fell on hard financial times and the owner shut 

down operations. !d. at 429. After a full trial, the Oregon trial court imposed an 

equitable servitude on the golf course property limiting its use to a golf course and 

entered an injunction requiring the developer "to reconstruct, maintain, and operate 

the nine-hole golf course for 15 years." I d. at 431. The Court of Appeals affirmed. 

3 We respectfully disagree with the concurrence/dissent that summary judgment should be 

affirmed on this record. See concurrence/dissent at 1-2, 9-10. Taken in context, the trial judge's 

oral observation at summary judgment that there was "nothing in writing" appears to us to mean 

there was no written instrument creating an encumbrance, not that there was no writing' 

evidencing the creation of an equitable servitude. Verbatim Tr. of Proceedings (Dec. 23, 2011) 

at 21. Whether encunJ.brance had to be created in writing was a major issue in the summary 

judgment hearing, enough so that plaintiffs cmmsel proposed entering a RAP 2.3(b)(4) order 

allowing immediate review. Id. at 14. While the respondents' counsel declined to join the 

motion, the trial court's order clearly echoes the language of RAP 2.3(b)(4), strongly suggesting 

thatthe judge was motivated at least in part to obtain an appellate ruling on whether equitable 

servitudes could be implied. CP at 248. Also, there are other writings in this record, and there 

may be more found after further discovery, that provide at least some evidence that those with 

the power to encumber the property did so, as well as other evidence suggesting an 

encumbrance. E.g., Id. at 97, 99, 100-02, 107, 151. 

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Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

Id. at 438. It reasoned that the imposition of an equitable servitude and an enforcing 

injunction was justified because 

[d]~fendant represented to buyers that Mountain High was and would continue 

to be a golf course community. That representation was made both expressly 

and impliedly. It was reasonably foreseeable that, in deciding whether to 

purchase land within Mountain High, a prospective buyer would rely on those 

representations and substantially·change position as a result of that reliance. 

The owners did, in fact, purchase property in Mountain High, substantially 

· changing their positions as a result of defendant's representations. It was 

reasonable for buyers to rely on the representations of the developer of 

Mountain High and the owner of the Mountain High golf course in making 

their decisions to purchase in the community. Under all the circumstances, 

including the condition of the golf course property as of the date of trial in this 

case, it would be unjust for defendant to benefit from the successful marketing 

of Mountain High as a "golf course community" without the imposition of the 

servitude. Accordingly, we conclude that the trial court did not err in declaring 

the existence of the equitable servitude. 

I d. at 438-39. We agree.4 

We find that Riverview has presented sufficient evidence to survive summary 

judgment under Johnson. The evidence presented creates a material question of fact 

of whether those with the power to burden the property induced purchasers to 

purchase lots on the promise that the golf course would remain a permanent fixture of 

the community. Under Johnson, both equitable and injunctive relief may be available. 

113 Wash. at 464-65. 

We acknowledge that there is force to the Court of Appeals' conclusion that 

requiring the respondents to operate an unprofitable golf course would be inequitable. 

4 We recognize that the Oregon court has explicitly adopted the Restatement approach. We 

nonetheless find the case helpful. 

12 
Riverview Community Group v. Spencer & Livingston, et. al. ~No. 88575-3 

See Riverview Cmty. Grp., 173 Wn. App. at 590 (citing Proctor v. Huntington, 169 

Wn.2d 491, 500-01, 238 P.3d 1117 (2010)). But we find nothing in this record that 

provides an adequate factual basis for the Court of Appeals' disposition on this basis. 

Further, while Riverview's complaint primarily seeks "[a] decree quieting title to an 

equitable servitude in defendants' real property ... that Deer Meadows and Deer 

Heights may continue as a ... golf course community [with] an operating 18-hole golf 

course" and a consistent injunction, it did not limit its prayer for relief to those 

remedies. CP at 20-23. Only if on remand Riverview establishes that someone with 

the power to encumber the golf course property did so will the question of an 

equitable remedy arise. At that point, the parties will be free to present evidence and 

argument as to the nature and scope of any appropriate equitable and injunctive relief. 

