Daily Development for Monday, February 18, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

SERVITUDES; "RESIDENTIAL USE;" WILD ANIMALS:

Keeping of pet cougars was a "residential use" within meaning of covenants; and discretionary authority of association review for construction of cougar pen was limited to aesthetic or design requirements.

Turudic v. Susan Estates Homeowners Association, 31 P.3d 465 (Or. App. 2001).

Oregon has relatively generous rules regarding regulation of the keeping of exotic pets. ORS 609.205 et seq., Plaintiffs moved to Oregon from Missouri in part because of this statutes, in hopes of finding a congenial environment for the keeping of their pet mountain lions (cougars). They bought a parcel in a five acre minimum subdivision, adjacent to a thirty acre vineyard.

Plaintiffs did not, however, find the congenial welcome that they expected. When the neighbors became aware of the cougars, they gathered together the association in an effort to prevent plaintiffs from keeping their pets. They invoked several provisions of the CCR's:

One section, dealing with use, stated that "property may be reasonably and normally used for agricultural farming, tree farming, and residential use only. This section went to state that "no nuisance shall be permitted to exist . . . the decision of the Association as to what is a nuisance is presumptively correct. No normal or reasonably use of the Property, as described . . . above, shall be a nuisance."

A second section gave the association a broad architectural control right:

"No . . . building, fence or other structure shall be erected, placed or altered on any lot or parcel until the proposed building plans . . . have been approved by the Board. Refusal . . . may be based by the Board upon any reason, including purely aesthetic conditions, which, in the sole discretion of the Board, shall be deemed sufficient."

The trial court ruled that the cougars were not a common law nuisance, or a nuisance within the meaning of the CC&R's, but that the Board had the authority to prohibit the construction of the cougar cages under the architectural control provisions.

Plaintiffs appealed the interpretation of the building restriction. The association did not appeal the determination based upon nuisance - a point which the appeals court emphasized in concluding that the association could not withhold consent for the construction of the cougar cages because, notwithstanding the language of the specific architectural review provision, other language in the CC&R's required the Board to be reasonable in its actions, and its refusal to permit cages for pet cougars was unreasonable in light of the fact that the decision was not based upon aesthetic grounds and the fact that cougar keeping is a "residential use" and therefore generally permitted under the CC&R's. Therefore, denial of the cougar keeping was "unreasonable and capricious."

The Association argued that, although there was no proven danger that the cougars would be accidentally released from their cages, and the danger of noise or attraction of wild cougars was reduced (eliminated?) by the spaying of the female cougar, there was a significant danger that children would be attracted to the cages and stick their hands inside the cage, leading to injury. The court pointed out that the owners had asked for permission to build a double cage around the first cougar cage specifically to protect trespassing children, even though the existing cage met state wild animal keeping standards. But the Association had refused to approve such construction.

The court went on to conclude that the keeping of the cougars would not reduce property values and that "the fear of the neighbors cannot be said to be objectively reasonable." Thus, there was no reasonable basis for the architectural decision. What's more, there was a "bad" motive" the prohibition of a use that was otherwise lawful. The court analogized to an Association refusal to permit the construction of a house containing a billiard room because the neighbors objected to pool playing. The architectural review process cannot be "hijacked" to serve other inappropriate motives. Since the court concluded that the cougar keeping was a "residential use," and since there was no appeal on the determination that it was not a nuisance, the court reversed the Association's determination.

Compare: Gebauer v. Lake Forest Property Owners Association, Inc., 723 So.2d 1288 (Ala. App. 1998): (Vietnamese potbellied pig is not "livestock" and is appropriate as a pet under association restriction prohibiting "livestock.")

Comment 1: Can the Association now backtrack and require the construction of the second cage? Nothing in the opinion suggests that. This could be an unfortunate result, since apparently the court acknowledged that the "attractive nuisance" concern was a real one.

Comment 2: Is cougar keeping really a residential use? The court concluded that these cougars were not part of a business and were serving the function of family pets. This would suggest that any animal that served that function would meet the standard. The court cited to another case in which the keeping of 16 German Shephards along with several small dogs was a residential use.

Comment 3: Note that this case does not exactly amount to the court's clearly applying a "reasonableness" standard to association covenants or to association decision making. It concluded, through a convoluted grammatical analysis, that the language defining "residential" was ambiguous, and that therefore it was required to interpret it narrowly in favor of free use of the land. Further, with regard to the architectural review, the court relied in part upon language in the CC&R's themselves requiring "fair and reasonable" decisions and, properly, pointed out that even the broadest discretion cannot be used abusively to accomplish by indirection a prohibited act.

Comment 4: And, as Paul Harvey says - for "the rest of the story," see below:

SERVITUDES; USE RESTRICTIONS; OUTBUILDINGS: A portable toilet used by agricultural works is a "storage building" for human waste and therefore prohibited by CC&R language barring any "storage building, shack, church, mobile or trailer home or tent." Turudic v. Susan Estates Homeowners Association, 31 P.3d 465 (Or. App. 2001).

Possibly as a result of ill will produced by the dispute described in an accompanying item involving plaintiffs' desire to keep pet cougars, plaintiffs' neighbors, who operated a 30 acre vineyard, set up their turquoise colored porta potty for their farm workers directly in front of the picture window in plaintiffs' living room. The CC&R's specifically permitted agricultural farming and plaintiffs contended that this use was consistent with that provision. State law required that the provide such a facility for their farm workers.

The court agreed, but it pointed out that a second provision of the CC&R's prohibited any "temporary house, or temporary or permanent storage building, shack, church, mobile or trailer home or tent." Although the court concluded that this provision did not preclude the maintenance of structures required for agricultural activity, it noted that the workers were in the vineyard only fifty days a year, and that for the rest of the year the porta potty was prohibited by the CC&R's because it was a "storage building" for human waste.

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