Burke v. Voicestream Wireless Corp
In Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, PP28-29, 87 P.3d 81, 87 (App. 2004), Voicestream intended to build a cellular telephone tower and claimed to have spent $ 100,000 on the project before property owners voiced opposition to the plan. 207 Ariz. 393, PP4-5, 87 P.3d at 83.
Voicestream then constructed the tower in violation of a restriction. Id. P 7.
Voicestream, as Meienberg did in this case, asserted, based on its interpretation of the restriction, that it did not believe the structure violated the restriction. Id. P 12.
The Court held that Voicestream could not "claim hardship because it proceeded with the tower construction knowing of the Restrictions and that neighboring homeowners objected to the tower." Id. P 28.
Defendant Voicestream constructed a fifty-foot cellular phone transmission tower on church property, intending to disguise it as a bell tower. 207 Ariz. at 395, PP 4-5, 87 P.3d at 82-83.
Adjacent lot owners sued Voicestream and the church to compel removal of the cell tower, asserting that a CC&R provision restricting non-residential structures prohibited the tower's construction. Id. at 396, P 12, 87 P.3d at 84.
Because there were several other violations of the non-residential structure restriction, Voicestream argued the restriction had been waived. Id. at 397-98, P 20, 87 P.3d at 85-86.
The adjacent lot owners countered that these examples did not constitute a waiver and, in any event, the non-waiver provision in the CC&Rs precluded such a claim. Id.
The trial court found that the restriction had been waived on numerous occasions and therefore refused to enforce the non-waiver provision, deciding it could not be selectively enforced. Id. at 395, P 8, 87 P.3d at 83.
On appeal, the Court recognized at the outset that absent a non-waiver provision, deed restrictions may be considered abandoned or waived "if frequent violations of those restrictions have been permitted." Id. at 398, P 21, 87 P.3d at 86.
But when CC&Rs contain a non-waiver provision, a restriction remains enforceable, despite prior violations, so long as the violations did not constitute a "complete abandonment" of the CC&Rs. Id. at 399, P 26, 87 P.3d at 87.
Complete abandonment of deed restrictions occurs when "the restrictions imposed upon the use of lots in a subdivision have been so thoroughly disregarded as to result in such a change in the area as to destroy the effectiveness of the restrictions and defeat the purposes for which they were imposed." Id.