IN THE FOURTH JUDICIAL DISTRICT MAGISTRATE COURT OF ADA COUNTY STATE OF IDAHO ) ) ) ) ) ) ) ) ) )

Transcription

1 Brindee Collins, ISB# 9216 Christopher M. Tingey, ISB# 8556 VIAL FOTHERINGHAM LLP 6126 W State St., Suite 311 Boise, Idaho Brindee.collins@vf-law.com cmt@vf-law.com Telephone: (208) Facsimile: (208) Attorneys for Plaintiff IN THE FOURTH JUDICIAL DISTRICT MAGISTRATE COURT OF ADA COUNTY STATE OF IDAHO EAGLE SPRINGS HOMEOWNERS ASSOCIATION, INC., v. JAN RODINA, Plaintiff, Defendant. ) ) ) ) ) ) ) ) ) ) Civil No. CV MEMORANDUM IN SUPPORT OF PLAINTIFF S MOTION FOR SUMMARY JUDGMENT Plaintiff Eagle Springs Homeowners Association, Inc. ( Association or Plaintiff ), by and through its counsel of record, Vial Fotheringham, LLP, hereby submits this Memorandum in Support of Plaintiff s Motion for Summary Judgment. FACTUAL BACKGROUND The Eagle Springs Subdivision ( Subdivision ) is a 230-lot residential subdivision located in Boise, Idaho. The Subdivision is bound by the Declaration of Covenants, Conditions and Restrictions for Eagle Springs Subdivision ( Declaration ). (Compl. 2; Answ. 2 (admitted)). The Association is organized to serve as the means through which the owners of homes within the Subdivision may take action with regard to the administration, management, MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 1

2 and operation of the Subdivision in accordance with the Declaration and the Association s Bylaws and Articles of Incorporation. (Aff. of Nick L. Barber ( Barber Aff. ) 8). Defendant Jan Rodina owns Lot 30, Block 3 within the Subdivision, more commonly known as 9825 W. Big Springs Blvd., Boise, Idaho ( Lot or Property ). (Compl. 3, Answ. 2 (admitted)). The Association brought this action to enforce the Declaration binding Defendant s property. The Declaration requires owners living within the Subdivision to obtain written approval from the Association s Architectural Committee prior to constructing or altering any improvement on a lot. (Compl. 11; Barber Aff., Ex. A 4.1, 9.1). It also requires written consent from the Association s Architectural Committee prior to changing the established drainage pattern on a lot, (Compl. 19; Barber Aff., Ex. A, 4.12), and constructing a fence with a height of greater than six feet (6 ) on a lot. (Compl. 17, Barber Aff., Ex. A 4.12, 4.2.4(a)). The Declaration also prohibits owners from constructing a fence or retaining wall closer than twenty feet (20 ) from a street and erecting a fence, wall, hedge, high planting, obstruction or barrier... [that] would unreasonably interfere with the use and enjoyment of neighboring Building Lots and streets,... [or] constitute an undesirable, noxious or nuisance effect upon neighboring Building Lots. (Barber Aff., Ex. A 4.2.4(a), (d); Compl. 18). On May 9, 2016, Defendant requested and obtained approval from the Association s Architectural Committee for two minor improvements to his Property: 1) to repair and extend his fence on the east side of his Property to cover the full length of the house; and 2) for landscaping to repair and level the fence with the house. (Barber Aff., Ex. C). Thereafter, Defendant, without the prior written consent of the Association s Architectural Committee, erected a three-foot (3 ) retaining wall on his Lot and placed a six-foot (6 ) fence atop of the retaining wall. (Barber Aff., MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 2

3 Exs. M, N and O). In constructing the retaining wall, Defendant brought fill onto the property and changed the established drainage pattern of the lot. Id. By placing the fence on the retaining wall, the fence is now a nine-foot (9 ) fence and dwarves all other fences in the Subdivision, including all neighboring fences. Id. Additionally, the retaining wall and fence are located approximately 6-10 feet from the street, Cayuse Way, a significant, unauthorized encroachment into the twenty-foot (20 ) setback required by the Declaration. Id. During the construction, the Association noticed that the improvements were not in compliance with the approved architectural review application. (Barber Aff. 14). The Association notified Defendant of the violations and demanded that he stop construction. Defendant ignored the Association s requests and completed the construction. Id. 15. On or about September 6, 2016, Defendant submitted a second application to the Association s Architectural Committee. (Barber Aff., Ex. D). This second application sought postconstruction approval of the work performed by Defendant. Id. Using its discretion and following the plain language of the Declaration to which it is bound, the Architectural Committee denied Defendant s second architectural review application. (Barber Aff., 20, Ex. F). Defendant s construction of these improvements without prior written approval of the Association s Architectural Committee is contrary to the provisions of the Declaration. The Property remains in violation of the Declaration. The Association initiated this action on or about June 26, 2017, to enforce the Declaration. (Compl.). The Association seeks an injunction from the Court requiring the Defendant to remove the unapproved fence and retaining wall and return the property to the condition it was in prior to construction, or in the alternative, an Order permitting the Association to do so, accompanied by the Sheriff if necessary. Id. The Association further seeks MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 3

