Arizona Court of Appeals – CC&R Enforcement
When a bound owner completes an offending structure after being warned it violates the CC&Rs, he is an intentional violator who cannot use relative hardship to escape a mandatory injunction.
Arizona Court of Appeals | 215 Ariz. 44, 156 P.3d 1149 (App. 2007) | Decided 2007-04-30
Scope note: This educational page summarizes Flying Diamond Airpark, LLC v. Meienberg, a Arizona Court of Appeals HOA-related authority. It is not legal advice.
The takeaway
Affirming a mandatory injunction, the Court of Appeals held that a property owner who has actual or constructive notice of a recorded restrictive covenant, is warned before completing the violation that his structure will breach the covenant, and nonetheless finishes it, is an ‘intentional’ violator who cannot invoke the equitable doctrine of relative hardships (or reopen the record under Rule 59(b) for additional hardship evidence) to defeat enforcement. The court also rejected the owner’s equitable-estoppel defense because the association’s voluntary architectural advisory committee had no authority to approve or disapprove plans, and it granted the association its appellate attorney fees under a CC&R fee-shifting provision.
Case Participants
Petitioner Side
- Jeffrey A. Meienberg (Defendant/Appellant)
Unmarried man and bound association member who built the over-height aircraft hangar; conceded the hangar exceeded the limit by about 8.75 to 10.75 inches. - Ethan Steele (Counsel)
Law Office of Ethan Steele, P.C.
Tucson attorney for Defendant/Appellant Jeffrey A. Meienberg.
Respondent Side
- Flying Diamond Airpark, LLC (Plaintiff/Appellee)
Arizona limited liability company and non-profit corporation; the mandatory-membership property owners’ association that sued to enforce the 22-foot CC&R height restriction. True caption reads ‘Flying Diamond Airpark’ (some sources misspell it ‘Airpack’). - John A. Baade (Counsel)
Tucson attorney for Plaintiff/Appellee Flying Diamond Airpark, LLC; no firm listed in the opinion caption. - Tanis A. Duncan (Counsel)
Tucson attorney for Plaintiff/Appellee Flying Diamond Airpark, LLC; no firm listed in the opinion caption.
Neutral Parties
- Joseph W. Howard (Judge)
Arizona Court of Appeals, Division Two
Presiding Judge; authored the opinion. - John Pelander (Judge)
Arizona Court of Appeals, Division Two
Chief Judge; concurred. - Garye L. Vasquez (Judge)
Arizona Court of Appeals, Division Two
Judge; concurred. Name appears in the opinion as ‘Garye L. Vasquez.’ - Hon. Charles V. Harrington (Judge)
Pima County Superior Court
Trial judge who issued the mandatory injunction and fee award that were affirmed on appeal.
What happened
Flying Diamond Airpark is an association of property owners in an Arizona development. A recorded declaration of covenants, conditions, and restrictions (CC&Rs), referenced in each owner’s deed, governs the parcels, and Jeffrey Meienberg is a mandatory member bound by those CC&Rs. Among other things, the CC&Rs prohibit ‘structures of more than 22 foot height.’
In 2004, Meienberg began building an aircraft hangar from prefabricated parts. The hangar was equipped with three roof vents, each ten feet long, sixteen inches high, and two feet wide, that attached to the roof. Measured from the ground to the top of the vents along the roof ridge, the hangar exceeded twenty-two feet; Meienberg ultimately conceded it violated the height restriction by eight-and-three-quarter to ten-and-three-quarter inches.
Before construction, Meienberg showed his plans to Larry Bramhall, another owner who had been asked to serve on a voluntary architectural advisory committee. Submission of plans was not mandatory, and the committee would not approve or disapprove plans. The plans Meienberg showed Bramhall did not state the hangar’s total height and did not include the roof-vent dimensions; the vents were never mentioned. Based on the eave height and roof pitch, Bramhall thought the roof itself would stay under twenty-two feet and simply reminded Meienberg to keep the building under the limit.
