March 28, 2016 – Eldorado Community Improvement Association, Inc., v. Susan Billings, David Borton, Devra Borton, and Eric Wilson and Greg Colello, Rose Winston, and Gershon N. Siegel, No. 33,850

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: March 28, 2016
NO. 33,850
ELDORADO COMMUNITY IMPROVEMENT
ASSOCIATION, INC.,
Plaintiff-Appellee,
v.
SUSAN BILLINGS, DAVID BORTON,
DEVRA BORTON, and ERIC WILSON,
Defendants-Appellants,
and
GREG COLELLO, ROSE WINSTON, and
GERSHON N. SIEGEL,
Defendants.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Mark A. Macaron, District Judge
Cassutt, Hays & Friedman, P.A.
John P. Hays
Santa Fe, NM
for Appellee

VanAmberg, Rogers, Yepa, Abeita, Gomez & Works, LLP
Ronald J. VanAmberg
Santa Fe, NM
for Appellants

OPINION
SUTIN, Judge.
{1} 	This case pits a subdivision association against several subdivision residents
who keep hens as pets. The dispute is over a subdivision covenant that disallows
“animals, birds, or poultry” on residents’ lots unless kept as “recognized household
pets.” The subdivision association sued the defendant hen owners to rid their
properties of hens. The defendants (the owners) claimed that their hens met the
recognized household pet exception. On motions for summary judgment, the district
court agreed with the subdivision association and required the owners to remove their
hens from their lots. In this Opinion, we at times refer to “chickens” and to “hens” but
we also use “poultry,” because “poultry” appears in Section 11 of the subdivision
covenants and because the parties concentrate on using “poultry” in their briefs. We
hold that the restrictive covenant does not disallow the owners from keeping hens that
are recognized as household pets and that the district court erred in requiring the
owners to remove the hens.
BACKGROUND
{2} 	Eldorado at Santa Fe Subdivision is a residential development located in Santa
Fe County, New Mexico, and was established in 1972 with protective covenants. The
1972 covenants stated that their purpose “is to perpetuate . . . the rich qualities

1 The pertinent 1972 covenant provision regarding pets reads: “No animals,
birds[,] or poultry shall be kept or maintained on any lot, except recognized household
pets which may be kept thereon in reasonable numbers as pets for pleasure and use of
the occupants but not for any commercial use or purpose. Notwithstanding
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peculiar to the pastoral environment for the benefit of all who acquire property within
the Eldorado Ranch.” The original 1972 covenants were replaced in 1996 by amended
and restated protective covenants (hereinafter, the covenants) following a covenant
election in 1995. The covenants state that their purpose, among other purposes, is to
provide “an attractive rural setting for residential neighborhoods and home sites” and
to encourage “individual expression consistent with the historical traditions of the
region.” The plaintiff here, Eldorado Community Improvement Association, Inc. (the
association), has many subdivision-related administrative tasks, not the least of which
is to enforce violations of the covenants.
{3} 	At issue in this case is Section 11 of the covenants, which reads:
Household pets. No animals, birds[,] or poultry shall be kept or
maintained on any lot, except recognized household pets which may be
kept thereon in reasonable numbers as pets for the pleasure and use of
the occupants but not for any commercial use or purpose. It is forbidden
to permit dogs to run at large in Eldorado. At all times, dogs must be
kept, restrained[,] and controlled by their owners in the manner described
in the Santa Fe County Animal Control Ordinance. A maximum of two
horses may be kept on any lot which has an area in excess of three acres
and which has been properly designated, pursuant to these covenants, as
a horse area on any recorded subdivision map or by majority vote of the
Board of Directors. A stable for such horses may be erected upon such
lot.1

