ALJDEC decisions subject to certification as final

20F-H2020042-REL · Department of Real Estate - H/C · 2021-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Charles P Mandela,

Petitioner,

vs.

Blue Ridge Estates Homeowners' Association,

Respondent

No. 20F-H2020042-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 13, 2021

APPEARANCES: Petitioner Charles P. Mandela appeared on his own behalf via Google Meet. Nicholas Nogami, Esq. appeared on behalf of Respondent Blue Ridge Estates Homeowners Association of Coconino County.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

1. The Arizona Department of Real Estate (“Department”) is authorized by statute to receive and to decide Petitions for Hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

2. Respondent Blue Ridge Estates Homeowners Association of Coconino County (“Blue Ridge”) is a homeowners’ association whose members own single-family houses on lots in the Blue Ridge Estates development in Happy Jack, Arizona.

3. Petitioner Charles P. Mandela owns a house in and is a member of Blue Ridge.

4. On August 28, 2019, Mr. Mandela submitted a Request Approval Improvement and or changes to Exterior of Home or Property to build a “patio shade less than 200 sq. feet”. The patio shade in question was a four post structure that appeared to be a stand-alone structure, however, Mr. Mandela intended to attach the same to the east side wall of his residence.

5. On October 25, 2019, Blue Ridge denied Mr. Mandela’s request stating,

Attached is the application for modification in regards to a wooden gazebo. At this time the committee has decided that this application cannot be approved per the Architectural Committee Standards Article X. Only one structure other than the residence may be placed on the property. The site plan that was given for review shows the residence and also a shed on property already existing, this would be the allowable limit per the Architectural Standards.

6. On or about January 13, 2020, Mr. Mandela filed a petition with the Department that alleged that Blue Ridge had violated CC&R’s Article X by denying his request to place the patio shade on the property.

7. Blue Ridge filed a written answer to the petition, denying that it had violated any CC&Rs or Architectural Committee regulation. Blue Ridge also filed a Motion to Dismiss. The Department referred the petition to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

8. On October 7, 2020, this tribunal held a hearing on the Motion to Dismiss and denied Respondent’s request for the same and set a hearing for the matter to be heard on its merits.

9. A hearing was held on January 13, 2021.

10. Mr. Mandela passionately argued that his request to erect the patio shade should not have been denied as it was going to be attached to the house and not a separate stand-alone structure, and thus arguing that the denial was erroneous. Mr. Mandela offered several photographs of other properties with multiple structures on the property and several stand-alone patio shade structures similar to what he was planning to erect.

11. Blue Ridge contended that it followed Article X of the CC&Rs in properly denying Mr. Mandela’s request. At hearing, Blue Ridge pointed to Article III of the CC&Rs as the reason for denying the request because the shade would classify as another structure on the property.

CONCLUSIONS OF LAW

1. 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. Such petitions will be heard before the Office of Administrative Hearings, an independent state agency.

2. Petitioner bears the burden of proof to establish that Respondent violated CC&R § 3.1 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. Article X in the Blue Ridge CC&Rs established the architectural committee as well as the architectural standards property owners must follow. It is unclear from the Petition which specific section Mr. Mandela is challenging the denial, but this tribunal examines specifically Sections 10.2 and 10.3.

5. Section 10.2 states in pertinent part,

The Architectural Committee shall have jurisdiction over all original construction and any modifications, additions or alterations to improvements on any portion of the Property including, but not limited to, the construction or installation of, or modifications, additions or alterations to: all buildings or structures; landscaping; fences; heating, ventilating, air conditioning and cooling units; solar panels; paint; and any other construction, modification, addition or alteration affecting the exterior appearance of any structure or Lot.... Such standards and procedures may include, without limitation, provisions regarding:

(a) the size of the buildings or structures;

(b) architectural design, with particular regard to the harmony of the design with surrounding buildings or structures and topography;

(d) landscaping design, content and conformance with the character of the Property, and permitted and prohibited plants;

(e) requirements concerning exterior color schemes, exterior finishes and materials;

(f) signage; and

(g) perimeter and screen wall design and appearance.

(Emphasis added). The reason given in the October 25, 2019 e-mail denial referenced that “[o]nly one structure other than the residence may be placed on the property.” Thus the denial complies with this section because the list was not an exhaustive one, and as such the committee could properly deny the request.

6. Further Section 10.3 states in pertinent part,

No original construction and no modification, alteration or addition subject to the Architectural Committee’s jurisdiction (including, but not limited to, landscaping) shall be commenced until it has been approved or is deemed approved by the Architectural Committee as provided herein. ... The Architectural Committee shall have thirty (30) days after receipt of such plans, specifications, and elevations to approve or disapprove of the proposed construction, installation, modification, alteration or addition or to request additional information, and, if the Architectural Committee disapproves, to give such Owner or other person or entity reasonably detailed written reasons for such disapproval....

(Emphasis added). Blue Ridge complied with this section as well because the October 25, 2019 e-mail provided reasonably detailed written reasons. The e-mail did not have to specify which section it was referencing, just an explanation of the denial.

7. Mr. Mandela went to great lengths to show how the structure was going to be attached and therefore making the reason in the denial void. However, the tribunal believes that the reason would still fall under Section 10.2 as the list was not exhaustive.

8. The tribunal is aware that this is not Mr. Mandela’s first attempt to have the patio shade approved. It is disappointing that Mr. Mandela and Blue Ridge cannot come to some agreement on this issue, as it appeared similar shades exist on other properties with additional structures. While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.

9. Therefore, Petitioner did not establish that Respondent violated CC&R Article X.

order

IT IS ORDERED that Petitioners’ petition is denied.

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 30 days of the service of this Order upon the parties.

-54864001

001

-137160-45720000Done this day, January 29, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

Transmitted through US Mail to:

Charles Mandela

4769 Starlight Dr.

Happy Jack, AZ 86024

[email redacted]

Nicholas Nogami, Esq.

CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

1400 E. Southern Ave, Suite 400

Tempe, AZ 85282

[email redacted]

-54864001

001

-137160-45720000