### NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports
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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 !SIDRAMaciNDOE; 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 11 

## 2014

STEPHENS, J.-Chiwawa Communities Association (Association) appeals the trial court's grant of summaryjudgment to owners ofhomes 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 prohibitingWilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### rental oftheir homes for less than 30 days. We must decide ifshort-term vacation rentals conflict with the covenants in place prior to 2011, ifthe 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 oftheproperty orrestricting 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 didnot errbygranting inpartmotions broughtbytheWilkinsons 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 ofa mix ofpermanent and vacationresidents. CP at 134. As developer Pope & 

### Talbot Inc. completed each ofthe development's six phases, it recorded a separate set ofcovenants that purported to establish a "general

1The dissent complains that by affinning the trial court as to the limited decisions the Association askedus to review wehave somehow affirmedthe trial court's orderinits 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 summaryjudgment to the respondenthomeowners, the Associationdidnottake issuewitheveryrulingmadetherein. Br. ofAppellant at 3-4. Rather, the Association asked us to consider whether short-term vacation rentals are consistent with the governing restrictive covenants ofthe 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 surveywere admissible evidence. See id. Ourholding is consequently limited to these issues andthe trial court's corresponding decisions. RAP 12.1(a) ("[T]he appellate courtwill decide a case onlyonthebasis ofissues set forth bythe parties in their briefs."). -2-Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, 86870-1


### plan ofdevelopment" for the community. See, e.g., 

### CP at 55. Under the Pope & Talbot covenants, ownership ofthe property in Chiwawa automatically carries a right ofmembershipintheAssociation. CP at 63, 67, 72, 75, 78. In 1988, amajority oftheAssociation'smembers votedto consolidatethePope & Talbotcovenants 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 ofmembership in the Association for all landowners, CP at 84, and thepower "to change these protectiverestrictions and covenants inwhole orinpart"bymajority 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 pertinentpart: 4. LANDUSE. Lots shall be utilized solely for singlefamily 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 ofnew construction and shall not be commenced until building permit ofappropriate public bodyis obtained
.... 5. NUISANCE OR OFFENSIVE USE. Nonuisance or offensiveuse shallbe conductedor suffered as to lots subject hereto, nor shall any lot be utilizedfor 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 conventionalreal estate sales oragency officeuponanunsoldlotwithin such plat), nor as a dump, nor shall there be kept animals or stock of any kind
-3-Wilkinson, et ux., etal. 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 nonroadusage inChiwawaRiverPines, exceptfor entrance andexit. Lot owners retaining animals must confine their animals from wandering offthe lot and must maintain cleanliness ofgrounds to eliminate animal offensive wastes, odors, flies, etc. at all times
.... 6. TRASH DISPOSAL.

...No sign ofanykind shallbe displayedto the public view on any lot, tract or subdivision thereofin the plat, except one sign ofnot 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 6square feet advertising theproperty for sale or rent. 

### CP at 85-86 (emphasis added). The 1988/1992 covenantsremainedunchangeduntil 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 "nightlyrentals." CP at 135. A majorityfavored such aprohibition and, in September 2008, voted to bar all rentals ofless 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

2The courtnotes thattherewere instances whenthe Association soughtto terminate "lodging facilities and transient nightly rentals," Br. ofAppellant at 6, but not weekend, weekly, ormonthly rentals. -4-Wilkinson, etux., 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 summaryjudgment in their favor, declaringtheprohibition onrentals invalid andunenforceable. Id. 

### at *8. The trial court also fashioned sua sponte a new covenant that barred rentals ofless than one month in duration. !d. at 

## *12. The Wilkinsons successfully appealed this judicial rewriting. Id. 

### at *13-14. The Court ofAppeals held that the trial court lacked authority to rewrite the covenants except on motion, and approved, in dicta, the trial court's invalidation ofthe 2008 amendment. Id. 

### at *12-14. No review of the decision was sought inthis 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). TheWilkinsons againfiled suitinsuperiorcourtto invalidatethe 2011 rental restriction. CP at 3, 60-61. Both sides moved for summaryjudgment, CP at 88, 442, and the Wilkinsons additionally moved to strike portions ofthe evidence offeredbythe Association in support ofitsmotion, CP at 906-07, 1077-80. The trial court granted the Wilkinsons' motion for summaryjudgment in full, holding the 2011 bar on short-term rentals invalid and unenforceable. CP at 1087- 89; Verbatim Report ofProceedings (Dec. 15, 2011) (1 VRP) at 34-35. The court concludedthatthePope & 

### Talbotand 1988/1992 covenants "contemplatedthatthere couldberentals," and that "[t]here were no limitations on those rentals." 1VRP at 34. The trial court granted the Wilkinsons' motion for summaryjudgment, holding

-5-Wilkinson, etux., 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 ofany duration are a "commercial"
use ofland and that renting a home to unrelated persons violates the single-family residentialuse covenant. See 

### CP at 1087-89; 1VRP 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; 1VRP at 35-36. The Association sought direct review in this court under RAP 4.2(a)(3) and ( 4). See 

### Statement ofGrounds for DirectReview at 14. TheAssociation arguesthat 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 summaryjudgment 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 summaryjudgment "ifthere are no genuine issues ofmaterial fact and the moving party is entitled tojudgment as a matter oflaw." Dowler v. CloverParkSch. Dist.

