March 2010
In This Issue:
Independent Contractor Cannot Bring Claim for Relief Under Civil Rights Act
Association Did Not Violate Covenants by Rejecting Application to Approve Mobile Home
Court Refuses to Award Damages to Association for a Violation of Two-Pet Rule
Allegations of Directors' Personal Benefit Do Not Rise to Level of Self-Dealing Required to Overcome Immunity
Architectural Review Committee Does Not Have Authority to Disapprove Demolition
Special Declarant Rights Did Not Lapse Because Successor Obligated to Complete Site Plan
Association's Records Access Policy is Reasonable
Condominium Projects Must Be Approved by County Prior to Unit Sales
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Independent Contractor Cannot Bring Claim for Relief Under Civil Rights Act

Hart v. Wood, 3:09-366, U.S. Dist. Ct., Dist. S.C., Jan. 20, 2010

Federal Law and Legislation: A U.S. District Court dismissed a suit against a homeowners association filed by an African American landscaper for relief under the Civil Rights Act because the landscaper was an independent contractor, not an employee of the association.

Daniel Hart is an African American and the owner of a landscaping company in Columbia, S.C. He performed landscaping services pursuant to a contract with the North Springs Property Owners' Association. He sued the association, alleging that it had made erroneous and hurtful claims against him, defamed his personal and professional name, and created a hostile work environment. He claimed that the all-white association board of directors acted in a racially-biased and discriminatory nature solely based on his race. He further asserted that he and his business were not treated the same as white landscapers who previously provided services for the association. The case was tried before a magistrate judge, who concluded that because Hart was an independent contractor for the association, Title VII of the Civil Rights Act was inapplicable. Hart challenged the findings.

Upon review of the record and relevant case law, the District Court overruled Hart's objections and approved the recommendation of the magistrate judge, finding that an independent contractor is not entitled to bring a claim for relief under Title VII.

©2010 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

Association Did Not Violate Covenants by Rejecting Application to Approve Mobile Home

LePiere v. Coronado Gardens Homeowners Association, No. E046249, Cal. App. Ct., Dec. 29, 2009

Architectural Control/Covenants Enforcement: In an unpublished opinion, a California appeals court upheld a trial court's ruling that a homeowners association complied with its governing documents and acted in good faith when the architectural review committee denied a lot owner's application to approve a mobile home that was more than three years old.

Lawrence LePiere bought a lot in Coronado Gardens Homeowners Association, a mobile home park located in Indio, Calif. He intended to relocate and remodel a 1974 mobile home on the lot. Coronado Gardens architectural review committee ("ARC") has authority to approve any mobile home installed in the park. The ARC is required to give written approval before installation of any mobile home more than three years old. Although the ARC had discretion to accept or reject the installation of mobile homes more than three years old, as a general practice, the community did not want to allow the installation of older mobile homes.

LePiere bought the lot in March 2002 and discussed his plan to remodel the 1974 mobile home for the lot with Fred Baughn, the park manager, who told him the plan was acceptable. However, when LePiere submitted his application for approval to the ARC, it was rejected on the basis that the mobile home was more than three years old. LePiere subsequently resubmitted his application, urging the ARC to exercise its discretion to approve the mobile home, and the ARC once again denied his application. After an aborted attempt to mediate the matter pursuant to California Code Section 1354, LePiere sued the association, seeking injunctive and declaratory relief and damages. The trial court ruled in favor of the association, finding that the association had not failed to discharge its duties. LePiere appealed, arguing that the ARC, as a separate entity, failed to discharge its duties by not reviewing his application properly and rejecting it in bad faith.

The appeals court found that the trial record supplied substantial evidence that the ARC acted within its discretion and in good faith when it reviewed and rejected LePiere's application twice in a timely fashion.

LePiere alleged jury misconduct based on the statement by a juror that the covenants could be interpreted to allow the ARC to reject LePiere's application without considering his building plans. However, the appeals court concluded that LePiere's allegations failed to rise to the level of misconduct, and that the jury fulfilled its proper role, which was to decide whether the association failed to comply with the covenants. The court determined that the finding in favor of the association was supported by the evidence. The judgment was affirmed.