the foregoing, a maximum of two horses may be kept on any lot which has an area in
excess of three acres and which may be designated by [Eldorado at Santa Fe, Inc.] as
a horse area, and a stable for such horses may be erected upon such lot.”
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No other section in the covenants has any direct bearing on keeping animals, birds, or
poultry on residential lots.
{4} 	Section 11 forbids residential lot owners from keeping poultry on residential
lots in the subdivision. At the same time, Section 11 provides an exception that
permits poultry as well as animals or birds to be kept on residential lots under certain
conditions, namely, as long as the poultry are “recognized household pets . . . for the
pleasure and use of the occupants[,]” kept on the lot in reasonable numbers, and “not
[kept] for any commercial use or purpose.” There exists no issue here as to number
of hens or as to commercial use or purpose. Nothing in Section 11 gives free reign to
expansive poultry operations and no issue exists as to any such use here.
{5} 	Both sides filed motions for summary judgment. Neither side argued that
genuine issues of material fact existed that would preclude summary judgment. The
district court determined that “[t]he terms ‘recognized household pets’ are not defined
in the covenants and are not clear on their face[,]” in part because “[a] substantial
number of homeowners and persons associated with the Eldorado Subdivision have
disagreed for years about the meaning of the covenant language in issue.” As to
interpreting the critical, ambiguous words, the district court determined that chickens

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were not recognized household pets and could not be kept or maintained on any lot
in the subdivision. The court granted the association’s motion and ordered the owners
to remove their chickens from their properties. The owners appeal. More facts will
appear in the discussion that follows.
DISCUSSION
Standard of Review
{6} 	Because there exists no genuine issue of material fact, by agreement of the
parties and determination by the district court, we are relieved of a burden of concern
about the existence of such an issue. “Interpretation of language in a restrictive
covenant is a question of law that we review de novo.” Estates at Desert Ridge Trails
Homeowners’ Ass’n v. Vazquez, 2013-NMCA-051, ¶ 11, 300 P.3d 736; Heltman v.
Catanach, 2010-NMCA-016, ¶ 5, 148 N.M. 67, 229 P.3d 1239.
Definitions
{7} 	Because the issues in this case focus on the meaning of certain covenant terms,
we begin with definitions. A “bird” is “any of a class . . . of warm-blooded vertebrates
distinguished by having the body more or less completely covered with feathers and
the forelimbs modified as wings.” Merriam-Webster’s Collegiate Dictionary 125
(11th ed. 2005). A “chicken” is a “common domestic fowl[.]” Id. at 213; Oxford
Dictionaries, www.oxforddictionaries.com/us/definition/american_ english/chicken

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(“A domestic fowl kept for its eggs or meat[.]”). A “hen” is “a female chicken[.]”
Merriam-Webster’s 	Collegiate 	Dictionary 	580; 	Oxford 	Dictionaries,
www.oxforddictionaries.com/us/definition/american_english/hen (“A female bird,
especially of a domestic fowl.”). A “fowl” is a “bird of any kind[.]” Merriam-
W e b s t e r ’ s 	C o l l e g i a t e 	D i c t i o n a r y 	4 9 5 ; 	O x f o r d 	D i c t i o n a r i e s ,
www.oxforddictionaries.com/us/definition/american_english/fowl (“A gallinaceous
bird kept chiefly for its eggs and flesh[.]”). Chickens are poultry. See Merriam-
Webster’s Collegiate Dictionary 972. “Poultry” are “domesticated birds kept for eggs
or meat[.]” Id.; Oxford Dictionaries, www.oxforddictionaries.com/us/definition/
american_english/poultry (defining “poultry” as “[d]omestic fowl, such as chickens,
turkeys, ducks, and geese.”). Finally, “a domesticated animal kept for pleasure rather
than utility” and “kept for companionship or pleasure” is a pet. Merriam-Webster’s
Collegiate Dictionary 926; Oxford Dictionaries, www.oxforddictionaries.com/us/
definition/american_english/pet (defining “pet” as “[a] domestic or tamed animal kept
for companionship or pleasure”). The parties do not spar much over what a “pet” is.
The definitions do not state that pets cannot also have utility. For purposes here, hens
kept as a source of eggs are poultry, and hens also kept as a source of companionship
or pleasure can be a pet. It is manifestly unclear, however, what “recognized” means.