-6-Wilkinson, etux., 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. ofAppellant at 15 n.7. I 

### Vacation RentalsAreNot Commercial Uses andAre Consistent with Single-FamilyResidential 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 ofa restrictive covenant presents a question oflaw. 

### 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 ofthe free use ofland, we no longer apply this rule where the dispute is betweenhomeowners who arejointly governedbythe covenants. 

### Riss v. Angel, 131 Wn.2d 612, 621-24, 934 P.2d 669 (1997). This"change in approach was drivenbytherecognitionthat '"[s]ubdivision covenantstendto enhance, notinhibit, the efficient use ofland."' 

### Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 816, 854 P.2d 1072 (1993) (quotingRobertD. Brussack, 

### GroupHomes, Families, andMeaning in theLawof Subdivision Covenants, 16 

### GA. L. 

### REv. 33, 42 (1981); 

### seealso Green v. NormandyParkRivieraSection Cmty. Club, Inc., 137 Wn. App. 665, 683, 151 P.3d 1038 (2007). Rather than place a thumb on the scales in favor ofthe free use ofland, "[t]he court's goal is to ascertain and give effect to those purposes intendedbythe covenants." 

### Riss, 131 Wn.2d at 623. Courts "place 'special emphasis on arriving at an interpretation that protects the homeowners'

-7-Wilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### collective interests.'" !d. 

### at 623-24 (quoting Lakes atMercer IslandHomeowners Ass'nv. 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 offact." Ross 

### v. Bennett, 

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

### 136 Wn. App. at 336). "Butwhere reasonable minds couldreachbut one conclusion, questions of fact maybe determined as a matter oflaw." !d. 

### at 49-50 (citing Owen v. Burlington N Santa FeR.R., 

### 153 Wn.2d 780, 788, 108 P.3d 1220 (2005)). In determining the drafter's intent, we give covenant language "its ordinary and commonuse" 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 examinethe language ofthe restrictive covenant and consider the instrument in its entirety. Hollis, 

### 137 Wn.2d at 694 (quoting Mountain ParkHomeownersAss'n v. Tydings, 

### 125 Wn.2d 337, 344, 883 P.2d 1383 (1994)); Wimberly, 

### 136 Wn. App. at 336. The lack ofan express term with the inclusion ofother similar terms is evidence ofthe drafters' intent. See Burton v. Douglas County, 

### 65 Wn.2d 619, 622, 399 P.2d 68 (1965). "Extrinsic evidenceis
...usedto illuminatewhatwas written, notwhatwasintended 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 ofthe instrument." !d. 

### at 695.
-8-Wilkinson, et ux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### As the text ofthe Chiwawa covenants demonstrates, the drafters included detailed provisions outlining what residents cannot do. From this it is evident that had the drafters wantedto prohibit rentals ofa 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 mustbe setbackfrom 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 justthatthe Pope & 

### Talbot and 1988/1992 covenants allow somerentals butthat the drafters anticipated rentals and consciously decided not to limit their duration, restrictingjustthe appearance ofrental signs. Thedissent arguesthattherestrictiononrental signagemerelyestablishesthat 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, orboth. Dissent (Gordon McCloud, J.) at 3-4, 6 n.6, 8. This argumentmisapprehends Washingtonlaw. While extrinsic evidence canbe "usedto illuminate what was written," 

### Hollis, 137 Wn.2d at 697, it cannot be used to "showan intentionindependent oftheinstrument." 

### !d. at 695. Hadthe covenants expresseda durationallimitation, such as specifyinglong-termrentals, thenextrinsic evidence would be admissible to elucidate the meaning ofthe word "long-term."

-9-Wilkinson, etux., etal. 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 ofthe 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 thatrestricted homes to two stories addressedheight as opposedto view). Suchwas the circumstancein all the casesthatthedissentreliesupon as supportthatwe should admit extrinsic evidence inthis instance. 

### See dissent (GordonMcCloud, J.) at 8n.8. Despite the dissent's belief, silence as to duration does not create ambiguity. 

