Tag Archives: architectural-review

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Derailed, LLC owned a lot in the Pinnacle Peak Vistas III subdivision in Scottsdale, Arizona, a planned community governed by recorded CC&Rs and Architectural Committee Rules. The company’s principal, Arvin Bernstein, lived on the property. In 2006 the owner installed a metal yard sculpture of a saguaro cactus wearing sunglasses and holding an electric guitar.

Roughly two years later, the Association sent notices treating the sculpture as an unapproved modification and demanding removal. The notices did not clearly identify the exact provisions allegedly violated. The Association later pointed to landscaping language, structure/exterior-review provisions, and provisions barring signs, billboards, unsightly objects, or nuisances.

The superior court granted summary judgment to Derailed, concluding that the governing documents did not require approval for, or prohibit, this sculpture. The Association appealed.

The Court of Appeals affirmed part of the owner’s win. It agreed that the sculpture was not landscaping: ordinary landscaping means plantings, ground cover, grading, or similar treatment of land, and the Association offered no evidence that the sculpture damaged vegetation or conflicted with the desert environment. The court also agreed that the sculpture was not a structure or dwelling under the cited provisions, which in context referred to buildings or constructed things that can be entered into or walked upon.

The court reversed only on a narrower theory. Article I section 13 and Rule 2.28 prohibited signs, billboards, unsightly objects, or nuisances. Because the Association had cited those provisions and an unsightly-object clause could include a sculpture, summary judgment for the owner was premature on that issue.

The appellate court did not decide that the cactus sculpture was unsightly, did not order it removed, and did not give the Association a final merits win. It remanded for further proceedings, including factual questions about reasonableness, delay, and alleged selective enforcement.

Because this is an unpublished memorandum decision, it is non-precedential and may be cited only as allowed by Arizona court rules. It is useful here as a practical example of how architectural-control disputes can turn on the exact words a community chose in its governing documents.

This decision cuts both ways. For homeowners, it rejects an association’s attempt to stretch landscaping and structure provisions beyond their ordinary meaning just because a board dislikes a yard object. Silence in the CC&Rs mattered on those theories, and the court would not defer to the Association’s broad interpretation. For associations, the case preserves a narrower enforcement path when governing documents separately prohibit unsightly objects or nuisances. But that path still requires reasonable application, factual development, and attention to defenses such as delay and selective enforcement. The decision is unpublished and non-precedential, so it is best treated as a practical illustration rather than binding law. Counsel note: Carpenter Hazlewood represented the Association in this architectural-review appeal.

Video overview of the case record

An AI-generated video overview of Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC (No. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision)). Court affirmed owner wins on landscaping/structure theories but remanded the narrower unsightly-object issue. This plain-language summary was generated from the court’s filings; the court’s own records control.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the case record in Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC. Generated from the case filings; verify against the linked records below.

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This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

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Garden Lakes is a planned community in Avondale, Arizona, whose lots are subject to recorded covenants, conditions, and restrictions (CC&Rs) administered by the Garden Lakes Community Association through an Architectural Review Committee. The Association’s architectural guidelines addressed solar devices, generally requiring that any panels be integrated into the roof design and screened so they would not be visible or detract from the neighborhood’s appearance.

Two homeowner couples — William and Joan Madigan and Henry and Lavonne Speak — installed solar panels on their roofs to heat their swimming pools. They did so without first obtaining Architectural Review Committee approval, and the installed panels were visible rather than screened or flush-mounted as the guidelines contemplated.

The Association treated the visible panels as a violation of its recorded guidelines and demanded that the homeowners bring the installations into compliance. When the homeowners did not remove or conceal the panels, the Association filed suit in Maricopa County Superior Court, seeking an injunction to compel compliance and damages for breach of the architectural restrictions.

The homeowners raised A.R.S. § 33-439(A) as a defense. That statute voids any covenant, restriction, or condition affecting real property that “effectively prohibits” the installation or use of a solar energy device (a term the statute ties to definitions in A.R.S. § 44-1761 and § 43-1083). The homeowners argued that the only ways to comply with the Association’s guidelines were impractical and prohibitively expensive, so the guidelines effectively prohibited their solar use.

