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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL P. FIFLIS, et al., Plaintiffs/Appellees/Cross-Appellants,

v.

TOWN OF CAVE CREEK, et al., Defendants/Appellants/Cross-Appellees.

No. 1 CA-CV 22-0067 

Appeal from the Superior Court in Maricopa County

No. CV2019-052824

The Honorable Sally Schneider Duncan, Judge, Retired

AFFIRMED IN PART, REVERSED IN PART

COUNSEL

Sims Mackin, LTD., Phoenix

By Kristin M. Mackin

Co-Counsel for Defendants/Appellants/Cross-Appellees Town of Cave Creek & 

Richard and Sheryl Sheiner

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix

By Bradley R. Jardine

Co-Counsel for Defendants/Appellants/Cross-Appellees Canyon Ridge Estates 

Homeowners Association

Michael P. Fiflis, Scottsdale

Plaintiff/Appellee/Cross-Appellant

FILED 4-11-2023
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Randall M. Howe and Judge Anni Hill Foster joined.

T H U M M A, Judge:

¶1 Defendants the Town of Cave Creek, Richard and Sheryl 

Sheiner and Canyon Ridge Estates Homeowners Association (HOA) appeal 

from the grant of partial summary judgment for plaintiffs Michael Fiflis and 

Alisa McMahon (collectively Fiflis) on the scope of easements. Fiflis crossappeals from the grant of summary judgment rejecting trespass, taking and 

injunctive relief claims.

¶2 The dispositive issue is whether easements that run near 

Fiflis’ property and throughout Canyon Ridge Estates (CRE) can be used 

for bicycling, along with walking and riding horses. Fiflis has not shown 

that the grant of the public access easements excluded bicycling or that an 

amendment to the Declaration of Covenants Conditions & Restrictions 

(CC&R’s) clarifying that use was improper. As a result, although affirming 

summary judgment rejecting Fiflis’ claims, the grant of summary judgment 

limiting the public access easements to walking and riding horses is 

vacated. This matter is remanded with instructions to enter judgment 

consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶3 CRE is a subdivision with about 100 residential lots. In the 

mid-1990s, the developer and owner developed the 243-acre property as a

Planned Unit Development (PUD). As part of that process, they submitted 

a preliminary PUD plan for consideration by the Town. At that time, the 

property included existing trails that were part of a larger trail network on 

land owned by others. The Town approved the preliminary PUD plan 

subject to stipulations, including that the “final plan shall clearly delineate 

all approved trails on the site. The trails shall be located within 15 foot wide

public access easements.” At that time, the trails were used for bicycling, 

walking and riding horses. The Town also required that all CC&R’s “shall 

contain the requirement that the CC&R’s shall be consistent with the 

approved stipulations.” 
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

3

¶4 In February 1998, the Town Council approved the developer’s

final submission, including the Final Plat. The Final Plat declared that the 

developer and owner “hereby dedicate for use as such to the public, the 

streets and easements (drainage, water, sewer, equestrian, and emergency 

access) as shown platted hereon.” The Final Plat specified many types of 

easements, including for trails and public access, roadways and highways, 

water and related facilities, utilities, construction and maintenance as well 

as drainage. The trail and public access easements are relevant here.

¶5 The record shows that, when the Final Plat was approved, the 

existing trails on the land were being used by bicycles, pedestrians and 

equestrians. The Final Plat included descriptions and maps for public 

access and equestrian trail easements, marked on the Legend as “15’ 

EQUESTRIAN TRAIL & PUBLIC ACCESS ESMT,” with notes on the maps 

stating “15’ EQUESTRIAN TRAIL AND PUBLIC ACCESS EASEMENT” 

and, in other places, “NOTE: DIMENSIONS ARE TO CENTERLINE OF 

TRAIL EASEMENT.” The page of the Final Plat containing Lot 36 (which 

Fiflis owns) and 37 (which currently is burdened by the easements Fiflis 

challenges) shows the easements on those lots beginning at a cul-de-sac. As 

on the other pages, the Legend states “15’ EQUESTRIAN TRAIL & PUBLIC 

ACCESS ESMT,” with one reference on the map stating “NOTE: 

DIMENSIONS ARE TO CENTERLINE OF TRAIL EASEMENT.” Nowhere 

do the references on the Final Plat map addressing Lots 36 and 37 reference 

“equestrian trail” alone.

