# 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. ) ) ) ) ) ) ) SPENCER & LIVINGSTON, a Washington ) Partnership, and/or its successors-in-interest; GEORGE 

### T. and SHEILA LIVINGSTON, ) ) husband and wife, andthe marital community) composed thereof; DEERMEADOWS, INC., ) a defunct Washington Corporation, and/or its successors-in-interest; DEER MEADOWDEVELOPMENT, 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 complaintherein, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )



# __________________________) No. 88575-3

EnBane

Filed 

### NOV 20 

## 2014

-------Riverview**Communi~y** Group v. Spencer & Livingston, et. al., No. 88575-3 GONZALEZ, J.--We are asked whether property developers' representations about aproperty anchoring a developmentmay impose an equitable servitude onthat property. We find that suchrepresentations 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 reliefbased onthe developers' representations to its members. We find that it does. We reverse the dismissal ofRiverview's lawsuit and remandto the trial court for further proceedings consistentwiththis opinion. FACTS Inthe 1980s, Charles Spencer and George Livingston formed apartnership to develop and sell property in rural Lincoln County near the confluence ofLake Roosevelt and the Spokane River. Over the next 20 years, this partnership and its
successors builtthe DeerMeadows GolfCourse Complex (including a golfcourse, restaurant, hotel, store, and club), platted several nearby parcels ofproperty into subdivisions (the DeerMeadows arid DeerHeights subdivisions), and sold lots to private land owners for homes and vacationproperties. A plat identifying the golf
course was recorded, and an image ofthe plat was used to help advertise the development. A local newspaper quoted Spencer as saying he builtthe golfcourse complex '"so it would help sell the residential lots around here,"' and the lots were advertised accordingly. Clerk'sPapers (CP) at 107. Over the next 20 years, ownership ofthe unsold lots and the golfcourse changed forms and hands several 2Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 times. After Spencerpassed away and after most ofthe lots were sold, Livingston closed down the golfcourse complex and began the process ofplattingthe course into
newresidential lots. Many ofthose who had boughthomes inthe various subdivisions developed by Spencer and Livingston believed they had beenpromisedthat the golfcourse complex would remain a permanent fixture oftheir community, and they made the decision to purchasehomes based in part onthatpromise. Some ofthosehomeowners formed the Riverview Community Group, which filed this lawsuit seekingto barthe defendants from selling offthe former golfcourse as individual homes, among other

0 ' things. Riverview argued that the golfcourse complex was the heart ofthe community andprovided necessary amenities andthat its members hadboughttheir property reasonably believing itwouldremain apart oftheir development. Riverview named as defendants the original Spencer & Livingstonpartnership, George and SheilaLivingston, the partnership's alleged successors, and anyone else claiming an interest in the golfcourse property. Riverview sought to impose an equitable servitude on the golfcourseproperty thatwould limit its use to a golfcourse or, ifthat
was untenable, for other equitablerelief. Italso 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 tojoinindispensable parties under CR 19. S.O.S. LLC, laterjoinedby

3Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 Livingston, moved for summarY.judgment,arguing, among otherthings, that equitable**servitud~s** were not availabl_einWashington unless created inwriting. In 2012, the trialjudge issued a memorandum decision granting the Livingstons' motion under CR 12(b)(7) f()r failure tojoinindispensable parties. The decision gave Riverview a "reasonable period oftime"_tojointhe DeerMeadows property owners. CP at 212. The following month, the trial court issued an order stating that "the legal issue ofwhether an equitable servitude can be created by implication is a question offirst impression inthe State ofWashington" and granted summaryjudgment in favor ofthe defendants to expedite review. 

### Id. at 248. The Court ofAppeals largely reversed the trial court's legal rulings, finding thatRiverview 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 summaryjudgment onthe grounds that it wouldbe "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 ofthe Court of Appeals' legal rulings but find its dismissal was based onfacts not found in the record. We affirm inpart, reverse inpart, and remand to the trial court for further proceedings.

4Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 ANALYSIS Wereview summaryjudgmentde novo, taking all inferences in favor ofthe nonmovingparty. Anderson v. AkzoNobel Coatings, Inc., 172 Wn.2d 593, 600,260 P.3d 857 (2011) (citingMulcahy v. Farmers Ins. Co. ofWash., 152 Wn.2d 92, 98, 95 P.3d 313 (2004)). Wereview CR 12(b)(7) dismissals for failure tojoinan indispensable partyunder CR 19 for abuse ofdiscretion "withthe caveatthat 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) (citingEqualEmp't Opportunity Comm 'n v. Peabody W Coal Co., 400 F.3d 774, 778 (9th Cir. 2005)). Such dismissals "shouldbe employed sparingly whenthere is no other ability to obtainrelief." Id. at 494 (citing 7 CHARLES ALAN WRIGHT, ARTHURR. MILLER & MARY KAY KANE, FEDERALPRACTICE AND PROCEDURE § 1609, at 130 (3d ed. 2001)). 1. MAY RIVERVIEW MAINTAIN THIS ACTION? Cases should be brought and defendedbythe parties whose rights and interests
are at stake. See Walker v. Munro, 124 Wn.2d402, 419, 879 P.2d 920 (1994) (citing Haberman v. Wash. Pub. PowerSupply Sys., 109 Wn.2d 107, 138, 744 P.2d 1032, 750 P.2d 254 (1987)). This principle is reflected inthe courtrules and in common law limitations onwho canbring suit. Id.; see also CR 17(a). S.O.S. LLC and the Livingstons argue thatRiverview lacks standing to sue onbehalfofits members, that

5Riverview Community Group v. Spencer & Livingston, et. a!., No. 88575-3 it is not areal party in interest, and that the individual landowners are indispensable parties. The Court ofAppeals rejectedthese arguments. We affirm. "Organizations have standing to assert the interests oftheir members, so long
as members ofthe organization would otherwise have standing to sue, the purpose of the organization is germane to the issue, and neither the claim northe reliefrequires the participation ofindividual members." Five Corners Family Farmers v. State, 173 Wn.2d 296,304,268 P.3d 892 (2011) (citing Int'lAss'n of Firefighters, Loca/1789

v. SpokaneAirports, 146 Wn.2d 207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002) (Firefighters)). Riverview has satisfied this test. Several ofits members have filed
sworn declarations that establishthe basis ofa claim, satisfying the first element of the Firefighters test. Thehomeowners formed Riverview withthe purpose of defending their interests, satisfyingthe second element. Finally, Riverview can pursue this claim for equitable or injunctive reliefwithoutthe participation of individual members. The reliefrequested-the imposition ofan equitable servitude
on the land and/or some sort ofinjunctive relief--does not require the participation of the individual members. 1

. 

### . 1We respectfully disagree with our dissenting colleagues thatthe 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 heldthat "testimony" is the equivalent of "participation" for the purposes ofthe third prong ofthe standing analysis we adopted in Firefighters, and the Court ofAppeals has explicitly rejected that argument as "withoutmerit." TeamstersLo.cal Union No. 117v. Dep'tof 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 (2014). InTeamsters the Court ofAppeals "refuse[d] to adopt 6Riverview 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 inthe name ofthe real party in interest." Given that we find organizational standing, this rule has been satisfied. Nor have the respondents otherwise establishedthatthe individual property owners in the subdivisions were indispensableparties under CR 19(a), and we agree withthe Court ofAppeals that the trial court was incorrect in concluding otherwise. TheLivingstons argue thatthe individual land owners inthe developments are necessary parties because they could individuallybring suit, raising the possibility ofinconsistent results. Among otherthings, aparty is indispensable when it "is needed forjust adjudication." Gildon, 158 Wn.2d at 494 (citing Crosby v. Spokane County, 137 Wn.2d 296, 306, 971 P.2d 32 (1999)). "[I]fan absent party is needed but it is not possible tojointhe party, then the court must determine whether in 'equity and good conscience' the action shouldproceed among the parties before itor 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'sposition thatparticipation ofan 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 onthe fact members mightbe called uponto testify would not further the purpose ofthe 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 ofwide public significance even though other governmental institutions may bemore competentto address the questions and eventhoughjudicial interventionmay be unnecessary toprotect 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 ofthe members testify. 7Riverview Community Group v. Spencer & Livingston, et. a!., No. 88575-3 for ajustadjunction. Ifit 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 abilityto protect its interest is not impaired ifthat interest is adequately protectedby existingparties). IfRiverview's suitultimately fails, we discern no necessary injury to the property owners who have notjoinedthe cause. While we need not reach the second step, ifwe do, equity and good conscience do not cry out for dismissal, especially giventhatthe Livingstons have not establishedthat the Court ofAppeals was incorrect thatthe various statutes oflimitations onpotential claims has or will soonrun. We affirm the Court ofAppeals onthese intertwined issues and find Riverview may maintain this action. 

