1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ___________

3 Filing Date: March 28, 2016

4 NO. 33,850

5 ELDORADO COMMUNITY IMPROVEMENT

6 ASSOCIATION, INC.,

7 Plaintiff-Appellee,

8 v.

9 SUSAN BILLINGS, DAVID BORTON,

10 DEVRA BORTON, and ERIC WILSON,

11 Defendants-Appellants,

12 and

13 GREG COLELLO, ROSE WINSTON, and

14 GERSHON N. SIEGEL,

15 Defendants.

16 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

17 Mark A. Macaron, District Judge

18 Cassutt, Hays & Friedman, P.A.

19 John P. Hays

20 Santa Fe, NM

21 for Appellee
1 VanAmberg, Rogers, Yepa, Abeita, Gomez & Works, LLP

2 Ronald J. VanAmberg

3 Santa Fe, NM

4 for Appellants
1 OPINION

2 SUTIN, Judge.

3 {1} This case pits a subdivision association against several subdivision residents

4 who keep hens as pets. The dispute is over a subdivision covenant that disallows

5 “animals, birds, or poultry” on residents’ lots unless kept as “recognized household

6 pets.” The subdivision association sued the defendant hen owners to rid their

7 properties of hens. The defendants (the owners) claimed that their hens met the

8 recognized household pet exception. On motions for summary judgment, the district

9 court agreed with the subdivision association and required the ownersto remove their

10 hens fromtheir lots. In this Opinion, we at timesrefer to “chickens” and to “hens” but

11 we also use “poultry,” because “poultry” appears in Section 11 of the subdivision

12 covenants and because the parties concentrate on using “poultry” in their briefs. We

13 hold that the restrictive covenant does not disallow the owners from keeping hens that

14 are recognized as household pets and that the district court erred in requiring the

15 owners to remove the hens.

16 BACKGROUND

17 {2} Eldorado at Santa Fe Subdivision is a residential development located in Santa

18 Fe County, New Mexico, and was established in 1972 with protective covenants. The

19 1972 covenants stated that their purpose “is to perpetuate . . . the rich qualities
23 The pertinent 1972 covenant provision regarding pets reads: “No animals, 1

24 birds[,] or poultry shall be kept or maintained on any lot, except recognized

25 household pets which may be kept thereon in reasonable numbers as pets for pleasure

26 and use of the occupants but not for any commercial use or purpose. Notwithstanding

2

1 peculiar to the pastoral environment for the benefit of all who acquire property within

2 the Eldorado Ranch.” The original 1972 covenants were replaced in 1996 by amended

3 and restated protective covenants (hereinafter, the covenants) following a covenant

4 election in 1995. The covenants state that their purpose, among other purposes, is to

5 provide “an attractive rural setting for residential neighborhoods and home sites” and

6 to encourage “individual expression consistent with the historical traditions of the

7 region.” The plaintiff here, Eldorado Community Improvement Association, Inc. (the

8 association), has many subdivision-related administrative tasks, not the least of which

9 is to enforce violations of the covenants.

10 {3} At issue in this case is Section 11 of the covenants, which reads:

11 Household pets. No animals, birds[,] or poultry shall be kept or

12 maintained on any lot, except recognized household pets which may be

13 kept thereon in reasonable numbers as pets for the pleasure and use of

14 the occupants but not for any commercial use or purpose. It is forbidden

15 to permit dogs to run at large in Eldorado. At all times, dogs must be

16 kept, restrained[,] and controlled by their owners in the manner

17 described in the Santa Fe County Animal Control Ordinance. A

18 maximum of two horses may be kept on any lot which has an area in

19 excess of three acres and which has been properly designated, pursuant

20 to these covenants, as a horse area on any recorded subdivision map or

21 by majority vote of the Board of Directors. A stable for such horses may

22 be erected upon such lot.

1
18 the foregoing, a maximum of two horses may be kept on any lot which has an area in

19 excess of three acres and which may be designated by [Eldorado at Santa Fe, Inc.] as

20 a horse area, and a stable for such horses may be erected upon such lot.”

3

1 No other section in the covenants has any direct bearing on keeping animals, birds,

2 or poultry on residential lots.

