ALJDEC decisions subject to certification as final

20F-H2020056-REL · Department of Real Estate - H/C · 2020-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Don France,

Petitioner,

vs.

Mesa East Property Owners Association,

Respondent

No. 20F-H2020056-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 1, 2020

APPEARANCES: Don France on his own behalf; B. Austin Bailio, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On June 8, 2020, the Arizona Department of Real Estate issued a Notice of Hearing setting the above-captioned matter for hearing on July 28, 2020 at the Office of Administrative Hearings in Phoenix, Arizona. The matter was continued and the hearing was conducted on September 1, 2020.

The Notice of Hearing shows that Petitioner Don France alleges that Respondent Mesa East Property Owners Association has violated CC&R section 2.7.

Mr. France appeared and testified and presented the testimony of Joann Van Kirk; the Association presented the testimony of Michael Estey and Donald Smith.

On April 16, 2020, Mr. France filed a single issue petition through which he alleged that Respondent was in violation of CC&R section 2.7

As pertinent to this matter, that section requires that RVs stored on a property be behind a structure with a six foot high gate. The City of Mesa’s code also requires RVs to be behind a six foot gate.

On March 11, 2019, the Association issued to Mr. France a Notice of Violation because his RV structure did not have a six foot gate. On May 31, 2019, the Association fined Mr. France $500 because his RV structure did not have a six foot gate.

At the hearing, Mr. France acknowledged that he was not actually asserting that the Association was in violation of section 2.7, but rather that the Association was estopped from finding that he was in violation of that provision.

Mr. France is requesting that the tribunal rule that the Association may not require him to install a gate and that any outstanding fines be found invalid.

Prior to the hearing, Mr. France had installed a six foot gate to comply with a Notice of Violation issued by the City of Mesa.

In 2014, Mr. France applied for and received approval from the Association to make improvements to his property, including building an RV port or shelter on the side of his house.

In his application, Mr. France acknowledged that he had read and understood the deed restrictions and would abide by the same; he also acknowledged that he would comply with the City of Mesa’s codes.

In 2014, the version of the CC&Rs adopted in 1994 was in effect; section 2.7 provided that recreational vehicles could be stored behind a wall or fence provided that the wall or fence and gate was at least six feet tall and was sufficiently tall as to prevent a person from seeing the RV.

The City of Mesa code requires a six foot high gate for RV storage; Mr. France knew that at the time of the hearing, but not in 2014.

On September 4, 2014, the City issued its final permit for the structure. The Association issued its final approval on October 21, 2014.

As built, Mr. France’s structure did not have a gate.

The structure would not have required a gate if there was no RV parked behind it.

In 2014, Ms. Van Ark was the chairperson of Architectural Review Committee (“ARC”). She testified to the effect that she had called the past chair and learned that no gate was required because other property owners had RV shelters without gates. She also called the City of Mesa and was told no gate was required if the structure was attached to the house.

According to Mr. Smith, people were threatening to sue the Association if it did not enforce the CC&Rs, and in or about 2018, he met with the City of Mesa to see if those homes without a gate could be grandfathered in, but the City would not allow that. Consequently, the Association began to enforce the requirement for a six foot gate.

The Association informed the members of the need to comply through its newsletter and online; Residents were given until 2019 to come into compliance.

Mr. France did not comply with the requirement to install a six foot high gate.

On March 11, 2019, the Association issued to Mr. France a first NOV, requiring that he install a gate. Through an attorney, on April 5, 2019, Mr. France asserted that the Association was estopped from enforcing section 2.7 because of its approval of the work in 2014. In a response dated May 15, 2019, the Association’s attorney informed Mr. France’s attorney that it did not agree that estoppel applied, and that it would begin assessing fines of $500 a week until Mr. France filed an application for a permit to add the required gate.

On May 31, 2019, the Association assessed against Mr. France a $500 fine for violating section 2.7. Additional fines were assessed, and the parties attempted to resolve the matter informally but were not successful.

According to Mr. Smith, at the time the NOV was issued to Mr. France, eleven other residents were not in compliance; as of the hearing date there were six residents still in violation, with five having agreed to come into compliance. The Board had not been able to contact the sixth resident.

On July 24, 2019, the City issued to Mr. France a Notice of Violation, citing Code section 11-34-5(B). That code provision requires RVs taller than six feet to be screened by a six foot tall fence. Mesa Code 11-34(5)(B)(3)(c)(iii).

As of the hearing date, Mr. France had installed a temporary gate to comply with the City Code. The cost of the gate was about $800.

CONCLUSIONS OF LAW

In his petition, Mr. France alleges that the Association has violated its CC&Rs. Consequently, the Department of Real Estate has authority over this matter. Ariz. Rev. Stat. Title 32, Ch. 20, Art. 11.

Mr. France bears the burden of proof to show that the alleged violation occurred. 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).

“The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.... If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.” Ariz. Rev. Stat. § 32-2199.02(A).

Mr. France’s petition is limited to the single issue of whether the Association had violated CC&R section 2.7. But at the hearing, Mr. France acknowledged that the Association is not in violation of section 2.7. Consequently, the preponderance of the evidence shows that there is no violation.

At the hearing, Mr. France asserted that the fines levied against him by the Association were not in conformity with the law, which the Association disputes. This issue is not properly before the tribunal because Mr. France did not raise this issue in his petition, he did not pay a filing fee for a second issue, and it was not included in the Notice of Hearing. See Ariz. Rev. Stat. § 41-1092.07(F)(6).

Consequently, Mr. France’s petition should be dismissed.

ORDER

IT IS ORDERED that Don France’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, September 21, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted by US Mail to:

Judy Lowe

Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

B. Austin Baillio

Maxwell & Morgan, P.C.

Pierpont Commerce Center

4854 East Baseline Rd., Suite 104

Mesa, AZ 85206

Don France

7596 E Ananea Cir.

Mesa, AZ 85208

-54864001

001

-137160-45720000