¶6 The Narrative Report submitted with the Final Plat described 

the easements in various places. The first reference, in addressing lot owner 

responsibilities, noted that “the equestrian/pedestrian trail . . . is located 

within a 15 foot public easement that crosses specific lots.” The 

corresponding map did not differentiate permissible uses in the 15 foot 

public easement grant throughout the development. Elsewhere, the 

Narrative Report referenced the “multi-use trail within a 15 foot easement,”

referencing an “equestrian/pedestrian circulation.” The Narrative Report 

also referenced placement of “all equestrian/pedestrian trail easements.”

As approved by the Town Council, a stipulation included that the PUD 

final plan “shall clearly delineate all approved trails on the site. The trails 

shall be located within 15 foot wide public access easements.” These 

documents make clear that the dedication was for a broad 15 foot public 

access easement.
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

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¶7 CC&R’s were finalized in September 1998 and recorded in 

October 1998 and reference the recorded Plat. Article 5 (“EASEMENTS”) 

addressed various easements on the property. Deferring to the easement 

designations in the Final Plat, Section 5.13 of the CC&Rs stated:

Certain parts of Lots are designated on the Plat 

as a fifteen foot (15’) equestrian trail and public 

access easement or a fifteen foot (15’) equestrian 

trail. Easements are hereby created in favor of 

the public over, upon and across all such 

easement areas for the riding and walking of 

horses and for pedestrian access and hiking.

This language (referencing “equestrian trail” alone) differed from the 

recorded page of the Final Plat showing Fiflis’ property and easement, 

which does not refer to the easement as “equestrian trail” alone. The 

CC&R’s required that any new easements be approved by the Architectural 

Committee. The CC&Rs also allowed for amendment “at any time with 

written approval or the affirmative vote, or any combination thereof, of 

Owners of not less than seventy-five percent (75%) of the Lots.” The CC&Rs 

provide that, “[i]n the absence of any adjudication to the contrary . . . , the 

[HOA’s] construction or interpretation of the provisions hereof shall be 

final, conclusive and binding as to all persons and property benefited or 

bound by this Declaration.”

¶8 As noted above, bicycles were using the trails in CRE before 

the Final Plat was approved in February 1998. And Fiflis admits that, since

at least 2010, bicycle races have run through the CRE trails. In 2011, Fiflis 

purchased Lot 36, which was (and remains) undeveloped. The Sheiners 

own Lot 37, which borders Lot 36.

1 Fiflis then complained to the Town that 

the trail easement on Lot 36 did not align with what was shown on the Final 

Plat. Although the Town agreed, after years of intermittent efforts, Fiflis 

and the Town were unable to resolve the issue. 

¶9 In 2016, the Town, the HOA and the Sheiners agreed to a 

public access trail easement encumbering the Sheiners’ property (Lot 37) 

and allowing non-motorized uses (the Sheiner Agreement). After approval 

of the Sheiner Agreement, a new trail was completed on Lot 37, the 

1 Stating the Sheiners’ transferred Lot 37 in 2022, Fiflis moved to substitute 

or add the transferees as parties. There is, however, no indication that 

motion was served on the transferees it seeks to join as parties. The motion 

is therefore denied.
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

5

easement on Fiflis’ property (Lot 36) was abandoned and Fiflis’ property 

was revegetated to make the former trail inaccessible. As a result, the public 

access trail easement now is on Lot 37, along the border with Lot 36; none 

of it is on Fiflis’ property. In 2018, more than 75 percent of the lot owners 

approved an amendment to Section 5.13 of the CC&Rs. That amendment, 

which was recorded after being approved, clarifies that permissible uses on 

the trails for the public easements in the Plat include “the riding and 

walking of horses, pedestrian access, hiking, and non-motorized vehicle 

access, (including, but not limited to, bicycle access).”

¶10 In February 2019, Fiflis filed this action. As to the HOA, Fiflis 

sought a declaration that the 2018 CC&R amendment was void, any trail 

use was limited to walking and riding horses and an injunction against any 

further amendments to allow any other uses. As to the Sheiners and the 

Town, Fiflis sought a declaration that the Sheiner Agreement was void and 

that, by allowing bicycles to use the public easements, the Town was

trespassing. Fiflis also sought an injunction against continuing harassment, 

and claimed an unconstitutional taking. 

