ALJDEC decisions subject to certification as final

07F-H067020-BFS · Department of Fire Building and Life Safety - H/C · 2007-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 25, 2007 APPEARANCES: Andrew Lynch, an attorney, on behalf of Petitioner; Corey Hill, an attorney, on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

On January 5, 2007, a Petition was filed with the Department of Fire, Building and Life Safety in which Petitioner alleged that Respondent had violated its governing documents and state statutes. Each of the grounds stated in that Petition is discussed separately below.

(1) Failure to maintain common grounds and landscaping. Findings of fact: Petitioner testified that she has been a member of Bells 26 Homeowners Association (Respondent) since October, 2003. Respondent is governed by a Declaration of Restrictions (Declaration), Constitution and By-Laws (Constitution) and Rules. Exhibit R1 In January, 2004, Petitioner planted 12 Cypress trees along a common wall of the community behind her residential unit. Petitioner testified that, prior to purchasing the trees, she asked Jack Bahr, a member of Respondent’s Board of Management (Board), if she were permitted to do so. Mr. Bahr told Petitioner she could do so at her expense. After planting the trees, Petitioner attempted to provide water for them by connecting irrigation “bubblers” to the main irrigation system that supplied water for the common area adjacent to the area where the trees were planted. However, Petitioner testified that the trees have not received adequate water since they were planted. She presented a report from a tree expert, who concluded that the trees had developed poorly due to a lack of adequate water. Exhibit P6. Petitioner also testified that, with the exception of the first year she lived in her unit, the landscaping for the common areas has been poorly maintained. Specifically, she testified that there were several areas where the grass had died, and, on occasion, the hedge outside her front door had not been properly trimmed. See Exhibit P1. Respondent, through the testimony of its former Board president, Gene Holcomb, did not deny that there had been problems with the landscape maintenance during the last several years. He attributed those problems primarily to an inability to retain the services of a qualified landscaper. At the time the photographs in Exhibit P1 were taken, Mr. Holcomb testified that Respondent’s landscaper failed to properly aerate the soil, fertilize and plant the winter grass. The Board fired that landscaping company and hired another, which it also recently fired. In a letter to Respondent’s members, dated June, 2007, the current president of Respondent’s Board acknowledged the landscaping problems and outlined attempts that were being made to correct them. Exhibit P13. In a newsletter published to the association members in July, 2007, the Board detailed the steps it was taking to correct the landscaping problems. Exhibit P15. Conclusions of Law: Respondent acknowledged that it had not been successful in properly maintaining the landscaping in the Association’s common areas. However, The Declaration governing the Board requires only that it “use and expend the assessments collected to maintain, care for and preserve the common elements, buildings, grounds and improvements…” Declaration, Section 12 B. There was no evidence to suggest that the assessments had not been used to maintain the common grounds. The evidence merely established that Respondent’s efforts in that regard did not meet Petitioner’s, or even Respondent’s, expectations. Respondent has recognized the need to improve the landscaping, and has taken reasonable steps toward that end. That is its only obligation under the Declaration. As to the failure to adequately water the trees planted by Petitioner, there was no indication that those trees suffered from Respondent’s landscaping woes to any greater extent than the rest of the landscaping in the common areas. Furthermore, assessments were used, by Petitioner’s own admission, to supply the water received by the trees that she planted. She was simply unhappy with the amount of water they received. That does not constitute a violation of the Declaration.[1] 2. Failure to properly paint Petitioner’s exterior door. Findings of Fact: Section 12 B of the Declaration requires Respondent to maintain the exterior of the buildings. Pursuant to that obligation, Respondent hired a painting contractor to paint the exterior doors on each of the units in the fall of 2005. Petitioner’s door was painted by the contractor, but she was unhappy with the result. Additionally, Petitioner removed a strip of indoor/outdoor carpet beneath her front door threshold when she tiled the concrete area in front of her door. The area where the strip was removed was not painted by Respondent. Exhibit P3. Mr. Holcomb testified that he had inspected the paint job on Petitioner’s door at the time the work was done. He said it was consistent with the painting done throughout the rest of the property and that there were no apparent defects. He also testified that the carpet strip was removed by Petitioner after the painter had completed his contract with Respondent. He testified that Petitioner’s removal of the strip in order to install the ceramic tile shifted the responsibility of finishing the exposed area to Petitioner. Conclusions of Law: There was insufficient evidence to establish that Respondent had failed to properly paint the exterior door of Petitioner’s unit. As to the failure to paint the strip below the threshold where the carpet was removed, the carpet had been removed by Petitioner. Section 13 of the Declaration authorizes Respondent to repair the area exposed when the carpet was removed by Petitioner, but it does not create in Respondent an obligation to do so. Furthermore, if Respondent chose to repair the area where the carpet was removed, it would be permitted to assess Petitioner for the cost of that repair, since the repair was occasioned by the act of Petitioner in altering the exterior of her unit. Declaration, Section 13. Petitioner failed to establish that Respondent had violated the Declaration with regard to its obligation to maintain the exterior of her unit. 3. Failure to hold meetings open to the membership and properly notify membership: Petitioner failed to present any evidence of meetings that were not open to the membership or were conducted without proper notice to the association members. 4. Appointment of non-owner to the Board: Findings of fact: Gary Bodine was originally an owner and member of the association. In February, 2005, he executed a quitclaim deed by which he transferred his interest in his unit to the person with whom he had originally purchased the unit, but he continued to live there. After transferring that ownership, he was appointed to the Board of Management. Although there was some question as to whether the Board was aware of the transfer of ownership when Mr. Bodine was appointed to the Board, he has since resigned from the Board. Conclusions of Law: Mr. Bodine is no longer a member of the Board. Although Respondent argued that, under Section 9 C of the Declaration, ownership was not a requirement for Board membership, the Constitution and By-Laws of the Association defines “membership” as the “owners” of the twenty-six units that comprise the Association. Additionally, the Constitution and By-Laws require that the officers of the Association be elected from the “membership.” Consequently, only owners of units may serve as officers of the Association. Exhibit R1 Mr. Bodine’s membership on the Board violated the Association’s governing documents. However, his resignation has rendered this issue moot. 5. Encroachment of private structures into common areas: There was insufficient evidence to establish that some of the units in the Association had been allowed to build additions which extended into common areas. ORDER Based upon the foregoing, it is ordered denying the Petition.[2] Dated July 26, 2007.

______________________________________ Michael K. Carroll Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Robert Barger, Director Department of Fire Building and Life Safety - H/C ATTN: Joyce Kesterman 1110 W. Washington, Suite 100 Phoenix, AZ 85007

Andrew D. Lynch The Lynch Law Firm 6040 N. 7th Street, Suite 108 Phoenix, AZ 85014 Attorney for Petitioner

R. Corey Hill The Cavanagh Law Firm 1850 North Central Avenue Suite 2400 Phoenix, AZ 85004-4527 Attorney for Respondent

By ___________________________

----------------------- [1] Respondent argued that Petitioner had not followed the proper procedure in obtaining permission to plant the Cypress trees. In support of that position, it cited an amendment to the Rules and Regulations passed October 2, 2005. That amendment requires members to obtain permission in writing signed by three Board members in order to plant trees in the common area. However, that amendment was passed after Petitioner planted the Cypress trees. [2] This Order is the final administrative decision and is not subject to a request for rehearing. A.R.S. §41-2198.02 (B).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826