3 {4} Section 11 forbids residential lot owners from keeping poultry on residential

4 lots in the subdivision. At the same time, Section 11 provides an exception that

5 permits poultry as well as animals or birds to be kept on residential lots under certain

6 conditions, namely, as long as the poultry are “recognized household pets . . . for the

7 pleasure and use of the occupants[,]” kept on the lot in reasonable numbers, and “not

8 [kept] for any commercial use or purpose.” There exists no issue here as to number

9 of hens or as to commercial use or purpose. Nothing in Section 11 gives free reign to

10 expansive poultry operations and no issue exists as to any such use here.

11 {5} Both sides filed motions for summary judgment. Neither side argued that

12 genuine issues of material fact existed that would preclude summary judgment. The

13 district court determined that “[t]he terms ‘recognized household pets’ are not defined

14 in the covenants and are not clear on their face[,]” in part because “[a] substantial

15 number of homeowners and persons associated with the Eldorado Subdivision have

16 disagreed for years about the meaning of the covenant language in issue.” As to

17 interpreting the critical, ambiguous words, the district court determined that chickens
4

1 were not recognized household pets and could not be kept or maintained on any lot

2 in the subdivision. The court granted the association’s motion and ordered the owners

3 to remove their chickens from their properties. The owners appeal. More facts will

4 appear in the discussion that follows.

5 DISCUSSION

6 Standard of Review

7 {6} Because there exists no genuine issue of material fact, by agreement of the

8 parties and determination by the district court, we are relieved of a burden of concern

9 about the existence of such an issue. “Interpretation of language in a restrictive

10 covenant is a question of law that we review de novo.” Estates at Desert Ridge Trails

11 Homeowners’ Ass’n v. Vazquez, 2013-NMCA-051, ¶ 11, 300 P.3d 736; Heltman v.

12 Catanach, 2010-NMCA-016, ¶ 5, 148 N.M. 67, 229 P.3d 1239.

13 Definitions

14 {7} Because the issues in this case focus on the meaning of certain covenant terms,

15 we begin with definitions. A “bird” is “any of a class . . . of warm-blooded vertebrates

16 distinguished by having the body more or less completely covered with feathers and

17 the forelimbs modified as wings.” Merriam-Webster’s Collegiate Dictionary 125

18 (11th ed. 2005). A “chicken” is a “common domestic fowl[.]” Id. at 213; Oxford

19 Dictionaries, www.oxforddictionaries.com/us/definition/american_ english/chicken
5

1 (“A domestic fowl kept for its eggs or meat[.]”). A “hen” is “a female chicken[.]”

2 Merriam-Webster’s Collegiate Dictionary 580; Oxford Dictionaries,

3 www.oxforddictionaries.com/us/definition/american_english/hen (“A female bird,

4 especially of a domestic fowl.”). A “fowl” is a “bird of any kind[.]” Merriam5 Webster’s Collegiate Dictionary 495; Oxford Dictionaries,

6 www.oxforddictionaries.com/us/definition/american_english/fowl (“A gallinaceous

7 bird kept chiefly for its eggs and flesh[.]”). Chickens are poultry. See Merriam8 Webster’s Collegiate Dictionary 972. “Poultry” are “domesticated birds kept for eggs

9 or meat[.]” Id.; Oxford Dictionaries, www.oxforddictionaries.com/us/definition/

10 american_english/poultry (defining “poultry” as “[d]omestic fowl, such as chickens,

11 turkeys, ducks, and geese.”). Finally, “a domesticated animal kept for pleasure rather

12 than utility” and “kept for companionship or pleasure” is a pet. Merriam-Webster’s

13 Collegiate Dictionary 926; Oxford Dictionaries, www.oxforddictionaries.com/us/

14 definition/american_english/pet (defining “pet” as “[a] domestic or tamed animal kept

15 for companionship or pleasure”). The parties do not spar much over what a “pet” is.

16 The definitions do notstate that pets cannot also have utility. For purposes here, hens

17 kept as a source of eggs are poultry, and hens also kept as a source of companionship

18 or pleasure can be a pet. It is manifestly unclear, however, what “recognized” means.
6

1 The District Court’s Decision

2 {8} We commend the district court for favoring the parties with a detailed letter

3 decision that included procedural history, arguments, applicable law, legal analyses,

4 evidence including historical facts, and the court’s analyses and interpretations and

5 views about the covenants and the words in Section 11. It is from the court’s letter

6 decision that the association primarily hinges its arguments.