¶11 Fiflis moved for partial summary judgment on the 2018 

CC&R amendment and permitted trail uses. Fiflis argued bicycles exceeded 

the permitted uses and, citing Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 

Ariz. 42 (App. 2010), that the CC&R amendment “add[ed] new and 

different burdens” by “greatly expand[ing] the permitted uses of the 

owners’ property by the public.” The Town moved for summary judgment 

on the trespass and taking claims. At oral argument, the superior court 

stated that the Final Plat and the CC&R’s had to be interpreted together

and, in its view, “what the CC&R’s did was narrow the scope . . . of what 

[the] easement [could] be used for.” The court then entered summary 

judgment for Fiflis and did not address the Town’s motion on the issues of 

trespass and taking. Fiflis then moved for partial summary judgment on the 

validity of the Sheiner Agreement, trespass and unconstitutional taking. 

After oral argument, the court found the Sheiner Agreement violated the 

CC&R’s and the easement grant, rejecting Fiflis’ other claims.

¶12 After entry of final judgment, Ariz. R. Civ. P. (Rule) 54(c)

(2023),2 defendants timely filed a notice of appeal and Fiflis filed a notice of 

cross-appeal. This court has appellate jurisdiction under Article 6, Section 

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

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9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) 

sections 12-120.21(A)(1) and -2101(A)(1). 

DISCUSSION

¶13 Defendants argue the superior court erred by (1) concluding 

bicycles were not a permitted use in the public access easements granted in 

the Final Plat; (2) invalidating the 2018 CC&R amendment; (3) invalidating 

the Sheiner Agreement and (4) failing to reject all of Fiflis’ claims against 

the Town. Defendants also argue that Fiflis did not timely file his crossappeal. Fiflis argues the superior court erred in rejecting the trespass and 

taking claims and not granting his request for injunctive relief. The court 

addresses these arguments in turn.

¶14 This court reviews de novo a grant of summary judgment, 

“viewing the evidence and reasonable inferences in the light most favorable 

to the party opposing the motion,” Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 

(2003), to determine “whether any genuine issues of material fact exist,”

Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55 ¶ 8 (App. 2007). When 

uncontroverted, “facts alleged by affidavits attached to a motion for 

summary judgment may be considered true.” Portonova v. Wilkinson, 128 

Ariz. 501, 503 (1981).

I. The Easements Were Not Limited to Pedestrians and Riding 

Horses.

¶15 “An easement is a right which one person has to use the land 

of another for a specific purpose.” Etz v. Mamerow, 72 Ariz. 228, 231 (1951). 

As with other servitudes, easements “should be interpreted to give effect to 

the intention of the parties ascertained from the language used in the 

instrument, or the circumstances surrounding creation of the servitude, and 

to carry out the purpose for which it was created.” Powell v. Washburn, 211 

Ariz. 553, 557 ¶ 13 (2006) (citation omitted). “Principles of contract 

interpretation apply to easements.” IB Prop. Holdings, LLC v. Rancho Del Mar 

Apartments Ltd. P’ship, 228 Ariz. 61, 66 ¶ 16 (App. 2011).

¶16 As noted above, the page of the Final Plat containing Fiflis’ lot

addressing the easement contains a Legend stating “15’ EQUESTRIAN 

TRAIL & PUBLIC ACCESS ESMT,” with one reference on the map stating 

“NOTE: DIMENSIONS ARE TO CENTERLINE OF TRAIL EASEMENT.” 

Neither party disputes that the easement on Lot 36 allows for both 

equestrian and pedestrian use. The plain language of the Final Plat grants

a broad public access trail easement. Moreover, to the extent there is 

ambiguity in the Final Plat, the “circumstances surrounding [the] creation 
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

7

of the servitude,” Powell, 211 Ariz. at 557 ¶ 13, show that, as accepted, the

Final Plat included public access easements reflecting then-current uses. 

Defendants presented evidence that, historically, those uses included 

bicycles along with pedestrian and equestrian uses. Fiflis did not dispute 

that evidence. On this record, the public access easements granted in the 

Final Plat as accepted by the Town in 1998 included bicycle use. 

