ALJDEC decisions subject to certification as final

19F-H1919064-REL-RHG · Department of Real Estate - H/C · 2020-01-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Myron H Colvin,

Petitioner,

vs.

Tierra Del Sol RV Resort Association,

Respondent

No. 19F-H19190064-REL-RHG

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 20, 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. Petitioner Myron H. Colvin owns property in Respondent Tierra Del Sol RV Resort Association (Tierra Del Sol).

2. On or about September 12, 2018, Mr. Colvin filed a single-issue petition with the Arizona Department of Real Estate (Department). The petition contained an allegation that Tierra Del Sol violated section 4.3 of its (Covenants, Conditions, and Restrictions (CC&Rs).

3. On or about May 16, 2019, Mr. Colvin submitted a document to the Department and the Architectural Officer of Tierra Del Sol that 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]”.

4. The original hearing on Mr. Colvin’s petition was conducted on

August 7, 2019. After the Administrative Law Judge issued a decision in that matter, Mr. Colvin requested a rehearing.

5. On or about October 29, 2019, the Department issued an order setting the above-captioned matter for rehearing on December 20, 2019, at the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

6. A rehearing was held on December 20, 2019.

7. Mr. Colvin requested to install concrete pavers in the setback area of his Lot. Tierra Del Sol approved the request.

8. On May 8, 2019, Tiera Del Sol issued a Notice of Violation to Mr. Colvin. Tierra Del Sol alleged that Mr. Colvin violated CC&R § 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. 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.

10. Mr. Colvin asserted that he had not violated CC&R § 4.3.

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.

11. Tierra Del Sol’s position was 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 argued 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 further 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. 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. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

3. “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.”

4. 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.” 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.

Done this day, January 9, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

NOTICE

This administrative law judge order, having been issued as a result of a rehearing, is binding on the parties. A.R.S. § 32-2199.02(B). A party wishing to appeal this order must seek judicial review as prescribed by A.R.S. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties. A.R.S. § 12-904(A).

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

Transmitted US mail to:

Myron H. Colvin

18115 Keasy Rd.

Vernonia, OR 97064

Lydia A. Peirce Linsmeier

CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

1400 E. Southern Ave., Suite 400

Tempe, Arizona 85282

-54864001

001

-137160-45720000