See, e.g., Mountain High, 228 Or. App. at 440 (imposing a servitude limiting the use 

of the property in perpetuity but only imposing the injunction for a limited period of 

time). 

CONCLUSION 

We affirm the Court of Appeals to the extent that it found Riverview had 

standing to maintain the suit, that dismissal under CR 17 and CR 19 was unwarranted, 

and that an equitable servitude may be created by implication. We reverse the Court 

of Appeals' dismissal and remand to the trial court for further proceedings consistent 

with this opinion. 

13 
Riverview Community Group v. Spencer & Livingston, et. a!., No. 88575-3 

/ 

WE CONCUR: 

~~--« 

11!~[}, 

14 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

No. 88575-3 

GORDON McCLOUD, J. (concurring in part and dissenting in part)-I 

agree with the majority that Riverview Community Group has standing to bring 

this lawsuit on behalf of its members and that individual landowners in the 

developments are not indispensable parties. Majority at 5-7. But I also believe 

that it is necessary to reach the issue that the majority "leave[s] for another day," 

that is, whether Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 

194 P. 536 (1920), or § 2.10 of the Restatement (Third) of Property: Servitudes 

(2000) provides controlling law on the existence of implied equitable servitudes in 

Washington. I conclude that Johnson is controlling precedent and that as the 

majority states, it held that Washington recognizes equitable servitudes by 

implication. Johnson, 113 Wash. at 466. 

However, I disagree with the majority's holding that Riverview presents 

evidence sufficient to survive summary judgment under Johnson. Johnson and 

subsequent Washington decisions found implied equitable servitudes only where 

1 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

the landowners presented more evidence than Riverview presents here. I therefore 

respectfully dissent from the majority's holding on that point; I would affirm the 

Court of Appeals' dismissal of this case. 

I. RivERVIEW MEETS THE REQUIREMENTS FOR ORGANIZATIONAL 

STANDING 

To establish standing, Riverview must show that "(1) [its] members . 

would otherwise have standing to sue in their own right; (2) the interests [it] seeks 

to protect are germane to its purpose; and (3) neither [the] claim asserted nor [the] 

relief requested requires the participation of its individual members." Int 'lAss 'n of 

Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 

186, 50 P.3d 618 (2002) (Firefighters) (citing Hunt v. Wash. State Apple Adver. 

Comm 'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977)). 

"Unlike the third prong of the test, the first two prongs are constitutional in 

that they ensure that article III, section 2's 'case or controversy' requirements are 

satisfied." Id. at 215 (citing United Food & Commercial Workers Union Local751 

v. Brown Grp., Inc., 517 U.S. 544, 116 S. Ct. 1529, 134 L. Ed. 2d 758 (1996); U.S. 

CONST. art. III, § 2). For the judicially created third element, the ultimate test is 

'"whether the circumstances of the case and the relief requested make individual 

participation of the association's members indispensable."' I d. (quoting 

Firefighters, 103 Wn. App. at 770). An association generally has standing to sue 

2 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

"as long as one of its members has standing." E. Gig Harbor Improvement Ass 'n 

v. Pierce County, 106 Wn.2d 707, 710, 724 P.2d 1009 (1986). These requirements 

"permit a single plaintiff to adequately represent the interests of its many members 

in a single lawsuit, thus avoiding repetitive and costly independent actions." 

Teamsters Local Union No. 117 v. Dep't ofCorr., 145 Wn. App. 507, 512, 187 

P.3d 754 (2008). 

The dissent "would hold that Riverview fails the third element," i.e., that 

individual member participation is not required for relief. Dissent at 2. It even 

questions whether Riverview fails the second element-seeking to vindicate 

interests germane to its purpose-because Riverview's "entire purpose is to bring a 

lawsuit." Id. at 2 n.l. 

