California Case Law on Building Height Restriction
In King v. Kugler (1961) 197 Cal.App.2d 651, plaintiffs and defendants lived in homes on lots adjacent to one another in a 174-lot tract, developed by the original grantor, and their properties were subject to recorded restrictions that limited construction to "one detached single family dwelling not to exceed one story in height." (Id. at p. 653.)
The topography of the properties was such that defendants' lot was lower than plaintiffs so "there was an extensive view from plaintiffs' lot, important to the property and of immeasurable value to plaintiffs." (Ibid.) When defendants commenced construction of a new structure that had "a garage floor and ceiling and, above the garage, a room with a floor and ceiling," plaintiffs sought injunctive relief, contending the structure exceeded "one story in height" in violation of the deed restriction. (Id. at p. 654.)
While recognizing the purpose of the height restriction was to preserve views, defendants in King, relying on the general rule that "public policies in favor of the free use of land" require building restrictions "be certain and clear before they can be enforced," contended the "'not to exceed one story in height'" restriction was too uncertain to support injunctive relief. (King, supra, 197 Cal.App.2d at pp. 653-654.) The trial court and the appellate court disagreed.
The appellate court in King explained that"although the instrument does not expressly declare the intent of the grantor to preserve the view of lot owners, it is obvious from the language used, the topography and the finished ground elevations of the tract and the general physical appearance of the land and the existing structures thereon, that the purpose of the height restriction in the plan is to protect the lot owner's view from one elevation to another." (King, supra, 197 Cal.App.2d at pp. 654-655.)
"Contrary to defendants' claim, we see nothing vague, ambiguous or uncertain in the meaning of the restrictive phrase 'one story in height,' or as to what was intended thereby. It does not appear, nor have defendants contended, that the words have a technical, special or peculiar meaning; they merely argue that to control the height the grantor 'should' have inserted a limit in feet and inches or other language from which the intended maximum height could have been inferred exactly. Therefore, the phrase is to be interpreted in its ordinary and popular sense rather than according to some strict legal or technical meaning. '"This ordinary and popular sense is to be related to the circumstances under which the words are used, having in mind the purpose of the contract and the general situation which brought it into existence" .' The words 'one story in height' in the restriction are simply and concisely used; construed in the light of the entire instrument and the general plan and appearance of existing structures established in the tract , and given their plain, ordinary and popular meaning , we can only conclude, as did the trial court, that a structure not to exceed 'one story in height' neither encompasses nor contemplates defendants' proposed structure . . . ." (Id. at p. 655.)
King, supra, 197 Cal.App.2d at page 656, determined "the popular and common usage of the phrase 'one story in height' to render the restriction sufficiently clear and certain to support injunctive relief," and there was nothing "ambiguous about the term 'height.'"
King, supra, 197 Cal.App.2d 651, was cited with approval in Seligman v. Tucker (1970) 6 Cal.App.3d 691 (Seligman), a case which held a restriction prohibiting construction of structures "in such location or in such height as to unreasonably obstruct the view from any other lot" was not too vague to be enforced. Seligman observed King's approval of the "'not to exceed one story in height'" restriction "would impliedly prohibit an unreasonably high one-story structure and that this restriction would be enforceable." (Seligman, supra, 6 Cal.App.3d at p. 698.)
Seligman also discussed Smith v. North (1966) 244 Cal.App.2d 245, a case which considered a restriction "no dwelling shall . . . contain more than one floor above the ground floor." The plaintiffs in Smith had invoked this restriction to prevent defendants from constructing a spilt-level house that was nine feet above grade. The Smith court looked to the purpose of the restriction to ascertain its intent, and concluded that despite specification of an acceptable elevation, "the stated as well as the obvious purpose of the covenant restricting the number of floors in dwellings on lots in the subject subdivision was to minimize their obstruction to the view." (Smith, supra, 244 Cal.App.2d at p. 248.)
Because defendants' proposed construction would not obstruct the view from plaintiffs' lot, the court found it conformed to the restriction. (Id. at p. 249.) Seligman, supra, 6 Cal.App.3d at page 698, observed "the Smith decision, by inference, stands for the proposition that if the one-story structure had been higher and so had obstructed the view, injunctive relief by way of removal would have been proper."
Cases from other jurisdictions have applied the reasoning of King, supra, 197 Cal.App.2d 651, to uphold similarly worded height restrictions. McDonough v. W. W. Snow Const. Co., Inc. (Vt. 1973) 306 A.2d 119, 121, considered a covenant, virtually identical to the one before us, providing any structure on defendants' lot "'will be restricted in height to one story, and shall have a roof pitch not to exceed four and one half inches in 12 inches.'"
The court found the restriction was not ambiguous and its application to defendants' proposed two-story construction fulfilled the purpose of the covenant to preserve views. (Id. at p. 123.) (See also Snashall v. Jewell (Or. 1961) 363 P.2d 566, 571 covenant forbidding construction of "'more than one single story dwelling'" enforceable; Donaldson v. White (Or. 1972) 493 P.2d 1380, 1381 enforcing covenant prohibiting construction of house of more than one and one-half stories tall that had obvious purpose "to protect the view from an adjacent dominant uphill lot occupied by plaintiffs' home"; Dickstein v. Williams (Nev. 1977) 571 P.2d 1169, 1171 nothing ambiguous in restrictive covenant limiting construction to single family dwelling "'not exceeding one story from ground level'"; Bauman v. Turpin (Wash.App. 2007) 160 P.3d 1050, 1055-1057 deed restriction limiting construction on defendants' property to "one story" home had purpose of preserving views and was violated by construction of house that blocked plaintiffs' views; Foster v. Nehis (Wash.App. 1976) 551 P.2d 768, 770 convenant restricting construction to "one detached single-family dwelling not to exceed one and one-half stories in height" had intent of preserving views and construction of structure that substantially obstructed plaintiffs' views violated the restriction.)