DISSENTING OPINION BY NAKAYAMA, J.,

WITH WHOM RAMIL, J., JOINS



I dissent. The language "two stories in height" is not ambiguous. Nevertheless, in order to spare what is undisputably a third story on the Hoffmans' home, the majority labors to create ambiguity where none existed before -- certainly not in the perception of the Hoffmans' community, and apparently not in the Hoffmans until the present appeal. The majority thus saves one story of a single house, but betrays years of reliance by the Hoffmans' neighbors and the larger Pacific Palisades community on the covenant's plain language and increases uncertainty and litigation with respect to other plainly worded covenants.

As stated in DeMund v. Lum, 5 Haw. App. 336, 690 P.2d 1316 (1984):

The fundamental rule in construing restrictive covenants is that the intention of the parties as shown by the covenant governs. . . . In construing the words of the covenant, the court is not limited to dictionary definitions, but the meaning of words used is governed by the intention of the parties, to be determined upon the same rules of evidence as other questions of intention. The words are to be taken in their ordinary and popular sense, unless they have acquired a peculiar or special meaning in the particular relation in which they appear or in respect of the particular subject matter, or unless it appears from the context that the parties intended to use them in a different sense.



Id. at 343, 690 P.2d at 1321 (quoting 20 Am. Jur. 2d Covenants, § 186 (1965)). See also Clark v. Wodehouse, 4 Haw. App. 507, 511, 669 P.2d 170, 173 (1983) ("In determining the meaning of the language used in a restrictive covenant, the court 'will first look to the plain, ordinary and popular meaning of the words used in the covenant.'" (citing Collins v. Goetsch, 59 Haw. 481, 487 n.3, 583 P.2d 353, 358 n.3 (1978))).

The phrase "stories in height" is an ordinary, stock expression. The plain reading of "[n]o dwelling shall be erected . . . which exceeds two stories in height," manifests the purpose of limiting structures to two stories or less -- without regard or reference to exact "height" in feet and inches. It is undisputed that the Hoffmans' dwelling, built in a three-tiered, terrace-like form and described as "three stories" by the Hoffmans themselves, is in fact three stories. One need not analyze any further or inquire into the height of the structure in feet and inches to determine that the Hoffmans' house strays from the common and conventional meaning of "two stories in height."

In King v. Kugler, 17 Cal. Rptr. 504 (1961), the California court of appeal rejected the identical argument advanced in the present appeal, holding that "one story in height" was unambiguous. The court reasoned:

Contrary to appellant's claim, we see nothing vague, ambiguous or uncertain in the meaning of the restrictive phrase "one story in height," or as to what was intended thereby. It does not appear, nor have appellants contended, that the words have a technical, special or peculiar meaning; they merely argue that to control the height the grantor "should" have inserted a limit in feet and inches or other language from which the intended maximum height could have been inferred exactly. . . . [W]e can only conclude, as did the trial court, that the structure not to exceed "one story in height" neither encompasses nor contemplates defendants' proposed structure, which is to have a garage floor and ceiling and a room with a floor and ceiling above the garage.

Resorting to the popular and common meaning of the phrase "first class buildings only" as used in a like restriction, the court in Harrison v. Frye, 148 Cal. App.2d 626, 307 P.2d 76, held such language to be certain in its meaning and intent. Similarly, we find the popular and common usage of the phrase "one story in height" to render the restriction sufficiently clear and certain to support injunctive relief. The word "story is defined in Webster's New International Dictionary, Second Edition (Unabridged) at page 2487, as "A set of rooms on the same floor or level; a floor, or the habitable space between two floors. * * * A story comprehends the distance from one floor to another." Commonly accepted as the ordinary meaning, this definition of the word "story" has been adopted by courts in and out of this jurisdiction. . . .

In light of the restrictions and conditions contained in the Declaration, the topography of the tract and elevation of the lots, and the existing structures thereon, the general plan of the grantor reflects its plain intent and desire to maintain a one story height for all structures in the tract for the purpose of preserving the view of the individual lot owners at varied elevations. In accord with this plan, the grantor originally constructed no building outside of the restrictions, and today the structures, including garages and out buildings . . . are all only one story high.

