Humphrey v. Swc

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PATRICIA HUMPHREY, et al., Plaintiffs/Appellees,

v.

SCOTTSDALE WORSHIP CENTER INC, Defendant/Appellant.

No. 1 CA-CV 20-0336
FILED 3-18-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-006651
The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL

Provident Law, Scottsdale
By Erik W. Stanley, Christopher J. Charles
Counsel for Defendant/Appellant

Timothy A. La Sota PLC, Phoenix
Counsel for Plaintiffs/Appellees
 HUMPHREY, et al. v. SWC
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Scottsdale Worship Center (“SWC”) appeals the superior
court’s grant of summary judgment in favor of Patricia Humphrey and
James F. Burke (collectively “Appellees”), enforcing a restrictive covenant
against SWC. “[E]nforcing the intent of the parties is the ‘cardinal principle’
in interpreting restrictive covenants.” Powell v. Washburn, 211 Ariz. 553, 557,
¶ 14 (2006) (citation omitted). The undisputed intent of the restrictive
covenant between SWC and Appellees is to preserve the residential
character of the subdivision. For the reasons stated below, we affirm the
judgment.

BACKGROUND

¶2 Appellees own homes in Desert Estates Unit Four, a
residential subdivision in Phoenix. Humphrey owns Lot 8 and Burke owns
Lot 22. SWC is a non-profit corporation that owns Lots 6, 17, 18, and 19 and
operates a church on Lots 17–19. There is a residence on Lot 6 which is
directly across the street from Lots 17–19. SWC contends that since it
acquired Lot 6 in 1999, it has continuously used the residence for various
church-related group activities and periodically as housing for church staff.
Appellees counter, claiming SWC stopped using the residence on Lot 6 for
group activities in 2007 because of a settlement of prior litigation with
Humphrey.

¶3 The Desert Estates Unit 4 subdivision is subject to a
Declaration of Restrictions (“Restrictions”) and is zoned by the City of
Phoenix as a residential neighborhood. SWC has operated a school for
autistic children in the main worship center on Lots 17-19 for several years.
SWC wanted to move the school across the street into the residence on Lot
6, and it applied to the City of Phoenix for a use permit. Ultimately, the
Board of Adjustment granted the use permit as a reasonable
accommodation under the Americans with Disabilities Act. Appellees
opposed the application.

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¶4 Appellees brought this action seeking a declaration that the
proposed school violated the Restrictions and an order enjoining SWC from
operating a school on Lot 6. The parties filed cross motions for summary
judgment. The superior court found that the proposed use of Lot 6 as a
school violated § 4 of the Restrictions which prohibits any structure other
than a “detached single-family dwelling[.]” The court also found the
adverse possession statute of limitations did not bar Appellees’ claim
because SWC’s use of Lot 6 for religious group activities was not the same
as operating a school.1 SWC timely appealed from the judgment and award
of attorneys’ fees to Appellees.

DISCUSSION

¶5 In reviewing the superior court’s rulings on cross motions for
summary judgment, we review questions of law de novo but view the facts
in the light most favorable to the party against whom judgment was
entered. Nelson v. Phoenix Resort Corp., 181 Ariz. 188, 191 (App. 1994).
Summary judgment is appropriate if there are no genuine issues of material
fact and one party is entitled to judgment as a matter of law. See Ariz. R.
Civ. P. 56(a).

I. The Restrictions Prohibit the Operation of a School on Lot 6.

¶6 SWC argues that the Restrictions do not prohibit it from
operating a school on Lot 6 because the structure will remain a “detached
single-family dwelling” and, therefore, it does not violate § 4 regardless of
its use. Appellees argue, and the superior court agreed, that using the
structure as a school violates § 4, which restricts anything other than single
family dwellings, garages, or guest houses.

¶7 This appeal requires us to interpret the Restrictions, which
like covenants, conditions, and restrictions (“CC&Rs”), represent “a
contract between the subdivision’s property owners as a whole and
individual lot owners.” Ahwatukee Custom Estates Mgmt. Ass’n v. Turner, 196
Ariz. 631, 634, ¶ 5 (App. 2000). We interpret CC&Rs to give effect to the
parties’ intention “as determined from the language of the document in its
entirety and the purpose for which the [CC&Rs] were created.” Powell, 211
Ariz. at 554, ¶ 1 (adopting Restatement (Third) of Property: Servitudes
(2000) (“Restatement (Third)”) § 4.1(1)). If the terms are clear and
unambiguous, we give effect to them as written. Town of Marana v. Pima

1 The court also rejected SWC’s other arguments, but those are not
relevant to this appeal.

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County, 230 Ariz. 142, 147, ¶ 21 (App. 2012). We review the superior court’s
interpretation of CC&Rs de novo. Swain v. Bixby Vill. Golf Course Inc., 247
Ariz. 405, 410, ¶ 19 (App. 2019).