### !d. at 4. '"It

### is the dutyofthe courtto declarethemeaning ofwhatis written, andnotwhat was intendedto bewritten."' 

### Bergv. Hudesman, 115 Wn.2d 657,669, 801 P.2d 222 (1990) (quotingJ.

### W. SeaveyHop Corp. v. Pollock, 20 Wn.2d 337,348-49, 147 P.2d 310 (1944)). Based onthe drafters' detailed discussion about what Chiwawahomeowners could not do, their clear expression that rentals were permissible uses, and the absence ofany durational restriction on such rentals, reasonable minds could reach but one conclusion-that the drafters intended to permit rentals without any durationallimitation. It

### was thereforeproperforthetrial courtto determinetheissue ofthe drafter's intent as a matter oflaw. 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. Ifa vacation renter uses a home "for the purposes
-10-Wilkinson, etux., 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 ofthe property, as a residence, or the use made by a longtermtenant"). "Theowner'sreceipt ofrental income eitherfrom short- orlong-term rentals in no waydetracts or changes the residential characteristics ofthe use by the tenant." 

### !d. at 51. Nordoes thepaymentofbusiness andoccupationtaxes orlodging taxes detract from the residential character ofsuch 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 ofthe 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), "abright line rule
... that prohibits 

### any commercial or business use ofa property subject to a residential
use restriction." Reply Br. ofAppellant at 7-8. The Association reads these cases toobroadly. In

### MainsFarm, "[w]e caution[ed] that the interpretation ofa particular covenantis largelydependentuponthe facts ofthe case athand." 121 Wn.2dat 827. We held the operation ofan adult family home violated a covenantrestrictinguse to "'single family residential purposes only"' because it was '"more institutional in nature than
... familial"'; "'[t]he single-familyresidential nature ofdefendant's use ofher home [was] destroyed by the elements of commercialism and around-theclockcare."'

### !d. at 813, 821 (emphasis omitted). Similarly, in

### Metzner, weheld the operation ofa child day care violated a provision requiring properties '"beused for
-11-Wilkinson, et ux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### residential purposes only"' because it involved the exchange ofmoney for care of personsunrelated to the homeowner. 125 Wn.2d at 447, 451 (emphasis omitted). The Wilkinsons' short-term rental oftheir properties is distinguishable from the commercial uses in Mains Farm 

### and Metzner. 

### Both the operations in Mains Farm 

### andMetzner

### provided some form ofon-site servicethat theWilkinsons do not provide to their guests. Thus, the Wilkinsons' short-term rentals do not, without more, violatethe 1988/1992 covenantprohibiting 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 Associationdoes, toprohibitunrelatedpersonsfromresidingwithinChiwawawould require us to read the provision out ofcontext. The "single family, residential use" restriction is incorporated into a provision that restricts the type ofstructures 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 inits facts; the question is whether the relevant facts inRoss are different from the facts here. They are not. Just as inthis case, theresidents inRossleased their homes to short-term renters and the homeowners' association argued that they were making commercial use ofthe 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 suchparcel"' because thatuse is residential, not commercial. Id. at44, 52 (alteration in original). The court explained that the single family residence restriction "merelyrestricts use ofthe property to residential purposes," id. at 52, which is consistent with a residential renter who uses a home "forthe purposes ofeating, sleeping, and other residential purposes," id., because that use "is identical to [the homeowner's] use ofthe property, as a residence, orthe use made by a long-termtenant." 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 ormodifythe written word." Hollis, 137 Wn.2d at 695. -12-Wilkinson, 

### et ux., 

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



### canbebuilt and how far from the front line theymust bebuilt. Read in context, the single-family covenant restricts onlythe type and appearance ofbuildings that may be constructed on the lot, not who mayreside 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 OtherPurposes, 1A.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 apartner outside ofmarriage. We reject "forced or strained" interpretations of covenant language ifthey 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-termrentals. We merelyhold that the Chiwawa RiverPines community did not do so through covenants allowing rentals while prohibiting commercial uses and limiting homes to single-family structures.

-13-Wilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### IIA SimpleMajority Sought To Deprive ChiwawaLandowners of Their PropertyRights, Inconsistent with the GeneralPlan 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 ofrentals, as the dissent believes,justthat
a majority ofChiwawahomeowners 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 couldbechangedbymajorityvote so long as the changes were consistentwiththe general plan,theydidnotbuyinto the creationofnewrestrictions unrelated to existing ones. In Washington, the authority of a simple majority ofhomeowners to adopt
new covenants or amend existing ones in order to place new restrictions on the use ofprivate property is limited. When the governing covenants authorize a majority ofhomeowners to create new restrictions unrelated to existing ones, majority rule prevails "provided that such power is exercised in a reasonable manner consistent withthe generalplan ofthedevelopment." Shaferv. Bd. ofTrs. of SandyHook Yacht ClubEstates, Inc., 76Wn. App. 267,273-74,883 P.2d 1387 (1994). However, when the general plan ofdevelopment permits a majorityto change the covenants but not create new ones, a simple majority cannot add new restrictive covenants that are inconsistent with the general plan ofdevelopment or have no relation to existing covenants. See Ebel v. FairwoodParkIIHomeowners'Ass'n, 136 Wn. App. 787, 793, 150 P.3d 1163 (2007); Meresse v. Stelma, 100 Wn. App. 857, 865-66,999 P.2d
-14-