After a bench trial, the superior court agreed with the homeowners. It found that the alternatives the Association offered — building a patio cover that would cost more than $5,000 and would violate the municipality’s setback requirements, or constructing an untested roof-line screening wall — were impractical and cost-prohibitive. On those findings it concluded the guidelines effectively prohibited the homeowners’ solar use and were void under § 33-439(A), and it entered judgment for the homeowners.

The Association appealed to Division One of the Arizona Court of Appeals, arguing chiefly that “effectively prohibits” should mean “absolutely precludes” and that the trial court’s findings were inadequate. The court of appeals disagreed. Reviewing the factual findings for clear error under Ariz. R. Civ. P. 52(a), and construing the statute functionally, the panel held that a restriction effectively prohibits solar use when compliance is impractical, cost-prohibitive, or destructive of the device’s efficiency, judged case-by-case against factors including cost relative to community home values, aesthetics, solar efficiency, and the association’s conduct.

The court affirmed the judgment for the homeowners and held the guidelines void as applied. Because the dispute arose out of contract (the recorded CC&Rs), the court also addressed attorneys’ fees under A.R.S. § 12-341.01 and awarded the prevailing homeowners their reasonable fees and costs on appeal. Sun City Grand Community Association appeared as amicus curiae addressing the statute’s scope for associations.

Garden Lakes v. Madigan is one of the anchor decisions defining how Arizona’s solar-access statute, A.R.S. § 33-439(A), limits HOA architectural control. By rejecting the argument that a restriction is void only if it makes solar literally impossible, the court gave the statute practical teeth: a rule can be unenforceable when the community’s demanded alternative is too expensive, too impractical, or too damaging to the panels’ efficiency to be a realistic option. That functional, case-by-case standard shifted the analysis from formal permissibility to real-world burden, and it is regularly cited when homeowners and associations dispute rooftop solar. For associations, the decision does not abolish architectural review of solar devices — associations may still adopt reasonable aesthetic standards — but it warns that guidelines that impose disproportionate cost, defeat the device’s purpose, or lack a workable compliant path risk being struck down as an effective prohibition. For homeowners, it confirms a statutory defense to enforcement actions and a potential basis to install solar even over an ARC’s objection. The case also illustrates that prevailing parties in these contract-based disputes may recover attorneys’ fees under A.R.S. § 12-341.01, raising the stakes of enforcement litigation for both sides.

Video overview of the ruling

An AI-generated video overview of Garden Lakes Community Association, Inc. v. Madigan (204 Ariz. 238, 62 P.3d 983 (App. 2003)). HOA solar restrictions are void if they effectively prohibit solar-energy device installation. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Garden Lakes Community Association, Inc. v. Madigan. Generated from the case filings; verify against the linked ruling below.

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This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

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The takeaway

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What happened

Heritage Heights Home Owners Association was created by the developer of a residential subdivision in 1970. The development plan made every resident an automatic member of the Association, and membership rights, privileges, and land-use restrictions were embodied as restrictive covenants imposed on every conveyance of a lot in the subdivision.

From 1970 through 1972, while lots were still being sold, the Association remained under the developer’s control and generally did not pursue violations of the deed restrictions, which were usually minor. In 1972 the individual homeowners took control of the Association and began a program of enforcement aimed at eliminating existing violations and preventing new ones.

As part of that program, the Association sent newsletters in March, April, and July of 1973 reminding residents of the restrictions, and it addressed existing violations through negotiation and, where necessary, litigation. The parties stipulated that the Association granted permanent variances for fences that substantially met the purpose of the restrictions (such as brick-and-masonry or wrought-iron-and-block fences) and that, for non-conforming wood fences built before enforcement began, its usual policy was to allow a five-year period to remove them.

In October 1973, after the three newsletters had gone out, Fred Esser began constructing a wooden “grapestake” fence. On October 15, 1973, a member of the Board of Directors saw the construction, told Esser the fence would violate the deed restrictions, and asked him to stop. Esser refused and completed the fence.

The Association sued for an injunction. After preliminary proceedings — including an order requiring the Association to join additional defendants and a later extension of time to do so — the case was tried on stipulated facts. The trial court ordered the Association to grant Esser a five-year variance to remove the fence within 30 days or face dismissal of the suit with prejudice, and it denied the Association any costs or attorneys’ fees.