¶8 In addressing whether the Restrictions allow SWC to operate
a school on Lot 6, the parties and the superior court relied on § 4, which
states:

No structure shall be erected, altered, placed or permitted to
remain on any of said lots other than one detached single-
family dwelling not to exceed one story in height and a
private garage not to exceed one story in height for not more
than Three (3) cars, and a guest or servant quarters for the sole
use of actual non-paying guests or actual servants of the
occupants of the main residential building.

We found this very Restriction unambiguous in Burke v. Voicestream Wireless
Corp. II, 207 Ariz. 393, 397, ¶ 18 (App. 2004), abrogated on other grounds in
Powell, 211 Ariz. at 556–57, ¶¶ 12–15. Burke held that § 4 precluded
construction of a 50-foot cell tower on Lot 17, finding that although the
tower was a “structure,” it was not a single-family home, garage, or guest
house. Burke, 207 Ariz. at 397, ¶ 18. In Burke, the court did not address the
relevant inquiry here—whether operation of a school in a building that was
formerly a residence violates § 4.

¶9 The superior court found that using the residence as a school
meant it was no longer a dwelling. The court based its ruling on the
dictionary definition of the term “dwelling,” which is “a shelter (such as a
house) in which people live[.]” See Merriam-Webster, https:
//www.merriam-webster.com/dictionary/dwelling (last visited March 3,
2021).

¶10 SWC contends this interpretation is erroneous because § 4
only restricts the type of structures allowed and not the subsequent use of
that structure. Although § 4 does not contain an express use restriction, the
term “dwelling” implies a residential use restriction. This interpretation is
consistent with the Restrictions’ stated intent—to preserve the “choice
residential” character of the subdivision. SWC does not challenge that this
is the overall intention of the Restrictions. This intention is illustrated in
§ 10 of the Restrictions, which sets forth specific use restrictions as follows:

No store, office or other place of business of any kind and no
hospital, sanitarium, or other place for the care or treatment
of the sick or disabled, physically or mentally, not any theater,

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saloon, or other place of entertainment shall ever be erected
or permitted upon any of said lots, or any part thereof, and no
business of any kind or character whatsoever shall be
conducted in or from any residence on said lots.

Perhaps the parties did not cite § 10 because it contains unenforceable
language prohibiting facilities for the care or treatment of disabled persons.
See Westwood Homeowners Ass’n v. Tenhoff, 155 Ariz. 229, 236–37 (App. 1987).
However, the remainder of § 10 is enforceable because it is severable. Mousa
v. Saba, 222 Ariz. 581, 587, ¶ 25 (App. 2009) (remainder of a contract
containing a void provision is enforceable if the contract clearly shows the
parties intended it to be severable). Here, the Restrictions contain an explicit
savings clause: “[i]nvalidation of any one of these covenants or restrictions
by judgment or court order shall in nowise affect any of the other
provisions, which shall remain in full force and effect.” Given that the
unenforceable language is severable, the remaining restrictions contained
in § 10 prohibit business use of any kind and preclude using the property
as a school.

¶11 Although § 4 does not contain an express use restriction, it
does contain an implicit residential use restriction by virtue of the “single-
family dwelling” limitation. In that sense, it is similar to Ginsberg v. Yeshiva
of Far Rockaway, 358 N.Y.S. 2d 477, 479 (N.Y. App. Div. 1974), which held
that a proposed school violated a CC&R which provided that no lots “shall
be used except for one private residence.” See also Exch. Nat’l Bank of Chicago
v. City of Des Plaines, 336 N.E. 2d 8, 11, 15–16 (Ill. App. Ct. 1975) (restriction
that buildings shall be “for residence purposes only” remained valid and
precluded rezoning for a retail building despite a prior agreement to allow
a church and church buildings in subdivision). When reading § 4 and using
§ 10 to inform, it is clear the intention of these Restrictions is to maintain the
residential character of the subdivision. We affirm the judgment enjoining
SWC from operating a school on Lot 6.