The dissent errs on both points. As to the second element-that the 

association seek relief that is germane to its purpose-the dissent cites no authority 

barring "an organization whose entire purpose is to bring a lawsuit" from bringing 

a lawsuit on behalf of its members. Indeed, there is none. In Save a Valuable 

Environment v. City of Bothell, 89 Wn.2d 862, 865, 576 P.2d 401 (1978) (SAVE), 

after the city of Bothell rezoned a parcel of farm land to allow construction of a 

major regional shopping center, a group of individuals formed a nonprofit 

corporation "for the declared purpose of working to maintain the quality of the 

3 
Riverview Cmty. Grp. v. Spencer & Livingston eta!., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

living environment in the area of the Northshore School District in King and 

Snohomish counties," an area that included Bothell. SAVE claimed that the 

rezone would detrimentally affect both the environment and the economy of the 

area. Id. In holding that SAVE had standing to sue, we explained, 

An individual who is one of many harmed by an action may be unable 

to afford the costs of challenging the action himself. A class suit may 

be too cumbersome. An association or nonprofit corporation of 

persons with a common interest can then be the simplest vehicle for 

undertaking the task, and we see no reason to bar injured persons from 

this method of seeking a remedy. It is argued that a nonprofit 

corporation without assets may be unable to pay costs assessed against 

it should it fail in its suit. The same can be said of any individual 

person, however. It is not appropriate to bar an injured party from a 

judicial remedy simply because that party does not have assets. 

Id. at 867-68. Riverview asserts, "After closing down and wasting the golf course 

complex, the aggrieved landowners in this case banded together and formed a nonprofit association to seek relief." Appellant's Opening Br. at 10; Clerk's Papers 

(CP) at 206. Based upon our reasoning in SAVE, Riverview meets the second 

element. 

Riverview also meets the third prerequisite to organizational standing-that 

neither the claim asserted nor the relief requested requires participation of the 

individual members. This third prerequisite generally bars an association from 

seeking damages on behalf of members when each member would have to 

4 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

establish individual damages. Firefighters, 146 Wn.2d at 214-15. If the individual 

members must participate, no need exists for the association to do so. 

In this case, however, the parties request equitable relief, not damages. The 

difference is critical. In Firefighters, we held that a fire fighters' union had 

associational standing to sue an employer for wrongful conversion. !d. at 217. 

The union sought money damages, although it did not allege an injury to itself or 

receive an assignment of its members' damage claim. Id. at 216. We concluded 

that the monetary damages to each of the union members was "certain, easily 

ascertainable, and within the knowledge of the defendant." Id. at 215-16. We 

explained, 

If we reached the result advanced by [petitioner] we would likely 

burden individual members of the employee association economically 

and would almost certainly burden our courts with an increased 

number of lawsuits arising out of identical facts. In short, we see little 

sense in an ironclad rule that has the effect of denying relief to 

members of an association based upon an overly technical application 

of the standing niles. 

Id. at 216. 

Similarly, in Hunt, upon which our court relied in Firefighters, the United 

States Supreme Court explained, 

"[W]hether an association has standing to invoke the court's 

remedial powers on behalf of its members depends in substantial 

measure on the nature of the relief sought. If in a proper case the 

association seeks a declaration, injunction, or some other form of 

5 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

prospective relief, it can reasonably be supposed that the remedy, if 

granted, will inure to the benefit of those members of the association 

actually injured. Indeed, in all cases in which we have expressly 

recognized standing in associations to represent their members, the 

relief sought has been of this kind." 

Hunt, 432 U.S. at 343 (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S. Ct. 2197, 

2213, 45 L. Ed. 2d 343 (1975)). 

In fact, I find no cases denying standing when the organization seeks only 

equitable relief and satisfies the first two elements of the test for standing. See 

Columbia Basin Apt. Ass 'n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001) 

("Appellants request only injunctive and declaratory relief. Because these forms of 

relief do not require individualized proof, the third prong of the Hunt test is 

satisfied."); Alaska Fish & Wildlife Fed'n & Outdoor Council, Inc. v. Dunkle, 829 

F.2d 933, 938 (9th Cir. 1987) ("[B]ecause the [organization] seeks declaratory and 

prospective relief rather than money damages, its members need not participate 

directly in the litigation."). 

I therefore agree with the majority's decision that Riverview has standing. 

II. JOHNSON, NOT THE. RESTATEMENT, PROVIDES CONTROLLING LAW ON 

THE EXISTENCE OF IMPLIED EQUITABLE SERVITUDES IN WASHINGTON 

I disagree with the majority's analysis of whether Riverview has offered 

sufficient evidence to survive summary judgment, though. 

