                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 3, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 MARK C. LEWINGTON, a Washington                                   No. 47022-5-II
 resident; NOEL P. SHILLITO and LAURIE A.
 SHILLITO, husband and wife and Washington
 residents; DANIEL P. OSTLUND and MARIE
 F. OSTLUND, husband and wife and
 Washington residents; and ELIZABETH T.
 WIGHT, a Washington resident,
                                                            UNPUBLISHED OPINION
                               Respondents,

        v.

 FRANK I. PARSONS and NANCY A.
 PARSONS, husband and wife, and Washington
 residents,

                               Appellants.

       BJORGEN, C.J. — Frank and Nancy Parsons (the Parsons) appeal the trial court’s order

granting summary judgment to Mark Lewington, Noel and Laurie Shillito, Daniel and Marie

Ostlund, and Elizabeth Wight (the Neighbors).

       The parties all live in the Narrowmoor Third Addition in Tacoma, which has a set of

restrictive covenants that apply to all residents living there. Covenant A prohibits homes from

exceeding “two stories in height.” Clerk’s Papers (CP) at 17. The Parsons constructed an
No. 47022-5-II


additional story on top of their one-story home with a daylight basement, contending that the

daylight basement does not constitute a story under Covenant A. The Neighbors disagreed and

brought suit. The trial court granted summary judgment to the Neighbors, ruling that the

language of Covenant A was unambiguous and a daylight basement counted as a story; that the

Parsons’ equitable defenses of collateral estoppel, acquiescence, and abandonment failed as a

matter of law; and that the Parsons were enjoined from constructing an additional story over their

home.

        On two threshold matters, we hold that (1) the trial court erred in failing to dismiss the

Shillitos from this lawsuit for lack of standing and (2) the trial court did not err in granting

summary judgment in favor of the Neighbors on the issue of collateral estoppel.

        However, we also hold that (3) the trial court erred in finding that the language of

Covenant A was unambiguous and that a daylight basement constitutes a story. Because the

Parsons submitted uncontroverted evidence that their daylight basement does not constitute a

story under applicable contemporaneous law, we hold that their two-story home with a daylight

basement does not violate Covenant A, and we reverse the trial court’s ruling to the contrary.

Because the Parsons’ home does not violate Covenant A, we do not reach the trial court’s grant

of summary judgment in favor of the Neighbors on the issues of abandonment and acquiescence

and we vacate the trial court's injunction against the Parsons' construction.

        Accordingly, we affirm that part of the trial court’s order granting summary judgment in

favor of the Neighbors on the issue of collateral estoppel, and we reverse that part of the trial

court’s order granting summary judgment in favor of the Neighbors on the issue of whether the

daylight basement constitutes a story.


                                                   2
No. 47022-5-II


                                              FACTS

                         I. HISTORICAL AND PROCEDURAL BACKGROUND

1.     Creation of Narrowmoor Third Addition

       Beginning in 1944, Eivind Anderson1 began the platting and creation of the Narrowmoor

communities. In total, there are four Narrowmoor additions with the final one platted in 1954.

Each Narrowmoor addition has its own set of governing restrictive covenants, but all are largely

similar. At issue in this case is Covenant A from the Narrowmoor Third Addition, which reads:

       Except as otherwise herein specifically stated, no structure shall be erected, place[d]
       or permitted to remain on any residential building plat other than one detached
       single family dwelling not to exceed two stories in height, and a private garage.

CP at 236 (emphasis added).

2.     Prior Lawsuit: Lester v. Willardsen

       Spencer M. and Ann Willardsen owned a one-story home with a daylight basement

located on the uphill portion of the Narrowmoor Third Addition. With approval from the city of

Tacoma, they decided to build another story on top of their home. In 1985, homeowners located

in the Narrowmoor Third Addition filed a lawsuit against the Willardsens for violation of

Covenant A, which continued as a class action lawsuit (the Lester Class).2 Notice of the class

action was given to all the Narrowmoor Third homeowners and allowed each homeowner to opt

out.