¶17 Reflecting this pre-existing bicycle use, nowhere in the Final 

Plat, the Narrative Report or the Town Council stipulations or minutes is 

there any suggestion that the use of bicycles was precluded. Although Fiflis 

presented evidence from a former Town Mayor that “the Town Council’s 

intent” was otherwise, no such limitation was stated in the documents and 

one person cannot testify about the intention of the council as a whole. See 

Long v. City of Glendale, 208 Ariz. 319, 331 ¶ 42 (App. 2004) (disregarding a 

single city councilman’s testimony about the council’s intention for the use 

of property). Moreover, because the Final Plat and related documents did 

not preclude the use of bicycles, a former Town official’s undisclosed intent 

relayed more than two decades later is not relevant. Cf. Hill-Shafer P’ship v. 

Chilson Fam. Tr., 165 Ariz. 469, 474 (1990) (“What is operative is the objective 

manifestations of assent by the parties.”); Hartford v. Indus. Comm’n. of Ariz., 

178 Ariz. 106, 112 (1994) (“Mutual assent is based on objective evidence, not 

on the hidden intent of the parties.”).

¶18 Given this pre-existing public use of bicycles on the trails 

when the Final Plat was approved, the public access easements were not 

limited to pedestrians and riding horses. Thus, Fiflis has not shown that 

bicycles using the public access easements exceeded the grant or any 

impermissible interference with his use of Lot 36.

3

II. The 2018 CC&R Amendment Properly Clarified Uses Allowed on 

the Public Access Easements in the Final Plat.

¶19 Fiflis argues that the 2018 amendment to the CC&Rs was 

invalid because the CC&Rs as they existed before that amendment limited

the scope of the public access easements in the Final Plat. Not so. The 

express public access easement in the Final Plat defined the scope of the 

trail easements in a grant that was accepted by the Town for the benefit of

the public. See Scalia v. Green, 229 Ariz. 100, 102 ¶ 7 (App. 2011) (“An express 

3 At oral argument and in the answering brief, Fiflis has raised various 

hypotheticals of motorized uses of the public access easements. Because 

those issues are not part of this case, this court need not (and expressly does 

not) address them.
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

8

grant of an easement defines the grantee’s rights.”). By contrast, “CC & Rs 

constitute a contract between the subdivision’s property owners as a whole 

and individual lot owners.” Ahwatukee Custom Ests. Mgmt. Ass’n, Inc. v. 

Turner, 196 Ariz. 631, 634 ¶ 5 (App. 2000). Fiflis has not shown how the later 

enacted CC&R’s, to the extent they sought to limit use granted in the Final 

Plat, would be binding on the public or could limit the public easements.

To the contrary, “a dedication, once perfected, is irrevocable,” City of 

Chandler v. Ariz. Dep’t of Transp., 224 Ariz. 400, 403 ¶ 9 (App. 2010), and a 

grant of a public access easement reflected in the Final Plat could not be 

restricted in later-enacted CC&R’s.

¶20 The factual predicate for Fiflis’ argument -- that the original 

CC&Rs limited the Final Plat -- is wrong. The CC&Rs contain no language 

limiting the uses to only walking and horse riding. Additionally, the 

CC&Rs make plain that absent any judicial determination otherwise, the 

HOA’s “construction or interpretation of the provisions hereof shall be . . . 

conclusive and binding as to all persons and property benefited or bound 

by this Declaration.” In amending the CC&R’s, the HOA clarified that the 

scope of the public access easements included bicycles. Fiflis has not shown 

how that clarification, which was properly adopted by more than 75 percent 

of the owners, was invalid.

¶21 The superior court found that the 2018 CC&R amendment 

clarifying the scope of the easements impermissibly imposed an “additional 

burden” by “expand[ing] the scope of the CC&Rs,” contrary to Dreamland, 

224 Ariz. at 42. As discussed above, the 2018 CC&R amendment clarified 

the scope of the public access easements; it did not expand their scope or 

the scope of the CC&Rs as they existed before that amendment. Nor does 

Dreamland invalidate the 2018 CC&R amendment.

