       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PICNIC POINT PRESERVATION             )                                                         Zr-
COMMITTEE, a Washington non-profit ) No. 76645-7-1
corporation,                          )
                                      ) DIVISION ONE                                  rx.)
                                                                                                T*
                   Appellant,         )
                                      )
               and                    )
                                      )                                          4--         --it,
                                                                                                 _
                                                                                 la
REGATTA ESTATES HOMEOWNERS ) UNPUBLISHED OPINION
ASSOCIATION, a Washington non-profit)
corporation,                          ) FILED: May 29,2018
                                      )
                   Plaintiff,         )
                                      )
               v.                     )
                                      )
SNOHOMISH COUNTY,a municipal )
corporation; and FROGNAL              )
HOLDINGS, LLC, a   Washington limited )
liability company,                    )
                                      )
                   Respondents.       )
                                      )

       BECKER, J. — Respondent Snohomish County approved a request by

respondent Frognal Holdings LLC to remove a restriction the county had

previously imposed against subdividing a large lot that is part of an earlier

subdivision. Appellant Picnic Point Preservation Committee filed a land use

petition, arguing that the restriction is a covenant that cannot be altered without
No. 76645-7-1/2

the signatures of other owners. Because the restriction is not a covenant, the

superior court correctly refused to reinstate the restriction.

                                       FACTS

         In 1992, Shergar Land Corporation submitted the Regatta Estates Plat to

Snohomish County for approval. Most of the 78 lots in the Regatta Estates were

between 5,000 and 20,000 square feet. Lot 1 was significantly larger at 6.4

acres.

         The plat, recorded in February 1996, contained restrictions required by the

county. Restriction 9 provided that lot 1 was to be left undeveloped except for a

single homesite:

      Lot 1 shall be treated essentially as a native growth protection area
      [NGPA]provided that a single homesite with access thereto may be
      developed on said lot. Site development plans for the access
      driveway and homesite including clearing and revegetation plans
      and detailed geotechnical analysis will be required to have received
      approval from the Planning Division prior to the issuance of any site
      development permits or any disturbance of said Lot.

         In May 1996, before conveying any lots, Shergar recorded a Declaration

of Covenants, Conditions, Restrictions and Easements(CCRs)for Regatta

Estates. The declaration, at section 7.1, stated Shergar's intent to subdivide lot 1

at some point in the future. It also contained a no-protest clause prohibiting lot

owners from objecting to subdividing lot 1 in the future if the subdivision complied

with "applicable" development regulations:

         With the exception of Lot 1, all lots within the Plat of Regatta
         Estates are in their final developed size and configuration. Lot 1,
         however, is an over-sized lot which the Declarant intends, at some
         time in the future, to subdivide. The owners of Lots in the Plat of
         Regatta Estates shall take ownership subject to the right of the
         Declarant and/or its successors to further subdivide Lot 1 pursuant

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      to applicable rules, ordinances or regulations, of the governmental
      entity regulating development of the same. Accordingly, no lot
      owner shall have the right to protest and/or object to the Declarant
      or its Successors efforts to subdivide said real property so long as
      such subdivision is being requested and/or completed consistent
      with the rules and regulations of the municipality regulating
      development at the time of such subdivision.

      In 2005, an entity known as Horseman's Trail LLC initiated an application

procedure to subdivide lot 1. At some point thereafter, Frognal Holdings

acquired lot 1 as well as two adjacent parcels. The three parcels were combined

to create a 22.3 acre plot of land designated as Frognal Estates. Frognal

planned to subdivide this property into a total of 112 lots, including more than 30

lots on lot 1. To this end, Frognal proceeded with the subdivision application for

lot 1 begun by Horseman's Trail. Because this objective would require alteration

of the Regatta Estates subdivision of which lot 1 was a part, county approval was

necessary. Frognal asked the county to strike restriction 9 from the Regatta

Estates plat In connection with its broader request for approval of a new 112 lot

subdivision.

      The Snohomish County Hearing Examiner held a public hearing on the

matter beginning in February 2016. Appellant Picnic Point and the Regatta

Estates Homeowners Association opposed the request to strike restriction 9.

