BY DON NELSON
Okanogan County Superior Court Judge Chris Culp ruled Tuesday (May 28) that a lawsuit filed to enforce property covenants on a small cabin atop Flagg Mountain can proceed, but without two of the original plaintiffs.
Culp dismissed motions by Wenatchee attorney Michelle Green, representing the owners of the cabin near Mazama, to disqualify all the plaintiffs in the suit, but agreed with Green to eliminate Lee and Theresa Miller from the legal action.
The other plaintiffs – John and Rayma Hayes and Steve and Kristin Devin – can proceed with the suit, which was brought to enforce long-standing covenants the plaintiffs say were violated when the cabin was built last fall.
Representing the plaintiffs at Tuesday’s hearing in Okanogan was Claudia Newman of the Seattle firm Bricklin & Newman. Ultimately, the plaintiffs are asking the court to impose a permanent injunction that would order the defendants to abide by the provisions of covenants – in other words, remove the cabin from its current location.
The Seattle-based owners of the cabin are James Dow, Tom and Jeannie Kundig, and Ben Rand, each party holding one-third of the property. They are all named as defendants in the suit.
Who has standing?
The main point of contention at the hearing was whether any of the plaintiffs have legal standing to enforce the covenants and thus bring a lawsuit.
In 1986, the six plaintiffs, along with John Crowl, Jolyon Miller and Dori Miller, bought three contiguous lots atop Flagg Mountain. At that time, they agreed on restrictions and covenants for future development of the properties, according to the legal filing. In 2011, Jolyon Miller sold one of the three Flagg Mountain lots to the defendants, according to the lawsuit. In fall 2012, construction began on the cabin, the lawsuit said.
Green argued that none of the plaintiffs now has either direct or “third-party beneficiary” status to seek enforcement of the covenants because none of them are property owners any longer.
That argument was complicated by the somewhat surprising revelation that the Hayeses have purchased an 18 percent share of property adjacent to the cabin, and that the sale was concluded only last Friday (May 24).
That purchase, made after the lawsuit was filed, in itself gives the Hayeses standing no matter when the sale concluded, Culp ruled over Green’s objection. Newman told the judge that the purchase had been in the works for some time.
Newman argued that the Hayeses’ recent property purchase gives them “undisputed” standing in the legal action. “If you have ownership, you have standing,” she said.
The Millers were eliminated from the suit because they have no ownership stake and are not otherwise affected by the cabin.
The Devins remain in the suit because they have standing to claim they have been affected as third-party beneficiaries of the covenants. The so-called “hanging hut” is visible from the Mazama Ranch House, which they own, as well as from other property they own in the area.
Putting aside his ruling on the Hayeses’ land purchase, which Culp suggested Green may have an opportunity to appeal, the judge said it’s clear the Devins have standing because they own property that benefits from the covenants – and thus, it could be argued that they have been harmed by any alleged violation of the covenants.
Newman said that all the original signatories had the same intent: to protect not only the Devins’ property but also other property owners on the valley floor. “It was written for lands that have a direct line of sight to the [cabin] property,” she said.
From the valley floor
The cabin is described in its building permit, issued in August 2012, as a “recreational cabin” of about 1,300 square feet that can only be occupied for 60 days a year.
The small structure has ignited controversy in the Mazama area because its silhouette clearly breaches the ridgeline from several vantage points – a visual violation of covenants placed on the property more than 25 years ago, the plaintiffs claim.
“The plaintiffs created the covenants, in part, to be sure that any future development of the Flagg Mountain property was done in a manner that would not be visually obtrusive as viewed from the plaintiffs’ properties on the valley floor and/or when they were spending time in the Mazama area,” according to the plaintiffs’ filing.
Culp, a former Methow Valley resident, asked Green if, theoretically, even he could be a plaintiff because he would see the cabin while driving through the valley. Green pointed out that there was no clear definition of what is meant by the “valley floor” in the covenants, and argued that the general public can’t be regarded as third-party beneficiaries because that status must be specific.
The new cabin’s owners have said that they met all legal requirements, and that when finished the structure won’t be nearly as noticeable. Work on the cabin resumed recently.
Culp said he would preside over a trial, if there is no intervening settlement, and that he didn’t expect a jury trial. No trial date was set.