1
  There were other drafters involved in this process, but we only refer to Anderson for ease of
reading this opinion.
2
 The lawsuit also involved allegations against the city of Tacoma for violating the homeowners’
due process and equal protection rights.


                                                 3
No. 47022-5-II


         After a bench trial, the trial court entered an order with findings of fact and conclusions

of law, requiring the Willardsens to remove the third story from their home.3 On appeal, this

court in Lester v. Willardsen4 reversed the trial court’s decision, holding that the Willardsens’

home did not constitute “a conventional two-story house.” CP at 351. The Lester court reasoned

that Covenant A’s language was ambiguous and that the Lester Class failed to meet their burden

of showing that a more restrictive interpretation was intended. Without the requisite evidence,

the Lester court employed the general interpretative rule that doubts in the meaning of a

covenant must be resolved in favor of the free use of land and held that there was no support in

the record to find the intention that a daylight basement constitutes a story. After the

Washington Supreme Court denied review,5 the trial court entered judgment in favor of the

Willardsens.

                                     II. THE CURRENT LAWSUIT

         In March 2014, the Parsons purchased a home in the Narrowmoor Third Addition. At the

time, the home had a daylight basement plus one story. The Parsons decided to build a second

story on top of the home; all-in-all, the construction of the second story is 4.62 feet above the




3
 The trial court specifically stated in finding 10 that it did not need to find the lowest floor to the
Willardsen home as a “[s]tory” or “[b]asement.” CP at 427. Rather, because the Willardsens
had conceded that the upper two floors constituted stories and that the daylight basement
“contribute[d] to the height],” this “cause[d] the residence to be in excess of two stories” in
height contrary to Covenant A. Id.
4
    Lester v. Willardsen, 58 Wn. App. 1068, 1990 WL 318860 (Aug. 1990) (unpublished opinion).
5
    Lester v. Willardsen, 116 Wn.2d 1004, 803 P.2d 1309 (1991).

                                                   4
No. 47022-5-II


height of their old roof. The Parsons assert that in the months before construction began they

were “up front about [their] plans to renovate [their] home” with the Neighbors. CP at 231.

However, the Neighbors dispute how “upfront” the Parsons were, suggesting that the Parsons

only told them that they were adding a garage or that any addition would only make “the roof . . .

go up a little bit in the middle.” CP at 406.

       On July 22, 2014, construction of the additional story commenced. On August 4 the

Parsons sent a letter to the Ostlunds, assuring that they would comply “absolutely” with the

Narrowmoor Third Addition covenants. CP at 413. Shortly thereafter, the Neighbors saw an

“enormous roof ridge beam” delivered to the construction site of the Parsons’ home, CP at 406,

which prompted Lewington to send a letter to the Parsons. The letter dated August 13 stated that

the Neighbors believed the Parsons might be violating Covenant A and that they should meet to

discuss how the Parsons might revise their construction plans to minimize view impacts and

comply with Covenant A. The Parsons did not meet with the Neighbors. They also did not stop

construction, because to do so would have required them to incur great expense.

       On August 22, 2014, the Neighbors filed a complaint against the Parsons. On November

14, the Neighbors moved for summary judgment as to the meaning of Covenant A. On

December 12, the trial court heard argument from both parties and granted summary judgment in

favor of the Neighbors, ruling that Covenant A is unambiguous: a daylight basement is a story.

The trial court also implicitly ruled that the Parsons’ defenses of collateral estoppel,

acquiescence, and abandonment failed as a matter of law. Finally, the trial court ordered that the




                                                  5
No. 47022-5-II


Parsons were enjoined “from constructing a three-story addition, with two upper stories over a

daylight basement story.” CP at 557.

       The Parsons appeal.

                                           ANALYSIS

                                    I. STANDARD OF REVIEW

       “We review de novo a trial court’s decision to grant summary judgment, engaging in the

same inquiry as the trial court.” Old City Hall LLC v. Pierce County AIDS Found., 181 Wn.

