
    William D. WOODWARD, et al. v. William Kent CUTRER and Linda Arnold Cutrer, et al.
    No. 02-423.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Writ Denied May 2, 2003.
    
      Karl E. Boellert, Kenneth Michael Wright, Lake Charles, LA, for Plaintiff/Appellee, William D. Woodward.
    Allen L. Smith, Jr., Plauche, Smith & Nieset, Milo Nickel, Lake Charles, LA, for Defendants/Appellants, William Kent Cut-rer and Linda Arnold Cutrer.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   LTHIBODEAUX, Judge.

The defendants, William Kent Cutrer and Linda Arnold Cutrer, et al., contest a judgment from the trial court ordering the removal of a pier and boathouse from the lake adjacent to their property. The order was rendered upon the complaint of the plaintiffs, William D. Woodward and Elizabeth S. Woodward, et al., and the trial court’s determination was that the construction was in violation of a subdivision’s building restrictions. For the following reasons, we affirm the judgment of the trial court and enter judgment in favor of the plaintiffs.

I.

ISSUES

We have determined that the following issue encompasses defendants-appellants’ assignments of error on appeal:

1. whether building restrictions applicable to a waterside subdivision are inapplicable to construction of a wharf on an adjacent state-owned water bottom;
2. whether the amendments to the Cy-prien Estates Subdivision Restrictions were properly enacted by the defendants, William and Linda Cut-rer?

II.

FACTS

This matter stems from building restrictions of a subdivision on Prien Lake in Calcasieu Parish. The area now comprising the subdivision was at one time owned, in its entirety, by Elizabeth S. Woodward. In 1990, Mrs. Woodward divided the acreage into twelve individual lots, naming the development Cyprien Estates. In October 1990, Mrs. Woodward filed the Cyprien Estates Subdivision Restrictions into the public record. The building restrictions, relevant portions of which will be set [¡.forth below, provided that Mrs. Woodward retain approval rights to any plans for construction on the subdivision’s lots. It also provided for amendment of the restrictions by a majority of the property owners.

Mrs. Woodward continued living at Cy-prien Estates, retaining Lot 5. Karl and Kathleen Boellert are residents of the home situated on Lot 6 and have lived in the subdivision since 1991. Lot 7 was sold to Kent and Linda Cutrer in October 1991. Each of these adjoining lots are on the waterfront of Prien Lake.

This matter arose when the Cutrers sought approval for the construction of a pier and boathouse in 1996. As is required by the building restrictions, the Cutrers applied for a permit for the construction from the Corps of Engineers. During the permitting process, Mrs. Woodward became aware of the Cutrers’ plans and indicated her disapproval of the proposed construction. According to the affidavit of Mrs. Woodward’s husband, William Woodward, he informed the Cutrers that the location of the proposed construction would interfere with the lakefront views of Lots 5 and 6. A new location was suggested for placement of the pier and boathouse.

In May 1996, the Cutrers attempted to amend the building restrictions, removing that portion of the restriction requiring Mrs. Woodward’s prior approval of construction plans. As is provided for in the restrictions, the amendment was approved by a majority of the subdivision’s property owners. The amendment was filed into the public record. The Woodwards and Boellerts contend they were not apprized of the amendment at the time the Cutrers were gathering support from the other residents.

The petition instituting this matter was filed in June 1996 by the Woodwards and Boellerts. The Cutrers, along with other residents signing the amended building restrictions, were named as defendants. Initially, the plaintiffs ^sought a declaration that the original building restrictions were in effect and a declaration that the amended restrictions were null. They further sought a permanent injunction against actions to deprive them of their property rights and damages they contend were associated with the conflict over the building of the boathouse and pier.

In May 1997, the plaintiffs filed a supplemental petition, asserting that the pier and boathouse had been completed. Due to the construction, the plaintiff amended their plea, seeking a mandatory injunction and an order to move or remove the pier. They again asked to be compensated for injuries and damages related to the construction.