After framing began, Bramhall saw the steel frame and the roof vents lying on the ground and told Meienberg that, counting the vents, the hangar would exceed the height restriction. He suggested lower-profile vents that would comply and offered to help find a buyer for the taller vents. Meienberg took the position that vents should not count toward the height calculation and completed the hangar anyway.
Flying Diamond sued in Pima County Superior Court seeking an injunction to bring the hangar into compliance. After an evidentiary hearing, and on the parties’ stipulation to decide the case on that record plus legal memoranda, the trial court (Hon. Charles V. Harrington) found that Meienberg knew of the restriction, knew of the violation, and knew of the association’s intent to enforce it. It concluded he could not claim hardship or estoppel, issued a mandatory injunction requiring him to lower the hangar, and awarded the association attorney fees under a CC&R provision. The court also denied Meienberg’s Rule 59(b) motion to reopen the case for additional evidence about the burden of compliance.
On appeal, Meienberg argued that his violation was not intentional (contending intent should be judged as of when he ordered parts and met Bramhall), that the trial court should have applied the doctrine of relative hardships, that it should have reopened the record for more hardship evidence, and that the association was equitably estopped from enforcing the covenant.
The Court of Appeals, Division Two, affirmed in full. It held that an owner with actual or constructive notice of a restriction who completes an offending structure after being told it will violate the covenant is an intentional violator who cannot invoke relative hardships; that the excluded Rule 59(b) hardship evidence was therefore irrelevant; and that substantial evidence supported rejecting estoppel because the voluntary committee lacked authority to approve plans and Meienberg’s reliance was not justifiable. The court granted Flying Diamond its appellate attorney fees under the CC&Rs.
For Arizona common-interest communities, the decision sharpens the definition of an ‘intentional’ covenant violator and strengthens an association’s ability to obtain a mandatory injunction rather than money damages. An owner cannot manufacture a relative-hardship defense by claiming he was ignorant when he bought materials or that he interpreted the restriction differently; once he is warned that completing a structure will breach the CC&Rs and he builds on anyway, he is an intentional wrongdoer who loses the right to have a court weigh his hardship against the neighbors’ benefit. The court framed this as protecting the uniformity of restrictions that every owner, including the violator, agreed to when buying into the community. The case is also a caution about architectural review and reliance. A purely advisory committee that lacks authority to approve or reject plans cannot create equitable estoppel against the association, so an owner’s informal ‘check-in’ with such a body confers no protection. Owners who want the shield of an approval should obtain formal, written approval where the CC&Rs require it and should fully disclose the relevant dimensions; associations, in turn, are reminded that fee-shifting clauses in the CC&Rs can make a successful enforcement action recoverable, including on appeal.
Litigation record
Meienberg orders prefabricated parts for an aircraft hangar and, before construction, shows the plans to Larry Bramhall of a voluntary architectural advisory committee; the plans omit the hangar’s total height and the roof-vent dimensions, and the vents are not discussed.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Meienberg begins constructing the hangar on his Flying Diamond parcel.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
After framing begins, Bramhall sees the steel frame and the roof vents on the ground and warns Meienberg that, counting the vents, the hangar will exceed the 22-foot limit; Meienberg disputes that vents count and completes construction.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Flying Diamond Airpark files suit in Pima County Superior Court (Cause No. C-20045803) seeking an injunction to bring the hangar into compliance.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
After an evidentiary hearing, the trial court (Hon. Charles V. Harrington) finds the violation intentional, issues a mandatory injunction ordering the hangar lowered, and awards Flying Diamond attorney fees under the CC&Rs.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The trial court denies Meienberg’s Rule 59(b) motion to reopen the case for additional evidence about the hardship of compliance; Meienberg appeals to the Arizona Court of Appeals, Division Two (2 CA-CV 2006-0092).
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The Court of Appeals affirms the injunction, the denial of the Rule 59(b) motion, and the fee award, and grants Flying Diamond its appellate attorney fees under the CC&Rs (subject to Rule 21(c)).