App. 1, 8, 329 P.3d 83 (2014). “We affirm a grant of summary judgment where no material

issue of fact exists and the moving party is entitled to judgment as a matter of law.” Id.; CR

56(c). We "view all facts and any reasonable inferences drawn from those facts in the light most

favorable to the nonmoving party.” Id.

                                    II. SHILLITOS’ STANDING

       The Parsons first argue that the Shillitos must be dismissed from this suit for their lack of

standing. We agree. The Shillitos are located in Narrowmoor Second Addition, but their

property “abuts” Narrowmoor Third. Br. of Resp’t at 10. The Narrowmoor Third Addition

platting document specifically allows any person “owning any real property in said subdivision

to prosecute any proceedings” against other Narrowmoor Third homeowners that violate the

covenants. CP at 236 (emphasis added). This language demonstrates the drafter’s intent to only

allow those real property owners in Narrowmoor Third Addition to enforce the covenants. Save

Sea Lawn Acres Ass’n v. Mercer, 140 Wn. App. 411, 417, 166 P.3d 770 (2007); Mack v.

Armstrong, 147 Wn. App. 522, 527-28, 195 P.3d 1027 (2008). There is no evidence suggesting




                                                 6
No. 47022-5-II


that the inhabitants of Narrowmoor Second have any enforcement right for the restrictive

covenants of Narrowmoor Third. See Save Sea Lawn, 140 Wn. App. at 422.

       The Neighbors argue that it was “unnecessary for the Superior Court to reach the

question of the Shillitos’ standing since all of the other Plaintiffs live in Narrowmoor Third.” Br.

of Resp’t at 44-45. We disagree. Restrictive covenants can only be enforced if the plaintiff has

“a justiciable interest in enforcement, generally an ownership interest in the benefited property.”

Lakewood Racquet Club, Inc. v. Jensen, 156 Wn. App. 215, 228, 232 P.3d 1147 (2010). The

Shillitos did not have a property interest or legal right to enforce the restrictive covenants in

Narrowmoor Third Addition. Accordingly, we reverse the trial court’s determination6 that the

Shillitos had standing to bring this lawsuit. We express no opinion on sources of standing apart

from the enforcement of the Narrowmoor Third covenants.

                                    III. COLLATERAL ESTOPPEL

       Next, the Parsons argue that the trial court erred in granting summary judgment in favor

of the Neighbors on Parsons’ defense of collateral estoppel. We disagree. We affirm the trial

court and hold that Lewington, Wight, and the Ostlunds are not collaterally estopped by the

Lester decision, because with a significant change in the law of restrictive covenants, collateral

estoppel would work an injustice against them. Accordingly, the Neighbors were not barred

from bringing this suit.




6
 Even though the trial court did not directly address this issue, the Parsons raised it in their
summary judgment motion. Thus, the trial court’s failure to address the issue must be taken as
an implicit denial of the Parsons’ challenge to the Shillitos’ standing.


                                                  7
No. 47022-5-II


       Collateral estoppel or issue preclusion bars relitigation of the same issue in a subsequent

action when that issue has actually been litigated as well as necessarily and finally determined in

the earlier proceeding. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 306-07,

96 P.3d 957 (2004). The purpose of collateral estoppel is to promote judicial economy by

avoiding relitigation of the same issue, to afford the parties the assurance of finality of judicial

determinations, and to prevent harassment of and inconvenience to litigants. Id. The inquiry

focuses on whether “the party against whom the doctrine is asserted . . . had a full and fair

opportunity to litigate the issue in the earlier proceeding.” Id. at 307; State Farm Mut. Auto. Ins.

Co. v. Avery, 114 Wn. App. 299, 304, 57 P.3d 300 (2002). Accordingly, the party seeking the

doctrine’s application bears the burden of showing that

       “(1) the issue decided in the earlier proceeding was identical to the issue presented
       in the later proceeding; (2) the earlier proceeding ended in a judgment on the merits;
       (3) the party against whom collateral estoppel is asserted was a party to, or in privity
       with a party to, the earlier proceeding; and (4) application of collateral estoppel
       does not work an injustice on the party against whom it is applied.”

