ALJDEC decisions subject to certification as final

20F-H2020043-REL · Department of Real Estate - H/C · 2020-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wendy Ellsworth,

PETITIONER,

vs.

Vincenz Homeowners' Association,

RESPONDENT.

No. 20F-H2020043-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 19, 2020

APPEARANCES: Brian Hatch, Esq. appeared on behalf of Petitioner Wendy Ellsworth. Mark K. Sahl, Esq. appeared on behalf of Respondent Vincenz Homeowners' Association.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

FINDINGS OF FACT

1. Petitioner Wendy Ellsworth owns property in Respondent Vincenz Homeowners' Association (VHA or Vincenz).

2. On or about January 15, 2020, the Arizona Department of Real Estate (Department) received a single-issue petition from Ms. Ellsworth. The petition contained an allegation that VHA violated section 10.11.1 of its (Covenants, Conditions, and Restrictions (CC&Rs). Ms. Ellsworth’s petition provided, in relevant part, as follows:

waiver of the ability to enforce a specific covenant. Petitioner will prove that the Vincenz CC&Rs do not contain a relevant non-waiver provision and that that violations of the street parking prohibition have been “frequent” since Vincenz’s inception, and therefore, Respondent does not have the right to enforce 10.11.1 [ ] of the CC&Rs regarding parking

All errors in original.

3. VHA CC&R Article 10 § 10.11.1 provides:

Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

4. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

5. On or about February 21, 2020, the Department issued a Notice of Hearing setting the above-captioned matter for hearing on March 27, 2020, at the OAH in Phoenix, Arizona.

6. The Notice of Hearing provided that the issue set for determination was whether VHA was in violation of “community documents CC&R’s Article 10, Section 10.11.1.”

7. A hearing was held on August 19, 2020.

8. At hearing, Ms. Ellsworth initially testified that VHA had never enforced CC&R Article 10, Section 10.11.1. Later in this Ms. Ellsworth admitted on cross examination that she was unsure whether VHA had ever enforced CC&R Article 10, Section 10.11.1.

9. VHA’s position was the petition should be dismissed because

Ms. Ellsworth did not even contend, nor provide any facts to establish that VHA parked an automobile or pickup truck in any area listed in CC&R Article 10 § 10.11.1. VHA contended that the OAH only had jurisdiction over alleged violations of VHA’s governing documents or an applicable Arizona statute, under Ariz. Rev. Stat. § 32-2199.01(A). VHA further contended that the OAH did not have jurisdiction over Ms. Ellsworth’s request for a declaratory judgment that VHA waived its right to enforce CC&R Article 10, § 10.11.1.

CONCLUSIONS OF LAW

1. Ariz. Rev. Stat. § 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 Article 10, Section 10.11.1 forbids parking a private passenger automobile or pickup truck in a roadway, garage, or in an area that has not been designated for parking by the Board. Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.

5. Ms. Ellsworth failed to establish that VHA violated section 10.11.1 of the VHA CC&Rs. To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.

order

IT IS ORDERED, the petition is 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 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, September 8, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

Transmitted through US Mail to:

Brian A. Hatch PLLC

Brian A. Hatch

7405 E. Monte Christo, Suite 201

Scottsdale, Arizona 85260

CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Mark K. Sahl, Esq.

1400 E. Southern Ave, Suite 400

Tempe, AZ 85282-54864001

001

-137160-45720000