Were maximum heights determined prior to construction for most houses on Somerset? Yes, it was how the original developers crafted the community ridgelines essential to our community feel. Resident Max Heights in Covenants
While it is true most maximum heights weren’t recorded, just about every house in Somerset had one determined prior to construction. It was how the original developers created the smooth ridgelines that give Somerset its unique feel and flow.
Here is a typical requirement in the ”Approval of Plans by Building Committee Section “ of covenants “The maximum height of any residence shall be established by the Building Committee prior to starting construction.”
Did any version of the View Guidelines ever protect territorial view below the lake? Yes, of course. Read the Chen denial and look at the picture.
The Chen denial decision letter cited Effect of the proposed structure to uphill neighbor territorial views. Look at the picture, the territorial view was below the lake.
Has the CRC continuously asserted the changes to the view guideline had no impact on protected views, and was it true? Yes, they have, and no it isn’t true.
In the Fall 2023 Somerset Sun when they announced posting they said “We'd like to stress that these changes neither modify the CRC's decision-making approach nor alter our established understanding of protected Views” but the Chen denial and the Chu approval clearly demonstrate a difference. The first says “territorial view are a factor” the second says territorial views were not protected. There was no public discussion prior to posting. And over 50% of Division 8 homeowners signed a petition saying it was an unwelcome change.
Is the Chu remodel oversized? How do you know? Yes, just look at it.
It is on a street with a smooth ridgeline, it is nearly 8’ higher than houses on both sides. Even the pictures the CRC published show it is a full story above the houses on both sides, grossly disrupting the smooth ridgeline created by the original developers that runs down the street for quite a distance (a picture not shown).
Are most divisions' covenants almost identical, and does a single view guideline make sense for the whole hill? - Many are similar, but differences matter, and homeowners should make final decisions, not the CRC.
A “one size fits all" approach may not work. Many covenants share similar clauses, such as "maximum height determined prior to original construction." However, views, ridgelines, and tree coverage vary widely. Each group should assess its specific needs and desired protections when deciding whether to amend its covenants. As Division 8 learned, broad discretion given to building committees in the past can lead to inconsistencies in CRC interpretations tomorrow. Tightening covenants to reduce discretion and create certainty might benefit some areas.
Each covenant group should engage its homeowners to determine what best fits their needs and how much discretion they want the CRC to have. This is something the hill should figure out with a process that engages homeowners and respects the will of each covenant group. At the end of the day, covenant homeowners should decide their big issues, not the CRC.
So what did Division 8’s Third Amendment do (the short version)? - Corrected the CRC misinterpretation of their covenant. (Div 8 Cov Amendment)
The CRC removed the view line to control vegetation, allowing growth up past the view line to the “bottom of the elements” and approved a second story in an area where it destroyed the ridgeline. A majority of Division 8 homeowners felt both actions were a misinterpretation of the protection their covenant provided. It resulted in a $100,000 lawsuit between neighbors. So they clarified their covenant with a 60% vote, as was their right per their covenant. They introduced two simple rules:
Keep the lot max height determined prior to original construction (to protect the carefully crafted ridgelines and community feel)
Reinstate the view line (to prevent vegetation from growing up to the “bottom of the elements” and destroying existing views.)
These simple and sensible rules are easily understood, supported, and used by the residents and should minimize future lawsuits.
Is it true anyone within 300 feet can veto ALL exterior changes? - No
The covenant is clear – the max height previously defined will be enforced. However, a waiver is possible, but only with the approval of both the CRC and neighbors within 300 feet. This “veto power” only applies to petitions to exceed the maximum height and NOT to ANY OTHER FEATURES.
The CRC may consider a variance to this maximum height restriction where it reasonably determines there is minimal impact on the ridgeline created with adjacent houses and the CRC has received written permission from all owners of property located within 300 feet.