Regan v. McLachlan, 163 Wn. App. 171, 181, 257 P.3d 1122 (2011) (quoting Christensen, 152

Wn.2d at 307).

       Here, as the Neighbors point out, the law of restrictive covenants has changed in a way

that would make preclusion of their lawsuit unjust. Under current law, we place special

emphasis on arriving at an interpretation of restrictive covenants that protects the homeowners’

collective interests, rather than favoring the free use of land. Wilkinson v. Chiwawa Cmtys.

Ass’n, 180 Wn.2d 241, 250, 327 P.3d 614 (2014); Riss v. Angel, 131 Wn.2d 612, 621-24, 934




                                                  8
No. 47022-5-II


P.2d 669 (1997). In contrast to the current rule, the Lester court reversed the trial court, applying

the old rule that doubts must be resolved in favor of the free use of land. While the availability

of different remedies has been found not to work an injustice, Christensen, 152 Wn.2d at 317-18,

a difference in the burden of proof has. Beckett v. Dep’t of Soc. & Health Servs., 87 Wn.2d 184,

188, 550 P.2d 529 (1976), overruled on other grounds recognized by Thompson v. State, Dep’t of

Licensing, 138 Wn.2d 783, 796, 982 P.2d 601 (1999). This modification in restrictive covenant

law shifts our interpretative presumption and functions similarly to a change in the burden of

proof. Beckett, 87 Wn.2d at 188.

       In their argument, the Parsons remind us that “[t]he injustice component is generally

concerned with procedural, not substantive irregularity.” Christensen, 152 Wn.2d at 309. They

argue that because the Lester Class “prosecuted a multi-day trial in Pierce County Superior

Court, defended the trial court’s findings and conclusions on appeal, and then pursued relief from

the Washington Supreme Court,” the prior litigation is procedurally just. Br. of Appellant at 34;

Reply Br. of Appellant at 6-7. However, the drastic change in the law of restrictive covenants

outweighs the interest of treating the prior litigation with finality. In State Farm Fire & Casualty

Co. v. Ford Motor Co., Division One of our court held that collateral estoppel would work an

injustice against the defendant when it otherwise would be “‘afforded procedural opportunities in

the later action that were unavailable in the first and that could readily cause a different result.’”

186 Wn. App. 715, 725, 346 P.3d 771 (2015) (quoting Parklane Hosiery Co. v. Shore, 439 U.S.

322, 326, 99 S. Ct. 645, 58 L. ed. 2d 552 (1979)), remanded, 2015 WL 9948132 (Dec.




                                                   9
No. 47022-5-II


2015). Similarly to State Farm, allowing collateral estoppel to supplant the current rule of

interpretation with the repudiated former rule could readily cause a different result and work an

injustice. Accordingly, we affirm the trial court’s granting of summary judgment in favor of the

Neighbors and hold that they are not collaterally estopped by the prior litigation.7

                                  IV. MEANING OF COVENANT A

       Next, the Parsons argue that the trial court erred in granting summary judgment to the

Neighbors and ruling that Covenant A’s meaning is unambiguous. We agree. The plain

language and the context of the instrument does not illuminate the definition of “two stories in

height,” thus rendering the term ambiguous in this setting. However, we also hold that extrinsic

evidence in the contemporaneous 1939 Building Code supplies the proper definition of “story” to

reflect the drafter’s intent in creating Covenant A. The Parsons submitted uncontroverted

evidence that their daylight basement would not count as a “story” under the 1939 Building

Code. Therefore, the Parsons’ two-story home with a daylight basement does not violate

Covenant A.

1.     Legal Principles

       Interpretation of a restrictive covenant is a question of law. Wilkinson, 180 Wn.2d at

249. The primary objective in interpreting a restrictive covenant is to determine the drafter’s

intent or purpose. Id. at 250; Riss, 131 Wn.2d at 621; Bloome v. Haverly, 154 Wn. App. 129,

138, 225 P.3d 330 (2010). Generally, ascertaining the drafter’s intent or purpose behind a



7
  Because we hold that an injustice against the Neighbors would result if we applied collateral
estoppel, we do not address the first two elements of the doctrine. As to the third element, we
recognize that the Ostlunds and Wight would not be collaterally estopped because they or their
predecessors-in-interest opted out from the Lester Class, removing their privity with that class.

