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Cattail Creek Community Association v. Thompson

Supreme Court of Montana

October 1, 2019

CATTAIL CREEK COMMUNITY ASSOCIATION, a Montana nonprofit corporation, Plaintiff and Appellee,
v.
PETER THOMPSON, Defendant and Appellant.

          Submitted on Briefs: May 8, 2019

          APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 15-636CX Honorable Rienne McElyea, Presiding Judge

          For Appellant: Peter Thompson, Self-represented, Bozeman, Montana

          For Appellee: Wayne Jennings, Jennings Law Office, P.C., Bozeman, Montana

          OPINION

          Dirk M. Sandefur Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Peter Thompson (Thompson) appeals the 2018 judgment of the Montana Eighteenth Judicial District Court, Gallatin County, granting Cattail Creek Community Association (Association) specified injunctive relief enforcing a subdivision covenants building restriction. We affirm.

         ¶3 Cattail Creek Subdivision is a major, multi-phase, mixed-use subdivision in Bozeman, Montana. The developer obtained subdivision approval in three phases-Phase 1 in 2002 (37 lots), Phase 2A/2B in 2003 (73 lots), and Phase 3 in 2005 (66 lots). Upon filing each final plat, the developer recorded a set of protective covenants governing that phase. All three covenant sets were substantially similar in pertinent part.

         ¶4 Each covenant set provided that all land in each plat "shall be held, sold, conveyed, . . . occupied, and improved subject to" those covenants and any subsequent amendments thereto. Each set provided that the covenants:

are intended to enhance the desirability and attractiveness of the land . . . [and] shall run with the land and shall be binding upon all person[s] having or who acquire any right, title or interest in and to the land, and shall inure to the benefit of the Declarant, the Association and each person who becomes an owner of the land.

Each set defined the "Association" as the "Cattail Creek Community Association" and "empowered [it] with" all "rights" and duties specified therein and as may be subsequently amended. Each set provided that every owner or contract purchaser of a subdivision lot is "a member of the Association" and that "[m]embership shall be appurtenant to . . . the ownership of any lot."

Inter alia, each covenant set expressly prohibited building on subdivision land except in accordance with "plans and specifications" previously approved by the Association. The building restriction further expressly required that an approved structure "must be erected and completed within one year from the date of approval."[1] Each set included the following remedies for enforcement of the building restriction:
If any structure is commenced and is not completed in accordance with the [approved] plans and specifications within one year, the Directors of the Association, at their option, may take such action as may be necessary, in their judgment, to improve the appearance so as to make the property harmonious with other properties and to comply with these Covenants, including completion of the exterior or the combination thereof, or removing the uncompleted structure or similar operations. The amount of any expenditure made in so doing shall be an obligation of the owner. A lien on the property may be recorded and shall be enforceable by an action at law. In lieu thereof, the Association may take such action as is available by law, including an injunction, or for damages.

         ¶5 In 2006, an agent of the subdivision developer incorporated the referenced Association as a Montana non-profit corporation. Upon a meeting of the membership of all three phases, the combined membership elected a single nine-member board of Association directors-three elected by the membership of each phase. In 2007, a question arose as to whether the board should be administering the larger subdivision in unison as a single subdivision or, alternatively, as three separate subdivisions. Acting pursuant to an affirmative advisory vote of the combined membership of each phase, the board subsequently drafted a single set of proposed covenants, substantively similar to those originally governing each individual phase, for submission to a membership vote as a consolidating amendment of the original covenant sets. Upon appropriate approval, the new single set of covenants would supersede the original three sets and govern all three phases of the larger subdivision under the administration of the consolidated Association. In January 2008, the board submitted the proposed single-subdivision covenants to a membership vote by mail ballot election. Upon the affirmative vote of 75% of the members of all three phases, as counted at a noticed board meeting on March 26, 2008, the board declared the proposed single-subdivision covenants amendments duly approved.[2] The board ...


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