Eldorado Cmty. Improvement Ass'n, Inc. v. Billings
| Decision Date | 28 March 2016 |
| Docket Number | No. 33,850.,33,850. |
| Citation | 374 P.3d 737 |
| Parties | ELDORADO COMMUNITY IMPROVEMENT ASSOCIATION, INC., Plaintiff–Appellee, v. Susan BILLINGS, David Borton, Devra Borton, and Eric Wilson, Defendants–Appellants, and Greg Colello, Rose Winston, and Gershon N. Siegel, Defendants. |
| Court | Court of Appeals of New Mexico |
Cassutt, Hays & Friedman, P.A., John P. Hays, Santa Fe, NM, for Appellee.
VanAmberg, Rogers, Yepa, Abeita, Gomez & Works, LLP, Ronald J. VanAmberg, Santa Fe, NM, for Appellants.
SUTIN
, Judge.
{1} This case pits a subdivision association against several subdivision residents who keep hens as pets. The dispute is over a subdivision covenant that disallows “animals, birds, or poultry” on residents' lots unless kept as “recognized household pets.” The subdivision association sued the defendant hen owners to rid their properties of hens. The defendants (the owners) claimed that their hens met the recognized household pet exception. On motions for summary judgment, the district court agreed with the subdivision association and required the owners to remove their hens from their lots. In this Opinion, we at times refer to “chickens” and to “hens” but we also use “poultry,” because “poultry” appears in Section 11 of the subdivision covenants and because the parties concentrate on using “poultry” in their briefs. We hold that the restrictive covenant does not disallow the owners from keeping hens that are recognized as household pets and that the district court erred in requiring the owners to remove the hens.
{2} Eldorado at Santa Fe Subdivision is a residential development located in Santa Fe County, New Mexico, and was established in 1972 with protective covenants. The 1972 covenants stated that their purpose “is to perpetuate ... the rich qualities peculiar to the pastoral environment for the benefit of all who acquire property within the Eldorado Ranch.” The original 1972 covenants were replaced in 1996 by amended and restated protective covenants (hereinafter, the covenants) following a covenant election in 1995. The covenants state that their purpose, among other purposes, is to provide “an attractive rural setting for residential neighborhoods and home sites” and to encourage “individual expression consistent with the historical traditions of the region.” The plaintiff here, Eldorado Community Improvement Association, Inc. (the association), has many subdivision-related administrative tasks, not the least of which is to enforce violations of the covenants.
{3} At issue in this case is Section 11 of the covenants, which reads:
Household pets. No animals, birds[,] or poultry shall be kept or maintained on any lot, except recognized household pets which may be kept thereon in reasonable numbers as pets for the pleasure and use of the occupants but not for any commercial use or purpose. It is forbidden to permit dogs to run at large in Eldorado. At all times, dogs must be kept, restrained[,] and controlled by their owners in the manner described in the Santa Fe County Animal Control Ordinance. A maximum of two horses may be kept on any lot which has an area in excess of three acres and which has been properly designated, pursuant to these covenants, as a horse area on any recorded subdivision map or by majority vote of the Board of Directors. A stable for such horses may be erected upon such lot.1
No other section in the covenants has any direct bearing on keeping animals, birds, or poultry on residential lots.
{4} Section 11 forbids residential lot owners from keeping poultry on residential lots in the subdivision. At the same time, Section 11 provides an exception that permits poultry as well as animals or birds to be kept on residential lots under certain conditions, namely, as long as the poultry are “recognized household pets ... for the pleasure and use of the occupants [,]” kept on the lot in reasonable numbers, and “not [kept] for any commercial use or purpose.” There exists no issue here as to number of hens or as to commercial use or purpose. Nothing in Section 11 gives free reign to expansive poultry operations and no issue exists as to any such use here.
{5} Both sides filed motions for summary judgment. Neither side argued that genuine issues of material fact existed that would preclude summary judgment. The district court determined that “[t]he terms ‘recognized household pets' are not defined in the covenants and are not clear on their face[,]” in part because “[a] substantial number of homeowners and persons associated with the Eldorado Subdivision have disagreed for years about the meaning of the covenant language in issue.” As to interpreting the critical, ambiguous words, the district court determined that chickens were not recognized household pets and could not be kept or maintained on any lot in the subdivision. The court granted the association's motion and ordered the owners to remove their chickens from their properties. The owners appeal. More facts will appear in the discussion that follows.