4 Judgment for its reasonable attorney fees and costs incurred herein and in enforcing any Order of the Court. Id. The Defendant filed an Answer by and through counsel on or about July 27, 2017, containing various admissions and denials and asserting the equitable affirmative defenses of waiver, laches or estoppel. (Answ.) The Defendant further alleges that the Association action was pursued by the Association in violation of the good faith and fiduciary duties of the members and officers of the board. (Answ. at 3-5). For the reasons set forth below, pursuant to IRCP 56 and based on the plain language of the Declaration, there is no genuine issue of material fact in this matter and the Association is entitled to Summary Judgment on all causes of action as a matter of law. STATEMENT OF MATERIAL FACTS 1. Plaintiff is an incorporated association of lot owners in the Brenson Subdivision No. 5 and other subdivision phases known collectively as Eagle Springs, organized under the laws of the State of Idaho to administer and enforce the Declaration. (Compl. 1; Answ. 2 (admitted)). 2. The Association was established and is governed by the Declaration of Covenants, Conditions and Restrictions for Eagle Springs Subdivision, recorded as Document , in the Recorder's Office of Ada County, Idaho. (Compl. 2; Answ. 2 (admitted); Barber Aff., Ex. A). 3. Defendant, Jan Rodina, is the owner or reputed record owner of the fee simple title in and to the following described real property in Ada County, State of Idaho: Lot 30 Block 3 of Brenson Subdivision No. 05, commonly known as 9825 W. Big Springs Blvd., Boise, Idaho (Compl. 3; Answ. 2 (admitted)). MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 4

5 4. Article II of the Declaration subjects all described and annexed property to its terms. This includes the Property. (Compl. 9; Answ. 2 (admitted)). 5. The Defendant purchased the Property subject to the covenants, conditions and restrictions contained in the Declaration. (Compl. 4; Answ. 2 (admitted)). These covenants, conditions and restrictions run with the land and are an equitable servitude upon the Defendant. (Compl. 5; Answ. 2 (admitted)). 6. Section 1.2 of the Declaration provides the purpose of the Declaration is to protect, enhance and preserve the value, amenities, desirability, and attractiveness of the Property; to ensure a well-integrated, high quality development.... (Compl. 6; Barber Aff., Ex. A 1.2). In addition, the restrictions are agreed to be in furtherance of a general plan for the... improvement and sale of the Property.... (Barber Aff., Ex. A, Art. II). 7. Section 3.1 of the Declaration defines the Architectural Committee as the Architectural Committee created by Grantor or the Association pursuant to Article IX hereof. (Barber Aff., Ex. A 3.1). 8. Section 3.8 of the Declaration defines Building Lot as a lot shown on the Plat upon which Improvements may be constructed. For voting and membership purposes herein, Building Lot shall mean each single-family residential Building Lot. Building Lot shall not include Common Area. (Barber Aff., Ex. A 3.7). 9. Section 3.12 of the Declaration defines Improvement as any structure, facility or system, or other improvement or object, whether permanent or temporary, which is erected, constructed or placed upon, under or in any portion of the Property, including, without limitation, residential structures, accessory buildings, fences, streets, drives, driveways, parking areas, sidewalks, bicycle paths, curbs, landscaping, walls, hedges, plantings, trees, living and/or dead MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 5

6 vegetation, rocks, signs, lights, mail boxes, electrical lines, pipes, pumps, ditches, waterways, recreational facilities, grading, road construction, utility improvements, removal of trees and other vegetation, plantings, and landscaping, and any new exterior construction or exterior improvement which may be not included in the foregoing. (Barber Aff., Ex. A 3.12) (emphasis added). 10. In order to carry out the purpose of the Declaration, [i]mprovements on the Property shall be made in conformity with the... Project Documents and [n]o Improvements on any portion of the Property shall be constructed, placed or removed... without Architectural Committee approval.... (Barber Aff., Ex. A 9.1). The improvements as permitted by the Architectural Committee must be approved in writing. (Barber Aff., Ex. A 4.1). 11. Section of the Declaration provides: No fence shall be allowed except as approved by the Architectural committee and in general conformance with the fence style depicted on Exhibit B, attached hereto and made a part hereof. The visual harmony and aesthetic appeal of the structures on the Building Lots and Improvements thereon, the Architectural Committee shall have the right to control the texture, design and color scheme of the outside walls, fences, roofs and patio roofs of all structures erected upon Building Lots, and to require landscaping.... (Barber Aff., Ex. A 4.2.3). 12. Section of the Declaration provides, in relevant part, as follows: Each Owner shall place fencing (as approved by the Architectural Committee) subject to the following restrictions: (a) Fence and walls shall not extend closer to any street than twenty feet (20 ) nor project beyond the setback of the principal building on the Building Lot. No fence MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 6

