CLAYTON V. BIGELO (2021 US DC). [ENFORCEMENT AND CC&R INTERPRETATION]

The court in this case denied Plaintiff’s application for a temporary restraining order seeking to stop defendant’s construction of a two-story home within the La Jolla Foothills Community and subject to a recorded Declaration of Restrictions. The CC&RS contained a provision stating that no buildings could be erected on the lots until plans and specifications were approved by an Architectural Committee. The provision further stated that if there was no Committee then approval is not required so long as any structure is in harmony with similar structures in the tract. The provision further provided that no structure or building of more than one story in height could be erected without the prior approval of the Committee. At the time defendant began building the two-story home, there was no Committee. The community had 37 homes and 9 of them were two-story. Plaintiff argued that defendant was prevented from building a two-story home based on the language of the CC&Rs stating "[n]o structure or building of more than one story in height shall be erected without the prior approval of said Committee" to support his argument that the Restrictions clearly limit homes to a single-story residence in the Community. He further claims that even though no Committee exists to oversee the approvals, the Restrictions run with the land and must be followed by owners and subsequent owners absent a Committee or association to enforce them. Defendant responds that since no Committee was ever created, the CC&Rs state if “there is no such Committee appointed or elected, then such approval will not be required provided that any dwelling and out-building to be erected, and the grading and landscaping conform to and are in harmony with similar structures in said tract.”  It contends its structure conforms with other structure in the Community. The court agreed with the defendant, finding that the CC&R provision did not preclude constructing a two-story home even though there was no Committee. Rather, the court interpreted the provision to say in the absence of a Committee, a two-story home could be built if it was in harmony with similar structures in the tract. The court further held that the CC&Rs did expressly protect views or the right to air and light. Finding that plaintiff had a low likelihood of prevailing on the merits of their lawsuit, the ex parte application for a temporary restraining order was denied.