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Fl LE 

IN CU!RI<S OFFICE 

IIJIAEME cou;~iR,.E oF WASHIHG'mll 

DATE 1 7 2014 

1ft~~9· 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

ROSS WILKINSON and CINDY 

WILKINSON; MONTE KARNES and 

KIMBERLY KARNES; DAVID BETHEL and 

JEANIE BETHEL; DARRELL McLEAN; JIM 

PAULUS and KATHY PAULUS; JUSTIN 

HARGIS and TABITHA HARGIS, JOE 

HARGIS and LINDA HARGIS; DANIEL 

MaciNDOE and !SIDRA MaciNDOE; DAVID 

SPICER and MARTHA SPICER, TED 

TREPANIER and RUBY AKINSTREPANIER, 

Respondents, 

v. 

CHIWAWA COMMUNITIES ASSOCIATION, 

a Washington Non-Profit corporation, 

Appellant. 

NO. 86870-1 

ENBANC 

Filed APR 1 1 2014 

STEPHENS, J.-Chiwawa Communities Association (Association) appeals 

the trial court's grant of summary judgment to owners of homes in the Chiwawa 

River Pines community. Respondents Ross and Cindy Wilkinson et al. asked the 

trial court to invalidate a 2011 amendment to the community covenants prohibiting 

 	 
	 
   
		

		

Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

rental of their homes for less than 30 days. We must decide if short-term vacation 

rentals conflict with the covenants in place prior to 2011, if the Association validly 

amended the covenants to prohibit them, and if the trial court erred by striking 

portions of the offered evidence. We hold short-term rentals do not violate the 

covenants barring commercial use of the property or restricting lots to single-family 

residential use. We also hold the Association exceeded its power to amend the 

covenants when it prohibited short-term vacation rentals in 2011, and the trial court 

did not err by granting in part motions brought by the Wilkinsons to strike evidence. 

Accordingly, we affirm the trial court. 1 

FACTS 

Chiwawa River Pines (Chiwawa) is a planned residential community located 

in Chelan County. Clerk's Papers (CP) at 54-55. The community comprises of a 

mix of permanent and vacation residents. CP at 134. 

As developer Pope & Talbot Inc. completed each of the development's six 

phases, it recorded a separate set of covenants that purported to establish a "general 

1 The dissent complains that by affinning the trial court as to the limited decisions 

the Association asked us to review we have somehow affirmed the trial court's order in its 

entirety. Dissent (Gordon McCloud, J.) at 2-3. This is simply not true. Although the 

Association assigned error to the trial court's order granting summary judgment to the 

respondent homeowners, the Association did not take issue with every ruling made therein. 

Br. of Appellant at 3-4. Rather, the Association asked us to consider whether short-term 

vacation rentals are consistent with the governing restrictive covenants of the Chiwawa 

River Pines community, whether a majority of Chiwawa homeowners could amend the 

governing restrictive covenants to prohibit short-term vacation rentals, and whether the 

testimony of certain Chiwawa homeowners and the comments of other homeowners in 

response to a 2007 survey were admissible evidence. See id. Our holding is consequently 

limited to these issues and the trial court's corresponding decisions. RAP 12.1(a) ("[T]he 

appellate court will decide a case only on the basis of issues set forth by the parties in their 

briefs."). 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

plan of development" for the community. See, e.g., CP at 55. Under the Pope & 

Talbot covenants, ownership of the property in Chiwawa automatically carries a 

right of membership in the Association. CP at 63, 67, 72, 75, 78. In 1988, a majority 

of the Association's members voted to consolidate the Pope & Talbot covenants into 

a single set of covenants governing all six phases of the development (1988 

covenants). CP at 178, 186. The 1988 covenants preserved much from the earlier 

Pope & Talbot covenants, including the right of membership in the Association for 

all landowners, CP at 84, and the power "to change these protective restrictions and 

covenants in whole or in part" by majority vote, CP at 83. The 1988 covenants also 

carried over earlier restrictions on construction and land use from phases three 

through six, CP at 55-57, and restrictions on signage from phase two, compare CP 

at 63-64, with CP at 82. In 1992, the Association voted to eliminate the clause 

permitting construction of "one guest cottage" on Chiwawa lots, compare CP at 81, 

with CP at 85, but made no other material amendments. Thus, the resultant 

1988/1992 covenants provide in pertinent part: 

4. LANDUSE. 

Lots shall be utilized solely for single family residential use consisting of 

single residential dwelling and such out-buildings (garage, patio structure), 

as consistent with permanent or recreational residence. All habitable 

structures must be located not nearer than 20 feet to the front lot line. 

Structures shall be of new construction and shall not be commenced until 

building permit of appropriate public body is obtained .... 

5. NUISANCE OR OFFENSIVE USE. 

No nuisance or offensive use shall be conducted or suffered as to lots subject 

hereto, nor shall any lot be utilized for industrial or commercial use 

(excepting only appropriate real estate sale signs in sale of lots, grantor 

further reserving to itself, its successors and assigns, the right to operate a 

conventional real estate sales or agency office upon an unsold lot within such 

plat), nor as a dump, nor shall there be kept animals or stock of any kind 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

other than conventional, domestic pets with the exception of horses, etc. 

stabled on the lot for short-term recreational activities complying with nonroad usage in Chiwawa River Pines, except for entrance and exit. Lot owners 

retaining animals must confine their animals from wandering off the lot and 

must maintain cleanliness of grounds to eliminate animal offensive wastes, 

odors, flies, etc. at all times .... 

6. TRASH DISPOSAL. 

... No sign of any kind shall be displayed to the public view on any lot, tract 

or subdivision thereof in the plat, except one sign of not more than 3 feet 

square giving the names of the occupants of the lot, tract, or approved 

subdivision thereof, and one sign of not more than 6 square feet advertising 

the property for sale or rent. 

CP at 85-86 (emphasis added). The 1988/1992 covenants remained unchanged until 

the Association sought to amend them in 2008 and again in 2011 to prohibit shortterm rentals. 

Chiwawa residents have rented their homes to unrelated persons on a shortterm, for-profit basis for decades without controversy.2 CP at 59. However, as the 

number of homes available for short-term rental and the frequency of rentals 

increased, the Association noted rising concerns among members about vacation 

rentals. CP at 655, 689. 

In response to member complaints, in 2007 the Association distributed a 

survey to gauge interest in barring what it characterized as "nightly rentals." CP at 

135. A majority favored such a prohibition and, in September 2008, voted to bar all 

rentals of less than six months as prohibited commercial uses. CP at 135-36. 

In a predecessor case, Ross and Cindy Wilkinson and other homeowners 

(collectively Wilkinsons) successfully challenged the 2008 amendment in superior 

2 The court notes that there were instances when the Association sought to terminate 

"lodging facilities and transient nightly rentals," Br. of Appellant at 6, but not weekend, 

weekly, or monthly rentals. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

court. Wilkinson v. Chiwawa Cmtys. Ass 'n, noted at 162 Wn. App. 1005, 2011 

Wash. App. LEXIS 1336, at *1, *8. The trial court granted summary judgment in 

their favor, declaring the prohibition on rentals invalid and unenforceable. Id. at *8. 

The trial court also fashioned sua sponte a new covenant that barred rentals of less 

than one month in duration. !d. at * 12. The Wilkinsons successfully appealed this 

judicial rewriting. I d. at * 13-14. The Court of Appeals held that the trial court 

lacked authority to rewrite the covenants except on motion, and approved, in dicta, 

the trial court's invalidation of the 2008 amendment. Id. at *12-14. No review of 

the decision was sought in this court. 

Shortly after the Court of Appeals issued its decision, a majority of the 

Association again voted to amend the covenants, this time to prohibit rentals "for 

less than one month[ or] 30 continuous days." CP at 160-61, 173, 175 (2011 

amendment). The Wilkinsons again filed suit in superior court to invalidate the 2011 

rental restriction. CP at 3, 60-61. Both sides moved for summary judgment, CP at 

88, 442, and the Wilkinsons additionally moved to strike portions of the evidence 

offered by the Association in support ofits motion, CP at 906-07, 1077-80. 

The trial court granted the Wilkinsons' motion for summary judgment in full, 

holding the 2011 bar on short-term rentals invalid and unenforceable. CP at 1087-

89; Verbatim Report of Proceedings (Dec. 15, 2011) (1 VRP) at 34-35. The court 

concluded that the Pope & Talbot and 1988/1992 covenants "contemplated that there 

could be rentals," and that "[t]here were no limitations on those rentals." 1 VRP at 

34. The trial court granted the Wilkinsons' motion for summary judgment, holding 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

the 2011 amendment was invalid. 1 VRP at 35. The trial court rejected the 

Association's arguments that residential rentals of any duration are a "commercial" 

use of land and that renting a home to unrelated persons violates the single-family 

residential use covenant. See CP at 1087-89; 1 VRP at 35-37. The court also granted 

the Wilkinsons' evidentiary motions in part, striking comments from the 2007 

member survey and portions of declarations by three Chiwawa residents. CP at 

1101-02; 1 VRP at 35-36. 

