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IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
GARDEN LAKES COMMUNITY ASSOCIATION,
INC., an Arizona non-profit
corporation,
Plaintiff-Appellant,
v.
WILLIAM E. MADIGAN and JOAN M. MADIGAN,
husband and wife; HENRY T. SPEAK and
LAVONNE M. SPEAK, husband and wife,
Defendants-Appellees.
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1 CA-CV 00-0570
DEPARTMENT B
O P I N I O N
Filed 2-18-03
Appeal from the Superior Court in Maricopa County
Cause Nos. CV 97-004796 and CV 97-005359
The Honorable David M. Talamante, Judge
AFFIRMED
Thomas & Elardo, P.C.
Phoenix
By
Neal B. Thomas
and
Mulcahy Law Firm, P.C.
Phoenix
By
Beth Mulcahy
Attorneys for Appellant
Law Office of Hyung S. Choi
Tempe
By
Hyung S. Choi
and
Law Offices of Gerald Pollock
Phoenix
By
Gerald Pollock
Attorneys for Appellees
Ekmark & Ekmark, L.L.C.
Scottsdale
By
Curtis S. Ekmark
Attorneys for Amicus Curiae Sun City Grand
Community Association, Inc.

2
G E M M I L L, Judge
¶1
Homeowners in the Garden Lakes subdivision in Avondale,
Arizona are members of the homeowners association known as the
Garden Lakes Community Association, Inc. ("Association"). The
Association issued architectural restrictions governing the
construction and appearance of solar energy devices on homes within
the subdivision. The appellee homeowners claimed that the
restrictions were unenforceable under Arizona Revised Statutes
(“A.R.S.”) section 33-439(A)(2000) because the restrictions
“effectively prohibited” the homeowners from installing or using
solar energy devices. The trial court found in favor of the
homeowners. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2
William and Joan Madigan and Henry and LaVonne Speak
owned homes in the Garden Lakes subdivision. To provide a general
plan for the use and enjoyment of the planned community, the
Association recorded a Declaration of Covenants, Conditions,
Restrictions and Easements for Garden Lakes ("Declaration"). The
Declaration applies to all owners of property within Garden Lakes
who purchased a lot after the Declaration was recorded on January
28, 1986. The Madigans and the Speaks purchased their lots
thereafter and accepted their deeds subject to the following
provision in the Declaration:

3
No improvements, alterations . . . or other
work which in any way alters the exterior
appearance of any property or improvements
thereon . . . shall be made or done . . .
unless and until the Architectural Review
Committee has, in each such case, reviewed and
approved the nature of the proposed work,
alteration, structure or grading and the plans
and specifications therefor.
The Association established an architectural review committee
(“ARC”) and architectural review guidelines (“guidelines”).
¶3
Guidelines were issued regarding the construction and
appearance of solar panels and equipment:
1. All solar energy devices Visible from
Neighboring Property or public view must be
approved by the Architectural Review Committee
prior to installation.
2. Panels must be an integrated part of the
roof design and mounted directly to the roof
plane. Solar units must not break the roof
ridge line, must not be visible from public
view and must be screened from neighboring
property in a manner approved by the Board of
Directors or its designee(s). Roof mounted
hot water storage systems must not be Visible
from Neighboring Property. Tracker-type
systems will be allowed only when not Visible
from Neighboring Property.
3. The criteria for screening set forth in
Section III(M) “Machinery and Equipment”,
shall apply to solar panels and equipment.
(Original capitalization preserved). Under the “Machinery and
Equipment” section, the guidelines provided:
[S]creening or concealment shall be solid and
integrated 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

