TC Packet 10-09-2018 HOA PacketDISTRICT COURT, EAGLE COUNTY, COLORADO
Court Address:
0885 Chambers Road, P.O. Box 597
Eagle, Colorado 81631-0597
Plaintiff: 2001 BEAVER CREEK POINT ASSOCIATION, INC., a Colorado nonprofit corporation, v.
Defendant:
MALAHIDE, LLC, a Colorado limited liability company
Attorneys for Plaintiff: ▲ COURT USE ONLY ▲
Case No: 2018CV30207 Div.: 4
Name:
Address: Phone Number: Fax Number: E-mail: Atty. Reg. #:
SPERBERG & ASSOCIATES PC Robert L. Sperberg
P.O. Box 3420 Avon, Colorado 81620 (970) 845-0200 (970) 845-7339 rsperberg@colomtnlaw.com 15247
MOTION FOR PRELIMINARY INJUNCTION 2001 Beaver Creek Point Association, Inc. (the “Association”), by and through its
attorneys, Sperberg & Associates PC,, respectfully moves the Court for an order granting it a preliminary mandatory injunction against Defendant, Malahide, LLC, and as grounds for its motion, would show the court: 1. Plaintiff is a nonprofit homeowners’ association with its principal place of
business located at 2001 Beaver Creek Point, P. O. Box 3420, Avon, CO 81620. 2. Defendant Malahide, LLC is a Colorado limited liability company with its principal place of business located at 2011 Beaver Creek Point, P. O. Box 2726, Avon, CO 81620.
3. Defendant is the owner of certain real property (the “Property”) known and described as Lot 111C, 2001 Beaver Creek Point, a resubdivision of Lot 111, Block 1, Wildridge Subdivision, Town of Avon, County of Eagle, State of Colorado, also known by street number as 2011 Beaver Creek Point, Avon, CO 81620.
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4. The Property is part of a five-property common interest community known as 2001 Beaver Creek Point formed pursuant to the Colorado Common Interest Ownership Act, C.R.S. §38-33.3-101 et seq. (the “Community”) located in the Wildridge Subdivision
in Avon, Colorado. An aerial photograph of the Community is attached as Exhibit A and
incorporated into this paragraph by reference. 5. The Property was advertised by the developer to be a private cul-de-sac enclave with stunning panoramic views of Beaver Creek, Arrowhead and the high mountain
peaks beyond. A sales brochure containing such language is attached as Exhibit B and
incorporated into this paragraph by reference. 6. The Community is governed by a Declaration of Covenants, Conditions, Restrictions and Easements for 2001 Beaver Creek Point (the “Declaration”) recorded
November 11, 1999, as Reception No. 715572 in the records of the Clerk and Recorder
for Eagle County, Colorado. 7. Pursuant to the Declaration, each owner of a Residential Unit in the Community is a member of the Association and is bound by each provision, covenant, condition,
restriction and easement contained in the Association Documents, which are defined to
include the Declaration, the Articles of Incorporation, the bylaws of the Association and any procedures, rules regulations or policies adopted under such documents by the Association.
8. The Association is governed by an Executive Board (the “Board”), who, on or
about October 23, 2002, adopted Rules and Regulations of 2001 Beaver Creek Point Association, Inc. (the “Rules and Regulations”) pursuant to authority granted to the Board in the Declaration.
9. The Declaration creates an Exterior Maintenance Area defined as the exterior of
any Residence (excluding windowpanes) and the Lot surrounding the Residence and any improvements on such Lot other than a Residence. 10. A Residence is defined in the Declaration as the residence constructed on any
Lot.
11. Pursuant to the Declaration, The Association, acting by and through the Board, is charged with the responsibility to maintain the Exterior Maintenance Area to maintain a uniform appearance and a high standard of maintenance.
12. The Declaration specifically prohibits any Residential Owner from altering the exterior of a Residence unless approved in writing by the Board and directs the Board to exercise its best judgment such that any proposed modification to a Residence conforms to and harmonizes with existing surroundings and structures.
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13. The Rules and Regulations prohibit any structural change or modification to any Residential Unit to be commenced, constructed, permitted or caused by any Owner without the prior consent of the Board.
14. The Property is subject to the Declaration and the Rules and Regulations, and as such requires the written prior consent of the Board before any structural change or modification can be commenced, constructed, permitted or caused by Defendant.