On appeal, the Arizona Court of Appeals reversed both rulings. It held there was no record support for the five-year postponement and that Esser, who built with actual knowledge of the violation, was reasonably distinguished from good-faith owners; once the restriction was valid, no equity justified delaying removal. It also held that the declaration’s express fee provision contractually required an award of fees and costs to the prevailing Association, including fees on appeal, and it rejected Esser’s Rule 6(b) jurisdictional argument. The court remanded for entry of an injunction ordering immediate removal of the fence and for assessment of costs and attorneys’ fees.

For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable “grace periods” are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis. The case is also frequently cited for the enforceability of a declaration’s attorneys’-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party’s fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association’s litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.

Video overview of the ruling

An AI-generated video overview of Heritage Heights Home Owners Ass’n v. Esser (115 Ariz. 330, 565 P.2d 207 (App. 1977)). A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Heritage Heights Home Owners Ass’n v. Esser. Generated from the case filings; verify against the linked ruling below.

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This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

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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.

Video overview of the ruling

An AI-generated video overview of Flying Diamond Airpark, LLC v. Meienberg (215 Ariz. 44, 156 P.3d 1149 (App. 2007)). Affirming a mandatory injunction, the Court of Appeals held that a property owner who has actual or constructive… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Flying Diamond Airpark, LLC v. Meienberg. Generated from the case filings; verify against the linked ruling below.

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Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

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The rule in one sentence

Case Participants

What happened and why it matters

McDowell Mountain Ranch Community Association, an Arizona nonprofit homeowners association in Scottsdale, sued homeowner James F. Simons in January 2004 for injunctive relief after he began a construction project at the rear of his home without the architectural approval his community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) required. Simons did not answer the complaint or appear at the injunction hearings; the trial court entered a permanent injunction, and the association pursued contempt proceedings until Simons began moving toward compliance. The association then sought its attorneys’ fees under CC&R Article XV, Section 15.14, which obligated an offending owner to pay “all attorney fees and court costs incurred” by the association in enforcing the CC&Rs, and it requested $8,000 in fees plus costs. Without holding the hearing Simons had asked for, the trial court crossed out the requested figure and awarded only $4,000, giving no explanation. On appeal, Division One held that CC&Rs are a contract and that a court generally must enforce a contractual fee provision, reducing the amount only where the fees are clearly or “obviously” excessive—a showing the objecting owner bears the burden to make. Finding no record support for the 50% reduction, the court vacated the fee award and remanded. Judge Orozco dissented.

The Court of Appeals began from the settled principle that a community’s CC&Rs “constitute a contract between the subdivision’s property owners as a whole and individual lot owners” (Ahwatukee Custom Estates Mgmt. Ass’n v. Turner). It distinguished contractual fee provisions from the discretionary fee statute, A.R.S. § 12-341.01(A): unlike statutory fees, a court “lacks discretion to refuse to award fees under a contractual provision” (Chase Bank of Ariz. v. Acosta), and contracts for the payment of attorneys’ fees are enforced according to their terms (Heritage Heights Home Owners Ass’n v. Esser). In Heritage Heights, the court had held that a homeowner became contractually bound to a deed provision requiring the offending owner to pay all attorneys’ fees and costs the enforcing party incurred, and that recovery of all such fees, including on appeal, had to be granted.

The court then recognized a limit drawn from Elson Development Co. v. Arizona Savings & Loan Ass’n: a contractual fee provision is “binding only to the extent that it is reasonable,” but “where the services have been rendered, and the amount stipulated is not obviously excessive, the stipulation as to the amount should govern.” Reading Section 15.14 as closer to the “all fees” language of Heritage Heights than to the fixed percentage in Elson, the court held that the association was entitled to all of its fees except those that are obviously or clearly excessive. Surveying decisions from other jurisdictions, it adopted the rule that fees fixed by a fee-shifting contract are presumptively reasonable and that the party challenging them bears the burden of proving excessiveness. Because the association had submitted two fee applications satisfying Schweiger v. China Doll Restaurant, it made a prima facie showing, and the burden shifted to Simons to demonstrate that the requested fees were clearly excessive.

Applying those rules, the court found the trial court had erred. By cutting the request in half without explanation—and without holding the hearing Simons requested—the trial court appeared to have placed the burden of proving reasonableness on the association and to have exercised the broad discretion that applies to statutory fee awards under A.R.S. § 12-341.01 and § 12-2030. That discretion is more narrowly circumscribed when the parties have contractually agreed that the prevailing party recovers all of its fees. The record did not support a determination that 50% of the association’s fees were clearly excessive, so the award was vacated. On remand, the trial court may hold a hearing to consider any evidence Simons offers and then award all fees properly incurred except those it expressly finds clearly excessive (noting that a $200 charge for a demand letter about an unrelated recreational-vehicle violation not pleaded in the complaint should be subtracted). The court also awarded the association its fees and costs on appeal under the CC&Rs and A.R.S. § 12-342, upon compliance with Ariz. R. Civ. App. P. 21.