6 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

Johnson held, as the majority states, that based upon the existence of a 

common plan or development scheme, a court may impose the benefit and burden 

of restrictions that a common grantor or developer imposed, and under this 

equitable theory, a property owner in a development may be able to enforce a 

restriction against another property owner who is not expressly subject to the 

restriction. Johnson, 113 Wash. at 464-65. The Court of Appeals concluded 

correctly, "Although old, Johnson's holding has never been questioned." 

Riverview Cmty. Grp. v. Spencer & Livingston, 173 Wn. App. 568, 589, 295 P.3d 

258 (2013). 

On the other hand, the Restatement would establish equitable servitudes in a 

wider range of cases. The Restatement states, 

If injustice can be avoided only by establishment of a servitude, 

the owner or occupier of land is estopped to deny the existence of a 

servitude burdening the land when: 

( 1) the owner or occupier permitted another to use that 

land under circumstances in which it was reasonable to foresee 

that the user would substantially change position believing that 

the permission would not be revoked, and the user did 

substantially change position in reasonable reliance on that 

belief; or 

(2) the owner or occupier represented that the land was 

burdened by a servitude under circumstances in which it was 

reasonable to foresee that the person to whom the 

representation was made would substantially change position 

on the basis of that representation, and the person did 

7 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

substantially change position m reasonable reliance on that 

representation. 

RESTATEMENT § 2.1 0. 

To establish an equitable servitude by estoppel, the Restatement requires a 

property owner to show (1) an express or implied representation made under 

circumstances where (2) it is reasonably foreseeable that the person to whom the 

representation is made will rely on it, (3) that the person relies on the 

representation, ( 4) that such reliance is reasonable, and ( 5) that establishing a 

servitude is necessary to avoid injustice. Mountain High Homeowners Ass 'n v. 

J.L. Ward Co., 228 Or. App. 424, 438, 209 P.3d 347 (2009). 

The Restatement also contains the following illustration, which uses a fact 

pattern similar to the facts here as an example of an equitable servitude: 

P bought a lot abutting a golf course in a residential subdivision. The 

developer, who owned the golf course, represented that the golf 

course would be subject to restrictions that would ensure its 

maintenance as a golf course for 50 years. Sales brochures for the 

subdivision showed pictures of the golf course and stated that all 

residents would have access to golf-club memberships. The developer 

now plans to discontinue the golf course and build apartment houses 

on the golf course. Giving effect to the oral representation would be 

justified. Given the existence of the golf course, the specificity of the 

representations, the brochures, and the likely expectation of residential 

purchasers that their deeds would not reflect the developer's 

obligations with respect to the golf course, their reliance was 

reasonable. 

RESTATEMENT§ 2.9 illus. 10. 

8 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

Under the Restatement test, as the majority implies, Riverview's case would 

survive summary judgment. But under the Johnson test, as I explain below, 

Riverview's case would not survive summary judgment. Thus, we must address 

which test applies in Washington. 

As the Court of Appeals explained, Johnson is a case from our court that has 

not been overruled or limited. We will not overrule it unless we are convinced that 

it is both incorrect and harmful. State v. Njonge, _ Wn.2d _, 334 P.3d 1068, 

1074 (2014) (citing In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 

466 P.2d 508 (1970)). None of the parties really argue that, and my own research 

doesn't convince me of that. Thus, under controlling precedent, we have no reason 

at this point to abandon Johnson. I therefore apply the Johnson test to this case in 

the section below and explain more fully why Riverview might be able to 

overcome summary judgment under the Restatement, but not under Johnson. 

