COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68030 JAMES H. KORFEL, ET AL. : : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : PARTRIDGE HOUSING CORPORATION : : OPINION : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 31, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-227634. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For James H. Korfel, et al: Fredric E. Kramer, Esq. McNeal, Schick, Archibald & Biro 700 Skylight Office Tower 1660 W. Second Street Cleveland, OH 44113 For Green Meadows Homeowners: Richard D. Messerman, Esq. 1940 Huntington Building 925 Euclid Avenue Cleveland, OH 44115 For Partridge Housing Corp., Harlan Stone Hertz, Esq. Inc.: 3300 Terminal Tower 50 Terminal Tower Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Green Meadows Homeowners' Association, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas which determined that the use of a basketball court located behind the home of James and Marcia Korfel, plaintiffs-appellees, constituted a nuisance. The trial court ordered that any use of the basketball court which "effects the quiet enjoyment due" plaintiffs-appellees be discontinued. The trial court refused to order the removal of plaintiffs-appellees' storage shed located near the rear portion of plaintiffs-appellees' property line. Defendant-appellant assigns five errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS In December, 1988 James and Marcia Korfel, plaintiffs- appellees, began to inquire into the possibility of purchasing a sublot located within a development now known as Green Meadows, Inc. Plaintiffs-appellees expressed an interest in purchasing property designated as sublot 41 located within phase I of the Green Meadows development. Plaintiffs-appellees maintain that they chose sublot 41 out of their impression that any home built on the property would be secluded but also have access to a planned "common area" to be located at the end of plaintiffs-appellees' property line. On December 17, 1988 plaintiffs-appellees and Partridge Housing Corporation, Inc., defendant-appellee, the developer of the project, entered into a written purchase agreement with attached -3- addendum for the purchase of sublot 41. On May 10, 1989 plaintiffs-appellees received record title to sublot 41 pursuant to a warranty deed filed with the Cuyahoga County Recorder. That same day, plaintiffs-appellees executed a final acceptance of sublot 41 in Green Meadows subdivision. Plaintiffs-appellees and their three young daughters live in the residence located on sublot 41. In September, 1988 Partridge Housing Corporation, Inc., defendant-appellee, installed a basketball court in the common area next to plaintiffs-appellees' home. The basketball court was constructed in accordance with the recreational facility plan approved by the city of Strongsville and recorded at Strongsville City Hall on or about December 28, 1986. Plaintiffs-appellees did not check the recreational facility plan on file with the city of Strongsville prior to purchasing their property. Plaintiffs-appellees immediately requested that Partridge Housing Corporation, Inc., defendant-appellee, remove the court. Partridge Housing Corporation, Inc. refused to remove the court stating that the court was supposed to be there pursuant to the recreational facility plan approved by the city of Strongsville. Eventually, plaintiffs-appellees brought their complaints regarding the basketball court to the Green Meadows Homeowners' Association, defendant-appellant. Plaintiffs-appellees' complaints included: noise emanating from use of the court; conduct of the users, specifically loud, vulgar language; young boys urinating near the court; unauthorized use of the court; use of the court -4- after dark; and, parties conducted by the Homeowners' Association late into the evening on the basketball court. As a result of these complaints, Partridge Housing Corporation, Inc., defendant-appellee, the developer of the subdivision, allegedly agreed to pay for the cost of the removal and reseeding of the basketball court if the Green Meadows Homeowners' Association so requested. Partridge Housing maintains that it only agreed to pay for the cost of removal of the basketball court, not for the cost of constructing another basketball court in Phase III of the development. On May 31, 1991 Green Meadow Homeowners' Association, defendant- appellant, in response to plaintiffs-appellees' complaints voted on the following options: (1) leave the basketball court in its present location; (2) have another basketball court constructed in Phase III of the development with larger dimensions at no cost to the homeowners within the development; or (3) totally remove the basketball court and have the area reseeded with grass as a replacement. All 36 