Beaty v. Gold Springs West Assn



















Filed
5/22/13 Beaty v. Gold Springs West Assn.
CA5















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT




>

JAMES BEATY, Plaintiff and Appellant, v. GOLD SPRINGS WEST ASSOCIATION et al., Defendants and Respondents.

F064461 (Super. Ct. No. CV55295) >OPINION

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tuolumne
County. James A. Boscoe, Judge.

Dambacher,
Trujillo & Wright, Joseph L. Wright, Gary P. Dambacher, Timothy T. Trujillo
and Brandon M. Kilian for Plaintiff and Appellant.

Lewis
Brisbois Bisgaard & Smith and Andrew E. Benzinger for Defendants and
Respondents.

-ooOoo-



This is an
appeal from summary judgment granted against plaintiff and appellant, James
Beaty, on his four causes of action against defendant and respondent, Gold
Springs West Association (the association).
The case involves construction of certain provisions of the governing
documents of a homeowners association.
We reverse the summary judgment, but modify and affirm portions as a
summary adjudication of issues, reverse portions, and remand for entry of a new
order on the association’s motion for summary adjudication. We will also remand the matter to the trial
court for further proceedings on plaintiff’s first, second, and third causes of
action.

>Facts
and Procedural History

In 1973,
Martin Development Corporation (the “declarant”) recorded a “declaration of
protective restrictions” in conjunction with its mapping of the Gold Springs
subdivision unit 1 in Tuolumne County.
The declaration of covenants, conditions, and restrictions (CC&R’s)
established rights and duties among the declarant and persons purchasing lots
in the subdivision to govern its development and operation.

The
CC&R’s had two groups of provisions particularly pertinent to this
appeal. The first group of provisions in
the CC&R’s concerned architectural standards in the subdivision. The CC&R’s limited use of lots in the
subdivision to single-family dwellings and associated buildings, provided for
general building standards (“natural materials that harmonize with their
surroundings whenever possible”), setbacks, and other development
criteria. Section 3, entitled
“Architectural Control by Declarant,” provided, in part: “No building or other structure shall be
commenced, erected or maintained in Gold Springs, nor shall any exterior
addition or alteration be made until the plans and specifications therefor have
been submitted to and approved in writing by Declarant. [¶] In
the event Declarant fails to approve or disapprove such design within 30 days
after said plans and specifications and any subsequent data requested by
Declarant has been submitted to it, approval will not be required and this
paragraph will be deemed to have been fully complied with.” Section 23 provided: “Since these covenants and restrictions have
been prepared to insure the architectural integrity and quality of life in Gold
Springs for the benefit of all property owners, Declarant reserves the right to
arbitrarily withhold its approval of submitted plans and specifications when it
believes, in good faith, that said plans are inconsistent with the purpose
herein described.” The CC&R’s
provide that declarant “and each person to whose benefit this Declaration
inures may proceed at law or in equity to prevent … violation of any provision
of this Declaration.” Section 29
provided, in relevant part: “The
provisions of this Declaration shall be liberally construed to effectuate the
purpose described herein.”

The second group of CC&R’s
dealt with a nine-acre recreation area to be held in common by the owners of
the lots in the subdivision. Section 1
of the CC&R’s provided that the declarant would maintain the recreation
area and could assess against the lot owners a charge of $48 per year to defray
the cost of such maintenance. After a
certain percent of the lots in the subdivision were sold, the declarant was
permitted, on certain additional conditions, to transfer the recreation area to
a homeowners association formed for the purpose of maintaining and managing the
recreation area. In 1979, the association
was formed and the recreation area was transferred to it. The articles of incorporation of the
association, both in 1979 and presently, state that the “specific and primary
purpose for which the Association is formed is to own and maintain [the]
recreation area.” “The general purposes
of the Association are to provide all types of services, facilities and
improvements deemed useful, beneficial or necessary to the use and enjoyment of
[the recreation area] by members of the Association.” The articles provide that the association may
exercise all powers of a corporation “under the General Nonprofit Corporation
Law.” The articles provide: “However, the Association shall not, except
to a nominal necessary degree, engage in any activities or exercise any powers
that are not in furtherance of the primary purposes of the Association.”