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The District Court’s Decision
{8} 	We commend the district court for favoring the parties with a detailed letter
decision that included procedural history, arguments, applicable law, legal analyses,
evidence including historical facts, and the court’s analyses and interpretations and
views about the covenants and the words in Section 11. It is from the court’s letter
decision that the association primarily hinges its arguments.
{9} 	The district court cited our Supreme Court’s four unchanged rules for
interpreting restrictive covenants set out in Hill v. Community of Damien of Molokai,
1996-NMSC-008, ¶ 6, 121 N.M. 353, 911 P.2d 861. “[I]f the language is unclear or
ambiguous, [the appellate courts] will resolve the restrictive covenant in favor of the
free enjoyment of the property and against restrictions.” Id. The appellate courts “must
interpret the covenant reasonably, but strictly, so as not to create an illogical,
unnatural, or strained construction.” Id. We “will not read restrictions on the use and
enjoyment of the land into the covenant by implication.” Id. We “must give words in
the restrictive covenant their ordinary and intended meaning.” Id. These rules
constitute “our four rules for construing restrictive covenants[.]” Sabatini v. Roybal,
2011-NMCA-086, ¶ 13, 150 N.M. 478, 261 P.3d 1110. “Failure to apply the rules of
construction [of restrictive covenants] is an error of law.” Id. ¶ 7.

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{10} 	Although it explicitly acknowledged the four Hill rules of interpretation, the
district court focused its attention on an analysis in Agua Fria Save the Open Space
Ass’n v. Rowe, 2011-NMCA-054, 149 N.M. 812, 255 P.3d 390, in which this Court
held that “extrinsic evidence is admissible to explain or clarify, but not to vary or
contradict, a restrictive covenant’s terms.” Id. ¶ 21. The district court stated that Agua
Fria’s approach did not obligate the courts to apply the rule of strict construction in
resolving a factual dispute regarding the restrictive covenant’s meaning.
{11} 	In the district court, relying on Agua Fria, the association focused on a view
that the covenant language in question unambiguously set a community-wide standard
as to what is a “recognized household pet”—meaning the standard must “come from
the 	Eldorado 	community 	through 	the 	[d]emocratic 	process 	of 	amending 	the
[c]ovenants[.]” Although, at the same time, the association broadened this standard
to a “broader society” standard and offered testimony about the pet chicken trend
nationally. The association alternatively argued that if the district court found an
ambiguity, the affidavits and evidence offered from individuals in the local and
national community supported a finding that “a chicken is . . . not a recognized
household pet” and that, although “[p]eople may like them [and] they want to have
them as pets[,] . . . it doesn’t meet the standard in this community.”

8
{12} 	The district court ultimately agreed with the owners that the phrase “recognized
household pets” was not defined in the covenants and was unclear on its face.
However, upon determining that the covenant was ambiguous, the district court
looked to Agua Fria and in doing so went beyond our Supreme Court’s interpretative
rules for determining restrictive covenant meaning. Agua Fria states that extrinsic
evidence can be admitted to explain or clarify a restrictive covenant’s terms to obtain
contextual understanding and holds that “a court may hear evidence of the
circumstances surrounding the making of the contract and any relevant usage of trade,
course of dealing, and course of performance.” 2011-NMCA-054, ¶ 20 (internal
quotation marks and citation omitted). Agua Fria also states that the Supreme Court’s
“rule of strict construction must be subordinate to the intention of the parties as
reflected by the language of the whole instrument, the circumstances surrounding the
transaction, and the purposes animating the restrictions” and that the rule favoring free
enjoyment and against restrictions “cannot be applied to defeat the obvious purpose
of the restrictions.” Id. ¶ 18 (internal quotation marks and citation omitted). Agua Fria
holds that, when interpreting restrictive covenants, “[t]he intent of the parties . . .
govern[s].” Id. (internal quotation marks and citation omitted).
{13} 	To animate these additional rules of interpretation, Agua Fria, which addressed
the propriety of a grant of summary judgment, relied on a view that restrictive