Both parties filed motions for summary judgment and supported the motions with documents related to the amendment of the restrictions and the planning and construction process. Following a hearing, the trial court granted the plaintiffs’ motion for summary judgment, finding that the building restrictions constituted real rights that required notice to the plaintiffs prior to amendment. The trial court ordered that the pier be removed or moved to the location originally suggested by the Woodwards.

Jin.

LAW AND DISCUSSION

Restrictions’ Applicability to Adjacent, Government-Owned Water Bottoms

The defendants-appellants assert that the building restrictions are inapplicable to constructions on adjacent, government-owned water bottoms such as Prien Lake. They contend that Lieber v. Rust, 398 So.2d 519 (La.1981), stands for this proposition. In Lieber, the Louisiana Supreme Court considered a dispute over placement of a pier and boathouse on Cross Lake, a shoreline and water bottom controlled by the City of Shreveport. The property in the subdivision at issue in Lie-ber was controlled by title restrictions, one of which required approval of an architectural control committee prior to construction of piers and boathouses. The plaintiff filed suit against the defendant landowner due to construction of a pier and boathouse that he alleged obstructed his view. The defendant failed to seek prior approval by the architectural control committee. Although the opinion dealt primarily with the question of whether an adjacent property owner is entitled to an unobstructed view of the water, the supreme court also concluded that the defendant’s failure to follow the subdivision’s building restrictions did not require removal of the structure. Contrary to the assertion that Lieber stands for the proposition that building restrictions are inapplicable to adjacent government-owned water bottoms, the supreme court merely observed that the restrictions were concerned with the committee’s approval with the aesthetics and craftsmanship of proposed constructions. As the plaintiffs suit concerned only the placement of the structure, not its quality or appearance, the supreme court determined that the issue was not one over which the architectural control committee had control. Therefore, the court determined that the defendant’s “failure to obtain approval of the committee is 1 simmaterial.” Id. at 523. The supreme court did not indicate that agreements made between the property owners and memorialized in building restrictions cannot provide certain agreed-upon standards for the structures separately permitted and controlled by the relevant government entity. Therefore, we do not find the building restrictions in this case are, on their face, inapplicable to the adjacent government-owned water bottom.

Amendment of the Restrictions

Appellants, William and Linda Cut-rer, et al., assert that they properly amended the building restriction, as required by the provisions of the Cyprien Estates Subdivision Restrictions, by obtaining majority approval of the property owners. We disagree.

The developer, Elizabeth Woodward, wholly owned the property known as Cyprien Estates, prior to dividing the property into several lots for residential purposes. Mrs. Woodward established several restrictive covenants on the property, which were to “run with the land and shall be binding on all parties and all persons claiming under them for a period of 25 years from [the] date these covenants [were] recorded, after which time said covenants shall be automatically extended for successive periods of 25 years, unless revised as provided in [the Restrictions].” In the Subdivision Restrictions, there are a number of provisions that require the developer’s approval:

14. No used materials shall be used in the construction of-the exterior or any budding other than used brick, without the written approval of Mrs. Elizabeth Shutts Woodward or her agent,
| fi24. Plans for construction of said boathouse will be only with the United Corp of Engineers permit and the developer’s approval,
27. Prior to construction of any nature, be it dwelling, out-building, fencing, boat houses, wharves or any re-modeling which tends to change the exterior appearance of any structure [sic]. Approval of said proposed construction shall be submitted to Mrs. Elizabeth S. Woodward, or her designee, by use of preliminary plans for approval. Said approval or rejection shall be given in a timely manner. Should said approval not be rendered within thirty (30) days, construction may commence.

Specifically, at issue in this case is Restriction No. 24, which prohibits the construction of a boathouse without Mrs. Woodward’s approval.

Defendants assert that Paragraph 4 of Restriction No. 38 permits amendment of any provision contained in the restrictions as long as a majority of the homeowners agree. Paragraph 4 of Restriction No. 38 states the following:

The above restrictive covenants may be modified, extended, amended, changed or altered at any time by and with the written consent of the record owners of a majority in number of lots in this subdivision.

