Date: 04-30-1999

Case Style: Hartstene Pointe Maintenance Association v. John E. Diehl

Case Number: 94-2-00285-0

Judge: James Swayer

Court: Superior Court, Mason County, Washington

Plaintiff's Attorney: Robert William Novasky of Maureen, Mulane, Falecki, Burgess, Fitzer, Leighton & Phillips, Tacoma, Washington

Defendant's Attorney: Johne e. Diehl, Shelton, Washington, pro se

Description: Condominium By-Laws Violation - Hartstene Pointe is a 530-lot community formed by a subsidiary of the Weyerhaeuser Corporation on Hartstene Island in Mason County. Lots in the community are subject to restrictive "Covenants, Conditions, and Restrictions" (CC&Rs), whose purpose is "to protect the value and desirability of the aforesaid real property." These covenants are enforced by an Architectural Control Committee (ACC), appointed by the Hartstene Point Maintenance Association's Board of Directors (HPMA).

Article VI of the CC&Rs governs "Architectural Controls," and provides, in relevant part:

No landscaping work, including the removal of natural trees, shrubs, brush, and other ground cover, shall be undertaken on any Platted Residential Lot until the plans and specifications showing the nature and other details of the proposed work shall have been submitted to and approved in writing by the Board of Directors of the Association or by the aforementioned architectural control committee appointed by the Board.

In May 1992, John Diehl, owner of lot 92 in Hartstene Pointe, submitted an application to remove trees from his property in order to construct a residence. Diehl proposed cutting over 30 trees. Diehl's application was approved on condition that he not cut a single 26-inch diameter cedar located approximately 15 feet from the south side of his proposed home. The tree was located in the middle of an area where Diehl proposed to build a "Japanese-style garden." Diehl appealed the ACC decision to the Board of Trustees, which eventually denied it.

Nevertheless, Diehl removed the tree. No further action was taken until a separate dispute over road maintenance arose approximately one year later. In December 1993, the new chairman of the ACC notified Diehl that a fine of $1,000 had been levied against Diehl for cutting the tree, as well as other fines relating to other disputed matters that are not the subject of this appeal. Diehl appealed the fines to the Board, which denied his appeal. The Board also imposed other sanctions, including the loss of his voting privileges in the HPMA.

In May 1994, the HPMA sued to abate alleged violations of several covenants; the HPMA also sought a monetary judgment and suspension of voting rights and use-privileges for HPMA common areas and facilities.

Outcome: Following a six day trial, the trial court invalidated fines against Diehl in the amount of $4,500, finding that the HPMA documents did not authorize the Board or the ACC to impose fines. But the court did find that Diehl "violated the laws of Hartstene Pointe when he cut the 26" cedar tree. . . ." The trial court concluded that "{b}ecause defendant violated the laws of Hartstene Point, he is subject to the penalties contained within those laws." The trial court ruled in favor of Diehl on several other issues, not the subject of this appeal, and thus ruled that neither party was entitled to attorney's fees.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reversed in part and remanded by the Court of Appeals of Washington, Division 2. See: 979 P.2d 854 (Wash.App. Div. 2 1999). Note: The date shown above is the date of the appellate court decision and not the trial date.