The declarant (and a successor
developer) apparently exercised the power of architectural review under the
CC&R’s and, after 1979, the association merely managed the recreation area
until, in 1984, the association and a majority of lot owners amended the
CC&R’s to substitute the association in place of declarant. Thus, the recorded amendment simply
substitutes the words “Gold Springs West Association” for the word “declarant”
in the various provisions concerning architectural review and control. The articles of incorporation of the
association were not amended, and the “primary purpose” of the association as
stated in the articles of incorporation continued to be the management of the
recreation area.

There apparently was disagreement
among the owners of Gold Springs lots over the appropriate level of activity of
the association in enforcing the CC&R’s beyond its management of the
recreation area. For example, in 1989,
the board of directors of the association proposed amendment of the articles of
incorporation to broaden the powers of the association. The letter tendering the matter for a vote of
the membership stated: “[The
association] cannot legally enforce compliance for our design review
committee.” In each of the votes of the
membership on this issue, the majority of those voting voted against amendment
of the articles of incorporation. At the
relevant times, the board did not maintain an architectural review committee
and did not act to approve or reject building, addition, or remodeling
plans.

Plaintiff is a homeowner in the
Gold Springs subdivision and a member of the association. He has been involved in efforts to seek
enforcement of the architectural review standards by the association and to
amend the articles of incorporation to expand the stated duties of the
association to include an express duty to act to approve or disapprove the
plans for development lot owners are required to submit to the association
prior to construction or remodeling. The
association asserts that both it and individual lot owners have the right under
the CC&R’s to enforce the declarations, including the architectural
standards, but it contends it does not have—and that its membership has
consistently failed to grant to it—the power to act with respect to such
enforcement.

In 2009, plaintiff filed an action
for declaratory and injunctive relief
and for damages against the association and its individual board members. After demurrer was sustained with leave to
amend, plaintiff filed the operative first amended complaint in 2010. The first cause of action alleged the
president of the board of the association had announced that the association
would neither require the submission of plans by lot owners prior to
commencement of construction projects, nor would the association act to approve
or disapprove such plans, instead deeming the requirements of the CC&R’s
satisfied by the passage of 30 days after submission; it sought injunctive
relief.href="#_ftn1" name="_ftnref1" title="">^[1] The second cause of action sought damages for
the alleged breach of the CC&R’s.
The third cause of action sought declaratory and statutory relief under
Civil Code section 1378, subdivision (a)(4), which requires a homeowners
association’s decision after architectural review to be in writing. (All further statutory references are to the
Civil Code, except as noted.) The fourth
cause of action sought a declaratory judgment affirming that the language of
the CC&R’s prevailed over any contrary provision of the association’s
articles of incorporation. Demurrer was
sustained without leave to amend as to the individual board members. It was overruled as to the association. The association answered and moved for
summary judgment. The trial court
concluded that the association did not have a duty under the CC&R’s to
approve or disapprove plans submitted by the lot owners. The court concluded that, as a result, there
was no conflict between the CC&R’s and the articles of incorporation, the
Civil Code provision requiring a written response after architectural review
was not applicable, and there were no other triable issues of material fact as
to any of the causes of action.href="#_ftn2"
name="_ftnref2" title="">^[2] The court entered judgment for the
association and subsequently awarded costs and attorney fees to it as
prevailing party.

>Discussion

It is evident from the language
of the architectural review provision of the CC&R’s that there are two
distinct aspects to the review requirement.
First, “[n]o building or other structure shall be commenced … until the
plans and specifications … have been submitted to and approved in writing by
[the association]” unless the association fails to approve or disapprove the
plans within 30 days after submission, in which case the plans are deemed
approved. This express requirement for
submission of proposed plans must be distinguished from the second aspect of
the architectural review requirement, which provides that the association must
approve or disapprove the plans within 30 days of submission; that any
disapproval shall be made only in good faith; and if the association fails to
act within 30 days the requirement for prior approval “will not be required and
this paragraph will be deemed to have been fully complied with.” To summarize the discussion that follows, we
conclude the trial court correctly determined that the CC&R’s, as a matter
of law, do not require the association to affirmatively act to approve or
disapprove plans submitted by a homeowner.
We also conclude, however, that the CC&R’s unequivocally require the
homeowner to submit plans to the association at least 30 days before the
construction or improvement begins and that, also as a matter of law, this
implies a concomitant duty on the association to receive such plans and make
them reasonably available to the membership of the association. We conclude that the trial court failed to
recognize these two distinct aspects of the architectural review provisions of
the CC&R’s. We will first explain
our conclusions concerning the duties under the CC&R’s, and then examine
how those conclusions affect the summary judgment entered by the trial court.