Appellants' illustrations of the "vagueness of the restrictions" . . . are concededly extreme, the obvious result of strained constructions of an ordinary, common phrase, and we deem them to be unreasonable and of no validity in their argument.



Id. at 507-08 (emphasis added). See also Dickstein v. Williams, 571 P.2d 1169, 1170-71 (Nev. 1977) (upholding the trial court's finding that "one story from ground level in height" was unambiguous); Pool v. Denbeck, 241 N.W.2d 503, 506 (Neb. 1976) (holding, without discussion, that a "two stories in height" restriction is not ambiguous, and defendants' two-and-a-half story house "clearly violates it").

Nor does "two stories in height" become ambiguous under any technical definition of "story." The Hoffmans indeed argued before the circuit court that their house consisted of "two stories and a basement" under the definition of "story" in the Uniform Building Code (UBC). The plaintiffs, however, conclusively established that, even under the UBC definition, the bottom floor of the Hoffmans' house constituted a separate story, and the dwelling totaled three stories in height. Both the architect who designed the house and the Hoffmans' architectural expert at the hearing testified that the house was three stories under the UBC definition, and the original architect opined that it violated the instant covenant.

Only after the Hoffmans' argument based on the technical definition of "story" failed did the Hoffmans resort to the argument that the term "two stories in height" was ambiguous. This eleventh-hour change demonstrates that the "ambiguity" in this case stems less from bona fide doubt in the meaning of the covenant terms than from creative, if somewhat disingenuous, appellate advocacy. The majority nonetheless accepts the Hoffmans' argument, holding that, insofar as one could envision a hypothetical two story house identical in height, measured in feet and inches, to the Hoffmans' home, "two stories in height" is ambiguous. See Majority at 10 ("Therefore, where the height of a two-story residence could equal or exceed the height of the Hoffmans' three story residence, the language 'two stories in height' is inherently ambiguous[.]").

I emphatically disagree. The academic possibility of such an identical house "in height" does not render the notice provided by the term "two stories in height" to prospective builders or purchasers (as opposed to those rationalizing in hindsight) any less clear. The Hoffmans admit as much by conceding that their house is in fact three stories. And the majority hardly proves otherwise when it states that the covenant would be unambiguous if it, inter alia, "merely restricted all homes to 'two stories,' without adding the 'in height' language," Majority at 12 -- as if "two stories" referred to anything but height.

Furthermore, even if ambiguity exists, it does not follow that the covenant is unenforceable. First, any ambiguity created by viewing the words "two stories in height" in an analytical vacuum vanishes with the recognition that, in the present case, it is undisputed that the Hoffmans' house is three stories. In other words, whatever "two stories" may mean in the mind of the majority, it simply does not include the Hoffmans' house.(1) Second, given the majority's emphasis on the covenant's underlying purpose of restricting the height of homes in order to protect view planes, the majority should grant, rather than deny, the requested relief, insofar as the uncontroverted evidence in this case establishes that the Hoffmans' house in fact impairs the views of their neighbors.(2) Such was the result in Foster v. Nehls, 551 P.2d 768 (Wash. Ct. App. 1976), cited by the majority in support of its decision.(3) Indeed, the loophole created in this case effectively allows any homeowner in the Pacific Palisades neighborhood to build up to the maximum height envelope in the zoning ordinances -- a height not mentioned or contemplated in the instant covenant. The majority thus does not merely rewrite the covenant, it eviscerates it. Purporting to interpret the covenant in light of its purpose of limiting height and protecting view planes, the majority deprives the covenant of any limiting effect and thus defeats the very purpose it purports to uphold.