Utilizing this provision, the Cutrers convinced the majority of the property owners in the subdivision to amend the Restrictions so that the disputed amendment reads as follows:

NOW THEREFORE, appears [sic] do hereby amend the restrictive covenants affecting Cyprien Estates, recorded in Conveyance Book 2216 at page 15, so as to delete therefrom paragraph 14 and 27 and to amend Paragraph 24 to read as follows:
24. Construction of said boathouse will be with the United States Corps of Engineers permit only.

We agree with the defendants that a majority vote of the homeowners, with written consent, may “modify, extend, amend, change, or alter” the restrictive |7covenants. However, this provision does not permit termination of restrictions. We find that defendants’ “amendment,” deleting completely paragraphs 14 and 27 and eliminating Mrs. Woodward’s approval for boathouse construction in paragraph 24 serves to terminate, rather than merely modify, the restrictive covenant.

Throughout the Restrictions, Mrs. Woodward requires her approval for various changes or additions to the property as demonstrated above. We find it difficult to believe that the developer, once she received notice of the proposed amendment, would permit an amendment that would altogether eliminate her approval of houseboat construction, having the effect of terminating the restriction. We find that in eliminating her approval, defendants have circumvented the whole intent of creating building restrictions. “Building restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of a general plan.” La.Civ.Code. art. 778. (Emphasis added).

Termination of a restrictive covenant is not provided anywhere in the Cyprien Estates Subdivision Restrictions. Since we are provided no guidance on the issue of termination in the act, we must refer to the Louisiana Civil Code for resolution of this matter.

Under Louisiana Civil Code article 780, “Amendment and Termination of Building Restrictions,” [b]uilding restrictions may be amended, whether such amendment lessens or increases a restriction, or may terminate or be terminated, as provided in the act that establishes them. In the absence of such a provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land |sarea affected by the restrictions, ... “if the restrictions have been in effect for at least fifteen years,.... ” (Emphasis added).

As previously stated, we find no provision that permits termination of the restrictions. Defendants may argue that the modification provision is inclusive of termination; however, “[tjermination and amendment of building restrictions are generally different and distinct matters.” Mackey v. Armstrong, 30,054, p. 2 (La. App. 2 Cir. 12/30/97); 705 So.2d 1198, 1199. Nevertheless, even if this court could find support for such termination, the restrictions have not been in existence for at least fifteen years.

The Cyprien Subdivision Restrictions were established on October 9, 1990. Commencement of this action began on July 17, 1996, when plaintiffs sought declaratory judgment requesting the court to declare the original Subdivision Restrictions as applicable and the amendments null and void. In 1996, the Restrictions had not been in effect for fifteen years. Furthermore, fifteen years has not passed to this date. Therefore, we find that defendants were not entitled under the Subdivision Restrictions to terminate the provision requiring developer’s approval for construction of a boathouse. Article 780 of the Civil Code prevents termination of building restrictions, which have not existed at least fifteen years.

Plaintiff, Elizabeth Woodward, established in the Subdivision Restrictions that the restrictive covenants run with the land for twenty-five years, in successive twenty-five year periods, unless it has been revised. This court cannot ignore the clear intentions of the developer as outlined in the Restrictions. Further, we find that defendant’s sought to remove the prior approval provision because defendants believed that Mrs. Woodward not approve the construction. Although Mrs. Woodward disagreed with the construction of the boathouse at its current | location, she did propose another possible site on the Cutrers’ property for the pier and boathouse. Thus, we find that Mrs. Woodward was not unreasonable as to defendant’s construction of the boathouse.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed at appellants’, William Cutrer and Linda Arnold Cutrer, et al, costs.

AFFIRMED.

AMY, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

| AMY, J.,

dissenting.