They argued that restriction 9 was a de facto restrictive covenant prohibiting

development of lot 1 unless the application included signatures of other owners

who were subject to the 1996 covenants, which it did not. The hearing examiner

rejected the argument, ruling that it was unreasonable to expect that lot 1 was




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No. 76645-7-1/4

restricted from further development in view of the explicit statement in the CCRs

that the declarant intended to subdivide lot 1 in the future:

      To the extent Preservation Committee argues that restriction 9
      requires Lot Ito be held in perpetuity as a constructive NGPA
      [Native Growth Protection Area], the restriction cannot be so
      interpreted. First, no law supports the argument. Second, Lot 1 is
      clearly not a "legal" NGPA; it did not comply with the NGPA
      requirements extant at the time of Regatta Estates' establishment,
      Lot us not marked with signs as an NGPA as required by county
      code, and by its express terms may be developed with a house and
      driveway, both of which are incompatible with, and disqualify the lot
      as an NGPA. The Hearing Examinees decision approving the
      preliminary subdivision of Regatta Estates noted "The plat road in
      Parcel A has been designed to allow its northwesterly extension
      through proposed Lot 1...." Dedication of a 60 foot wide right of
      way for a public road through lot 1 was required. Use of the adverb
      "essentially" signals Lot 1 is not a legal NGPA; the use of the word
      would have been unnecessary otherwise. Article VII of the Regatta
      Estates' CCRs contradicts any claimed expectation that Lot 1 would
       be a constructive NGPA in perpetuity by explicitly stating the
      declarant's intention to subdivide Lot 1 in the future. Restriction 9
      cannot be reasonably read to impress Lot 1 with a constructive
       NGPA status in perpetuity.

(Footnotes omitted.)

       Picnic Point and the Homeowners Association jointly appealed the

decision to the Snohomish County Council. The council affirmed the hearing

examiner's ruling. Picnic Point and the Homeowners Association then appealed

the decision to the Snohomish County Superior Court by filing a petition against

the county and Frognal under the Land Use Petition Act, chapter 36.70C RCW.

The court affirmed the council's decision. Picnic Point now appeals the superior

court's ruling. The Homeowners Association does not join in the appeal.




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No. 76645-7-1/5

       Picnic Point asks this court to invalidate the alteration of the Regatta

Estates plat and to reverse the county's approvals of the applications by Frognal

that depend on the plat alteration.

                                      ANALYSIS

       Initially, we deny Frognal's motion to dismiss Picnic Point's appeal for lack

of standing.

       Standing to bring a land use petition is limited by statute to certain types of

entities. RCW 36.70C.060. In the trial court, Frognal moved to dismiss both

Picnic Point and the Homeowners Association for lack of standing. The trial

court denied this motion and ruled that both entities had standing. The

respondents did not appeal this ruling.

       This court "will grant a respondent affirmative relief by modifying the

decision which is the subject matter of the review only(1) if the respondent also

seeks review of the decision by the timely filing of a notice of appeal or a notice

of discretionary review, or(2) if demanded by the necessities of the case." RAP

2.4(a). Frognal does not argue that the requirements of RAP 2.4(a) have been

satisfied.

       Picnic Point claims associational standing. Frognal asserts that the

Homeowners Association never had standing to begin with and therefore by

extension, Picnic Point never had associational standing.

       An association has standing to sue as long as one of its members would

have standing. Save a Valuable Environment v. City of Bothell, 89 Wn.2d 862,

866-68, 576 P.2d 401 (1978). Because the Homeowners Association is a


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member of Picnic Point, at a minimum, Picnic Point has standing to represent the

interests of the association. The trial court's ruling denying Frognal's motion to

dismiss for lack of standing was soundly based on this principle. Frognal does

not provide a basis to disturb that ruling.

