INTRODUCTION

Orten & Hindman recently obtained a successful outcome on behalf of an association who sought to enjoin an owner from parking a nine foot camper on her lot. The case, which lasted over two years, offers insights into a judge's perspective and guidance to associations in pursuing covenant enforcement disputes. 
 
BACKGROUND

The recorded covenants for a single family community in Arapahoe County provided that all campers must be stored in the garage or in an “adequately screened” area. The board defined this term in its rules to mean “not visible from neighboring properties, roadways, or bridle paths.” The owner purchased a 9 foot tall camper that would not fit in her garage or detached garage, so instead she stored it on the side of the garage and planted several evergreen trees in an attempt to screen the camper from view.

LAWSUIT

After months of attempted negotiations, the association brought suit seeking a court order requiring the removal of the camper. The owner countersued claiming she was being discriminated against because she was a single, white mother, and that the association was being arbitrary and capricious in not only its enforcement with respect to her camper but as to her prior request for approval of her detached garage and stable (which were approved).
 
In order to prove her counterclaims of discrimination and arbitrary and capricious action, the owner presented the court with 30 witnesses and 282 exhibits. She had photographs of any alleged violation she could find, as well as all documents of the entire architectural review process for her stable/garage improvement, and documents associated with architectural review requests over the past 12 years. 

COURT DECISION

 After six days of trial spread over twelve months, the Court held that the board of directors' definition of "adequately screened" to mean not visible from neighboring properties, roadways or bridle paths was reasonable and solely within the discretion of the board. The Court found that the camper was visible from the roads, bridle paths and neighboring properties, despite the attempt to screen the camper from view with evergreen trees. The Court also found that the procedures adopted by the architectural control committee were neither arbitrary nor capricious even though they had changed and were in a state of flux when the owner applied for permission to construct her garage and stable. The Court expressly acknowledged that the committee's attempts to (1) resolve matters informally first; (2) standardize and document requests, process, responses for architectural review (3) consult with affected owners and experts; and (4) continuously looking to improve the process, were what every committee should do. The Court also ordered the owner to pay the association over $36,000 in legal fees it incurred.
 
PRACTICE POINTERS

What can your association learn from this case?
 
1. Adopt definitions of ambiguous terms that are reasonable – refer to the dictionary if possible.
2. Apply the same definition to everyone.
3. Try to resolve disputes informally before filing a lawsuit.
4. Document, document, document. Every request, meeting, or conversation related to architectural review or covenant enforcement should be documented in writing and kept as a record of the association.
5. Don't be afraid to change your process or make improvements for fear of treating people differently. Just be able to explain why you changed.