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Thursday, April 1, 2004
Burke v. VoiceStream Wireless Corp.: Division One Panel Rules that Restrictive Covenant Prevents Erection Cell Phone Tower Decorated As Church Bell Tower
Plaintiff homeowners sought in trial court to enjoin the erection of a cell phone tower adjacent to a church in their neighborhood. The cell phone tower, which was built over neighbors’ protests, was decorated as a church bell tower with four crosses and three hanging bells. The parties filed cross motions for summary judgment and the trial court ruled that the restrictive covenant, which prohibited structures other than a single-family home and garage on any lot, was ambiguous. Resolving the ambiguity in favor of free use and enjoyment of property, the trial court granted summary judgment to the cell phone company and the church.
On appeal, the court reviewed the language of the restrictive covenant de novo and found that the its plain meaning prohibited the cell phone tower. The court also held that previous violations of the restrictive covenant throughout the subdivision did not constitute a waiver because of a “non-waiver” provision in the restrictive covenant, itself. The cell phone company was precluded from claiming hardship for the cost of removing the tower because it had notice of the restrictive covenant and the neighbors’ objections prior to constructing the tower. The court held that laches would not bar the homeowners from getting relief simply because they had not filed suit to enjoin construction before it began when they had sent a letter putting the cell phone company on notice of their objections.
Judge Gemmill wrote the opinion which Judge Hall and Judge Winthrop joined.
Practice Point: This case was up on cross motions for summary judgment. According to the court, “[w]hen cross-motions for summary judgment have been filed, this court may evaluate the cross-motions and, if appropriate, remand with instructions that judgment be entered in favor of the appellants.” In this case, the court remanded for entry of judgment in favor of the homeowners.
Plaintiff homeowners sought in trial court to enjoin the erection of a cell phone tower adjacent to a church in their neighborhood. The cell phone tower, which was built over neighbors’ protests, was decorated as a church bell tower with four crosses and three hanging bells. The parties filed cross motions for summary judgment and the trial court ruled that the restrictive covenant, which prohibited structures other than a single-family home and garage on any lot, was ambiguous. Resolving the ambiguity in favor of free use and enjoyment of property, the trial court granted summary judgment to the cell phone company and the church.
On appeal, the court reviewed the language of the restrictive covenant de novo and found that the its plain meaning prohibited the cell phone tower. The court also held that previous violations of the restrictive covenant throughout the subdivision did not constitute a waiver because of a “non-waiver” provision in the restrictive covenant, itself. The cell phone company was precluded from claiming hardship for the cost of removing the tower because it had notice of the restrictive covenant and the neighbors’ objections prior to constructing the tower. The court held that laches would not bar the homeowners from getting relief simply because they had not filed suit to enjoin construction before it began when they had sent a letter putting the cell phone company on notice of their objections.
Judge Gemmill wrote the opinion which Judge Hall and Judge Winthrop joined.
Practice Point: This case was up on cross motions for summary judgment. According to the court, “[w]hen cross-motions for summary judgment have been filed, this court may evaluate the cross-motions and, if appropriate, remand with instructions that judgment be entered in favor of the appellants.” In this case, the court remanded for entry of judgment in favor of the homeowners.