### 2. MAY AN EQUITABLE SERVITUDE

### BE IMPLIED? Next, we turnto whether, under Washington law, an equitable servitude limiting the use ofland may be implied. Riverview argues that it may under either § 2.10 oftheRestatement (Third) of Property (2000) orJohnson v. Mt. Baker Presbyterian Church, 113 Wash. 458, 194 P. 536 (1920). We find that an equitable servitude and injunctive reliefare available underJohnson and leave for another day whether§ 2.10 oftheRestatement correctly articulates the law in Washington State. InJohnson, a Seattle aproperty developerplatted and developed a new neighborhood, the "Mt. BakerPark, an addition to the city ofSeattle." 113 Wash. at 459. The developers advertised the neighborhood as a "strictly high-class residence 8Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3**section~~** that "wouldnot permit any buildings other than residences." Id. Most ofthe deeds for lots in the neighborhood included boilerplate language limiting building to "'single, detached residence[s],"' whichthe court found increasedthe sale price ofthe lots by 15 to 20 percent. Id. at 460-41. Butnot all ofthe deeds in the development contained the boiler plate restriction. Id. at 460. A church congregation acquired one ofthe apparently unrestricted lots, intending to build a church, and the litigation followed. Id. at 461. The church acknowledged that it knewthe developmentwas intended to be limited to single family homes but argued thatthe other homeowners couldnot seekto enjoin it from building a churchunless it could "show some right, title, interest or easement inthe so-called church lot," which, it contended, would have to have been created in writing on the deed to avoid the statute offrauds. !d. at 462. We disagreed. We declinedto apply the statute offrauds because the homeowners' reliefdid not rest on creation ofan interest in the church's land but on "equitableprinciples." Id. at 464. We did notreachthe issue ofwhether the covenant
ran with the land to bind successors because the churchwas fully aware ofthe restrictions when it bought the property (i.e., all parties had notice ofthe restrictions). Id. at 468-69. Instead, we held that "ifthis suit had been against the improvement company to enjoin it from making to appellant a deed withoutrestrictions, such suit musthave succeededupon equitableprinciples
....Byits conduct and representations, the improvement company imposed on its remaining lots certainuse restrictions which it may notnow violate." Id. at 465-66. Accordingly, "based on 9Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 conduct, representations and acts which injustice, betweenman and man, may not be repudiated," we affirmed an injunctionpreventing the congregation from building the church. Id. at 466, 459. More recently, we observed that words onthe face ofa plat, such as "golf course" on one ofthe 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 & SewerDist., 73 Wn. App. 638,870P.2d 1046 (1994)). 2 Evenmore recently, we have observed that "itis evenpossible for covenants to be enforced againstthose who have no covenant appearing on their title." 1515-1519LakeviewBoulevard Condo. Ass 'n v. Apt. Sales Corp., 146 Wn.2d 194, 204, 43 P.3d 1233 (2002) (citing William B. Stoebuck, Running Covenants: An AnalyticalPrimer, 52 WASH. 

