Not Quite A Dwelling...is it?

As previously mentioned I live in a lakeside development with a reasonably "genteel" set of covenants--which contain no enforcement provisions short of suing the offender! There are a lot of Do's and Don't's, but after a "conversation" and perhaps a "letter" from the Board, there is no enforcement mechanism such as fines.

Recently it has became apparent that we have a group of residents who understand what being a decent neighbor means in terms of consideration for those around you and the community, and then we have a group whose mantra is "my property, I can do with it as a like as long as it does not specifically violate the CCR's".

The preamble to our covenants (summarizing) says "we are a lakeside community whose number one asset, and the objective of the covenants, is to protect the scenic and beautiful nature of our surroundings, and minimize the blocking of views" through the following covenants: (And it goes on to list a series of the "usual" restrictions about everything from garbage cans to dwelling size and height. It specifically says each lot may contain one "dwelling" and a detached garage of certain specifications. With the exception of maintaining shrubs/trees so they do not interfere with "views", it says nothing specific about "Dwellings" which interfere with views (except that they may be more than three stories tall). The only guidance we have is that mentioned in the preamble regarding the overall objective of maintaining views.

So along come a very decent couple with a lovely home and yard who wish to build a pavilion in their back yard, 20X40, two stories, kitchen and bathrooms, storage, and a 'link' to their already substantial covered boat dock. The structure will include plumbing and electricity, will be closed on at least two sides, and will impede the side views of neighbors on either side of this couple.

Is this considered a "dwelling"? Is the issue of "view obstruction" valid? Clearly the building requires State approval (because of the lake) and it requires City approval because of set backs. Other than size, I don't see the State withholding permits, and if it "fits" in the set backs, I don't see the city withholding permits.

What other issues should we be thinking about? I am neither pro, nor con (and not SURE there is a CCR issue other than the vague preamble regarding "views"), but if it was in my neighbors back yard, I would think it more of an intrusion, but others may think "hey, his back yard, his to do with as he pleases". I am sure the building will be first class as to design and construction, but in THAT location???

Thoughts?

Val,

It may help if you read the opinion from the Colorado Court of Appeals in the matter of Allen v. Reed.
http://caselaw.findlaw.com/co-court-of-appeals/1464443.html

That case dealt with view restrictions and vaguely worded covenants in a lakeside community. The gist of their opinion was that in the absence of objective and definite restrictions, the owner may do as he chooses. In Allen, the issue was that the covenants prohibited two-story homes without defining what that is. The defendants built an A-frame with a loft and the plaintiffs argued it was prohibited because it was two stories. The court noted that even if the loft was removed the A-frame would still be 30 feet high and still block the view.

In my urban 'hood, Val, there are many, many "dwellings" that do not have bedrooms. They're called lofts and usually are one big or even vast room. The only area that might be, but isn't always, enclosed is the bathroom(s).

In your case, if it looks like a duck and quacks like a duck...

I also think that the intent of your preamble is crystal clear, but don't have time to read the case that Larry cites.

ValK2 (Tennessee):

1- Whether the "pavillion" violates the CCR restrictive covenants, including the issue whether a lateral view restriction constitute obstruction of view of the lake ?

Without reviewing the CCRs in their entirety and elevation views, I wonder who can be sure ?
Don't recall vetting by architectural review committee.

LarryB13 did well to find a 'lake view war' judgment albeit from Colorado. Bet its not an accident that the Colorado litigants did not include the HOA/POA itself.

'Preambles' can get a looking-at to interpret ambiguities in a document/statute, but the Colorado appeals court was unwilling to impose restrictions not clearly agreed & imposed within the CCRs.

Looking wider, rear-lotters get a price discount for degrees of view obstruction. If they buy into something sloppy & imprecise, haven't they taken an agreed risk ? Conversely, should those front-lotters who paid a premium, be locked into something like the old Colorado log cabin ?

Rear lotters may have a right to have their drainage rights considered & protected.

2 ValK2 Tenn also invited : " What other issues should we be thinking about ?"

If its anyone's business other than the municipal planner/conservation authority, are 'pavillions' ( ?) beyond 'dwelling & garage' etc, part of a larger issue for the lake ?

Even rearside additions (that help turn out 6 or 7 thousand square foot lakeside living) can be an environmental & lakehealth issue. Part of this is ongoing septic treatment/clock ticking on aging or overloaded septic systems. This may not be a mere HOA issue.