II. SWC’s Prior Use of Lot 6 For Church-Related Activities Does Not
Preclude Enforcement of the Restrictions.

¶12 SWC argues that Appellees’ attempt to enforce the
Restrictions is barred by the adverse possession statute of limitations. A.R.S.
§ 12-526(A). SWC claims it has used the residence on Lot 6 for religious
instruction, church-related activities for seniors and youth groups, and as
housing for church staff. SWC asserts its prior use satisfies the adverse
possession requirements because it was “actual, open and notorious,
hostile, under a claim of right and was exclusive and continuous” for more

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than ten years. Lewis v. Pleasant Country, Ltd., 173 Ariz. 186, 189 (App. 1992);
A.R.S. § 12-521(A). Assuming without deciding that SWC can rely on the
doctrine, we conclude that SWC’s prior use does not preclude enforcement
of the Restrictions.

¶13 Even though SWC previously engaged in certain non-
residential uses on the property, it may not now engage in other non-
residential uses without violating the Restrictions. As a matter of law, one
acquiring a prescriptive easement through adverse use “may not exceed the
uses through which they acquired the easement.” Inch v. McPherson, 176
Ariz. 132, 136 (App. 1992); see also Restatement (Third) § 7.7, cmt. b. “The
scope of a prescriptive easement is determined by the use through which it
is acquired . . . . Those using the land of another for the prescriptive period
may acquire the right to continue such use, but do not acquire the right to make
other uses of it.” United States ex rel. Zuni Tribe of N.M. v. Platt, 730 F. Supp.
318, 324 (D. Ariz. 1990) (citing Stamatis v. Johnson, 71 Ariz. 134, 138 (1950))
(emphasis added).

¶14 In Platt, the Zuni Tribe historically used a path across the
landowner’s property for a quadrennial pilgrimage. 730 F. Supp. at 319.
The court held the Tribe was entitled to an easement for that use only and
could not place gates, use water sources, or light fires on the property. Id.
at 324. Similarly, in Inch, the Inchs acquired a prescriptive easement to park
their cars on a three-foot strip of their neighbor’s property based on their
adverse use for that purpose. 176 Ariz. at 135–36. The court held this use
did not, however, permit the Inchs to build a block wall on the disputed
property. Id. at 136.

¶15 SWC argues that its proposed use as a school is
indistinguishable from use for group religious activity and will not change
the physical structure on Lot 6. In determining whether the activities
conducted in the residence are sufficiently similar, we consider the
difference in the physical character and purpose of the use, and the relative
burdens caused by the proposed change in use. See Restatement (First) of
Property § 478 (1944) (factors for determining the extent of prescriptive
easements include physical character, purpose, and relative burden on
servient tenement). “If the change is not in the kind of use, but merely one
of degree imposing no greater burden on the servient estate, the right to use
the easement is not affected.” Gaither v. Gaither, 332 P.2d 436, 438 (Cal. Ct.
App. 1958) (holding the use of a driveway for operation of a trailer park
was a substantial change in the nature of use from the prior use for
residential ingress and egress and farming purposes).

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¶16 SWC has used the residence for “group religious activities”
for up to 30 people. While some of these prior activities involved religious
education, the nature and purpose of a full-time school is functionally
different. For example, children and teachers will be on the property
primarily on weekdays instead of the previously varied times, durations,
and days of use. Moreover, some of the prior activities were consistent with
residential use, such as Bible study and small group gatherings. By contrast,
a school is not consistent with residential use. In fact, a special use permit
is required before a school may operate in a neighborhood zoned for
residential use. See Phoenix Zoning Ordinance § 608(C), (D)(7). In short,
there is a fundamental difference between SWC’s prior use of the residence
for group religious activities and the proposed use as a school. Given this
result, the factual dispute as to whether SWC conducted the church related
group activities at the home on Lot 6 after 2007 is not material.

¶17 We affirm the ruling that SWC did not acquire a prescriptive
easement to operate a school based on its prior use of Lot 6.

¶18 We award Appellees their reasonable attorneys’ fees on
appeal upon compliance with ARCAP 21. See A.R.S. § 12-341.01; Pinetop
Lakes Ass’n v. Hatch, 135 Ariz. 196, 198 (App. 1983) (holding an action to
enforce a restrictive covenant “arises out of contract” for purposes of § 12-
341.01).

CONCLUSION

¶19 We affirm the judgment in favor of Appellees.

AMY M. WOOD • Clerk of the Court
FILED: AA

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