00-2514 Pertzsch v. Upper Oconomowoc Lake Association

Listen to this article

“The Association’s original argument that this language created an exception only for attached or integrated boathouses is without merit, especially in light of paragraph four which explicitly requires garages to be attached to the home but makes no reference to a boathouse.”

We further reject the Association’s argument that paragraph one is a “stand alone” provision that contains a standardless consent-to-construction covenant because if that were true, paragraph 2 of the covenants, which provides that plans for a “building” must be submitted to the Committee for approval as to “quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topograph and finish grade elevation and setback, front, back and side,” would be superfluous.

Finally, even though no other resident had constructed a detached boathouse, that is not a proper criterion under the covenants to refuse plaintiffs’ request.

“The Committee has no authorization to use the standards in the covenant to effectuate an express prohibition of detached, lakeside boathouses when the agreement expressly allows such structures to be built. While the Committee can control construction of boathouses using the criteria in paragraph two, it cannot ban them entirely.”

Affirmed.

Recommended for publication in the official reports.

CONCURRING OPINION: Anderson, J. “I concur in the result because we are bound by precedent, but I believe the time has come to abandon an out-of-date public policy favoring unrestricted use of real property in favor of a public policy that recognizes the important and useful role servitudes play in modern real estate development.

“If I could use the modern approach to interpreting restrictive covenants, I would approve the action of the Committee because the proposed detached boathouse changed the neighborhood ambiance, backdrop and setting. The proposed boathouse would be the subdivision’s only detached boat storage. These factors furnish an objective, reasonable and nonarbitrary basis for denying permission under the modern approach embodied in the Restatement.”

Dist II, Waukesha County, Foster, J., Brown, J.

Attorneys:

For Appellant: Curtis A. Paulsen, Milwaukee; Mark P. Jungers, Milwaukee

For Respondent: Kathryn S. Gutenkunst, Waukesha