The Association sought direct review in this court under RAP 4.2(a)(3) and 

( 4 ). See Statement of Grounds for Direct Review at 14. The Association argues that 

the trial court wrongly ruled that short-term vacation rentals are consistent with 

single-family residential uses, that a majority of Chiwawa homeowners cannot 

amend the governing covenants to prohibit short-term vacation rentals, and that the 

2007 survey and testimony from several homeowners were inadmissible. Br. of 

Appellant at 13-15. This court accepted direct review. Order, No. 86870-1 (Wash. 

Oct. 9, 2012). 

ANALYSIS 

We review a trial court's order on cross motions for summary judgment and 

related evidentiary rulings de novo. Davis v. Baugh Indus. Contractors, Inc., 159 

Wn.2d 413, 416, 150 P.3d 545 (2007) (citing Folsom v. Burger King, 135 Wn.2d 

658, 663, 958 P.2d 301 (1998)). We will affirm the trial court's order granting 

summary judgment "if there are no genuine issues of material fact and the moving 

party is entitled to judgment as a matter of law." Dowler v. Clover Park Sch. Dist. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011); CR 56( c). "Here, the parties 

largely agree[] on the material facts." Br. of Appellant at 15 n.7. 

I Vacation Rentals Are Not Commercial Uses and Are Consistent with 

Single-Family Residential Use Provisions 

The Association argues that short-term vacation rentals are inconsistent with 

the governing restrictive covenants prohibiting commercial use and restricting lots 

to single family residential use. See id. at 13. We disagree. 

Interpretation of a restrictive covenant presents a question of law. Wimberly 

v. Caravello, 136 Wn. App. 327, 336, 149 P.3d 402 (2006). We apply the rules of 

contract interpretation. Id. While Washington courts once strictly construed 

covenants in favor of the free use of land, we no longer apply this rule where the 

dispute is between homeowners who are jointly governed by the covenants. Riss v. 

Angel, 131 Wn.2d 612, 621-24, 934 P.2d 669 (1997). This"change in approach was 

driven by the recognition that '"[s]ubdivision covenants tend to enhance, not inhibit, 

the efficient use of land."' Mains Farm Homeowners Ass'n v. Worthington, 121 

Wn.2d 810, 816, 854 P.2d 1072 (1993) (quoting Robert D. Brussack, Group Homes, 

Families, and Meaning in the Law of Subdivision Covenants, 16 GA. L. REv. 33, 42 

(1981); see also Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. 

App. 665, 683, 151 P.3d 1038 (2007). Rather than place a thumb on the scales in 

favor of the free use of land, "[t]he court's goal is to ascertain and give effect to 

those purposes intended by the covenants." Riss, 131 Wn.2d at 623. Courts "place 

'special emphasis on arriving at an interpretation that protects the homeowners' 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

collective interests.'" !d. at 623-24 (quoting Lakes at Mercer Island Homeowners 

Ass'n v. Witrak, 61 Wn. App. 177, 181, 810 P.2d 27 (1991)). 

Thus, our primary objective in contract interpretation is determining the 

drafter's intent. Hollis v. Garwall, Inc., 137 Wn.2d 683, 696, 974 P.2d 836 (1999); 

Riss, 131 Wn.2d at 623; Mains Farm, 121 Wn.2d at 815. "While interpretation of 

the covenant is a question oflaw, the drafter's intent is a question of fact." Ross v. 

Bennett, 148 Wn. App. 40, 49,203 P.3d 383 (2009) (citing Wimberly, 136 Wn. App. 

at 336). "But where reasonable minds could reach but one conclusion, questions of 

fact may be determined as a matter of law." !d. at 49-50 (citing Owen v. Burlington 

N Santa Fe R.R., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005)). In determining the 

drafter's intent, we give covenant language "its ordinary and common use" and will 

not construe a term in such a way "so as to defeat the plain and obvious meaning." 

Mains Farm, 121 Wn.2d at 816; Riss, 131 Wn.2d at 623. We examine the language 

of the restrictive covenant and consider the instrument in its entirety. Hollis, 137 

Wn.2d at 694 (quoting Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 

337, 344, 883 P.2d 1383 (1994)); Wimberly, 136 Wn. App. at 336. The lack of an 

express term with the inclusion of other similar terms is evidence of the drafters' 

intent. See Burton v. Douglas County, 65 Wn.2d 619, 622, 399 P.2d 68 (1965). 

"Extrinsic evidence is ... used to illuminate what was written, not what was intended 

to be written." Hollis, 137 Wn.2d at 697. We, however, do not consider extrinsic 

"[ e ]vidence that would vary, contradict or modify the written word" or "show an 

intention independent of the instrument." !d. at 695. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

As the text of the Chiwawa covenants demonstrates, the drafters included 

detailed provisions outlining what residents cannot do. From this it is evident that 

had the drafters wanted to prohibit rentals of a particular duration, they would have 

done so. The 1988/1992 covenants specify the rights and duties of Chiwawa 

residents in painstaking detail, spelling out, inter alia, the animals residents may 

keep, the minimum distance houses must be set back from the front lot line, the size 

of name signs residents may display, and their authority to bring enforcement 

actions. See CP at 81-82, 85-86. Most apparently, the drafters specifically 

anticipated and permitted rentals when they restricted the size of rental signs 

residents could hang. CP at 82, 86. Indeed, the limit on rental signage proves not 

just that the Pope & Talbot and 1988/1992 covenants allow some rentals but that the 

drafters anticipated rentals and consciously decided not to limit their duration, 

restricting just the appearance of rental signs. 

The dissent argues that the restriction on rental signage merely establishes that 

the drafters intended to permit some rental activity and that it remains a question of 

fact to determine, based on extrinsic evidence, whether the drafters contemplated 

long-term or transient rentals, or both. Dissent (Gordon McCloud, J.) at 3-4, 6 n.6, 

8. This argument misapprehends Washington law. While extrinsic evidence can be 

"used to illuminate what was written," Hollis, 137 Wn.2d at 697, it cannot be used 

to "show an intention independent of the instrument." !d. at 695. Had the covenants 

expressed a durationallimitation, such as specifying long-term rentals, then extrinsic 

evidence would be admissible to elucidate the meaning of the word "long-term." 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

See Bauman v. Turpen, 139 Wn. App. 78, 90, 160 P.3d 1050 (2007) (permitting 

extrinsic evidence to clarify the meaning of the term "one story"); Wimberly, 136 

Wn. App. at 331, 337 (permitting extrinsic evidence to clarify the phrase "simple, 

well-proportioned structures"); Day v. Santorsola, 118 Wn. App. 746, 750, 758, 76 

P.3d 1190 (2003) (considering extrinsic evidence to determine whether a covenant 

that restricted homes to two stories addressed height as opposed to view). Such was 

the circumstance in all the cases that the dissent relies upon as support that we should 

admit extrinsic evidence in this instance. See dissent (Gordon McCloud, J.) at 8 n.8. 

Despite the dissent's belief, silence as to duration does not create ambiguity. !d. at 

4. '"It is the duty of the court to declare the meaning of what is written, and not what 

was intended to be written."' Bergv. Hudesman, 115 Wn.2d 657,669, 801 P.2d 222 

(1990) (quotingJ. W. Seavey Hop Corp. v. Pollock, 20 Wn.2d 337,348-49, 147 P.2d 

310 (1944)). 

Based on the drafters' detailed discussion about what Chiwawa homeowners 

could not do, their clear expression that rentals were permissible uses, and the 

absence of any durational restriction on such rentals, reasonable minds could reach 

but one conclusion-that the drafters intended to permit rentals without any 

durationallimitation. It was therefore proper for the trial court to determine the issue 

of the drafter's intent as a matter of law. 

Not only is it manifestly clear that the drafters intended to permit vacation 

rentals without any durational limitation, such rentals are consistent with the 

prohibition on commercial use. If a vacation renter uses a home "for the purposes 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

of eating, sleeping, and other residential purposes," this use is residential, not 

commercial, no matter how short the rental duration. Ross, 148 Wn. App. at 51-52 

(holding rental use was commercial not residential because such use "is identical to 

[the homeowner's] use of the property, as a residence, or the use made by a longterm tenant"). "The owner's receipt of rental income either from short- or long-term 

rentals in no way detracts or changes the residential characteristics of the use by the 

tenant." !d. at 51. Nor does the payment ofbusiness and occupation taxes or lodging 

taxes detract from the residential character of such use to make the use commercial 

in character. See id. (determining that "whether the short-term rental is subject to 

state tax does not alter the nature of the use"). 

The Association argues that we created in Mains Farm and reaffirmed in 

Metzner v. Wojdyla, 125 Wn.2d 445, 866 P.2d 154 (1994), "a bright line rule ... 

that prohibits any commercial or business use of a property subject to a residential 

use restriction." Reply Br. of Appellant at 7-8. The Association reads these cases 

too broadly. In Mains Farm, "[w]e caution[ed] that the interpretation of a particular 

covenant is largely dependent upon the facts of the case at hand." 121 Wn.2d at 827. 