7 {9} The district court cited our Supreme Court’s four unchanged rules for

8 interpreting restrictive covenants set out in Hill v. Community of Damien of Molokai,

9 1996-NMSC-008, ¶ 6, 121 N.M. 353, 911 P.2d 861. “[I]f the language is unclear or

10 ambiguous, [the appellate courts] will resolve the restrictive covenant in favor of the

11 free enjoyment of the property and against restrictions.” Id. The appellate courts

12 “must interpret the covenant reasonably, but strictly, so as not to create an illogical,

13 unnatural, or strained construction.” Id. We “will not read restrictions on the use and

14 enjoyment of the land into the covenant by implication.” Id. We “must give words in

15 the restrictive covenant their ordinary and intended meaning.” Id. These rules

16 constitute “our four rules for construing restrictive covenants[.]” Sabatini v. Roybal,

17 2011-NMCA-086, ¶ 13, 150 N.M. 478, 261 P.3d 1110. “Failure to apply the rules of

18 construction [of restrictive covenants] is an error of law.” Id. ¶ 7.
7

1 {10} Although it explicitly acknowledged the four Hill rules of interpretation, the

2 district court focused its attention on an analysis in Agua Fria Save the Open Space

3 Ass’n v. Rowe, 2011-NMCA-054, 149 N.M. 812, 255 P.3d 390, in which this Court

4 held that “extrinsic evidence is admissible to explain or clarify, but not to vary or

5 contradict, a restrictive covenant’s terms.” Id. ¶ 21. The district court stated that Agua

6 Fria’s approach did not obligate the courts to apply the rule of strict construction in

7 resolving a factual dispute regarding the restrictive covenant’s meaning.

8 {11} In the district court, relying on Agua Fria, the association focused on a view

9 that the covenant language in question unambiguously set a community-wide

10 standard as to what is a “recognized household pet”—meaning the standard must

11 “come from the Eldorado community through the [d]emocratic process of amending

12 the [c]ovenants[.]” Although, at the same time, the association broadened this

13 standard to a “broader society” standard and offered testimony about the pet chicken

14 trend nationally. The association alternatively argued that if the district court found

15 an ambiguity, the affidavits and evidence offered from individuals in the local and

16 national community supported a finding that “a chicken is . . . not a recognized

17 household pet” and that, although “[p]eople may like them [and] they want to have

18 them as pets[,] . . . it doesn’t meet the standard in this community.”
8

1 {12} The district court ultimately agreed with the owners that the phrase “recognized

2 household pets” was not defined in the covenants and was unclear on its face.

3 However, upon determining that the covenant was ambiguous, the district court

4 looked to Agua Fria and in doing so went beyond our Supreme Court’s interpretative

5 rules for determining restrictive covenant meaning. Agua Fria states that extrinsic

6 evidence can be admitted to explain or clarify a restrictive covenant’s terms to obtain

7 contextual understanding and holds that “a court may hear evidence of the

8 circumstances surrounding the making of the contract and any relevant usage of trade,

9 course of dealing, and course of performance.” 2011-NMCA-054, ¶ 20 (internal

10 quotation marks and citation omitted). Agua Fria also statesthat the Supreme Court’s

11 “rule of strict construction must be subordinate to the intention of the parties as

12 reflected by the language of the whole instrument, the circumstances surrounding the

13 transaction, and the purposes animating the restrictions” and that the rule favoring

14 free enjoyment and against restrictions “cannot be applied to defeat the obvious

15 purpose of the restrictions.” Id. ¶ 18 (internal quotation marks and citation omitted).

16 Agua Fria holds that, when interpreting restrictive covenants, “[t]he intent of the

17 parties . . . govern[s].” Id. (internal quotation marks and citation omitted).

18 {13} To animate these additional rules of interpretation, Agua Fria, which addressed

19 the propriety of a grant of summary judgment, relied on a view that restrictive
9

1 covenants are contracts and are to be interpreted under the rules of contract

2 interpretation set out in C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070,

3 ¶¶ 12-18, 112 N.M. 504, 817 P.2d 238, and Mark V, Inc. v. Mellekas, 1993-NMSC4 001, ¶¶ 9-13, 114 N.M. 778, 845 P.2d 1232. The Agua Fria Court felt free to consider

5 extrinsic evidence to explain the purposes and contextual understanding underlying

6 restrictive covenants as though the covenants were a contract. Agua Fria, 2011-

7 NMCA-054, ¶¶ 20-21. It felt free, then, to consider evidence surrounding the making

8 of the contract and of any relevant usage of trade, course of dealing, and course of

9 performance. Id. And the Agua Fria Court concluded that “the courts are not

10 obligated to apply the rule of strict construction . . . regarding [a] restrictive

11 covenant’s meaning.” Id. ¶ 21.

