[WSBARP] HOA residential uses case

[Rob Wilson-Hoss]

          For HOA wonks, new case from Div 3, Coyne et ux et al v. Grigg
Family et al. Issue was residential uses. Two owners: one wanted to use a
residential-use-restricted lot as  a hardware store, and the City wanted to
use a lot for a public park and community garden, and stormwater drainage.
The first was obviously not residential (they argued, according to the
opinion - which may or may not be accurate - that it was residential because
some day the store could be torn down and the lot could revert to
residential uses). 

 

          The second lot, used as a park, the Court found was a residential
use. But in doing so it ignored Washington case law, which is weirdly
complicated and difficult to fully "appreciate." The Court did address case
law about how to interpret covenants, but it never looked at the general
trends and discussions from other cases, from 1917 through Chiwawa now,
about residential uses and what that means. A couple of years ago I put this
together for a client, whilst trying to explain why I could not give very
exact advice about a proposed use being residential or not;

 

1.    Hunter Tract improvement Co., 98 Wash. 112 (1917): use as a convent
was residential;

2.    Hagemann v. Worth, 56 Wash. App. 85 (1989): "elderly" group home is a
business;

3.    Mains Farm v. Worthington, 64 Wash. App. 171 (1993): group home was
not incidental use to residence of owners, it was business primarily; her
residential use was incidental to business use;

4.    Metzner v. Wojdyla, 125 Wash. 2d 445 (1994): day care may be
incidental to residential use, and incidental/primary issue is interesting,
bottom line is, it is a business use and not compatible with restriction to
residential use;

5.    Wingate v. Marks, 97 Wash. App. 1024 (1999)(unreported): renting
basement apartment is a business use. Single family residential means no
business uses;

6.    Peckham v. Milroy, 104 Wash. App 887 (2001): children's day care is
business; prohibition against business uses applies;

7.    Fowler v. Loucks, 133 Wash. App. 1020 2006 (unreported): prohibition
against parking commercial vehicles anywhere but inside garage or on
assigned parking; Mis-represents Mains Farm's discussion of incidental use
(see Metzner); finds that main purpose is residential, business use is just
parking a work vehicle with a business sign on it; 

8.    Ross v. Bennett, 148 Wash. App. 40 (2008): use as short term vacation
rental (VRBO) is still a residential use even though it is a residential use
that is the business of the owner. Includes both long-term rentals and short
term rentals within result; 

9.    Wilkinson v. Chiwawa Communities, 180 Wash.2d 241 (2014): Vacation
rentals are not commercial uses and are consistent with single-family
residential use provisions. 

          Oh, look, I found my drum in the corner. This is the same one I
beat regularly: why can't our Courts see HOA cases more clearly, and use
precedent, and try to create rules that people can follow? Is a drainage
pond a residential use? Is a city park a residential use? Are for-pay garden
spots a residential use? What usefulness is the "incidental to residential
use" concept? Are these uses "primarily" residential, or are they
"primarily" something else (like, well, parks). In this case, payment by pea
patch users doesn't matter. In at least one other jurisdiction, fee-for-use
parks are not residential uses. 

 

          On the other hand, I get to take my 4-year-old grandson to
Taekwondo this afternoon. Watching 4-year-olds try to do jumping jacks is
hilarious. 

 

Rob    

 

 

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
 <mailto:rob at hctc.com> rob at hctc.com

 

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