Vasquez v. SpeakEasy, Inc. and Northern Center of Worship

Order Description

: Vasquez v. SpeakEasy, Inc. and Northern Center of Worship
Our clients, Greg and Mary Vasquez, filed a complaint seeking to enjoin SpeakEasy,
Inc., a cellular telephone company, from erecting a 50-foot cellular tower on property
owned by Northern Center of Worship adjacent to the Vasquez’ property. We have
agreed to submit resolution of this matter to the judge based on the Stipulated
Statement of Agreed Facts. Please draft the brief supporting our position. You need
not include an additional statement of facts at the beginning of your brief.
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_________    _________________________    __________________
_ _ _ __ _____ ___
_ ___ _________ ___ _ _ __
MEMORANDUM
To: All Attorneys
From: Executive Committee
Re: Persuasive Briefs and Memoranda
In drafting persuasive briefs, the firm conforms to the following guidelines:
Except when there is already an agreed or stipulated identification of the facts, the brief
should begin with a short statement of facts, using only those facts supported by the
record. Include only those facts you need for your persuasive argument.
The firm follows the practice of writing carefully crafted subject headings which illustrate
the arguments they cover. The argument heading should succinctly summarize the
reasons the tribunal should take the position you are advocating. A heading should be
a specific application of a rule of law to the facts of the case and not a bare legal or
factual conclusion or a statement of an abstract principle. For example, IMPROPER:
COLUMBIA HAS PERSONAL JURISDICTION; PROPER: DEFENDANT’S RADIO
BROADCASTS INTO COLUMBIA CONSTITUTE MINIMUM CONTACTS SUFFICIENT
TO ESTABLISH PERSONAL JURISDICTION. The analysis following each heading
should flow logically from each heading.
The body of each argument should persuasively argue how the facts and law support
our client’s position. Contrary arguments and authority must be acknowledged and
responded to rather than ignored.
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In writing a first draft, the attorney should not prepare a table of contents, a table of
cases, a summary of argument, or an index. These will be prepared, where required,
after the draft is approved.
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1 Anatoly Krotov, Esq.
2 Law Offices of Anatoly Krotov
3 645 Elvis Way
4 San Claritan, Columbia
5 Attorney for Plaintiff
6
7 Paul McDonald, Esq.
8 McDonald, Carpenter & Dean
9 98 Rebecca Lane
10 Francisco, Columbia
11 Attorneys for Defendants
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13
14 SUPERIOR COURT OF THE STATE OF COLUMBIA
15 IN AND FOR THE COUNTY OF MICO
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17
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19 Greg Vasquez and Mary Vasquez,
20 Plaintiffs,
21 v. Civil Action No. 03281955 DEB
22
23 Northern Center for Worship, STATEMENT OF AGREED
24 a Columbia Nonprofit Corporation, FACTS AND SUBMISSION OF
25 and THE CASE
26 SpeakEasy, Inc.,
27 a Columbia Corporation,
28 Defendants
29 _____________________________________ /
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1 INTRODUCTION
2 The Complaint filed herein by Plaintiffs on June 27, 2010 seeks a mandatory permanent
3 injunction requiring Defendants to dismantle and demolish a 50-foot bell tower housing
4 a cellular telephone transmission facility constructed on the property of Defendant
5 Northern Center for Worship by Defendant Speakeasy, Inc. (“SpeakEasy”). The
6 Complaint alleges that the tower violates the Covenants, Conditions and Restrictions
7 (“CC&R’s”) limiting and restricting uses of the property within the Pinnacle Canyon
8 Estates Subdivision. Pursuant to the Order of this Court, the parties have entered into
9 this Statement of Agreed Facts and Submission of the Case, and shall each submit
10 supporting briefs, after receipt of which this Court shall issue its decree.
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12 JOINT STIPULATION OF FACTS
13 Plaintiffs and Defendants agree that:
14 1. Pinnacle Canyon Estates (the “subdivision”) is a residential subdivision of 42
15 lots located in the City of San Claritan, Mico County, Columbia.
16 2. Plaintiffs Greg and Mary Vasquez own and reside in a detached one story
17 single-family dwelling on Lot Two of Pinnacle Canyon Estates.