7 higher than six feet (6 ) shall be allowed without the prior approval of Ada County (if required) and the Architectural Committee. (b) All fences and walls shall be constructed and installed and maintained in good appearance and condition at the expense of the Owner of the Building Lot on which they are located and all damaged fencing and walls shall be repaired or replaced to original design, materials and color within a reasonable time after said damage occurs.... (d) No fence, wall, hedge, high planting, obstruction or barrier shall be allowed which would unreasonably interfere with the use and enjoyment of neighboring Building Lots and streets, and shall not be allowed if the same constitute an undesireable, noxious or nuisance effect upon neighboring Building Lots. (Compl. 18; Barber Aff., Ex. A 4.2.4). 13. Section 4.4 of the Declaration provides that [t]he Architectural Committee shall adopt and amend, from time to time, guidelines regulating landscaping permitted and required. (Barber Aff., Ex. A 4.4). 14. Section 4.12 of the Declaration provides: There shall be no interference with the established drainage pattern over any portion of the Property, unless an adequate alternate provision is made for proper drainage and is first approved in writing by the Architectural Committee. For the purposes hereof, established drainage is defined as the system of drainage, whether natural or otherwise, which exists at the time the overall grading of any portion of the Property is completed by Grantor, or that drainage which is shown on any plans approved by the Architectural Committee, which may include drainage from Common Area over any Building Lot in the Property. (Barber Aff., Ex. A 4.12). MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 7

8 15. Section 4.13 of the Declaration provides: [t]he Owner of any Building Lot within the Property in which grading or other work has been performed to a grading plan approved under applicable provisions of Ada County Code or by the Architectural Committee, shall maintain and repair all graded surfaces and erosion prevention devices, retaining walls, drainage structures, means or devices which are not the responsibility of the public agency, and plantings and ground cover installed or completed thereon. Such requirements shall be subject to Regular, Special, and Limited Assessments provided for herein. (Barber Aff., Ex. A 4.13). 16. The Declaration is intended to serve as authority for the Architectural Committee to use its judgment to see that all Improvements conform and harmonize as to external design, quality and type of construction, architectural character, materials, color, location on the Property, height, grade and finished ground elevation, natural conditions, landscaping and all other aesthetic considerations. (Barber Aff., Ex. A 4.1) (emphasis added). 17. Section 9.2 of the Declaration provides, [t]he actions of the Architectural Committee in the exercise of its discretion by its approval or disapproval of the proposed Improvements on the Property shall be conclusive and binding on all interested parties. (Barber Aff., Ex. A 9.2) (emphasis added). 18. In furtherance of the discretion of the Architectural Committee, Section 9.5 of the Declaration provides, [t]he approval of the Architectural Committee of any proposals or plans and specifications or drawings for any work done or proposed, or in connection with any other matter requiring the approval and consent of the Architectural Committee, shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, drawings or matter whatever subsequently or additionally submitted for approval or consent. (Barber Aff. Ex. A 9.5) (emphasis added). MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 8

9 19. The Declaration provides a method for inspection of work and correction of defects. (Barber Aff., Ex. A 9.7). The owner must give written notice of completion to the Architectural Committee, and [w]ithin sixty (60) days thereafter, the Architectural Committee... may inspect such Improvement. If the Architectural Committee finds that such work was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such non-compliance within such sixty (60) day period, specifying the particular noncompliance, and shall require the Owner to remedy the same. (Barber Aff., Ex. A 9.7.1, 9.7.2). 20. If the owner does not remedy the noncompliance, the Board, at its option, may either remove the noncomplying improvement or remedy the noncompliance, and the Owner shall reimburse the Association, upon demand, for all expenses incurred in connection therewith. If such expenses are not promptly repaid by the Owner to the Association, the Board shall levy a Limited Assessment against such Owner for reimbursement pursuant to the Project. (Barber Aff., Ex. A 9.7.1, 9.7.3; see also 4.1). The Board has [t]he power and authority from time to time in its own name, on its own behalf, or on behalf of any Owner who consents thereto, to commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of the Project Documents, and to enforce by injunction or otherwise, all provisions hereof. (Barber Aff., Ex. A ). Further, [i]n addition to duties necessary and proper to carry out the power delegated to the Association by the Project Documents,... the Association or its agent... shall have the authority and the obligation to conduct all business affairs of the Association and to perform, without limitation, each of the following duties: Enforcement of Restrictions and Rules. Perform such other acts, whether or not expressly authorized by this Declaration, as may be reasonably advisable or MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 9