Ill. RivERVIEW PRESENTS No QUESTION OF MATERIAL FACT ABOUT 

WHETHER WE CAN IMPOSE THE BENEFIT AND BURDEN OF 

RESTRICTIONS THAT A COMMON GRANTOR OR DEVELOPER IMPOSED 

In opposition to the respondents' Civil Rule 12(b)(7) and summary judgment 

motions, Riverview presented evidence to the trial court to support its implied 

equitable servitude claims. At the hearing on summary judgment, the court stated, 

"[I]n this case it's undisputed that there is nothing in writing with respect to the 

9 
Riverview Cmty. Grp. v. Spencer & Livingston eta!., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

golf course." Verbatim Tr. of Proceedings (Dec. 23, 2011) at 21. 1 The evidence 

showed that out of four recorded Deer Meadows plats and the three Deer Heights 

plats, only one, Deer Meadow Plat 3, noted the presence of a golf course. CP at 

29-35, 38, 39, 110.2 Deer Meadow Plat 3 contains sections titled "Easement 

Provisions" and "Restrictions and Reservations." Id. at 39. The easement 

provisions address public utilities and contain no reference to the golf course. The 

restrictions section also contains no reference to the golf course; the restrictions 

relate only to road maintenance. !d. at 34. And none of the real estate contracts 

provided contain any reference to the golf course, although they note applicable 

covenants, conditions, and restrictions. Id. at90-95, 106,116-26,135,186.3 

1 In rejecting Riverview's request to adopt the Restatement, the Court of 

Appeals did not address whether a writing existed here. Riverview Cmty. Grp., 173 

Wn. App. at 585, 589. 

2 This includes both the original and the replat of Deer Meadow Plat 1. CP 

at 31. 

3 Notably, real estate contracts for lots in Deer Meadow Tract Plats 2 and 3 

contain merger clauses stating, 

33. Merger Clause. This Real Estate Contract expresses the 

full and final purpose and agreement of the parties regarding sale of 

the property and will not be qualified, modified, or supplemented by 

course of dealing, usage of trade, or course of performance. There are 

no verbal agreements which qualify, modify, or supplement this Real 

Estate Contract. 

10 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

Riverview also submitted a number of declarations citing oral assurances 

about the golf course. Riverview member Howard Walker stated that when he 

purchased his lot, "I was under the distinct impression that we were purchasing a 

lot in an 18 hole golf course community. That impression was based on the fact 

that Sherie Wardian marketed the lot as such to us." Id. at 129. Walker also 

stated, "Sherie gave me real estate flyers that represented the community as having 

an 18 hole golf course as the center attraction." Id. 

Riverview member Ken Sweeny's declaration stated that he and his wife 

received a membership to the golf course "as an inducement to purchase a lot." 1d. 

at 102. Sweeny stated that he read an article in the Spokesman Review newspaper 

in 1999 in which Charles Spencer said that he "'just started the course so it would 

help the residential lots around here'" and that George Livingston built the golf 

course "in hopes of luring more permanent residents to the area." I d. at 102, 107. 

Sweeny also submitted a declaration stating that when he went with his wife to 

speak with Bonnie Spencer about purchasing a lot in the developments, "[w]e were 

introduced to Gloria [Spencer] and asked her 'Is there a chance that the golf course 

Id. at 95, 124. And contracts for lots in Deer Meadow Tract Plat 1 and Deer 

Heights Plat 1 state, "13. There are no verbal or other agreements which modify or 

affect this agreement unless attached hereto." Id. at 106, 135. I agree with the 

majority, however, that because this is a case about equity, not contract 

interpretation, the parol evidence rule is not at issue here. Majority at 10 n.2. 

11 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

would be broken up and sold for lots in the future'? Gloria replied, 'NO, it would 

remain an 18 hole golf course."' CP at 101. Sweeny said that he told Gloria 

Spencer, "[T]hat was the main reason my wife and I were interested in buying a lot 

because it was in an 18 hole golf course community." Id. 

Riverview member Mark Jensen stated in a declaration, 

Mr. Livingston represented to us at all times that the Deer Meadows 

Golf Course was an integral part of the Deer Meadow's community, 

which he had advertised as being "more than just a sub-division" but a 

"residential community" which included the golf course and its 

facilities, the restaurant, lounge, bar, pro shop and motel. Mr. 

Livingston and his agents represented this was "golf course living at 

its finest." I saw these marketing materials and advertisements. I 

spoke with Mr. Livingston['s] agents about it. 

Id. at 86. 