9
covenants are contracts and are to be interpreted under the rules of contract
interpretation set out in C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070,
¶¶ 12-18, 112 N.M. 504, 817 P.2d 238, and Mark V, Inc. v. Mellekas, 1993-NMSC-
001, ¶¶ 9-13, 114 N.M. 778, 845 P.2d 1232. The Agua Fria Court felt free to consider
extrinsic evidence to explain the purposes and contextual understanding underlying
restrictive covenants as though the covenants were a contract. Agua Fria, 2011-
NMCA-054, ¶¶ 20-21. It felt free, then, to consider evidence surrounding the making
of the contract and of any relevant usage of trade, course of dealing, and course of
performance. Id. And the Agua Fria Court concluded that “the courts are not obligated
to apply the rule of strict construction . . . regarding [a] restrictive covenant’s
meaning.” Id. ¶ 21.
{14} 	The district court in the case now before us treated the covenants as a contract
and called on the contract interpretation rules stated in Agua Fria, Mark V, and C.R.
Anthony. In granting summary judgment, the district court concluded that the owners’
interpretation of Section 11 was “inconsistent with the uniformity contemplated by the
covenants” and would “create an illogical result[.]” The district court determined that
the owners’ interpretation would “render the covenant meaningless” and was
“inconsistent with the intent and purposes of the covenants when analyzed under the
modern rule of construction and results in foreseeable illogical results when analyzed

10
under the general rule of construction.” In addition, the district court expressed
concern that “[c]onstruing the covenant to allow individual owners complete freedom
to designate any creature they want as a household pet would frustrate the purposes
of the covenants and create a dangerous precedent leaving other property owners
without [any] recourse (unless it was a nuisance under the covenants).” Furthermore,
the court determined that the owners’ interpretation “would open the door to an
unlimited multitude of different kinds of creatures being kept inside and outside of
homes . . . without regulation or control under the covenants (except nuisances)
leaving the other homeowners without recourse.” These determinations were
significantly driven by the association’s extrinsic evidence offered to uncover the
covenants’ original meaning.
The Evidence
{15} 	The district court considered the developer’s 1972 covenants and even
considered the reputation of the subdivision in the 1970s and 1980s. It considered
evidence that the association historically viewed the covenant not to permit
chickens—a history, as explained by the court, that indicated that chickens had not
been considered by the association as recognized household pets and that the
association had historically taken enforcement action against individual owners who
had chickens on their property. Also, according to the court, no historical evidence

11
existed that chickens or other livestock had been contemplated by the developer or
accepted by the association as allowable.
{16} 	The association’s evidence in major part consisted of affidavits. William
Donohue, who was general manager of the association beginning in 2006, provided
an affidavit and documents relating to what the association’s “policy and practice”
was and had been. He also reported on the association’s planning and enforcement
activities, on its grants of variances, and on holding an election on proposed
alternative covenant amendments. Mark Conkling, who served as manager of the
association from 1987 to 1995, as a member of the association’s architectural
committee, and as a member of the association’s board of directors, also provided an
affidavit. Conkling was one of the first home builders in the subdivision and provided
some information in his affidavit subject to valid hearsay, speculation, and lack of
foundation objections.
{17} 	In the owners’ view, even were the foregoing extrinsic evidence allowable, any
opinion of the current association board or past boards, any surmised intent of the
original developer in 1972, any surmised intent of voters in 1995 apart from the
language in the covenant, and any hearsay evidence presented by a subdivision home
builder, constituted elusively speculative and fleeting evidence. Specifically, this
evidence consisted of unreliable factors that were changeable at any given time due

12
to changes in association membership and residential makeup and depending on who
at any given time might be interpreting Section 11, with contrary views always
present. According to the owners, even if allowable, the extrinsic evidence could not
support an interpretation that Section 11 flatly forbids hens.
{18} 	The association also presented an affidavit of Dr. Kristy Pabilonia, an associate
professor and diagnostic veterinarian at Colorado State University, and an expert in
commercial poultry populations and backyard poultry flocks, both rural and urban. Dr.
Pabilonia discussed disease found in flocks and opined as to the classification of
backyard poultry flocks. She stated that “[p]oultry has not historically been considered
‘household pets,’ and traditional household pets, such as dogs and cats, are not
regulated as agricultural animals by the USDA.” She further stated that her scientific
surveys of owners of backyard poultry flocks showed that 86% maintained chickens
as a source of food, meat, or eggs, and that 42% maintained chickens as pets,
companions, or hobby animals. In addition, she stated that “keeping backyard poultry
flocks for any purpose, including as a source of food, meat[,] or eggs, or as hobby
animals, has become a significant phenomenon only within the past ten years [or] so,
since the mid-2000s.” The district court concluded that “[t]his significantly indicates
that in broader society[,] chickens are not recognized as household pets by most.”