                                                 10
No. 47022-5-II


restrictive covenant is a question of fact, “‘[b]ut where reasonable minds could reach but one

conclusion, questions of fact may be determined as a matter of law.’” Wilkinson, 180 Wn.2d at

250 (quoting Ross v. Bennett, 148 Wn. App. 40, 49-50, 203 P.3d 383 (2009)).

       In determining the drafter’s intent or purpose in crafting restrictive covenants, we observe

the “‘ordinary and common use’” of the language and “will not construe a term in such a way ‘so

as to defeat the plain and obvious meaning.’” Id. (quoting Mains Farm Homeowners Ass’n v.

Worthington, 121 Wn.2d 810, 816, 854 P.2d 1072 (1993)). We also examine the instrument as a

whole in determining the meaning of a restrictive covenant’s language. Id. The lack of an

express term with the inclusion of other similar terms is evidence of the drafter’s intent. Id. at

251. Extrinsic evidence can be “used to illuminate what was written,” but it cannot be used to

“show an intention independent of the instrument,” “vary, contradict or modify the written

word,” or demonstrate a “party’s unilateral or subjective intent as to the meaning of a contract

word or term.” Hollis v. Garwall, Inc., 137 Wn. 2d 683, 695, 697, 974 P.2d 836 (1999).

       As discussed above in our analysis of collateral estoppel, we place special emphasis on

arriving at an interpretation of the restrictive covenants that protects the homeowners’ collective

interests, rather than that which favors the free use of land. Wilkinson, 180 Wn.2d at 250; Riss,

131 Wn.2d at 623-24. The Washington Supreme Court has made clear that “[w]hile Washington

courts once strictly construed covenants in favor of the free use of land, we no longer apply this

rule where the dispute is between homeowners who are jointly governed by the covenants.”

Wilkinson, 180 Wn.2d at 249-50 (citing Riss, 131 Wn.2d at 621-624). This rule rests on the

recognition that “‘[s]ubdivision covenants tend to enhance, not inhibit, the efficient use of land.’”

Id. (quoting Mains Farm, 121 Wn.2d at 816).


                                                 11
No. 47022-5-II


2.     The Ordinary Meaning of the Phrase “two stories in height”

       The parties dispute the meaning of Covenant A, which reads:

       Except as otherwise herein specifically stated, no structure shall be erected, place[d]
       or permitted to remain on any residential building plat other than one detached
       single family dwelling not to exceed two stories in height, and a private garage.

CP at 236 (emphasis added). However, neither the plain and ordinary meaning of Covenant A

nor Covenant D, which restricts tall trees from being grown in Narrowmoor Third for view

protection, demonstrates whether a daylight basement is a “story” as a matter of law.

       a. Plain and Ordinary Meaning

       The Parsons argue that Anderson added the term “in height” with the intention that

subterranean levels, such as daylight basements, are not counted as stories “in height.” Br. of

Appellant at 22. The Neighbors contend that “‘in height’ is simply another way of saying not to

exceed two stories high.” Br. of Resp’t at 23. Even after giving the words “story” and “in

height” their plain and ordinary meaning, we hold that Anderson’s intent remains ambiguous as

to whether a daylight basement counts as a “story.”

       The inability to discern the plain and ordinary meaning of “story” and “in height” is

illuminated by the pertinent dictionary definitions. According to Webster’s Third New

International Dictionary, “story,” in part, means “a set of rooms on one floor level of a building

excluding the attic level and usu[ally] the cellar or basement level.”8 WEBSTER’S THIRD NEW

INT’L DICTIONARY at 2253 (2002). Although basement levels are not “usually” counted as a




8
 The second definition of “story” is “one of a series of tiers arranged horizontally one over
another.” WEBSTER’S, supra, at 2253.


                                                 12
No. 47022-5-II


story under this definition, the probability that basements in the abstract are excluded does not

dispel the fog around whether Anderson intended daylight basements to counts as s story.

