ALJDEC decisions subject to certification as final

19F-H19190064-REL · Department of Real Estate - H/C · 2019-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2019 APPEARANCES: Petitioner Myron H. Colvin appeared on behalf of himself. Nicholas Nogami, Esq. appeared on behalf of Respondent Tierra Del Sol RV Resort Association. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

FINDINGS OF FACT 1. At all times relevant to this matter, Petitioner Myron H. Colvin was a member of Respondent Tierra Del Sol RV Resort Association (Tierra Del Sol). 2. In March of 2018, Mr. Colvin submitted a request to Tierra Del Sol to install concrete pavers in the setback area of his Lot. 3. Tierra Del Sol approved Mr. Colvin’s request. 4. In March of 2019, Mr. Colvin submitted a second request to place concrete pavers in the setback area of his Lot. 5. Mr. Colvin did not begin installation in 2018 because he left the state and could not complete the project. 6. Tierra Del Sol approved Mr. Colvin’s second request. 7. Mr. Colvin installed concrete pavers in the setback area of his Lot. 8. On May 8, 2019, Tiera Del Sol issued a Notice of Violation to Mr. Colvin. Tierra Del Sol alleged that Mr. Colvin violated Covenants, Conditions, and Restrictions (CC&Rs) § 4.3 because the pavers installed by Mr. Colvin were not small enough to be removed by one person without the assistance of a mechanical device. Tierra Del Sol further advised that Mr. Colvin could correct the violation by removing the concrete from the setback area, or by cutting the concrete in the 3 foot setback into small 100 pound sections. 9. On or about May 10, 2019, Mr. Colvin filed a petition with the Arizona Department of Real Estate (DRE) which contained an allegation that Tierra Del Sol violated CC&R § 4.3. 10. On or about May 16, 2019, Mr. Colvin submitted a document to DRE and the Architectural Officer of Tierra Del Sol which provided, in relevant part, “I Myron Colvin am requesting a hearing by the full Board of Directors about my so call violation section 4.3 page 9 of the [CC&Rs]”. 11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 12. A hearing was held on August 7, 2019. 13. Tierra Del Sol CC&R § 4.3 provides: Lot Setbacks: Restrictions. Each Lot shall be subject to a setback area across the front five (5) feet, on both sides three (3) feet, and the rear three (3) feet of each Lot. No permanent or temporary structures, improvements (other than landscaping), vehicles (other than golf carts and car dollies), Park Models or Recreational Vehicles shall be located within such setback area. A Recreational Vehicle, Park Model, Arizona Room, awning, shed, or any other permitted structure must be located on a Lot in compliance with setback requirements and rules of the Board, and in no event shall any Recreational Vehicle, its slide-out, or any Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback.

14. Mr. Colvin contended that Tierra Del Sol previously approved his request to place concrete pavers that would be cut into 3 x 5 ft pieces, into the setback of his Lot. Mr. Colvin asserted that he had not violated CC&R § 4.3. 15. Tierra Del Sol argued that the only way that CC&R § 4.3 could be violated is if a person, owner, or entity placed an unapproved object or improvement in a setback area. Tierra Del Sol asserted that the petition should be dismissed because Mr. Colvin did not even contend, nor provide any facts to establish that Tierra Del Sol placed an object or improvement in the setback area of a Lot. Tierra Del Sol also contended that the OAH did not have jurisdiction over Mr. Colvin’s request for a declaratory judgment regarding the issue of whether Mr. Colvin violated CC&R § 4.3. CONCLUSIONS OF LAW 1. Arizona Revised Statues (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.[1] This matter lies with the Department’s jurisdiction. 2. Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] 4. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties.[6] “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”[7] CC&R § 4.3 forbids the placement of structures, vehicles, or landscaping features in the setback area of a Lot, under certain conditions. Mr. Colvin did not even allege that Tierra Del Sol placed a structure, vehicle, or landscaping in the setback of a Lot. Mr. Colvin asserted that he did not violate Section 4.3 of the CC&Rs. 5. Mr. Colvin failed to establish that Tierra Del Sol violated section 4.3 of the Tierra Del Sol CC&Rs. To the extent that Mr. Colvin is requesting a declaratory judgment regarding his alleged violation, this tribunal does not have jurisdiction to make such a determination. order IT IS ORDERED, the petition 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 days of the service of this Order upon the parties. Done this day, August 27, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

----------------------- [1] See A.R.S. § 33-1803, which authorizes homeowners associations in planned communities to enforce the development’s CC&Rs [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006). [7] Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993) (quoted in Powell, 211 Ariz. at 557 ¶ 16, 125 P.3d at 377).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826