### L. REV. 861, 908-10 (1977)). Takentogether, we find that an equitable servitude may be implied. UnderJohnson, the statute offrauds is no

2We find unavailing the respondents' contentions that the parol evidence rule requires the court to turn ablind eye to the plats and other evidence Riverview has presented in support of equitable and injunctive relief. The parol evidence rule limits extrinsic evidence ofthe 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 notturn on the meaning oftheparties' contracts; this case sounds in equity, not contract. Similarly, we are notpersuadedthatthe dead man's statute, RCW 5.60.030, is fatal to this case. Under RCW 5.60.030 testimony ofan interestedparty shall not be admitted ''as to any transaction
... or any statement made" bythe deceased. The test ofwhether an act is a "transaction" within the meaning ofthe dead man statute "is whether deceased, if living, could contradictthe witness ofhis ownknowledge." In re Estate ofWind, 27 Wn.2d 421, 426, 178 P.2d 731 (1947). While the dead man's statute may bar some specific testimony from being offered onremartd, there is ample evidence presentedthat does not depend on the testimony ofinterested parties, such as the recorded plat and various real estate flyers from the realty company describing Deer Meadows as a golfcommunity. CP at 132-44. Without testimony by Riverview members about actions ofdeceased defendants, the dead man's statute does not apply. 10Riverview 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 oftheburden.3 Our decisionthat an equitable servitude may be implied is bolstered by a similar case from Oregon, 

### Mountain High HomeownersAss 'n v. J.L. Ward Co., 228 Or. App. 424, 209 P.3d 347 (2009). Similarly to the case beforeus, the homeowners in

### Mountain High had boughthomes in a development that contained a golfcourse complex. 

### I d. at 427. Also like the case before us, "prospectivebuyers who asked for
assurances thatthe golfcourse would remain in place were told thatthe golfcourse would continueto be there and thatthere was no needto worry about it." 

### Id. Also like the case before us, the golfcourse fell onhard financial times and the owner shut down operations. 

### !d. at 429. After a full trial, the Oregontrial court imposed an equitable servitude on the golfcourse property limiting its use to a golfcourse and entered an injunctionrequiring the developer "to reconstruct, maintain, and operate the nine-hole golfcourse for 15 years." I

### d. at 431. The Court ofAppeals affirmed.

3We respectfully disagree with the concurrence/dissentthat summaryjudgment should be affirmed on this record. See concurrence/dissent at 1-2, 9-10. Taken in context, the trialjudge's oral observation at summaryjudgmentthat there was "nothing in writing" appears to us to mean there was no written instrument creating an encumbrance, notthat there was no writing' evidencingthe creation ofan equitable servitude. Verbatim Tr. ofProceedings (Dec. 23, 2011) at 21. Whether encunJ.brance had to be created in writing was a major issue in the summary judgmenthearing, 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 tojointhe motion, the trial court's order clearly echoes the language ofRAP 2.3(b)(4), strongly suggesting thatthejudge was motivated at least in partto 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, thatprovide at least some evidence that those with thepower to encumberthe property did so, as well as other evidence suggesting an encumbrance. E.g., Id. at 97, 99, 100-02, 107, 151. 11Riverview Community Group v. Spencer & Livingston, et. al., No. 88575-3 

### Id. at 438. Itreasoned that the imposition ofan equitable servitude and an enforcing injunctionwasjustifiedbecause**[d]~fendant** represented to buyers that MountainHighwas and would continue to be a golfcourse community. Thatrepresentation was made bothexpressly and impliedly. Itwas reasonably foreseeable that, in deciding whetherto purchase land withinMountainHigh, aprospective buyer wouldrely onthose representations and substantially·change position as a result ofthat reliance. The owners did, in fact, purchase property inMountain High, substantially
· changingtheir positions as aresult ofdefendant's representations. Itwas

reasonable for buyers to rely onthe representations ofthe developer of Mountain High and the owner ofthe Mountain High golfcourse in making their decisions to purchase in the community. Under all the circumstances, including the condition ofthe golfcourse property as ofthe date oftrial inthis case, it wouldbeunjust for defendant to benefit from the successful marketing ofMountain High as a "golfcourse community" without the imposition ofthe servitude. Accordingly, we conclude that the trial court did noterr in declaring the existence ofthe equitable servitude. 