Initially,
we acknowledge that this case involves unique facts. The association clearly and explicitly was
formed in 1979 for the narrow purpose of operating the common areas of the
subdivision. When, in 1984, the members
of the association voted to amend the CC&R’s to substitute the association
for the “declarant” without expanding the limited powers of the association,
the membership, in effect, tried to fit a square peg into a round hole. And, as that metaphor implies in common
usage, such an effort does not usually work, or at least it does not result in
a smooth fit. Nevertheless, the membership
voted as it did and, consistent with the CC&R’s admonition that its
provisions be liberally construed to “effectuate the purpose described herein,”
we are required to determine how the square peg and the round hole fit
together.

Members of
a homeowners association are entitled to sue the association or other
individual members of the association to enforce the provisions of the
CC&R’s. (Lushing v. Riviera Estates Assn. (1961) 196 Cal.App.2d 687,
690-691.) The CC&R’s constitute a
contract between and among the various parties thereto, including the
association. Normal principles of
contract interpretation are applicable.
(Fourth La Costa Condominium
Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 575.) Accordingly, we attempt to ascertain the intent
of the parties at the time they entered into the contract. (Ibid.) Where, as here, all material extrinsic
evidence is undisputed, interpretation of the contract is an issue of law,
reviewed de novo on appeal. (See >Amerigraphics, Inc. v. Mercury Casualty Co.
(2010) 182 Cal.App.4th 1538, 1550-1551.)


>1. The Duty to Approve or Deny Plans

As to any
duty upon the association to act to approve or disapprove plans submitted for
architectural review, we agree with the trial court that the express language
of the CC&R’s provides for no such duty.
Instead, the CC&R’s provide, in clear terms, that the association’s
failure to act within 30 days of its receipt of plans (and other required
information) has an affirmative result:
“approval of the plans will not be required” and plans submitted by
homeowners are “deemed” to have been approved by the association.

Plaintiff
notes that section 1363, subdivision (a), states: “A common interest development shall be
managed by an association that may be incorporated or unincorporated.” He implies that this section requires all
homeowners associations to take all steps necessary and appropriate to “manage”
a common interest development.
Subdivision (c) provides, however:
“Unless the governing documents provide otherwise, … the association may
exercise the powers granted to a nonprofit mutual benefit corporation.” Thus, plaintiff’s implication that the
governing body, by virtue of section 1363, subdivision (a), is vested with
plenary corporate powers to “manage” the common interest development, ignores
the fact that subdivision (c) of that section permits the members of an
association to provide for a limitation of powers in the governing documents,
just as the association’s membership has done here. Similarly, administrative regulations
governing homeowners associations provide that the governing instruments “shall
ordinarily provide for, but need not be limited to … [¶] … [¶] (10) Enumeration
of the powers and duties of the governing body …; [¶] … [¶] (23) Architectural
and/or design control.” (Cal. Code
Regs., tit. 10, § 2792.8, subd. (a)(10), (23).) Accordingly, there is no statutory or
regulatory provision that requires a homeowners association to exercise
affirmative control over architectural review, in the absence of such a
requirement in the governing documents.

