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Hawk v. PC Village Association, Inc.

Court of Appeals of Arizona, First Division, Department A

September 3, 2013

ROBERT R. HAWK and CECILIA J. HAWK, husband and wife, Plaintiffs/Counter Defendants/ Appellees,
v.
PC VILLAGE ASSOCIATION, INC., an Arizona corporation, Defendant/Counter Plaintiff/ Appellant.

Appeal from the Superior Court in Coconino County Cause No. S0300CV201100775 The Honorable Mark R. Moran, Judge.

Tevis Reich Flagstaff Attorney for Appellees.

Jones, Skelton & Hochuli, P.L.C. Phoenix by J. Gary Linder Lori L. Voepel Jonathan Paul Barnes, Jr. Attorneys for Appellant.

Mack, Watson & Stratman, P.L.C. Phoenix by Richard V. Mack And Arizona Association of Realtors Phoenix by Scott M. Drucker, General Counsel K. Michelle Lind Amicus Curiae.

OPINION

PETER B. SWANN, Judge.

¶1 In 2009, the legislature passed A.R.S. § 33-441, which renders unenforceable any covenant, restriction or condition prohibiting the posting of "for sale" signs. We hold that the superior court properly applied the statute to invalidate a restriction recorded before 2009, and that the court's order did not violate the contract clauses of the United States or Arizona constitutions. We also affirm the court's award of attorney's fees.

FACTS AND PROCEDURAL HISTORY

¶2 In 2009, the Hawks purchased a lot in Pine Canyon, a Flagstaff master-planned community managed by PC Village Association, Inc. The Hawks' lot, along with the other properties located in the Pine Canyon community, is subject to the community's covenants, conditions and restrictions ("CC&Rs"), originally recorded in 2002 and amended in 2004.

¶3 Section 12.3 of the CC&Rs prohibits property owners from displaying "for sale" signs on their lots:

No sign of any kind shall be Visible from Neighboring Property without the approval of the Village Association or the Design Review Committee, except: (a) signs used by Developer or any Related Party in connection with the development or sale of Lots, Tracts, or Condominium Property of the Property; (b) signs required by legal proceedings, or the prohibition of which is precluded by law; or (c) signs required for traffic control and regulation of Common Areas. No "For Sale" or "For Rent" sign may be posted on any Lot, Tract, or Condominium Property.

(Emphasis added.) Section 12.18 of the CC&Rs authorizes the Association and its agents to enter any lot where there is a violation of the CC&Rs and correct the violation at the owner's expense.

¶4 In 2011, on two consecutive days, the Hawks posted a "for sale" sign on their lot. On each occasion, the Association caused the sign to be removed. The Hawks thereafter filed an action for declaratory and injunctive relief, asking that Section 12.3 of the CC&Rs be declared unenforceable as superseded by statute, and that the Association be enjoined from removing statutorily compliant "for sale" signs from the property.

¶5 The parties filed cross-motions for summary judgment. The Hawks argued that Section 12.3 of the CC&Rs was superseded by A.R.S. ยงยง 33-1808(F) and 33-441, and the Association argued that those statutes were facially inapplicable and unconstitutional. The superior court granted summary judgment for the Hawks under both statutes, and enjoined the Association from removing industry-standard "for sale" signs from the Hawks' ...


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