10 necessary to enforce any of the provisions of the Project Documents and any and all laws, ordinances, rules and regulations of Ada County.... (Barber Aff., Ex. A ). 21. Sections and of the Declaration provides: any Owner of any Building Lot shall have the right to enforce any or all of the provisions hereof and the failure of any Owner to comply is a nuisance which will give rise to a cause of action in... the Association for recovery of damages or for negative or affirmative injunctive relief or both. (Barber Aff., Ex. A , ). 22. Pursuant to Section 8.1 of the Declaration, [i]n the event an attorney or attorneys are employed... to enforce compliance with or specific performance of the terms and conditions of this Declaration, each Owner agrees to pay reasonable attorney s fees in addition to any other relief or remedy obtained against such Owner. (Barber Aff., Ex. A 8.1). 23. The Defendant submitted an Eagle Springs HOA Architectural Review and Approval Form to the Architectural Committee on May 9, (Compl. 20; Answ. 2 (admitted); Barber Aff. 11, Ex. C). 24. The Defendant requested approval to repair and extend his fence on the east side of his property to cover the full length of the house and for landscaping to repair and level the fence with the house. (Barber Aff., Ex. C). 25. This limited scope request was approved by the Architectural Committee on May 9, 2016 on the condition that the fence be stained to match and that all repairs remain in compliance with the CC&Rs and applicable codes. (Barber Aff., Ex. C). 26. In August 2016, two members of the Architectural Committee became aware that additional work was being constructed on the Property which had not been described and MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 10

11 approved by the May 9, 2016 form. The Architectural Committee then requested that Defendant submit a second application for the additional work. (Barber Aff ). 27. The proposed additional work included substantial raising of the grade of the Property, construction of a retaining wall, and relocation and significant elevation increase of the fence on the Property which had not been previously submitted for approval. (Barber Aff. 14). The May 9, 2016 application did not describe any plans to raise the fence, move the fence, or construct a retaining wall. (Barber Aff., Ex. C). 28. At the request of the Board, on or about September 6, 2016, Defendant submitted a second application to the Architectural Committee for approval. (Compl. 20; Answ. 8 (admitted); Barber Aff., 15, Ex. D). 29. The second application included plans to level the property by using retaining wall blocks and move the fence nearer to Cayuse Way. (Barber Aff., Ex. D). 30. The Declaration provides fences shall not extend closer to any street than twenty feet (20 ) nor project beyond the setback of the principal building on the Building Lot and [n]o fence higher than six feet (6 ) shall be allowed.... (Compl. 18; Barber Aff., Ex. A 4.2.4(a)). 31. The Declaration provides that in general, [n]o fence... shall be allowed which would unreasonably interfere with the use and enjoyment of neighboring Building Lots and streets, and shall not be allowed if the same constitute an undesirable, noxious or nuisance effect upon neighboring Building Lots. (Compl. 18; Barber Aff., Ex. A 4.2.4(d)). 32. The new fence extends closer to the street than twenty feet (20 ) and, sited atop of the retaining wall, causes the fence to appear to be eight (8) or nine (9) feet high from the sidewalk adjacent to Cayuse Way and from neighboring lots. (Barber Aff. 21, Exs. M, N, O). MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 11

12 The grading of the property appears to have altered the direction of storm water dispersion, so that less of the property would drain to Cayuse Way to the east of the property, and more storm water would be directed to the neighboring property to the south. (Barber Aff. 21). This violates Section 4.12 of the Declaration pertaining to drainage. (Barber Aff., 21, Ex. A 4.12). 33. After careful consideration of the guidance and authority of the Declaration, the second application was denied at the discretion of the Architectural Committee. (Barber Aff., Ex. F). 34. The Board sent a letter to Defendant dated September 27, 2016, explaining the reasons for the denial in detail and inviting the Defendant to revise his plans and submit another application for approval. (Barber Aff., Ex. G). 35. Defendant has not submitted for consideration any later application to the Architectural Committee, and the Defendant s Property remains in violation of the Declaration. (Barber Aff ). LEGAL STANDARD Rule 56(c) of the Idaho R. Civ. P. provides that the moving party is entitled to judgment as a matter of law if no genuine issue as to a material fact exists. I.R.C.P. 56(c). The court will consider pleadings, depositions, and admissions on file, together with the affidavits, if any. Id.; Bedard and Musser v. City of Boise City, 162 Idaho 688, 403 P.3d 632, 633 (2017). When an action will be tried before the court without a jury, the trial court as the trier of fact is entitled to arrive at the most probable inferences based upon the undisputed evidence properly before it and grant the summary judgment despite the possibility of conflicting inferences. Shawver v. Huckleberry Estates, LLC, 140 Idaho 354, , 93 P.3d 685, (2003). The Court will not disturb findings of fact that are supported by substantial and MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 12