We held the operation of an adult family home violated a covenant restricting use to 

"'single family residential purposes only"' because it was '"more institutional in 

nature than ... familial"'; "'[t]he single-family residential nature of defendant's use 

of her home [was] destroyed by the elements of commercialism and around-theclock care."' !d. at 813, 821 (emphasis omitted). Similarly, in Metzner, we held the 

operation of a child day care violated a provision requiring properties '"be used for 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

residential purposes only"' because it involved the exchange of money for care of 

persons unrelated to the homeowner. 125 Wn.2d at 447, 451 (emphasis omitted). 

The Wilkinsons' short-term rental of their properties is distinguishable from 

the commercial uses in Mains Farm and Metzner. Both the operations in Mains 

Farm and Metzner provided some form of on-site service that the Wilkinsons do not 

provide to their guests. Thus, the Wilkinsons' short-term rentals do not, without 

more, violate the 1988/1992 covenant prohibiting commercial use.3 

Nor does the 1988/1992 covenants' "single family residential use" restriction 

limit to whom vacation rentals may be rented. Reading the restriction, as the 

Association does, to prohibit unrelated persons from residing within Chiwawa would 

require us to read the provision out of context. The "single family, residential use" 

restriction is incorporated into a provision that restricts the type of structures that 

3 The dissent criticizes us and the trial court for relying on Ross, arguing that the 

Ross court "held only that a particular restrictive covenant limiting property use to 

'residence purposes only' was consistent with short-term vacation rentals," and that this 

holding was based "on a highly fact-specific record." Dissent (Gordon McCloud, J.) at 7. 

But every case is rooted in its facts; the question is whether the relevant facts in Ross are 

different from the facts here. They are not. Just as in this case, the residents in Ross leased 

their homes to short-term renters and the homeowners' association argued that they were 

making commercial use of the land, rather than residential use. 148 Wn. App. at 51. The 

court held unequivocally that a residential renter, no matter how short the rental duration, 

does not violate a restrictive covenant requiring that '" [a ]ll parcels within said property 

shall be used for residence purposes only and only one single family residence may be 

erected on each such parcel"' because that use is residential, not commercial. Id. at 44, 52 

(alteration in original). The court explained that the single family residence restriction 

"merely restricts use of the property to residential purposes," id. at 52, which is consistent 

with a residential renter who uses a home "for the purposes of eating, sleeping, and other 

residential purposes," id., because that use "is identical to [the homeowner's] use of the 

property, as a residence, or the use made by a long-term tenant." Id. at 51. The court was 

not concerned with whether the drafters intended to permit vacation rentals, which the 

dissent emphasizes, but with whether the vacation rentals constituted a prohibited 

commercial use. This was the case because extrinsic evidence cannot be used to "vary, 

contradict or modify the written word." Hollis, 137 Wn.2d at 695. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

can be built and how far from the front line they must be built. Read in context, the 

single-family covenant restricts only the type and appearance of buildings that may 

be constructed on the lot, not who may reside there. This reading is preferred as it 

"protects the homeowners' collective interest" and is consistent with how other 

states interpret single-family covenants. See generally Mark S. Dennison, 

Annotation, Construction and Application of "Residential Purposes Only" or 

Similar Covenant Restriction to Incidental Use of Dwelling for Business, 

Professional, or Other Purposes, 1 A.L.R.6th § 5, at 135 (2005). 

Moreover, reading the provision to prohibit unrelated persons from residing 

together would produce absurd results. Under the Association's reading, Chiwawa 

residents would violate their covenants whenever they host a sleepover for their 

children's playmates, share their homes with friends for a weekend, or cohabitate 

with a partner outside of marriage. We reject "forced or strained" interpretations of 

covenant language if they lead to absurd results. Viking Props., Inc. v. Holm, 155 

Wn.2d 112, 122, 118 P.3d 322 (2005). 

We emphasize that our holding does not prohibit residential communities 

from prohibiting short-term rentals. We merely hold that the Chiwawa River Pines 

community did not do so through covenants allowing rentals while prohibiting 

commercial uses and limiting homes to single-family structures. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

II A Simple Majority Sought To Deprive Chiwawa Landowners of Their 

Property Rights, Inconsistent with the General Plan of Development. 

A prohibition on short-term rentals is unrelated to the 1988/1992 covenants 

and therefore cannot be adopted by a simple majority vote. We do not hold that 

homeowners can never limit the duration of rentals, as the dissent believes, just that 

a majority ofChiwawa homeowners cannot force a new restriction on a minority of 

unsuspecting Chiwawa homeowners unrelated to any existing covenant. Dissent 

(Gordon McCloud, J.) at 3. While Chiwawa homeowners knew that existing 

restrictive covenants could be changed by majority vote so long as the changes were 

consistent with the general plan, they did not buy into the creation of new restrictions 

unrelated to existing ones. 

In Washington, the authority of a simple majority of homeowners to adopt 

new covenants or amend existing ones in order to place new restrictions on the use 

of private property is limited. When the governing covenants authorize a majority 

of homeowners to create new restrictions unrelated to existing ones, majority rule 

prevails "provided that such power is exercised in a reasonable manner consistent 

with the general plan of the development." Shafer v. Bd. ofTrs. of Sandy Hook Yacht 

Club Estates, Inc., 76 Wn. App. 267,273-74,883 P.2d 1387 (1994). However, when 

the general plan of development permits a majority to change the covenants but not 

create new ones, a simple majority cannot add new restrictive covenants that are 

inconsistent with the general plan of development or have no relation to existing 

covenants. See Ebel v. Fairwood Park II Homeowners' Ass 'n, 136 Wn. App. 787, 

793, 150 P.3d 1163 (2007); Meresse v. Stelma, 100 Wn. App. 857, 865-66,999 P.2d 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

1267 (2000); Lakeland Prop. Owners Ass 'n v. Larson, 121 Ill. App. 3d 805, 459 

N.E.2d 1164, 77 Ill. Dec. 68 (1984). This rule protects the reasonable, settled 

expectation of landowners by giving them the power to block '"new covenants 

which have no relation to existing ones"' and deprive them of their property rights. 

Meresse, 100 Wn. App. at 866 (emphasis omitted) (quoting Lakeland, 459 N.E.2d 

at 1167, 1169). As the Court of Appeals observed, "'[t]he law will not subject a 

minority of landowners to unlimited and unexpected restrictions on the use of their 

land."' Id. (quoting Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610, 617 

(1994)). 

While we recognize, as does the dissent, that no Washington case has 

described the precise contours of when an amendment would be "consistent with the 

general plan of development," we need not provide that guidance here because the 

Chiwawa general plan did not authorize a majority of owners to adopt new 

covenants. The Chiwawa general plan of development merely authorized a majority 

of owners "to change these protective restrictions and covenants in whole or in part." 

CP at 83; see Lakeland, 459 N.E.2d at 1167, 1169 (interpreting a covenant that 

permitted changes to "'the said covenants in whole or in part'" as permitting changes 

"not the add[ition] of new covenants which have no relation to existing ones"); see 

also Meresse, 100 Wn. App. at 864-66 (emphasizing that its analysis of a covenant 

allowing a majority '"to change or alter [the covenants] in full or in part"' was in 

accord with Lakeland, which interpreted a similar provision as allowing changes but 

not the addition of new covenants unrelated to existing ones (emphasis omitted)). 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

Thus, for amendments by majority vote to be valid in Chiwawa, such amendments 

must be consistent with the general plan of development and related to an existing 

covenant. 

As determined earlier, the Chiwawa general plan of development allows 

homeowners to rent their homes without any durational limitation. Homeowners 

who took title under these covenants were not on notice that short-term rentals might 

be prohibited without their consent. The Association defends its actions as 

consistent with the general plan because it did not ban all rentals, just some rentals. 

See Reply Br. of Appellant at 5. The Association, however, misses the distinction 

between contracts that permit changes to existing covenants by majority vote and 

those that allow the creation of new covenants by majority vote. In distinguishing 

between these types of contracts, we respect the expectation of the parties and the 

contract they entered. While it is true that in Shafer, the court upheld the adoption 

of new restrictions on outdoor storage of inoperative motor vehicles and commercial 

fishing, even though no such rule had previously existed, the court did so only 

because the dissenting homeowners "had notice of the reservation of power" that 

allowed the homeowner corporation to create new covenants that benefited the 

community. 7 6 Wn. App. at 270, 272, 277. The Chiwawa homeowners did not. We 

reject the Association's position in favor of protecting the reasonable and settled 

expectation of landowners in their property. 

The dissent makes a similar mistake. The dissent contends that we must 

remand this case for a factual inquiry to determine whether the 2011 amendment 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

was '"consistent with the general plan of development'-by looking to 'the language 

of the covenants, their apparent import, and the surrounding facts"' as required by 

Meresse. Dissent (Gordon McCloud, J.) at 12, 14 (emphasis omitted) (internal 

quotation marks omitted) (quoting Meresse, 100 Wn. App. at 865). While it is true 

that when determining whether an amendment is consistent with the general plan of 

development we look to the language of the covenants, their apparent import, and 

the surrounding facts, the dissent misapprehends the inquiry at issue in Meresse. 

Unlike the covenants in Shafer, the covenants in Meresse did not allow a majority 

to create new covenants but only to change existing ones. 100 Wn. App. at 864-65. 