Plaintiff
also contends the association has an affirmative duty under section 1378 to act
to approve or disapprove each proposed construction project in the
subdivision. Section 1378, subdivision
(a), states that the section is applicable “if an association’s governing
documents require association approval before an owner of a separate interest
may make a physical change to the owner’s separate interest or to the common
area.” The statute then lists several
requirements for the association, including a fair procedure, the exercise of
good faith, and a written decision.
(§ 1378, subd. (a)(1)-(5).)
The trial court concluded section 1378 was not applicable because “the
governing documents do not require Association approval before an owner of a
separate interest may make a physical change to the owner’s separate
interest.” We disagree in part with this
conclusion, since the CC&R’s expressly state: “No building or other structure shall be
commenced, erected or maintained in Gold Springs … until the plans and
specifications therefor have been submitted to and approved in writing by [the association].” (Italics added.) A fair reading of the CC&R’s here
requires that the architectural review provisions be interpreted to “require
association approval” before construction.
Clearly the declarant has the power
under the CC&R’s to disapprove of plans—and thereby prevent
construction—even though approval of the plans is the net result of the
association’s inaction. Actual
disapproval of plans clearly would require a written decision, with reasons,
under section 1378, subdivision (a)(4).
It is not reasonable to hold that the applicability of section 1378
depends on the result of the association’s determination in each particular
case. Here, the initial requirement that
the homeowner refrain from construction until approval of his or her plans,
regardless of the mechanism of such approval, invokes the requirements of
section 1378. However, as we have discussed
earlier in this section, there is no statutory requirement that an association
affirmatively act to review the substance of individual plans submitted for
architectural review. We conclude that a
system for architectural review that received and made accessible to the
membership plans for proposed construction by homeowners, but that uniformly
approved such plans through the mere passage of time after submission of the
plans, does not, in itself, violate section 1378. An association that acted in accordance with
the expressed will of a majority of its members in adopting such a policy of
uniform approval after submission of plans would not normally be (and is not,
in the facts presented by the record here) acting other than in “good faith” as
required by section 1378, subdivision (a)(2).


This is not the system the
association currently employs, however.
The parties’ statements of undisputed facts establish that the
association’s board has made the filing of plans optional—that is, it does not
require submission of plans prior to construction, even though the language of
the CC&R’s does not provide for waiver of that requirement by the passage
of time or otherwise. We will address
this aspect of the case in the next section.
The point here is that section 1378 does not impose an affirmative duty
on a homeowners association to actually review the substance of plans submitted
to the association, even though section 1378 does require a fair and good faith
procedure for receiving and approving or denying such plans. (See Cohen
v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650.)

>2.
The Duty to Receive and Make Available Plans for Proposed Construction
or Improvements

The
association has consistently taken the position that even if the association
does not have the corporate power to enforce the architectural review
standards, this does not render such standards a nullity because individual
members of the association are given full power in the CC&R’s to enforce
architectural standards through litigation.
Plaintiff acknowledges that this might be true, except that the
association “by its own admission … does not even require the submission of
documents and, as such, the clock never begins to tick.” That is, plaintiff contends that even if the
CC&R’s permit the association to enact a policy of approving all plans
because of the passage of 30 days from submission of the plans, such approval
only occurs if plans are actually submitted.
In order to protect the individual-enforcement mechanism contemplated by
the membership and stated in the CC&R’s, plaintiff argues, there must be a
policy that requires submission of the plans and, inferentially, to make the
plans available to individual members during the 30-day period.

We agree
with plaintiff. At the time of the most
recent amendment of the CC&R’s in 1984, the membership did not remove or
restrict the express obligation of homeowners to submit plans for approval
prior to construction or improvements upon their properties. At the same time, and on every occasion
thereafter that the matter has been presented for a vote by the membership, the
association was not given express power to enforce the CC&R’s, but the
express right of individual members to take such enforcement action was
preserved. Given these reciprocal duties
and rights—to submit plans and to sue for violations of architectural
standards—we conclude the CC&R’s necessarily imply a mechanism for
discharging the duty and making the enforcement rights meaningful. Accordingly, we conclude the act of the
membership in amending the CC&R’s in 1984 impliedly, but necessarily,
constituted a grant by the membership to the association of sufficient power to
implement the amendments. The “only
reasonable construction to be given” (Ekstrom
v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111,
1123) to the express language of the CC&R’s requiring submission of plans
before construction may begin is that the association be empowered and required
to receive those plans. Similarly, the
only reasonable construction to be given the express right of all homeowners to
sue to enforce the provisions of the CC&R’s, including the standards for
setbacks, building materials, size, and related matters, contained in the
CC&R’s as paragraphs 4 through 15, is that the association must make
reasonably available preconstruction plans and specifications submitted to it
by homeowners. This is an expansion of
the narrow duties prescribed in the 1979 articles of incorporation. Nevertheless, it is both a necessary grant of
power for the accomplishment of the purposes of the CC&R’s, and it is an
expansion that is consistent with the votes taken by the membership after 1984,
rejecting the endowment of broad powers of enforcement upon the association. Further, in the absence of a power and duty
to receive preconstruction plans and specifications, the governing documents of
the association would violate the requirement of section 1378, subdivision
(a)(1), that the procedure for making architectural review decisions must be
“fair, reasonable, and expeditious.”href="#_ftn3" name="_ftnref3" title="">^[3]