12 {14} The district court in the case now before us treated the covenants as a contract

13 and called on the contract interpretation rules stated in Agua Fria, Mark V, and C.R.

14 Anthony. In granting summary judgment, the district court concluded that the owners’

15 interpretation of Section 11 was “inconsistent with the uniformity contemplated by

16 the covenants” and would “create an illogical result[.]” The district court determined

17 that the owners’ interpretation would “render the covenant meaningless” and was

18 “inconsistent with the intent and purposes of the covenants when analyzed under the

19 modern rule of construction and results in foreseeable illogical results when analyzed
10

1 under the general rule of construction.” In addition, the district court expressed

2 concern that “[c]onstruing the covenant to allow individual owners complete freedom

3 to designate any creature they want as a household pet would frustrate the purposes

4 of the covenants and create a dangerous precedent leaving other property owners

5 without [any] recourse (unless it was a nuisance under the covenants).” Furthermore,

6 the court determined that the owners’ interpretation “would open the door to an

7 unlimited multitude of different kinds of creatures being kept inside and outside of

8 homes . . . without regulation or control under the covenants (except nuisances)

9 leaving the other homeowners without recourse.” These determinations were

10 significantly driven by the association’s extrinsic evidence offered to uncover the

11 covenants’ original meaning. 

12 The Evidence

13 {15} The district court considered the developer’s 1972 covenants and even

14 considered the reputation of the subdivision in the 1970s and 1980s. It considered

15 evidence that the association historically viewed the covenant not to permit

16 chickens—a history, as explained by the court, that indicated that chickens had not

17 been considered by the association as recognized household pets and that the

18 association had historically taken enforcement action against individual owners who

19 had chickens on their property. Also, according to the court, no historical evidence
11

1 existed that chickens or other livestock had been contemplated by the developer or

2 accepted by the association as allowable.

3 {16} The association’s evidence in major part consisted of affidavits. William

4 Donohue, who was general manager of the association beginning in 2006, provided

5 an affidavit and documents relating to what the association’s “policy and practice”

6 was and had been. He also reported on the association’s planning and enforcement

7 activities, on its grants of variances, and on holding an election on proposed

8 alternative covenant amendments. Mark Conkling, who served as manager of the

9 association from 1987 to 1995, as a member of the association’s architectural

10 committee, and as a member of the association’s board of directors, also provided an

11 affidavit. Conkling was one of the first home builders in the subdivision and provided

12 some information in his affidavit subject to valid hearsay, speculation, and lack of

13 foundation objections.

14 {17} In the owners’ view, even were the foregoing extrinsic evidence allowable, any

15 opinion of the current association board or past boards, any surmised intent of the

16 original developer in 1972, any surmised intent of voters in 1995 apart from the

17 language in the covenant, and any hearsay evidence presented by a subdivision home

18 builder, constituted elusively speculative and fleeting evidence. Specifically, this

19 evidence consisted of unreliable factors that were changeable at any given time due
12

1 to changes in association membership and residential makeup and depending on who

2 at any given time might be interpreting Section 11, with contrary views always

3 present. According to the owners, even if allowable, the extrinsic evidence could not

4 support an interpretation that Section 11 flatly forbids hens.

5 {18} The association also presented an affidavit of Dr.KristyPabilonia, an associate

6 professor and diagnostic veterinarian at Colorado State University, and an expert in

7 commercial poultry populations and backyard poultry flocks, both rural and urban.