Thus, for the amendment in Meresse to be valid, it had to be both consistent with the 

general plan of development and related to an existing covenant. Accordingly, the 

homeowners argued that the amendment regarding the relocation of an access road 

was not a new wholesale restriction but rather a change to the preexisting '"road 

maintenance"' covenant regarding road '"construction'" and '"repair.'" I d. at 864. 

Consequently, the court's inquiry was whether the amendment was sufficiently 

related to the existing road maintenance covenant. The court ultimately determined 

it was not because the restriction imposing a duty on homeowners to remove 

obstructions "d[id] not place a purchaser or owner on notice that he or she might be 

burdened, without assent, by road relocation at the majority's whim." Id. at 866-67. 

Like the covenants in Meresse, the Chiwawa covenants prohibiting nuisance 

or offensive uses or the display of excessive rental signs would not have placed 

Chiwawa homeowners on notice that short-term rentals would be prohibited. Thus, 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

the 2011 amendment was unrelated to any existing covenant. The Association could 

not adopt the restriction without unanimous consent. This is the contract into which 

the parties bought and the expectation that we must uphold. 

III The 2007 Survey Comments and Testimony of Residents 

Were Properly Excluded 

We also affirm the trial court's exclusion of the homeowners' comments in 

the 2007 survey and portions of the declarations of three Chiwawa residents: Judy 

Van Eyk, James Padden, and Gloria Fisk. 

a. 2007 Survey Comments 

The 2007 survey comments were inadmissible hearsay. See Smith v. Sturm, 

Ruger & Co., 39 Wn. App. 740, 749, 695 P.2d 600 (1985) (surveying opinionpolling cases and noting survey answers given by interested parties describing past 

events "have consistently been held to be double hearsay"). The 2007 survey 

comments discussed homeowner support or rejection of the Association's proposed 

ban on nightly rentals and projections about the impact short-term rentals have had 

on the community. See CP at 153-57. 

The Association does not dispute that the 2007 survey comments were hearsay 

but argues that they fall within the judge-made exception followed in Simon v. Rib let 

Tramway Co., 8 Wn. App. 289, 505 P.2d 1291 (1973). Br. of Appellant at 35-36. 

This is incorrect. Simon rests on a hearsay exception fashioned in Nordstrom v. 

White Metal Rolling & Stamping Corp., 75 Wn.2d 629, 632-34, 453 P.2d 619 

-18-

 	 
	 
   
		

		

Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

(1969),4 regarding the inherent trustworthiness and reliability of surveys compiled 

by disinterested authorities in published materials. In Nordstrom, this court held a 

published industry manual on the safety ofladders was admissible, although hearsay, 

because it was "produced by persons or groups having special knowledge regarding 

the subject under discussion, and having no motive to falsify, but having rather every 

reason to state the facts as they are known to the author or authors." Id. at 633. 

Similarly, in Simon, the National Society of Professional Engineers' survey of 

salaries among engineers was "trustworthy and reliable" because it was "published 

by a reputable society ... without any apparent reason to falsify it." Simon, 8 Wn. 

App. at 294. In contrast, here, the 2007 survey comments were made by interested 

homeowners as part of a contentious vote over property rights and compiled by an 

organization that was interested in the outcome. As such, the comments do not have 

the hallmarks of inherently reliable evidence. We affirm the trial court's decision to 

strike these hearsay comments. 

b. Individual Residents' Declarations 

The trial court also properly struck various portions of declarations by Judy 

Van Eyk, James Padden, and Gloria Fisk. An affidavit supporting a motion for 

summary judgment "shall be made on personal knowledge [and] shall set forth such 

facts as would be admissible in evidence." CR 56( e). A lay witness may testify to 

4 Although both Simon and Nordstrom predate the adoption of Washington's 

Evidence Rules, they are based on principles "substantially in accord with" ER 803(a)(l7), 

ROBERT H. ARONSON, THE LAW OF EVIDENCE IN WASH. § 803.02, at 803-8.1 (4th ed. 

2012), which creates a hearsay exception for "[m]arket quotations, tabulations, lists, 

directories, or other published compilations generally used and relied upon by the public 

or by persons in particular occupations," id. at§ 803.01, at 803-5. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

her opinions and inferences, but this testimony must be "rationally based on the 

perception of the witness." ER 701. 

The trial court properly excluded portions of Ms. Van Eyk' s and Mr. Padden's 

declarations because they lacked personal knowledge. In her declaration, Ms. Van 

Eyk comments that homeowners who rent their residences "make more money 

renting weekends this time of year and do not want a full-time tenant," and states 

that that her long-term tenant had a friend that was willing to pay a premium for a 

three-month term rental, and opines that "[p ]laintiffs' goal in this lawsuit is to protect 

their businesses and bottom line." CP at 1082-83. Mr. Padden's declaration 

similarly consists of opinions. Mr. Padden conjectures that "it was clear that the 

developer, Pope & Talbot, intended to create a community of single families," that 

in the early days of the development, "[n]o one ... was renting" or "advertising their 

homes" or "had a commercial license for their rental businesses," that "[t]he 

community's focus was on providing an enjoyable refuge for families, not to provide 

an opportunity to make money," and that the current state of affairs "is not [what] 

the developer intended." CP at 1085-86. Neither the developers' intent, the activities 

of all other residents, the motivations of other Chiwawa homeowners, nor the desires 

of strangers to move into the community are within Ms. Van Eyk's or Mr. Padden's 

personal knowledge or perceptions. Therefore, the trial court correctly struck them. 

The trial court also properly excluded Ms. Fisk's statement that the board had 

threatened enforcement action against a homeowner for renting out his property "for 

less than one month-the same type of activity at issue in this lawsuit." CP at 992. 

-20-

 	 
	 
   
		

		

Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

Although Ms. Frisk, as the Association's then-president, had personal knowledge of 

the threatened action, her statement was false and misleading. The record shows 

that the Board sent this homeowner a letter advising him that daily rentals would 

violate the covenants, CP at 180, 221; see Wilkinson, 2011 LEXIS 1336, at *7, which 

is not "the same type of activity at issue in this lawsuit." CP at 992. The trial judge 

did not err by excluding Ms. Fisk's misleading statements. 

CONCLUSION 

The trial court properly excluded inadmissible testimony offered by the 

Association and granted summary judgment in favor of the Wilkinsons. The 

covenants in effect before the 20 11 amendment allowed Chiwawa homeowners to 

rent their homes without limitations on duration. Such short-term rentals do not 

violate the ban on commercial use or the requirement that structures be suitable for 

single-family residential use. Because a durational restriction on rentals would be 

inconsistent with the 198811992 covenants, it cannot be adopted by a simple majority 

vote ofChiwawa homeowners. Therefore, the 2011 amendment barring short-term 

rentals was invalid. We affirm. 

-21-

 	 
	 
   
		

		

Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1 

WE CONCUR: 

-22-

 	 
	 
   
		

		

Wilkinson, et a!. v. Chiwawa Communities Ass 'n 

No. 86870-1 

MADSEN, C.J. (dissenting)-The issue is whether the Chiwawa Communities 

Association (Association) validly amended the communities' restrictive covenants to 

prohibit the homeowners within the communities from renting their homes for less than 

30 days at a time, short-term rentals. The majority decides as a matter of law that an 

existing restriction limiting the number and size of "for rent" signs that a resident may 

display on the property conclusively proves intent that rentals of any duration were 

consciously considered when the covenants were written. I cannot agree with this 

incredible supposition. 

The majority also concludes as a matter of law that the covenants did not reserve 

authority to a majority of association members to ban rentals of under 30 days because 

this durational restriction is "unrelated" to any existing covenant. "Relatedness" to an 

existing covenant involves an artificial distinction between changes to restrictive 

covenants and creation of new restrictive covenants. Although some courts recognize the 

distinction, the better analysis is presented by courts that have wisely rejected it. This 

court should reject the distinction as well. 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

Both the question of what the existing covenants mean in regard to duration, if 

anything, and the question whether the covenants reserved power to a majority to impose 

a durational ban on rentals should be remanded so that the parties may submit extrinsic 

evidence, if any is available, to illuminate the meaning of the covenants. 

Discussion 

The questions posed by this case are twofold: What, if anything, did the restrictive 

covenants say about renting property for short terms prior to adoption of the explicit ban 

on short-term rentals, and did the reservation of power provision in the covenants 

authorize a majority of homeowners to adopt the ban on short-term rentals. 

The primary responsibility of a court when faced with a dispute about the meaning 

of restrictive covenants is to determine the intent of the parties who established the 

covenants. Riss v. Angel, 131 Wn.2d 612,621,934 P.2d 669 (1997). The court examines 

the language used as indicating the parties' intent, with the language given its ordinary 

and common meaning. !d.; Metzner v. Wojdyla, 125 Wn.2d 445, 450, 886 P.2d 154 

(1994); Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 815, 854 P.2d 

1072 (1993). 1 

1 There is no rule that requires construing the restrictive covenants here favorably to the free use 

ofland. By the time this court decided Riss, 131 Wn.2d 612, that rule had been either 

disregarded or questioned in a number of cases. In Riss, the court expressly held that in cases 

involving disputes "among homeowners in a subdivision governed by the restrictive covenants 

[the] rule[] of strict construction ... in favor ofthe free use ofland [is] inapplicable." Riss, 131 

Wn.2d at 623. Headnote 7 (regional reporter) in Viking Properties, Inc. v. Holm, 118 P.3d 322 

(2005), accordingly, is incorrect. 

