ALJDEC decisions subject to certification as final
20F-H2019009-REL · Department of Real Estate - H/C · 2019-12-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jeffrey S. Audette
Petitioner,
vs.
Sun Harbor Community Association dba Desert Harbor Homeowners Association,
Respondent
No. 20F-H2019009-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 5, 2019
APPEARANCES: Mark J. Bainbridge, Esq. appeared on behalf of Petitioner Jeffrey S. Audette. Lauren Vie, Esq. appeared on behalf of Respondent Sun Harbor Community Association dba Desert Harbor Homeowners Association.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Sun Harbor Community Association dba Desert Harbor Homeowners Association (Sun Harbor) is a homeowners’ association located in Peoria, Arizona.
2. Petitioner Jeffrey S. Audette owns a residence in and is a member of Sun Harbor.
3. Mr. Audette’s home is located along the waterfront of Desert Harbor Lake.
The shoreline is near the rear of his home.
4. In February of 2018, Mr. Audette removed two wrought iron fences and replaced them with 5 foot high block walls within 15 feet of the lake lining setback.
5. Mr. Audette did not request permission from Sun Harbor’s Architectural Committee before he replaced the iron fences with block walls.
6. When Mr. Audette submitted a request to Sun Harbor’s Architectural Committee for his construction plan in March of 2018, Sun Harbor Architectural Committee denied his request.
7. Mr. Audette filed an appeal with Sun Harbor regarding the denial.
8. Sun Harbor upheld the denial.
9. On May 9, 2018, Sun Harbor notified Mr. Audette that he was in violation of Sun Harbor Covenants, Conditions, and Restrictions (CC&R) Article IV, Section 2(a) because he converted his wrought iron fences into block walls without obtaining prior approval from Sun Harbor (violation notice).
10. On or about September 4, 2019, Mr. Audette filed a petition with the Arizona Department of Real Estate (ADRE) alleging that Sun Harbor had improperly denied his request to replace the fences on his property with block walls. In the petition, Mr. Audette alleged that Sun Harbor had violated Sun Harbor CC&R Article IV, Section 2(a). Mr. Audette also alleged that Sun Harbor inconsistently enforces Sun Harbor rules. Mr. Audette provided the May 9, 2018 violation notice with his petition.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. On or about On October 9, 2019, the ADRE issued a Notice of Hearing which provided, in relevant part, “The Petitioner alleges that [Sun Harbor] is in violation of community document CC&Rs Article IV, Section 2(a) and the guidelines in a single-issue petition.”
13. A hearing was held on December 5, 2019.
14. At hearing, Mr. Audette testified on behalf of himself. Sun Harbor presented the testimony of Yvette Rushford and Bud Levey.
15. Mr. Audette asserted that Sun Harbor unreasonably denied his construction plan. Mr. Audette argued that his immediate left and right approved of the modification. Mr. Audette explained that his neighbors that own properties to his immediate left and right approved of his plan to replace the iron fences with block walls. Mr. Audette explained that he had obtained permission from the sub-association before he began construction. Mr. Audette stated that he previously served on the Sun Harbor board and that Sun Harbor routinely granted requests which were previously granted by a sub-association. Mr. Audette asserted that no other homeowners can see his block walls other than his immediate neighbors. Mr. Audette had admitted into evidence several photographs of the home and yard of several homeowners in Sun Harbor.
Mr. Audette asserted that the photographs showed that several other homeowners were in violation of Sun Harbor Guidelines that prohibit a structure, fence or shrubs with a solid height greater than 3 feet in the 15 foot setback of the concrete shoreline.
16. Mr. Audette provided no written or oral testimony to establish that Sun Harbor had not enforced the guidelines against the other homeowners.
17. Sun Harbor Architectural Guidelines provide, in relevant part, as follows:
As set forth below, written notification of any proposed changes must be submitted to the Committee for its consideration prior to undertaking the project. The Committee will take into consideration the suitability of the proposed alteration, the material to be used (including type and color), the site (including location, topography, finished grade elevation) upon which it is proposed to be erected, the harmony thereof with the surroundings and the effect of the alteration as planned on any adjacent or neighboring property.
18. Mr. Audette was required to obtain prior written approval from the Sun Harbor Architectural Committee before he removed the wrought iron fences on his property and replaced them with block walls. See Sun Harbor CC&Rs Article IV, Section 2(a).
19. No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks. See Respondent’s Exhibit 3, Sun Harbor Architectural Guidelines adopted September 2002, Specific Guidelines, pg. 11.
20. Mr. Levey testified that Sun Harbor denied Mr. Audette’s request for approval because no structures above three feet are permitted within 15 feet of the setback. Furthermore, Mr. Levey testified to the effect that replacing the iron fences with block walls was inharmonious with the surroundings and obscured the view of the lake.
21. Ms. Rushford testified that the construction of the block walls obscured the view of the lake. Ms. Rushford explained that homeowners on lots 1 through 9 could see the block walls. Ms. Rushford explained that no other homeowners in Sun Harbor have removed the wrought iron fences and replaced them with five foot high block walls. Ms. Rushofrd asserted that Sun Harbor was concerned with creating a precedent for other homeowners.
CONCLUSIONS OF LAW
The ADRE has authority over this matter. See Arizona Revised Statutes (A.R.S.) Title 32, Ch. 20, Art. 11.
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.
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).
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 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.
An association shall not unreasonably withhold approval of a construction project’s architectural plans. See A.R.S. § 33-1817(B)(3).
Mr. Audette removed the wrought iron fences and replaced them with
block walls without obtaining permission from the Sun Harbor Architectural Committee. It is the duty of the Architectural Committee to review proposed changes and consider among several factors, the harmony of the proposed change to the surroundings.
8. Sun Harbor established by a preponderance of the evidence that it reasonably determined that Mr. Audette’s construction was not consistent with the CC&Rs and Architectural Guidelines.
9. Mr. Audette provided no written evidence or testimony to establish that Sun Harbor violated Article 4, Section 2(a) of the CC&Rs.
10. Mr. Audette failed to establish that Sun Harbor selectively enforced its governing documents.
11. Upon consideration of all of the evidence presented at hearing, the Administrative Law Judge concludes that Mr. Audette failed to prove by a preponderance of the evidence that Sun Harbor violated A.R.S. § 33-1817(B)(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, December 25, 2019.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate
Transmitted through US Mail to:
Jeffrey S Audette
14554 N 90th Lane
Peoria, AZ 85381
Beth Mulcahy, Esq.
Mulcahy Law Firm, PC
3001 E. Camelback Rd., Suite 130
Phoenix, AZ 85016