By Don Nelson
Okanogan County Superior Court Judge Chris Culp reiterated in a recent ruling that the legal dispute over a small cabin in the Mazama area should go to trial, and again dismissed the defendants’ request to throw the case out.
In a brief, bluntly worded ruling issued Jan. 30, Culp said that a “trial is necessary” to determine the “material facts” of the plaintiffs’ claims that the cabin’s construction violates long-standing property covenants meant to protect scenic views from the Methow Valley floor.
A non-jury trial, with Culp presiding, had earlier been scheduled for Aug. 12. A mandatory settlement conference, at which the parties will explore the possibility of a pre-trial settlement, is scheduled for July 8.
The small structure, given a county building permit as a “hunting cabin” to be used only 60 days a year, was built on the crest of Flagg Mountain overlooking Mazama. The cabin has no running water, electricity or septic system. It is built on pylons that thrust the structure off the edge of the mountain, where it is easily visible from many points in the Mazama area.
The suit is being brought by former owners of the 10.5-acre site on which the cabin is built, who cite what they claim are binding covenants prohibiting any structure that compromises views from the valley floor.
On Jan. 14, Culp denied a motion by the defendants to dismiss the case. The defendants are the cabin’s Seattle-based owners James Dow, Tom and Jeannie Kundig, and Ben Rand. Kundig is an internationally acclaimed architect whose most visible project in the valley is the Rolling Huts Cabins development on Highway 20.
Culp dismissed the defendants’ assertion that the remaining plaintiffs, Steve and Kristin Devin of Mazama, do not have standing to bring suit. The Devins no longer own property adjacent to the controversial cabin, but did own and still own property with a direct view of Flagg Mountain at the time the protective covenants were written.
The lawsuit against the hut owners was filed in April 2013 by several of the covenant signers. Only the Devins remain as plaintiffs.
Culp’s earlier recent ruling concluded that “a genuine issue of material fact exists about whether the original [ownership] group intended that [the] Devins be a third-party beneficiary by virtue of their specific ownership in direct line of sight to Flagg Mountain.” On that basis, Culp dismissed the plaintiff’s request for a summary dismissal of the lawsuit.
The plaintiffs responded with a motion asking Culp to reconsider that decision, arguing that the judge did not acknowledge certain rules of evidence and “rewrote” the covenants.
“Defendants misconstrue the court’s use of, and reference to, various pieces of evidence for summary judgment purposes as opposed to trial,” the judge responded. He added that “the court did not write its own version of the covenants (nor “improperly rewrit[e] them as suggested); rather, their meaning and applicability will ultimately be determined at trial.”
Culp concluded that “the denial of summary judgment makes no determination as to final decisions on the merits of plaintiffs’ claims. It only means there are genuine issues regarding the things defendants claim that plaintiffs must prove in order to prevail.”
A nonprofit organization, Move the Hut, was formed last year to back a legal challenge to the cabin. It has raised about $30,000 in donations and matching contributions to fund the lawsuit. Seattle attorney David Bricklin of Bricklin & Newman is representing the plaintiffs. Wenatchee attorney Michelle Green of Jeffers, Danielson, Sonn & Alyward, represents the cabin’s owners.