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Complete uploaded source-document index
This index is generated from every public-facing source file currently present in assets/court_case_downloads/diamond-airpark-v-meienberg/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.
Opinion
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
FAQ
What was Flying Diamond Airpark, LLC v. Meienberg about?
It was a covenant-enforcement dispute in an Arizona common-interest community. The recorded CC&Rs for Flying Diamond Airpark barred ‘structures of more than 22 foot height.’ Member Jeffrey Meienberg built an aircraft hangar whose three roof vents pushed it roughly 8.75 to 10.75 inches over the limit. The association sued, and the trial court ordered him to lower the hangar and pay attorney fees. The Court of Appeals affirmed on April 30, 2007.
What is the ‘relative hardships’ doctrine, and why couldn’t Meienberg use it?
When a court decides whether to enjoin a covenant violation, it can weigh equitable factors, including the relative hardship an injunction imposes on the violator versus the benefit to the neighbors. But that balancing is a matter of grace, not right, and it is not available to protect an intentional wrongdoer. Because Meienberg completed the hangar after being warned it would violate the height restriction, the court treated him as an intentional violator and refused to weigh his hardship at all.
What makes a covenant violation ‘intentional’ under this case?
The court held that a violation is intentional where the owner has actual or constructive notice of the restriction, knows or is told before completing the structure that it will violate the restriction, and then finishes it anyway. It does not matter that the owner may have started in good faith, ordered materials before learning of the problem, or genuinely interpreted the covenant differently. Once warned, completing the structure makes the violation intentional.
Why did Meienberg’s estoppel argument fail?
Meienberg argued the association was estopped because he had shown his plans to a member of an architectural advisory committee. The court rejected this because the committee was voluntary and had no authority to approve or disapprove plans, the plans he showed omitted the total height and the vent dimensions, the vents were never discussed, and he never obtained any approval. With no inducing act by the association and no justifiable reliance, the estoppel elements were not met.
Did the homeowner have to pay the association’s attorney fees?
Yes. The trial court awarded the association attorney fees under a fee-shifting provision in the CC&Rs, and the Court of Appeals affirmed. The appellate court also granted the association its attorney fees on appeal under that same CC&R provision, entitling the successful party to a reasonable attorney fee, subject to the association complying with the fee-request procedure in Rule 21(c).
What does this decision mean for Arizona homeowners and HOAs?
For associations, it strengthens the ability to obtain a mandatory injunction (not just damages) against a knowing violator and confirms that a completed, warned-about violation forfeits a hardship defense, protecting the uniformity of the CC&Rs. For owners, it is a caution: an informal check-in with a committee that lacks approval authority provides no protection, and building on after a warning is risky. Owners should obtain formal, written approval where the CC&Rs require it and fully disclose relevant dimensions.
Case Dossier
This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.
Case Summary
| Case ID / citation | 215 Ariz. 44, 156 P.3d 1149 (App. 2007) |
|---|---|
| Court / tribunal | Court of Appeals |
| Decision / key date | April 30, 2007 |
| Judge / panel | Joseph W. Howard (Presiding Judge, author), John Pelander (Chief Judge, concurring), Garye L. Vasquez (Judge, concurring) |
| Parties | A mandatory-membership property owners’ association (Flying Diamond Airpark, LLC) sued a bound member (Jeffrey Meienberg) to enforce a recorded 22-foot CC&R height restriction after he completed an aircraft hangar that exceeded the limit. |
| Governing law |
|
| Topics | cc-and-rscovenantsarchitectural-reviewattorneys-feesprocedure |
| Outcome / holding | Affirming a mandatory injunction, the Court of Appeals held that a property owner who has actual or constructive notice of a recorded restrictive covenant, is warned before completing the violation that his structure will breach the covenant, and nonetheless finishes it, is an ‘intentional’ violator who cannot invoke the equitable doctrine of relative hardships (or reopen the record under Rule 59(b) for additional hardship evidence) to defeat enforcement. The court also rejected the owner’s equitable-estoppel defense because the association’s voluntary architectural advisory committee had no authority to approve or disapprove plans, and it granted the association its appellate attorney fees under a CC&R fee-shifting provision. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Uploaded source package | 1 PDF |