### 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 whichhave no relation to existing ones"' and deprive them oftheirproperty rights. Meresse, 

### 100 Wn. App. at 866 (emphasis omitted) (quoting Lakeland, 

### 459 N.E.2d at 1167, 1169). As the Court ofAppeals observed, "'[t]he law will not subject a minority oflandowners to unlimited and unexpected restrictions on the use oftheir 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 describedtheprecise contours ofwhen an amendment wouldbe "consistentwiththe general plan ofdevelopment," 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 generalplanofdevelopment merely authorized a majority ofowners "to changetheseprotectiverestrictions and covenantsinwhole orinpart." CP at 83; see Lakeland, 

### 459 N.E.2d at 1167, 1169 (interpreting a covenant that permittedchanges to "'thesaidcovenantsinwhole orinpart'"aspermittingchanges "not the add[ition] ofnew covenants which have no relation to existing ones"); see also Meresse, 

### 100 Wn. App. at 864-66 (emphasizing that its analysis ofa covenant allowing a majority '"to change or alter [the covenants] in full or in part"' was in accord withLakeland, 

### whichinterpreteda similarprovision as allowing changesbut not the addition ofnew covenants unrelated to existing ones (emphasis omitted)).

-15-Wilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1


### Thus, for amendments bymajority vote to be valid in Chiwawa, such amendments must be consistent with the general plan ofdevelopment 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 tooktitleunderthese covenantswere not onnoticethat short-termrentals might be prohibited without their consent. The Association defends its actions as consistent with the general planbecause it did not ban all

### rentals,just some

### rentals. See 

### Reply Br. ofAppellant 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 

### ofnew covenants bymajority vote. In distinguishing between these types ofcontracts, we respect the expectation ofthe parties and the contract they entered. While it is true that in Shafer, 

### the court upheld the adoption ofnew restrictions on outdoor storage ofinoperativemotorvehicles and commercial fishing, even though no such rule had previously existed, the court did so only because the dissenting homeowners "had notice ofthe reservation ofpower" that allowed the homeowner corporation to create new covenants that benefited the community. 7 6Wn. App. at 270, 272, 277. The Chiwawahomeowners didnot. We reject the Association's position in favor ofprotecting the reasonable and settled expectation oflandowners in theirproperty. 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
-16-Wilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### was '"consistentwiththegeneralplanofdevelopment'-bylookingto 'thelanguage ofthe 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) (quotingMeresse, 

### 100 Wn. App. at 865). While it is true that when determining whether an amendment is consistent with the generalplan of development we look to the language ofthe covenants, their apparent import, and the surrounding facts, the dissent misapprehends the inquiry at issue in Meresse. 

### Unlike the covenants in Shafer, 

### the covenants inMeresse 

### did not allow a majority to create new covenants but onlyto change existing ones. 100 Wn. App. at 864-65. Thus, for the amendment inMeresse 

### to bevalid, ithadto bebothconsistent withthe general plan ofdevelopment and related to an existing covenant. Accordingly, the homeowners argued that the amendment regarding the relocation ofan access road
was not a new wholesale restriction but rather a change to the preexisting '"road maintenance"' covenant regarding road '"construction'" and '"repair.'" 

### Id. 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, byroadrelocation at the majority's whim." Id. 

### at 866-67. Like the covenants inMeresse, 

### the Chiwawa covenants prohibiting nuisance
or offensive uses or the display of excessive rental signs would not have placed Chiwawahomeowners onnotice that short-termrentals wouldbeprohibited. Thus,
-17-Wilkinson, et

### ux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### the2011 amendmentwas unrelatedto anyexisting covenant. The Associationcould not adopt the restriction withoutunanimous consent. This is the contract into which theparties bought and the expectation that we must uphold. III The 2007Survey Comments and Testimony of Residents Were ProperlyExcluded 

### We also affirm the trial court's exclusion ofthe homeowners' comments in the 2007 survey and portions ofthe declarations ofthree Chiwawa residents: Judy Van Eyk, James Padden, and Gloria Fisk.
a. 2007Survey 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 ofthe 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. TheAssociationdoes notdisputethatthe 2007 surveycommentswerehearsay butarguesthattheyfall withinthejudge-madeexceptionfollowed inSimon v. Riblet Tramway Co., 

### 8 Wn. App. 289, 505 P.2d 1291 (1973). Br. ofAppellant 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, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1


### (1969),4 

### regarding the inherent trustworthiness and reliability ofsurveys compiled by disinterested authorities in published materials. In 

### Nordstrom, this court held a publishedindustrymanual onthe safetyofladderswas admissible, althoughhearsay, because it was "producedbypersons or groups having special knowledge regarding the subjectunderdiscussion, andhavingno motiveto falsify, buthavingratherevery 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 byinterested homeowners as part ofa contentious vote overproperty rights and compiled by an organizationthat was interestedinthe outcome. As such, the comments do nothave the hallmarks ofinherentlyreliable evidence. We affirmthe trial court's decisionto strikethese hearsay comments. 