18 3. SpeakEasy is a Columbia corporation conducting a cellular telephone
19 business in Mico County.
20 4. Northern Center for Worship (the “Church”) is a Columbia nonprofit corporation
21 and is conducting business in Mico County.
22 5. Covenants, Conditions and Restrictions, which limit and restrict uses of the
23 property in the subdivision, are the agreement that is the subject of this litigation. These
24 CC&R’s were executed on December 9, 1960. Selected provisions of the CC&R’s are
25 attached as Exhibit “A.”
26 6. The Church owns and occupies Lots Seven, Eight and Nine of the
27 subdivision.
28 7. The Vasquez’ property, Lot Two of the subdivision, shares a boundary line
29 with the Church’s Lot Seven.
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8. On July 29, 2009, the Church entered into agreement 1 with SpeakEasy for
2 construction of a 50-foot bell tower on Lot Seven that would house a wireless telephone
3 facility. The terms of the agreement were that SpeakEasy would pay all costs for
4 construction of the bell tower and a monthly rental of $1,000 for use of the property.
5 9. On September 27, 2009, a group of neighbors in the subdivision, including the
6 Vasquezes, voiced objections to the construction of the tower. The Church convened a
7 meeting to discuss the matter with the neighbors and advised each objecting neighbor
8 that SpeakEasy had already expended $106,000 on the tower, and that the Church
9 would be obligated to reimburse SpeakEasy for at least that amount were the Church to
10 terminate its agreement with SpeakEasy for the construction of the bell tower. The
11 Church told the neighbors that it had no real choice but to proceed with its agreement
12 and so advised the complaining neighbors.
13 10. On January 27, 2010, the Vasquezes notified the Church and SpeakEasy in
14 writing by letter that construction of the bell tower was in violation of the CC&R’s. From
15 the time of the meeting until the lawsuit was filed, there were no objections or
16 complaints to the tower other than the letter from the Vasquezes.
17 11. On February 13, 2010, Defendant SpeakEasy completed construction of the
18 bell tower housing the wireless telephone facility.
19 12. Prior to construction of the tower in Pinnacle Canyon Estates that is the
20 subject of this lawsuit, the following potential violations of the subdivision’s CC&R’s
21 existed:
22 (a) a two-story barn converted into living quarters;
23 (b) a two-story house addition;
24 (c) two amateur radio towers;
25 (d) a satellite dish on the peak of a house;
26 (e) a flagpole;
27 (f) a previously existing 40-foot bell tower at the Church;
28 (g) a steeple at the Church with a cross on the top, which extends nearly as high
29 as the disputed tower;
30 (h) a flagpole at the Church;
31 (i) a large sign for the Church at the front entrance; and
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(j) several large, wooden telephone poles and electric lines 1 located throughout
2 the subdivision and between Plaintiffs’ home and the Church.
3 13. Mr. and Mrs. Vasquez purchased their home on Lot Two in 2001 for
4 $114,000. The highest recent sale of a comparable residence in the subdivision was for
5 $360,000. The parties retained separate experts to determine the impact of the
6 disputed tower on the value of Plaintiffs’ property. The experts could not agree.
7 However, they put the range of diminution of value between 0% and 5%.
8 14. On the date Plaintiffs filed their complaint and application for injunction,
9 SpeakEasy had spent the following in resources concerning planning and construction
10 of the bell tower: $106,000 for planning, architecture, and pre-construction permits and
11 $148,000 for all aspects of construction, for a total construction cost of $254,000.
12 15. Demolition and removal of the tower from its present location would cost
13 $50,000.
14 16. Thus the total loss to SpeakEasy should it be required to remove the tower
15 would be $304,000, which is calculated as the $254,000 construction cost plus the
16 $50,000 cost for demolition and removal.
17 17. A church, the present existing sign, and cross on the steeple have occupied
18 Lot Nine for 25 years.
19 18. When Lot Nine was acquired by the Church in 1995, the lot was covered
20 with weeds, the driveways were rough and dusty, and in general the property was in
21 bad repair.
