Arizona Court of Appeals Division Two Holds That Where A Party Knows Prior To Actually Violating A Restrictive Covenant That The Party’s Proposed Structure Will Violate the Restriction, Then Completes Construction Of The Structure, The Party May Not Claim The Benefit Of “Relative Hardships”.

Flying Diamond is an association of property owners in a development in which Jeffrey Meienberg owns property. Certain CC&Rs apply to Meienberg’s property, one of which prohibits structures of in excess of 22 feet. In 2004, Meienberg began constructing a hangar on his property. The hanger is equipped with three roof vents. The hangar’s height, including the vents, violates the height restriction by between eight and ten inches.

After Meienberg ordered the parts, but before construction began, he showed the plans for the hangar to Larry Bramhall, another association member who served on the “architectural advisory committee” for the association. The plans Meienberg showed Bramhall did not include a measurement of the total height of the hanger and did not include the dimensions of the roof vents. Based on this information, Bramhall determined that the hangar would not exceed the 22-foot height restriction, but ended his conversation with Meienberg by reminding him of the 22-foot restriction. After construction began, Bramhall saw the roof vents lying on the ground and informed Meienberg that with the vents the hangar would exceed the restriction. Meienberg took the position that vents should not be included in the height calculation and continued construction.

Flying Diamond sought an injunction requiring Meienberg to bring the hangar into compliance with the height restriction. The trial court granted the injunction, finding that the hangar violated the height restriction, and finding that because Meienberg knowingly violated the restriction, he could not claim hardship as a defense. Division Two affirmed.

The Court began its analysis by noting that equitable principles govern the enforcement of restrictive covenants by injunction and that such equitable considerations include the relative hardships to the parties. However, the court noted that “equitable discretion should not be used to protect the intentional wrongdoer.” The Court rejected Meienberg’s argument that his violation of the height restriction was unintentional “at the critical time that he ordered his hanger and reviewed the plans with Bramhall.” Rather, the Court found that Arizona case law addressing whether a party who violates a restriction can claim hardship as an equitable defense does not view as “crucial” whether the “property owner intended to violate the restriction at the outset.” Here, Meienberg ordered the parts while arguably not knowing of the restriction, but he “continued construction” knowing of the restriction, i.e. after Bramhall informed him that, including the vents, the hangar would be over 22 feet in height.

Judge Howard, Presiding Judge, authored the opinion, with Judge Pelander, Chief Judge, and Judge Vasquez concurring.