2 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

Whether the existing covenants addressed duration of rentals 

The existing covenants recognized that property may be rented. A covenant 

restricting the number and size of "for rent" signs that homeowners may place on their 

property says in part: 

No sign of any kind shall be displayed to the public view on any lot, tract or 

subdivision thereof in the plat, except one sign of not more than 3 feet 

square giving the names of the occupants of the lot, tract, or approved 

subdivision thereof, and one sign of not more than 6 square feet advertising 

the property for sale or rent. 

Clerk's Papers (CP) at 86. 

This restriction begins with a general rule-no signs allowed-and then lists 

certain specific, detailed exceptions for signs of limited size and number. The obvious 

purpose is to prevent multiple or large signs and the immediate concern is also obviousaddressing the appearance (aesthetics) of the properties and the residential 

neighborhoods. This interpretation is fortified by the placement of the restrictive 

language in a covenant titled "TRASH DISPOSAL" that also provides that "[n]o trash, 

garbage, ashes or other refuse may be thrown, dumped, or otherwise disposed of on any 

lot, vacant or otherwise." I d. Plainly, the covenant is concerned primarily with property 

upkeep and appearance. 

The restriction also implicitly acknowledges that home rentals may occur. On its 

face, however, this is all it does. 

3 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

But, astonishingly, the majority concludes that the sign restriction ''proves ... that 

the drafters anticipated rentals and consciously decided not to limit their duration." 

Majority at 9 (emphasis added). The majority's reading is not consistent with the 

ordinary language used and is far from reasonable. The specific reference to "for rent" 

signs reflects the fact that both selling and renting homes are common occurrences in 

residential neighborhoods when homeowners decide not to live in their homes and 

predictably will place signs on their property to advertise its availability. 

To interpret the reference to "for rent" signs to mean as a matter of law that rentals 

were considered and allowed for any duration, including short-term rentals (vacation 

rentals), is truly extraordinary. 

Nonetheless, the reference to rent is in the restriction and because no more is 

apparent from the restriction itself, deciding whether the parties to the covenants intended 

anything by it about the duration of rentals will depend on extrinsic evidence. As with 

other contracts, extrinsic evidence may be admissible to aid in determining the intended 

meaning of restrictive covenants under Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 

(1990), and its progeny. In Hollis v. Garwall, Inc., 137 Wn.2d 683, 695, 974 P.2d 836 

( 1999), the court held that extrinsic evidence may be relevant to determining the intent of 

restrictive covenants provided that the extrinsic evidence is relevant in giving meaning to 

the words used in the covenants. In applying the Berg principles in this context, just as 

with other contracts, such evidence cannot include evidence of a party's unilateral or 

4 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

subjective intent, evidence to show intent independent of the written document, or 

evidence that would alter or contradict what is written. Id. 2 

Remand to allow the parties an opportunity to submit extrinsic evidence about 

what was intended by the language regarding signs and whether it is relevant to duration 

is necessary before any conclusion can be made about intent to address length of rentals. 

When extrinsic evidence is to be considered under the Berg line of cases, it is 

generally for the trier of fact. In Berg, 115 Wn.2d at 667, the court adopted Restatement 

(Second) of Contracts§ 212 (1981), which provides: 

"( 1) The interpretation of an integrated agreement is directed to the 

meaning of the terms of the writing or writings in the light of the 

circumstances, in accordance with the rules stated in this Chapter. 

(2) A question of interpretation of an integrated agreement is to be 

determined by the trier of fact if it depends on the credibility of extrinsic 

evidence or on a choice among reasonable inferences to be drawn from 

extrinsic evidence. Otherwise a question of interpretation of an integrated 

agreement is to be determined as a question of law." 

Berg, 115 Wn.2d at 667-68 (emphasis added) (quoting RESTATEMENT§ 212). 

Whether the trier of fact must make these determinations does not require that 

ambiguity appear on the face of the document. "[A] party may offer extrinsic evidence in 

a contract dispute to help the fact finder interpret a contract term and determine the 

contracting parties' intent regardless of whether the contract's terms are ambiguous. 

Extrinsic evidence is not admissible, however, to show intention independent of the 

2 Berg addresses parol evidence (extrinsic evidence) used to interpret the meaning of what is 

actually contained in a contract. DePhillips v. Zolt Constr. Co., 136 Wn.2d 26, 32, 959 P.2d 

1104 (1998). In contrast, "the 'parol evidence rule' precludes use of parol evidence [(extrinsic 

evidence)] to add to, subtract from, modify, or contradict the terms of a fully integrated written 

contract." ld. 

5 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

contract." Brogan & Anensen, LLC v. Lamphiear, 165 Wn.2d 773, 775-76, 202 P.3d 

960 (2009) (citation omitted) (citing Berg, 115 Wn.2d at 667-69; Hollis, 137 Wn.2d at 

695). 

In summary on this issue, I very strongly disagree with the majority's conclusion 

that the restriction on the size of "for rent" signs proves a conscious decision to permit 

rentals of any duration. The sign restrictions do not on their face disclose anything about 

duration of permitted rentals. If relevant intent is to be found in the restrictive covenants 

prior to adoption of the ban, it must be found by a trier of fact based on extrinsic 

evidence. 

Whether the reservation of power in the covenants authorized a majority 

of the members of the association to adopt a ban on short-term rentals 

The second question is whether the Association had the authority to adopt the ban 

on short-term rentals by majority vote. At the outset, I do not agree with the Court of 

Appeals' artificial distinction in Meresse v. Stelma, 100 Wn. App. 857, 999 P.2d 

1267 (2000), that dictates a difference in reserved authority depending on whether a 

change in covenants or a new restriction is at issue. This is the ill-advised theory adopted 

by the majority. 

For this theory, Meresse relies on Lakeland Property Owners Ass 'n v. Larson, 121 

Ill. App. 3d 805, 459 N.E.2d 1164, 1167, 1169, 77 Ill. Dec. 68 (1984)). Meresse, 100 

Wn. App. at 859. Referring to Lakeland Property Owners and other cases, the Colorado 

Supreme Court recognized a split in jurisdictions on the matter. Evergreen Highlands 

Ass 'n v. West, 73 P.3d 1, 4-7 (Colo. 2003). 

6 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C .J. (dissenting) 

The relevant language in the covenants here authorizes a majority of the 

association members to agree "to change these protective restrictions and covenants in 

whole or in part." CP at 87. Instead of reading this language to mean that the reserved 

authority extends only to making changes to the existing covenants, the Colorado court 

said that such a construction "seems illogically narrow." Evergreen Highlands, 73 P.3d 

at 6. The court explained that "from a linguistic standpoint, the Lakeland conclusion that 

'change or modify' can only apply to the alteration of existing covenants, and not the 

addition of new and different ones, is not well-founded. Webster defines 'change' as 'to 

make different."' !d. (quoting Webster's Third New International Dictionary 3 73 

(1986)); see also Ticor Title Ins. Co. v. Rancho Santa Fe Ass 'n, 177 Cal. App. 3d 726, 

223 Cal. Rptr. 175, 179 (1986) ("the words 'changed' and 'modified' include any 

alteration whether involving an increase or decrease") "[C]ovenants could certainly be 

changed or made different either by the addition, subtraction, or modification of a term." 

Evergreen Highlands, 73 P.3d at 6. 3 

I do not agree with the majority's view that we should treat reservation of power 

provisions differently depending on whether a change or amendment is made to an 

existing restriction or is by way of a new restriction. In either case, a modification is 

made to the covenants, and in the latter case, the modification is to the entire set of 

restrictions. Moreover, the distinction followed by the majority is flawed because the 

3 The Colorado court speculated that the differing outcomes in the cases were actually based on 

the different factual circumstances and the severity of the consequences presented rather than 

merely on the distinction between a change to a covenant and creation of a new covenant. Id. 

7 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

result can be that a relatively minor new restriction can be precluded if there is no 

unanimous agreement, while a major change can be made by a simple majority vote. 

The important guideline is that the change or addition must be reasonably 

consistent with the general plan of development, and it should make no difference 

whether a change is made to an existing restriction or a new restriction is added. 

Here, the question is whether the restrictive covenants, as they existed before the 

ban, permitted a majority of the homeowners to approve a restriction limiting the 

minimum period for which homeowners may rent their houses in the communities. 

When covenants reserve power to less than all of the affected homeowners to adopt 

additional restrictions, then less than all may adopt restrictions provided this power is 

exercised in a reasonable manner and is consistent with the general plan of development. 

E.g., Shafer v. Bd. ofTrs. of Sandy Hook Yacht Club Estates, Inc., 76 Wn. App. 267, 273-

74, 883 P.2d 1387 (1994)). The reason for this rule is that 

[i]n a sense, there is an inherent inconsistency between an elaborate set of 

restrictive covenants designed to provide for a general scheme or plan of 

development (generally considered to be for the benefit of the respective 

grantees), and a clause therein whereby the grantor reserves to itself the 

power at any time in its sole discretion to change or even arbitrarily 

abandon any such general scheme or plan of development (a power which 

is solely for the benefit of the grantor). 

Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So. 2d 665, 

666 (Fla. App. 197 4 ), quoted in Lakemoor Cmty. Club, Inc. v. Swanson, 24 Wn. App. 10, 

15, 600 P.2d 1022 (1979); see also Shafer, 76 Wn. App. at 273. Or, to put it another 

way, the rule ensures that a neighborhood will retain its essential nature and character as 

8 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

originally developed. Homeowners' legitimate expectations based on the covenants 

governing at the time they acquired their property will in general be protected. 

As Justice Gordon McCloud's dissent notes, there may be circumstances where a 

court may be able to make this determination as a matter of law. But in many cases 

extrinsic evidence will be available that bears on the matter of whether an amendment to 

the restrictive covenants is reasonably consistent with the covenants. Under Berg's 

context rule, such evidence includes "the circumstances leading to the execution of the 

contract, the subsequent conduct of the parties and the reasonableness of the parties' 

respective interpretations. Berg, [15 Wn.2d] at 667-69." Shafer, 76 Wn. App. at 275. 

The trial court realized that extrinsic evidence may well be relevant and 

admissible, but there is no indication that such evidence was considered here. In 

particular, evidence of surrounding facts may be highly relevant, i.e., in what 

environment were the restrictive covenants written. Particularly where the propriety of 

short-term rentals is concerned, the nature and character of the area and of other nearby 

developments may shed light on what is reasonably consistent with the restrictive 

covenants and what the property owners could reasonably expect. 

If, for example, the development is in an area where short-term rentals are usually 

allowed in nearby, similar developments because of recreational activity in the vicinity 

that homeowners can take advantage of by making short-term rentals, it will be less likely 

that a ban on short-term rentals is reasonably consistent with the restrictive covenants. 

9 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

The court should acknowledge the possibility that there will be insufficient 

evidence to draw any conclusions about durationallimits in the existing covenants or 

whether they are reasonably consistent with the existing covenants. If this proves to be 

the case, then the ban adopted by the Association cannot be given effect because it is in 

excess of the authority reserved by the covenants. 

But at this point, remand for consideration of the question of consistency with the 

existing covenants, including whether possible extrinsic evidence sheds light on this 

question, is appropriate as well. 

I turn next, briefly, to another concern. 

Whether a ban on short-term rentals is relevant to the restriction that lots 

must be utilized solely for single family residential use 

Although not my reason for writing separately, I am troubled by the conclusion 

that because renters for short terms live in, eat in, sleep in, and so on, in the residence, 

there is no distinction to be drawn between a short-term rental, essentially renting to 

others for vacation use, and longer-term rentals where renters use the home as their 

primary residence. Individuals on vacation are not limited by constraints of the same 

kind as other renters. It seems odd to ignore the fact that many people equate vacations 

with freedom to act in ways outside their normal conduct. It is to be expected that spirits 

may be higher and conduct more uninhibited. Noise levels, for example, could well be 

higher as a consequence. Vacationers might not be as considerate of neighbors and their 

neighbors' peace and quiet as if they were residents on a more permanent basis. It cannot 

be gainsaid that some on vacation consume alcoholic beverages to a greater degree than 

10 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

they ordinarily would, with consequent effects on their behavior. I do not doubt that 

many of these behaviors occur with residents as well as vacationers, but it seems to be to 

be putting blinders on to conclude that there is no meaningful distinction relevant to the 

commercial versus residential uses distinction. Certainly, in any given case, the 

vacationer may behave in every significant respect like a resident. But over the course of 

a year, over the course of seasonal changes, there will undoubtedly be a cumulative effect 

of noise, traffic, and disruption of neighborhoods from successive short-term rentals. 

I recognize that many courts have refused to accept the distinction, and without 

factual, almost scientific evidence, my view is not likely to prevail. Nonetheless, I think 

it almost disingenuous to act as if rentals for under 30 days are the same as renting to 

persons who use homes in the communities as their primary residences. 

In conclusion, remand should be directed to permit submission of extrinsic 

evidence on the questions of whether the reference to rent signs in the covenants shows 

any intent about rental duration and whether the ban on short-term rentals is reasonably 

consistent with the existing covenants. 

For the reasons stated, I dissent. 

11 

 	 
	 
   
		

		

No. 86870-1 

Madsen, C.J. (dissenting) 

l 

12 

 	 
	 
   
		

		

Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n 

No. 86870-1 

GORDON McCLOUD, J. ( dissenting)-The original restrictive covenants in 

this case permitted future amendments by majority vote. The homeowners knew 

that when they bought in. The original restrictive covenants also limited rental 

advertising, prohibited nuisances and offensive uses, and barred commercial and 

nonresidential uses. The homeowners also knew that when they bought in. A 

majority of the homeowners then voted to amend their covenants to limit short-term 

rentals. 

The question presented by this case is whether the homeowner-majority can 

do that, or whether this amendment is so inconsistent with the original covenants 

that the court should require homeowner unanimity to make this change. The 

majority answers this with a broad legal holding that all rental activity-presumably 

including hourly rentals-is protected by covenants like the ones at issue here, which 

certainly contemplated some rental activity but are actually silent on the topic of 

rental duration. This extremely broad holding ignores the limited and fact-specific 

 	 
	 
   
		

		

Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

nature of the question presented in this case. Because I would remand for a proper 

factual inquiry, I respectfully dissent. 

1. The majority's holding is so broad that it prospectively invalidates any 

limit on the duration of rentals 

Before I address the majority opinion in detail, I pause to note the breadth of 

the trial court order it affirms. The majority characterizes this dispute as limited to 

the validity of the 2011 amendment prohibiting rentals of less than 30 days, majority 

at 5, but in fact, the Wilkinsons sought and obtained four separate rulings from the 

trial court: 

(A) That the Plan of Development of Chiwawa River Pines 

(hereinafter "the Plan") for phase 2 and for phases 3-6 each 

allow residential rentals of any duration - including 

residential rentals of less than 30 days. 

(B) That specifically the Pope & Talbot Protective Covenants and 

the 1988 and 1992 Protective Covenants allow residential 

rentals of any duration - including residential rentals of less 

than 30 days. 

(C) That a prohibition on commercial uses of lots as expressed by 

the Protective Covenants as set forth in the Pope & Talbot 

Covenants for phase [2] and for phases 3-6 and the 1988 and 

1992 Covenants described above does not include residential 

rentals of any duration - including residential rentals for less 

than 30 days. 

(D) That to the extent that the 2011 Amendment ... seeks to bar 

residential rentals of any duration, including those ofless than 

30 days, it is unenforceable. 

2 

 	 
	 
   
		

		

Wilkinson, et ux., eta!. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

Clerk's Papers (CP) at 442-43. By affirming the trial court's order in its entirety, 

the majority not only invalidates the 2011 amendment barring rentals ofless than 30 

days, it also prospectively invalidates any limit on the duration of rentals in Chiwawa 

River Pines. 1 

1 According to the majority, the Association has asked us to consider only part of 

the trial court's order, and the majority has accordingly limited its opinion consistent with 

Rule of Appellate Procedure (RAP) 12.1(a), which states that "the appellate court will 

decide a case only on the basis ofissues set forth by the parties in their briefs." See majority 

at 2 n.l. Unfortunately, the majority does not tell us which parts of the trial court's order 

it has declined to address. This is sure to cause considerable confusion, both as to the 

meaning of the majority's opinion and as to the purpose and effect of RAP 12.1(a). 

The purpose of RAP 12.1(a) is to encourage efficiency and fairness and to give 

parties a certain degree of control over the theory of their case. To these ends, RAP 12.1(a) 

prevents an appellate court from finding an error that the parties did not assign. State v. 

Hubbard, 103 Wn.2d 570, 573-74,693 P.2d 718 (1985). It also prevents appellate courts 

from deciding legal issues the parties have not argued "[unless] necessary to reach a proper 

decision." Harris v. Dep't of Labor & Indus., 120 Wn.2d 461, 467-68, 843 P.2d 1056 

(1993) (citing Alverado v. Wash. Pub. Power Supply Sys., 111 Wn.2d 424, 429-30, 759 

P.2d 427 (1988)); see also RAP 12.1(b). But RAP 12.1(a) does not require this court to 

ignore portions of the summary judgment order to which the Association assigned error in 

this case. 

