Opinion
No. 1 CA-CV 11-0676
07-10-2012
FOX CREEK COMMUNITY ASSOCIATION, an Arizona non-profit corporation, Plaintiff/Appellee, v. DON CARSON and DIANN CARSON, husband and wife, Defendants/Appellants.
Kelley Moss & Holden PLLC By Michele Holden Jamie Kelley Steven C. Moss Attorneys for Plaintiff/Appellee Law Offices of Paul Lenkowsky By Paul Lenkowsky Virginia L. Crews Attorneys for Defendants/Appellants
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure
Appeal from the Superior Court in Mohave County
Cause No. S8015CV20082204
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
Kelley Moss & Holden PLLC
By Michele Holden
Jamie Kelley
Steven C. Moss
Attorneys for Plaintiff/Appellee
Bullhead City Law Offices of Paul Lenkowsky
By Paul Lenkowsky
Virginia L. Crews
Attorneys for Defendants/Appellants
Bullhead City JOHNSEN, Judge ¶1 Don and Diann Carson appeal the judgment granting an injunction in favor of the Fox Creek Community Association ("Association") and awarding it damages, attorney's fees and costs. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2008, the Carsons installed a solar energy device beyond their fenced backyard in Fox Creek Estates. The Declaration of Covenants, Conditions, Restrictions and Easements of Fox Creek Estates ("CCRs") contains certain restrictions applying to solar devices. It states:
Subject to prior approval of the plans therefor by the Architectural Committee [of the Association], solar collecting panels and devices may be placed, constructed or maintained upon any Lot within the Property so long as such solar collecting panels and devices are placed, constructed and maintained in such locations and with such means of screening or concealment as the Architectural Committee may reasonably deem appropriate to limit, to the extent possible, the visual impact of such solar collecting panels and devices when viewed from any street or from any other property (whether within or outside the Property).¶3 The Association's Architectural Design Guidelines also address solar devices:
No machinery fixtures or equipment of any type, including . . . solar panels or equipment . . . shall be visible from the street or adjacent property owners whether on the ground, building or roof. The screening or concealment of said machinery and equipment shall be integrated¶4 Notwithstanding the requirement that solar energy devices may be installed only with prior approval of the Architectural Committee, the Carsons did not submit their plans to the Committee before they began installing their solar device. While construction was underway, the Association issued a non-compliance order to the Carsons, stating they were in violation of the CCRs and that they must apply to the Committee for permission to proceed. The Carsons then submitted an application for approval, but the Committee denied it. The Committee stated the Carsons must install the solar device "in such a manner and location that it blends in with the wall on the premises or some other screening devices," and invited the Carsons to resubmit their request with plans for such screening. ¶5 The Carsons submitted a second application to the Committee, proposing to screen the device with Rosewood Sisso trees. The Committee denied the second application, but agreed the solar device could stay in its present location if the Carsons installed a block wall around it. The Carsons did not construct the wall and did not move their device. ¶6 The Association filed a complaint against the Carsons, alleging they installed their solar device in violation of the CCRs. At trial, the evidence was that the Association allowed homeowners to install solar devices in their fenced backyards and it would approve the Carsons' device if they moved it to their fenced backyard. On the other hand, if the Carsons wanted to keep their solar device at its current location, the Association would approve it only if they surrounded it with a six-foot block wall. ¶7 The superior court granted a permanent injunction requiring the Carsons either to move the solar device to their backyard or screen it with a block wall. The court also ordered the Carsons to pay the Association's attorney's fees and costs, along with a fine of $100 per month retroactive to March 2008. The Carsons timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (West 2012).
architecturally with the design of the building or structure, shall not have the appearance of a separate piece or pieces of machinery, fixtures or equipment, and shall be constructed and positioned in such a manner so it is level and plumb with horizontal and vertical building components and shall be structurally stable in accordance with sound engineering principles.
