Ellis v. Hillcrest

24CA2028 Ellis v Hillcrest 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2028
La Plata County District Court No. 23CV30144
Honorable Kim S. Shropshire, Judge

Larry Ellis and Nancy Ellis,

Plaintiffs-Appellants,

v.

Hillcrest Greens Homeowners Association, Inc., a Colorado nonprofit
corporation,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE HAWTHORNE*
Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 26, 2026

Law Office of John C. Seibert, LLC, John Seibert, Durango, Colorado, for
Plaintiffs-Appellants

Golden & Landeryou, LLC, Kenneth S. Golden, Durango, Colorado, for
Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 In this declaratory judgment action, plaintiffs, Larry and

Nancy Ellis, appeal the district court’s order awarding summary

judgment to defendant, Hillcrest Greens Homeowners Association,

Inc. (HOA). We affirm the judgment.

I. Background

¶2 The Ellises own property in Hillcrest Greens, a subdivision

near Durango, Colorado, which is governed by the “Second

Amended and Restated Covenants, Conditions and Restrictions of

the Hillcrest Greens Homeowners Association” (the Covenants).

¶3 The Covenants set forth standards for constructing residences

and using lots in the subdivision “for the purpose of enhancing and

protecting [the subdivision’s] value and desirability.” To enforce

these standards, the Covenants also establish an Architectural

Review Committee (ARC) that is responsible for reviewing and

approving proposed property improvements or modifications.

¶4 On February 6, 2022, the Ellises emailed the ARC expressing

their desire to build a detached garage on their property (February

submission). The email contained only a site plat showing the

garage’s proposed location and a three-dimensional rendering

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created by the Ellises. The email also clarified that the garage’s

exterior would conform with the exterior of the Ellises’ home.

¶5 On March 7, 2022, after a brief email exchange, the ARC

denied the request because under the Covenants “it is prohibited to

construct a garage or carport that is not attached and enclosed.”

About two weeks later, the HOA met, reviewed the ARC’s decision,

and found it to be correct. Later, the HOA informed the Ellises that

their February submission was incomplete because it was missing

documentation required by the Covenants.

¶6 In August 2023, the Ellises submitted a “more complete”

application to the ARC to build the proposed detached garage

(August application). The ARC responded that it considered a

detached garage to be a “storage building” that could not, under the

Covenants, exceed 100 square feet. Because the proposed detached

garage exceeded that limit, the ARC denied the August application.

¶7 The Ellises then initiated this lawsuit seeking declaratory and

injunctive relief.

¶8 In their claim, the Ellises requested the district court to find

that (1) their February submission must be “deemed approved”

because the ARC did not approve or deny it within twenty days from

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submittal, and (2) their August application must be approved

because the Covenants do not preclude construction of an

additional detached garage within the subdivision. The HOA

counterclaimed, asking the court to find that the Covenants

prohibit building an additional detached garage on property within

the subdivision.

¶9 Both parties filed motions for summary judgment. The district

court granted the HOA’s motion and denied the Ellises’ motion.

¶ 10 The court found that the February submission plans were

incomplete and rejected the Ellises’ argument that the HOA had

presumptively approved the February submission by failing to take

definitive action within twenty days. The court also concluded that

(1) the Covenants do not permit subdivision property owners to

construct detached garages; (2) the Covenants allow only for an

attached, two-car garage and one small storage building — which

would include a detached garage — of 100 square feet or less on

any given subdivision lot; and (3) the HOA’s denial of the August

application did not violate the Covenants or the Colorado Common

Interest Ownership Act (CCIOA).

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II. Analysis

¶ 11 The Ellises contend that the district court erred by concluding

that their February submission was not “deemed approved” and by

interpreting the Covenants “in favor of [a] restriction” on their

proposed detached garage to uphold the HOA’s denial of the August

application. We disagree.

A. Applicable Law and Standard of Review

¶ 12 A court may grant summary judgment when “there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Mitton v. Danimaxx of

Colo., Inc., 2023 COA 18, ¶ 9 (citing C.R.C.P. 56(c)). We review a

district court’s decision granting summary judgment de novo.

Griswold v. Nat’l Fed’n of Indep. Bus., 2019 CO 79, ¶ 22.