13 competent evidence, even if there is conflicting evidence. Washington Federal v. Hulsey, 162 Idaho 742, 405 P.3d 1, 3 (2017); Akers v. D.L. White Constr. Inc., 142 Idaho 293, 298, 127 P.3d 196, 201 (2005). Evidence is substantial if a reasonable trier of fact would accept and rely upon it in determining whether a disputed point of fact has been proven. Miller v. Callear, 140 Idaho 213, 216, 91 P.3d 1117, 1120 (2004). The burden of proving the absence of material facts is upon the moving party. Kiebert v. Goss, 144 Idaho 225, 228, 159 P.3d 862, 865 (2007); Hei v. Holzer, 139 Idaho 81, 85, 73 P.3d 94, 98 (2003). Once the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to show that a genuine issue of material fact does exist. Kiebert, 144 Idaho at 228, 150 P.3d at 865. A non-moving party must come forward with evidence by way of affidavit or otherwise which contradicts the evidence submitted by the moving party, and which establishes the existence of a material issue of disputed fact. Id. The moving party is entitled to judgment when the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case. Badell v. Beeks, 115 Idaho 101, 102, 765 P.2d 126, 127 (1988). A mere scintilla of evidence or only a slight doubt as to the facts is not sufficient to create a genuine issue for purposes of summary judgment. Samuel v. Hepworth, Nungester & Lezamiz, Inc., 134 Idaho 84, 87, 996 P.2d 303, 306 (2002). ARGUMENT I. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT FOR ENFORCEMENT OF THE DECLARATION A. Per the plain language of the Declaration, no improvements on any portion of the property shall be constructed, placed or removed without Architectural Committee approval in writing. Defendant s Property is governed by the Declaration. (Statement of Facts 4-5; Answ. MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 13

14 2 (admitted)). Idaho law recognizes the validity and enforceability of a declaration of covenants, conditions and restrictions. Jackson Land Co. v. Blue Dog RV, Inc., 151 Idaho 242, 246, 254 P.3d 1238, 1242 (2011); Nordstrom v. Guindon, 135 Idaho 343, 345, 17 P.3d 287, 289 (2000). A declaration is essentially a master deed which defines the rights and duties of the developer, the owners... and the management body of the project. Investors Ltd. of Sun Valley v. Sun Mountain Condos, Phase I, Inc. Homeowners Ass'n. 106 Idaho 855, 857, 683 P.2d 891, 893 (1984). Under Idaho law, any title owner is subject to recorded covenants. A buyer takes with constructive knowledge, if not actual knowledge, of the existence of such recorded covenants and is thereby bound to the covenant. West Wood Investments, Inc. v. Acord, 141 Idaho 75, 83, 106 P.3d (2005). In construing a covenant, the rules are generally the same as those which apply to any contract. If there is no ambiguity, the plain language of the covenants governs. Sun Valley Ctr. for the Arts & Humanities, Inc., v. Sun Valley Co., 107 Idaho 411, 690 P.2d 346 (1984). Thompson v. Ebbert, 144 Idaho 315, 317, 16 P.3d 754, 756 (Idaho, 2007)(finding the requirements of the declaration clear and the lease agreement in violation of it and therefore void), Hillside Service Co. v. Alcorn, 105 Idaho 792, 673 P.2d 392 (1983) (affirming the decision of the trial court that the language in the Declaration of Restrictive Covenants was not ambiguous or uncertain). Regarding the construction or alteration of improvements on any lot within the Subdivision, the relevant sections of the Declaration provide as follows: No Building Lot shall be improved except with residential structures and accessory structures as permitted by the Architectural Committee and the same have been approved in writing. (Statement of Facts 10; Barber Aff., Ex. A 4.1). Improvements on the Property shall be made in conformity with the Eagle Springs design guidelines (the "Design Guidelines") and the Project Documents. No Improvements on MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 14

15 any portion of the Property shall be constructed, placed or removed... without Architectural Committee approval as provided by the Design Guidelines and the Project Documents. (Statement of Facts 10; Barber Aff., Ex. A 9.1). There is no ambiguity in these terms, and the Idaho caselaw supports that the Defendant s Property is bound by them. Defendant had a legal obligation to apply to the Architectural Committee for approval to do the work to his Property, and to perform only that work that was specifically approved. B. Defendant did not obtain the approval required from the Architectural Committee to build a new fence, relocate the existing fence or to construct a retaining wall on the Property. On or about May 9, 2016, Defendant obtained written approval from the Association s Architectural Committee for two minor changes to his property: (1) to repair and extend his fence on the east side of his property to cover the full length of the house and (2) for landscaping to repair and level the fence with the house. (Statement of Facts 23-24; Barber Aff., Ex. C) (emphasis added). The Architectural Committee approved the request on May 9, 2016, on the clear conditions that the FENCE TO BE STAINED TO MATCH and ALL REPAIRS to be in compliance with CC&Rs AND ALL APPLICABLE MUNICIPLE [sic], COUNTY, & STATE CODES. (Statement of Facts 25; Barber Aff., Ex. C). As reflected in paragraphs and the pictures attached as Exhibits M, N, and O to the Barber Affidavit, Defendant built an entirely new retaining wall and fence, placed the new fence atop of the retaining wall, elevating the fence to an approximate nine-foot (9 ) elevation from the original grade of the Lot. Defendant did not request or obtain permission on May 9, 2016, to build a new fence. Defendant did not request or obtain permission on May 9, 2016, to move the location of the fence. Defendant did not request or obtain permission on May 9, 2016, to construct a retaining wall. Defendant did not request or obtain permission on May 9, 2016, to MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 15