For Arizona homeowners associations and the owners they regulate, this published opinion clarifies how much control a trial court has over attorneys’ fees when the governing documents contain an “all fees” enforcement clause. The court treats such CC&R provisions as an enforceable contract: if the association prevails and documents its fees properly, it is presumptively entitled to the full amount, and the court may not simply trim the request as it might under the discretionary fee statute. The practical effect is that the burden shifts to the objecting owner, who must come forward with evidence that specific fees are clearly or obviously excessive rather than relying on the court to police reasonableness on its own.

At the same time, the decision is not a blank check for associations. Fees must still be documented in a proper China Doll application, work unrelated to the pleaded violations can be excluded (as with the $200 recreational-vehicle demand letter here), and an owner who requests a hearing on excessiveness is generally entitled to be heard before the court rules. The opinion also drew a dissent from Judge Orozco, who read Heritage Heights and Elson to preserve the trial court’s duty to assess reasonableness and who would have affirmed the 50% reduction as an implicit finding that the fees were excessive—illustrating that the scope of judicial review over contractual fee awards remained genuinely contested.

Video overview of the case record

An AI-generated video overview of McDowell Mountain Ranch Community Association, Inc. v. James F. Simons (216 Ariz. 266, 165 P.3d 667 (App. 2007)). Mandatory CC&R fee clauses must be enforced according to their terms after covenant litigation. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in McDowell Mountain Ranch Community Association, Inc. v. James F. Simons. Generated from the case filings; verify against the linked case records below.

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This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

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The rule in one sentence

Case Participants

What happened and why it matters

Homeowner Robert Jashinsky sued his homeowners’ association, Dorada Estates Community Association, Inc., after its Design Review Committee (DRC) repeatedly denied his proposal to build an 879-square-foot backyard casita with an attached pergola. The community’s recorded Declaration gave the DRC “sole and absolute discretion” over design proposals, but internal board emails suggested the committee was searching for a reason to deny the project and ultimately relied on Design Guidelines adopted after Jashinsky’s submission. A three-day Maricopa County jury trial produced a $52,740 damages award for breach of the covenant of good faith and fair dealing and breach of the association’s duty to act reasonably, and the superior court separately granted equitable and declaratory relief ordering the association to permit the construction. On appeal, Division One affirmed. It held that the homeowner’s testimony about estimated building costs was admissible (not hearsay under State v. Printz); that the court lacked jurisdiction to review the sufficiency of the evidence because the association never moved for a new trial or renewed judgment as a matter of law (A.R.S. section 12-2102(C)); that whether the HOA acted reasonably was a fact question for the jury; that the failure to plead injunctive relief was cured by raising the issue in the joint pretrial statement; and that the equitable remedy was within the trial court’s discretion. This is an unpublished memorandum decision and is not precedential under Ariz. R. Sup. Ct. 111(c).

The Court of Appeals addressed five arguments. First, on the evidentiary challenge, the court reviewed for abuse of discretion and held that Jashinsky’s testimony about the casita’s estimated $200-per-square-foot building cost was not inadmissible hearsay. Applying State v. Printz, 125 Ariz. 300 (1980), the court explained that knowledge of value does not necessarily rest on hearsay; when a witness acquires first-hand knowledge of value through multiple negotiations or consultations rather than a single out-of-court assertion offered for its truth, the resulting estimate is admissible. Because Jashinsky derived his estimate from consultations with an architect and a contractor, the superior court did not abuse its discretion in overruling the hearsay objection.

Second, the court held it lacked jurisdiction to review the sufficiency of the evidence supporting the damages award. Under A.R.S. section 12-2102(C) and Marquette Venture Partners II, L.P. v. Leonesio, an appellant who made a Rule 50(a) motion at the close of evidence must move for a new trial or for renewed judgment as a matter of law to preserve a sufficiency challenge on appeal. Because Dorada Estates did neither, appellate jurisdiction over that issue was absent.