1
“Solar energy device” is defined as “a system or series
of mechanisms designed primarily to provide heating, to provide
cooling, to produce electrical power, to produce mechanical power,
to provide solar daylighting or to provide any combination of the
foregoing by means of collecting and transferring solar generated
energy into such uses either by active or passive means.” A.R.S.
§ 44-1761(4)(Supp. 2000).
4
constructed and positioned in such a manner so
it is level and plumb with vertical building
components and shall be structurally stable in
accordance with sound engineering principles.
¶4
The Madigans and the Speaks installed solar energy
devices (“SEDs”) on the roofs of their respective homes without ARC
or Association approval. These SEDs included solar panels to
collect and transfer heat to their swimming pools. The Association
sued the Madigans and the Speaks in separate actions, alleging
failure to comply with the guidelines and breach of the
Declaration. The Association sought permanent injunctions
compelling the removal of the SEDs, monetary penalties, and
attorneys’ fees and costs. The Madigans and Speaks defended on the
basis of A.R.S. § 33-439, arguing that subsection (A) rendered the
guidelines void and unenforceable:
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
§
44-17611
is
void
and
unenforceable.
Ariz. Rev. Stat. (“A.R.S.”) § 33-439(A)(2000)(emphasis added).

2
In response to the interrogatories, the advisory jury
found that (1) the Speaks accepted the deed to their property
subject to the Declaration; (2) the Speaks did not obtain approval
of the ARC prior to installing solar panels on the roof of their
home; (3) the Association's guidelines do not effectively prohibit
the use of solar energy devices; (4) the Association's guidelines
regarding solar energy devices are not reasonable and unambiguous;
and (5) there were no viable options available to the Speaks for
the installation and use of solar energy. Although finding number
(3) appears to favor the Association, the trial court in reaching
its final determination reasoned that this finding was based on an
inartfully worded interrogatory that was confusing to the jury and
further that the jury findings were not binding.
5
¶5
The two actions were consolidated. Prior to trial, the
Association waived the estimated $100,000 in fines allegedly owed
by the Madigans and the Speaks. Also, William Madigan died before
trial and Joan Madigan had the solar equipment removed from the
roof of her home. The case was tried to the court with an advisory
jury. The court was not asked to make findings of fact and
conclusions of law.
¶6
During trial, the court granted judgment as a matter of
law in favor of the Madigans. The Association’s case against the
Speaks
was
submitted
to
the
advisory
jury
with
special
interrogatories.2
¶7
After post-trial briefing, the trial court entered
judgment in favor of the Speaks and Madigans. The court found that
the Association's guidelines, combined with the Association's
conduct, “effectively prohibited” the Speaks from placing solar
energy devices on their residence. The court therefore concluded
that, based on A.R.S. § 33-439(A), the Association was not entitled

6
to an injunction enforcing the guidelines regarding solar energy
devices. The court also awarded attorneys’ fees and costs to the
Speaks and Madigans.
¶8
The parties agree that the homeowners did not comply with
the architectural guidelines of the Association and did not have
the approval of the Association or its ARC for installation of
their SEDs. The Association on appeal makes several arguments in
support of its fundamental position that the trial court erred in
concluding that the guidelines were unenforceable under A.R.S. §
33-439(A). Before addressing the substantive issues presented, we
first identify the applicable standards for our review.
STANDARDS OF REVIEW
¶9
Neither side requested that the court make specific
findings of fact and conclusions of law pursuant to Arizona Rule of
Civil Procedure 52(a), and the court did not, sua sponte, make
detailed findings. Accordingly, we presume that the trial court
found every fact necessary to support its judgment and we will
affirm if any reasonable construction of the evidence justifies it.
Neal v. Neal, 116 Ariz. 590, 592, 570 P.2d 758, 760 (1977); In re
CVR 1997 Irrevocable Trust, 202 Ariz. 174, 177, ¶ 16, 42 P.3d 605,
608 (App. 2002). Although an advisory jury heard the evidence and
answered special interrogatories, it is the findings and judgment
of the court that are presumed to be correct rather than the jury’s
answers to the interrogatories. See Ariz. R. Civ. P. 39(n) (“The