¶ 13 Under CCIOA, “[d]ecisions concerning the approval or denial of

a unit owner’s application for architectural or landscaping changes

shall be made in accordance with standards and procedures set

forth in the [covenants].” § 38-33.3-302(3)(b), C.R.S. 2025. We

review a district court’s interpretation of covenants and other

recorded documents de novo. Ryan Ranch Cmty. Ass’n v. Kelley,

2016 CO 65, ¶ 24.

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¶ 14 We interpret a covenant according to the language’s plain and

ordinary meaning, and “[i]f the covenant is clear on its face, [we] will

enforce it as written.” K9Shrink, LLC v. Ridgewood Meadows Water

& Homeowners Ass’n, 278 P.3d 372, 377 (Colo. App. 2011). We

construe a covenant as a whole, “seeking to harmonize and to give

effect to all provisions so that none will be rendered meaningless.”

Pulte Home Corp. v. Countryside Cmty. Ass’n, 2016 CO 64, ¶ 23

(citation omitted).

¶ 15 “Only when the language of a covenant is unclear will the

court resort to rules of interpretation,” K9Shrink, 278 P.3d at 377,

and in that case, “courts resolve all doubts against the restriction

and in favor of free and unrestricted use of property.” Buick v.

Highland Meadow Ests. at Castle Peak Ranch, Inc., 21 P.3d 860,

862 (Colo. 2001).

B. The February Submission

¶ 16 The Ellises contend that under the Covenants, “[t]he deadline

for approving or disapproving the [February submission] was

February 26, 2022.” They argue that the ARC did not respond to

the February submission by that date, and the February

submission “must, as a matter of law, be deemed approved” as of

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that date. The HOA responds that the Ellises misconstrue the

relevant provisions of the Covenants, which establish that the

twenty-day presumptive approval period begins to run only after the

ARC receives an application containing “all required information.”

The district court agreed with the HOA, and we discern no error in

that ruling.

¶ 17 Article VI of the Covenants, titled “Architectural Control,”

establishes the ARC and provides its review process and parameters

for project approval. Section 6.3 provides,

No improvements shall be constructed,
erected, placed, altered, maintained or
permitted on any lot . . . until plans and
specifications with respect thereto in manner
and form satisfactory to the [ARC] have been
submitted to and approved in writing by the
[ARC]. These plans and specifications shall
show the proposed improvements, site location
of such improvements, complete building plans
and material specification and all exterior
elevations, materials and colors, landscaping,
grading, drainage, erosion control, easements
and utilities, and such other information as may
[be] requested by said [ARC].

....

All such materials shall be submitted in
writing over the signature of the owner of the
lot or the owner’s authorized agent.

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(Emphasis added.)

¶ 18 Section 6.11 provides,

If the [ARC] fails either to approve or
disapprove such plans and specifications
(including resubmission of disapproved plans
and specifications) within twenty (20) days
after the plans have been submitted to it
(provided that all required information has been
submitted), it shall be conclusively presumed
that said plans and specifications have been
approved, subject, however, to the restrictions
contained [i]n Article VII hereof. The [ARC]
shall notify the owner in writing upon receipt
of any required plans and specifications and
the aforesaid twenty (20) day period shall
commence on the date of such notification.

(Emphasis added.)

¶ 19 Section 6.11 specifically states that the twenty-day

presumptive approval period is conditioned on “all required

information [having] been submitted.” And section 6.3 establishes

information that “shall be submitted in writing,” specifying that

plans “shall show the proposed improvements, site location of such

improvements, complete building plans and material specification

and all exterior elevations, materials and colors, landscaping,

grading, drainage, erosion control, easements and utilities.”

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¶ 20 The Ellises argue that section 6.11’s parenthetical language

conditioning the presumptive approval period on submitting “all

required information” is not controlling. Rather, they submit that

the phrase requiring the ARC to “notify the owner in writing upon

receipt of any required plans and specifications” triggers the

twenty-day period when the owner “provide[s] at least some of the

plans required under [s]ection 6.3.”