### b. IndividualResidents'Declarations The trial court also properly struck various portions ofdeclarations by Judy Van Eyk, James Padden, and Gloria Fisk. An affidavit supporting a motion for summaryjudgment "shallbemade onpersonal knowledge [and] shall set forth such facts as would be admissible in evidence." CR 56(e). A lay witness may testifyto
4 Although both Simon and Nordstrom predate the adoption of Washington's EvidenceRules, they are basedonprinciples "substantiallyin accordwith" 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 bythe public orbypersons inparticular occupations," id. at§ 803.01, at 803-5. 

### -19-Wilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### her opinions and inferences, but this testimony must be "rationally based on the perception ofthe witness." ER 701. Thetrial courtproperlyexcludedportions ofMs. VanEyk's andMr. 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 ofyear 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-monthtermrental, andopinesthat "[p]laintiffs' goal inthislawsuitis toprotect their businesses and bottom line." CP at 1082-83. Mr. Padden's declaration similarly consists ofopinions. Mr. Padden conjectures that "it was clear that the developer, Pope & 

### Talbot, intended to create a community ofsingle families," that inthe early days ofthe development, "[n]o one ...was renting" or "advertisingtheir homes" or "had a commercial license for their rental businesses," that "[t]he community's focus was onproviding an enjoyablerefuge for families, notto provide
an opportunity to make money," and that the current state ofaffairs "is not [what] thedeveloperintended." CP at 1085-86. Neitherthe developers' intent, the activities ofall otherresidents, themotivations ofotherChiwawahomeowners, northe desires ofstrangers to move into the community are withinMs. Van Eyk's orMr. Padden's personal knowledge orperceptions. Therefore, the trial court correctly struckthem. The trial court also properlyexcludedMs. Fisk's statementthat the boardhad threatened enforcement action against ahomeowner for renting outhisproperty "for less than one month-the same type ofactivity at issue in this lawsuit." CP at 992.
-20-Wilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1


### Although Ms. Frisk, as the Association's then-president, hadpersonalknowledge 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 violatethe covenants, CP at 180, 221; see Wilkinson, 

### 2011 LEXIS 1336, at *7, which is not "the same type ofactivity at issue inthis lawsuit." CP at 992. The trialjudge did not errbyexcluding 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 2011 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 inconsistentwiththe 198811992 covenants, itcannotbeadoptedbya simplemajority vote ofChiwawahomeowners. Therefore, the 2011 

### amendment barring short-term rentals was invalid. We affirm.

-21-Wilkinson, etux., etal. v. Chiwawa Cmtys. Ass 'n, 86870-1



### WE CONCUR:

-22-Wilkinson, et a!. v. Chiwawa CommunitiesAss '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 oflaw that an existing restriction limiting the number and size of"forrent" signs that a resident may display on the property conclusively proves intentthat rentals ofany duration were consciously considered when the covenants were written. I cannot agree with this incredible supposition. The majority also concludes as a matter oflaw that the covenants did not reserve authority to a majority ofassociation members to ban rentals ofunder 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 ofnew restrictive covenants. Although some courts recognize the distinction, the better analysis is presentedby courts that have wisely rejected it. This court should rejectthe distinction as well.No. 86870-1 Madsen, C.J. (dissenting)
Both the question ofwhatthe existing covenants mean in regard to duration, if anything, and the question whether the covenants reserved powerto a majority to impose
a durational ban on rentals should be remanded so that the parties may submit extrinsic evidence, ifany is available, to illuminate the meaning ofthe covenants. Discussion The questions posed by this case are twofold: What, ifanything, did the restrictive covenants say about renting property for shortterms prior to adoption ofthe explicitban
on short-term rentals, and did the reservation ofpowerprovision in the covenants authorize a majority ofhomeowners to adoptthe ban on short-term rentals. The primary responsibility ofa court when faced with a dispute about the meaning ofrestrictive covenants is to determine the intent ofthe 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 HomeownersAss'n

### v. Worthington, 121 Wn.2d 810, 815, 854 P.2d 1072 (1993). 1

1There 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 ofcases. In Riss, the court expressly held that in cases involving disputes "among homeowners in a subdivision governed by the restrictive covenants [the] rule[] ofstrict 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. 2No. 86870-1 Madsen, C.J. (dissenting)

Whether the existing covenants addressedduration of rentals The existing covenants recognized thatproperty may be rented. A covenant restricting the number and size of"forrent" signs thathomeowners may place on their property says in part: No sign ofany kind shall be displayed to the public view on any lot, tract or subdivision thereofin the plat, except one sign ofnot more than 3 feet square giving the names ofthe occupants ofthe lot, tract, or approved subdivision thereof, and one sign ofnot 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 oflimited size and number. The obvious purpose is to prevent multiple or large signs and the immediate concern is also obviousaddressing the appearance (aesthetics) ofthe properties and the residential neighborhoods. This interpretation is fortified by the placement ofthe 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 ofon any lot, vacant or otherwise." Id. Plainly, the covenant is concerned primarily with property upkeep and appearance. The restriction also implicitly acknowledges thathome rentals may occur. On its face, however, this is all it does.