       Citing RAP 3.1, the county argues that Picnic Point is precluded from

seeking appellate review. According to the county, Picnic Point Is not an

aggrieved party because its own rights and interests are not affected by the

alteration of the Regatta Estates plat. The county argues that Picnic Point does

not have associational standing on appeal because the association did not join in

the appeal. But the county does not explain why the Homeowners Association, a

member of Picnic Point, would need to join in the appeal to have its interests

represented on appeal by Picnic Point. Because Picnic Point has a member that

Is affected by the land use decision, Picnic Point has the status of an aggrieved

party under RAP 3.1.

       Turning to the merits of Picnic Point's appeal, we review the superior

court's decision under RCW 36.70C.030. Picnic Point seeks relief on grounds

that

              (b)The land use decision is an erroneous interpretation of
       the law, after allowing for such deference as is due the construction
       of a law by a local jurisdiction with expertise;
              .• •9



              (d) The land use decision is a clearly erroneous application
       of the law to the facts.

RCW 36.70C.130(1).

       The'law" that the hearing examiner interpreted and applied is a statute

regulating subdivisions. It requires the signatures of "all parties subject to the

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No. 76645-7-1/7

covenants" before a subdivision may be altered in a way that would violate a

covenant filed when the subdivision was approved. "When any person is

interested in the alteration of any subdivision or the altering of any portion

thereof... that person shall submit an application to request the alteration to

the legislative authority of the city, town, or county where the subdivision is

located.... If the subdivision is subject to restrictive covenants which were filed

at the time of the approval of the subdivision, and the application for alteration

would result in the violation of a covenant, the application shall contain an

agreement signed by all parties subject to the covenants? RCW 58.17.215.

The Snohomish County Code sets forth nearly identical requirements in

SCC 30.41A.710(2).

       Picnic Point contends that Frognal's proposed alterations to lot 1 would

violate restriction 9 of the Regatta Estates Plat. A dispositive question, then, is

whether restriction 9 is a restrictive "covenant" as that term is used in

RCW 58.17.215. If so, alteration of lot 1 violates a covenant and cannot be

approved if it does not contain an agreement signed by all parties subject to the

covenants.

       The restrictions on the Regatta Estates Plat, including restriction 9, are

not, strictly speaking, covenants. Rather, they are restrictions on the face of the

plat imposed by the county. Picnic Point asks us to interpret the declaration as

incorporating restriction 9 as a de facto covenant.

       Covenants are interpreted in the same manner as contracts. Hollis v.

Garwall Inc 137 Wn.2d 683,696,974 P.2d 836(1999). "The interpretation of


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No. 76645-7-1/8

language contained in a restrictive covenant is a question of law for the court."

Green v. Normandy Park 137 Wn. App. 665,681, 151 P.3d 1038(2007), review

denied 163 Wn.2d 1003(2008). Our primary objective in this analysis is to

determine the intent or purpose of the covenant. Hollis, 137 Wn.2d at 696.

       Picnic Point's claim that restriction 9 is a de facto covenant relies on the

recital in Shergar's declaration for the CCRs for the plat of Regatta Estates. The

recital declares that all of the lots within the plat are subject to restrictions

recorded on the face of the plat:

               NOW,THEREFORE, Declarant hereby declares that all of
       the lots within the Plat of Regatta Estates shall be held, sold and
       conveyed subject to and together with the following easements,
       restrictions, covenants and conditions together with the restrictions
       (etc.) recorded on the face of the Plat, all of which are for the
       purpose of enhancing and protecting the value, desirability and
       attractiveness of the real property.

The hearing examiner's analysis, on the other hand,focused on the operative

language in section 7 of Shergar's declaration, stating that lot 1 was intended for

subdivision at sometime in the future.