This is so for two reasons. First, as the majority concedes, the Association assigned 

error to the trial court's entire summary judgment order. See majority at 2 n.l (citing Br. 

of Appellant at 3-4). Having done so, the Association will surely be surprised to learn that 

the majority has decided not to address every issue in that order. As noted above, the trial 

court's summary judgment order stated that "to the extent that the 2011 Amendment ... 

seeks to bar residential rentals of any duration, including those of less than 30 days, it is 

unenforceable." CP at 443 (emphasis added). Clearly, the Association hoped that this 

court would recognize its authority to ban rentals of 30 days. I see no indication that it 

wanted this court, in the event that we upheld the trial court's ruling on the 30-day rental 

ban, to quietly leave in place the rest of the trial court's order banning rental limits of "any 

duration." !d. Certainly, RAP 12.l(a) is not a license to do so. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

2. The majority errs in holding that it is manifestly clear as a purely legal 

matter that the original covenants, which are silent on the topic of rental 

duration, allow rentals of any duration 

As the majority correctly observes, a court's primary objective in interpreting 

restrictive covenants is to determine the drafter's intent,2 and if that intent is not clear 

from the covenants' plain language, then the court may consider extrinsic evidence. 3 

According to the majority, however, the language of the covenants makes it 

"manifestly clear that the drafters [of the Chiwawa River Pines covenants] intended 

Second, despite the majority's protestations to the contrary, its reasoning does 

affirm the trial court's summary judgment in its entirety. The effect of this reasoning is a 

blanket prohibition on any amendments to the Chiwawa River Pines covenants that limit 

rental activity by duration. The majority leaves open the possibility that vacation rental 

activity may be limited in Chiwawa River Pines in other ways-perhaps by a ban on the 

provision of room service because that is too "commercial" under Mains Farm 

Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 816, 854 P.2d 1072 (1993)-but it 

absolutely prohibits any purely durationallimit. 

This is so because the majority's decision turns entirely on the "use" to which the 

property is put during the rental term. According to the majority, if that use is '"eating, 

sleeping, and other residential purposes,"' it is permitted "'no matter how short the rental 

duration."' Majority at 11 (quoting Ross v. Bennett, 148 Wn. App. 40, 51-52, 203 P.3d 

383 (2008)). Thus, according to the majority, there is no legal distinction in this case 

between a 30-day residential rental and a one-night residential rental. 

If the majority believes that shorter term bans can be distinguished from bans on 30-

day rentals, it should explain how. The Association came to this court assigning error to 

the trial court's contrary ruling, and this court accepted review. 

2 Majority at 8 (citing Hollis v. Garwall, Inc., 137 Wn.2d 683, 696, 974 P.2d 836 

(1999); Riss v. Angel, 131 Wn.2d 612, 623, 934 P.2d 669 (1997)). 

3 Majority at 8 (quoting Hollis, 137 Wn.2d at 697). 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

to permit vacation rentals." Majority at 11. 

I disagree. Instead, those covenants make it manifestly clear that the drafters 

intended to permit some rental activity, but it is not clear what type of rental activity 

the drafters contemplated-long-term, transient, or both. Because the covenants are 

ambiguous in this respect, extrinsic evidence is admissible to, in the majority's 

words, '"illuminate what was written."' Majority at 8 (quoting Hollis, 137 Wn.2d 

at 697). 

Further, because extrinsic evidence is admissible to clarify an ambiguity in a 

restrictive covenant, the meaning of the ambiguous language is at least in part a 

question of fact. Some lower courts, however, have erroneously characterized the 

interpretation of a restrictive covenant as solely a question of law.4 Both the trial 

court and the majority made that error here. 

In the trial court, the Wilkinsons argued that any amendment "seek[ing] to bar 

residential rentals of any duration, including those of less than 3 0 days . . . is 

unenforceable" under Ross v. Bennett, 148 Wn. App. 40, 52, 203 P.3d 383 (2008). 

CP at 442-43, 466-67. They reasoned that because Ross held that "short-term 

4 See Wimberly v. Caravello, 136 Wn. App. 327,336, 149 P.3d 402 (2006); Meresse 

v. Stelma, 100 Wn. App. 857, 864, 999 P.2d 1267 (2000); Parry v. Hewitt, 68 Wn. App. 

664, 668, 847 P.2d 483 (1992). But see Ross, 148 Wn. App. at 46. 

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Wilkinson, et ux., eta!. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

vacation rentals" were consistent with the residential use covenant at issue in that 

case, 5 short-term rentals must also be consistent with the Chiwawa River Pines 

covenants, which limit lots to "single family residential use."6 The trial court agreed, 

concluding that "there really [we ]ren 't any facts ... in dispute, particularly when 

one reads the Ross case" and granted summary judgment for the plaintiffs. Verbatim 

Report ofProceedings (Dec. 15, 2011) (1 VRP) at 34-35. 

The trial court thus treated the meaning of a residential use provision as a 

question of law and foreclosed any factual inquiry into the intent embodied in the 

Pope & Talbot and 1988/1992 Chiwawa River Pines covenants. The majority 

repeats this error by stating that, under Ross, "[i]f a vacation renter uses a home 'for 

the purposes of eating, sleeping, and other residential purposes,' this use is 

residential, not commercial, no matter how short the rental duration." Majority at 

11 (quoting Ross, 148 Wn. App. at 51-52). 

The majority misapprehends Ross's significance to this case and to the law of 

restrictive covenants in general. Ross was not a broad holding applicable to every 

5 The covenants at issue in Ross provided that "'[a]ll parcels within said property 

shall be used for residence purposes only and only one single family residence may be 

erected on each such parcel."' Ross, 148 Wn. App. at 44. They also authorized "'[a]ny 

member [to] delegate ... his right of enjoyment to the common areas and facilities to the 

members of his family, friends, and tenants."' !d. (first alteration in original). 

6 CP at 85. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

covenant that distinguishes residential from commercial activity. The Ross court 

held only that a particular restrictive covenant limiting property use to "residence 

purposes only" was consistent with short-term vacation rentals. And it based that 

holding on a highly fact-specific record.7 That record contained a declaration by one 

of the covenant's drafters showing that the drafters had '"modeled"' the disputed 

covenants on those from a neighboring community where '"vacation rentals'" did 

occur. Ross, 148 Wn. App. at 47-48. Thus, the Ross court did not hold that 

restrictive covenants limiting lots to "residential" use are always consistent with 

vacation rentals. Rather, the Ross court held that a residential use provision is not 

so plainly incompatible with vacation rentals that it will override clear evidence that 

the drafters intended to permit such rentals. 

In contrast to the Ross court, the trial court in this case had very little 

evidence before it regarding the intent embodied in the original Pope & Talbot and 

1988/1992 Chiwawa River Pines covenants. The trial court therefore ruled as a 

matter of law that short-term vacation rentals are always consistent with residential 

and single-family use. 

7 Indeed, the Ross court acknowledged the factual nature of the question before it, 

noting that "[ w ]hile interpretation of the covenant is a question oflaw, the drafter's intent 

is a question of fact." Ross, 148 Wn. App. at 49. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

Had this in fact been the question presented, the trial court's decision might 

well be correct. 8 But the question before the trial court was different. It was whether 

the Association could validly limit short-term rentals pursuant to the Pope & Talbot 

and 1988/1992 restrictive covenants, which prohibited nuisances and offensive uses, 

banned commercial and nonresidential uses, permitted limited rental signage, 

restricted lots to "single family" use, and reserved to the Association the power to 

adopt new land-use restrictions by majority vote. CP at 13, 30. These covenants 

clearly permit some rental activity, because they allow residents to post signs 

advertising their properties for rent. They also clearly contemplate restrictions on 

8 Both Ross and persuasive out-of-state authority indicate that short-term vacation 

rentals may be consistent with covenants limiting members to "single family" and 

"residential" use. See Ross, 148 Wn. App. at 52; see, e.g., Slaby v. Mountain River Estates 

Residential Ass 'n, 100 So. 3d 569, 578-79 (Ala. Civ. App. 20 12) (holding that "property is 

used for 'residential purposes' when those occupying it do so for ordinary living purposes" 

and therefore "so long as the renters continue to relax, eat, sleep, bathe, and engage in other 

incidental activities ... , they are using the cabin for residential purposes"); Applegate v. 

Colucci, 908 N.E.2d 1214, 1220 (Ind. Ct. App. 2009) (holding rental use is residential use 

because the occupants "use the structures for eating, sleeping, and other typical activities 

associated with a residence or dwelling place"); Lowden v. Bosley, 395 Md. 58, 69, 909 

A.2d 261, 267-68 (2006) (holding that "[w]hen property is used for a residence, there 

simply is no tension between such use and a commercial benefit accruing to someone 

else"); Mullin v. Silvercreek Condominium Owner's Ass'n, 195 S.W.3d 484,490 (Mo. Ct. 

App. 2006) ("'The plain and ordinary meaning of 'residential purposes' is 'one in which 

people reside or dwell, or which they make their homes, as distinguished from one which 

is used for commercial or business purposes'" (quoting Blevins v. Barry-Lawrence County 

Ass'nfor Retarded Citizens, 707 S.W.2d 407, 408 (Mo. 1986)). While we acknowledge 

this authority, however, we reiterate that the legitimacy of the amendment at issue in this 

case is a question of fact. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

rental advertising, because they limit rental signage to one sign per lot. For the most 

part, however, these covenants raise questions: what constitutes a nuisance; what 

constitutes an offensive use; when rentals might conflict with single-family 

residential usage; and whether there are any specific limits on the majority's power 

to amend the covenants. 

To answer these questions, a court cannot simply rely on a prior appellate 

court's interpretation of one similar covenant provision in a case with different facts. 