3No. 86870-1 Madsen, C.J. (dissenting) But, astonishingly, the majority concludes that the sign restriction ''proves
... that the drafters anticipated rentals and consciously decidednot to limittheir 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 notto 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 ofrentals will depend on extrinsic evidence. As with other contracts, extrinsic evidence may be admissible to aid in determining the intended meaning ofrestrictive covenants underBerg 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 Bergprinciples in this context,just as with other contracts, such evidence cannot include evidence ofa party's unilateral or

4No. 86870-1 Madsen, C.J. (dissenting) subjective intent, evidence to show intent independent ofthe 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 intentto address length ofrentals. When extrinsic evidence is to be considered under the Berg line ofcases, it is generally for the trier offact. In Berg, 115 Wn.2d at 667, the court adopted Restatement (Second) of Contracts§ 212 (1981), which provides: "(1) The interpretation ofan integrated agreement is directed to the meaning ofthe terms ofthe writing or writings in the light of the circumstances, in accordance with the rules stated in this Chapter. (2) A question ofinterpretation ofan integrated agreement is to be determined by the trier of fact ifit depends on the credibility ofextrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence. Otherwise a question ofinterpretation ofan integrated agreement is to be determined as a question oflaw." Berg, 115 Wn.2d at 667-68 (emphasis added) (quoting RESTATEMENT§ 212). Whether the trier offact must make these determinations does notrequire that ambiguity appear on the face ofthe 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 ofwhether the contract's terms are ambiguous. Extrinsic evidence is not admissible, however, to show intention independent ofthe
2Berg addresses parol evidence (extrinsic evidence) used to interpretthe meaning ofwhat 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 ofparol evidence [(extrinsic evidence)] to add to, subtract from, modify, or contradict the terms ofa fully integrated written contract." ld. 5No. 86870-1 Madsen, C.J. (dissenting)
contract." Brogan &Anensen, LLCv. 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" signsproves a conscious decision to permit rentals ofany duration. The sign restrictions do not on their face disclose anything about duration ofpermitted rentals. Ifrelevant intent is to be found in the restrictive covenants prior to adoption ofthe ban, it must be found by a trier offact based on extrinsic evidence. Whether the reservation of power in the covenants authorizeda 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 LakelandProperty OwnersAss '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 LakelandProperty Owners and other cases, the Colorado Supreme Court recognized a split injurisdictions on the matter. Evergreen Highlands Ass 'n v. West, 73 P.3d 1, 4-7 (Colo. 2003). 6No. 86870-1 Madsen, C.J. (dissenting)
The relevant language in the covenants here authorizes a majority ofthe association members to agree "to change these protective restrictions and covenants in whole or in part." CP at 87. Instead ofreading 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 Lakelandconclusion that 'change or modify' can only apply to the alteration ofexisting covenants, and not the addition ofnew and different ones, is not well-founded. Webster defines 'change' as 'to make different."' !d. (quoting Webster's ThirdNew InternationalDictionary 373 (1986)); see also Ticor Title Ins. Co. v. Rancho Santa FeAss '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 ofa term." Evergreen Highlands, 73 P.3d at 6. 3 I do not agree with the majority's view that we should treat reservation ofpower provisions differently depending on whether a change or amendment is made to an existing restriction or is by way ofa 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 thatthe differing outcomes in the cases were actually based on the different factual circumstances and the severity ofthe consequences presented rather than merely onthe distinction between a change to a covenant and creation ofa new covenant. Id. 7No. 86870-1 Madsen, C.J. (dissenting)
result can be that a relatively minor new restriction can be precluded ifthere 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 ofdevelopment, 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 ofthe 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 ofthe 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 ofdevelopment. E.g., Shafer v. Bd. ofTrs. of SandyHook 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 ofthe respective grantees), and a clause therein whereby the grantor reserves to itselfthe power at any time in its sole discretion to change or even arbitrarily abandon any such general scheme or plan ofdevelopment (a power which is solely for the benefit ofthe grantor). Flamingo RanchEstates, Inc. v. Sunshine RanchesHomeowners, Inc., 303 So. 2d 665, 666 (Fla. App. 1974), 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
8No. 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 oflaw. But in many cases extrinsic evidence will be available that bears on the matter ofwhether 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 ofthe contract, the subsequent conduct ofthe parties and the reasonableness ofthe 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 ofsurrounding 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 ofthe area and ofother 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 ofrecreational activity in the vicinity that homeowners can take advantage ofby making short-term rentals, it will be less likely that a ban on short-term rentals is reasonably consistent with the restrictive covenants.