members of Green Meadow Homeowners' Association voted. The final vote was as follows: nine people voted to leave the basketball court in its present state; 23 people voted for construction of a new basketball court in Phase III of the development at no cost to the homeowners of the development; and two people voted to remove the basketball court and reseed the area with grass. Partridge Housing Corporation, Inc., defendant-appellee, the developer of the project, contends that the basketball court cannot -5- be relocated to Phase III of the development as no site within Phase III provides a suitable location for a basketball court given the nature of the surrounding terrain and the location of the proposed roadways and sanitary sewer. The members of Green Meadow Homeowners' Association, defendant-appellant, do not want the present basketball court removed unless a new basketball court is built at another location. On February 24, 1992 plaintiffs-appellees filed a complaint in Cuyahoga County Court of Common Pleas for money damages and injunctive relief seeking to enjoin use of the subject basketball court. Plaintiffs-appellees alleged that the basketball court behind their home was installed contrary to representations made to them during the purchase of the property. Plaintiffs-appellees alleged further that, as a result of the basketball court, they have been deprived of the quiet enjoyment of their home. On September 3, 1992 Green Meadows Homeowners' Association, defendant-appellant, filed an amended answer, counterclaim against plaintiffs-appellees and cross-claim against Partridge Housing Corporation, Inc. Defendant-appellant's counterclaim alleged that plaintiffs-appellees had violated Article VI, Sections 2 and 5 of the Declaration of Covenants and Restrictions and By-Laws of Green Meadows Homeowners' Association by building and maintaining a storage shed on their property and requested immediate removal of the shed. Defendant-appellant's cross-claim sought punitive damages and indemnification from Partridge Housing Corporation, Inc., defendant-appellee, for alleged misrepresentations made -6- regarding the nature and extent of the recreational facility and common area improvements. The case was tried to the court on May 26th and 27th, 1994. Prior to the hearing, the trial court bifurcated the case. Trial was to proceed only on the injunctive issues, specifically issues concerning removal of the basketball court, the basketball court's relocation to a different area located within the Green Meadows development and the removal of plaintiffs-appellees' shed. At this point, plaintiffs-appellees voluntarily dismissed count one of their amended complaint against Green Meadows Homeowners' Association, defendant-appellant, maintaining that it was never their intention to seek monetary damages from Green Meadows Homeowners' Association. At the close of trial, the trial court requested that all parties submit closing briefs instead of closing arguments. Pursuant to a memorandum of opinion dated September 13, 1994 the trial court ruled that the use of the basketball court behind plaintiffs-appellees' home constituted a nuisance and ordered further that all use of the basketball court be discontinued. The court did not order removal of plaintiffs-appellees' shed since it was built prior to the formation of Green Meadows Homeowners' Association. On October 14, 1994 Green Meadows Homeowners' Association filed a timely notice of appeal from the judgment of the trial court. -7- II. FIRST AND SECOND ASSIGNMENTS OF ERROR Green Meadows Homeowners' Association's, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED IN FINDING THAT THE USE OF THE BASKETBALL COURT INSTALLED BY THE DEVELOPER OF THE GREEN MEADOWS DEVELOPMENT CONSTITUTED A NUISANCE. Green Meadows Homeowners' Association's, defendant- appellant's, second assignment of error states: THE TRIAL COURT ERRED IN FINDING THAT THE USE OF THE BASKETBALL COURT INSTALLED BY THE DEVELOPER OF THE GREEN MEADOWS DEVELOPMENT CONSTITUTED A NUISANCE BECAUSE IT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second assignments of error concurrently. A. THE ISSUE RAISED: NUISANCE Green Meadows Homeowners' Association, defendant-appellant, argues through its first and second assignments of error that the trial court erred in finding that the basketball court located behind plaintiffs-appellees' home constituted a nuisance. Specifically, defendants-appellants maintain that the trial court's decision was not supported by the manifest weight of the evidence in that plaintiffs-appellees failed to demonstrate that persons of ordinary tastes and sensibilities would be offended by the use of the basketball court. Defendant-appellant's first and second assignments of error are not well taken. -8- B. STANDARD