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Big Bass Lake Community v. Mark Warren and Michael Dennehy

June 22, 2011


The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: April 30, 2010



Mark D. Warren and Michael F. Dennehy (collectively, Lot Owners) appeal a mandatory injunction issued by the Court of Common Pleas of Wayne County (trial court), on remand from this Court, directing Lot Owners to remove a landscaping wall from their property. The trial court did so because the wall was found to interfere significantly with the use of a road located in Big Bass Lake Community (Big Bass) and with a utility easement. We reverse.

This matter first came before this Court in 2008. At issue in that appeal was a permanent injunction issued against Lot Owners to remove a landscaping wall. Big Bass Lake Community Association v. Warren, 950 A.2d 1137 (Pa. Cmwlth. 2008) (Big Bass I). We vacated the injunction because the trial court had converted a hearing on a preliminary injunction into a hearing on a permanent injunction, which was improper because it was done without notice to, or agreement of, the parties. The remand order provided instructions to the trial court on the issues to be considered upon remand.

The facts are these. Individual lot owners in Big Bass are bound by a series of restrictive covenants that govern the use of their property. Declaration of Covenants Pertaining to Land of Big Bass Lake, Inc. (Covenants), Supplemental Reproduced Record at 30b-38b (S.R.R.____). In 2006, the Big Bass Lake Community Association (Association) initiated a suit in equity to enforce two covenants. The first, Covenant VII, established a utility easement, which authorized the Association to install utility fixtures and utility lines on that part of a lot owner's property burdened by the easement.*fn1 The second, Covenant III, guaranteed lot owners the right to use Association roads.*fn2 The Association's lawsuit alleged that Lot Owners had violated these covenants in several ways.

Specifically, on April 1, 2006, Lot Owners began a landscaping project designed to give them more privacy. To that end, they created a raised ground planter for trees and bushes bordered by a stone retaining wall approximately two feet high and approximately 50 feet long. The wall is constructed of boulders and stones that have been laid dry, i.e., without mortar. Most of the wall parallels State Park Drive, a private road approximately 20 feet wide that has been placed within the Association's 40-foot wide right-of-way. Lot Owners' wall lies two to three feet from the road's paved edge.

Two or three days after the project began, an employee of the Association, Rebecca Kallensee, spoke to Mark Warren, and informed him that the wall interfered with the Association's utility easement, i.e., Covenant VII. Thereafter, she faxed Lot Owners a copy of the "plot plan" of their property with the message that she hoped "this information will be helpful to you in relocating your planter walls and trees." S.R.R. 237b.

On April 26, 2006, Lot Owners' counsel sent a letter to Kallensee noting that the covenants did not restrict a landowner's ability to landscape within the Association's easements. In response, the Association wrote to Lot Owners that their stone wall "encroaches onto Association property and the utility easement running along [Lot Owners'] property border." S.R.R. 102b. The letter threatened legal action if Lot Owners did not remove the wall. In the meantime, Lot Owners identified 297 other properties in the community with landscaping improvements that used boulders and walls and had been along the road and within the Association's 40-foot wide right-of-way.

On December 19, 2006, the Association instituted a suit in equity to compel Lot Owners to "remove any and all boulders and landscaping improvements within the [Association's] right of way abutting [Lot Owners'] property." Certified Record, Item No. 1, at 8. The Association also sought to have Lot Owners pay the Association "all reasonable enforcement costs incurred in this matter." Id. With the complaint, the Association filed a motion for preliminary injunction, on which a hearing was held. At the conclusion of the hearing, the trial court issued a permanent injunction, ordering Lot Owners to remove their aboveground planter, but denying the Association's claim for attorney fees.

Both parties appealed to this Court. We concluded that the trial court erred in issuing a permanent injunction. Absent agreement of the parties, the trial court lacked authority to convert a hearing on a preliminary injunction into one on a permanent injunction. Big Bass I, 950 A.2d at 1149. We also held that, in any case, the Association had failed to show a clear legal right to injunctive relief because the Association had not proved a violation of the cited covenants. The Court explained that Covenant VII does not prohibit landscaping projects within the utility easement. Further, Covenant III conferred rights, not burdens, upon the lot owners; indeed, Covenant III obligates the Association not to interfere with the right of lot owners to use the private road.

We then identified lacunae in the record. Big Bass I, 950 A.2d at 1147-1148. The nature of the Association's right-of-way was unclear, i.e., it could not be determined if the Association's right-of-way derived from fee simple title or from an easement. We also noted that the mere existence of an encroachment on an easement is not enough. To be actionable, an encroachment must significantly interfere with the use of the right-of-way. Id. at 1147. Further, in balancing the harms, the trial court had to consider the Association's longstanding tolerance of encroachments by other homeowners in Big Bass. Finally, it was noted that injunctive relief had to be tailored to be the minimum necessary to remedy the harm, which the trial court had not done. Instead of requiring the stone wall to be pushed back or reduced in height, the trial court simply ordered Lot Owners to remove the wall entirely. All these matters were to be considered on remand. After the remand, the Association filed an amended complaint on September 12, 2008. The amended complaint pled four causes of action against Lot Owners: (1) trespass, (2) violation of Covenant VII, (3) violation of Covenant III, and (4) a claim for attorney's fees. Prior to trial, the parties agreed to conduct the litigation in two separate phases, i.e., the first to determine liability and the second to consider enforcement costs. A trial on the amended complaint was held on April 28, 2009, at which both parties presented evidence.

The Association presented the testimony of Donald Chappa, the former Association president and director. Chappa explained that the Association uses the utility easement for drainage, water lines, sewer lines, and utility lines and poles. He asserted that Lot Owners' stone wall impedes future water and sewer hookups because the rocks will need to be removed to permit any utility work to be done in the easement area. With respect to the stone wall's encroachment on the Association's right-of-way, he explained that other encroachments in the community are not as close to the paved road and are not located on such a "severe curve" in the road. Notes of Testimony, April 28, 2009, at 36 (N.T.____); Reproduced Record at 51 (R.R.____).

Next, the Association presented Steve Scorzelli, the Association maintenance manager, who testified that Lot Owners' stone wall hinders the Association's ability to clear snow from the road. He explained that the area adjacent to the stone wall quickly fills up with plowed snow, requiring the snow plow to make multiple passes on the road in front of Lot Owners' property. He testified that there is no other site in Big Bass that presents a comparable challenge to snow removal.

Brian Fisk, a professional engineer, provided expert testimony for the Association. He testified that the distance between the stone wall and the edge of the road ranges from two to three feet. His December 30, 2008, expert report described the stones in the wall as "unyielding objects." S.R.R. 263b. Fisk explained that in preparing his report, he relied on guidelines developed by the American Association of State Highway and Transportation Officials (AASHTO Guidelines), which are the default regulations when there is no other specific guidance for a road.*fn3 For high-volume roads, the AASHTO Guidelines require a 7 to 10 foot clear zone along the side of a road, which permits a driver who loses control of his vehicle an opportunity to regain control and avoid an accident. Fisk testified that Lot Owners' wall should have been placed 10 to 15 feet from the edge of the road because it was next to a bend in the road. Fisk concluded that the wall presented a "significant traffic hazard" and was the most dangerous such hazard in Big Bass. N.T. 103; R.R. 118.

In response, Lot Owners presented the testimony of Mark Warren, one of the two Lot Owners, who explained that a raised planter is the only way he can landscape his property with vegetation because of the thin soil on his property. He also testified that there are other raised planters also using ...

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