Riverview also submitted real estate flyers and a Lake Roosevelt Recreation 

Guide for summer 1997 containing references to the golf course. Id. at 97-99, 138, 

140, 142-44. 

This evidence is insufficient to create a material question of fact about 

whether to impose an equitable servitude. In Johnson, all but 4 or 5 of the 650 lots 

sold in the development contained the residential restriction at issue. Johnson, 113 

Wash. at 460. This court stated in Johnson, 

Here the appellant bought its property with knowledge of all the 

facts; it knew that the improvement company from the beginning had 

established and advertised a general plan whereby all of the property 

12 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

in this subdivision should be used for residence purposes only; it 

knew that the improvement company had agreed with a great many 

purchasers of lots, that the platted addition would be used only for 

restricted purposes; it knew that the deeds to nearly all lots which had 

been sold contained clauses restricting the use of the lots sold. In fact, 

by the contract which it entered into with the improvement company 

when it bought its lot, it agreed to protect the improvement company 

against any damage or expense resultant from deeding to it without 

restrictions, and therein it expressly agreed that, if it sold its lot before 

constructing the church, it would insert in its deed the restrictive 

clause. 

Id. at 465. 

In this case, in contrast, no deed or registered plat contained a restriction 

about the golf course. And the marketing materials suggested no building 

restrictions on the respondents or on the property purchasers. The only purported 

writing suggesting a restriction is the single plat noting a golf course. But the fact 

that this plat contains express restrictions that do not reference the golf course 

indicates that the grantor or developer declined to impose a restriction related to 

the golf course. Although the record shows that the golf course existed and that it 

might have enticed purchasers to buy the lots, no writing indicates an assurance 

that the golf course would continue to operate in perpetuity. And no evidence 

shows an intent to bind future property owners to the alleged restriction. 

Riverview's evidence is thus insufficient to indicate a common plan or scheme 

13 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

under Johnson. Johnson did not permit oral assurances or advertising to suffice 

where no writing showed a common plan or scheme. 

The majority cites Hollis for the proposition, "[W]e observed that the words 

on the face of a plat, such as 'golf course' on one of the recorded plats here, can 

establish an equitable covenant limiting the use of land." Majority at 9-10; Hollis 

v. Garwall, Inc., 137 Wn.2d 683, 974 P.2d 836 (1999). In Hollis, the court stated 

that "the restriction may also be contained on the face of the subdivision plat." 

Hollis, 137 Wn.2d at 691. The plat in Hollis contained an "owner's certificate" 

that 10 individuals signed and also contained a section labeled "Restrictions" that 

defined three restrictions on the use of the land. !d. at 686. The purchaser's deed 

to the property stated that it was subject to easements in the plat. All purchases 

took place after the filing of the plat. !d. at 686-88. 

But here, Deer Meadows Plat 3, filed after at least one of the purchasers 

purchased his lot, contains only the label "golf course." This was the only plat that 

referenced a golf course. Neither the plats nor any of the deeds contained explicit 

restrictions referencing the golf course, although they contained other restrictions, 

conditions, and covenants. 

14 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

Finally, the majority cites Mountain High, a case from the Oregon Court of 

Appeals. The majority states that this case supports its argument, citing the 

Oregon court's reasoning: 

Defendant represented to buyers that Mountain High was and would 

continue to be a golf course community .... It was reasonable for 

buyers to rely on the representations of the developer of Mountain 

High and the owner of the Mountain High golf course in making their 

decisions to purchase in the community. Under all the circumstances, 

including the condition of the golf course property as of the date of 

trial in this case, it would be unjust for defendant to benefit from the 

successful marketing of Mountain High as a "golf course community" 

without the imposition of the servitude. 

Mountain High, 228 Or. App. at 438; majority at 11. The two cases do share 

factual similarities, including oral assurances that the golf course would remain 

and marketing material presenting the development as a "'golf course 

community,"' although the entrance to the community in Mountain High had a 

sign that read "'Mountain High Golf Villages."' 228 Or. App. at 427. But, as the 

majority acknowledges, Mountain High relied on the Restatement, which, as 

discussed above, is not Washington law. Therefore, Mountain High is not 

applicable here. 