{6} Because there exists no genuine issue of material fact, by agreement of the parties and determination by the district court, we are relieved of a burden of concern about the existence of such an issue. “Interpretation of language in a restrictive covenant is a question of law that we review de novo.” Estates at Desert Ridge Trails Homeowners' Ass'n v. Vazquez, 2013–NMCA–051, ¶ 11, 300 P.3d 736
; Heltman v. Catanach, 2010–NMCA–016, ¶ 5, 148 N.M. 67, 229 P.3d 1239.
{7} Because the issues in this case focus on the meaning of certain covenant terms, we begin with definitions. A “bird” is “any of a class ... of warm-blooded vertebrates distinguished by having the body more or less completely covered with feathers and the forelimbs modified as wings.” Merriam–Webster's Collegiate Dictionary 125 (11th ed.2005). A “chicken” is a “common domestic fowl[.]” Id. at 213; Oxford Dictionaries, www.oxforddictionaries. com/us/definition/american_english/chicken (“A domestic fowl kept for its eggs or meat[.]”). A “hen” is “a female chicken[.]” Merriam–Webster's Collegiate Dictionary 580; Oxford Dictionaries, www.oxforddictionaries. com/us/definition/american_english/hen (“A female bird, especially of a domestic fowl.”). A “fowl” is a “bird of any kind[.]” Merriam–Webster's Collegiate Dictionary 495; Oxford Dictionaries, www.oxforddictionaries. com/us/definition/american_english/fowl (“A gallinaceous bird kept chiefly for its eggs and flesh[.]”). Chickens are poultry. See Merriam–Webster's Collegiate Dictionary 972. “Poultry” are “domesticated birds kept for eggs or meat[.]” Id.; Oxford Dictionaries, www.oxforddictionaries. com/us/definition/american_english/poultry (defining “poultry” as “[d]omestic fowl, such as chickens, turkeys, ducks, and geese.”). Finally, “a domesticated animal kept for pleasure rather than utility” and “kept for companionship or pleasure” is a pet. Merriam–Webster's Collegiate Dictionary 926; Oxford Dictionaries, www.oxforddictionaries.com/us/definition/american_english/pet (defining “pet” as “[a] domestic or tamed animal kept for companionship or pleasure”). The parties do not spar much over what a “pet” is. The definitions do not state that pets cannot also have utility. For purposes here, hens kept as a source of eggs are poultry, and hens also kept as a source of companionship or pleasure can be a pet. It is manifestly unclear, however, what “recognized” means.
{8} We commend the district court for favoring the parties with a detailed letter decision that included procedural history, arguments, applicable law, legal analyses, evidence including historical facts, and the court's analyses and interpretations and views about the covenants and the words in Section 11. It is from the court's letter decision that the association primarily hinges its arguments.
{9} The district court cited our Supreme Court's four unchanged rules for interpreting restrictive covenants set out in Hill v. Community of Damien of Molokai, 1996–NMSC–008, ¶ 6, 121 N.M. 353, 911 P.2d 861
. “[I]f the language is unclear or ambiguous, [the appellate courts] will resolve the restrictive covenant in favor of the free enjoyment of the property and against restrictions.” Id. The appellate courts “must interpret the covenant reasonably, but strictly, so as not to create an illogical, unnatural, or strained construction.” Id. We “will not read restrictions on the use and enjoyment of the land into the covenant by implication.” Id. We “must give words in the restrictive covenant their ordinary and intended meaning.”
Id. These rules constitute “our four rules for construing restrictive covenants[.]” Sabatini v. Roybal, 2011–NMCA–086, ¶ 13, 150 N.M. 478, 261 P.3d 1110
. “Failure to apply the rules of construction [of restrictive covenants] is an error of law.” Id. ¶ 7.
{10} Although it explicitly acknowledged the four Hill rules of interpretation, the district court focused its attention on an analysis in Agua Fria Save The Open Space Ass'n v. Rowe, 2011–NMCA–054, 149 N.M. 812, 255 P.3d 390
, in which this Court held that “extrinsic evidence is admissible to explain or clarify, but not to vary or contradict, a restrictive covenant's terms.” Id. ¶ 21. The district court stated that Agua Fria's approach did not obligate the courts to apply the rule of strict construction in resolving a factual dispute regarding the restrictive covenant's meaning.
{11} In the district court, relying on Agua Fria, the association focused on a view that the covenant language in question unambiguously set a community-wide standard as to what is a “recognized household pet”—meaning the standard must “come from the Eldorado community through the [d]emocratic process of amending the [c]ovenants[.]” Although, at the same time, the association broadened this standard to a “broader society” standard and offered testimony about the pet chicken trend nationally. The association alternatively...
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