OF REVIEW FOR NUISANCE Black's Law Dictionary defines "nuisance" as: That activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage. That which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. An offensive, annoying, unpleasant, or obnoxious thing or practice; a cause or source of annoyance, especially a continuing or repeated invasion or disturbance of another's right, or anything that works a hurt, inconvenience or damage. Black's Law Dictionary (5 Ed. Abr. 1983) 552-553. In Brown v. County Commissioners of Scioto County (1993), 87 Ohio App.3d 704, 712, the Fourth District Court of Appeals held that the word "nuisance" describes two separate fields of tort liability that, through the accident of historical development, are called by the same name; "public nuisance" covers the invasion of public rights which one common to all members of the public and was historically criminal in nature, with recovery limited to those who could show particular harm of a kind different from that suffered by the general public; "private nuisance" covered the invasion of the private interest in the use and enjoyment of land and the action was required to be founded upon an interest in land. Id. at paragraph two of the syllabus. Once it has been determined whether the alleged harm constitutes a public or private nuisance, a further determination must be made as to whether the alleged harm constitutes an -9- absolute nuisance or a qualified nuisance. Generally, an absolute nuisance or nuisance per se consists of an intentional act resulting in harm or an unintentional act resulting in accidental harm for which, due to the hazards involved, absolute liability attaches notwithstanding the absence of fault. Mezger v. Penn., O.P.D. Rr. Co. (1946), 146 Ohio St. 426. A qualified nuisance consists of a lawful act that is so negligently or carelessly done as to create a potential and unreasonable risk of harm which eventually results in injury to another. Brown v. County Commissioners of Scioto County, supra, at 713. In this case, the alleged misuse of the basketball court can be categorized as a private, qualified nuisance since the use of the court is not inherently violative of plaintiffs-appellees' rights and plaintiffs-appellees are the only homeowners within Green Meadows subdivision who alleged to have been injured by use of the basketball court. Ohio courts have stated that the test as to the amount of annoyance necessary to constitute a nuisance is measured by the degree of discomfort that a person of ordinary sensibilities would experience. Adams v. Snouffer (1949), 88 Ohio App. 79; Kepler v. Indus. Disposal Co. (1948), 84 Ohio App. 80. In essence, a trial court must look to the particular facts presented and determine what persons of ordinary tastes and sensibilities would regard as an inconvenience or interference materially affecting their physical comfort to a degree which -10- would constitute a nuisance. O'Neil v. Atwell (1991), 73 Ohio App.3d 631, 636. C. STANDARD OF REVIEW FOR MANIFEST WEIGHT It is a well-established legal principle that, in reviewing an appeal based upon the weight of the evidence, "judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280. An appellate court, in reviewing a matter on a weight of the evidence issue, should be guided by a presumption that the findings of the trier of fact are indeed correct. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. If the evidence is susceptible to more than one construction, an appellate court should give the evidence the interpretation which is most favorable to sustaining the trial court's verdict and judgment. Seasons Coal Co., supra; Landen Farm Community Serv. v. Schube (1992), 78 Ohio App.3d 231, 234 (emphasis added). D. THE TRIAL COURT DID NOT ERR IN FINDING THE EXISTENCE OF A PRIVATE, QUALIFIED NUISANCE. In the case sub judice, plaintiffs-appellees alleged that the basketball court located behind their home interfered with their quiet enjoyment of their property. Specifically, plaintiffs- appellees identified unauthorized use of the court by non- -11- residents of the subdivision: consistent use of loud, vulgar and obscene language by the players; urinating in open areas by the players; trespassing; necking and late night use of the court as uses of the basketball court that caused plaintiffs-appellees harm. A review of the record demonstrates that clear and convincing evidence existed for the trial court to find that the use of the basketball court as described above would cause a reasonable person inconvenience or interference materially affecting their physical comfort to a degree which would constitute a private, qualified nuisance. This is especially true in light of the fact that Partridge Housing Corporation, Inc., defendant-appellee, the developer