       As a general rule, recitals or preambles in contracts may be resorted to in

aid of construction only when there is an ambiguity in the operative portion of the

agreement. Sethre v. Wash. Educ. Ass'n, 22 Wn.App. 666,670, 591 P.2d 838,

review denied, 92 Wn.2d 1020(1979). But when the language of the recital or

preamble states a promise, it is interpreted as if it were an operative term of the

contract. "'The essential feature of a contract is the promise, and whenever the

court can collect from the instrument an agreement to do or not to do a certain

thing, it amounts to a covenant, whether it be contained in the recital or in any


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No. 76645-7-1/9

other part of the instrument.'" Sethre 22 Wn. App. at 670, quoting First Nat'l

Bank & Trust Co. v. United States Trust Co., 184 Wash. 212, 219, 50 P.2d 904

(1935). In Sethre the court found that past iterations of a pension plan for staff

employees in the public schools had long contained a preamble promising that

benefits for staff would be substantially the same as for teachers. Because

teachers were entitled to pensions with a 2 percent benefit formula, the court

held that retired staff employees were also entitled to a 2 percent formula, rather

than the 1 percent formula stated in a recent change in the plan. Sethre, 22 Wn.

App. at 670. The variance between the preamble and the operative portions of

the plan created an ambiguity that allowed the court to consider other evidence.

Sethre 22 Wn. App. at 670.

       Applying Sethre to the present case, we can agree that the declaration as

a whole is ambiguous. The preliminary recital declaring that all of the lots in the

Regatta Estates plat(including lot 1) are subject to the restrictions on the face of

the plat arguably is a term incorporating restriction 9 into the declaration as a

restrictive "covenant"for purposes of RCW 58.17.215, a statute that was in effect

In 1996 in the same form as today. See LAWS OF 1987, ch. 354 § 4. But that is

not the only possible interpretation of the declaration taken as a whole. The

recital conflicts with the more explicit statements In section 7.1. That section not

only states that Shergar intended to subdivide lot 1 sometime in the future, it also

states that"no lot owner shall have the right to protest and/or object to the

Declarant or its successors efforts to subdivide said real property." That no-

protest clause would be of no effect if a lot owner had the ability to prevent the


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No. 76645-7-1/10

subdivision of lot 1 simply by withholding the signature required by

RCW 58.17.215.

       Picnic Point responds that section 7.1 is not a blanket no-protest clause

and it does not conflict with restriction 9 because it bars objection only if

resubdivision of lot 1 is "consistent with the rules and regulations of the

municipality regulating development at the time of such subdivision." According

to Picnic Point, the relevant rules and regulations are those found in

RCW 58.17.215 and the similar county ordinance, requiring signatures of other

owners as a precondition to altering the plat in a way that would violate a

covenant. This argument is circular. Again, if the declarant intended to make the

signatures of other owners a prerequisite for subdividing lot 1, the declarant

would not have inserted the explicit no-protest clause with respect to lot 1.

       When there Is an inconsistency between a general and a specific

provision, such as the declaration's general recital and the specific language of

section 7.1, specific language ordinarily prevails over more general terms. Mayer

v. Pierce County Med. Bureau. Inc., 80 Wn. App. 416, 423,909 P.2d 1323

(1995); McGarv v. Westlake Invirs, 99 Wn.2d 280, 286,661 P.2d 971 (1983).

The clarity of the declarant's specific intent stated in section 7.1, as compared to

the vaguer and more general language of the recital, persuades us that the

hearing examiners interpretation accurately reflects the intent and purpose of the

declaration. As the hearing examiner noted in his conclusions of law, "Lot 1 was

always intended to be subdivided and Regatta Estates homeowners had notice

of that intention." We conclude that restriction 9 was not intended to be a


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restrictive covenant that could not be altered without the signed agreement of

other parties subject to the covenant. The decision allowing restriction 9 to be

stricken from the Regatta Estates plat was not clearly erroneous.

       Respondents request attorney fees on appeal under RCW 4.84.370.

Picnic Point requests the opportunity to brief the issue of entitlement to attorney

fees on appeal once the appeal has been decided, but there is no authority

permitting that sort of piecemeal briefing. Because the respondents properly

requested an award of attorney fees in their respective briefs as required by RAP

18.1(a) and (b), and Picnic Point shows no reason why RCW 4.84.370 does not

apply in these circumstances, the request of the respondents is granted.

       The motion to dismiss the appeal is denied. The superior court's decision

Is affirmed.



                                                  gecce-e e,
WE CONCUR:




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