       Webster’s defines “height” as “the extent of elevation above a level: . . . distance

extending upwards.”9 WEBSTER’S, supra, at 1050. Under this definition, a “story” inherently has

height whether underground, partially underground, or above ground. Contrary to the Parsons’

argument, these definitions do not necessarily exclude daylight basements from the reach of

Covenant A. Accordingly, we cannot decipher the drafter’s intent in crafting Covenant A by

only looking at the plain and ordinary meaning of the words.

       b. Covenant D

       Next, the Neighbors cite Covenant D from the Narrowmoor Third covenants to support

their contention that the drafter intended to protect the homeowners’ views. Covenant D reads:

       No tall growing trees, such as Southern Poplar, Maple or any other similar species
       that would obstruct the panoramic view of the sound shall be planted or permitted
       to grow west of Fairview Drive, nor shall any commercial billboard be so located.

CP at 236. The Parsons contend that Covenant D is “notably different” from Covenant A

because Covenant A makes no reference to views and does not exclude any properties from its

restrictions, since all properties within Narrowmoor Third are subject to the “two stories in

height” restriction. Br. of Appellant at 23-24.

       We agree that it matters that Anderson specified the purpose of Covenant D, whereas

with Covenant A he simply stated that homes should be “two stories in height” without

expressing any underlying purpose. Contrary to the Neighbors’ assertion, Covenant D’s purpose


9
 The second definition of “height” is “the distance extending from the bottom to the top of
something standing upright . . . or from the bottom to an arbitrarily chosen upper point.”
WEBSTER’S, supra, at 1050.

                                                  13
No. 47022-5-II


in protecting views does not necessarily translate to Anderson’s purpose behind limiting homes

to two stories in height. It is just as reasonable to believe that Anderson created the two story

limitation because of a desire to create uniformity between the homes in Narrowmoor Third.10

Anderson could have intended that homes were allowed to be larger because the additional space

produces more utility at the sacrifice of a partial view of the Puget Sound; whereas, with tall

trees, their utility does not outweigh the views they may obstruct in the same way. It is also

possible that Anderson intended Covenant A both to protect views and to create uniformity

between Narrowmoor Third residences. Because it is unclear, we hold that Covenant D does not

show as a matter of law what Anderson intended in Covenant A.

3.     Extrinsic Evidence: 1939 Building Code and 1945 Zoning Ordinance

       Because the language and context of the instrument do not make clear Anderson’s intent

in drafting Covenant A, we next turn to extrinsic evidence to reveal that intent. The main

extrinsic evidence includes the 1939 Building Code and 1945 Zoning Ordinance, which neither

party disputes were in effect at the time Anderson drafted Covenant A. We hold that the

extrinsic evidence from the 1939 Building Code supplies the appropriate definition of “story” in

Covenant A as a matter of law.

       The Parsons argue that the definition of “story” from the 1939 Building Code should

inform our understanding of Anderson’s intent:




10
   Covenant E also supports the theory that Anderson’s purpose in creating Covenant A was for
uniformity and consistency in the neighborhood. Covenant E sets a minimum for the square
footage each dwelling is required to have depending on the block and lot on which the dwelling
is located.

                                                 14
No. 47022-5-II


               Story means that portion of a building included between the upper surface
       of any floor and the upper surface of the floor next above, except that the topmost
       story shall be that potion of a building included between the upper surface of the
       topmost floor and the ceiling or roof above. If the finished floor level directly above
       a basement or cellar is more than six feet (6’) above grade such basement or cellar
       shall be considered a story.

CP at 291. The Neighbors argue instead that we should rely on the definition of “story” from the

1945 Zoning Ordinance. That provision defines “story” similarly to the 1939 Building Code,

except without a method to determine whether a basement or cellar is considered a story:

       Story: [t]hat portion of a building included between the surface of any floor and
       the surface of the floor next above it, or if there be no floor above it, then the space
       between such floor and the ceiling next above it.