of the subdivision who installed the basketball court in question, agrees with the trial court's finding as to the existence of a private, qualified nuisance. The fact that, as defendant-appellant maintains, plaintiffs-appellees are the only residents of the subdivision to complain about the basketball court is immaterial given the individual nature of a private, qualified nuisance. In addition, the fact that plaintiffs-appellees may have had constructive notice that a basketball court would be built along their rear property line does not preclude a finding of the existence of a private, qualified nuisance by the trial court. The memorandum of opinion issued by the trial court does not find that the basketball court itself constitutes a nuisance but rather that the use of the basketball court under the present -12- circumstances constitutes a private, qualified nuisance. Therefore, even though plaintiffs-appellees may have been able to discover that a basketball court was to be built on the site, plaintiffs-appellees could not have known that the use of the court would interfere with the quiet enjoyment of their home until such time as the actual harm took place. Under such circumstances, it cannot now be said that the trial court erred in finding that the use of the basketball court constituted a private, qualified nuisance. Defendant-appellant's first and second assignments of error are not well taken. III. THIRD ASSIGNMENT OF ERROR Green Meadows Homeowners' Association's, defendant- appellant's, third assignment of error states: THE TRIAL COURT ERRED WHEN IT REFUSED TO RULE ON WHETHER THE BASKETBALL COURT WHICH WAS INSTALLED BY THE DEVELOPER SHOULD BE MOVED TO A DIFFERENT AREA OF THE GREEN MEADOWS DEVELOPMENT AT THE COST OF THE DEVELOPER. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN REFUSING TO RULE ON RELOCATING THE BASKETBALL COURT Defendant-appellant argues through their third assignment of error that the trial court erred in refusing to order that Partridge Housing Corporation, Inc., defendant-appellee, the developer, relocate the basketball court to another location within the development. Specifically, defendant-appellant maintains that Partridge Housing Corporation, Inc., defendant- appellee, is responsible for the original placement of the -13- basketball court and, ultimately, it is the responsibility of the developer to correct the problem by moving the basketball court. Defendant-appellant's third assignment of error is not well taken. -14- B. STANDARD OF REVIEW The decision as to whether an injunction should be issued is an extraordinary equitable remedy particularly dependent on the specific facts and circumstances of a given case. Cullen v. Milligan (1992), 79 Ohio App.3d 138. For this reason, the decision as to whether to grant or deny an injunction rests within the sound discretion of the trial court. Perkins v. Quaker City (1956), 165 Ohio St. 120, syllabus. The trial court also retains broad discretion when framing the terms of an injunctive order. Superior Sav. Assn. v. Cleveland Council of Unemployed Workers (1986), 27 Ohio App.3d 344. The trial court must give due consideration to the rights of all parties in interest, not just the party seeking the injunction. As long as the order is within the range of remedies provided by law, an injunction will not be reversed on appeal absent an abuse of discretion. Garono v. State (1988), 37 Ohio St.3d 171, 173. C. STANDARD OF REVIEW FOR ABUSE OF DISCRETION The trial court's order regarding injunctive relief will not be disturbed on appeal unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error or law or judgment; it implies that the court's attitude is -15- unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. D. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION. In the case sub judice, the trial court declined to order the basketball court relocated stating: The Court concludes that there is sufficient evidence to hold that a nuisance has been created ***. This is the extent to which this court will go. Whether a similar recreational facility is to be placed elsewhere in the development will have to be the decision of the members of the allotment. It would be overreaching for an order specifying that a facility be placed in a particular place since it might result in the creation of a nuisance to others not parties in this case. Further, the City's own requirements as to the placement of a recreational area should be decided by them and the residents. A review of the trial court's memorandum of opinion and the entire record from the trial court demonstrates that the trial court did not abuse its discretion in declining to order that the basketball court be relocated. The trial court's reasoning is sound. Not only could a relocated basketball