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Court Refuses to Award Damages to Association for a Violation of Two-Pet Rule

The Mansions of North Park Homeowners Association v. McCullough, No. AR 07-13593, Pa. Ct. Com. Pl., July 30, 2009

Covenants Enforcement/Powers of the Association: A Pennsylvania appeals court upheld its earlier ruling that fines levied by the association to enforce a two-pet rule constituted abuse of discretion and unwarranted exercise of power.

Mark McCullough owns a unit in The Mansions of North Park Homeowners Association, a planned community in Allegheny County, Pa. The association sued McCullough to collect daily fines imposed by the association to enforce a rule that prohibited any unit owner from having more than two pets.

The trial court noted that, despite the allegation of nuisance, the basis of the daily fines was that McCullough had three cats when he was only allowed two. The court concluded that the third cat violated the association's rules; however, it concluded that the daily fines imposed by the association represented an abuse of discretion and unwarranted exercise of power. The association appealed.

The following four matters were raised on appeal: (1) the association was entitled to judgment for the amount of fines and legal fees; (2) the trial judge erred by not applying the terms of the Uniform Planned Community Act of Pennsylvania; (3) the trial judge erred in finding that the activities of McCullough's cats did not rise to the level of a nuisance, and finding that the association's fines constituted an abuse of discretion and unwarranted exercise of power; and (4) the trial court erred in failing to grant the association's Motion to Vacate/Motion to Reconsider.

The record showed that McCullough adopted three cats before the association had rules concerning the number of pets unit owners might have. He maintained that his cats were "grandfathered in," and the court agreed. However, when two of his three cats died, he replaced both of them, not just one as the rules required. The association initially granted him a variance for the three cats, which it subsequently withdrew. The association argued that the cats represented a nuisance to the community because they would occasionally escape from McCullough's house and allegedly climb on his neighbor's car and defecate on her property.

The appeals court observed that the association had taken varying positions regarding the number of pets owners were permitted to have and enforced its policies and rules haphazardly without regard to any concept of fairness. The court noted that rather than seeking to enjoin McCullough's offending conduct, the association was content to assess daily fines which, as of the time of its complaint, reached $2,297.20, and which, by the time of trial, exceeded $11,000. The court ruled that the association was not entitled to the relief it sought. It found that the daily fines had no relation to the conduct they were supposed to correct or discourage. The court further found that the amount of damages requested was outrageous and did not merit enforcement.

The court found no credible evidence to support the allegation that McCullough's cats were a nuisance, and could find no purpose served by the association's arbitrary two-pet limit. The court affirmed its refusal to condone the abusive fines for a violation that was de minimis at best. The court also affirmed its refusal to award attorney's fees.

In the course of drafting its opinion, the court became aware for the first time that the appeal may have been procedurally defective due to the association's failure to file a motion for post-trial relief. By failing to file a proper motion for post-trial relief, the association deprived the court and opposing counsel of the opportunity to review possible errors in the manner prescribed by the Federal Rules of Civil Procedure. By not filing the motion for post-trial relief, the court found that the association waived all grounds for its appeal, which should, therefore, be quashed or dismissed. In any event, the court deemed that the association's case was without merit.

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Allegations of Directors' Personal Benefit Do Not Rise to Level of Self-Dealing Required to Overcome Immunity

Raphael v. Silverman, 22 So. 3d 837; 34 Fla. L. Weekly D 2438 (2009)

Risk and Liability: A Florida court properly dismissed a complaint against individual members of association's board of directors because allegations were not sufficient to overcome their statutory immunity from prosecution.

Stephen and Marjorie Raphael own a condominium in Beach Point, a development in West Palm Beach, Fla., that consists of three buildings. The north and south buildings sit perpendicular to the ocean, and the west building, containing the Raphaels' unit, sits between them, facing the ocean. Initially, privacy dividers with a basket-weave design separated the unit balconies. During the summer of 2006, the association's board of directors installed new transparent dividers. When the board refused to permit the Raphaels to modify their dividers to restore their privacy, they sued the association and the individual members of the board, alleging breach of fiduciary responsibility and seeking damages arising from the diminished value of their unit and their inability to sell it. The directors filed a motion to dismiss on the ground that they were immune from liability in their individual capacities absent fraud, criminal activity or self dealing/unjust enrichment. The Raphaels amended their complaint to allege that the board members derived an impermissible personal benefit from their decision to allow the unauthorized material alteration to the common elements, because they improved the ocean views from their respective units that were previously obstructed by the original privacy dividers.