Third, and most significant for HOA law, the court held that whether the association acted reasonably was a factual question reserved for the jury. Even where governing documents afford broad discretion, that discretion is constrained by duties the association owes its members: the implied covenant of good faith and fair dealing (Restatement (Second) of Contracts section 205; Restatement (Third) of Property (Servitudes) section 4.1) and the duty under Restatement (Third) of Property (Servitudes) section 6.13(1)(b), (c) to treat members fairly and act reasonably in exercising discretionary powers, including design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195 (App. 2007), and whether an association breached those duties is a question of fact (Maleki; Est. of Reinen). By awarding damages, the jury implicitly found Dorada Estates breached both duties, and the record supported that finding: the jury could have concluded the DRC gave only pretextual reasons and denied the revised request based on Design Guidelines not in effect when Jashinsky submitted it.

Fourth, the court rejected the argument that Jashinsky’s failure to plead injunctive relief barred his equitable recovery. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint; Jashinsky’s estoppel questions in the joint pretrial statement asked for essentially the relief he obtained. Fifth, the court held the equitable remedy was not an abuse of discretion. Whether to decline enforcement of a covenant turns on equitable considerations such as relative hardship, misconduct, the public interest, and the adequacy of other remedies (Swain; Ahwatukee; Loiselle). The court could weigh the association’s misconduct and the inadequacy of damages, because Jashinsky’s ultimate goal was permission to build, not money. The declaratory and equitable-estoppel judgment ordering the association to allow the construction was therefore affirmed, and the court awarded Jashinsky his appellate attorneys’ fees and costs under the Declaration and A.R.S. section 12-341.

This decision is a clear application of the principle that an HOA’s architectural-review discretion, even when the governing documents describe it as “sole and absolute,” is not unlimited. Division One reaffirmed that Arizona associations owe their members an implied duty of good faith and fair dealing and a duty to act reasonably in exercising design-control powers, and that a jury may find those duties breached where the record shows pretextual denials or reliance on guidelines adopted after a member’s application. For boards and design committees, the practical lesson is that broad discretionary language does not immunize a denial that a factfinder could view as arbitrary, unreasonable, or applied retroactively.

The case also illustrates important procedural and remedial points. On the procedural side, it shows that a Rule 50(a) motion alone does not preserve a sufficiency-of-the-evidence challenge for appeal; a party must also move for a new trial or renewed judgment as a matter of law under A.R.S. section 12-2102(C). On the remedial side, it shows that a court may order an association to permit a proposed modification as equitable relief, and that failing to formally plead injunctive relief is not fatal when the issue is raised in the joint pretrial statement. Although unpublished and non-precedential under Ariz. R. Sup. Ct. 111(c), the decision is a useful illustration of how Arizona courts police the outer limits of HOA architectural discretion.

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Case Dossier

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The rule in one sentence

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What happened and why it matters

Linda Greenberg and her neighbors, John and Eileen McGowan, own adjoining two-acre parcels in Inscription Canyon Ranch, a residential community in Williamson Valley, Arizona, that is governed by longstanding recorded Covenants, Conditions and Restrictions (CC&Rs). After the Inscription Canyon Ranch Architectural Review Committee (ICR ARC) approved the McGowans’ construction of a structure, Greenberg sued the McGowans, the ARC, and the ICR Water Users Association, Inc. The dispute centered on whether the structure was a permitted barn or a prohibited garage and whether the McGowans could keep two donkeys and a foal on their parcel. Greenberg’s operative complaint alleged breach of the CC&Rs and a violation of the homeowners’-association open-meetings statute, A.R.S. § 33-1804, and sought declaratory and injunctive relief and damages. The Yavapai County Superior Court granted summary judgment to all defendants, denied Greenberg’s requests to file a third amended complaint and for reconsideration, and awarded the defendants attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01. On appeal, Division One reviewed the summary judgment de novo and affirmed, finding no genuine issue of material fact, no abuse of discretion in the procedural rulings, and no error in the fee award. The court also awarded the prevailing defendants their reasonable fees and taxable costs on appeal under the CC&Rs. The decision is an unpublished memorandum decision and is not precedential.