CP at 89. Based on the 1945 Zoning Ordinance’s definition of “story,” the Neighbors

contend that “story encompassed any space, above any floor” and, therefore, a daylight

basement was a story. Br. of Resp’t at 25 (emphasis omitted).

       We presume a drafter crafts restrictive covenants consistently with relevant laws that

were in existence at the time, unless the covenants indicate a contrary intent. See Reynolds v.

Ins. Co. of N. Am., 23 Wn. App. 286, 290-91, 592 P.2d 1121 (1979); accord Fischler v. Nicklin,

51 Wn.2d 518, 522, 319 P.2d 1098 (1958); Wagner v. Wagner, 95 Wn.2d 94, 98, 621 P.2d 1279

(1980); In re Kane, 181 Wash. 407, 410, 43 P.2d 619 (1935). Accordingly, the issue here is

whether the 1939 Building Code or 1945 Zoning Ordinance is the more closely applicable law in

supplying the definition of “story” in Covenant A. Under the facts presented here, we hold that

the 1939 Building Code is the closer fit.

       Both the 1939 Building Code and 1945 Zoning Ordinance define terms for the purposes




                                                 15
No. 47022-5-II


of each code. A restrictive covenant, of course, is not a provision of either a zoning or building

code. Instead, restrictive covenants are private agreements restricting the use of land, largely as

a matter of property common law. Building and zoning codes are each exercises of the police

power, the power of government to regulate in the public interest. That regulatory purpose

animates each of the codes at issue. For example, chapter 1, section 102 of the 1939 Building

Code states:

               The purpose of this Code is to provide certain minimum standards,
       provisions and requirements for safe and stable design, methods of construction
       and uses of materials in buildings and/or structures hereafter erected, constructed,
       enlarged, altered, repaired, moved, converted to other uses or demolished and to
       regulate the equipment, maintenance, use and occupancy of all buildings and/or
       structures in the City of Tacoma.

CP at 289. Similarly, the Preamble to 1945 Zoning Ordinance states:

               An ordinance to regulate the location and use of buildings and the use of
       land within the City of Tacoma; to limit the height of buildings; to prescribe
       building lines and the size of yards and other open spaces and for these purposes to
       divide the city into districts.

CP at 88.

       A zoning ordinance typically regulates the use of land and the location and use of

buildings, including their height. As part of that purpose, the 1945 Zoning Ordinance defines

“story.” On the other hand, a building code determines how one safely and stably constructs a

building within the parameters of law, and as part of that purpose the 1939 Building Code also

defines “story.” The zoning ordinance defines “story” as part of its regulation of the use of land,




                                                 16
No. 47022-5-II


which applies independently of any private covenants. The building code defines “story” as part

of its prescription of how structures are built, a purpose more closely related to the work of

Covenant A, limiting how many stories a building may have. In addition, the height limitations

of the zoning ordinance are merely a reference to those of the building code, suggesting even

more strongly that the terms of the latter apply in this situation, including its definition of story.

Accordingly, we hold that the 1939 Building Code supplies the appropriate definition of “story”

in Covenant A.11

4.      The Parsons’ Daylight Basement

        Because the 1939 Building Code supplies the definition for story in Covenant A, we

examine next whether the Parsons’ daylight basement constitutes a “story” under that definition.

We hold that it does not. The Parsons submitted uncontroverted evidence demonstrating that

their daylight basement does not fall within the confines of the 1939 Building Code’s definition

of “story.”




11
   The Neighbors also point to the development of Narrowmoor Fourth Addition as extrinsic
evidence illuminating Anderson’s intent to count a daylight basement as a story. They argue that
the change in phrasing from “two stories in height” in Covenant A to “not to exceed one story in
height, exclusive of basement story” in the Narrowmoor Fourth Addition covenant was
concurrent with a change in the 1953 Zoning Ordinance, which added definitions of “basement”
and “cellar,” and “implied that such spaces would no longer be counted as stories if more than
half of the space was underground.” CP at 442-44; Br. of Resp’t at 26.
        Although it is certainly possible that Anderson changed the covenant language in
Narrowmoor Fourth in light of the 1953 Zoning Ordinance, this evidence has little, if any, relation
to Anderson’s intent in drafting Covenant A, completed nine years previously. It could be
coincidental; it could be because he wanted the homes to be different in Narrowmoor Fourth
Addition and Narrowmoor Third Addition; it could be because he wanted a daylight basement to
be considered a story in all of the Narrowmoor communities; whatever the case, Anderson’s intent
in drafting Covenant A cannot be derived from this extrinsic evidence.

