CURTIS ACRES ASSOCIATION, A NEBRASKA NONPROFIT CORPORATION, APPELLEE,
STEPHEN HOSMAN, APPELLANT
[Copyrighted Material Omitted]
Appeal from the District Court for Douglas County: J Russell Derr, Judge.
Michael F. Coyle and Alexander D. Boyd, of Fraser Stryker, P.C., L.L.O., for appellant.
David D. Ernst and Kellie Chesire Olson, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee.
Irwin, Inbody, and Pirtle, Judges.
[22 Neb.App. 653] Irwin, Judge.
Stephen Hosman commenced construction on a boathouse on his lakefront property located in Douglas County, Nebraska. Shortly after construction began, the Curtis Acres Association (Association), the corporation which operates and manages the Curtis Acres subdivision, where Hosman's property is located, filed suit against Hosman. The Association alleged that the construction on Hosman's property violated various restrictive covenants applicable to the land and asked that the court enter an injunction requiring Hosman to permanently remove the boathouse from his property.
Ultimately, the district court found that the construction of the boathouse violated several restrictive covenants and ordered the removal of the structure from Hosman's property. Hosman appeals. Upon our review, we affirm the decision of the lower court.
In 1990, Hosman purchased a lot in the Curtis Acres subdivision. Prior to Hosman's purchase of the property, the Association filed a " Declaration of Covenants, Conditions, Restrictions, and Easements" (declaration) for the subdivision with the Douglas County register of deeds. Included in the declaration was a requirement that residents obtain preapproval of any improvements built on their lots. That provision provided, in relevant part:
No improvements of any nature shall be constructed, erected, placed, altered, maintained or permitted on any Lot until detailed plans and specifications with respect thereto in a form reasonably satisfactory to the Association showing the proposed improvement, including a site plan, exterior elevations, exterior lighting, materials, colors, [22 Neb.App. 654] landscaping, grading, and such other information as the Association may require has been submitted to and approved in writing by the Association. The Association may designate an Architectural Committee to perform this function.
After Hosman purchased his lot, he submitted building plans to the Association, seeking approval of the construction of a residence on the lot. During his deposition, Hosman testified about the approval process as follows:
There was a committee that I went through, I believe three sets of plans to get to something that they would allow me to build. It was a rather expensive way to go. My first set of plans were turned down. My second set of plans were turned down because they told me it was a three-story -- it was a two-story walkout towards the lake. They told me nothing was allowed to have three stories towards the lake. I finally got a third set of plans, which finally were approved.
Subsequent to Hosman's obtaining approval of the construction of his residence, the declaration was amended on four separate occasions. The first three amendments did not alter the requirement that residents obtain preapproval of any improvements built on their lots. However, the fourth and most recent amendment did alter this provision. In the " Fifth Amendment and Amended and Restated Declaration of Covenants, Conditions[,] Restrictions and Easements" (Fifth Amended Declaration), which was filed with the register of deeds on September 28, 2007, the Association added the following pertinent language to its previous instructions regarding the approval of any new construction:
An owner desiring to erect an improvement shall deliver two sets of construction plans, landscaping plans, plot plans and grading plans to Association (herein collectively referred to as the " Plans" ). Such plans shall include a description type, quality, color (including any color change) and use of materials proposed for the exterior of such Improvement and the proposed grading plan of each lot. Concurrent with submission of the plans, [22 Neb.App. 655] Owner shall notify the Association of the Owner's mailing address.
. . . The Association shall review such Plans in relation to the type and exterior of improvements constructed, or approved for construction, on neighboring Lots and in the surrounding area, and any general scheme or plans formulated
by Association. In this regard, Association intends that the Lots shall form a residential community with homes constructed of high quality materials. The decision to approve or refuse approval of a proposed improvement shall be exercised by Association to promote development of the Lots and to protect the valued [sic], character and residential quality of all Lots. If Association determines that the proposed improvement will not protect and enhance the integrity and character of all the Lots and neighboring Lots as a quality residential community, Association may refuse approval of the proposed improvement.
. . . Written notice of any approval of a proposed improvement shall be mailed (or faxed) to the owner at the address specified by the owner upon submission of the Plans. Such notice shall be mailed (or faxed), with a copy to the Secretary of the Association, within thirty (30) days after the date of submission of the plans. If notice of approval is not mailed (or faxed) within such period, the proposed improvement shall be deemed disapproved by Association. Construction of any improvement cannot begin until the Plans have been approved by Association.
The president of the Association at the time the Fifth Amended Declaration was adopted and filed explained the rationale ...