8 Dr. Pabilonia discussed disease found in flocks and opined as to the classification of

9 backyard poultry flocks. She stated that “[p]oultry has not historically been

10 considered ‘household pets,’ and traditional household pets, such as dogs and cats,

11 are not regulated as agricultural animals by the USDA.” She further stated that her

12 scientific surveys of owners of backyard poultry flocks showed that 86% maintained

13 chickens as a source of food, meat, or eggs, and that 42% maintained chickens as

14 pets, companions, or hobby animals. In addition, she stated that “keeping backyard

15 poultry flocks for any purpose, including as a source of food, meat[,] or eggs, or as

16 hobby animals, has become a significant phenomenon only within the past ten years

17 [or] so, since the mid-2000s.” The district court concluded that “[t]his significantly

18 indicates that in broader society[,] chickens are not recognized as household pets by

19 most.”
13

1 {19} The district court also found to be significant the vote in a subdivision2 sponsored election held in 2012, relating to two proposed changes to Section 11

3 language, one allowing chickens and one not allowing chickens. Presumably based

4 on the association arguments that by a vote of 55.4% to 44.6% the voting

5 homeowners rejected the proposed covenant amendment that would have specifically

6 allowed chickens under the Section 11 definition of “household pets,” the court

7 concluded that the voting homeowners of the subdivision voted not to include

8 chickens within the meaning of “household pets” under the covenant language.

9 {20} The owners describe the election differently. In their view, the association’s

10 arguments fail because the covenants require that 50% plus one of all subdivision

11 property owners had to vote in favor of an amendment for it to be enacted. The

12 owners show that of the total of subdivision property owners, only 35.07 % voted for

13 a covenant that would expressly forbid hens; 29.99% voted for a covenant that would

14 expressly allow residents to keep pet hens on their property; leaving 35.04% of the

15 subdivision residents who did not vote. The vote wastherefore insufficient under the

16 covenants for any amendment to be adopted, and the election left in place the original

17 acknowledged ambiguity. Therefore, the owners argue that the election was an “ad

18 hoc inconclusive opinion poll[]” having no bearing on covenant interpretation.
14

1 The Covenant Must Be Construed to Favor the Owners

2 {21} The notions expressed in the covenants of maintaining the “pastoral” and

3 “rural” nature of the area and the historical traditions of the region would appear to

4 lend themselves to allowing animals, birds, and poultry as recognized pets. If the

5 Eldorado community did not want poultry because poultry were not recognized as

6 household pets, it is reasonable to assume that the residents would have removed the

7 language that anticipates and permits poultry as household pets. We do not think that

8 it is reasonable to read the language of Section 11 to reflect an intent that the only

9 way poultry could be “recognized” as household pets wasif the association or a large

10 number but less than a majority of lot owners recognized poultry as such.

11 {22} We agree with the district court that the covenant language was unclear and

12 ambiguous. Ambiguity is created when provisions are reasonably and fairly

13 susceptible to different constructions. Levenson v. Mobley, 1987-NMSC-102, ¶ 7, 106

14 N.M. 399, 744 P.2d 174. In light of the ambiguity, the district court should have

15 applied the reasoning in Hill, which addressed a restrictive covenant governing use,

16 not the reasoning in Agua Fria, which addressed an ambiguity in a landowner’s

17 ability to extinguish restrictive covenants under a saving clause in restrictive

18 covenants. The ambiguity was not in any particular restrictive covenant asto use. We

19 see no reasonable basis in the case presently before us on which to treat enforcement
15

1 of the covenants governing the use of lots as a contract to be governed by the rules

2 and approach used in Agua Fria. Hill, rather than Agua Fria, governs this case. The

3 facts here and in Hill differ significantly from the facts in Agua Fria. Agua Fria did

4 not resolve an ambiguity in a covenant governing use. And restrictive use covenants

5 involve valuable property rights and extrinsic evidence should not provide the basis

6 for interpretation of those covenants.

7 {23} In Agua Fria, the issue on appeal was whether, as a matter of law, the

8 defendant developer had properly extinguished restrictive covenants on a tract of

9 undeveloped land (the country club tract) pursuant to a “saving clause.” 2011-

10 NMCA-054, ¶¶ 2-9. The plaintiff in Agua Fria argued that the extinguishment

11 provision in the saving clause did not apply to the country club tract, and thus, the

12 developer should not have been permitted to extinguish restrictive covenants. Id.

13 ¶¶ 9, 14. This Court ultimately determined that the saving clause was ambiguous as

14 applied to the tract, id. ¶ 17, and then proceeded to analyze the saving clause pursuant

15 to contract law. Id. ¶¶ 18-25. The Agua Fria opinion’s broad swath of contract

16 interpretation of ambiguous restrictive covenants could not have purposely been

17 intended to apply to restricted land use. The extinguishment provision in the saving

18 clause did not and was not intended to place any additional restrictions on the use of

19 land. Agua Fria is therefore significantly distinguishable. To that end, we firmly side
16

1 with a view that the meaning of ambiguous restrictive use provisions should be tested

2 under the Hill qualifiers and not under contract interpretation rules. 