Under Johnson, the crucial fact in this case is that the only writing 

supporting Riverview's argument is one plat out of four registered plats containing 

an area marked "golf course." Although Riverview's evidence of oral and written 

15 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

representations might suffice under the Restatement approach, Riverview raises no 

genuine issue of material fact that any restriction existed under Washington law. 

IV. CONCLUSION 

Because Riverview satisfies all of the elements for organizational standing 

established in Firefighters, I agree with the majority's decision that Riverview can 

bring this action on behalf of its members and that the individual property owners 

are not essential parties. But Riverview's evidence in opposition to summary 

judgment fails to raise a genuine issue of material fact about whether the 

respondents created a common plan or development scheme under Johnson. I 

would affirm the Court of Appeals' dismissal on alternate grounds. I therefore 

respectfully dissent in part. 

16 
Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 

(Gordon McCloud, J., Concurring in Part and Dissenting in Part) 

17 
Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 

Fair hurst, J. (dissenting) 

No. 88575-3 

FAIRHURST, J. ( dissenting)-Riverview Community Group is a nonprofit 

organization that was formed for the sole purpose of suing on its members' behalf 

to continue the operation of the golf course or at least prevent that land from being 

subdivided into more homes. Riverview is the only plaintiff. None of the individual 

property owners are joined in this suit. Riverview was formed on or about September 

20, 2010, meaning it was not in existence at any time during the events underlying 

this cause of action. No promises were made to Riverview. No marketing was done 

to it. Riverview is an entirely new entity apparently formed so the property owners 

can avoid suing individually or complying with the requirements for class action 

suits. I would find that Riverview does not have standing to bring suit in this case 

and respectfully dissent. 

The majority correctly quotes the rule for organizational standing from 

International Ass 'n of Firefighters, Local 17 89 v. Spokane Airports, 146 Wn.2d 207, 

213-14, 45 P.3d 186, 50 P.3d 618 (2002): 

An association has standing to bring suit on behalf of its 

members when the following criteria are satisfied: (1) the members of 

1 
Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 

Fairhurst, J. (dissenting) 

the organization would otherwise have standing to sue in their own 

right; (2) the interests that the organization seeks to protect are germane 

to its purpose; and (3) neither claim asserted nor relief requested 

requires the participation of the organization's individual members. 

However, unlike the majority, I would hold Riverview fails the third element. 1 

Case law discussing this third element of the test for organizational standing 

focuses on whether the remedy sought required the testimony of the individuals. 

Both Ironworkers District Council of the Pacific Northwest v. University of 

Washington, 93 Wn. App. 735, 741, 970 P.2d 351 (1999), and Firefighters, 146 

Wn.2d at 214, assert that if an organization seeks an injunction, that injunctive relief 

generally benefits every member of an association and individual testimony as to 

how the injunction will benefit each member is not necessary. See also Warth v. 

Seldin, 422 U.S. 490, 515, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). Similarly, the 

majority focuses on only whether the remedy sought needs individual participation. 

Majority at 6 ("The relief requested-the imposition of an equitable servitude on the 

land and/or some sort of injunctive relief-does not require the participation of the 

individual members."). We recognize that Riverview is seeking an injunction, and 

1

We also question whether an organization whose entire purpose is to bring a lawsuit 

satisfies the second element of this test. Suing is not germane to the purposes of Riverview. It is 

the entire reason for its formation and existence. It is all the entity was formed to do. However, 

courts have generally interpreted this element of organizational standing liberally and since we 

find that Riverview fails to meet the third part of the test, we need not discuss this further. 

2 
Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 

Fairhurst, J. (dissenting) 

under our precedent plaintiffs do not need to testify individually to prove this remedy 

will benefit them. 

But the third element requires that neither the claim asserted nor the relief 

requested requires individual participation. Here, the claim for an implied equitable 

servitude requires the individual participation of the property owners. An equitable 

servitude is a restriction on property that runs with the land. This servitude was not 

written or explicit. Riverview claims the court should find the servitude is implied 

based on representations the defendants made to the property owners that the land 

would be restricted to certain use. As a nonprofit, Riverview is a separate entity from 

its members and does not itself have any rights or interest in the servitude created. 