### Id. at438-39. We agree.4 We find thatRiverview has presented sufficient evidence to survive summary judgmentunderJohnson. The evidencepresented creates a material question offact ofwhether those withthe powerto burdenthe property inducedpurchasers to purchase lots onthe promise that the golfcourse wouldremain apermanent fixture of the community. UnderJohnson, both equitable and injunctive reliefmay be available. 113 Wash. at 464-65. We acknowledge thatthere is force to the Court ofAppeals' conclusionthat requiring the respondents to operate an unprofitable golfcourse wouldbe inequitable.

4We recognize that the Oregon court has explicitly adopted the Restatement approach. We nonetheless find the case helpful. 12Riverview Community Group v. Spencer & Livingston, et. al.**~No.** 88575-3 See Riverview Cmty. Grp., 173 Wn. App. at 590 (citingProctorv. Huntington, 169 Wn.2d 491, 500-01, 238 P.3d 1117 (2010)). Butwe find nothing inthis record that provides an adequate factual basis for the Court ofAppeals' disposition onthis basis. Further, while Riverview's complaintprimarily seeks "[a] decree quieting title to an equitable servitude in defendants' real property ...that Deer Meadows and Deer Heights may continue as a ... golfcourse community [with] an operating 18-hole golf course" and a consistent injunction, it did not limit its prayer for reliefto those remedies. CP at 20-23. Only ifonremand Riverview establishes that someone with the powerto encumber the golfcourse property did so will the question ofan equitable remedy arise. Atthat point, the parties will be free to present evidence and argument as to the nature and scope ofany appropriate equitable and injunctive relief. See, e.g., Mountain High, 228 Or. App. at 440 (imposing a servitude limiting the use ofthe property in perpetuity but only imposing the injunction for a limited period of time). CONCLUSION We affirm the Court ofAppeals to the extentthat it found Riverview had standing to maintainthe suit, that dismissal under CR 17 and CR 19 was unwarranted, and that an equitable servitude may be createdby implication. We reverse the Court ofAppeals' dismissal and remand to the trial court for further proceedings consistent with this opinion.

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

/

WE CONCUR:

# ~~--«**11!~[},**

14Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 ofthe Restatement (Third) of Property: Servitudes (2000) provides controlling law on the existence ofimplied 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
1Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 ofAppeals' dismissal ofthis 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] reliefrequested requires the participation ofits 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 ofthe 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 

### UnitedFood & Commercial Workers Union Local751

v. Brown Grp., Inc., 517 U.S. 544, 116 S. Ct. 1529, 134 L. Ed. 2d758 (1996); U.S. CONST. art. III, § 2). For thejudicially created third element, the ultimate test is '"whether the circumstances ofthe case and the reliefrequested make individual participation of the association's members indispensable."' 

### Id. (quoting 

### Firefighters, 103 Wn. App. at 770). An association generally has standing to sue 2Riverview 

### Cmty. Grp. v. Spencer & Livingston et

### al., No. 88575-3 

### (Gordon McCloud, J., 

### Concurring in Part and Dissenting in Part)

"as long as one ofits members has standing." E. 

### Gig Harbor ImprovementAss 'n
v. Pierce County, 

### 106 Wn.2d 707, 710, 724 P.2d 1009 (1986). These requirements "permit a single plaintiffto adequately represent the interests ofits 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-becauseRiverview's "entire purpose is to bring a lawsuit." Id. 

### at 2n.l. The dissent errs on both points. As to the second element-that the association seek reliefthat 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 ofBothell rezoned a parcel of farm land to allow construction ofa major regional shopping center, a group of individuals formed a nonprofit corporation "for the declared purpose of working to maintain the quality of the
3Riverview 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 ofthe
area. Id. 

