ALJDEC decisions subject to certification as final

19F-H1919063-REL · Department of Real Estate - H/C · 2019-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2019 APPEARANCES: Petitioner Marc. D. Archer appeared on behalf of himself. Nichols C. Hogami, Esq. appeared on behalf of Respondent PMPE Community Association, Inc. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson ____________________________________________________________________ FINDINGS OF FACT 1. Respondent PMPE Community Association, Inc. (PMPE) is a homeowners’ association located in Glendale, Arizona. 2. Petitioner Marc D. Archer owns a residence in and is a member of PMPE. 3. In September of 2017, Mr. Archer submitted plans for a garage addition to the PMPE Board (Board). 4. The Board issued a preliminary approval of Mr. Archer’s plans. 5. However, the Board did not issue a final approval of Mr. Archer’s plans after the Board learned that Mr. Archer planned to construct a flat roof to the garage addition which would be enclosed on all sides, with a height that would exceed the height of the adjoining wall. 6. The height of the adjoining wall was 9 feet. 7. Although Mr. Archer’s existing garage roof was arched, Mr. Archer did not want to construct a pitched roof on his garage addition.

8. As a result, the Board notified Mr. Archer that he could construct a flat roof on his garage addition if the height of the roof was below the height of the adjacent wall, so that the flat roof would not be visible to neighboring properties, pursuant to Article 1.34 of PMPE’s Covenant, Conditions, and Restrictions (CC&Rs). 9. PMPE CC&R 1.34 provides:

“Visible From Neighboring Property” means, with respect to any given object, that such object is or would be visible to a person six feet tall, standing at ground level on any part of the adjoining Lot or Common Area. Notwithstanding the foregoing, an object in a back yard, which back yard is enclosed by a wall, which does not exceed the height of the wall enclosing the back yard shall not be deemed to be Visible From Neighboring Property.

10. On or about May 10, 2019, Mr. Archer filed a petition with the Arizona Department of Real Estate (ADRE) alleging that PMPE had violated Arizona Revised Statutes (A.R.S.) § 33-1817(3). Mr. Archer alleged that PMPE unreasonably withheld approval of his plan for a garage addition with a flat roof that would exceed the height of the adjacent wall. 11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 12. On or about June 18, 2019, the ADRE issued a Notice of Hearing which provided, in relevant part, “The Petitioner alleges that [PMPE] violated A.R.S. § 33-1817(3).” 13. A hearing was held on August 12, 2019. 14. At hearing, Mr. Archer testified on behalf of himself. PMPE presented the testimony of Keith Scott Kauffman, a member of the PMPE Board of Directors. 15. Mr. Archer contended that the design plan for his proposed garage addition was harmonious with the surrounding structures. Mr. Archer asserted that the flat roof that he would connect to his existing pitched roof would look similar to the other side of this home which has a pitched roof and a flat top patio. Mr. Archer also contended that PMPE does not consistently enforce the CC&Rs against other homeowners, but attempts to enforce the CC&Rs against him. Mr. Archer contended that PMPE has previously approved other homeowners to add patios to their homes which were not in harmony with the surrounding structures. Mr. Archer contended that PMPE allowed a homeowner to keep a kitchen countertop in his front yard for almost a year and a cart for longer than the allowable timeframe under the governing rules. Mr. Archer contended that PMPE’s enforcement of the CC&Rs is arbitrary and discriminatory. 16. PMPE denied that it failed to enforce the CC&Rs against a homeowner that had kept a countertop in his front yard for almost a year. PMPE denied that it approved the construction of patio additions that were not harmonious with the surrounding structures. 17. PMPE contended that the CC&Rs provide that pitched roofs are an important part of the visual environment and should predominate. PMPE contended that the architectural design must be harmonious with surrounding structures. PMPE argued that it reasonably required that Mr. Archer construct a pitched roof on his garage addition, because his existing garage had a pitched roof. Furthermore, PMPE was willing to allow Mr. Archer to construct a garage addition with a flat roof if the roof was not visible to neighboring properties, pursuant to CC&R 1.34. 18. Article 5.10 of the PMPE CC&Rs provides, in relevant part, as follows:

The Board may appoint an Architectural Committee to perform certain architectural control functions set forth in this Declaration…………..

The Board, or the Architectural Committee if so appointed, may promulgate architectural design, with particular regard to the harmony of the design with the surrounding structures and topography;

19. Section 4.4 of the PMPE Architectural Rules provides, in relevant part, as follows:

Since roofscapes will form an important part of the visual environment, they must be carefully designed. It is intended that pitched roofs predominate. Pitched roofs shall be hipped whenever possible and may have a maximum slope of five to 12 feet (5’ to 12’)……

Roof projections and overhangs are encouraged as a response to energy and climate concerns…

All flat roof patio areas must have parapets.

CONCLUSIONS OF LAW 1. The ADRE has authority over this matter. See A.R.S. Title 32, Ch. 20, Art. 11. 2. At an administrative hearing, the party asserting a claim, right, entitlement, or affirmative defense has the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code 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. The CC&Rs are a contract between the parties and the parties are required to comply with its terms. See Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003). 5. In Arizona, when a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. See Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006); see also Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006) (the tribunal must give effect to a contract’s clear and unambiguous terms). 6. An association shall not unreasonably withhold approval of a construction project’s architectural plans. See A.R.S. § 33- 1817(3). 7. Mr. Archer submitted plans to the Board for the construction of a garage addition with a flat roof that would exceed 9 feet in height. The weight of the evidence shows that PMPE Architectural Rules provide that pitched roof were should predominate, and that Mr. Archer’s plans to construct a flat roof was not harmonious with the surrounding structures, including, but not limited to, the pitched roof on Mr. Archer’s existing garage. 8. The preponderance of the evidence provided at hearing established that the Board reviewed the plans and specifications submitted by Mr. Archer for the construction of the garage addition and reasonably determined that the plans for were not consistent with the CC&Rs and Architectural Rules. 9. Upon consideration of all of the evidence presented at hearing, the Administrative Law Judge concludes that Mr. Archer failed to prove by a preponderance of the evidence that PMPE violated A.R.S. § 33-1817(3). order In view of the foregoing, IT IS ORDERED that Respondent be deemed the prevailing party in this matter. IT IS FURTHER ORDERED that this petition be 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 Ariz. Rev. Stat. section 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 3, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

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