7
answers shall be only advisory to the court.”); see also
Merryweather v. Pendleton, 91 Ariz. 334, 338, 372 P.2d 335, 338
(1962); Carrillo v. Taylor, 81 Ariz. 14, 19, 299 P.2d 188, 191
(1956).
¶10
The Association sought an injunction against the Madigans
and Speaks. We apply an abuse of discretion standard when
reviewing the denial of injunctive relief. Horton v. Mitchell, 200
Ariz. 523, 526, ¶ 12, 29 P.3d 870, 873 (App. 2001). However, to
the extent that we are called upon to construe A.R.S. § 33-439(A),
our review is de novo. See Lewis v. Ariz. Dep't of Econ. Sec., 186
Ariz. 610, 614, 925 P.2d 751, 755 (App. 1996).
¶11
With these principles in view, we address the issues
raised in this appeal.
ANALYSIS
¶12
The Declaration constitutes a contract between “the
subdivision’s property owners as a whole and the individual lot
owners.” Horton, 200 Ariz. at 525, ¶ 8, 29 P.3d at 872 (citing
Ariz. Biltmore Estates Ass’n v. Tezak, 177 Ariz. 447, 448, 868 P.2d
1030, 1031 (App. 1993)). The Madigans and Speaks purchased their
homes subject to the restrictions in the Declaration and the
guidelines issued pursuant to the Declaration. See Duffy v.
Sunburst Farms East Mut. Water & Agric. Co., 124 Ariz. 413, 416,
604
P.2d
1124,
1127
(1979).

Restrictive
covenants
and
architectural guidelines that are clear and unambiguous are

8
generally enforceable against the individual homeowners within the
association. Id. at 416-417, 604 P.2d 1127-28. The Arizona
legislature has carved out an exception to the enforceability of
these contracts, however, for restrictions that “effectively
prohibit” the installation or use of solar energy devices. A.R.S.
§ 33-439(A).
¶13
The Association argues that § 33-439(A) essentially means
that covenants, restrictions, and conditions in deeds, along with
guidelines promulgated under them, must lead to the “inevitable
preclusion” of the installation of solar energy devices to render
such limitations void and unenforceable. The Association contends
that the Speaks had the burden of proving that the Declaration and
guidelines “inevitably precluded” the installation of their solar
heating unit and that they failed to meet that burden of proof.
The Speaks respond that the evidence showed that the Association’s
requirements for installation of the solar heating device either
could not be met or added so much cost to the installation that any
homeowner would forego solar energy and opt instead for a gas or
electric pool heater.
¶14
To decide this case, we must interpret A.R.S. § 33-
439(A). Our goal in interpreting statutes is to fulfill the intent
and purpose of the legislature. Zamora v. Reinstein, 185 Ariz.
272, 275, 915 P.2d 1227, 1230 (1996); State v. Christian, 202 Ariz.
462, 463, ¶ 5, 47 P.3d 666, 667 (App. 2002). We look first to the

3
Currently, Arizona taxpayers can qualify for a tax credit
equal to twenty-five percent of the cost of a solar energy device
up to a maximum of $1,000. A.R.S. § 43-1083(A) and (B)(Supp.
2000).
4
See 1980 Ariz. Sess. Laws, ch. 39, §§ 2, 13. This
statute does not apply to deed restrictions in effect at the time
of its enactment. A.R.S. § 33-439(B).
9
plain language of the statute as the most reliable indicator of its
meaning. State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133
(1993). To assist in determining the legislative intent, we may
also consider the statute’s context, language, subject matter,
historical background, effects and consequences, spirit and
purpose. Hayes v. Continental Ins. Co., 178 Ariz. 264, 268, 872
P.2d 668, 672 (1994).
¶15
The Arizona legislature’s enactment of laws encouraging
the use of solar energy dates back to at least 1974. In that year,
the legislature passed a bill allowing amortized deductions for
expenditures incurred in the acquisition of any solar energy device
designed to produce heat or electricity. 1974 Ariz. Sess. Laws,
ch. 165, § 2. In 1977, the legislature added a tax credit for
Arizona taxpayers who install solar energy devices. 1977 Ariz.
Sess. Laws, ch. 81, § 4.3
¶16
The statute at issue here, A.R.S. § 33-439(A), was
enacted in 1980.4 The enactment of § 33-439(A) and other solar
energy statutes reveals that the legislature sought to encourage
the use of solar energy by offering incentives and limiting