22 19. Over the years the Church has steadily improved their properties, expending
23 more than $4 million. By the time the Plaintiffs acquired their property in the
24 subdivision, the Church had already made substantial additions and improvements to
25 Lots Eight and Nine.
26 20. In 2005 the Church acquired Lot Seven, and shortly thereafter designed and
27 built the sanctuary with the same stucco walls and tile roof and covered porches as the
28 other buildings, so as to blend in with the other buildings on the Church grounds. The
29 Vasquez’ lot had no rear fence, so the Church arranged for erection of a block wall at its
30 own expense. Mr. and Mrs. Vasquez never complained about any of these
31 improvements.
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21. In the 50 years since the CC&R’s were recorded, 1 no action has ever been
2 filed to enforce any of the provisions thereof.
3 22. No neighbor or lot owner in the subdivision has ever attempted to stop the
4 operation or expansion of the Church or any sign, bell tower, cross or other church5
related structure or improvement on Lots Seven, Eight, or Nine.
6 23. Plaintiffs allege that Defendants’ proposed structure has disturbed, and will
7 continue to disturb, the quiet enjoyment of Plaintiffs’ property.
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9 SUBMISSION OF THE CASE
10 The parties agree to submit for determination by this Court the following issues:
11 1. Do the CC&R’s prohibit the construction of the disputed tower?
12 2. Has the CC&Rs’ prohibition of the disputed tower, if found to exist, been
13 waived or abandoned?
14 3. Are the Plaintiffs barred from obtaining the injunctive relief sought due to
15 laches?
16 4. Does the balance of hardships dictate that the Plaintiffs’ sought remedy of
17 removal of the tower be denied?
18 Respectfully submitted,
19 Dated: July 27, 2010
20
21 Law Offices of Anatoly Krotov McDonald, Carpenter & Dean
22
23 by: ________    ____ by: ________    _______________________
24 Anatoly Krotov, Esq. Paul McDonald, Esq.
25 Attorney for Plaintiff Attorneys for Defendants
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EXHIBIT “A”
Selected Provisions of the Declaration of Covenants, Conditions and Restrictions
for Pinnacle Canyon Estates
* * *
General Provisions:
1. All of the lots in Pinnacle Canyon Estates shall be known and described as
residential lots.
2. All structures on the lots shall be of new construction and no building shall be
moved from another location onto any lot. At no time shall house trailers be allowed on
the lots.
3. No garage or other building shall be erected on any of the lots until a dwelling
house shall have been erected.
4. No structure shall be erected, altered, placed or permitted to remain on any of
the lots other than one detached single-family dwelling not to exceed one story in height
and a private garage not to exceed one story in height for not more than three cars, and
a guest or servant quarters for the sole use of actual non-paying guests or actual
servants of the occupants of the main residential building.
* * *
7. No fence or solid wall, other than the wall of the building, shall be more than 6
feet in height, nor any hedge more than 3 feet in height, or closer than 20 feet to front lot
line.
* * *
15. No structure of any kind shall be erected, permitted or maintained on the
easements for utilities as shown on the plat of Pinnacle Canyon Estates.
* * *
Enforcement: Upon the breach of any of the covenants or restrictions herein, anyone
owning land in Pinnacle Canyon Estates may bring a proper action in the proper court to
enjoin or restrain the violation, or to collect damages or other dues on account thereof.
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Anti-waiver Provision: Failure to enforce any of the restrictions, rights, reservations,
limitations and covenants contained herein shall not in any event be construed or held
to be a waiver thereof or consent to any further or succeeding breach or violation
thereof.
Choice Residential District: All deeds shall be given and accepted upon the express
understanding that Pinnacle Canyon Estates has been carefully planned as a Choice
Residential District exclusively, and to assure lot owners in Pinnacle Canyon Estates
that under no pretext will there be an abandonment of the original plan to preserve
Pinnacle Canyon Estates as a Choice Residential District.