### In holding that SAVE had standingto sue, we explained, An individual who is one ofmany harmed by an action may be unable to afford the costs ofchallenging 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 injuredpersons 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 judicialremedy simply because thatparty does nothave assets. Id. 

### at 867-68. Riverview asserts, "After closing down and wasting the golfcourse 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

4Riverview Cmty. Grp. v. Spencer & Livingston et al., No. 88575-3 (Gordon McCloud, J., Concurring inPart and Dissenting inPart)



### establish individual damages. Firefighters, 

### 146 Wn.2d at 214-15. Ifthe individual members mustparticipate, 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 itselfor receive an assignment ofits 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 ofthe employee association economically and would almost certainly burden our courts with an increased number oflawsuits arising out ofidentical facts. In short, we see little sense in an ironclad rule that has the effect of denying relief to members ofan association based upon an overly technical application ofthe 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 5Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 ofthose members ofthe association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the reliefsought has been ofthis 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 ofthe 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. Becausethese 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 withthe majority's decisionthatRiverviewhas standing. II. JOHNSON, NOT THE.RESTATEMENT, PROVIDES CONTROLLING LAW ON THEEXISTENCE OF IMPLIED EQUITABLE SERVITUDES IN WASHINGTON I disagree with the majority's analysis of whether Riverview has offered sufficient evidence to survive summaryjudgment, though.

6Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 ofcases. The Restatement 

### states, Ifinjustice can be avoided only by establishment ofa servitude, the owner or occupier ofland is estopped to deny the existence ofa servitude burdeningthe 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 7Riverview Cmty. Grp. v. Spencer & Livingston etal., No. 88575-3 (GordonMcCloud, J., Concurring inPart and Dissenting inPart)
substantially change position m reasonable reliance on that representation. RESTATEMENT § 

### 2.10. 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 similarto the facts here as an example ofan equitable servitude: P bought a lot abutting a golfcourse 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 wouldhave access to golf-club memberships. The developer now plans to discontinue the golfcourse and build apartment houses on the golfcourse. Giving effect to the oral representation would be justified. Given the existence ofthe golfcourse, the specificity ofthe representations, thebrochures, and the likelyexpectation ofresidential 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. 8Riverview Cmty. Grp. v. Spencer & Livingston etal., 

### 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 summaryjudgment. Thus, we must address which test applies in Washington. As the Court ofAppeals explained, 

### Johnson is a case from our courtthat has notbeen overruled or limited. We will not overrule 

### itunless 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 ofthe parties really argue that, and my own research doesn't convince me ofthat. 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 summaryjudgmentunder the

### Restatement, but notunder

### Johnson. 

### Ill. RivERVIEW PRESENTS 

### No QUESTION OF MATERIAL FACT ABOUT WHETHER WE CAN IMPOSE THE BENEFIT AND BURDEN OF RESTRICTIONS THATA COMMON GRANTORORDEVELOPERIMPOSED 

### In oppositionto the respondents' Civil Rule 12(b)(7) and summaryjudgment motions, Riverview presented evidence to the trial court to support its implied equitable servitude claims. At the hearing on summaryjudgment, the court stated, "[I]n this case it's undisputed that there is nothing in writing with respect to the
9Riverview Cmty. Grp. v. Spencer & Livingston eta!., No. 88575-3 

### (Gordon McCloud, J., 

### Concurring in Part and Dissenting in Part) golfcourse." Verbatim Tr. ofProceedings (Dec. 23, 2011) at 21. 1 

### The evidence showed that out offour recorded Deer Meadows plats and the three Deer Heights plats, only one, Deer Meadow Plat 3, noted the presence ofa golfcourse. 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 golfcourse. The restrictions section also contains no reference to the golf course; the restrictions relate only to road maintenance. 