One would hope that this decision does not serve to nullify the effect of existing restrictive covenants across this state.(4) Indeed, the majority appears to limit its holding by observing that "[i]f the purpose of the covenant was to preserve a two-story aesthetic character for the neighborhood, rather than to protect view planes, and if the covenant merely restricted all homes to 'two stories,' without adding the 'in height' language," Majority at 12, it might deem the covenant unambiguous and enforceable.(5) In any event, the majority's approach is completely unworkable. It denies homeowners and purchasers the ability to rely on the plain language of covenants, requiring them to seek out evidence of the drafters' intent. It leads to the incongruous result of the identical language having two or more meanings depending on the intent alleged. Even apart from its ultimate effect on existing restrictive covenants, therefore, the majority opinion will have the negative impact of encouraging uncertainty, litigation, opportunistic non-compliance, and "un-neighborly" relations in general.

Finally, I remain unimpressed by the majority's general reliance on the "long-standing policy favoring the unrestricted use of property." Id. at 21. First, the rule of construction states that "[s]ubstantial doubt or ambiguity is resolved against the person seeking its enforcement." Id. at 7 (citing Waikiki Malia Hotel, Inc. v. Kinkai Properties Ltd. Partnership, 75 Haw. 370, 384, 862 P.2d 1048 (1993)) (emphasis added). See also Swaggerty v. Petersen, 572 P.2d 1309, 1313 (Or. 1977) ("Even under the traditional rule, . . . a construction in favor of the unfettered use of property must be reasonable."). Here, no such substantial doubt exists, and any ambiguity that may exist does not apply to the actual three-story structure in this case. More fundamentally, where one hundred or more homeowners in the Pacific Palisades community have limited their own property rights in reliance that their neighbors will duly reciprocate,(6) I find it manifestly unjust to sanction the Hoffmans' willful non-compliance based on the "policy favoring the unrestricted use of property."(7) In my view, the majority opinion over-emphasizes the rights of the Hoffmans without due regard to the rights of their neighbors. See Foster, supra (upholding injunctive relief, notwithstanding ambiguity in the covenant terms, in light of the underlying purpose of protecting view planes, and because actual interference occurred).

For the above reasons, I respectfully dissent. I would hold that the covenant is unambiguous and enforceable and affirm the circuit court's judgment in all respects.

1. I note that none of the cases cited by the majority in support of its decision employed the majority's approach of "hypothesizing" an ambiguity to excuse an undisputed actual disparity between the covenant terms and the disputed structure.

2. The Hoffmans' neighbors submitted affidavits and photographs attesting to actual visual interference.

3. The court in Foster, notwithstanding ambiguity in the covenant terms, rejected defendants' argument that it had to reduce "one and one-half stories in height" to "an inches and feet definition" in order to find a violation and affirmed the order requiring the removal of the second story of the defendants' home to the extent that it violated the covenant's purpose of protecting views. See 551 P.2d at 771-72.

4. Almost any plainly worded covenant could become ambiguous under the majority's approach. For example, although we have held that the term "single family dwelling" is unambiguous, see Collins, supra, a duplex could qualify under the majority's analysis as a "single family dwelling," insofar as a single family could occupy such a structure, and the drafters could have described the intended use in greater detail.

5. Closer scrutiny, however, reveals these distinctions to be spurious. Under the majority's "intent"-based approach, "two stories," without more, is no less ambiguous than "two stories in height." Furthermore, an appeal to the purpose of regulating aesthetics would offer little relief in cases involving generally "monolithic" structures (as opposed to terraced like the Hoffman's home), insofar as, in the same manner that a two-story house could stand as tall as a three-story house, a two-story house could have the same external appearance as a three-story house.

6. The majority rejects this statement as "hyperbolic" and unsupported by the record. See Majority at 8 n.1. Insofar as the Hoffmans themselves observe that the instant covenant covers 118 lots in the Pacific Palisades neighborhood and have at no time argued any "abandonment" of the covenant, I decline to ignore the logical conclusion that the neighborhood has largely, if not entirely, complied with the covenant.

7. I also find it ironic that the majority opinion effectively undermines the policies of "certainty" and "consistency" considered central to property rights.