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PLAINTIFF VASQUEZ MEMORANDUM OF LAW SEEKING INJUCTION AGAINST DEFENDANT SPEAKEASY ERECTING CELLULAR TOWER

Plaintiffs Greg Vasquez and Mary Vasquez (“Vasquez”) are residents Pinnacle Canyon Estates. Defendant SpeakEasy Inc, and Northern Center for Worship (“SpeakEasy”) erected a 50-foot cellular tower in violation of the Estate’s Convenants, Conditions and Restrictions (CC&R). Vasquez’s lot is next to the cellular tower. Vasquez respectfully asks the court to enjoin SpeakEasy from erecting the cellular tower.
ARGUMENT
The CC&Rs are a form of express contract between property owners as a whole and each individual property owner. Columbia law permits restrictive covenants, to the extent that they are unambiguous and enforcement not adverse to public policy (Horton v. Mitchell). The CC&R is clear and enforcement of it against defendants is not adverse to public policy.
I.    THE CC&R PROHIBIT THE CONSTRUCTION OF THE DISPUTED TOWER.

The CC&R must be read in its entirety to determine the parties’ intent, provision will be construed to harmonize the agreement and not render any terms ineffective (Horton v. Mitchell). The CC&R states “no structure shall be… permitted to remain on any lots other than one detached single-family dwelling not to exceed one story in height…” It further states “…Pinnacle Canyon Estates has been carefully planned as a Choice Residential District exclusively…”  (Exhibit “A”)
In Horton, structure was read broadly to include a roadway. In spite of the requirement that court resolving ambiguities and doubts in favor of free use of property, the Supreme Court in Horton reversed the trial court’s dismissal. The Supreme Court found that the roadway was a structure described in the CC&R and the estate being identified as a Choice Residential District precludes building any structure that negatively impact the character of the neighborhood. Similarly, the cellular tower would be unambiguously considered a structure by the clear reading of the CC&R. It is agreed by the parties that the cellular tower is 50-feet and exceeds one story in height. Furthermore, Pinnacle Canyon Estates is similarly a Choice Residential District and the structure of a 50-foot cellular tower would negatively impacts the character of the neighborhood. SpeakEasy violated the expressed provision of the agreed upon CC&R when it constructed the cellular tower.
II.    THE CC&RS’ PROHIBITION OF THE DISPUTED TOWER WAS NOT WAIVED OR ABANDONED.
The defense of waiver prevents restrictions from being enforced if they are not universally enforced or there are frequent violations of the restrictions. Factors taken into account include the location of present and prior nonconforming uses, similarity of prior nonconforming uses, and the frequency of prior nonconforming use (Blaire v. Evans).
In Blaire, defendant sought to build another two-car garage in violation of a CC&R provision. Defendant sought the defense of waiver by acquiescence. The Supreme Court affirmed the finding that all factors were sufficient to find for a waiver, but a non-waiver provision was held effective because the CC&R was, in whole, not abandoned.
Since there was previous construction of a steeple and a sign, the factors might indicate that a defense of waiver is possible. However, like Blaire, the CC&R contains an anti-waiver provision (Exhibit “A”). There has been no evidence of an abandonment of the CC&R and the court should find that the anti-waiver provision is effective, and the prohibition of the tower is not abandoned or waived.
III.    PLAINTIFFS NOT BARRED FROM RELIEF DUE TO LACHES.

