ALJDEC decisions subject to certification as final

20F-H2019008-REL · Department of Real Estate - H/C · 2019-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert S. Nickell,

Petitioner,

vs.

Holiday Harbour Property Owners Association,

Respondent.

No. 20F-H2019008-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 19, 2019

APPEARANCES: Robert S. Nickell on his own behalf; Larry Boquette for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On October 2, 2019, the Arizona Department of Real Estate issued a Notice of Hearing setting the above-captioned matter for hearing on November 19, 2019 at the Office of Administrative Hearings in Phoenix, Arizona.

Robert S. Nickell alleges that Respondent Holiday Harbour Property Owners Association has violated Ariz. Rev. Stat. section 33-1817(B)(3) in what is ostensibly a single issue petition. In his petition, Mr. Nickell asserts that the Association has unreasonably denied his request to build a home that would be seventeen feet in height, and alternatively, that he should be granted a variance as allowed by section 11 of the CC&Rs.

Mr. Nickell filed his petition with the Department on August 23, 2019.

Mr. Nickell appeared and testified on his own behalf; the Association presented the testimony of President Larry Boquette and Board members Douglas Clark and Michael Frue.

Section 6 of the CC&Rs provides that structures may not “exceed fifteen (15) feet in height above lot grade”.

Section 11 allows the Association to waive or vary the height restriction in “its discretion” in circumstances where the height restriction “would cause extreme or material hardship” to the parcel owner.

Mr. Nickell and his wife bought a lot at 4835 Marina View in August 2018. Mr. Nickell also owns other property within the Association.

The Marina View lot formerly had a house on it and it still has a garage.

Mr. Nickell requested approval to build a home with an attached RV garage that would have a height of seventeen feet. That request was denied.

Mr. Nickell asserts that the Association has allowed others to build homes with heights greater than fifteen feet and he asserts that the Association previously considered the “lot grade” to be the “highest buildable point.”

In support of his position, Mr. Nickell presented photographs showing houses with RV garages that are more than fifteen feet in height.

Mr. Nickell presented evidence showing that the home next to his lot is at a higher elevation and that if his home is built as he requests, it will be six to eight feet lower than the neighboring home.

Mr. Nickell testified to the effect that considering the elevation difference between his lot and the neighboring lots, a home that is seventeen feet in height will not affect his neighbors’ views.

The Association enforces the CC&Rs’ height restriction not to preserve any member’s views, but rather as a matter of fairness.

The Association allows members to excavate down from the lot grade to accommodate buildings that are more than fifteen feet tall. The lots that Mr. Nickell identifies as having structures that are more than fifteen feet tall have done so in compliance with the CC&Rs by excavating down from the lot grade.

Correspondence that Mr. Nickell included with his petition shows that the Association considers the grade at which the original house was located to be the lot grade and the highest buildable point. Through its letter, the Association informed Mr. Nickell that he could excavate down from that grade and build the house and garage with a total height of seventeen feet two inches and remain in compliance with the CC&Rs.

Mr. Nickell asserts that he cannot excavate to accommodate a seventeen foot building because the lot would not drain properly.

Mr. Nickell testified that the Association has suggested that he reverse the footprint of the proposed house, but that would affect his own views and it would affect his ability to use a bathroom in the existing garage, so he has rejected that idea.

The Association considers the highest buildable point or elevation to be an area inside the required setbacks that can accommodate a structure with 800 square feet of livable space.

Mr. Nickell presented plans purporting to show that the lot had been excavated down by about 3.4 feet from the highest buildable point. As such, he argues that he should be allowed to build a home that is 18.4 feet high.

Mr. Clark provided credible and unrebutted testimony that the “highest buildable point” identified by Mr. Nickell is not within the required setbacks.

The Association acknowledges that it granted a waiver to allow a home to be built that was seventeen feet high as measured from the lot grade. That home was one of six waterfront lots on the west side of Highway 95.

CONCLUSIONS OF LAW

The Department of Real Estate has authority over this matter. Ariz. Rev. Stat. Title 32, Ch. 20, Art. 11.

Mr. Nickell bears the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

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).

“Notwithstanding any provision in the community documents: ... 3. Approval of a construction project's architectural designs, plans and amendments shall not unreasonably be withheld.” Ariz. Rev. Stat. § 33-1817(B).

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).

In exercising its authority under the CC&Rs, the Association must act reasonably. See Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007).

Section 6 of the CC&Rs limits the height of structures to fifteen feet above lot grade. The preponderance of the evidence shows that the Association considers the lot grade to be the highest buildable point, which in this case is the elevation at which the former house was located. The Association allows members to excavate down from the highest buildable point to accommodate structures that are taller than fifteen feet, and it has informed Mr. Nickell that he could excavate down and build his house without violating the CC&Rs. This was not unreasonable, and Mr. Nickell has not proven that the Association violated Ariz. Rev. Stat. section 33-1817(B)(3).

Section 11 of the CC&Rs allows the Association to grant a waiver from the fifteen foot limit in cases of “extreme or material hardship.” Mr. Nickell has not proven that adhering to the height restriction of section 6 presents an extreme or material hardship.

Because Mr. Nickell has not met his burden to show that the Association violated Ariz. Rev. Stat. section 33-1807(B)(3), his petition should be dismissed.

ORDER

IT IS ORDERED that Robert S. Nickell’s petition is dismissed.

NOTICE

Pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 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.

-54864001

001

-137160-45720000Done this day, December 6, 2019.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile December 6, 2019 to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Robert S. Nickell

37295 Bighorn Dr.

Parker, AZ 85344

Lawrence E Boquette

Holiday Harbour Property Owners Association

37255 Buckskin Circle

Parker, AZ 85344

By -54864001

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