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{19} 	The district court also found to be significant the vote in a subdivision-
sponsored election held in 2012, relating to two proposed changes to Section 11
language, one allowing chickens and one not allowing chickens. Presumably based
on the association arguments that by a vote of 55.4% to 44.6% the voting homeowners
rejected the proposed covenant amendment that would have specifically allowed
chickens under the Section 11 definition of “household pets,” the court concluded that
the voting homeowners of the subdivision voted not to include chickens within the
meaning of “household pets” under the covenant language.
{20} 	The owners describe the election differently. In their view, the association’s
arguments fail because the covenants require that 50% plus one of all subdivision
property owners had to vote in favor of an amendment for it to be enacted. The owners
show that of the total of subdivision property owners, only 35.07 % voted for a
covenant that would expressly forbid hens; 29.99% voted for a covenant that would
expressly allow residents to keep pet hens on their property; leaving 35.04% of the
subdivision residents who did not vote. The vote was therefore insufficient under the
covenants for any amendment to be adopted, and the election left in place the original
acknowledged ambiguity. Therefore, the owners argue that the election was an “ad
hoc inconclusive opinion poll[]” having no bearing on covenant interpretation.

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The Covenant Must Be Construed to Favor the Owners
{21} 	The notions expressed in the covenants of maintaining the “pastoral” and
“rural” nature of the area and the historical traditions of the region would appear to
lend themselves to allowing animals, birds, and poultry as recognized pets. If the
Eldorado community did not want poultry because poultry were not recognized as
household pets, it is reasonable to assume that the residents would have removed the
language that anticipates and permits poultry as household pets. We do not think that
it is reasonable to read the language of Section 11 to reflect an intent that the only way
poultry could be “recognized” as household pets was if the association or a large
number but less than a majority of lot owners recognized poultry as such.
{22} 	We agree with the district court that the covenant language was unclear and
ambiguous. 	Ambiguity 	is 	created 	when 	provisions 	are 	reasonably 	and 	fairly
susceptible to different constructions. Levenson v. Mobley, 1987-NMSC-102, ¶ 7, 106
N.M. 399, 744 P.2d 174. In light of the ambiguity, the district court should have
applied the reasoning in Hill, which addressed a restrictive covenant governing use,
not the reasoning in Agua Fria, which addressed an ambiguity in a landowner’s ability
to extinguish restrictive covenants under a saving clause in restrictive covenants. The
ambiguity was not in any particular restrictive covenant as to use. We see no
reasonable basis in the case presently before us on which to treat enforcement of the

15
covenants governing the use of lots as a contract to be governed by the rules and
approach used in Agua Fria. Hill, rather than Agua Fria, governs this case. The facts
here and in Hill differ significantly from the facts in Agua Fria. Agua Fria did not
resolve an ambiguity in a covenant governing use. And restrictive use covenants
involve valuable property rights and extrinsic evidence should not provide the basis
for interpretation of those covenants.
{23} 	In Agua Fria, the issue on appeal was whether, as a matter of law, the defendant
developer had properly extinguished restrictive covenants on a tract of undeveloped
land (the country club tract) pursuant to a “saving clause.” 2011-NMCA-054, ¶¶ 2-9.
The plaintiff in Agua Fria argued that the extinguishment provision in the saving
clause did not apply to the country club tract, and thus, the developer should not have
been permitted to extinguish restrictive covenants. Id. ¶¶ 9, 14. This Court ultimately
determined that the saving clause was ambiguous as applied to the tract, id. ¶ 17, and
then proceeded to analyze the saving clause pursuant to contract law. Id. ¶¶ 18-25.
The Agua Fria opinion’s broad swath of contract interpretation of ambiguous
restrictive covenants could not have purposely been intended to apply to restricted
land use. The extinguishment provision in the saving clause did not and was not
intended to place any additional restrictions on the use of land. Agua Fria is therefore
significantly distinguishable. To that end, we firmly side with a view that the meaning

