Swing set pits family against community

A couple says the Gulf Harbors Woodlands homeowners' association

okayed the set's placement, but board officials disagree.

Article Courtesy of The St. Petersburg Times

NEW PORT RICHEY - Lynn and Thomas Johnson were living in their $600,000 dream house in Gulf Harbors Woodlands when they decided in 2002 to give their two young children an outdoor play area to match.

So up went an elaborate $5,500 swing set, a surprise present just in time for Christmas and little Kayla and Alden Johnson's December birthdays.

The new toy was a hit.

"That (birthday) party was the best party they ever had," said Lynn Johnson, 38.

The swing set's luster, however, has since faded for mommy and daddy. That's because it has been the fixture of a lawsuit filed against the Johnsons by the homeowners' association that runs the 368-lot community.

Gulf Harbors Woodlands Association sued the couple in March 2003, arguing the structure violated the community's deed restrictions and should be modified or taken down. On Tuesday, after two years of legal maneuvers, a countersuit and a failed mediation, the case went to a non-jury trial.

Circuit Judge W. Lowell Bray heard the facts of the case but likely will not rule for some time. As expected, the judge heard two different versions of the situation.

The association says any improvements to a homeowner's property requires the board's prior written approval, which the Johnsons did not get.

Also problematic, the suit said, was the enclosed, roofed structure attached to the swing set. The board deemed it a playhouse, one of the "outbuildings" specifically prohibited by the community's deed restrictions.

"We're simply seeking to enforce the deed restrictions," said Russell Marlowe, the board's attorney.

The Johnsons take issue with both claims. Thomas Johnson, 46, said he called a board member before erecting the swing set and was given a verbal go-ahead. The deed restrictions, he said he was told, allowed swing sets.

Later, the Johnsons were asked to file an application with the board as a courtesy, they said. But on Dec. 16, 2002, the board denied permission for the structure. The swing set could stay, the association said, but the playhouse had to go.

The Johnsons appealed and again were denied. The board told them the playhouse could remain if they removed the roof and side walls, but the couple refused the alteration after being told by the manufacturer that such changes would make the play set unsafe.

The association sued. Feeling their young family was being discriminated against by the community's older residents, the Johnsons filed a claim with the Florida Commission of Human Relations and countersued the association.

However, the commission dismissed the discrimination complaint in October; the couple dropped their suit earlier this year on their attorney's advice.

The couple maintain that the swing set is just that, and should not be considered as including a playhouse at all.

"Times change and you need to update the deed restrictions according to the time," Lynn Johnson said, noting 70 Gulf Harbors Woodlands' residents signed a petition about a month ago seeking adjustments to would allow the Johnsons' structure to remain.

"There's nowhere in this whole community for the children to play," Thomas Johnson said. "My kids deserve a place to play."