¶ 21 Reading section 6.3 as the Ellises propose is inconsistent with

the Covenants’ plain language, read as a whole. See Allen v. Reed,

155 P.3d 443, 445 (Colo. App. 2006) (“[W]e construe covenants as a

whole, keeping in mind their underlying purpose.” (citation

omitted)). Section 6.3 establishes that “plans and specifications”

must be submitted to and approved by the ARC and that these

“plans and specifications shall show” certain required information.

So the phrase “plans and specifications” in section 6.11, including

the “any required plans and specifications” language highlighted by

the Ellises, must be construed with section 6.3 as referring to “any

required plans and specifications” that include “all required

information.” See Pulte, ¶ 23 (we seek “to harmonize and to give

effect to all provisions [of a covenant]” (citation omitted)). The

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controlling language in section 6.11 is not the word “any”; instead it

is the phrases “plans and specifications” and “(provided that all

required information has been submitted).”

¶ 22 The district court found, based on undisputed facts, that the

February submission did not contain all information required by

section 6.3. It therefore concluded that the twenty-day presumptive

approval period was not triggered, and the February submission

was not presumed to be approved. Given the Covenants’ clear

language and the undisputed facts, we conclude that the district

court did not err.

C. August Application

¶ 23 The Ellises next contend that the district court erred by

concluding that their August application did not comply with the

Covenants. We are not persuaded.

1. Additional Facts

¶ 24 Covenants section 6.9 provides that “[n]o plan for

improvements shall be approved and no residences shall be

constructed on any lot within [the subdivision] unless plans contain

provision for an attached, enclosed garage or carport with a

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minimum of space reasonably housing two (2) standard sized motor

vehicles.” (Emphasis added.)

¶ 25 Section 6.10 provides that “[o]ne storage building per lot of not

more than 100 square feet shall be allowed, provided that the

storage building is permanently affixed to a cement slab or block

foundation and is not more than 12 feet in height from ground level

to the peak on the roof.” (Emphasis added.)

¶ 26 The Covenants neither expressly prohibit nor expressly allow

detached garages.

¶ 27 In their motion for summary judgment, the Ellises argued that

because the Covenants do not explicitly prohibit detached garages,

the HOA violated the Covenants by denying their application to

construct one. The HOA argued in its motion that because a

detached garage is a “storage building,” the Covenants do not allow

subdivision property owners to construct detached garages

exceeding 100 square feet.

¶ 28 The district court rejected the Ellises’ argument, agreeing with

the HOA that a detached garage is a type of “storage building”

because a garage “is commonly understood as a building or space

used to store vehicles when they are not in use.” It also concluded

10
that the Covenants’ intent, read as a whole, is “to maintain a

neighborhood that include[s] only single-family homes of a certain

size and height, each having an attached garage, and one . . .

storage building,” which would include a detached garage, that “is

limited to 100 square feet or less.”

¶ 29 The court entered summary judgment for the HOA, concluding

that

2. The Covenants do not permit construction
of a detached garage on a lot within [the
subdivision], as the Covenants only allow for a
home with attached garage (§ 6.9) and a
storage building of 100 square feet or less (§
6.10) to be constructed on any [subdivision]
lot.

3. The HOA’s denial of [the Ellises’] August
Application did not violate the terms of the
Covenants . . . .

4. The HOA is not required to approve and
allow construction of a detached garage in
conformance with [the Ellises’] August
Application.

2. Discussion

¶ 30 The Ellises contend that the Covenants’ plain language “does

not limit or restrict the number and types of structures that may be

maintained on a lot,” that the district court “essentially added a

term or restriction” to the Covenants by concluding that a detached

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garage is a “storage building,” and that their August application

complies with the Covenants and must be approved. We disagree.

¶ 31 The Ellises argue that section 6.9, which requires each

residence in the subdivision to have an attached, two-car garage,

does not prohibit detached garages; instead, “it merely requires that

each lot have, at minimum, an enclosed garage or carport large

enough to house two standard sized vehicles.” Granted, neither the

permissive language of section 6.9 nor the Covenants as a whole

contain a broad prohibition of “detached garages.” See Dunne v.

Shenandoah Homeowners Ass’n, 12 P.3d 340, 345 (Colo. App.