¶22 Dreamland involved a community with 18 sections, each 

containing several residential lots. Id. at 43 ¶ 2. Seventeen of those 18 

sections had no annual assessments and no common areas, with owners 

having the option of being members in a voluntary club. Id. at 43 ¶ 4. More 

than 40 years after the first section was built, the community proposed an 

amendment to the CC&Rs requiring each section to pay an annual 

assessment for club maintenance. Id. at 44 ¶ 6. On appeal, the court 

concluded “[i]t is not reasonable to use the amendment provision to direct 

that one group of lot owners may, in effect, take the property of another 

group in order to fund activities that do not universally benefit each 

homeowner’s property or areas owned in common by all.” Id. at 51 ¶ 36.

No such issue is presented here, where the 2018 CC&R amendment sought 

to clarify the scope of the public access easements in the Final Plat. See also
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

9

Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532, 537 ¶ 10, 539-42 ¶¶ 17, 

22-41 (2022) (applying Dreamland in invalidating CC&R amendments

imposing use and improvement restrictions but affirming CC&R 

amendments clarifying definition of “garage;” noting CC&R amendments 

“must give sufficient notice of the possibility of a future amendment; that 

is, amendments must be reasonable and foreseeable”).

¶23 Unlike Dreamland or Kalway, here, the public access easements

were established in 1998 when the Final Plat was approved, before the 

version of the CC&Rs Fiflis argues cannot be changed had been finalized. 

Fiflis does not contest that he had knowledge of the public access easements 

in the recorded Final Plat when he purchased Lot 36 in 2011. Moreover, 

unlike Dreamland and Kalway, the 2018 CC&R amendment did not add an 

additional restriction on Fiflis’ use of Lot 36. Instead, like the amendment 

allowed in Kalway clarifying the definition of “garage,” the 2018 CC&R 

amendment clarified uses allowed under the existing public access 

easements.

¶24 Fiflis also argues that the 2018 CC&R amendment was invalid 

because it did not comply with A.R.S. § 33-1817(A)(2), which requires 

consent of all affected homeowners if an amendment applies to less than all 

the homeowners. However, the amendment here applied to all 

homeowners. The amendment provided notice to all homeowners of the 

uses allowed on the easements throughout the community. For all of these 

reasons, Fiflis has not shown the amendment clarifying the easement use 

was invalid.

III. Fiflis Has Not Shown the Sheiner Agreement Was Invalid.

¶25 Fiflis argues the HOA could not approve the Sheiner 

Agreement, claiming it contravenes the description of the public access 

easements in the CC&Rs. As a result of the Sheiner Agreement, however, 

Fiflis’ property is no longer encumbered by the easement. Fiflis has not 

shown how the Sheiner Agreement harmed Lot 36 or otherwise is 

prohibited by the CC&Rs. The Sheiner Agreement also was approved by 

the Architectural Committee as required by the CC&Rs. Accordingly, the 

cases Fiflis cites for the proposition that an HOA “cannot act in 

contravention of the CC&Rs” have no application here. See Nickerson v. 

Green Valley Recreation, Inc., 228 Ariz. 309, 320–21 ¶¶ 27–28 (App. 2011); 

Wilson v. Playa de Serrano, 211 Ariz. 511, 513–14 ¶¶ 8–9 (App. 2005). Nor has 

Fiflis shown the Sheiner Agreement would run counter of the requirement 

of an “orderly plan of the subdivision,” citing Vill. of Riverside v. Maclean, 71 

N.E. 408, 415 (Ill. 1904), even if that case applied here. 
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

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IV. Fiflis Timely Filed His Notice of Cross Appeal.

¶26 Defendants argue that Fiflis did not timely appeal. Generally, 

“a party must file a notice of cross-appeal under [ARCAP] 8 no later than 

20 days after appellant’s filing of a notice of appeal, or 30 days after entry 

of the judgment from which the appeal is taken, whichever is later.”

ARCAP 9(b). Still, the time to file does not begin until a signed written order 

disposing of, among other things, a motion “to alter or amend the judgment 

under Rule 59(d).” ARCAP 9(e)(1)(C). Defendants argue that Fiflis’ Rule 

59(d) motion was really a motion under Rule 54(f)(2)(A) and therefore did 

not toll the time to file his notice of cross-appeal. However, Rule 54(f)(2)(A) 

provides the procedure for seeking costs when the judgment “is to be 

entered under Rule 54(c)” and not after it has been entered. Rule 54(f)(2)(A). 

