Pritchett v. Picnic Point Homeowners Association is an interesting case where the WA Court of Appeals, Division 1 reversed an earlier trial court decision. The case centers on restrictive covenants related to obstructing views. Here are some key excerpts:
¶ 17 The interpretation of a restrictive covenant is a question of law that we review de novo. Wimberly v. Caravello, 136 Wn. App. 327, 336, 149 P.3d 402 (2006). Restrictive covenants are interpreted to give effect to the intention of the parties to the agreement incorporating the covenants and to carry out the purpose for which the covenants were created. Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669 (1997). “The purpose of those establishing the covenants is the relevant intent. Subdivision covenants tend to enhance the efficient use of land and its value. The value of maintaining the character of the neighborhood in which the burdened land is located is a value shared by the owners of the other properties burdened by the same covenants.” Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. App. 665, 683, 151 P.3d 1038 (2007) (citing Riss, 131 Wn.2d at 621–24). Accordingly, we must place “special emphasis on arriving at an interpretation that protects the homeowners' collective interests.” The Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wn. App. 177, 181, 810 P.2d 27 (1991). “[I]f more than one reasonable interpretation of the covenants is possible regarding an issue, we must favor that interpretation which avoids frustrating the reasonable expectations of those affected by the covenants' provisions.” Green, 137 Wn. App. at 683.
¶ 18 In determining the intent of the parties to the agreement incorporating the covenants, we give “covenant language ‘its ordinary and common use’ and will not construe a term in such a way ‘so as to defeat its plain and obvious meaning.’ ” Wilkinson v. Chiwawa Cmtys. Ass'n, 180 Wn.2d 241, 250, 327 P.3d 614 (2014) (quoting Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 816, 854 P.2d 1072 (1993); Riss, 131 Wn.2d at 623). We examine the instrument in its entirety and use extrinsic evidence to “ ‘illuminate what was written, not what was intended to be written.’ ” Wilkinson, 180 Wn.2d at 250–51 (quoting Hollis v. Garwall, Inc., 137 Wn.2d 683, 697, 974 P.2d 836 (1999) ).
¶ 29 The trial court's analysis was flawed and its ruling erroneous. First, the trial court improperly imputed a de minimis standard into the phrase “obstruct the Puget Sound or Park view of any other parcel.” Contrary to the trial court's analysis, there already exists an objective standard against which the prohibition, as written, can be measured. A homeowner's existing view is either obstructed or it is not obstructed. Silence as to the extent of an obstruction does not create an ambiguity—“ ‘[i]t is the duty of the court to declare the meaning of what is written, and not what was intended to be written.’ ” Wilkinson, 180 Wn.2d at 252 (internal quotation marks omitted) (quoting Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990) ). By assuming that a minimal view obstruction could not possibly violate the covenant, the trial court introduced subjectivity to a standard that was otherwise facially objective. Moreover, the trial court's analysis ignored the Statement of Purpose—an integral part of the CC&Rs that is helpful for illuminating the purpose of the covenants contained therein. See Nelson v. Duvall, 197 Wn. App. 441, 453, 387 P.3d 1158 (2017) (“[I]n determining legislative intent, the ‘preamble or statement of intent can be crucial to interpretation of a statute.’ ” (quoting Towle v. Dep't of Fish & Wildlife, 94 Wn. App 196, 207, 971 P.2d 591 (1999) ) ).
¶ 30 Second, the trial court's analysis eschewed relevant extrinsic evidence and considered only statements made by select former Board members four years after the view protection clauses were adopted.3 But the intent of the homeowners who voted to adopt the covenants cannot be discerned through the post-hoc statements of individual Board members. See W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wn.2d 599, 611, 998 P.2d 884 (2000) (“A noncontemporaneous understanding of legislative intent is not reflective of the Legislature's rationale for enacting a 1981 statute.”); see also In re F.D. Processing, Inc., 119 Wn.2d 452, 461, 832 P.2d 1303 (1992) ( “[T]he comments of a single legislator are generally considered inadequate to establish legislative intent.”); State v. Leek, 26 Wn. App. 651, 657–58, 614 P.2d 209 (1980) (statements made by individual legislators five years after bill's enactment were not competent to prove legislative intent). Neither can the court consider evidence that varies, contradicts, or modifies the written word. Bloome v. Haverly, 154 Wn. App. 129, 138, 225 P.3d 330 (2010). Rather, the appropriate epoch for consideration was the period of time leading up to the adoption of the view protection clauses. It was during this time that the covenants were drafted, the drafters explained the proposal to the homeowners, and the homeowners who voted “yes” formed their reasons for so doing.
¶ 32 Finally, the trial court's conclusion that the CC&Rs could not be reasonably interpreted to prohibit Pritchett's proposal is belied by its order directing the Association to amend the CC&Rs and add language to conform to the court's interpretation. Rather than interpreting the writing to declare what was written, the trial court declared that which it believed the drafters intended to write and then required the Association to amend the CC&Rs to conform to the court's vision. “A court may not create a contract for the parties which they did not make themselves. It may neither impose obligations which never before existed, nor expunge lawful provisions agreed to and negotiated by the parties.” Agnew v. Lacey Co-Ply, 33 Wn. App. 283, 288, 654 P.2d 712 (1982).
¶ 33 The plain language of Section 7.4 prohibits homeowners from constructing or modifying structures if doing so would “obstruct the Puget Sound or Park view of any other parcel,” regardless of the severity of the obstruction. This plain language understanding is supported by the statement of purpose and the extrinsic evidence surrounding the adoption of the covenants. By ruling otherwise, the trial court erred.