Nothing in
this opinion, of course, prevents the membership of the association from
amending its articles of incorporation to permit the board to enforce the
CC&R’s to the full extent the original declarant was permitted to enforce
those provisions. In addition, nothing
in this opinion prevents the board or the membership from adopting a different
method for satisfying the requirements of section 3 of the CC&R’s, so long
as that method meets the fairness, good faith, and other requirements of
section 1378, subdivision (a).

>3. The Declaratory Judgment Cause of Action

The trial
court did not separately state its reasoning, nor separately adjudicate, each
of the four causes of action in the first amended complaint. Instead, the court found “that there are no
triable issues of material fact as to any of the causes of action in the First
Amended Complaint.” Therefore, the court
granted summary judgment. We have
determined that summary judgment, on the motion and evidence before the trial
court, was inappropriate. As to the
fourth cause of action, we will modify and affirm the trial court’s order. Because the association moved in the
alternative for summary judgment and summary adjudication (see Code Civ. Proc.,
§ 437c, subd. (f)), our affirmance of the judgment, as modified, on the
fourth cause of action necessarily results in summary adjudication of that
cause of action, instead of a final judgment.
(Id., subd. (k).)

We have
concluded, in section 2, ante, that
as a matter of law the CC&R’s impose a duty upon homeowners to submit plans
and specifications before commencing or erecting a building or other structure
in the subdivision and that, also as a matter of law on the undisputed
evidence, there is a commensurate duty upon the association to receive such
plans and specifications and to make them reasonably available for review by
members of the association. We have also
concluded that the trial court was correct in determining that the association has
no duty under the existing governing documents to affirmatively act to approve
or disapprove such plans and specifications.
As a result, there are no material issues of triable fact concerning the
fourth cause of action, which sought a declaration that the requirements of the
CC&R’s control over the requirements of the articles of incorporation to
the extent the provisions of the two documents are inconsistent. “Under its authority to modify any judgment
or order appealed from, whenever it is shown, either by the record on appeal,
or by the admission or consent of the parties, [an appellate court] will render
its own judgment to that effect, or will direct such action in the court below
as in its opinion will best conserve the rights of the parties to the action,
without subjecting them to further delay or expense.” (Fox v.
Hale & Norcross Silver Mining Co. (1898) 122 Cal. 219, 221-222; see >Munoz v. City of Union City (2007) 148
Cal.App.4th 173, 183 [modification of judgment ordered after jury verdict].)

Accordingly, we modify the order as
to the fourth cause of action as follows:
“The Court having considered the moving and responding papers, the
admissible evidence submitted, and the oral arguments of counsel, finds that
GSWA is not out of compliance with its governing documents except insofar as it
fails to require the submission of plans and specifications as required in
section 3 of the Declaration of Protective Restrictions and to make those plans
and specifications reasonably available to the members after submission. While the Declaration of Protective
Restrictions requires the owner to submit plans to the association, the
declaration does not require action by the association after those plans have
been submitted, except insofar as its duty to make the plans reasonably
available for review by its members. The
Court finds that express authorization of new construction is not required by
the governing documents. To the extent
the Declaration of Protective Restrictions and the articles of incorporation of
the association are inconsistent in establishing the duties of the association,
the Declaration of Protective Restrictions is controlling.”

>4. The First and Second Causes of Action
(Injunctive Relief and Damages)

Summary
adjudication is appropriate when it fully resolves an issue of duty, even if
there are remaining issues under a cause of action. (Code Civ. Proc., § 437c,
subd. (f)(1).) In accordance with
our modification of the order on the fourth cause of action, the summary
judgment on the first two causes of action must be modified to be summary
adjudication of the issue of the duty of the association to affirmatively act
to approve or disapprove plans and specifications submitted to it: The association is entitled to summary
adjudication that it has no such duty under the governing documents as
presently constituted. Because the
association moved in the alternative for summary adjudication and because this
conclusion is consistent, in part, with the summary judgment entered by the trial
court, we will modify the order for the first and second causes of action; the
trial court’s order, to the extent it constitutes an order for summary
adjudication on the issue of duty to approve or disapprove plans, will be
affirmed.

