Judge Gets Playset Dispute

Article Courtesy of TBO.com- Pasco

NEW PORT RICHEY - Tom and Lynn Johnson have something in their yard.

They say it's a swing set and perfectly acceptable under the community's deed restrictions.

Officials with the Gulf Harbors Woodlands Homeowners' Association say it's an outbuilding and therefore violates the restrictions and should be taken down. Gulf Harbors is a coastal community off Marine Parkway in west Pasco County.

A lawsuit filed over the issue in 2003 reached a nonjury trial Tuesday in Pasco County Circuit Court. Judge W. Lowell Bray listened to more than four hours of arguments but did not make a ruling. It was unclear Tuesday when Bray might make a decision.

The ordeal, which has cost the homeowners association about $9,000 in legal fees, began in December 2002 when the Johnsons and their children received a $5,000 playset as a gift. The set includes a small elevated playhouse and swings.

Russell Marlowe, a lawyer for the homeowners' association, argued Tuesday that the playhouse has a roof and walls and therefore qualifies as an outbuilding. Paul Rebein, who represents the Johnsons, maintained that the playhouse is not an outbuilding because it is movable and not connected to the ground.

Outside court, association President Bill Downs said the community's deed restrictions are clear. He pointed to a clause in the restrictions that names as outbuildings utility and storage sheds, dog houses, animal pens, playhouses, tents, gazebos or ``other substantial types of enclosed or roofed structures.''

``When anyone buys a home in the community, they sign a document that says they will comply with the rules,'' Downs said. ``The deed restrictions are part of your deed.''

Association board members testified that they offered the Johnsons a variance if they would agree to take the roof and the walls off the playhouse. Rebein argued that the proposal was unreasonable because removing parts of the set would make it unsafe for children.

The homeowners' association filed suit against the Johnsons following the unsuccessful discussions. The association wants the Johnsons to remove the set and to pay the association's legal fees.

The Johnsons contend that the association board enforces the deed restrictions arbitrarily. During the hearing, Rebein pointed out that the board has not taken action on gazebos and sheds in other yards in the neighborhood.

Rebein argued that the deed restrictions being used by the association expired in 1995. If they haven't expired and are considered perpetual, which Rebein said goes against state law, residents do not have to follow the restrictions.