|---|---|
| Step-by-step docket roadmap | 7 roadmap entries |
| Video overview | No video embed currently configured |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Curated download aliases | 1 download link |
Key Issues & Findings
Flying Diamond Airpark, LLC v. Meienberg is a published Arizona Court of Appeals (Division Two) decision on enforcing a common-interest community’s recorded covenants, conditions, and restrictions. Flying Diamond Airpark is a mandatory-membership property owners’ association whose recorded declaration, referenced in each owner’s deed, bars structures more than twenty-two feet tall. Jeffrey Meienberg, a member bound by the CC&Rs, built an aircraft hangar whose three roof vents pushed its height roughly eight-and-three-quarter to ten-and-three-quarter inches over the limit. Before building, Meienberg showed plans to a member of a voluntary architectural advisory committee, but the plans omitted the total height and the vent dimensions, and the committee had no power to approve or reject plans. After framing began, the committee member warned Meienberg the vents would exceed the limit; Meienberg disagreed that vents counted and finished the hangar. The association sued and won a mandatory injunction ordering the hangar lowered, plus attorney fees under a CC&R fee-shifting clause. On appeal, Meienberg argued the trial court should have weighed the relative hardships, should have found the association estopped, and should have reopened the record for more hardship evidence. The Court of Appeals affirmed, holding that an owner with actual or constructive notice of a restriction who completes an offending structure anyway is an intentional violator who cannot invoke relative hardship, and that the voluntary committee’s lack of approval authority defeated the estoppel claim. The court awarded the association its appellate attorney fees under the CC&Rs.
The court applied the equitable rule that although injunctions enforcing restrictive covenants turn on equitable considerations, ‘equitable discretion should not be used to protect an intentional wrongdoer’ (Decker v. Hendricks). Synthesizing Arizona authority (Decker, Camelback Del Este, and Burke) with out-of-state cases (Sandstrom, Gladstone, and others), it held that an owner with actual or constructive notice of a restriction who is informed before completing an offending structure that it will violate the restriction, yet finishes it anyway, is an ‘intentional’ violator regardless of when expenditures were incurred. Such a violator forfeits any balancing of relative hardships, which in turn made Meienberg’s proffered Rule 59(b) hardship evidence irrelevant and its exclusion harmless. Adopting Meienberg’s timing-based rule, the court reasoned, would let any owner claim initial ignorance or a differing interpretation and thereby erode the uniformity of CC&Rs that all owners agreed to. On estoppel, applying an abuse-of-discretion / substantial-evidence standard, the court held substantial evidence supported the trial court: the advisory committee was voluntary and lacked authority to approve plans, the plans Meienberg submitted omitted the vents, the vents were never discussed, and Meienberg never obtained approval, so there was neither an inducing act nor justifiable reliance. Griffith was distinguished because there plan approval was mandatory and in writing.
For Arizona common-interest communities, the decision sharpens the definition of an ‘intentional’ covenant violator and strengthens an association’s ability to obtain a mandatory injunction rather than money damages. An owner cannot manufacture a relative-hardship defense by claiming he was ignorant when he bought materials or that he interpreted the restriction differently; once he is warned that completing a structure will breach the CC&Rs and he builds on anyway, he is an intentional wrongdoer who loses the right to have a court weigh his hardship against the neighbors’ benefit. The court framed this as protecting the uniformity of restrictions that every owner, including the violator, agreed to when buying into the community.
The case is also a caution about architectural review and reliance. A purely advisory committee that lacks authority to approve or reject plans cannot create equitable estoppel against the association, so an owner’s informal ‘check-in’ with such a body confers no protection. Owners who want the shield of an approval should obtain formal, written approval where the CC&Rs require it and should fully disclose the relevant dimensions; associations, in turn, are reminded that fee-shifting clauses in the CC&Rs can make a successful enforcement action recoverable, including on appeal.