Turudic v. Stephens

Court of Appeals of Oregon
31 P.3d 465, 2001 Ore. App. LEXIS 1252, 176 Or. App. 175 (2001)

ELI5:

Sections

Rule of Law:

Under Oregon law, the keeping of exotic animals as family pets constitutes a permissible 'residential use' of property within a subdivision unless explicitly prohibited by restrictive covenants. Additionally, a homeowners' association acts capriciously if it denies approval for a structure based solely on a determination of nuisance that is legally erroneous.

Facts:

The plaintiffs moved to a rural subdivision in Oregon specifically to keep two pet cougars, as permitted by state law.
Plaintiffs purchased a property subject to Covenants, Conditions, and Restrictions (CCRs) that limited the land to 'agricultural farming, tree farming or residential use only' but did not explicitly ban exotic animals.
Plaintiffs constructed a secure, state-approved holding pen and a home on the property, moving the cougars into the pen at 3:00 a.m. without notifying neighbors.
Upon discovering the cougars, the neighbors held a meeting excluding the plaintiffs and resolved that the animals were a nuisance.
The Homeowners' Association retroactively denied approval for the cougar pen based solely on 'nuisance provisions,' despite having no aesthetic objections.
Separately, a neighbor (defendant Albin) placed a portable toilet on his vineyard property directly in front of the plaintiffs' picture window.
Albin refused to move the portable toilet even during the 300+ days a year when no agricultural work was occurring on his land.

Procedural Posture:

Plaintiffs sued the neighbors and Association in trial court seeking a declaratory judgment that the cougars were permitted and an injunction to remove the neighbor's portable toilet.
Defendants counterclaimed for common law nuisance and sought injunctive relief to compel the removal of the cougars and the pen.
The trial court ruled that the portable toilet was a permitted agricultural use and refused to order its removal.
The trial court ruled that the cougars were NOT a nuisance under common law or the CCRs.
However, the trial court ruled that keeping cougars was not a 'residential use' and that the pen violated the CCRs because it lacked prior approval.
The trial court entered judgment ordering the plaintiffs to remove the cougars and the pen.
Plaintiffs appealed the judgment regarding the removal of the cougars and the portable toilet decision to the Court of Appeals.

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Issue:

Does the keeping of cougars as family pets constitute a permissible 'residential use' under the subdivision's covenants, and does a homeowners' association act reasonably in denying approval for a secure animal pen based solely on unfounded nuisance concerns?

Opinions:

Majority - Haselton

Yes, keeping cougars is a residential use, and no, the Association did not act reasonably. The court reasoned that 'residential use' refers to activities generally associated with a personal dwelling, which includes the keeping of family pets. Although cougars are exotic, the plaintiffs testified that they are treated as pets, and the trial court found they did not constitute a nuisance. The court applied the maxim that ambiguous restrictive covenants must be construed strictly against the covenant. Regarding the pen, the court held that because the cougars were not actually a nuisance, the Association's denial of the structure based solely on nuisance grounds was unreasonable and capricious. Furthermore, the court held that the portable toilet constituted a 'temporary storage building' or 'shack,' which the CCRs prohibited, and ordered its removal when not in active agricultural use.

Analysis:

This decision reinforces the principle that restrictive covenants (CCRs) are contracts that will be interpreted strictly against restrictions on land use when ambiguous. It clarifies that 'residential use' is a broad category that includes keeping pets, even exotic ones, provided they do not rise to the level of a legal nuisance. The case serves as a check on homeowners' associations, establishing that they cannot use their architectural review powers as a pretext to ban permitted uses or to enforce subjective objections that contradict legal findings. It protects the rights of property owners to engage in unusual but lawful activities on their land as long as they comply with safety standards and specific covenant text.

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