I respectfully dissent from the majority opinion. My approach to the issue involved in this case fundamentally differs from that of the majority. First, I do not view the action taken by the defendants as a termination of the building restrictions, but an amendment to the provisions. Further, even if the action is to be characterized a termination, or partial termination, I find that the building restrictions indicate that they may be “modified, extended, amended, changed or altered” by consent of a majority of the landowners. I conclude that this description is sufficiently broad to encompass the type of partial “termination” at issue here. As set forth below, La.Civ.Code art. 780 makes initial provision for amendment or termination of building restrictions by the terms of the “act that establishes them.” Having stated that I disagree with the majority’s resolution of the issue, I turn to the analysis I find appropriate for this case, a case which arrived at the trial court on cross motions for summary judgment.

The defendants’ primary contention is that the amendments were made pursuant to the requirements of the original building restrictions. The plaintiffs argue that the amendments to the building restrictions were correctly viewed by the trial court as null. They contend that the original building restrictions are real rights, ones that should be viewed as requiring notice and the right to be heard prior to amendment. As notice and an opportunity to be heard were not provided to the [{.plaintiffs prior to the amendment, they contend that the amendment must be found to be null.

Title V of Book II of the Louisiana Civil Code addresses building restrictions. Insofar as is relevant to the present case, the Civil Code provides:

Art. 775. Building restrictions
Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.
Art. 776. Establishment
Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables. Once established, building restrictions may be amended or terminated as provided in this Title.
Art. 777. Nature and regulation
Building restrictions are incorporeal immovables and real rights likened to predial servitudes. They are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions.

As can be seen by reference to the above Articles, the plaintiffs correctly contend that the building restrictions are real rights akin to predial servitudes. See also La.Civ.Code art. 777. See also a.n. yianno-POULOS, LOUISIANA CIVIL LAW TREATISES, PREDIAL servitudes § 192 (1997). However, they further contend that notice and a right to be heard should be viewed as a prerequisite to amendment. This type of requirement of notice is absent from the Cyprien Estates building restrictions, which provide, in pertinent part:

14. No used materials shall be used in the construction of the exterior or any building other than used brick, without the written approval of Mrs. Elizabeth Shutts Woodward or her agent.
22. Any boathouses are to be for the personal use of the contiguous lot owner, only.
|o23. All boat houses are to be constructed so as to be closed in on three (3) sides, and of material compatible with the dwelling of said lot.
24. Plans for construction of said boathouse will be only with the United Corp of Engineers permit and the developer’s approval.
25. Access to water frontage is proposed for Lots 9 and 10 by means of extending the existing boat canal; same shall be used only by owners of Lots 8, 9 and 10.
26. They shall be cooperative in their use and in no manner whatsoever block said waterway.
27. Prior to construction of any nature, be it dwelling, out-building, fencing, boat houses, wharves or any remodeling which tends to change the exterior appearance of any structure[sic]. Approval of said proposed construction shall be submitted to Mrs. Elizabeth S. Woodward, or her designee, by use of preliminary plans for approval. Said approval or rejection shall be given in a timely manner. Should said approval not be rendered within thirty (30) days, construction may commence.
38. The invalidation of any one of the foregoing restrictions or covenants by final judgment of any competent court shall in no way affect the validity of any other restrictions or covenant which shall remain in full force and effect.
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 25 years from date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of 25 years, unless revised as provided in paragraph 20 below [sic]. The breach of any of the foregoing covenants shall not defeat or render invalid any title, hen, mortgage or deed of trust made in good faith for value as to the said land, residence, outbuilding or garage located as hereinabove provided. The breach of any of said covenants or the continuance of any such breach may be enjoined, abandoned or remedied by appropriate proceedings and each of the foregoing covenant shall remain at all times in full force and effect, as against any breach thereof by any such owner, whether such ownership is acquired by purchase, foreclosure, devise, inheritance or any other manner.
Invalidation of any one of these covenants by judgement of court order shall in no way affect any of the other provisions which shall remain in full force and effect.
|4The above restrictive covenants may be modified, extended, amended, changed or altered at any time by and with the written consent of the record owners of a majority in number of lots in this subdivision.