9No. 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. Ifthis proves to be the case, then the ban adopted by the Association cannot be given effect because it is in
excess ofthe authority reserved by the covenants. But at this point, remand for consideration ofthe question ofconsistency with the existing covenants, including whetherpossible 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 utilizedsolely for singlefamily 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 ofthe same kind as other renters. Itseems 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 ofneighbors and their neighbors' peace and quiet as ifthey were residents on a more permanentbasis. It cannot be gainsaid that some on vacation consume alcoholic beverages to a greater degree than 10No. 86870-1 Madsen, C.J. (dissenting) they ordinarily would, with consequent effects on their behavior. I do not doubt that many ofthese behaviors occur with residents as well as vacationers, but it seems to be to beputting blinders onto conclude thatthere 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 ofseasonal changes, there will undoubtedly be a cumulative effect ofnoise, traffic, and disruption ofneighborhoods from successive short-term rentals. I recognize that many courts have refused to acceptthe distinction, and without factual, almost scientific evidence, my view is not likely to prevail. Nonetheless, I think it almost disingenuous to act as ifrentals 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 ofextrinsic evidence on the questions ofwhether 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. Forthe reasons stated, I dissent.

11No. 86870-1 Madsen, C.J. (dissenting)



# l

12

### Wilkinson, et ux., etal. 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 ofthe 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 abroad legal holding that all rental activity-presumably includinghourlyrentals-isprotectedby 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-specificWilkinson, et ux., etal. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 (Gordon McCloud, J., Dissenting)

nature ofthe 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 onthe duration ofrentals 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 ofthe 2011 amendmentprohibitingrentals ofless 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 ofless than 30 days. (B) That specificallythe Pope & TalbotProtective Covenants and the 1988 and 1992 Protective Covenants allow residential rentals ofany duration

- including residential rentals ofless than 30 days. (C) That a prohibition on commercial uses oflots as expressedby 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 ofany duration

- including residential rentals for less than 30 days. (D) That to the extent that the 2011 Amendment
... seeks to bar residentialrentals ofany duration, includingthose oflessthan 30 days, it is unenforceable.
2Wilkinson, 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 invalidatesthe 2011 amendmentbarringrentals ofless than 30 days, it alsoprospectivelyinvalidates

### any limitonthe durationofrentals inChiwawa 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 onthebasis ofissues setforth bytheparties in theirbriefs." See majority at 2 n.l. Unfortunately, the majority does not tell us which parts ofthe trial court's order it has declined to address. This is sure to cause considerable confusion, both as to the meaning ofthe majority's opinion and as to the purpose and effect ofRAP 12.1(a). The purpose ofRAP 12.1(a) is to encourage efficiency and fairness and to give parties a certain degree ofcontrol overthetheory oftheir case. Tothese 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] necessaryto reach aproper 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 ofthe summaryjudgment 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 summaryjudgment order. See majority at 2 n.l (citing Br. ofAppellant 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 summaryjudgment order stated that "to the extent that the 2011 Amendment
... seeks to bar residential rentals ofany duration, including those ofless 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 ofthe trial court's order banning rental limits of"any duration." !d. Certainly, RAP 12.l(a) is not a license to do so. 3Wilkinson, 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 ofrental duration, allow rentals ofany duration As the majority correctly observes, a court's primary objective in interpreting restrictive covenants is to determinethe drafter's intent,2 andifthatintentis notclear from the covenants' plainlanguage, thenthe courtmay consider extrinsic evidence. 3 According to the majority, however, the language of the covenants makes it "manifestly clearthat the drafters [ofthe ChiwawaRiver Pines covenants] intended
Second, despite the majority's protestations to the contrary, its reasoning does affirm the trial court's summaryjudgment in its entirety. The effect ofthis 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, ifthat 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. Ifthe majority believes that shorterterm 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). 4Wilkinson, 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 whattype ofrental activity the drafters contemplated-long-term,transient, orboth. 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 ofthe ambiguous language is at least in part a question offact. Some lower courts, however, have erroneously characterized the interpretation ofa restrictive covenant as solely a question oflaw. 4 

### Both the trial court and the majority made that error here. Inthe trial court, the Wilkinsons arguedthat any amendment "seek[ing] to bar residential rentals of any duration, including those of less than 30 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

4See 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). Butsee Ross, 148 Wn. App. 

### at 46.


### 5Wilkinson, 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, whichlimitlots to "singlefamily residential use." 6 Thetrial court agreed, concluding that "there really [we]ren't any facts
... in dispute, particularly when
onereads theRoss case" andgranted summaryjudgmentfor theplaintiffs. 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 oflaw 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, underRoss, "[i]fa vacationrenter 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 ofenjoyment to the common areas and facilities to the members ofhis family, friends, and tenants."' !d. (first alteration in original).
6 CP at 85. 6Wilkinson, 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 ahighly fact-specific record. 7 

### Thatrecord contained a declarationby one ofthe 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 vacationrentals 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 oflaw that short-term vacation rentals are always consistent with residential and single-family use.