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
A. The Restrictions Imposed by the Association Do Not Violate Arizona Law.
¶8 The Carsons argue the superior court erred by issuing the injunction because the Association's restrictions violate Arizona law. We review the superior court's injunction for an abuse of discretion, County of Cochise v. Faria, 221 Ariz. 619, 621, ¶ 6, 212 P.3d 957, 959 (App. 2009), and defer to its findings of fact that are supported by substantial evidence, Valley Med. Specialists v. Farber, 194 Ariz. 363, 367, ¶ 11, 982 P.2d 1277, 1281 (1999). ¶9 Two Arizona statutes limit a homeowners association's power to regulate solar energy devices. Since 1980, A.R.S. § 33-439 has prohibited associations from "effectively" banning solar devices: "Any covenant, restriction or condition contained in any deed, contract, security agreement or other instrument affecting the transfer or sale of, or any interest in, real property which effectively prohibits the installation or use of a solar energy device as defined in § 44-1761 is void and unenforceable." A.R.S. § 33-439(A) (West 2012). The other statute, A.R.S. § 33-1816, was enacted in 2007. It provides:
A. Notwithstanding any provision in the community documents, an association shall not prohibit the installation or use of a solar energy device as defined in § 44-1761.A.R.S. § 33-1816(A)-(B) (West 2012). ¶10 Both parties cite Garden Lakes Community Association v. Madigan, 204 Ariz. 238, 62 P.3d 983 (App. 2003), a case in which we addressed a homeowner's contention that the association breached § 33-439 by restricting their installation of solar panels to heat a swimming pool. The homeowners association in that case required the owner either to install the panels on a patio roof or elaborately screen them. Id. at 242, ¶ 21, 62 P.3d at 987. The owner did not have a patio roof, and the city building code barred a patio roof large enough to hold the panels. Id. at 242-43, ¶ 22, 62 P.3d at 987-88. Also, the association's suggested screening mechanism was a hypothetical construction, and the expert who described it admitted he had never seen anything like it on a residential roof. Id. at 243, ¶¶ 23-24, 62 P.3d at 988. ¶11 Noting that under § 33-439, the homeowner has the burden to show that a deed restriction effectively prohibits a solar device, we set out ten non-exclusive factors relevant to such a determination:
B. An association may adopt reasonable rules regarding the placement of a solar energy device if those rules do not prevent the installation, impair the functioning of the device or restrict its use or adversely affect the cost or efficiency of the device.
[1] the content and language of the restrictions or guidelines; [2] the conduct of the homeowners association in interpreting and applying the restrictions; [3] whether the architectural requirements are too restrictive to allow SEDs as a practical matter; [4] whether feasible alternatives utilizing solar energy are available; [5] whether any alternative design will be comparable in cost and performance; [6] the feasibility of making the required modifications; [7] the extent to which the property at issue is amenable to the required changes; [8] whether decisions previously made by the homeowner or a prior owner are responsible for limiting or precluding the installation of SEDs rather than the restrictions themselves; [9] the location, type of housing, and value of the homes in the community; and [10] whether the restrictions impose too great a cost in relation to what typical homeowners in the community are willing to spend.Id. at 242, ¶ 19, 62 P.3d at 987. Based on the evidence, we held the association's restrictions could not be sustained because they effectively prohibited the homeowner's installation and use of the solar panels. Id. at 243, ¶ 28, 62 P.3d at 988. We cautioned, however, that "Section 33-439(A) does not eliminate the power of a homeowners association to impose aesthetic and architectural restrictions on the installation and use of [solar devices]." Id. at 244, ¶ 30, 62 P.3d at 989. ¶12 Applying the relevant Green Lakes factors to the evidence presented here, we conclude the Association's restrictions did not prohibit the installation or use of the Carsons' solar device.
Although the Carsons briefly mention A.R.S. § 33-1816, they do not contend that under the circumstances presented, that statute imposes any limits on the Association's power beyond those imposed by A.R.S. § 33-419 and addressed in Garden Lakes.
1. Content and language of restrictions or guidelines, and conduct of homeowners association in interpreting and applying them. ¶13 The CCRs and the related guidelines specifically acknowledge that the Association may not bar installation of solar devices. Nevertheless, the CCRs establish that homeowners must receive approval of the Architectural Committee before installing solar panels, and both the CCRs and guidelines explicitly mention the requirement that such devices must be shielded from view. ¶14 Moreover, the evidence shows that the CCRs and guidelines apply to every property owner in the Fox Creek Community, and the Association actively enforces the provisions pertaining to solar devices. The Committee's interpretation of the restrictions allows solar devices, but requires them to be screened, by fencing, landscaping or other materials.
2. Whether the architectural requirements are too restrictive to allow solar devices as a practical matter. ¶15 Other community homeowners have installed solar energy devices with the approval of the Association and in compliance with the architectural guidelines. The Carsons themselves have installed solar panels on the roof of their home to heat their swimming pool. The Committee also approved another homeowner's installation of a solar device like the one at issue here, provided it was installed in the owner's fenced rear yard.