With the majority of the property owners in the subdivision signing the document, the amendment at issue reads as follows:

NOW THEREFORE, appears do hereby amend the restrictive covenants affecting Cyprien Estates, recorded in Conveyance Book 2216 at Page 15, so as to delete therefrom paragraphs 14 and 27 and to amend Paragraph 24 to read as follows:
24. Construction of said boathouse will be with the United States Corps of Engineers permit only.

My review of the building restrictions, the amendment, and applicable legislative and jurisprudential authority reveals no fatal flaw in the amendment. Article 780 of the Louisiana Civil Code provides:

Building restrictions may be amended, whether such amendment lessens or increases a restriction, or may terminate or be terminated, as provided in the act that establishes them. In the absence of such provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land area affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for at least fifteen years, or by agreement of both owners representing two-thirds of the land area affected and two-thirds of the owners of the land affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for more than ten years.

Although this provision was enacted by Acts 1999, No. 309, § 1, and became effective June 16, 1999, Section 4 of No. 309 provides that “the provisions of this Act legislatively overrule the case of Brier Lake, Inc. v. Jones, 97-C-2413 (La.4/14/98); 710 So.2d 1054, are remedial, and shall apply both prospectively and retroactively.” Reference to Brier Lake, a case advanced by the plaintiffs, indicates that the Louisiana Supreme Court determined in that case that unanimous consent of a subdivision’s owners was required to make a provision of existing budding restrictions more restrictive. However, the supreme court did not address the type of 1 ^amendment before the court in the instant matter, ie., one that makes the restrictions less onerous.

As seen above, Article 780 provides that amendment may be made in accordance with the method set forth in the act establishing the restrictions. The original building restrictions provide for amendment “by and with a majority in number of lots in this subdivision.” Nothing in the Cyprien Estates building restrictions requires a unanimous vote. Neither do the building restrictions provide any indication that notice is required to be provided to all property owners.

Although La.Civ.Code art. 777 provides that building restrictions are real rights, there is no authority to suggest that notice is required prior to amendment. The plaintiffs advance Bruce v. Simonson Investments, Inc., 251 La. 893, 207 So.2d 360 (1968) as a case in which notice to property owners was found to be a prerequisite to amendment of building restrictions. However, the following, detailed notice requirement is contained in the original building restrictions at issue in Brace:

Any change in the above restrictions and covenants may be made only upon the affirmative vote in writing of the owners of a majority of the lots in Squares 9 through 18, both inclusive, above described, and then only after a written notice of a meeting to consider such changes shall have been given to all of the owners of said lot. This notice shall state the nature of the change, the time, date and place of the meeting.

Bruce, 207 So.2d at 362. No such requirement is contained in the Cyprien Estates building restrictions. Although a requirement of notice could have been included at the time Mrs. Woodward created the subdivision, it was not. No provision for notice and an opportunity to be heard can now be read into the restrictions.

Following de novo review of the record, I conclude that the summary judgment entered in favor of the plaintiffs declaring the amendments to the Cyprien Estates building restrictions null, was in error. As I would reverse the summary judgment | fientered in favor of the plaintiffs and would enter summary judgment in favor of the defendants, I dissent. 
      
      . The defendants responded to the petition with a Peremptory Exception of No Cause of Action, Failure to Join an Indispensable Party, and Declaratory Exception of Lack of Subject Matter Jurisdiction. The trial court granted the exception of peremptory exception of no cause of action in part, but denied the exception insofar as it related to claims of interference with drainage and issues related to restrictive covenants. The granting of the partial exception of no cause of action was later reversed on appeal, with a panel of this court recognizing that, at that time, no action existed for partial exception of no cause of action. Woodward, v. Cutrer, an unpublished writ dated January 24, 1997 and bearing the docket number W96-1670.
     
      
      . Mrs. Woodward asserted at trial that she, as the developer and a resident, was never given notice of the proposed amendment.
     