3 {24} We suspect that the interpretive variances between Agua Fria and Hill stem

4 from the types of issues that the parties sought to resolve. In Hill, our Supreme Court

5 considered whether a group home constituted “residential use” of a property and

6 whether the individuals in the group home were a “single family” as required by the

7 restrictive use covenant. 1996-NMSC-008, ¶¶ 7-21. The Court rightly held that, when

8 ambiguous, covenants restricting the use of land should be resolved in favor of free

9 use. Id. ¶ 6. In applying its test, the Court was able to fully resolve the issues in favor

10 of the property owners. Id. ¶¶ 11, 21, 52. In Agua Fria, however, Hill’s test likely

11 would not have fully resolved the matter because the dispute was not direct with

12 regard to the use of land. Because the covenant at issue in Agua Fria dealt with a

13 party’s ability to extinguish covenants, Hill’s factors regarding free enjoyment of the

14 property and restrictions by implication would not have translated and would not have

15 guided the Court in Agua Fria to a clear resolution. Here, application of the Hill

16 factors alone can and does resolve the issue.

17 {25} Further, it is important to keep in mind that restrictive “covenants constitute

18 valuable property rights of the owners of all lots in the tract.” Montoya v. Barreras,

19 1970-NMSC-111, ¶ 12, 81 N.M. 749, 473 P.2d 363.Reliance on restrictive covenants
17

1 is a valuable property right. Wilcox v. Timberon Protective Ass’n, 1990-NMCA-137,

2 ¶ 42, 111 N.M. 478, 806 P.2d 1068, abrogated on other grounds by Agua Fria, 2011-

3 NMCA-054, ¶ 22. Thus, the rules set out by our Supreme Court in Hill are controlling

4 in the case before us. See Hill, 1996-NMSC-008, ¶ 6. The Hill interpretative rules

5 have been fully recognized by this Court. See Sabatini, 2011-NMCA-086, ¶¶ 7-10;

6 see also Wilcox, 1990-NMCA-137, ¶ 18 (acknowledging a four-part test applies to

7 restrictive covenants); cf. Mayer v. Smith, 2015-NMCA-060, ¶ 17, 350 P.3d 1191

8 (stating that “[t]his Court has established a distinction between contract interpretation

9 and easement interpretation with regard to extrinsic evidence”).

10 {26} What the developer may have had in mind, how individual association

11 members over time may have viewed the language, whether the association over time

12 successfully enforced Section 11 without court assistance, and any “community” or

13 “broader society” sense of Section 11’s meaning, constitute fleeting and speculative

14 proof of meaning in this case, as did that of Dr. Pabilonia regarding when the advent

15 of chickens as pets may have emerged in contemporary society. Dr. Pabilonia actually

16 confirmed that a substantial percentage of chicken owners keep chickens as pets.

17 {27} We therefore disagree that Section 11 disallows hens that can be and are treated

18 as pets. And we disagree that to allow hens as household pets creates or opens up any

19 likely circumstances of ruination as expressed by the association and the district court
18

1 that warrants an interpretation that allowing the hens as pets could never have been

2 intended at any time and under any circumstance. We are not persuaded that in

3 permitting pet chickens “the sky will fall.” Such a Chicken Little-esque view of

4 possible results and calamity is not convincing. We also disagree with an

5 interpretation that whether hens may be permitted depends on a majority vote of the

6 members of the association or on a vote of some particular number below 50% of

7 voting lot owners. If the association or the lot owners of the subdivision want a

8 different result, the lot owners must effectuate the change through the required

9 covenant amendment election process set out in the covenants.

10 CONCLUSION

11 {28} Section 11 of the covenants cannot be enforced under the circumstances in this

12 case to preclude the owners from keeping their hens as recognized household pets.

13 We reverse the judgment of the district court.

14 {29} IT IS SO ORDERED.

15 __________________________________

16 JONATHAN B. SUTIN, Judge

17 WE CONCUR:

18 _______________________________

19 LINDA M. VANZI, Judge

20 _______________________________

21 J. MILES HANISEE, Judge