15. In early 2015, prior to its purchase of the Property, Defendant petitioned the
Association to construct a deck addition and install a hot tub in the Exterior Maintenance Area on the south end of its Residential Unit. 16. Defendant’s petition was denied by the Board because, among other things, it:
(a) would be dangerously close to the driveway; (b) would compromise the water
drainage ditch; (c) would compromise snow storage areas; (d) would obstruct existing view corridors of other Residential Units; (e) would negatively affect the balance of the entrance driveway; (f) would create an imbalance of the Residence on the Property; (g) would negatively affect privacy concerns (with a large protruding deck open to view); (h)
would cause the loss of flower beds and trees in the entryway and edge of the driveway;
and (i) would not fit in with aspects of the PUD design. A diagram depicting the Board’s reasons for denial of the petition are attached as Exhibit C and incorporated into this paragraph by reference.
17. Despite the Board’s rejection of Defendant’s petition, Defendant purchased the
Property. 18. At an Association meeting held on May 8, 2018, Defendant again sought permission to construct in the Exterior Maintenance Area a garage with a deck and
solar array above. The request was denied at the meeting by three of the four other
owners, and by the forth other owner at a later time, for the same reasons as Defendant’s initial request for a deck extension. 19. In June of 2018 the Board became aware that Defendant had submitted a Minor
Development Application to the Town of Avon to construct in the Exterior Maintenance
Area a garage or storage structure with a deck and a shed-form solar array on top of it as an addition on the south side of its Residential Unit. 20. Based upon the dimensions contained in Defendant’s application, the Board has
prepared diagrams depicting what the storage structure, deck and a shed-form solar
array would look like if permitted by the Town of Avon to be constructed. Such diagrams are attached to this motion as Exhibits D, E, F and G, and incorporated into this paragraph by reference.
21. The Board’s action in denying Defendant’s petition is supported by the architect
that designed the project for the developer. A letter from the architect, Russell Gies, is attached to this motion as Exhibit H and incorporated into this paragraph by reference.
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22. As provided in Rathke v. McFarlane, 648 P.2d 648, at 653-54 (Colo. 1982), a preliminary injunction is appropriate if a party demonstrates to the court
(a) that there is a reasonable probability of success on the merits; (b) that there is a danger of real, immediate and irreparable injury which may be prevented by injunctive relief;
(c) that there is no plain, speedy and adequate remedy at law; (d) that the granting of a preliminary injunction will not disserve the public interest;
(e) that the balance of equities favors the injunction; and (f) that the injunction will preserve the status quo pending a trial on the merits.
23. Here, all the elements necessary for the proper issuance of a preliminary injunction are present. Based upon the plain meaning of the restrictions contained in the Declaration and the Rules and Regulations, Defendant may not construct a shed, deck and shed-style solar array in the Exterior Maintenance Area without the permission
of the Board. The Board acted within its power and authority in denying Defendant’s
previous petition to construct improvements in the Exterior Maintenance Area, and there is no evidence that the Board acted unreasonably, in bad faith or in an arbitrary or capricious manner, see, C.R.S. §38-33.3-302(3)(b). Regardless, Defendant has moved forward seeking a building permit from the Town of Avon, which currently is reviewing
Defendant’s application. The granting of a building permit and subsequent
commencement of construction will cause real, immediate and irreparable injury to the Association because, among other things, it will result in the loss of mature trees and landscaping in the entryway, destroy established view corridors of other Residences in the Community, invade the privacy of the other Residences and interfere with drainage
and snow storage areas of the Community. There is no plain, speedy or adequate
remedy at law for the loss that would be sustained by the Community. The granting of a preliminary injunction will serve the public interest, preserve the status quo pending a hearing on the merits, and is favored by the balance of equities, because a delay until a hearing on the merits will not damage Defendant or cause any loss to Defendant.
WHEREFORE, The Association prays for the issuance of a mandatory preliminary injunction in favor of the Association and against Defendant prohibiting Defendant from proceeding further with its application to the Town of Avon for a building
permit and/or from constructing any improvement in the Exterior Maintenance Area until
this matter may be heard on the merits.
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DATED this 18th day of September, 2018 Respectfully submitted,
SPERBERG & ASSOCIATES PC
_____________________________________ Robert L. Sperberg, #15247 Attorney’s for Plaintiff