3. Whether alternatives utilizing solar energy are available that will be comparable in cost and performance, and the feasibility of making required modifications. ¶16 In reviewing the Carsons' post-installation application, the Committee required the Carsons either to move the device to their fenced backyard or build a block wall to screen it. The Association's expert evaluated conditions in the Carsons' backyard and testified that moving the device to the backyard would reduce its efficiency and performance only minimally. He testified it would be less costly and more efficient to install the device in the backyard than to fence the device in its existing location. ¶17 The Carsons argue, however, that the cost of building a block wall or moving the solar device to their backyard is so great that the Association effectively has barred them from installing the device. The Carsons presented evidence it would cost $12,800 to $15,200 to install a block wall around the device, but they offered no evidence of what it would cost to install the solar device in their backyard or the amount by which that cost would exceed what they paid to install it beyond the fence. In the absence of that evidence, the Carsons did not demonstrate that the cost of satisfying the Association's requirements effectively bars installation. To the contrary, the evidence supported the superior court's conclusion that it would be feasible to install the device in the backyard or — though more expensive — to fence it in its current location.
4. Extent to which the property at issue is amenable to the required changes. ¶18 No evidence was offered of any property limitations or city ordinances that would prevent the Carsons from installing the solar device in their backyard or fencing it at its current location.
5. Whether the restrictions impose too great a cost in relation to what typical homeowners in the community are willing to spend. ¶19 As discussed above, the Carsons presented no evidence of what it would cost to install the solar device in their backyard. However, another property owner in the same subdivision installed the same type of solar device in his backyard, a fact that supports the conclusion that the restrictions the Committee imposed do not render the installation of such devices cost-prohibitive. ¶20 After examining the evidence relating to the relevant Garden Lakes factors, we conclude substantial evidence supports the superior court's findings that "the CCRs are a reasonable restriction on the installation of solar energy devices in the Fox Creek community and neither the CCRs nor the Association effectively prohibit the installation of such," and "the CCRs as applied to the Carsons' [solar] installation at issue in this case are not too restrictive and did not unreasonably affect the costs to the Carsons of installing the SED." Accordingly, we affirm the court's conclusion that the restrictions the Association imposed did not violate A.R.S. §§ 33-1816 or -439.
The Architectural Committee likewise did not act unreasonably in conditioning its approval of the Carsons' application on relocation or screening of the solar device. See Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 201, ¶ 25, 165 P.3d 173, 179 (App. 2007) (homeowners association must "act reasonably in the exercise of its discretionary powers including rulemaking, enforcement, and design-control powers.") (quoting Restatement (Third) of Property: Servitudes § 6.13(1)(c) (2000)).
B. The Superior Court Did Not Err By Granting Injunctive Relief.
¶21 The Carsons argue that even assuming they breached the CCRs by installing the solar device beyond their backyard fence, the superior court abused its discretion by granting the Association's request for injunctive relief. ¶22 A declaration of covenants, conditions and restrictions is a contract between a community's owners collectively and the individual lot owners. Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, 634, ¶ 5, 2 P.3d 1276, 1279 (App. 2000). Such restrictions properly may be enforced by injunctive relief. Heritage Heights Home Owners Ass'n v. Esser, 115 Ariz. 330, 333, 565 P.2d 207, 210 (App. 1977). "An injunction is an equitable remedy, which allows the court to structure the remedy so as to promote equity between the parties." Scholten v. Blackhawk Partners, 184 Ariz. 326, 331, 909 P.2d 393, 398 (App. 1995) (supplemental opinion). ¶23 We reject the Carsons' contention that the Association was not entitled to injunctive relief because it failed to show irreparable injury or that it lacked an adequate remedy at law. "[A] party seeking to enforce a valid deed restriction may demonstrate adequate harm merely by proving that to tolerate a violation would diminish the protection provided to all homeowners by the deed restrictions." Ahwatukee Custom Estates, 196 Ariz. at 636-37, ¶ 19, 2 P.3d at 1281-82 (citing Cont'l Oil Co. v. Fennemore, 38 Ariz. 277, 285-86, 299 P. 132, 135 (1931)). The Carsons' unauthorized solar device affected other residents in the subdivision in that it was visible from some locations in the community. Additionally, as in Ahawatukee Custom Estates, requiring the offending homeowners to comply with the community documents "would serve to vindicate and preserve the [Committee's] future authority to enforce the subdivision's CC & Rs and Guidelines." 196 Ariz. at 636-37, ¶ 19, 2 P.3d at 1281-82.
CONCLUSION
¶24 For the reasons set forth above, we affirm the superior court's judgment. We award the Association its costs and reasonable attorney's fees on appeal pursuant to A.R.S. § 12-341.01(A) (West 2012), contingent on its compliance with Arizona Rule of Civil Appellate Procedure 21.
___________
DIANE M. JOHNSEN, Judge
CONCURRING: ___________
JON W. THOMPSON, Acting Presiding Judge
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SAMUEL A. THUMMA, Judge