court possibly became a nuisance to others who are not represented in this action but the trial court was not fully aware of the city of Strongsville's specific requirements for construction of such a facility. Accordingly, the trial court properly refused to order -16- relocation of the basketball court and no abuse of discretion occurred. In addition, defendant-appellant's contention that the trial court refused to rule on whether the basketball court should be relocated is incorrect. The trial court, while it did not specifically state that defendant's appellant's request was denied, impliedly overruled defendant-appellant's request by declining to relocate the basketball court and stating detailed reasons for its refusal. Defendant-appellant's third assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR Green Meadows Homeowners' Association's, defendant- appellant's, fourth assignment of error states: THE TRIAL COURT ERRED IN CONCLUDING THAT THE APPELLEES WERE ENTITLED TO INJUNCTIVE RELIEF WHEN IT DETERMINED THAT THE BASKETBALL COURT INSTALLED BY THE DEVELOPER DID CREATE A NUISANCE. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN CONCLUDING THAT PLAINTIFFS-APPELLEES WERE ENTITLED TO INJUNCTIVE RELIEF Defendant-appellant argues that the trial court erred in ordering that plaintiffs-appellees were entitled to injunctive relief. Specifically, defendant-appellant maintains that even if the basketball court in question constitutes a private, qualified nuisance, the nuisance could be remedied by other, less intrusive means, than a total ban on its use. -17- Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW As previously stated, the granting of declaratory relief and issuance of an injunction are matters of judicial discretion and, absent an abuse of discretion, an appellate court is not permitted to question the trial court's decision to grant or deny such relief. Landen Farm Community Services Association, Inc. v. Schube, supra; Perkins v. Quaker City, supra. Similarly, this court has stated in M.P.C. Plating Inc. v. Local 507, International Brotherhood of Teamsters etc., (Oct. 2, 1986), Cuyahoga App. No. 50973, unreported, that: An injunction is an extraordinary remedy equitable in nature and its issuance may not be demanded as a matter of strict right. An application for an injunction is addressed to the sound discretion of the court. And, unless there is a plain abuse of discretion on the part of the trial courts in granting or refusing injunctions, reviewing courts will not disturb such judgments. *** Accordingly, unless the trial court's decision to grant injunctive relief is, in some way, unreasonable, arbitrary or unconscionable, it will not be reversed on appeal. Blakemore v. Blakemore, supra. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION. In the case sub judice, there is no evidence to indicate that the trial court's decision that plaintiffs-appellees were entitled to injunctive relief was in any way unreasonable, -18- arbitrary or unconscionable. Clear and convincing evidence was presented that the use of the basketball court, as presently situated, interfered with plaintiffs-appellees' right to the quiet enjoyment of their residence. Accordingly, the trial court did not abuse its discretion in ordering that such use of the basketball court be discontinued. The fact that there may have been other, less intrusive ways of abating the nuisance, does not invalidate the trial court's decision given the fact that none of the proposed solutions had ever been attempted by defendant- appellant throughout the time period during which this case was pending. Defendant-appellant's fourth assignment of error is not well taken. V. FIFTH ASSIGNMENT OF ERROR Green Meadows Homeowners' Association's, defendant- appellant's, fifth and final assignment of error states: THE TRIAL COURT ERRED WHEN IT REFUSED TO ORDER THE REMOVAL OF THE SHED WHICH WAS ERECTED BY THE APPELLEES IN VIOLATION OF THE BY-LAWS, COVENANTS AND RESTRICTIONS ASSOCIATED WITH ALL PROPERTY IN THE DEVELOPMENT. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT SHOULD HAVE ORDERED REMOVAL OF THE SHED Defendant-appellant argues, through its fifth and final assignment of error, that the trial court erred by refusing to order the removal of plaintiffs-appellees' storage shed. Defendant-appellant maintains that the storage shed violates the Declaration of Covenants and Restrictions and By-Laws contained -19- in Green Meadows Homeowners' Association's charter recorded on September 3, 1987, Vol. 87-5908, Page 20 of the Cuyahoga County Records. Defendant-appellant's fifth assignment of error is not well taken. B. DECLARATION OF COVENANTS AND RESTRICTIONS AND BY-LAWS Defendant-appellant's fifth assignment of error is premised upon Article VI, Sections 2 and 