In a recently decided case, the Court of Appeals of Colorado (Division VII), affirmed an association’s prohibition of a home-based service in which “Clients… bring their dogs…where [the owner] counsels the owners to help them communicate with and train their dogs.”
In the case, K9Shrink, LLC v. Ridgewood Meadows Water and Homeowners Association, the owner, a canine behavioral psychologist, attempted to attack the validity of the covenant, as well as its applicability to her operations. The court concluded that she was precluded from challenging the covenant for many reasons, including a Colorado statute that imposes time limitations on such challenges, didn’t object to — and in fact had voted for — the amendments when they were proposed.
Having disposed of that issue, the court moved on to what would seemingly be a simple question — does the counseling of dogs and their owners constitute a “commercial pet-related activity?” The plaintiff, however, attempted to focus on the remainder of the prohibition, which continued “…such as dog boarding kennels, catteries, or commercial breeding operations.” The plaintiff argued that the “such as” was an exclusive limitation, and that an inquiry as to whether counseling was similar to these three listed prohibitions.
The majority of the court rejected that interpretation, holding that “The phrase, ‘any commercial pet-related activities,’ clearly refers to any activity, relating to pets, from which one attempts to earn business income.” The majority opinion also stated they “fail[ed] to discern any remarkable difference in kind between the enumerated activities and those conducted by plaintiffs.”
There was a dissent, however, and the dissenting judge thought the activities did not violate the covenants. Without detailing her analysis, she felt the terms “any” and “such as…” created an ambiguity that was required to be strictly construed. She would have reversed the injunction, and remanded the case back “to the trial court for reconsideration of the plaintiffs’ claims and attorneys fees.
The main take-away from the case: don’t forget, when necessary, to include the words “but not (necessarily) limited to…”