See Apostolic Faith Mission of Portland v. Christian Evangelical Church, 55 Wn.2d 

364, 367, 347 P.2d 1059 (1960). Since it did not exist at the relevant time, no 

representations were made to it that could support this claim for an implied equitable 

servitude. 

Riverview is made up of at least five property owners in the development, but 

we have no information about the existence or the interests of any other members of 

Riverview. These property owners bought their properties from different entities: 

George Livingston, Charlie and Gloria Spencer through S.O.S. LLC, the Spencer & 

Livingston partnership, or TURF Realty. There is no consistency regarding who 

made these promises from which this court should imply the equitable servitude. 

3 
Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 

Fairhurst, J. (dissenting) 

And if after remand the court finds that this golf course must continue to be operated, 

it is unclear against whom a remedy would be imposed. Since the particular 

representations made to the property owner make up the entire claim for an implied 

equitable servitude, the testimony of the individual property owners is necessary.2 

To satisfy the third element for organizational standing, the ultimate question 

is '"whether the circumstances of the case and the relief requested make individual 

participation of the association's members indispensable."' Firefighters, 146 Wn.2d 

at 215 (quoting Int 'lAss 'n of Firefighters, Local17 89 v. Spokane Airports, 103 Wn. 

App. 764, 770, 14 P.3d 193 (2000) (citing Warth, 422 U.S. at 511)). Here, the 

testimony of the individual property owners is imperative and the members' 

participation indispensable because of the nature of the claim. I would hold 

Riverview does not have standing to bring suit. 

2

The plaintiff and the majority cite cases from other jurisdictions in which implied 

equitable servitude has been recognized, but these cases involve distinguishable plaintiffs. In 

Mountain High Homeowners Ass 'n v. J.L. Ward Co., 228 Or. App. 424, 426, 209 P. 3d 34 7 (2009), 

the suit was brought by the homeowners association that had been in existence since the outset of 

the development whose members had been members at all times when the relevant facts unfolded. 

Further, Oregon had a specific statute that allowed the homeowners association to bring the suit in 

its own name. Id. at 437. Riverview is not a homeowners association and does not claim to be. 

Thus, Mountain High Homeowners Ass 'n does not support finding standing for a nonprofit entity 

created after all relevant events to sue to imply an equitable servitude. Additionally, Riverview 

refers the court to both Shalimar Ass'n v. D.O. C. Enterprises, Ltd., 688 P.2d 682 (Ariz. Ct. App. 

1984), and Ute Park Summer Homes Ass 'n v. Maxwell Land Grant Co., 1967-NMSC-086, 77 N.M. 

730, 427 P .2d 249, to support its claim. But standing is never raised as an issue in either case, so 

the decisions are unhelpful for the standing issue. 

4 
Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 

Fairhurst, J. (dissenting) 

The potential implications from the majority opinion are disconcerting. Here, 

we essentially have a plaintiff who is acting as if it is the named class plaintiff for 

an unnamed group of representative plaintiffs without complying with CR 23. By 

not clearly admonishing this circumvention of basic court rules and forcing the 

plaintiffs to bring this meritorious suit in the proper way, the majority opens the door 

for groups of individuals with similar claims against a group of people to simply 

form a nonprofit to sue on their behalf, thereby avoiding the stringent class action 

requirements or the spotlight of individual litigation. Under the facts of this case, the 

property owners may bring either a class action lawsuit or they may join together as 

individuals like the plaintiffs in Johnson v. Mt. Baker Park Presbyterian Church, 

113 Wash. 458, 194 P. 536 (1920), and Hollis v. Garwall, Inc., 137 Wn.2d 683, 974 

P .2d 83 6 ( 1999), but they may not create a nonprofit entity after all events at issue 

have occurred for the sole purpose of suing. 

CONCLUSION 

I would find that Riverview does not have standing to bring suit and dismiss 

the case. Since I would find that Riverview is not a proper plaintiff, I do not reach 

the question of whether implied equitable servitudes are available in Washington. 

5 
Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 

Fairhurst, J. (dissenting) 

6