We have
concluded that the association does have a duty to receive and make available
to members, plans and specifications required to be submitted to it under
section 3 of the CC&R’s. Thus, the
association has not established that plaintiff is not entitled to recover under
those causes of action as a matter of law.
In particular, plaintiff may be able to establish cognizable damages in
the second cause of action, but those issues have not been presented to the
trial court. Plaintiff may also be
entitled to injunctive relief and, as to this aspect of the case, the trial
court retains significant discretion to establish the terms of any such
equitable relief. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863,
873 [stating standard but finding no abuse of discretion].) Accordingly, insofar as the summary judgment
determines that plaintiff is unable as a matter of law to recover on the
“submission of plans” theory of liability under the first and second causes of
action, the judgment must be reversed and remanded for further proceedings in
the trial court.

>5. The Third (Statutory) Cause of Action

The third
cause of action seeks a declaratory judgment that the association is in
violation of section 1378.href="#_ftn4"
name="_ftnref4" title="">^[4] As we have discussed in section 2, >ante, the association is required to
comply with section 1378. The trial
court ruled that it was not.
Accordingly, we reverse the order for judgment on the third cause of
action. Further proceedings on this
cause of action will necessarily be informed by the limited nature of the
substantive duties imposed on the association by the governing documents—i.e.,
to receive and provide access to plans and specifications under section 3 of
the CC&R’s—and the relief on this cause of action may largely coincide with
any relief granted under the first cause of action for injunction. Nevertheless, plaintiff is entitled to some
form of relief on this cause of action.

>6. Conclusion

Because of
the procedural posture of this case, and because of the form of the judgment
granting in full the association’s motion for summary judgment, the
dispositional language on this appeal will be far more complex than in most
cases. The disposition, however, should
not mask the relatively straightforward nature of our underlying
conclusions: Where a homeowners
association and its members have chosen through the language of the governing
documents that they will not empower the association as a “minigovernment” (>Duffey v. Superior Court (1992) 3
Cal.App.4th 425, 429), there is no statutory requirement that the association,
nevertheless, act in that capacity. But
where the governing documents promise lesser protections to the members and
those express protections can be afforded only through the auspices of the
homeowners association, members who bought their property subject to the
protections of the CC&R’s cannot be deprived of those protections by fiat
of the board of the association.
Plaintiff has the limited right to have the association receive and make
available plans and specifications submitted pursuant to section 3 of the
CC&R’s, and he is entitled to continue this action to enforce that right.

>DISPOSITION

The
judgment is reversed. The superior court
is directed to vacate its order granting the defendant’s motion for summary
judgment and to enter a new order denying the motion for summary judgment and
granting and denying the defendant’s motion for summary adjudication, as
follows: (1) As to the first and second
causes of action, granting summary adjudication on the issue of duty of the defendant
to act to approve or disapprove plans and specifications under section 3 of the
CC&R’s; (2) as to the first and second causes of action, denying the
defendant’s motion for summary adjudication in all other respects; (3) as to
the third cause of action, denying the defendant’s motion for summary
adjudication; and (4) as to the fourth cause of action, granting the
defendant’s motion for summary adjudication, modified to state: “The Court having considered the moving and
responding papers, the admissible evidence submitted, and the oral arguments of
counsel, finds that GSWA is not out of compliance with its governing documents
except insofar as it fails to require the submission of plans and
specifications as required in section 3 of the Declaration of Protective
Restrictions and to make those plans and specifications reasonably available to
the members after submission. While the
Declaration of Protective Restrictions requires the owner to submit plans to
the association, the Declaration does not require action by the association
after those plans have been submitted, except insofar as its duty to make the
plans reasonably available for review by its members. The Court finds that express authorization of
new construction is not required by the governing documents. To the extent the Declaration of Protective
Restrictions and the articles of incorporation of the association are
inconsistent in establishing the duties of the association, the Declaration of
Protective Restrictions is controlling.”
The parties shall bear their own costs
on appeal.





_____________________

HILL, P. J.

WE CONCUR:





_____________________

LEVY, J.





_____________________

CORNELL, J.