Laches bars the remedy of an offense if there has been unreasonable delay in bringing the action. In Lutz, the Court of Appeals affirmed the Superior Court’s directed removal of a warehouse building in violation of CC&R. Defendant argues that plaintiff is precluded from relief due to laches. The court found that the plaintiff is not required to seek injunctive relief prior to a CC&R violation, or file a lawsuit as the very first course of action. Since the defendant knew about the restrictive covenant, the defendant should have determined its enforceability.
In this case, on July 2009, SpeakEasy entered into an agreement with the Church and a mere two months later, the neighbors including Vasquez voiced objections to the construction. On January 2010, Vasquez notified SpeakEasy that the construction of the tower would violate the CC&R and filed suit on June 2010. The time from the initial agreement to the lawsuit is just one year, given the research and time taken to attain representation, it is a substantially short time. Furthermore, Vasquez informed SpeakEasy of construction issues within two months and six months after the agreement was entered into. As in Lutz, Vasquez was not required to file a lawsuit as a first course of action and prudently tried to settle out of court to persuade SpeakEasy to cease construction.
Finally, similar to Lutz, SpeakEasy understood that to proceed with the construction of the cellular tower would potentially violate the CC&R. SpeakEasy acted at his own peril without first obtaining a resolution of the potential violation and completed the construction of the tower. The equitable relief of laches should not be given to SpeakEasy since Vasquez did not delay unreasonably and SpeakEasy acted imprudently.
IV.    BALANCE OF HARDSHIP DOES NOT PRECLUDE PLAINTIFF’S SOUGHT REMEDY TO REMOVE THE TOWER.

The defense of balance of hardship must find that the defendant did not willfully or intentionally act, that the act did not cause irreparable harm, and the hardship be clearly and greatly disproportionate to the harm as proven by the defendant (Piedmont Valley Homes Association v. Walter). Courts must resolve defense of balance of hardship in favor of plaintiff.
In Piedmont Valley Homes Association, the Supreme Court reversed the decision of the trial court and found that the balance of hardship precluded plaintiff’s remedy to remove a breakfast nook and deck. The Supreme Court found that through the length of time of encroachment, the non-intentional act of the defendant, and the lack of apparent harm, the balance of hardship precludes relief. In Lutz, the defendant asserted a balance of hardship defense but was denied by the trial court (and affirmed by the Court of Appeals) because the defendant acted intentionally.
In this case, SpeakEasy knew about the potential violation of the CC&R, but continued the construction of the tower. This is similar to Lutz, the defendant has already partially constructed the warehouse in violation of the CC&R but opted to complete the construction to ‘salvage the situation’. SpeakEasy might similarly assert so because it is only a month away from completion, but the court should find that argument non-compelling, and find that the act was intentional.
The construction of the tower did cause irreparable harm. Although some experts found that there was no diminution in value due to the tower, other experts found a 5% decrease in value. If the courts would resolve the defense of hardship in favor of the plaintiff, it would find that there is at least some irreparable harm caused by the tower. Even though the cost of the injunction amounts to $304,000, the simple economic comparison of numbers is not applicable for the balance test, and the innocent plaintiff should not bear the cost of the defendant’s intentional actions.
Finally, unlike Piedmont Valley Homes Association, the length of time was a mere six months, not 16 years and unlike the City, Vasquez would suffer irreparable harm from the permanent structure adjacent to his lot as evidenced by the expert testimony and the admission by defendants that the structure disturbs the quiet enjoyment of Vasquez’s property.
CONCLUSION
In light of the foregoing, the plaintiff seeks the injunction of the construction of the tower adjacent to his residential property

2

PLAINTIFF VAZQUEZ’ BRIEF SUPPORTING INJUNCTION
Plaintiffs Greg and Mary Vasquez are entitled to a mandatory permanent injunction requiring Defendants to dismantle and demolish a 50-foot bell tower housing a cellular telephone transmission facility constructed on the property of Defendant Northern Center for Worship by Defendant Speakeasy, Inc. (SpeakEasy).  The tower violates the Covenants, Conditions and restrictions (CC&Rs) limiting and restricting uses of the property within the Pinnacle Canyon Estates Subdivision and the Defendant was constructively and actually aware of the violation and continued construction at their own peril.  Therefore, the court should approve Plaintiff’s Vasquez motion to enjoin SpeakEasy, Inc., a cellular telephone company, from erecting a 50-foot cellular tower on property owned by Northern Center of Worship adjacent to the Vasquez’ property.
FACTS
See stipulated facts attached.
ARGUMENT
Columbia law permits restrictive covenants so long as enforcement is not adverse to public policy.  Here Defendants are intentional violators of CC&Rs and will attempt to rely on Waiver by Acquiescence, Non-Waiver of Provision, Abandonment, Fundamental Change to the Neighborhood, Laches, and/or the contention of relative hardship.
I.    JUDGEMENT FOR A MANDATORY PERMANENT INJUCTION IS APPROPRIATE BECAUSE THERE WAS NO WAIVER BY ACQUIESCENCE.

