Posted by: Patricia Salkin | October 6, 2019

UT Appeals Court Finds Zoning Violation Alone was Insufficient to Entitle Property Owners Association to a Permanent Injunction

This post was authored by Matthew Loeser, Esq.

Timber Lakes Property Owners Association brought suit against Phillip E. Cowan, Gail M. Cowan, and The Cowan Family Trust seeking injunctive relief requiring the Cowans to remove a detached garage they constructed on their property. The district court granted summary judgment in favor of the Association, holding that the garage violated the applicable Declaration of Protective Covenants, Conditions, Restrictions and Management Policies for Timber Lakes Estates (the “CC&Rs”). Notwithstanding its finding that a violation had occurred, the court declined to grant the permanent injunction the Association sought, as the Association “had not shown that an award of monetary damages would be insufficient to remedy the purported harm” and had therefore failed to establish irreparable harm, which was a prerequisite of injunctive relief.

On appeal, the Association argued that it “has contemplated, and does contemplate, installation of a road along the Plat 12 Right-of-Way.” However, apart from this speculative future project, which construction the garage would inhibit, the Association failed to assert any other form of harm caused by the garage. As such, the court found that the Association only demonstrated a theoretical future harm, rather than an existing harm that was irreparable.

The court further found that even had the Association had definite plans to construct a road along the Plat 12 Right-of-Way, it failed to demonstrate that the district court abused its discretion when it determined that “the Association had not shown that an award of monetary damages would be insufficient to remedy the purported harm” caused by the Cowans’ garage. Despite the Association’s assertion that the use of engineers, contractors, and other experts to find a satisfactory alternate to a road built within the Plat 12 Right-of-Way and to calculate the cost of such an endeavor could not be estimated by “any accurate standard,” the court held that the district court did not abuse its discretion in concluding that the Association did not suffer an irreparable injury from the location of the Cowans’ garage.

Lastly, the Association challenged the district court’s holding that the Maintenance Agreement entered into by the Association and the County did not “delegate authority to the Association to enforce a violation of the County Setback Ordinance.” Here, the Maintenance Agreement explicitly granted the County the right to “bring and prosecute a suit in the name of the Association” in order to enforce the CC&Rs that the County would otherwise not be entitled to enforce. Although this did not rise to the level of an assignment, the Maintenance Agreement did not provide a reciprocal right to the Association to enforce county ordinances either in the name of the County or as an assignee of the County. Accordingly, the court rejected the contention that the County intended to assign its right to enforce zoning ordinances to the Association.

Timber Lakes Property Owners Association v Cowan, 2019 WL 4678133 (UT App. 9/26/2019)


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