10
disincentives for the use of SEDs. The legislative history,
however, does not reveal the precise meaning and application of the
crucial phrase "effectively prohibits."
¶17
While it might be desirable to have a bright-line rule
or formula to determine precisely whether a particular restriction
effectively prohibits the installation or use of solar energy
devices, the legislature has not chosen to provide guidance beyond
the phrase “effectively prohibits.” The legislature has instead
adopted a practical, flexible standard that permits the many
variations of restrictions and effects to be considered on a case-
by-case basis. See Palos Verdes Homes Ass'n v. Rodman, 182
Cal.App.3d 324, 328, 227 Cal.Rptr. 81, 83 (1986)(explaining that
whether the homeowners association guidelines were, under the
California statute, a "reasonable restriction" on the installation
of solar energy units was a question of fact to be determined by
the trier of fact).
¶18
We disagree with the Association’s argument that
"effectively prohibit" must be interpreted as meaning that any
restrictions on SEDs must "inevitably preclude" them before the
restrictions should be deemed unenforceable. We decline the
invitation to provide a new or alternative definition for the
phrase “effectively prohibits." Whether a restriction effectively
prohibits SEDs is a question of fact to be decided on a case-by-
case basis.

11
¶19
To determine whether a deed restriction effectively
prohibits the installation or use of an SED, numerous factors may
be relevant. These factors include the content and language of the
restrictions or guidelines; the conduct of the homeowners
association in interpreting and applying the restrictions; whether
the architectural requirements are too restrictive to allow SEDs as
a practical matter; whether feasible alternatives utilizing solar
energy are available; whether any alternative design will be
comparable in cost and performance; the feasibility of making the
required modifications; the extent to which the property at issue
is amenable to the required changes; 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; the location, type of housing, and value of the homes
in the community; and whether the restrictions impose too great a
cost in relation to what typical homeowners in the community are
willing to spend. By providing this list of potentially relevant
factors and by the comments that follow, we do not intend to
predetermine relevancy in any particular case. We do intend,
however, to provide general guidance to trial courts and parties
involved in or anticipating litigation over restrictions affecting
SEDs.
¶20
The Association correctly asserts that the burden of
proof was on the homeowners to prove that the Declaration and

12
guidelines effectively prohibited them from installing and using a
solar energy device. The “party seeking a right or benefit under
a statute bears the burden of proving that he comes within the
ambit of the statute.” Harvest v. Craig, 195 Ariz. 521, 524, ¶ 15,
990 P.2d 1080, 1083 (App. 1999). Applying the applicable standards
of review including the required presumption that the trial court
found all facts necessary to support the judgment, supra ¶¶ 9-10,
we conclude that the homeowners met their burden of proof.
¶21
Much of the testimony at trial focused on two alternative
designs that the Association argues were feasible and would comply
with the guidelines. The Association produced expert testimony
supporting the alternatives of constructing a patio cover on the
Speaks’ home and placing the solar panels on the top of the patio
roof or building a screening wall around the existing panels on the
roof.
¶22
Regarding the patio cover alternative, the evidence
revealed two impediments. First, the Speaks’ expert testified that
a patio cover large enough to hold the Speaks’ solar panels would
have to be at least thirteen feet by forty feet. The Speaks’ pool
is about six feet from the back of their house. The proposed patio
cover thus would cover part of the pool. Evidence was introduced
that the City of Avondale does not allow patios to encroach into
pool setback areas. Second, the Association’s construction expert
testified that the cost of building a patio cover for the Speaks

13
would be nearly $5,000. The cost of installing the solar panels on
the patio roof would be an additional expense.
¶23
The other solution suggested by the Association would
require the building of an aesthetic screen forty-eight feet long
by five feet high on the tile roof to hide the solar panels. The
Association’s expert opined that the screen could be constructed
using louvers -- analogous to venetian blinds -- that could be
adjusted to allow the sun to hit the panels. Even with the
louvers, however, at some times of the year the screen would cause
some shading on the solar panels, thereby decreasing solar
efficiency. The vertical supports and other bracing materials
would be constructed of wood painted to match the colors in the
subdivision and the roof tile.
¶24
The Association’s expert admitted that he had never seen
this type of screening device on a residential roof. Two other
witnesses testified that they had never seen a screen wall of the
proposed size built on a residence. Also, a member of the
Association’s ARC testified that he did not like the idea of
screening walls and that to meet the guidelines the screen would
have to match the stucco of the house.
¶25
The court was entitled to consider the increased cost in
reaching its conclusions. The Association argues that cost should
not be considered because to do so would create a varying standard
for homeowners desiring to install solar energy devices. According