### !d. at 34. And none ofthe 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 ofDeer 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 ofthe parties regarding sale of the property and will not be qualified, modified, or supplemented by course ofdealing, usage oftrade, or course ofperformance. There are no verbal agreements which qualify, modify, or supplement this Real Estate Contract.
10Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 golfcourse 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 golfcourse as the center attraction." 

### Id. Riverview member Ken Sweeny's declaration stated that he and his wife received a membership to the golfcourse "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 ofluring 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 aboutpurchasing a lot in the developments, "[w]e were introducedto Gloria [Spencer] and asked her 'Is there a chance thatthe golfcourse 

### 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. 11Riverview Cmty. Grp. v. Spencer & Livingston etal., 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]hatwas the mainreason my wife and I were interested in buying a lot because 

### it was in an 18 hole golfcourse community." Id. 

### Riverview member MarkJensen stated in a declaration, Mr. Livingston represented to us at all times that the Deer Meadows Golf Course was an integral part ofthe Deer Meadow's community, whichhe had advertised as being "more thanjust 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 "golfcourse 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 golfcourse. 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 ofthe 650 lots sold in the development contained the residential restriction at issue. Johnson, 

### 113 Wash. at 460. This court stated inJohnson, 

### Here the appellant bought its property withknowledge ofall the facts; it knew that the improvement company from the beginning had established and advertised a general plan whereby all ofthe property 12Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 ofthe 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, ifit 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 golfcourse. 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 golfcourse. Although the record shows that the golfcourse 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

13Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 commonplan or scheme. The majority cites 

### Hollis for the proposition, "[W]e observed that the words
on the face ofa plat, such as 'golfcourse' on one ofthe recorded plats here, can establish an equitable covenant limiting the use ofland." 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 ofthe land. 

### !d. at 686. The purchaser's deed to the property stated that it was subject to easements in the plat. All purchases tookplace afterthe filing ofthe 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 "golfcourse." This was the only platthat referenced a golfcourse. Neither the plats nor any ofthe deeds contained explicit restrictions referencing the golfcourse, although they contained other restrictions, conditions, and covenants.

14Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 ofthe Mountain High golfcourse in making their decisions to purchase in the community. Under all the circumstances, including the condition ofthe golf course property as ofthe date of trial in this case, it would be unjust for defendant to benefit from the successful marketing ofMountain High as a "golfcourse community" withoutthe imposition ofthe 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 GolfVillages."' 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 offour registered plats containing
an area marked "golfcourse." Although Riverview's evidence oforal and written
15Riverview Cmty. Grp. v. Spencer & Livingston etal., 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 ofmaterial fact that any restriction existedunder Washington law. IV. CONCLUSION 

### Because Riverview satisfies all ofthe elements for organizational standing established in 

### Firefighters, I agree with the majority's decision that Riverview can bring this action on behalfofits 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.

16Riverview Cmty. Grp. v. Spencer & Livingston etal., No. 88575-3 (Gordon McCloud, J., Concurring in Part and Dissenting in Part)

17Riverview 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 ofsuing on its members' behalf to continue the operation ofthe golfcourse or at least preventthat land from being subdivided into more homes. Riverview is the only plaintiff. None ofthe individual propertyowners arejoinedinthis suit. Riverviewwas formed onorabout September 20, 2010, meaning it was not in existence at any time during the events underlying this cause ofaction. 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 andrespectfully dissent. The majority correctly quotes the rule for organizational standing from InternationalAss'n of Firefighters, Local 17 89v. SpokaneAirports, 146 Wn.2d207, 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 1Riverview 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 intereststhatthe organization seeks to protectare germane to its purpose; and (3) neither claim asserted nor relief requested requires the participation ofthe organization's individual members. However, unlike the majority, I would hold Riverview fails the third element. 1 Case law discussing this third element ofthe test for organizational standing focuses on whether the remedy sought required the testimony ofthe 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, assertthatifan organization seeks an injunction, thatinjunctiverelief generally benefits every member ofan 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 whetherthe remedy sought needs individual participation. Majority at 6 ("Thereliefrequested-theimpositionofanequitable servitude onthe land and/or some sort ofinjunctive relief-does notrequire the participation ofthe individual members."). We recognize that Riverview is seeking an injunction, and

