Brookwater association files suit
April 30, 2009 · Updated 11:22 AM
By Dennis Box-The Courier-Herald
The Brookwater Homeowners Association decided to file a lawsuit concerning the Lowe's development, but not all the homeowners are behind the action.
The association filed the lawsuit Friday in Pierce County Superior Court asking the court to halt a commercial driveway that would cross a residential lot and a monument sign, which the suit contends breaches the association's covenants, conditions and restrictions.
However, Tom Kennedy, a Brookwat-er homeowner and former board president, said he thought the action by the association was a mistake and “I do not support this lawsuit.”
Cecil Sidwell, the current president of the association, could not be reached for comment.
Lowe's is planning to build a 139,000 square foot store and a 32,000 square foot garden center. The plan also calls for an additional 75,000 square feet for other retail stores. The development will be located on about 18 acres across from Albertsons at the corner of South Prairie Road and state Route 410 East.
The suit has been filed against Bonney Lake Marketplace Developers, JLO Washington Enterprises Inc. and James and Wendy Fry, who own the property where the driveway will be constructed.
The suit asks the court to stop the violation of the CCRs and asked for “recovery of fines accrued, attorney's fees and costs allowed” by the CCRs of Brookwater.
The city's hearing examiner denied the association's appeal in July.
In the ruling, Deputy Hearing Examiner Keith D. McGoffin wrote, “The city of Bonney Lake has allowed residential lots to be used as commercial driveways and other jurisdictions have so allowed such uses in residential areas. The legal issues of perimeters and enforcement of CCRs of the Brookwater Plat are not within the jurisdiction of the Hearing Examiner, but the courts. (It should be noted here that the Hearing Examiner is aware of residential lots with similar CCRs being used for schools, public buildings and commercial uses.)”
According to Kennedy, the board made the decision to file the suit without a vote of the homeowners, which is legal according to the associations' rules. He said board members provide informal informational meetings at area parks prior to the filing of the suit, which provided a “good exchange of information.”
But Kennedy believes, “most of the homeowners do not want to take on Lowe's and we don't want to be drug into a lawsuit.”
Kennedy said the association's bylaws state any homeowner can begin a petition and if 10 percent sign it, the board is forced to schedule a vote by the homeowners on the action. He said he might start the petition if the suit goes forward.