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"Exhibit C" is a series of diagrams which both illustrate the type and dimensions of the fences which are approved for use in the project, and indicate where each fence may properly be located. Thus, "Sheet 1" of exhibit C (as amended) shows a solid slump block fence. The diagram specifies what type of block may be used, the dimensions of the blocks, and the maximum allowable height of the fence. This diagram is labeled "Slump Block Wall @ Sideyard Without View." "Sheet 2 "illustrates a second fence, this one consisting of a two-foot slump block foundation topped by a three-foot wrought iron bar section, for a total maximum height of five feet. Sheet 2 is labeled, "Slump Block & Wrought Iron Wall @ Rear & Sideyard W/View."




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[1] It is a settled rule of law that homeowners' associations must exercise their authority to approve or disapprove an individual homeowner's construction or improvement plans in conformity with the declaration of covenants and restrictions, and in good faith. (Hannula v. Hacienda Homes (1949) 34 Cal. 2d 442, 447 [211 P.2d 302, 19 A.L.R.2d 1268]; Branwell v. Kuhle (1960) 183 Cal. App. 2d 767, 779 [183 Cal. Rptr. 767].) As the court in Hannula stated: "Each of the decisions enforcing like restrictions has held that the refusal to approve plans must be a reasonable determination made in good faith." (Hannula v. Hacienda Homes, supra, 34 Cal. 2d 442, 447.) The same requirement of good faith applies equally to the approval of plans. "The converse should likewise be true, ... '[T]he power to approve plans ... must not be exercised capriciously or arbitrarily.'" (Bramwell v. Kuhle, supra, 183 Cal. App. 2d 767, 779; see also Norris v. Phillips (Colo.App. 1981) 626 P.2d 717, 719.)


[3] Thus, it follows that the trial court must review the Association's decision approving the Ehles' fence to insure that it was neither arbitrary nor in violation of the restrictions contained in the Declaration. (See cases cited in Annot., 40 A.L.R.3d 864.) Moreover, where the matter is up for review on appeal from a judgment of dismissal upon the sustaining of a demurrer, the standard of review is the same, i.e., to test as a matter of law whether the action of the Association could have been arbitrary. In our view, the complaint has succeeded in pleading this possibility, and a trial is necessary to determine if the Association action was in fact arbitrary.


A nearly identical situation confronted the court in Norris v. Phillips, supra, 626 P.2d 717. Plaintiffs owned property adjacent to defendants' in a residential community. Despite plaintiffs' objections the architectural control committee approved defendants' plan to construct a barn on their property. Plaintiffs filed suit against their neighbors as well as against the committee seeking to enjoin construction, but the committee was dismissed from the suit and the dismissal was not appealed. Plaintiffs prevailed at trial. The Court of Appeal reversed, holding that the trial court had failed to apply the correct standard in measuring the committee's actions. "[T]he trial court's determination of a breach of covenant, without a determination that the Architectural Control Committee acted unreasonably or in bad faith, was in error." (Id, at p. 719.) Rather than remand for a determination using the proper standard of review, however, the Norris court reversed. They did so because the committee had earlier been dismissed. "In such a challenge, the Architectural Control Committee is an indispensable party. In that the architectural control committee was dismissed out of this suit and that dismissal has not been appealed, a remand for a determination that the committee acted unreasonably or in bad faith is not possible." (Id, at p. 719, fn. 1.) [142 Cal. App. 3d 654]


Similarly, plaintiffs' suit here turns on the good faith and lack of arbitrariness of the Committee's approval, assessed in the light of all of the provisions of the Declaration. It appears from the record that the fence in question was not in conformity with the provisions of the Declaration, particularly the provisions contained in exhibit C, inasmuch as the codefendants placed a solid stone fence on a sideyard with a view, whereas exhibit C clearly requires a wrought iron open fence. Although the Declaration vests "sole discretion" in the Committee and allows for reasonable variances, their decisions must be "in keeping with the general plan for the improvement and development of the Project," and of course, must be made in good faith and not be arbitrary. These are clearly questions of fact for a jury. Accordingly, the Association was a proper defendant in the action below, and dismissing it from the action was error.


The law has traditionally viewed with disfavor attempts to secure insulation from one's own negligence or wilful misconduct, and such provisions are strictly construed against the person relying on them, particularly where such person is their author. (Viotti v. Giomi (1964) 230 Cal. App. 2d 730, 739 [41 Cal. Rptr. 345]; Sproul v. Cuddy (1955) 131 Cal. App. 2d 85, 94-95 [280 P.2d 158]; Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal. App. 2d 578, 594-597 [271 P.2d 122].) Here, the Association is the creation and successor of the author, S & S Construction Company, and therefore subject to this rule of strict construction.


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I'm not sure when Solari Hill became "Kite Hill" but as a kid, myself and everyone who lived in the neighborhood, called it Solari, as in, I'm going to play army with some friends on Solari. I rode my bike down it and crashed because my new hand brakes wouldn't grip due to the wet grass, I kissed a girl on Solari, played Heats on Solari, and, yes, I flew kites there. In high school I drank my first beer up there, got high up there, rolled down it when I was tripping. I've probably walked up and down Solari 1000 times in my lifetime and I'm only 57. It just upsets me that the newbies to the neighborhood and people who didn't even grow up here changed the name without stopping to think of its history. From my understanding, Solari was a farmer who let his cattle graze there a couple hundred years ago. The name has history attached to it. What history does "Kite Hill" have? Next they'll change the name of Rocky Mountain or the Seward slide. It's just sad...


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