Rather, the court must consider the disputed covenants in their entirety, along with 

any extrinsic evidence relevant to their interpretation. The majority refuses to 

acknowledge the admissibility of any extrinsic evidence at all in this case, because 

it concludes (apparently as a matter of law) that the drafters of the original and 

1988/1992 Chiwawa River Pines covenants "anticipated rentals and consciously 

decided not to limit their duration." Majority at 9 (emphasis added). This constitutes 

a major departure from precedent.9 

9 See, e.g., Ross, 148 Wn. App. at 50 (permitting extrinsic evidence to clarify the 

terms "residential" and "residence purposes" in restrictive covenant); Bauman v. Turpen, 

139 Wn. App. 78, 87-90, 160 P.3d 1050 (2007) (permitting extrinsic evidence to clarify 

the meaning of the term "one story" in restrictive covenant); Wimberly, 136 Wn. App. at 

at 331, 407 (~ermitting extrinsic evidence to clarify the phrase "simple, well-proportioned 

structure"); Day v. Santorsola, 118 Wn. App. 746, 755-57, 76 P.3d 1190 (2003) (to 

determine whether restrictive covenant provision addressed "height" as opposed to "view," 

the trial court properly considered extrinsic evidence of the way the provision had 

historically been enforced). 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

3. Whether the homeowner-majority had the authority to amend the 

restrictive covenants here is, instead, a question of fact. 

For at least a decade, Washington courts have held that where a set of 

restrictive covenants empowers residents to adopt amendments by majority vote, 

those amendments are valid only so long as they are adopted "'in a reasonable 

manner [and are] consistent with the general plan of development."' Majority at 14 

(quoting Shafer v. Bd. ofTrs. of Sandy Hook Yacht Club Estates, Inc., 76 Wn. App. 

267, 273-74, 883 P.2d 1387 (1994)). Our courts have also recognized that an 

amendment is unreasonable as a matter of law where it imposes an obligation that 

differs fundamentally from those contemplated in the original covenants. Meresse, 

100 Wn. App. at 866-67 (amendment authorizing access road's "relocation" 

unreasonable where original covenants addressed only "'maintenance, repairs"' and 

"'additional constructions"' involving said road, and the clause permitting future 

amendments was limited to certain topics). 

In applying these holdings, our cases have never distinguished between 

amendments that "change" existing covenants and amendments that "create new 

restrictions." Majority at 14 (emphasis added). But in today's opinion, the majority 

adopts that distinction as a new rule. This new rule contrasts covenants that permit 

homeowners to "change" existing covenants with covenants that permit 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

homeowners to "create new" covenants. Majority at 15 (emphasis omitted). 10 

According to the majority, where a set of restrictive covenants permits a majority of 

homeowners to create new covenants, these covenants need have "no relation to 

[the] existing covenants." !d. By adopting this rule, the majority is able to 

distinguish this case from Shafer, in which the Court of Appeals found the creation 

of an entirely new covenant to be "consistent with the general plan of development." 

Shafer, 76 Wn. App. at 273. I would not depart from precedent in this manner. 

Instead, I would stick with current precedent, which holds that a court 

determines whether a restrictive covenant amendment is permissible-that IS, 

10 The majority cites Ebel v. Fairwood Park II Homeowners' Ass 'n, 136 Wn. App. 

787,793, 150 P.3d 1163 (2007), andMeresse, 100 Wn. App. at 865-66, for this distinction. 

Majority at 15. The majority's theory is that the court in Meresse applied a different-and 

more restrictive-rule than that articulated in Shafer, because the covenants in Shafer 

permitted more radical innovations than does a generic amendment provision. !d. at 17. 

But Meresse in fact addresses Shafer at length, relying extensively on its reasoning and 

rule statement and pausing to "add a caveat appropriate to the different facts [at hand]." 

Meresse, 100 Wn. App. at 865. Significantly, that caveat does not distinguish the language 

of the covenants at issue in Shafer. See id. at 865-66. Rather, it distinguishes the "nature" 

of the disputed amendment, i.e., its relation to existing covenants. !d. ("In Shafer, the 

existing covenants were extended to a restriction of a similar nature .... Shafer does not 

address changes in restrictive covenants that differ in nature from those already in 

existence.") And in Ebel, any seeming distinction between changes and new covenants is 

dicta. Ebel's reasoning makes clear that it regards Meresse and Shafer as two cases 

applying the same rule, according to which an amendment is permissible so long as it is 

reasonable and consistent with the general plan of development. See Ebel, 136 Wn. App. 

at 793 (citing Meresse and Shafer for the rule that "an amendment may not create a new 

covenant that has no relation to the existing covenants"). That is the rule I would apply 

here. 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

whether it is '"consistent with the general plan of development"'-by looking to "the 

language of the covenants, their apparent import, and the surrounding facts." 

Meresse, 100 Wn. App. at 865 (emphasis added and omitted) (quoting Shafer, 76 

Wn. App. at 274). In some cases, a court will be able to ascertain the reasonableness 

of a disputed amendment as a matter law, without undertaking any factual inquiry. 11 

For the reasons outlined above, however, this is not such a case. 

In its oral summary judgment ruling, the trial court below acknowledged the 

factual component of the "reasonable and consistent" inquiry. 12 That court's orders, 

however, do not reveal any consideration of the facts "surrounding" the drafting of 

the original Pope & Talbot covenants or their consolidation in 1988/1992. This 

omission may reflect a need for guidance; unfortunately, the majority provides none. 

11 An amendment is unreasonable as a matter of law if, for example, it plainly 

contradicts language in the·original covenants. See Wright v. Cypress Shores Dev. Co., 

413 So. 2d 1115, 1118, 1124 (Ala. 1982) ("cancellation of the [residential use] restrictions 

so as to permit the construction of a convenience store" was "unreasonable exercise of 

[developer's] authority" to "annul, cancel, modify or amend" restrictive covenants). It is 

also unreasonable if it differs fundamentally from the obligations described in the original 

covenants. Meresse, 100 Wn. App. at 866-67 (amendment authorizing access road's 

"relocation" unreasonable where original covenants addressed only "'maintenance, 

repairs'" and "'additional constructions"' involving said road, and the clause permitting 

future amendments was limited to certain topics). But where an amendment is not 

unreasonable as a matter of law, its validity can be determined only in light of "the 

surrounding facts." Id. at 865 (citing Shafer, 76 Wn. App. at 271). 

12 See 1 VRP at 31-32 ("[I]n assessing what constitutes a reasonable manner 

consistent with the general plan of development, a court should look to the language of the 

covenants, their apparent import, and the surrounding facts."). 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

I would take this opportunity to clarify what "surrounding facts" are relevant to the 

"reasonable and consistent" inquiry. 

While no Washington case precisely describes the scope of the "surrounding 

facts" inquiry, the North Carolina Supreme Court provides a useful guide: 

A disputing party will necessarily argue that an amendment is 

reasonable if he believes that it benefits him and unreasonable if he 

believes that it harms him. However, the court may ascertain 

reasonableness from the language of the original declaration of 

covenants, deeds, and plats, together with other objective 

circumstances surrounding the parties' bargain, including the nature 

and character of the community. For example, it may be relevant that 

a particular geographic area is known for its resort, retirement, or 

seasonal 'snowbird' population. Thus, it may not be reasonable to 

retroactively prohibit rentals in a mountain community during ski 

season or in a beach community during the summer. Similarly, it may 

not be reasonable to continually raise assessments in a retirement 

community where residents live primarily on a fixed income. Finally, 

a homeowners' association cannot unreasonably restrict property rental 

by implementing a garnishment or 'taking' of rents (which is essentially 

an assessment); although it may be reasonable to restrict the frequency 

of rentals to prevent rented property from becoming like a motel. 

Armstrong v. Ledges Homeowners Ass 'n, 360 N.C. 547, 559-60, 633 S.E.2d 78 

(2006) (emphasis added). This approach rightly focuses on landowners' reasonable 

expectations. "The character of the community" necessarily informs these 

expectations; it should therefore inform a court's assessment of what is reasonable 

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Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 

(Gordon McCloud, J., Dissenting) 

and consistent with the covenants by which a community's members agreed to 

abide. 13 

CONCLUSION 

The trial court erred in concluding that the meaning of the disputed covenants 

in this case was a question oflaw controlled by prior precedent. The majority makes 

the same error. This deprives the parties of an opportunity to present evidence on 

how to interpret the original covenants and how to determine the homeowners' 

reasonable expectations about how those covenants might be amended. This also 

substitutes the values of this court's majority for the values of the drafters and 

homeowners. Instead, I would remand for a proper factual inquiry. I therefore 

dissent. 

13 In light of the need to protect the property owner's legitimate expectations, courts 

have considered the "character of the community" at the time the property was purchased 

and whether the covenants were enforced so as to maintain this character over time. Se. 

Jurisdictional Admin. Council, Inc. v. Emerson, 363 N.C. 590, 597-98, 683 S. E. 2d 366 

(2009) (considering character of the community "at the time the plaintiff property owners 

purchased their lots" and noting that this character was maintained "consistently since the 

first lots were sold"); Armstrong, 360 N.C. at 560 (considering the character of the 

community at the time the plaintiffs purchased their properties). 

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Wilkinson, et ux., et al. v. Chiwawa Comtys. Ass 'n, No. 86870-1 

Gordon McCloud, J., Dissenting