concurring only in the judgment of the court and Part III. A. of the majority opinion.
I agree with the majority's determination that the Evergreen Highlands covenants per*10mitted the adoption of the 1995 amendment by 75 percent of the lot owners and that the trial court was justified in finding the amendment binding on all lot owners, whether they voted for it or not. Because the amendment is an express covenant providing for the imposition of mandatory assessments, I would not address the hypothetical question whether the Association would have the implied power to collect assessments in the absence of such an express provision. I would especially not, under these cireumstances, legislate a new category of common-interest community and impute powers to that entity, as I believe the majority does.
Whether or not it was adequately preserved for appeal, the Association's alternate argument concerning implied powers was addressed by neither the district nor the appellate court below. In light of this court's finding of a valid, express covenant providing for the imposition of mandatory assessments, resolution of the implied powers question is not only unnecessary but actually premised upon a condition held by the court not to exist in this case. Perhaps most importantly, however, in its attempt to formulate and announce a new rule of general applicability (unanchored by its effect on the outcome of any existing case or controversy), the majority needlessly construes Colorado's Common Interest Ownership Act and the American Law Institute's restatement of the law concerning common-interest communities, and does so in a way that, in my opinion, is at least questionable.
Unsurprisingly, other jurisdictions have found on occasion, in the particular cireum-stances of individual cases, an implied power of a community to levy mandatory assessments on individual lot owners, flowing from an implied-in-fact contract. See maj. op. at 7-8. Without restricting those fact-specific holdings in any way, the Restatement suggests the more general concept of a "common-interest community," defined by certain common characteristics, from which its powers, including the implied power to levy assessments, necessarily flow. While its definition is perhaps broader than that of Colorado's Common Interest Ownership Act,1 even the Restatement would categorize as a "common-interest community" only a development or neighborhood in which individually owned lots are burdened by a servitude that imposes an obligation to support common property or pay assessments to an association with the responsibility of maintaining it or enforcing servitudes on the property in the development. See Restatement (Third) of Property: Servitudes § 6.2 (2000).
The Restatement specifically emphasizes that "[it does not purport to authorize the imposition of assessments by property-owner groups that are not common-interest communities." Id. at $ 6.5 emt. &a. Although it makes no attempt to describe all of the circumstances under which a qualifying servitude might be found, the Restatement imputes the power of assessment as a general matter only to communities in which membership in the association is mandatory or the individual lots are so burdened. Rather than suggesting that all residential developments or neighborhood organizations necessarily have the power of assessment, the Restatement merely finds that a power of assessment is implied from the need to enforce existing servitudes on individual lots.
In relying on the Restatement as authority for its broad notion of a "common interest community by implication," the majority, in my view, needlessly dilutes the necessary characteristics of a common-interest community from which its inherent powers derive and injects a kind of circularity into its reasoning. - If the declarations in this case actually "made clear that a homeowners association ... had the power to impose annual membership or use fees on lot owners," maj. op. at 8-9, without their voluntary participation, injecting the general concept of a common-interest community would seem to be superfluous. The power to levy assessments on lot owners would already be express, or at least be clearly implied by the *11particular provisions of the declarations. And to the extent that the majority's expansive definition of "declarations," as including the Association's Articles of Incorporation, is dependent upon their character as "governing documents" of a common-interest community, the servitude necessary to create the common-interest community in the first place certainly could not be inferred from the articles themselves.
Even if I considered guidance from this court to be both important and appropriate in some situations, I would nevertheless be reluctant to give it were I to find no greater clarity or consensus concerning the applicable legal principles than I find here. I fear that the majority's discussion of implied powers of assessment is likely to raise more questions than it resolves. Because I consider this dictum to be both gratuitous and highly questionable, I would omit it altogether. I therefore concur only in the judgment of the court and Part III. A. of the majority opinion.
. "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. § 38-33.3-103(8), 10 C.R.S. (2002).