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of ambiguous restrictive use provisions should be tested under the Hill qualifiers and
not under contract interpretation rules.
{24} 	We suspect that the interpretive variances between Agua Fria and Hill stem
from the types of issues that the parties sought to resolve. In Hill, our Supreme Court
considered whether a group home constituted “residential use” of a property and
whether the individuals in the group home were a “single family” as required by the
restrictive use covenant. 1996-NMSC-008, ¶¶ 7-21. The Court rightly held that, when
ambiguous, covenants restricting the use of land should be resolved in favor of free
use. Id. ¶ 6. In applying its test, the Court was able to fully resolve the issues in favor
of the property owners. Id. ¶¶ 11, 21, 52. In Agua Fria, however, Hill’s test likely
would not have fully resolved the matter because the dispute was not direct with
regard to the use of land. Because the covenant at issue in Agua Fria dealt with a
party’s ability to extinguish covenants, Hill’s factors regarding free enjoyment of the
property and restrictions by implication would not have translated and would not have
guided the Court in Agua Fria to a clear resolution. Here, application of the Hill
factors alone can and does resolve the issue.
{25} 	Further, it is important to keep in mind that restrictive “covenants constitute
valuable property rights of the owners of all lots in the tract.” Montoya v. Barreras,
1970-NMSC-111, ¶ 12, 81 N.M. 749, 473 P.2d 363. Reliance on restrictive covenants

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is a valuable property right. Wilcox v. Timberon Protective Ass’n, 1990-NMCA-137,
¶ 42, 111 N.M. 478, 806 P.2d 1068, abrogated on other grounds by Agua Fria, 2011-
NMCA-054, ¶ 22. Thus, the rules set out by our Supreme Court in Hill are controlling
in the case before us. See Hill, 1996-NMSC-008, ¶ 6. The Hill interpretative rules
have been fully recognized by this Court. See Sabatini, 2011-NMCA-086, ¶¶ 7-10;
see also Wilcox, 1990-NMCA-137, ¶ 18 (acknowledging a four-part test applies to
restrictive covenants); cf. Mayer v. Smith, 2015-NMCA-060, ¶ 17, 350 P.3d 1191
(stating that “[t]his Court has established a distinction between contract interpretation
and easement interpretation with regard to extrinsic evidence”).
{26} 	What the developer may have had in mind, how individual association members
over time may have viewed the language, whether the association over time
successfully enforced Section 11 without court assistance, and any “community” or
“broader society” sense of Section 11’s meaning, constitute fleeting and speculative
proof of meaning in this case, as did that of Dr. Pabilonia regarding when the advent
of chickens as pets may have emerged in contemporary society. Dr. Pabilonia actually
confirmed that a substantial percentage of chicken owners keep chickens as pets.
{27} 	We therefore disagree that Section 11 disallows hens that can be and are treated
as pets. And we disagree that to allow hens as household pets creates or opens up any
likely circumstances of ruination as expressed by the association and the district court

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that warrants an interpretation that allowing the hens as pets could never have been
intended at any time and under any circumstance. We are not persuaded that in
permitting pet chickens “the sky will fall.” Such a Chicken Little-esque view of
possible 	results 	and 	calamity 	is 	not 	convincing. 	We 	also 	disagree 	with 	an
interpretation that whether hens may be permitted depends on a majority vote of the
members of the association or on a vote of some particular number below 50% of
voting lot owners. If the association or the lot owners of the subdivision want a
different result, the lot owners must effectuate the change through the required
covenant amendment election process set out in the covenants.
CONCLUSION
{28} 	Section 11 of the covenants cannot be enforced under the circumstances in this
case to preclude the owners from keeping their hens as recognized household pets. We
reverse the judgment of the district court.
{29} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
LINDA M. VANZI, Judge
_______________________________
J. MILES HANISEE, Judge