Is it true that View Protection hasn’t changed in 20 years? – NO
One obvious example: in the last 3 years, territorial views went from being protected (Oct 17, 2022 denial) to not being protected (June 14, 2023 approval). The view line went from being a line which determined “whether a proposed improvement unduly impact others” to non-existent. An argument could also be made for ridgeline protections which frame views.
Will the Division 8 covenant make some vegetation non-compliant? Yes, but they want it to.
The view line kept vegetation below the green line. The removal of the view line from the Guidelines means the area between the green and red line lost protection. Restoring the view line returns protection and returns some trees to non-compliant.
I’m not in Division 8 and I don’t have a view, should I even care about their amendment? – Yes
First – Division 8 has secured their desired protections. It is the rest of the hill that is subject to the new standard which opens the door to oversized houses and unchecked vegetation.
Second – Consider Tyee, Eastgate, and nearby Crossroads neighborhoods – they don’t have views but are still scarred by mini-mansions. If you don’t want oversized houses in Somerset regardless of your view you should care about this.
How are decisions made? – The CRC is tasked with interpreting the Covenants
The covenants are the controlling documents.
The CRC is free to reasonably interpret the covenants.
The View Guidelines were developed to help drive consistency in CRC decisions. The view line has been used for both construction and vegetation issues. But there are other factors as well.
The View Guidelines were written in 2008 and slightly modified in 2016 and remained unchanged until 2023. This marked a significant change in how the covenants were interpreted; essentially changed the covenants without a vote (just an assertion there was no change). Clarifying protections in the covenants creates guardrails for the CRC and how it must interpret the covenants.
How much authority does the CRC have? - Limited authority but a lot of discretion
The CRC is bound to follow the Covenants and has no authority to amend, change, or challenge them. However, they have a lot of latitude in their interpretation. As noted in the Riss v. Angel case, the courts give great deference to a board and will not second judge its decision on issues of whether a structure complies with the restrictions as long as the board has acted reasonably and in good faith.
Over the years there has been “inconsistency” regarding the view line (green line) and the bottom of the elements (red line). The view guideline was interpreted in different ways at different times by different people.
In 2022 there was an issue with a specific house in which lawyers got involved. The CRC engaged the long-standing SCA Attorney (who helped write the View Guideline) for guidance. He helped craft an Oct 17, 2022 2-page denial letter (unanimously endorsed by the CRC members) which referenced the view line as an aid to define “whether a proposed improvement unduly impact others” and also wrote that “effect to uphill neighbor territorial views” were a consideration” as was “harmony with style and size of adjacent properties” and “Scale of the proposed structure in comparison to surrounding neighbors”.
In Jun 14, 2023, with a new attorney, the CRC approved a second story addition. The proposed structure was two stories and significantly taller than adjacent ramblers (21’2” vs. 14’).
Items between the View Line and the view elements (territorial view) were considered to have de minimis value and were not protected.
A shift in how territorial views and harmony with adjacent houses were evaluated is clear.
The CRC had a new Chair and the long-standing attorney retired and was replaced. The View Guideline was changed: (here is a marked up version) the Spirit “To preserve the views of a residence, the way they were, when the house was Built“ was removed as was the view line and all reference to it. It cemented that obstructions were possible up to the “bottom of the elements”. The CRC presented these “updates” as “no change” to the board which approved them. The updated View Guideline was posted to the SCA web with no public notice or comment. View line removal eliminated protection for territorial views.
Did the CRC have the authority to make these changes – Yes
The CRC acted within their authority to interpret the covenants. Note: the covenants still are the controlling documents and the View Guideline is only a tool for consistency. The CRC was free to change their tool (essentially a unilateral change to the covenant without consent.) This is why Division 8 clarified the protections their covenant – to put guardrails on the CRC.
Was there a requirement for public comment and review prior to the changes –No
While it might have been a better process, there was no requirement for public engagement or notice prior to making the changes.