Waiver by Acquiescence occurs when restrictions sought to be enforced are not universally enforced or when there are frequent violations of the restrictions.

a.    In Columbia three factors are significant to the analysis of Waiver by Acquiescence: 1) the location of the objecting landowners relative to both the property upon which the nonconforming use is sought to be enjoined and the property upon which a nonconforming use has been allowed, 2) the similarity of the prior nonconforming use to the nonconforming use sought to be enjoined, and 3) the frequency of prior nonconforming uses (Blaire v. Evans Columbia Supreme Court (1999)).
i.    There Evans sought to build an additional detached private garage based on waiver by acquiescence, which the court allowed.  The Blaire’s were found to have acquiesced because 1) the objecting landowners were  found to be in close proximity of 2) numerous structures similar to the nonconforming use sought to be enjoined, and 3) the high frequency of prior nonconforming structures suggests acquiescence.
ii.    Here waiver by acquiescence does not apply because the Vasquez’ 1) are not in close proximity of 2) numerous structures similar to the nonconforming 50-foot Bell Tower housing a cellular telephone transmission facility, and 3) there are no other prior nonconforming Bell Towers housing a cellular telephone transmission facilities.
iii.    Therefore a mandatory permanent injunction is appropriate because there are no other nonconforming 50-foot Bell Tower housing a cellular telephone transmission facility in the neighborhood that could be construed as having been acquiesced to.

b.    In Columbia failure to sue for prior breaches by others where the breaches were non-injurious to the complainant cannot be treated as an acquiescence sufficient to bar equitable relief against a more serious and damaging violation.   (Blaire v. Evans Columbia Supreme Court (1999)).
i.    There Blaire was allowed to request relief because Blaire argued that other uncontested breaches had not injured Blaire.
ii.    Here though there have been numerous breaches to CC&Rs in the Vasquez’ neighborhood (Pinnacle Canyon Estates) the breaches were not injurious to Vasquez because of the location of the nonconforming   structures and the nature of the nonconforming structures.  The previous nonconforming structures were primarily second stories to homes, a flagpole, a satellite dish on a home, and additions, which a reasonable person would expect to find in a “Choice Residential District.”   Though the church, steeple, sign and church bell tower are non-conforming and adjacent to the Vazquez’ lot, these structures would be considered normal in a “Choice Residential District,” by most reasonable people.
iii.    Therefore a mandatory permanent injunction is appropriate because prior breaches in Vasquez’ neighborhood were not injurious to Vasquez and were of a nature one would expect in a “Choice Residential District.”

II.    JUDGEMENT FOR A MANDATORY PERMANENT INJUCTION IS APPROPRIATE BECAUSE THE CC&R FOR PINNACLE HAS AN ANTI-WAIVER PROVISION.

An Anti-Waiver provision indicates that prior failure to enforce restrictions and covenants shall not be construed to be a waiver or consent to succeeding breaches.

a.    In Columbia even if residents fail to enforce CC&Rs it does not preclude future enforcement of CC&Rs (Blaire v. Evans Columbia Supreme Court (1999)).
i.    There even if there was acquiescence, the court found the Blares were still entitled to enforce CC&Rs because of the non-waiver provision.   The court stated the non-waiver clause allows prospective purchasers to rely on recorded CC&Rs.  And went on to say “so long as the waiver clause is unambiguous and not adverse to public policy, it can be enforced.”
ii.    Here the Vasquez’ neighborhood has an anti-waiver provision that applies because thought there were prior breaches to the CC&Rs, the Vasquez’ are objecting to a new nonconforming structure.
iii.    Therefore a mandatory permanent injunction is appropriate because the 50-foot Bell Tower housing a cellular telephone transmission facility is a new nonconforming structure that the neighbors objected to in a timely manner.