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       As set out above, the definition of “story” in the 1939 Building Code states that

       [i]f the finished floor level directly above a basement or cellar is more than six feet
       (6’) above grade such basement or cellar shall be considered a story.

CP at 291. The 1939 Building Code defines “Grade (Ground Level)” as:

               1. For buildings adjoining one street only, the elevation of the sidewalk at
       the center of the wall adjoining the street.
               2. For buildings adjoining more than one street, the average of the elevations
       of the sidewalk at centers of all walls adjoining streets.
               3. For buildings having no wall adjoining the street the average level of the
       ground (finished surface) adjacent to the exterior walls of the building. All walls
       approximately parallel to and not more than five feet (5’) from a street line are to
       be considered as adjoining a street.

CP at 290.

       The only evidence as to whether the Parsons’ daylight basement meets this 1939

definition of “story” is the declaration of professional land surveyor Thomas R. Gold. In

analyzing this question, Gold used the third alternative definition of “grade” immediately

above, without any controverting evidence from the Neighbors. CP at 367-68. Using

this definition, Gold calculated the average grade of the Parsons’ home after the

renovation. He then determined that the elevation of the finished floor level of the first

floor is less than six feet above the average grade calculated consistently with the 1939

Building Code. Because that floor level must be more than six feet above grade to

qualify as a story, Gold concluded that the Parsons’ daylight basement is not a “story”

under the 1939 Building Code.

       Therefore, in the absence of any genuine issue of material fact, the Parsons’ basement as

a matter of law is not a story under the 1939 Building Code and consequently does not count as a




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story under Covenant A. Consistently with CR 56(c), we reverse the trial court’s grant of

summary judgment in favor of the Neighbors.

                  V. ACQUIESCENCE, ABANDONMENT, AND INJUNCTIVE RELIEF

       The Parsons argue that the trial court erred in granting summary judgment to the

Neighbors on the defenses of acquiescence and abandonment and in enjoining the Parsons from

constructing two stories over a daylight basement. Because we hold that the Parsons’ daylight

basement is not a story as defined in Covenant A, we need not reach the issues of acquiescence

or abandonment. For the same reason, injunctive relief is no longer proper, and we vacate the

injunction against the Parsons' construction.

                                            VI. COSTS

       The Neighbors also asked for an award of costs under RCW 7.28.100. RCW 7.28.100

states “[t]hat the provisions of RCW 7.28.050 through 7.28.100 shall be liberally construed for

the purposes set forth in those sections.” This is not a cost awarding provision. The Neighbors

provide no other argument for costs except the mere citation to RCW 7.28.100 in the conclusion

of their response brief. Accordingly, we deny the request for costs.

                                         CONCLUSION

       First, we dismiss the Shillitos from this lawsuit for lack of standing to enforce Covenant

A. Second, we hold that the Neighbors were not collaterally estopped from bringing this suit

against the Parsons, and we affirm the trial court’s order granting summary judgment in favor of

the Neighbors on collateral estoppel. Third, we hold that the 1939 Building Code’s definitions

are proper extrinsic evidence to illuminate Anderson’s intent in drafting Covenant A and that the

Parsons submitted uncontroverted evidence showing that their daylight basement is not a story


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under those definitions. Therefore, we hold that the Parsons’ daylight basement is not a story

under Covenant A, and we reverse the trial’s court’s order granting summary judgment in favor

of the Neighbors on that issue. We do not reach the trial court’s order granting summary

judgment in favor of the Neighbors on the issues of abandonment and acquiescence, and we

vacate the injunction issued by the trial court against the Parsons' construction.

        Affirmed in part and reversed in part.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




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