The appeals court found that the argument that the directors derived personal benefit from installation of the transparent dividers was unsupported by any fact that would establish self-dealing. It observed that the "personal benefit" alleged to have accrued to the directors was derived simply because they owned units in the condominium project and were able, therefore, also to enjoy the alterations to the balconies.

The court affirmed the trial court's dismissal of the complaint but reversed that part of its order that stated the complaint was dismissed with prejudice.

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Architectural Review Committee Does Not Have Authority to Disapprove Demolition

Service Corporation of Westover Hills v. Guzzetta, C.A. No. 2922-VCP, Del. Ch. Court, Dec. 22, 2009

Architectural Control/Covenants Enforcement: A Delaware appeals court determined that owners who planned to raze a house on an adjacent lot they purchased in order to extend their yard and create a playground for their children did not violate the subdivision's restrictive covenants.

Robert and Kathleen Guzzetta purchased a house adjacent to their home in Westover Hills Section "C," for the purpose of leveling the house in order to extend their yard and create a grass field on which their children could play. Westover Hills is a subdivision located in Wilmington, Del., governed by Service Corporation of Westover Hills ("association"). The association became concerned that the field would be out of character with the neighborhood and sued for a preliminary injunction to enjoin Guzzetta from proceeding with demolition of the house, arguing that the demolition would violate the subdivision's restrictive covenants. The court granted the preliminary injunction, and the parties engaged in mediation. When that proved unsuccessful, an evidentiary hearing was held before a master in chancery, and after protracted proceedings, the master entered a final report in favor of Guzzetta, allowing the demolition to proceed. The association appealed.

The association sought a permanent injunction barring Guzzetta from demolishing the neighboring house, arguing that under the plain meaning of the deed restrictions, the association was authorized to approve or disapprove Guzzetta's demolition plans. Guzzetta asserted that the deed restriction did not cover a demolition where no structure was to remain on the property.

The court noted that restrictive covenants implicate contractual rights and are construed in accordance with their plain meaning in favor of a grantee (such as Guzzetta).

Article V, the restrictive covenant at issue, provides:

No building, fence, or wall or other structure shall be commenced, erected or maintained, nor shall any addition to or change or alteration therein be made, until the plans and specifications showing the nature, kind, shape, height, materials, floor plans, color scheme, location and frontage on the lot and approximate cost of such structure shall have been submitted to and approved in writing by the party of the first part. The party of the first part shall have the right to refuse to approve any such plans or specifications which are not suitable or desirable, in its opinion, for aesthetic or other reasons; and in so passing upon such plans and specifications, it shall have the right to take into consideration the suitability of the proposed building or other structure and of the materials of which it is to be built, to the site upon which it is proposed to erect same, the harmony thereof with the surroundings and the effect of the building or other structure, as planned, on the outlook from the adjacent or neighboring property.

By its terms, the first clause of the restriction, which alludes to any structure to be "commenced, erected or maintained" could not apply to the demolition of a structure. The restriction's second clause applies to "change or alteration" of structures. The association argued that Guzzetta's planned demolition was a "change" within the restriction's meaning and, therefore, subject to the association's approval. The court premised its analysis of the restriction on the assumption that the parties probably intended there to be some distinction between "alteration" and "change"; otherwise, their use together would be redundant. Applying the dictionary's definitions of the words to the context of the case, the court found that "alteration" to a structure might encompass a difference in some particular respect of the structure, such as changing the exterior paint scheme or enclosing a screened porch, while a "change" to a structure would encompass a more radical and pervasive difference, such as gutting a house to remodel, adding rooms to a house, or even the complete demolition of a structure. Read alone, the second clause might cover the demolition of a house; however, the court observed that it had to be read in conjunction with the third clause of the restriction.

The third clause refers to "the plans and specifications, showing the nature, kind shape, height, materials, floor plans, color scheme, location and frontage on the lot and approximate cost of such structure . . ." (emphasis added). The complete demolition of a structure replaced by a grassy field would result in a change that had no "height, shape, materials, floor plans, color scheme, location or frontage." The court found that, arguably, a grassy field might have a "nature," "kind" and "cost," but to grant the association approval authority on those grounds alone without linking that authority to at least one of the more objective factors in the restriction seemed inconsistent with the intent of the clause. The court concluded that the third clause narrowed down the broad coverage of the second clause, so that, read together, the restriction applies only to changes to existing structures where a structure will remain afterward.