7 

### Indeed, the Ross 

### court acknowledged the factual nature ofthe question before it, noting that "[w]hile interpretation ofthe covenant is a question oflaw, the drafter's intent is a question offact." Ross, 

### 148 Wn. App. at 49.
7Wilkinson, 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 Butthe question beforethetrial courtwas different. Itwaswhether the Association could validly limit short-termrentals pursuantto the Pope & Talbot and 1988/1992restrictive covenants, whichprohibitednuisances and offensiveuses, 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 RiverEstates ResidentialAss 'n, 100 So. 3d 569, 578-79 (Ala. Civ. App. 20 12) (holding that "property is used for 'residential purposes' whenthose occupying it do so for ordinary living purposes" and therefore "so long as the renters continueto 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'sAss'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 ofthe amendment at issue in this case is a question offact. 8Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 (Gordon McCloud, J., Dissenting)
rental advertising, because they limitrental signageto one signperlot. Forthe 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 ofone similar covenantprovision in a casewith 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 ofany 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 decidednotto limittheirduration." Majority at9 (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 ofthe 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 whetherrestrictive covenantprovision addressed "height" as opposedto "view," the trial court properly considered extrinsic evidence of the way the provision had historically been enforced). 9Wilkinson, et ux., etal. 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 offact. 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 ofdevelopment."' Majority at 14 (quoting Shafer v. Bd. ofTrs. of SandyHook 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 oflaw 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). Butin 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

10Wilkinson, 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 ofrestrictive 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 ofAppeals found the creation ofanentirelynew covenantto be "consistentwiththe generalplan ofdevelopment." 

### 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. FairwoodParkIIHomeowners'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 thatthe court inMeresse 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, thatcaveat does not distinguishthe language ofthe covenants at issue in Shafer. See id. at 865-66. Rather, it distinguishes the "nature" ofthe disputed amendment, i.e., its relation to existing covenants. !d. ("In Shafer, the existing covenants were extended to a restriction ofa 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 ofdevelopment. 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. 11Wilkinson, et ux., et al. v. Chiwawa Cmtys. Ass 'n, No. 86870-1 (Gordon McCloud, J., Dissenting)


### whetherit is '"consistentwiththe general plan ofdevelopment"'-bylooking to "the language of the covenants, their apparent import, 

### and the surroundingfacts." Meresse, 100 Wn. App. at 865 (emphasis added and omitted) (quoting 

### Shafer, 76 

### Wn. App. at 274). 

### In some cases, a court will be ableto ascertainthereasonableness ofa disputed amendment as a matter law, withoutundertaking any factual inquiry. 11 

### Forthe reasons outlined above, however, this is not such a case. In its oral summaryjudgment ruling, the trial court below acknowledged the factual component ofthe "reasonable and consistent" inquiry. 12 

### That court's orders, however, do not reveal any consideration ofthe facts "surrounding" the drafting of the original Pope & Talbot covenants or their consolidation in 1988/1992. This omissionmayreflect aneed for guidance; unfortunately, themajorityprovidesnone.

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 ofthe [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 ifit differs fundamentally from the obligations described inthe 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, 76Wn. App. at271).
12 See 1 VRP at 31-32 ("[I]n assessing what constitutes a reasonable manner consistentwiththe generalplan ofdevelopment, a court shouldlookto the language ofthe covenants, their apparent import, andthe surrounding facts."). 12Wilkinson, et ux., etal. v. Chiwawa Cmtys. Ass'n, No. 86870-1 (Gordon McCloud, J., Dissenting)
I would take this opportunity to clarify what "surrounding facts" are relevantto the "reasonable and consistent" inquiry. While no Washington case precisely describes the scope ofthe "surrounding facts" inquiry, the North Carolina Supreme Courtprovides 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 cannotunreasonablyrestrictpropertyrental byimplementing a garnishmentor 'taking' ofrents (whichis essentially an assessment); although it may be reasonable to restrict the frequency ofrentals to preventrented 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 approachrightly focuses on landowners' reasonable expectations. "The character of the community" necessarily informs these expectations; it should therefore inform a court's assessment ofwhat is reasonable

13Wilkinson, 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 thatthe meaning ofthe disputed covenants inthis case was a question oflaw controlledbypriorprecedent. Themajority makes the same error. This deprives the parties ofan 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 ofthe need to protectthe property owner's legitimate expectations, courts have considered the "character ofthe community" at the time the property was purchased and whether the covenants were enforced so as to maintain this character over time. Se. JurisdictionalAdmin. Council, Inc. v. Emerson, 363 N.C. 590, 597-98, 683 S. E. 2d 366 (2009) (considering character ofthe community "atthe time the plaintiffproperty 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). 14Wilkinson, et ux., et al. v. Chiwawa Comtys. Ass 'n, No. 86870-1 Gordon McCloud, J., Dissenting