Reviewing the grant of summary judgment de novo, the court treated the interpretation of the CC&Rs as a question of law, giving effect to the parties’ intent as shown by the language of the document read in its entirety and the purpose for which the covenants were created (Powell v. Washburn). On the central animal question, the court rejected Greenberg’s premise that Paragraph 10 (“Livestock and Poultry”) created an exclusive list of permitted animals. Paragraph 10 expressly prohibits poultry, fowl, and swine and expressly permits horses and 4-H animal projects, but it never mentions donkeys and contains no catch-all establishing that the listed animals are the only ones allowed. Because the paragraph does not describe a class of prohibited animals, the maxim expressio unius est exclusio alterius did not apply, and reading the covenant to bar donkeys would improperly render its broad references to “livestock,” “animals,” fences, and corrals superfluous. The court reinforced this reading with other provisions: Paragraphs 1, 3, and 4 contemplate barns and outbuildings for animals of all kinds; Paragraph 6 describes a bridle path expressly for horses, mules, and donkeys; and Paragraphs 8, 13, and 19 show the drafters knew how to write comprehensive, all-encompassing prohibitions when they intended one — something Paragraph 10 conspicuously lacks. The court also noted A.R.S. § 3-1201’s definition of “equine” as including donkeys. On the barn-versus-garage issue, Greenberg conceded the structure had to date been used only as a barn (the approved use), so her theory that it might later be used as a garage presented an unripe, hypothetical dispute on which courts do not issue advisory opinions. Her breach-of-contract claim independently failed because she never disclosed a computation or measure of damages as required by Rule 26.1(a)(7); merely stating she would testify at trial could not create a triable issue under Rule 56(e). The court found no abuse of discretion in denying leave to file a third amended complaint filed 20 months into the case after discovery closed and summary judgment was entered — the amendment came late, sought to add long-known parties, would have reopened discovery, and was partly futile — and no error in denying reconsideration that merely repackaged rejected CC&R arguments. Finally, because the CC&Rs entitle the prevailing party to reasonable fees and costs and A.R.S. § 12-341.01 also applies, and because the defendants’ fee affidavits complied with Rule 54(g)(4), the fee award (including to the ARC) was proper.

For Arizona homeowners’ associations and their members, the decision illustrates a recurring principle of covenant interpretation: restrictions on the use of land are construed from the text of the recorded document as a whole, and a list of prohibited or permitted items is not treated as exhaustive unless the drafters said so. Because Paragraph 10 barred only certain animals and lacked any catch-all, the court would not read it to prohibit donkeys, and it pointed to the drafters’ use of sweeping language elsewhere in the CC&Rs as proof they knew how to impose a comprehensive ban when they wanted one. Boards, architectural committees, and owners drafting or enforcing covenants should note that ambiguity and omission tend to be resolved in favor of the free use of property, and that courts will avoid readings that render covenant language superfluous.

The case is also a practical reminder about litigation mechanics in HOA disputes. A breach-of-contract claim, even one tied to CC&Rs, still requires the plaintiff to disclose a computation and measure of damages; a promise to testify at trial will not defeat summary judgment. Motions to amend brought late — after discovery has closed and judgment entered — face steep odds, especially when they add previously known parties and would reopen discovery. And most owners bringing or defending covenant suits should anticipate that the CC&Rs’ prevailing-party fee clause, reinforced by A.R.S. § 12-341.01, can shift substantial attorneys’ fees to the losing side both in the trial court and on appeal. As an unpublished memorandum decision, however, the ruling is not precedential and may be cited only as authorized by rule.

Video overview of the ruling

An AI-generated video overview of Greenberg v. McGowan (1 CA-CV 19-0061). Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court’s reasoning and disposition in Greenberg v. McGowan. Generated from the case filings; verify against the linked ruling below.

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What happened and why it matters

The Arizona Biltmore Estates Association, the homeowners association for a Phoenix-area subdivision, sued lot owners Robert and Nancy Tezak seeking an injunction to remove a large customized bus—weighing more than 29,000 pounds and resembling a commercial bus—that the Tezaks began parking at the back of their residential lot around September 1989. The Association contended the vehicle violated a recorded deed restriction (Article XI, Section 6) barring any “trailer, camper, boat or similar equipment” from being kept on the property without approval from the Architectural Committee. The Maricopa County Superior Court denied the injunction and granted the Tezaks summary judgment, reasoning that the bus was not covered by the covenant, and awarded the Tezaks their attorney’s fees. On appeal, Division One of the Arizona Court of Appeals reversed. The court acknowledged that restrictive covenants are strictly construed in favor of the free use of property, but explained that the paramount principle is the intent of the parties who drafted the declaration, determined by reading the document as a whole. Considering the “or similar equipment” language together with the declaration’s stated purpose of protecting the value and attractiveness of the property and its many other use restrictions, the court concluded the drafters intended to restrict large, bulky, nonstandard conveyances, and the Tezaks’ bus plainly qualified. The court distinguished a Missouri decision the Tezaks relied on, followed a Washington case reaching the same result on similar facts, reversed, and remanded for entry of summary judgment and an injunction for the Association, while awarding the Association its attorney’s fees under A.R.S. § 12-341.01.