14
to the Association, extra installation requirements might be deemed
to be within the reach of a wealthy homeowner while the same
requirements might be deemed to effectively prohibit a less
affluent homeowner from installing the solar devices.
¶26
The cost necessary to comply with aesthetic and
architectural restrictions is not, standing alone, dispositive.
Because the cost of complying with some restrictions may be so
expensive as to effectively prohibit SEDs, however, we conclude
that cost is a factor to be considered. The focus of this part of
the overall inquiry should be on the motivation of the average
homeowner within the association community to install SEDs given
the financial burden and potential loss of solar efficiency imposed
by the restrictions. The location, type of housing, and value of
the homes in the community may be relevant in this inquiry.
¶27
We believe that evidence of cost was properly presented
in this case. A distributor of solar pool heaters in Arizona
testified that in the Phoenix and Tucson markets, most people will
not buy a solar system that costs more than $4,500. He explained
that because solar systems generally cost more than gas and
electric heating devices, solar companies must show consumers that
they can recoup the difference in three to five years when the fuel
costs for the other methods are considered. If the recoupment

5
We emphasize that cost alone should not be dispositive.
For example, if the increased cost of complying with the
architectural restrictions was $7500 but the homes in the
subdivision ranged in value from $500,000 to $1,000,000, the trier
of fact might conclude that the increased cost did not effectively
prohibit the installation of SEDs.
15
period goes beyond five years, most people will not purchase a
solar system.5
¶28
We conclude that substantial evidence supported the trial
court’s finding that the Association’s guidelines effectively
prohibited the installation and use of SEDs. The evidence is
sufficient to support a finding that the patio cover was not a
viable option for the Speaks because the added expense would have
dissuaded homeowners in the community from undertaking the project
and the size of the patio cover would have violated applicable city
restrictions. The evidence also supports a finding that the
proposed screen was no more than an idea that would not work in
execution. The decreased solar efficiency and additional cost of
the screening provide further support for the court’s conclusion.
¶29
Apart from evidentiary issues, the Association argues
that we should follow the results in Nahrstedt v. Lakeside Village
Condominium Ass’n, Inc., 878 P.2d 1275 (Cal. 1994), holding that
the condominium association’s restriction against keeping cats,
dogs, and other animals in the development was enforceable; O’Buck
v. Cottonwood Village Condominium Ass’n, Inc., 750 P.2d 813 (Alaska
1988), holding that the condominium association could reasonably

16
ban rooftop antennas; and Dunlap v. Bavarian Village Condominium
Ass’n, Inc., 780 P.2d 1012 (Alaska 1989), holding that the
association’s regulation against stored vehicles was reasonable and
enforceable. These cases, however, are readily distinguishable
because no state law established a public policy preference for
allowing homeowners to keep animals, have rooftop antennas, or
store old vehicles. In contrast, here we must consider the
application of a specific statute, § 33-439(A), that nullifies
enforcement of deed restrictions that effectively prohibit the
installation and use of SEDs.
¶30
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 SEDs. But SEDs may not
be explicitly prohibited or “effectively prohibited” by the
guidelines of an association or by an association’s interpretation
and application of its guidelines.
¶31
Because there was substantial evidence supporting the
trial
court’s
ruling
that
the
Association’s
restrictions
effectively prohibited the installation and use of solar energy
devices in violation of A.R.S. § 33-439(A), the restrictions as
applied in this case are unenforceable and the Association is not
entitled to relief. Accordingly, we affirm the judgment in favor
of the homeowners.

17
¶32
The homeowners request an award of their attorneys’ fees
incurred in defending this appeal. The trial court granted an
award of attorneys’ fees to the homeowners under A.R.S. section 12-
341.01(A)(Supp. 2000). We likewise, in our discretion, award fees
to the homeowners under this statute. The amount of the award of
fees and costs will be determined after the homeowners comply with
Arizona Rule of Civil Appellate Procedure 21(c).
________________________________
JOHN C. GEMMILL, Judge
CONCURRING:
____________________________________
ANN A. SCOTT TIMMER, Presiding Judge
____________________________________
NOEL FIDEL, Judge