ALJDEC decisions subject to certification as final
18F-H1817019-REL · Department of Real Estate - H/C · 2018-02-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jerry L. Webster,
Petitioner,
Mountain Rose Homeowners Association,
Respondent.
No. 18F-H1817019-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 9, 2018
APPEARANCES: Petitioner Jerry L. Webster appeared on behalf of himself.
Nathan Tennyson, Esq. appeared on behalf of Respondent Mountain Rose Homeowners Association.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Mountain Rose (“Mountain Rose”) Homeowners Association is a home owners association located in Scottsdale, Arizona.
2. Petitioner Jerry L. Webster (“Mr. Webster”) owns a home and is a member of Mountain Rose.
3. From 2016 to 2017, Mountain Rose issued a series of notices to
Mr. Webster requesting that he trim his tree and clean debris around his home.
4. On or about December 6, 2017, Mr. Webster filed a petition with the Arizona Department of Real Estate (“Department”) alleging that Mountain Rose violated Article 10.8 of the Declaration of Covenants, Conditions and Restrictions for Mountain Rose (“CC&Rs”). The petition provides, in relevant part, as follows:
The intent of this action is to stop the HOA from violating our
civil rights by prejudicially harassing us with unclear and unwarranted violation notices. The HOA has harassed us for over 10 years with vague violation notices. Numerous, and all recent notices received, failed to include the following subsections of Article 10.8: Item ii, the legal description of the Lot against which the notice is being Recorded. Item iii ( assuming the Article being violated should be named), a brief description of the nature of the violation, item iv, a statement that the notice is being Recorded by the Association pursuant to this Declaration, and, most importantly, Item v, a statement of the specific steps which must be taken by the Owner or occupant to cure the violation.
Numerous requests were made for clarification of the CC&Rs in question and/or what was required to become complaint, which were ignored. Numerous violation notices, because they were prejudicial and not valid, did not result in a fine and were dropped without notice. Recently we were fined 3 time totaling $175, which should be refunded, with no responses to multiple request for clarification. The intent has been harassment. Certainly, they were successful in causing us grief because we were forced to respond to each violation. We are now in limbo.
NOTE: To help understand the bias in recent notices sent, the ones we received fines for, on a review of the neighborhood, there were 22 trees touch dwellings, including ours. It is very doubtful any other member received notices or fines for identical circumstances. Howe many other members received notices of the tree overhanging the street: Probably zero! We were fined $100.
Without any responses from the HOA describing what was required, we had out tree extensively trimmed on November 22nd, 2017. WE cannot address all of the harassment that has taken place. WE do not feel confident this is a good example of their behavior.
Also included: (1) An aerial photo dated 11/06/2012 showing the tree has been touching the roof and overlapping the street for a long time without notices and fines. (2) A photo dated March 20, 2017 depicting one of numerous other homes in the neighborhood with trees touching the dwelling. (3) A photo dated March 20, 2017 showing how similar tress maintained by the HOA weekly were at that time shedding faster than normal maintenance can take care of.
NOTE: page count does not include the 47 pages of the HOA CC&Rs, it was unclear if it should be included.
5. Article 10.8 of Mountain Rose’s CC&Rs provides as follows:
Notice of Violation. The Association shall have the right to record a written notice of a violation by any owner or Resident of any restriction or other provision of the Project Documents. The notice shall be executed by an officer of the associate and shall contain substantially the following information; (i) the name of the Owner or Resident violating, or responsible for the violation of, the Project Documents; (ii) the legal description of the Lot against which the notice is being recorded; (III) a brief description of the nature of the violation; (iv) a statement that the notice is being Recorded by the Association pursuant to this Declaration; and (v) a statmetn of the specific steps which must be taken by the Owner or occupant to cure the violation. Recordation of a notice of violation shall serve as notice to the Owner or Resident, and any subsequent purchaser of the Lot, that there is such a violation. If, after the recordation of such notice, it is determined by the Association that he violation referred to in the notice does not exist or that het violation referred to in the notice does not exists or that the violation referred to if the notice has been cured, the Association shall record a notice of compliance that shall state the legal description of the Lot against which the notice of violation was Recorded, and the recording data of the notice of violation, and shall state that the violation referred to from the notice of violation has been cured or that the violation did not exist. Failure by the Association to Record a notice of violation shall not constitute a waiver of such violation, constitute an evidence that no violation exists with respect to a particular Lot or constitute a waiver of any right of the Association to enforce the Project Documents.
6. Article 1.33 of Mountain Rose’s CC&Rs provides, in relevant part, as follows:
“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.
7. On December 22, 2017, the Department issued a notice setting the above-captioned matter for hearing on February 9, 2018. The December 22, 2017 Notice of Hearing provides, in relevant part, as follows:
The Petitioner alleges violation of Association CC&Rs Article 10,
Section 10.8 Notice of Violation by the Mountain Rose Homeowners Association (“Respondent”).
7. Mountain Rose filed a timely response to the petition.
8. A hearing was held on February 9, 2018.
9. Mr. Webster testified on his own behalf and presented the testimony of his wife, Pamela Webster. Mr. Webster submitted one exhibit. Mountain Rose presented the testimony of Frank Puma, a manager for Mountain Rose, and submitted exhibits A through F.
10. Mr. Webster contended that Mountain Rose violated CC&Rs 10.8 because the notices failed to provide a legal description of the Lot against which the notices is being Recorded, a brief description of the nature of the violation, a statement that the notice is being Recorded by the Association and a statement of the specific steps which must be taken by the Owner to cure the violation.
11. There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.
12. Mountain Rose contended that the notices issued to Mr. Webster were not recorded. Mountain Rose also argued that it had previously informed Mr. Webster that his tree needed to be trimmed 8 feet above the ground.
CONCLUSIONS OF LAW
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:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
4. Mountain Rose CC&Rs Article 10.8. applies to the recording of notices
and recorded notices. There was no evidence provided at hearing that the notices issued by Mountain Rose were placed in the office of the County Recorder of Maricopa County, Arizona. Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him. Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.
ORDER
IT IS ORDERED that Petitioners’ petition in this matter is dismissed.
NOTICE
Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Done this day, February 9, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate
Done this day, February 28, 2018
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted us mail to:
Jerry L. Webster
2115 East Rosemonte Dr.
Phoenix, AZ 85024
Mountain Rose HOA
c/o AZ Community Managment Services, LLC
17787 N. Perimeter Dr., Suite A-111
Scottsdale, AZ 85255
Mountain Rose HOA
c/o Brown/Orcutt, PLLC.
373 S. Main Ave.
Tucson, AZ 85701