III.    JUDGEMENT FOR A MANDATORY PERMANENT INJUCTION IS APPROPRIATE BECAUSE ABANDONMENT HAS NOT OCCURED.
Abandonment is a complete disregard of the entire set of CC&Rs and would make the non-waiver provision ineffective.
a.    In Columbia the test for abandonment of deed restrictions, is the restrictions have been so completely disregarded as to cause a 1) change in the area, 2) destroy the effectiveness of the CC&Rs, and 3) defeat the purposes for which they were imposed and amounting to abandonment.  (Blaire v. Evans Columbia Supreme Court (1999)).
i.    There, evidence was not provided to support abandonment because there was no evidence presented to show the fundamental character of the neighborhood had changed or that the neighborhood was no longer a “Choice Residential District.”
ii.    Here there has been no abandonment because the Pinnacle neighborhood would still be found to be a “Choice Residential District.” A church in a good neighborhood would be reasonable to most people, but a 50-foot Bell Tower housing a cellular telephone transmission facility would not.
iii.    Therefore a mandatory permanent injunction is appropriate because the CC&Rs are still enforce and there has been no abandonment.

IV.    JUDGEMENT FOR A MANDATORY PERMANENT INJUCTION IS APPROPRIATE BECAUSE THERE WAS NO FUNDAMENTAL CHANGE TO THE NEIGBORHOOD.

Fundamental Change to the Neighborhood is a rapid and radical change in the character of the neighborhood adjacent to the restricted property to preclude the homeowners from enforcing the restrictive covenant.

a.    In Columbia a fundamental change to the neighborhood could justify the building of nonconforming structures.  (Lutz v. Gundersen Columbia Court of Appeals (2000))
i.    There Gundersen built a ware house in a neighborhood and claimed fundamental change to the neighborhood because areas around the neighborhood had change to business (bowling alley, mini-golf).
ii.    Here there is no indication of a fundamental change to the neighborhood because there is no evidence in the stipulated facts to suggest a change in he neighborhood to support a 50-foot Bell Tower housing a cellular telephone transmission facility.
iii.    Therefore a mandatory permanent injunction is appropriate because it is still a Choice neighborhood.

V.    JUDGEMENT FOR A MANDATORY PERMANENT INJUCTION IS APPROPRIATE BECAUSE LACHES DOES NOT APPLY.
Laches is a relief for a defendant when a plaintiff is aware of an issue, but does not complain or seek relief until after construction is complete.

a.    In Columbia laches could be argued to allow a defendant to violate CC&Rs (Lutz v. Gundersen Columbia Court of Appeals (2000)).
i.    There…. Because
ii.    Here….because
iii.    Therefore a mandatory permanent injunction is appropriate.

VI.    JUDGEMENT FOR A MANDATORY PERMANENT INJUCTION IS APPROPRIATE BECAUSE OF A BALANCING OF HARDSHIPSS.

In Balancing of Hardships the court has the discretion to weigh the problems caused and deny injunction to remove a building even in the absence of an affirmative defense.

a.    In Columbia (Piedmont Valley Homes Association v. Walter Columbia Supreme Court (2002)).
i.    There…. Because
ii.    Here….because
iii.    Therefore a mandatory permanent injunction is appropriate.

b.    In Columbia (Horton v. Mitchell Walter Columbia Supreme Court (2004)).
i.    There…. Because
ii.    Here….because
iii.    Therefore a mandatory permanent injunction is appropriate.
CONCLUSION
Plaintiffs Greg and Mary Vasquez are entitled to a mandatory permanent injunction requiring Defendants to dismantle and demolish a 50-foot bell tower housing a cellular telephone transmission facility constructed on the property of Defendants.


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