Because the interpretation of the deed restrictions presented a question of law, the Court of Appeals reviewed the trial court’s summary judgment de novo and was not bound by its conclusions of law. The court treated the recorded restrictions as a covenant running with the land that forms a contract between the subdivision’s owners as a whole and each individual lot owner (citing Divizio v. Kewin Enterprises). It first observed that Article XI, Section 6 does not categorically ban the listed conveyances; it bars them only when they have not been approved by the Architectural Committee, and no such approval had been sought or given for the Tezaks’ bus.

The Association conceded the bus was neither a trailer, a camper, nor a boat, and argued instead that it was “similar equipment.” The Tezaks invoked the rule of ejusdem generis—that general words following a specific enumeration are limited by that enumeration unless a contrary intent is clearly shown—and contended that trailers and campers share a feature of temporary living arrangements that their bus lacked. They also urged strict construction, under which ambiguities in restrictive covenants are resolved in favor of the free use of property (citing Duffy v. Sunburst Farms East).

The court rejected the “temporary living arrangements” limitation as implausible, noting that boats are expressly enumerated yet usually contain no living quarters, so adopting that limitation would mean boats should never have been listed. It then explained that although strict construction applies in some circumstances, the cardinal principle in construing restrictive covenants is the paramount intent of the parties, ascertained by reading the declaration as a whole, and that a covenant should not be read to defeat its plain and obvious meaning. The declaration’s recitals stated that the covenants existed to enhance and protect the value, desirability, and attractiveness of the property and the quality of life within the Village, and Section 6 was one of eleven provisions restricting uses that would be unsightly or annoying. Read together, these provisions showed the drafters intended to restrict the display of large, bulky, nonstandard conveyances, and the Tezaks’ very large bus unquestionably fell within that class. The court followed Krein v. Smith (Wash. App.), where a motor home was held covered by a similar restriction after construing the document as a whole, and distinguished Lake St. Louis Community Association v. Leidy (Mo. App.), reasoning that the phrase “or similar equipment” is broader and less limiting than the Missouri covenant’s “trailers of every other description,” and that size was not the only characteristic the drafters intended to restrict. Having found the parking covenant violated, the court did not reach the Association’s alternative argument that the bus also breached the covenant against business or non-residential use.

Tezak is an Arizona illustration of how courts reconcile two competing canons that govern deed-restriction disputes: the rule that restrictive covenants are strictly construed in favor of the free use of land, and the overriding principle that the drafters’ intent—gathered from the declaration read as a whole—controls. The decision shows that a catch-all phrase like “or similar equipment,” when read alongside a declaration’s stated purposes and its other use restrictions, can reach vehicles the drafters never specifically named, so long as the vehicle shares the essential character the restriction targets (here, large, bulky, nonstandard conveyances).

For associations and owners alike, the case is a practical reminder that a covenant’s general language is not automatically neutralized by strict construction or by ejusdem generis; the outcome turns on what the governing documents, taken together, were plainly designed to prevent. It also highlights the role of an architectural-approval mechanism—the restriction bars unapproved conveyances rather than banning them outright—and confirms that a prevailing association in a covenant-enforcement action may recover attorney’s fees under A.R.S. § 12-341.01. This summary is educational and neutral; it is not legal advice, and results in other disputes will depend on the specific covenant language and facts.

Video overview of the ruling

An AI-generated video overview of Arizona Biltmore Estates Association v. Tezak (177 Ariz. 447, 868 P.2d 1030 (App. 1993)). Declaration text and purpose controlled whether architectural covenants barred a second-story addition. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Arizona Biltmore Estates Association v. Tezak. Generated from the case filings; verify against the linked ruling below.

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Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

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Key Issues & Findings