122017-star-news-treehouse

This treehouse near Castle Rock Lake must be removed after an appeals court ruling.

JAKE EKDAHL/Star-Times

MADISON – A treehouse is a structure and violates deed restrictions at a toney subdivision near Castle Rock Lake, a state appeals court ruled Thursday.

According to court documents:

James Murphy did not get written permission for the 10-by-8-by-7-foot treehouse he built for his four-year-old twins in 2015. One of his neighbors along, Timber Ridge Ln. is Daniel Berkos, an attorney and co-developer of the Timbers of Shipwreck Bay subdivision. Berkos drove the past backyard treehouse daily while it was built then painted red and white.

Berkos, of C&B Investments, sent Murphy a letter demanding he remove the treehouse as it did not comply with deed restrictions for exterior design or structures.

When Murphy did not comply, Berkos filed suit in Juneau County Circuit Court seeking immediate removal of the treehouse.

Murphy is married to attorney Rebecca Richards-Bria, who asked Berkos why anyone would waste time arguing over a child’s playhouse.

The dispute could not be resolved and it went to trial. The two-day trial resulted in Circuit Judge Bernard Bult earlier this year finding the restrictions did not define structure and threw out the suit.

Berkos appealed to the District IV Court of Appeals contending that Murphy received the subdivision’s deed restrictions which require C&B Investments approval of all structures prior to construction.

Berkos argued that while structure is not defined in the restrictions it is in state law and local ordinances. Also, structure has a common meaning referring to anything built or constructed.

Richards-Bria argued on appeal that not even town of Germantown and county officials who testified at trial could state that a treehouse is a structure as defined by local laws.

Citing case law, Richards-Bria also argued that any restriction that impinges of the use of property must be expressed “in clear, unambiguous and peremptory terms,” and C&B’s documents were not.

The District IV Court was unpersuaded.

“There is no requirement that a word with an ordinary common meaning be further defined in order to be enforced. While an ordinance could certainly limit or refine the definition of a structure to suit a particular statutory purpose, that would not change the ordinary meaning of the word,” according to the six-page unsigned opinion.

In finding C&B’s restrictions applied to things that affect the outside appearance of the subdivision’s lots, the court held that Murphy needed prior written approval to build treehouse on his lot.

The appeal only addressed the definition of structure and the District IV Court returned the case to Bult to address issues Murphy raised on defense including:

  • C&B had never sought approval for the construction Murphy’s house;
  • C&B had verbally advised Murphy that he did not have to follow restrictions:
  • C&B had allegedly violated the restrictions.

Richards-Bria did not respond to a call seeking comment on the case.

Berkos said he had not read the opinion by Thursday noon but was pleased but not shocked to learn he had prevailed.

“There are deed restrictions that apply to the subdivision and they ignored them. We spent too much time in litigation trying to work this out but we did it to protect the rest of the property owners,” he said.

Homes in the Shipwreck Bay subdivision are valued from $500,000 to $1 million and restrictions protect that investment down to the permitted types of construction materials and color of paint, Berkos said.

Painting the treehouse red and white was a “kick in the teeth,” Berkos said since the restrictions limit the color of outdoor structures to earth tones.

“He was not willing to cooperate which is why we ended up in a lawsuit,” he said.