The association argued that it was the developer's intent to prevent homeowners from making such a radical change to the property without the consent of the governing organization. However, the court found that although article II of the deed restrictions limits use of the land to private residential purposes, Guzzetta's proposed grassy playfield did constitute a private residential purpose. The court noted that article II does not require that a residence be erected on every lot, but rather, that "not more than one residence" may be built on each lot. No other provisions in the deed restrictions suggested that there be a house on every lot in Westover Hills. In addition, article IV of the deed restrictions provides that "free or open spaces shall be left on every plot built upon, on both sides of every residence erected thereon, which free spaces shall extend the full depth of the plot."

The association next argued that Guzzetta's demolition plans should be reviewed for the handling of toxic materials, protection of trees maintained by the association, and what would be done with the land when the demolition was complete. To that end, Guzzetta had already obtained approval and necessary permits from the City of Wilmington.

The court held that based on the plain meaning of the deed restrictions and the law's preference for the free use of land, the association did not have authority to regulate the demolition of a house where no replacement structure was planned. It noted that even if the restriction could be interpreted to cover the demolition plans, the restriction provided no standard by which to ensure that the association would exercise its authority in a nonarbitrary manner. By default, its decision would have to be based on "aesthetic or other reasons." However, the courts have voided restrictive covenants that allowed building plans to be rejected for purely aesthetic reasons as unreasonable. Thus, even if Guzzetta's demolition plan fell within the scope of article V, the only basis upon which the association might refuse to approve the plan has been found unreasonable as a matter of law.

The court vacated its preliminary injunction and denied all the association's exceptions to the master's report. It awarded Guzzetta damages in the amount of $10,000, the amount of the preliminary injunction bond, and court costs.

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Special Declarant Rights Did Not Lapse Because Successor Obligated to Complete Site Plan

Southwick at Milford Condominium Association, Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 984 A.2d 676 (2009)

Developmental Rights: The Connecticut Supreme Court reversed a trial court ruling in favor of a condominium association, finding that the successor declarant was entitled to exercise special declarant rights because it had an obligation to construct any structures shown on the site plan that were not labeled "need not be built."

Southwick at Milford Condominium is located in Milford, Conn. The condominium was created pursuant to the Connecticut Common Interest Ownership Act ("Act") and is subject to a declaration recorded by the original declarant. The original declarant reserved to itself a variety of special declarant rights that could be exercised as long as the declarant was obligated under a warranty or other obligation, owned a unit or interest in a unit, or for 20 years after the declaration was recorded.

When the condominium was developed, the declarant created a site plan that depicted two phases. Phase two contains proposed amenities, including two clubhouses, a gazebo, a semi-independent living area and an assisted living unit area. All of the structures except the gazebo and one clubhouse are marked with labels "Need Not Be Built" and "Development Rights Reserved." There is a notation in both phases that provides, "Development Rights Reserved in This Area (To Add Units, Common Elements, Limited Common Elements And To Add And/Or Withdraw Land)."

The original developer encountered financial problems and defaulted on its mortgage. The property was foreclosed and the bank conveyed the property, including all development rights and special declarant rights to 523 Wheelers Farm Road, Milford, LLC ("Wheelers Farm"). Wheelers Farm applied to the city's planning and zoning board to construct additional units on the property, and its application was approved. Southwick at Milford Condominium Association, Inc. ("association") sued Wheelers Farm, seeking temporary and permanent injunctions prohibiting it from entering the property and exercising any special declarant rights. The association also sought declaratory judgment that the special declarant rights had lapsed under the terms of the declaration because Wheelers Farm did not own any units or a security interest in any units and was no longer obligated under any warranty or other obligation. Wheelers Farm counterclaimed, seeking declaratory judgment that its special declarant rights had not lapsed. Both parties filed motions for summary judgment.

The only issue presented by the parties' motions was whether Wheelers Farm owed the unit owners some other obligation that would prevent its special declarant rights from lapsing. Wheelers Farm argued that, pursuant to the Act, it owed an obligation to the unit owners to complete the gazebo and clubhouse depicted on the site plan because they were not labeled "need not be built." It contended that, pursuant to the Act, a successor declarant owes all the obligations that the original declarant owed. Because it was obligated to build the gazebo and clubhouse, its developmental rights had not lapsed.

