Scholten v. Blackhawk Partners ( 1995 )

VOSS, Judge,

dissenting.

Upon learning that the number of homes would more than double under the improper subdivision plat, Plaintiffs immediately moved to enforce the restrictive covenants that prohibited the re-subdividing.

Plaintiffs’ attorneys wrote letters advising Defendants that the restrictive covenants prohibited the re-subdividing. When the letters were ignored, Plaintiffs filed an action seeking declaratory relief and a permanent injunction. A Lis Pendens was filed also. In response, Defendants accelerated their development of the subdivision and now argue for the first time that because of their success, they should not be required to comply with this court’s ruling. Defendants’ brief Motion for Reconsideration—without citation of authority—concludes that “enjoining Defendants from re-subdividing them lots goes too far.” Defendants’ Motion for Reconsideration at 2. I do not agree.

This “fairness” issue was argued unsuccessfully by Defendants in this appeal. We stated in our Opinion that “[a]s a final matter, we note that defendants argue that it would be unfair to delay the effect of an amendment agreed upon by the requisite number of lot owners.” 186 Ariz.Adv.Rep. 62, 64 (App. March 23, 1995). Changing the argument slightly to now say that it costs too much does nothing to change the logic of our decision which concluded that Defendants’ argument “ignores the vested rights of other lot owners who are entitled to rely on the provisions of the Declaration of Restrictions.” Id.

Defendants knew the risks and took their chances. They lost. Neither in their answer to Plaintiffs’ Complaint nor in their Motion for Summary Judgment did Defendants request the court to invoke its equitable powers. Because Defendants do not have a valid equitable argument and because equitable relief was never requested below, I believe it is incorrect for the majority to remand the matter to the trial court to fashion equitable relief.

This court agreed with Plaintiffs that the restrictive covenants are clear and enforceable and that Defendants’ attempts to amend the restrictions were unsuccessful. Plaintiffs are now entitled to the permanent injunction they sought by filing their Complaint on September 18, 1992. Anything less reduces the original Opinion of this court to an advisory decision; one which will bring comfort to those who choose to ignore restrictive covenants. They will know that even if the court concludes the restrictions are enforceable, if their violation is substantial enough, they can still argue that enforcing restrictive covenants is too costly.

I respectfully dissent.