16 increase the actual and perceived elevation of the fence. Defendant did not request or obtain permission on May 9, 2016, to move the fence to within 6-10 feet of the street. Defendant did not request or obtain permission to build a retaining wall within 6-10 feet of the street. Defendant did not request or obtain permission to bring fill onto the Property for the purpose of constructing or securing the retaining wall. Defendant did not request or obtain permission to change the established drainage pattern on the Property. (Statement of Facts 23-24; Barber Aff., Ex. C). Upon inspection of the construction progress, the Association specifically informed Defendant that the as-built construction of improvements on the Property was not in compliance with the Association s May 9, 2016, approval of Defendant s architectural review application. (Barber Aff. 15). Then, at the request of the Association s Board of Directors for a more detailed application explaining the interaction of the retaining wall with the fence, height of the fence, and how the fence would meet the neighbor s existing fence on the south corner of the property, Defendant submitted a second architectural review application for approval on September 6, (Barber Aff. 18, Exs. D, E). The second application for the first time notified the Architectural Committee of Defendant s plans to level the property by using retaining wall blocks and move the fence forward closer to Cayuse Way. (Barber Aff., Exs. D, E). Specific sections of the Declaration are controlling on the issues before the Court. Section 4.2.4(a) of the Declaration prohibits fences from being placed closer to any street than twenty feet (20 ) or from projecting beyond the setback of the principal building on the Building Lot. (Compl ; Statement of Facts 12, 30; Barber Aff., Ex. A 4.2.4(a)). Further, no fences higher than six feet (6 ) shall be allowed without prior approval from the Architectural MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 16

17 Committee. (Compl ; Statement of Facts 12, 30; Barber Aff., Ex. A 4.2.4(a)). Section 4.12 of the Declaration governs grading activity and its effect on established drainage. Established drainage is defined as the system of drainage which exists at the time the overall grading of any portion of the Property is completed by Grantor, or drainage which is shown any plans approved by the Architectural Committee. (Statement of Facts 14; Barber Aff., Ex. A 4.12). Interference with the established drainage pattern over any portion of the Property is specifically prohibited by Section 4.12, unless an adequate alternative provision is made for proper drainage and is first approved in writing by the Architectural Committee. Id. By adding fill and constructing the retaining wall, Defendant violated Section 4.12 of the Declaration by interfering with the grading of the Property in a manner which could affect the established drainage, without first obtaining approval from the Architectural Committee. (Statement of Facts 32; Barber Aff. 21). With these grade alterations, the Property will drain less to Cayuse Way, and more to the neighboring property to the south. Id. The Declaration specifically provides, [n]o fence... shall be allowed which would unreasonably interfere with the use and enjoyment of neighboring Building Lots and streets, and shall not be allowed if the same constitute an undesirable, noxious or nuisance effect upon neighboring Building Lots. (Compl. 18; Statement of Facts 12, 31; Barber Aff., Ex. A 4.2.4(d)). (emphasis added). The Declaration grants authority to the Architectural Committee to use its judgment to see that all Improvements conform and harmonize as to external design, quality and type of construction, architectural character, materials, color, location on the Property, height, grade and finished ground elevation, natural conditions, landscaping and all other aesthetic considerations. (Statement of Facts 10; Barber Aff., Ex. A, 9.1). The Architectural Committee must also MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 17

18 consider the overall purpose of the Association, which is to protect, enhance and preserve the value and desirability of the development as a whole, and in furtherance of the general plan for the improvement and sale of the property. (Statement of Facts 10; Barber Aff., Ex. A). In considering the authority in Sections (a), 4.2.4(d), and 4.12 of the Declaration, and the overall purpose for restrictions therein, the September 9, 2016, application was denied on or about September 12, 2016, within the sound discretion of the Architectural Committee. (Statement of Facts 24, 29; Barber Aff., Ex. D). The actions of the Architectural Committee in the exercise of its discretion by its approval or disapproval are conclusive and binding. (Statement of Facts 17; Barber Aff., Ex. A 9.2). No further application was submitted or approved by the Architectural Committee for the completed fence. (Statement of Facts 35; Barber Aff. 25, 33). Defendant has not and cannot provide any evidence that the Architectural Committee abused its discretion or acted unreasonably, and the Association is entitled to summary judgment as a matter of law. C. Defendant is in violation of the Declaration, therefore, the Association is entitled to injunctive relief, damages, costs and attorney fees. Failure to comply with the provisions of the Declaration gives rise to a cause of action for recovery of damages, injunctive relief or both. (Statement of Facts 20-21; Barber Aff., Ex. A , ). The Declaration provides for recovery of reasonable attorney s fees in addition to any other relief or remedy obtained to enforce compliance with the terms of the Declaration. (Statement of Facts 22; Barber Aff., Ex. A 8.1). The Association is entitled to an injunction requiring Defendant to remove the unapproved construction and to restore the Property to the condition it was in prior to construction, and to an award of the reasonable attorney fees and costs incurred herein. II. THE ASSOCIATION IS ENTITLED TO SUMMARY JUDGMENT AGAINST MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 18