Section 47-180(a) of the Act provides:

Except for improvements labeled "NEED NOT BE BUILT," the declarant shall complete all improvements depicted on any site plan or other graphic representation, including any surveys or plans prepared pursuant to Section 47-228, whether or not that site plan or other graphic representation is contained in the public offering statement or in any promotional material distributed by or for the declarant.

Section 47-246(e) provides in pertinent part:

(2) A successor to any special declarant right … is subject to the obligations and liabilities imposed by [the Act] or the declaration: (A) on a declarant which relate to the successor's exercise or nonexercise of special declarant rights. …

The trial court rejected Wheelers Farm's argument, concluding that because the terms of the site plan and declaration authorized the declarant to withdraw the land underlying phase two, Wheelers Farm never had an obligation to build any of the structures situated on that land and, therefore, owed no obligation to the unit owners. The court reasoned that the obligations imposed by the Act were not triggered by the gazebo and clubhouse being included on the site map per se because the declarant had the right to, at any time, withdraw the entire phase of the condominium. It concluded that Wheelers Farm's special declarant rights had lapsed, denied its motion for summary judgment, granted the association's motion, and rendered judgment for the association. Wheelers Farm appealed.

On appeal, Wheelers Farm argued that under the Act, it was obligated to complete all of the improvements depicted on the site plan that were not labeled "need not be built." It asserted that the trial court read into the statute an exception that did not exist. The appeals court agreed with Wheelers Farm that, although it was authorized under the declaration and the site plan to withdraw land from phase two, the Act clearly and unequivocally obligated Wheelers Farm to complete all the improvements shown on the original site plan that were not labeled "need not be built." The court noted that it is well established that the use of the word "shall" suggests a mandatory command. The court assumed, moreover, that if the state had intended to create an exception to the rule, including one for improvements that are located on land that the developer has reserved the right to remove from the development, it would have expressly said so. The court referred to the principle of statutory construction that a court must construe statutes as they are written and may not supply omissions or add exceptions because it appears good reasons exist for adding them.

Thus, the court determined that under the Act, Wheelers Farm was obligated to the unit owners to construct the gazebo and the clubhouse, and that obligation was sufficient to warrant the exercise of its special declarant rights. 

The court reversed the trial court's ruling and remanded with direction to render judgment for Wheelers Farm.

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Association's Records Access Policy is Reasonable

Tai v. Crown View Manor I Condominium Association, No. A-2196-08T3, N.J. Super. Ct., Jan. 10, 2010

Association Operations: In an unpublished opinion, a New Jersey appeals court affirmed that the trial court properly dismissed a claim by a condominium owner alleging that the association improperly restricted unit owners' access to the association's records.

John and Sue Tai own a condominium unit in Crown View Manor I in Essex County, N.J. The development is managed by Crown View Manor I Condominium Association. Tai sued the association for infliction of emotional distress and violation of the New Jersey Condominium Act. The court dismissed his complaint, and he appealed. The appeals court affirmed the dismissal of all counts except count five of Tai's complaint, which alleged that a 2002 resolution improperly restricted the unit owners' access to the association's records. The court remanded the case with instructions that the trial court make specific findings as to the reasonableness of the procedures adopted in the resolution.

The trial court observed that Tai had been provided with all the records to which he was entitled under the resolution, but his complaint pertained to what he considered permitted documents. The trial court found that the resolution was reasonable on its face and not unduly restrictive of a unit owner's access to the association's records. Tai again appealed the court's finding.

The appeals court questioned the resolution's requirement that homeowners explain the purpose for the document inspection request. Even though Tai had made more than 50 requests for access to the association's records, the court did not find that it justified the association's requirement that homeowners explain the purpose for any document request. However, the court found nothing to indicate that the requirement was ever enforced against Tai. Moreover, the association informed the court that after its remand, the resolution had been replaced with one that does not contain the requirement. The association also extended its document retention policy from one to two years. The record showed that Tai acknowledged to the trial court that he had received all of the documents he requested and currently had access to the association's records, including bank statements.

Under the circumstances, the appeals court found that the trial court properly dismissed the remaining count in the complaint, and affirmed its ruling.