The superior court properly considered Fiflis’ motion to add costs as a Rule 

59(d) motion to amend final judgment and Fiflis filed his notice of appeal 

27 days after the superior court entered its amended final judgment. Thus,

Fiflis’ notice of cross-appeal is timely.

V. The Superior Court Did Not Err in Rejecting Fiflis’ Continuing 

Trespass Claim and the Request for Injunctive Relief.

¶27 “[T]o establish a claim of trespass against another, the 

claimant must possess a legal interest in the land against which the trespass 

is alleged.” Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, 268–69 ¶ 22 

(App. 2013). With easements, it is the owner of the servient estate that can 

claim damages and injunctive relief for excessive use of an easement. 

RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 8.3 cmt b. (2000). Fiflis 

argues the Town and the Sheiners are committing a continuing trespass by 

allowing bicycle riders to use the easements. Fiflis’ argument fails for two 

reasons. 

¶28 First, as noted above, bicycles are included in the scope of the 

public access easements in the Final Plat. Thus, allowing that use is 

consistent with the easements. Second, Fiflis has not shown a legal interest 

in the land burdened by the easements. Citing the RESTATEMENT and cases 

from other jurisdictions, Fiflis argues that all lot owners in a subdivision are 

servient owners of the easements. See RESTATEMENT (THIRD) OF PROPERTY 

(SERVITUDES) § 4.1; Tract Dev. Servs., Inc. v. Kepler, 199 Cal.App.3d 1374, 1384 

(1988). The public access easements here, however, do not burden Fiflis’ Lot 

36. For this same reason, Fiflis’ reliance on cases finding an owner can 

enforce an easement within a subdivision do not apply. See Grossman v. 

Hatley, 21 Ariz. App. 581, 584 (1974); Connolly v. Robertson, 567 S.E.2d 193, 

196–97 (N.C. App. 2002). Fiflis also argues that he had a legal interest in the 
FIFLIS, et al. v. CAVE CREEK, et al.

Decision of the Court

11

land because an easement used to be on his property. However, Fiflis

asserts a continuing trespass claim, and the easement was removed from 

Lot 36 before this case was filed. Nor has Fiflis shown that Brenteson 

Wholesale, Inc. v. Ariz. Pub. Serv. Co., which allowed an injunction against 

use of a neighboring property, would apply. 166 Ariz. 519, 524 (App. 1990).

Brenteson affirmed an injunction that prevented the possibility of a trespass 

on the plaintiff’s property, which is not what Fiflis asserts here. See id.

VI. Fiflis Has Not Shown the Town Committed an Unconstitutional 

Taking of His Property.

¶29 “Arizona law has only recognized a ‘taking’ of property 

where the government either assumes actual possession of the property or 

places a legal restraint upon the property that substantially diminishes or 

destroys the owner’s right to, and use and enjoyment of, the property.” State 

v. Mabery Ranch, Co., L.L.C., 216 Ariz. 233, 242 ¶ 35 (App. 2007) (citation 

omitted). As explained above, because bicycles are within the scope of the 

easement grant, the Town has not illegally appropriated easement rights. 

As also explained above, Fiflis has not shown that he has a legal interest in 

property encumbered by an easement. Citing Nollan v. California Coastal

Comm’n, Fiflis argues that the court could declare an unconstitutional 

taking under the “physical occupation” rule where the government 

mandates an easement. 483 U.S. 825, 832 (1987). Here, however, the final 

plat was accepted in 1998, long before Fiflis purchased Lot 36 in 2011. And 

Fiflis has not shown that the Town mandated that Fiflis grant an easement 

on Lot 36. 

CONCLUSION

¶30 The judgment rejecting Fiflis’ claims is affirmed; the grant of 

summary judgment limiting the public access easements to walking and 

riding horses is vacated, and this matter is remanded with instructions to 

enter judgment consistent with this decision. The HOA and Sheiners

request their fees under A.R.S. § 12-341.01. In its discretion, the court grants 

the request and awards the HOA and the Sheiners their reasonable 

attorneys’ fees and taxable costs contingent upon their compliance with 

ARCAP 21.