19 DEFENDANT S DEFENSES BECAUSE THEY FAIL AS A MATTER OF LAW. A. Background. The moving party is entitled to judgment when the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case on which that party will bear the burden of proof at trial. Badell v. Beeks, 115 Idaho 101, 102, 765 P.2d 126, 127 (1988). Once a plaintiff has met its burden of proving the existence of a contract and breach by defendant, the defendant has the burden of pleading and proving affirmative defenses, which legally excuse performance. Idaho Power Co. v. Cogeneration, Inc., 134 Idaho 738, 796, 9 P.3d 1204, 1213 (2000). The Association has met its burden of proving that the Property is governed by the express terms of the Declaration, and that the Defendant is in breach of the terms by failing to obtain approval from the Architectural Committee for the improvements to the Property. The Association will show that the Defendant is unable to prove the material elements of his affirmative defenses to excuse the breach, entitling the Association to summary judgment as a matter of law. B. Defendant cannot prevail on the defense of waiver, as he cannot show that his actions were in reasonable reliance the May 9, 2016 approval or the approval of other variances in the subdivision. A party asserting waiver must show that he acted in reasonable reliance upon it and that he thereby has altered his position to his detriment. Margaret H. Wayne Trust v. Lipsky,123 Idaho 253, 256, 846 P.2d 904, 907 (1993). Defendant claims that the Plaintiff has waived any objections to the Defendant s noncompliant work by approving the May 9, 2016, application and by approving the construction of similar improvements in the neighborhood. (Answ. at 3-5). These assertions are unreasonable, as the May 9, 2016 application and approval describes no MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 19

20 plans whatsoever to build a wall, move the fence or raise the fence, and therefore cannot be reasonably relied upon to do so. The claims also fail based upon the plain language in the Declaration for correction of defects and the plain language in the Declaration concerning waiver and variances. The Declaration provides a clear method for inspection of work and correction of defects. It provides that the Owner shall give written notice of completion of the approved plans to Architectural Committee. (Statement of Facts 19-20; Barber Aff., Ex. A 9.7.1). Within sixty (60) days thereafter, the Architectural Committee may inspect the Improvement and determine whether the work was done in substantial compliance with the approved plans. (Barber Aff., Ex. A 9.7.2). If the Architectural Committee finds that the work was not done in substantial compliance with the approved plans, it shall notify the Owner in writing within the sixty (60) day period, specifying the particular noncompliance and shall require the Owner to remedy the same. Id. According to the plain terms of the Declaration, waiver only occurs if the Architectural Committee fails to notify the Owner of any noncompliance within sixty (60) days after receipt of the written notice of completion from the Owner.... (Barber Aff., Ex. A 9.7.4). Only in that case does waiver deem the work... to be in accordance with the approved plans. Id. Here, Defendant completed construction on or by September 11, (Compl. 20, Answ. 8 (admitted)). Thereafter, the Architectural Committee notified the Defendant in a timely manner numerous times in writing, on September 12, 2016, September 27, 2016, October 11, 2016 and November 21, 2016, that the work was not in compliance with the approved plans and requested Defendant remedy the violations and/or submit a revised application for review and approval. (Barber Aff. 20, 22, 24, 26). The Association followed the plain terms of the MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 20

21 Declaration in notifying Defendant within sixty (60) days of completion that the work was noncompliant, specifying the particular noncompliance, and demanding that Defendant remedy the noncompliance. The Declaration places the burden of compliance on the Defendant, and does not compel the Association to constantly monitor all work to ensure that Owners are complying with their obligations. The Defendant further alleges that because the Association has approved other similar improvements and retaining walls at the same height or higher than Defendant s and has approved variances to the Declaration for other properties, that it has waived the right to deny the same improvements in this case. (Answ. at 3-5). This assertion fails based upon the Declaration. In no uncertain terms, Section 9.5 of the Declaration states that approval of the Architectural Committee of any proposals or plans for any work done in connection with any other matter requiring the approval and consent of the Architectural Committee does not constitute a waiver of any right to withhold approval or consent as to any similar proposals or plans. (Statement of Facts 18; Barber Aff., Ex. A 9.5). Further, by the express terms of the Declaration, the granting of a variance, shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular Building Lot and particular provision hereof covered by the variance. (Barber Aff., 27, Ex. A, 9.9). Additionally, this does not, in any way, excuse Defendant s failure to request approval for the retaining wall in the first place. Because the reliance on the May 9, 2016 application and approval was not reasonable under these circumstances, and because Association notified Defendant of his noncompliance within sixty (60) days of completion per the Declaration, the Association did not waive its right to enforcement under the plain terms of the Declaration, and the Defendant cannot prevail on the waiver defense. Defendant has not, and cannot provide any facts to the contrary, and the MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 21