5 of the Declaration of Covenants and Restrictions and By-Laws of Green Meadows Homeowners' Association which state: SECTION 2. Architectural Control. No building, fence, wall or other structure shall be commenced, erected or maintained upon the Properties except by the Developer, or its authorized builder, building company, or other person, firm or entity, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, heights, materials and location of the same have been submitted to and approved in writing as to harmony or external design and relocation in relation to surrounding structures and topography by the Board of Trustees of the Association, or by an architectural committee composed of three or more representatives appointed by the Board. In the event said Board or its designated committee fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the addition, alteration or change has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully complied with. -20- SECTION 5. Temporary Structures. No temporary building or structures (including, without limitation, tents, shacks, and storage sheds) shall be erected or placed upon any Lot or Unit Cluster Parcel without the prior approval of the Board of Trustees of the Association. No such temporary building or structure nor any trailer, basement, tent, shack, garage, barn or other building shall be used on any Lot or Unit Cluster Parcel at any time as a residence either temporarily or permanently. Nothing herein contained shall prohibit the erection and maintenance of temporary structures as approved by the Developer incident to the development and construction of the Properties. C. STANDARD OF REVIEW FOR RESTRICTIVE COVENANTS In Schurenburg v. Butler County Board of Education (1992), 78 Ohio App.3d 773, 777, the Twelfth District Court of Appeals stated: Although generally viewed with disfavor, restrictive covenants will be enforced when they are part of a general plan or scheme for land use and control, and the purchaser of the land has notice of that plan or scheme. Bailey Dev. Corp. v. MacKinnon-Parker, Inc. (1977), 60 Ohio App.2d 307, 14 O.O.3d 277, 397 N.E.2d 405. In order for the covenant to be enforced as an equitable servitude against a subsequent purchaser, it must be shown that the purchaser had notice of the covenant and its application to the property he has purchased. The requisite notice can either be "actual notice" or "constructive notice" established by recordation of a prior instrument containing the restriction. Appleby v. N. Constr., Inc. (Sept. 23, 1985), Butler App. No. CA85-05-051, unreported, 1985 WL 7736; 5 Powell on Property (1949), Section 670[2]. D. THE TRIAL COURT DID NOT ERR -21- In the present case, the trial court allowed the plaintiffs- appellees' shed to remain since, "[p]laintiff obtained a permit from the City of Strongsville" and "during its construction plaintiff was not told that it violated any policies or by-laws of the Association." A review of the relevant sections of the Declaration reveals that neither Section 2 nor Section 5 operates as an absolute prohibition to the construction of the storage shed under the particular facts of the instant case. Section 2 mandates that, prior to construction of a building, fence, wall or other structure, approval must be obtained from either the architectural committee or the Board of Trustees of the Association. Section 2 provides further that if the architectural committee or the Board of Trustees "fails to approve or disapprove such design and location within 30 days *** or in any event, if no suit to enjoin the addition, alteration or change has not been commenced prior to the completion thereof, approval will not be required. ***" At the time plaintiffs-appellees' shed was built, the architectural committee had not yet been established. In addition, the Board of Trustees was aware of the construction of the shed and did not attempt to prohibit final construction or force plaintiffs-appellees to remove the shed since it was allegedly in violation of the Covenants and Restrictions and By- Laws. Accordingly, pursuant to Section 2, once construction of the shed had been completed, approval for the shed was no longer required. -22- Section 5 of the Covenants and Restrictions and By-Laws does not prohibit the plaintiffs-appellees' shed since it pertains to temporary structures only and the shed in question is not a temporary structure. For the foregoing reasons, defendant-appellant's fifth assignment of error is not well taken. Judgment of the trial court is affirmed. -23- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J. and *PRYATEL, J., CONCUR. DAVID T. MATIA JUDGE * Judge August Pryatel, Retired Judge of the Eighth Appellate District, sitting by assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .