ALJDEC decisions subject to certification as final
18F-H1818039-REL · Department of Real Estate - H/C · 2018-09-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Patricia Davies-Brown,
Individually and as Trustee of the Trust;
BART A. BROWN, JR. and
SCOTT R. DAVIES
Petitioners,
vs.
Starwood Estates Homeowners Association
Respondent.
No. 18F-H1818039-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 10, 2018 and August 13, 2018.
APPEARANCES: Petitioners appeared on behalf of themselves.
Kristopher L. Smith, Esq. appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about April 25, 2018, the Arizona Department of Real Estate issued a Notice of Hearing setting the above captioned matter for hearing on June 13, 2018 at 9:00 a.m., at the Office of Administrative Hearings in Phoenix, AZ.
2. The Notice of Hearing shows that Petitioners allege that Respondent violated Community CC&Rs, the Community Bylaws and the Community Architectural Guidelines (“Architectural Guidelines”).
3. In the summer of 2013, the Board of Directors (“Board”) of Starwood Estates in Pinetop, Arizona approved a request submitted by Jeff and Karen Martin (“the Martins”) to install a copper-colored metal roof (“copper-colored roof”) on their property located at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates). The request was approved by the Board 5-1. Petitioner Scott R. Davies was the only board member who voted against the approval.
4. The Board reviewed a brochure which contained the color of the copper-colored roof before approving the Martins’ request. See Respondent’s Exhibit 26.
The Board did not observe a physical sample of the roof before approving the request. However, Board member Pat Knight was familiar with the appearance of the copper-colored roofs because she previously owned a home with a quarter mile of Starwood Estates which had a copper colored roof.
5. On or about March 26, 2018, Petitioners filed the petition that gives rise to this matter. The petition provides, in relevant part, as follows:
The overall issue raised by this Petition [sic] is whether the ACC and the Board complied with the Exterior Appearance and Colors provisions of the GUIDELINES in permitting the Martins to install the aluminum copper-colored metal roof on their home on Lot 40 of Starwood Estates.
Such overall issue raises three separate questions as follows:
(1) Does the exterior appearance of the Martins' aluminum copper-colored metal roof blend with the "natural surrounding and landscape" of Starwood Estates?
(2) Does such roof constitute a "reflective surface"?
(3) If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R's and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof on their home situated on Lot 40 of Starwood Estates.
6. A hearing was held on July 10, 2018 and August 13, 2018. 7. At hearing, Petitioner contended that approval of the copper-colored roof was prohibited under the Architectural Guidelines. Petitioner contended that the copper-colored roof was a reflective surface and it did not blend in with the natural surroundings. Petitioner contended that Respondent violated the CC&Rs because the Board approved the roof the copper-colored roof without having first viewed a physical sample of the copper-colored roof. Petitioner also argued that the copper-colored roof could not be installed without first having been approved by the Architectural Committee consisting of two people who were appointed by the Board.
8. Petitioner submitted into evidence a photograph of the Martins’ copper-colored roof. Although the image showed a reflective the image, the photograph was blurred. See Exhibit 13.
9. Respondent’s position was that the approval was proper. Respondent argued that the copper-colored roof could have been approved by the Board or the Architectural Committee.
10. Respondent also contended that the Board’s approval of the copper-colored roof complied with the CC&Rs and the Architectural Guidelines. Respondent asserted that the roof blended in with the natural surroundings and although the roof had a shine, it was not a barred reflective surface under the Architectural Guidelines. Respondent argued that the reflective surfaces prohibited in the Architectural Guidelines applies to windows and doors.
11. The evidence presented at hearing showed that there are several metal roofs in Starwood Estates which are reflective and were approved by the Board. Respondent submitted into evidence images of reflective green and red roofs in Pinetop County Club. See Respondent’s Exhibit 7.
12. Section 5.2 of the CC&Rs provides:
The affairs of the Association shall be conducted by the Board and such officers as the Board may elect or appoint in accordance with the Articles and Bylaws...approvals or actions to be given or taken by the Association shall be valid if given or taken by the Board.
13. Article VII Section A(2) of the Starwood Bylaws provides:
Exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the membership by other provisions of these Bylaws, the Articles of Incorporation, or the Declaration;
14. Article VII, Section B of the Starwood Bylaws provides:
Review and approve any architectural plan for the building of any improvements on any Lots within the Properties as set forth in the Declaration.
15. Section 3.1.4 of the CC&Rs provides:
No addition, alteration, repair, change or other work which in any way alters the exterior appearance, including but without limitation, the exterior color scheme, of any Lot, or the Improvements located thereon, from their appearance on the date this Declaration is Recorded shall be made or done without the prior written approval of the Architectural Committee.
16. The Starwood Estates Architectural Guidelines provide, in relevant part, as follows:
Goals and Objectives:
The basis for the GUIDELINES is as follows -
1. Facilitate sensitive integration of various designs within the overall community;
2. Promote variety in the character of the community through creative land use, architectural design, and landscape design;
3. Utilization of existing natural drainage ways, yet controlling drainage from individual lots;
4. Protection of property values;
5. Site development sensitive to the natural terrain
6. Reinforcement of existing landscape through plantings of appropriate vegetation;
7. Guide the owner/homebuilder/contractor through the design and development process
8. Retain the character of Starwood Estates and the Pinetop Country Club area.
Exterior Appearance and Colors: Exterior appearance shall blend with the natural surroundings and landscape. Small amounts of accent colors will be permitted. Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.
NOTE: ALL EXTERIOR BUILDING MATERIALS AND COLORS SHALL BE APPROVED BY THE ACC. OWNER IS RESPONSIBLE FOR SUBMITTING SAMPLES OF WOOD, STONE, ROOFING, AND PAINT COLOR SAMPLES WITH PLAN REVIEW REQUEST.
Roofs, Materials, and Pitches: Simple pitched gable, hip, or shed roof forms will be permitted in Starwood Estates. All pitched roof materials shall promote a continuity of texture and color. Metal roofs are permitted only with ACC approval. No mechanical equipment of any kind is permitted on roofs.
CONCLUSIONS OF LAW
A.R.S. § 32-2199(B) permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents under the authority Title 33, Chapter 16. This matter lies with the Department’s jurisdiction.
Petitioners bears the burden of proof to establish that Respondent violated its CC&Rs and Bylaws by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”
Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, the Bylaws, and the Architectural Guidelines when it approved the copper-colored roof. The Administrative Law Judge finds that the copper-colored roof could have been approved by the Architectural Committee or the Board.
The evidence presented at hearing established that the bar on reflective surfaces, under the Architectural Guidelines, applies to windows and doors. Roofs are addressed in a separate section under the Architectural Guidelines. The evidence presented at hearing showed that the Board has approved other metal roofs which shine in the daylight. Furthermore, Petitioners failed to establish by a preponderance of the evidence that the copper colored roof did not blend in with the natural surroundings.
order
IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.
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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, September 14, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate
Transmitted US Mail to:
Patricia Davies-Brown
Bart A. Brown, Jr.
Scott R. Davies
9777 E Dreyfus Ave.
Scottsdale, AZ 85260
Starwood Estates HOA
c/o Daniel Campbell &
Kristopher L. Smith O'Connor & Campbell, P.C.
7955 S Priest Dr.
Tempe, AZ 85284