What happened in Division 8? – The homeowners felt the CRC misinterpreted their covenant; removing protections and causing a lawsuit so they clarified it. (Div 8 Cov Amendment)
The CRC approved a house that was taller than those on both sides and was above the view line for some uphill neighbors. They also said the area between the green and the red line was not protected and that territorial views were also not protected and this was now the standard. Some neighbors filed a lawsuit and lost; total costs were reported >$100,000.
Division 8 homeowners responded with a petition signed by over half of the owners saying that the CRC had not interpreted their covenant consistent with the protections they believed their covenant is intended to provide. They asked for “simple and sensible” covenant amendments to ensure future CRCs would interpret their covenant as it was intended. Essentially, they said, “Now that we think about it, the view line shouldn’t be used to decide allowable building height – instead, let the lot maximum height determined prior to original construction be enforced (with few waivers) and use the view line to control vegetation. This retains the carefully crafted ridgelines which give the Division 8 neighborhood its feel and frame uphill views and protects against vegetation growing to consume existing views. This will also protect against “monster houses” which the original developers prohibited. These two simple rules give Division 8 homeowners the protections they thought they had and want to guarantee for the future. Putting these rules in the covenant require future CRC’s to follow them.
Once Division 8 made the decision to create simple and sensible amendments, an expert attorney, Amy Meharry, was retained. She helped guide the process. Up front, she confirmed this was an appropriate amendment and 100% signatures were NOT required. The signature gathering and authentication and filing were all modeled after Division 8 Amendment Two and as defined in the covenant. There were two corrections to the title page (a “9” instead of an “8” and reference to details of the waiver (which had changed due to community input after the cover page was drafted but before the Consent to Amend form was finalized)). Neither had any impact on the Consent to Amend form and the changes were simple bookkeeping after the fact of filing. The amendment required 50% signatures. Over 70% of people contacted were signing. The Amendment was filed after achieving 60% signatures (gatherers were confident another 10% was possible but it was time to file to protect the community).
First – why are we spending all this money on lawyers? We do not know how much money the CRC has spent on their legal attacks on Division 8, but we do know having to respond to his original paper was expensive.
The Eglick paper reads like a laundry list of possible problems and objections – many which, if valid, would invalidate the Second Amendment. Our attorney has examined his paper and written a response that covers all objections. Eglick has written back…
Let’s look at three:
Courts have ruled view protections were not reduced – Not relevant to Division 8’s ability to make simple and sensible covenant amendments
It “restricts use of property” – not really; it just keeps the original restriction.
Many claims about “legal requirements” – see above, a weak laundry list that won’t hold up.
How much has all this cost? – Ask the Board
It looks like we may have spent more money on lawyers in the last 3 years than in SCA history. We do not know how much money the CRC has spent on their legal attacks on Division 8, but we do know having to respond to his original paper was expensive. We also know that dues are paying for Eglick, Division 8 is paying out of their own pocket.
Should the rest of the hill adopt the Division 8 Amendments? – No, this is NOT a one size fits all
Each group should figure out, based on their desired protection, what is right for their covenant.Also, as Division 8 discovered, covenants that originally gave a lot of discretion to the building committee now allow the CRC to flip-flop on its interpretation. This can have dramatic impact on homes and their values and it is probably time to “tighten up” the covenants to “narrow down” the CRC’s discretion and create certainty. Each Covenant covers unique portions of the hill – some have views, some don’t, some have long roads with pleasing smooth ridgelines that run for a quarter mile, others are enveloped in trees with no discernible ridgeline. There are many factors and people should consider them before making any decisions on covenant amendments (including if any are needed).
Does a single view guideline make sense for the whole hill? - Probably not
Given the wide range of situations it could be argued that it doesn’t. Also, given the skyrocketing home values we may be past the time when “one size fits all”. Again, this is something the hill should figure out with a process that engages homeowners and respects the will of each covenant group.
Got any Videos? - Yes, but they have some opinions in them…