1We also question whether an organization whose entire purpose is to bring a lawsuit satisfies the second element ofthis test. Suing is not germane to the purposes ofRiverview. Itis 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 meetthethird part ofthe test, we neednot discuss this further. 2Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 Fairhurst, J. (dissenting)
underourprecedentplaintiffs do notneedto testifyindividuallytoprovethisremedy will benefitthem. 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 ofthe property owners. An equitable servitude is a restriction onproperty thatruns withthe 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 wouldberestrictedto certainuse. As anonprofit, Riverviewis a separate entityfrom its members and does not itselfhave any rights or interest in the servitude created. 

### SeeApostolicFaithMission of Portlandv. ChristianEvangelical Church, 55 Wn.2d 364, 367, 347 P.2d 1059 (1960). Since it did not exist at the relevant time, no representations weremadeto itthatcould supportthis claimfor animpliedequitable servitude. Riverview is made up ofatleast five property owners inthe development, but
we haveno information aboutthe existence orthe interests ofany othermembers of Riverview. These property owners bought their properties from different entities: George Livingston, Charlie and Gloria Spencerthrough 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. 3Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 Fairhurst, J. (dissenting) 

### Andifafterremandthe courtfinds thatthis golfcoursemustcontinuetobeoperated, it is unclear against whom a remedy would be imposed. Since the particular representations made to thepropertyownermakeup the entire claim for an implied equitable servitude, the testimony ofthe individual property owners is necessary.2 

### To satisfythe third elementfor organizational standing, theultimate question is '"whetherthe circumstances ofthe case and the reliefrequested make individual participationofthe association's members indispensable."'

### Firefighters, 146 Wn.2d at 215 (quoting

### Int 'lAss 'n of Firefighters, Local17 89 v. SpokaneAirports, 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 nothave standing to bring suit.

2The plaintiff and the majority cite cases from other jurisdictions in which implied equitable servitude has been recognized, but these cases involve distinguishable plaintiffs. In MountainHighHomeownersAss'n v. J.L. Ward Co., 228 Or. App. 424, 426, 209 P. 3d347(2009), the suit was broughtbythe homeowners association thathadbeenin existence since the outset of the developmentwhosemembershadbeenmembers at all times whentherelevantfacts unfolded. Further, Oregonhad a specific statutethat allowed thehomeowners associationto bringthe suitin its own name. Id. at 437. Riverview is not a homeowners association and does not claim to be. Thus,MountainHigh HomeownersAss '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 ShalimarAss'n v. D.O.C. Enterprises, Ltd., 688 P.2d 682 (Ariz. Ct. App. 1984), and Ute ParkSummerHomesAss 'n v. MaxwellLandGrant Co., 1967-NMSC-086,77N.M. 730, 427 P.2d 249, to support its claim. But standing is neverraised as an issue in either case, so the decisions areunhelpful for the standingissue. 

### 4Riverview 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 plaintiffwho is acting as ifit is the named class plaintifffor
an unnamed group ofrepresentative plaintiffs without complying with CR 23. By not clearly admonishing this circumvention of basic court rules and forcing the plaintiffsto bringthis meritorious suitinthe properway, themajority opensthe door for groups of individuals with similar claims against a group ofpeople to simply form a nonprofit to sue on their behalf, thereby avoiding the stringent class action requirements orthe spotlight ofindividual litigation. Underthe facts ofthis case, the property owners may bring either a class action lawsuit orthey mayjointogether 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 836 (1999), but they may not create a nonprofit entity after all events at issue have occurred for the sole purpose ofsuing. 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 ofwhether implied equitable servitudes are available in Washington.



### 5Riverview Cmty. Grp. v. Spencer & Livingston, No. 88575-3 Fairhurst, J. (dissenting)



### 6