22 Association is entitled to judgment as a matter of law based upon the express terms of the Declaration. C. Defendant is unable to show that the Defendant lacked knowledge that the Association would assert its rights, an essential element of the laches. Laches is an affirmative defense and party asserting the defense has burden of proof. Thomas v. Arkoosh Produce, Inc., 137 Idaho 352, 359, 48 P.3d 1241, 1248 (2002). The necessary elements to maintain a defense of laches are: (1) defendant's invasion of plaintiff's rights; (2) delay in asserting plaintiff's rights, the plaintiff having had notice and an opportunity to institute a suit; (3) lack of knowledge by the defendant that plaintiff would assert his rights; and (4) injury or prejudice to the defendant in the event relief is accorded to plaintiff. Henderson v. Smith, 128 Idaho 444, 449, 915 P.2d 6, 11 (1996). Because the doctrine of laches is founded in equity, in determining whether the doctrine applies, consideration must be given to all surrounding circumstances and acts of the parties. The lapse of time alone is not controlling on whether laches applies. Thomas, 137 Idaho at 359, 48 P.3d at Defendant claims that the Association should be barred from objecting to the completed fence because the Association did not communicate that the fence was noncompliant until the fence was nearly finished. (Answ. at 3-5). This defense fails because Defendant cannot show reasonableness in relying on the May 9, 2016, application for relocating and raising the elevation of the fence, or that he lacked knowledge that the Association would assert its rights under the Declaration, even though the plain language of Section outlines a full sixty (60) period after completion to notify an Owner of noncompliant work and request the Owner to remedy the same. Further, even if the Declaration did not allow for a sixty-day window for the Association to object to the work, the amount of time in this case is not unreasonable. Realistically, the MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 22

23 Association cannot be expected to monitor every property in the subdivision for compliance on an hourly or daily basis, and should have been able to rely on Defendant s representations in his May 9, 2016, application that he would build in a compliant and approved manner. Therefore, Defendant can provide no evidence that would support his claim of laches, and, as a matter of law, the Association is entitled to judgment per the terms of the Declaration. D. Defendant is unable to establish that he did not know or could not know that the construction was not approved, an essential element to the defense of estoppel. The elements of equitable estoppel are: (1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth; (2) that the party asserting estoppel did not know or could not discover the truth; (3) that the false representation or concealment was made with the intent that it be relied upon; and (4) that the person to whom the representation was made, or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice. Ogden v. Griffith, 149 Idaho 489, 495, 236 P.3d 1249, 1255 (2010). Defendant claims that he relied upon the May 9, 2016 approval, and due to the progression of the project and the substantial expense he incurred in its construction, he was prejudiced by the Association s delay in informing him that the fence did not comply with the Declaration. (Answ. at 3-5). However, Defendant has failed to provide evidence of several elements of this affirmative defense. First, there is no misrepresentation or concealment of a material fact in this matter by the Association. The only misrepresentation or concealment of a material fact is Defendant s own. Defendant submitted an application for very specific work, and that application was approved based upon what was presented to the Board. (Barber Aff., Ex. C.) Defendant then took it upon himself to perform work drastically in excess of the original MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT - 23

24 application without disclosing that intention to the Association. Compare (Barber Aff., Ex. C), with (Barber Aff., Exs. D, M, N.) The Association made no false representations in this matter, and concealed nothing from Defendant, but acted in good faith upon the application that was submitted. There was no misrepresentation or concealment on the part ofthe Association. In order to prevail on the estoppel defense, Defendant must also show that he did not know or could not discover the material fact being concealed. Ogden, 149 Idaho at 495, 236 P.3d at In this case, Defendant should have known that he was engaging in work which had not been approved because the initial application did not describe the material changes to the fence he completed. He aloo CCilnot allege or show Clly fcds that indicate that the AS&>Ciation' s approval of his May 9, 2016 application was done to conceal something and that he rely on the concealment. Therefore, he is unable to establish several essential elements of this defense and it fails as a matter of law., I CONCLUSION The aforementioned pleadings and files herein, supporting Affidavit and attached exhibits set forth all relevant facts necessary for the Court to enter judgment in favor of the Association. These facts have not been and cannot be disputed by Defendant, and Defendant is unable to prevail on his defenses. There are no genuine issues of material fact to be tried by the Court; therefore, the Association respectfully submits that it is entitled to judgment as a matter of law. DATED this 15th day of January,' \ ~ MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT- 24 G