ALJDEC decisions subject to certification as final

12F-H1213005-BFS · Department of Fire Building and Life Safety - H/C · 2013-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2013, at 8:00 a.m. The matter was held open until March 5, 2013, to allow parties to file memoranda regarding subject matter jurisdiction. APPEARANCES: William Cavanaugh (hereinafter “Petitioner”) appeared on his own behalf. Agua Dulce Homeowners Association (hereinafter “Agua”) appeared through its attorney, Douglas W. Glasson, Esq., The Curl Law Firm, P.L.C. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT The Department of Fire, Building and Life Safety (the “Department”) is authorized by statute to receive Petitions for Hearings from members of homeowners’ associations and from homeowners’ associations in Arizona. Agua is a homeowners’ association located in Tucson, Arizona. Petitioner owns a residence in, and is a member of, Agua. Petitioner filed a petition with the Department alleging that Agua had violated the provisions of A.R.S. § 33-1205. Petitioner specifically alleged that Agua had violated Pima County Zoning Laws and Agua’s CC&Rs by allowing homeowners to plant non-native plants and plants that were other than low-pollen, low-water vegetation plants.[1] Agua’s Answer to the Petition provided, in pertinent part, as follows: The Department has the power to interpret and enforce the private contracts and rules that regulate Agua Dulce. Pima County Zoning Code Co9-85-50 is not a private rule or contract between the Petitioner and Agua Dulce. The Department does not have subject- matter jurisdiction over alleged infractions of the Pima County Zoning Code.

Petitioner’s Testimony Petitioner produced exhibits and testified that Agua was violating Pima County Zoning Laws by allowing homeowners to plant non-native plants and plants that were other than low-pollen, low-water vegetation plants. Petitioner stated that Agua had failed to follow the plant list approved by Pima County.[2]. Petitioner acknowledged that there were similar non- native, non low-pollen, non low-water vegetation planted in the area surrounding Agua. Petitioner stated that he suffered health issues as a result of the vegetation planted in and around Agua. Petitioner testified that he was a member of the architectural review committee (“ARC”) for Agua. Petitioner stated that a member of the ARC informed him that she did not care about the vegetation planted in Agua. Petitioner stated that Agua could cause the removal of non-native, non low-pollen, non low-water vegetation from the individual homes within Agua.[3] Linda Ware’s Testimony Linda Ware (hereinafter “Ms. Ware”) testified that she had lived at Agua since 2008 and was a member of the Agua ARC. Ms. Ware stated that Agua was concerned about maintaining the value of homes within Agua. Ms. Ware testified that one of the main functions of the ARC was maintaining control of the vegetation planted in homeowners’ private backyards. Ms. Ware denied that she had stated that Agua had allowed high-pollen and high-water usage plants to be planted in Agua. Ms. Ware stated that the cost of implementing the changes in vegetation suggested by Petitioner would be very high. Ms. Ware stated that Petitioner had not brought his complaint regarding the issues set forth in the petition to the Board of Agua. Ms. Ware testified that the Agua is very strict regarding the vegetation that is allowed to be planted in homeowners’ front yards and maintained a list of approved vegetation guidelines for vegetation that can be planted in homeowners’ private backyards. Ms. Ware acknowledged that she was not a plant expert.[4] Betty Blaylock’s testimony Betty Blaylock (hereinafter “Ms. Blaylock”) testified that she is president of the Board of Directors (“Board”) for Agua. Ms. Blalock stated that she was present at the ARC meeting with Ms. Ware and Petitioner and that she heard the conversation between Ms. Ware and the Petitioner. Ms. Blaylock testified that Ms. Ware stated that she had gone to Pima County and was informed by Pima County that Pima County was not concerned about the vegetation planted in homeowners’ private backyards in Agua.[5] Terry Anderson’s testimony Terry Anderson (hereinafter “Mr. Anderson”) testified that he was a homeowner in Agua. Mr. Anderson stated that he was concerned about the possibility of private property rights being “trampled.” Mr. Anderson testified that he was very concerned about the potential costs of the removal of vegetation that was already planted homeowners’ private backyards.[6]

PROVISIONS OF LAW REFERENCED AT HEARING BY PETITIONER

1. A.R.S. § 33-1205 provides as follows: Applicability of local ordinances, rules and building codes A. A zoning, subdivision or building code or other real estate use law, ordinance or rule shall not prohibit a condominium form of ownership or impose any requirement on a condominium which it would not impose on a physically identical development under a different form of ownership. B. Except as provided in subsection A, this chapter does not invalidate or modify any provision of any zoning, subdivision or building code or other real estate use law, ordinance or rule.

CONCLUSIONS OF LAW

1. A.R.S. § 41-2198.01 permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities. That statute provides that such petitions will be heard before the Office of Administrative Hearings. 2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issue in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 4. Petitioner’s testimony and evidence presented at hearing referred to alleged violations of Pima County Zoning Ordinances. The Department does not have jurisdiction over alleged violations of Pima County Zoning Codes. 5. Petitioner failed to present any credible evidence that Agua violated any statutes regulating homeowners’ associations or that Agua violated any of Agua’s CC&Rs. 6. This Tribunal concludes that Petitioner’s Petition should be dismissed.

RECOMMENDed order

In view of the foregoing, it is ORDERED that no action is required of Agua in this matter and that the Petition is dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of this Order will be five (5) days from the date of that certification.

Done this day, March 11, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety

----------------------- [1] See Brief Statement Identifying the Single Issue to be Addressed at Hearing. [2] See Exhibit No. J. [3] 2/4/13 Hearing Record (hereinafter “H.R.”) at 28:24-1:27:46. [4] H.R. at 1:27:48-2:10:10. [5] H.R. at 2:10:53-2:14:30. [6] H.R. at 2:14:40-2:19:43.

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

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