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Condominium Projects Must Be Approved by County Prior to Unit Sales

Thornton v. Flathead County, 353 Mont. 252, 220 P.3d 395 (2009)

Developmental Rights/Municipal Relations: The Montana Supreme Court upheld a ruling that condominium projects must complete the county's subdivision review process before units can be sold.

Jim and Beverly Etzler recorded the condominium declaration for Osprey Ridge, a project in Flathead County, Mont. They had previously obtained subdivision approval on the same property for subdivision for single-family homes. The property was located in the Scenic Corridor Zoning District of Flathead County.

Bill and Larry Blomgren recorded the condominium declaration for Misty Cliff I, also in Flathead County, and Dennis and Donna Thornton recorded the condominium declaration for Misty Cliff II.  The parcel on which these projects are situated was created prior to enactment of the Montana Subdivision and Platting Act of 1973.

When officials of Flathead County learned that condominium documents creating these three projects had been recorded without subdivision review, they instructed the clerk and recorder's office not to accept conveyance deeds for units in the projects and posted a notice to prevent construction of projects and transfers of units until the developers obtained subdivision approval in accordance with the act.

The Etzlers sued the county, maintaining that Osprey Ridge was exempt from subdivision review, and, in a separate case, the Thorntons and Blomgrens sued, claiming that the Misty Cliff projects also were exempt from the act. The district court consolidated the cases and granted summary judgment to the county. The plaintiffs appealed.

The act provides that condominiums are exempt from subdivision review if they meet two prerequisites. First, the project must be constructed on "land divided in compliance with this chapter." Second, the project must be either, (1) expressly contemplated at the time of the original subdivision approval; or (2) in conformance with applicable local zoning regulations where local zoning regulations are in effect.

The Osprey Ridge project met the first requirement because the Etzlers had previously obtained approval to subdivide the property into single-family lots. They argued that their condominium project was exempt from subdivision review because it is located within the Scenic Corridor Zoning District. This district's zoning regulations govern only signs and cellular towers, and provide that, "No other land use restrictions apply in this district other than those relating to signs." The Etzlers interpreted the provision to mean that condominiums are permitted in the scenic corridor because only signs and cellular towers are regulated. However, the court explained that the Scenic Corridor Zoning Regulations did not address appropriate land uses or densities and did not contemplate or regulate the development of condominiums. Furthermore, the court advised that the legislative history of the act clarified that the state legislature never intended for an absence of zoning to create an exemption from subdivision review. Therefore, the court found that the Scenic Corridor Zoning District did not address condominium development, and the district court correctly concluded that Osprey Ridge failed to meet the prerequisites for an exemption from subdivision review.

The Thorntons and the Blomgrens argued that their projects received a blanket exemption from subdivision review because the properties were created before enactment of the statute in 1973. They based their argument on section 76-3-103(15) of the act that defines a subdivision to include, "a condominium or area, regardless of its size, that provides or will provide multiple space for recreational camping vehicles or mobile homes." They suggested that the statutory language equated condominiums with recreational areas and then argued that the language does not comport with the common definition of condominium used in the county's zoning regulations. The court declined to accept their interpretation and, instead, found that the act defines subdivisions to include condominiums and areas that provide multiple spaces for recreational camping vehicles or mobile homes. The court concluded that no blanket exemption from subdivision review existed for pre-1973 tract land. The Thorntons and Blomgrens were correctly required to complete subdivision review for the Misty Cliff condominium projects. In response to their contention that the county's actions deprived them of their property rights, the court explained that they were not deprived of their potential to develop condominiums on their property, but were merely denied an exemption from subdivision review.

The plaintiffs attempted to raise various other issues to challenge the district court's summary judgment ruling. However, the court noted that the district court had all undisputed material facts necessary for resolution of the case before it and correctly granted summary judgment to the county.

The Etzlers challenged the district court's conclusion that Montana law provides that the recording of a document does not establish a document's validity. They maintained that they relied upon the county's approval and recordation of the condominium documents. However, they failed to cite any authority to support their argument, and the court observed that under the act, only the local governing body has authority to determine whether a division of land is exempt from subdivision review.

Similarly, the Etzlers argued that the county's actions were barred under theories of equitable estoppel or waiver. The court noted that equitable estoppel did not apply because the county's only representation to the Etzlers was that the project would require subdivision review. Recording of the condominium documents did not constitute a representation of any kind by the county.

The court affirmed the district court's ruling for the county.

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