2000) (provision of a restrictive covenant describing animals that

could be maintained on a lot did not act as a restriction against

unlisted animals). But the Covenants specifically limit additional

buildings to “[o]ne storage building per lot of not more than 100

square feet” under section 6.10.

¶ 32 The Ellises argue that section 6.10 “does not limit the number

or size of any accessory buildings or structures to one building of

no more than 100 sq. ft,” but instead it only “limits the number of

storage buildings allowed on each lot.” We disagree for two reasons.

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¶ 33 First, as the district court noted, the Ellises’ interpretation

would mean that the Covenants, which include size restrictions for

both residences (in section 6.7) and storage buildings (in section

6.10), allow other accessory buildings of any size. Such a reading

cannot be squared with the Covenants, read as a whole. See Pulte,

¶ 23.

¶ 34 Second, we agree with the district court that applying the

Covenants in this manner would allow lot owners to evade the

storage building size requirement in section 6.10 simply by calling

their proposed building something else, thus rendering section 6.10

meaningless. See FD Ints., LLC v. Fairways at Buffalo Run

Homeowners Ass’n, 2019 COA 148, ¶ 23 (in reviewing covenants,

we seek to ensure that no provisions are rendered meaningless).

¶ 35 The Ellises’ citations to the Covenants’ other provisions do not

persuade us otherwise. The use of the term “garage” rather than

“attached garage” or “storage building” in other provisions does not

change our analysis that, read as a whole, the Covenants evince an

intent to allow only those latter two types of buildings. And

references to the “principal residence” or “principal dwelling” in

other provisions cannot be understood to allow multiple dwellings

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given that section 7.1 prohibits that scenario. Also, listed

restrictions for other specific types of buildings do not indicate that

accessory structures, broadly, are allowed.

¶ 36 We therefore reject the Ellises’ argument that the Covenants

do not limit or restrict the number and types of structures that may

be maintained on a lot in the subdivision.

¶ 37 The Ellises also argue that the court “essentially added a term

or restriction” to the Covenants by concluding that a detached

garage is a “storage building” within the meaning of section 6.10.

Again, we disagree.

¶ 38 Although the Covenants do not define the terms “storage

building” or “garage,” the “plain and ordinary meaning” of those

terms includes a detached garage. See K9Shrink, LLC, 278 P.3d at

377. A storage building is a building in which items are stored. To

“store” something is “to place or leave [it] in a location . . . for

preservation or later use or disposal.” Merriam-Webster Dictionary,

https://perma.cc/HQH6-KACZ. And a “garage” is a “shelter . . . for

automotive vehicles,” Merriam-Webster Dictionary,

https://perma.cc/2DVD-X235, or in other words, a “location” in

which automotive vehicles are “place[d] or le[ft] . . . for preservation

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or later use or disposal.” Merriam-Webster Dictionary,

https://perma.cc/HQH6-KACZ.

¶ 39 The court neither “added a term or restriction” to the

Covenants nor “acknowledged [that the term storage building] in

[s]ection 6.10 is reasonably susceptible to more than one meaning”

by concluding that a detached garage is a storage building subject

to the Covenants’ storage building provisions. We perceive no error.

¶ 40 Finally, considering our conclusions above, we reject the

Ellises’ contention that their August application complies with the

Covenants and must be approved. The undisputed evidence before

the court shows that the proposed “detached garage” exceeds 100

square feet and therefore the application was properly denied.

III. Appellate Attorney Fees

¶ 41 The Ellises and the HOA request their appellate attorney fees

under C.A.R. 39.1, section 38-33.3-123(1)(b), C.R.S. 2025, and the

Covenants’ section 8.2. Because the HOA has prevailed on appeal,

it is entitled to such an award under the Covenants and C.A.R.

39.1. The district court is uniquely suited to undertake the

factfinding necessary to determine such an award. So we exercise

our discretion under C.A.R. 39.1 and remand the case to the

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district court to determine and award the HOA its reasonable

appellate attorney fees and costs.

IV. Disposition

¶ 42 The judgment is affirmed, and the case is remanded to the

district court to determine and award the HOA its reasonable

attorney fees and costs.

JUDGE DUNN and JUDGE MOULTRIE concur.

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