ALJDEC decisions subject to certification as final

21F-H2121044-REL · Department of Real Estate - H/C · 2021-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joshua M. Waldvogel,

Petitioner,

vs.

Sycamore Estate Parcel 13 Community Association,

Respondent

No. 21F-H2121044-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 12, 2021

APPEARANCES: Petitioner Joshua M. Waldvogel appeared on his own behalf. Respondent Sycamore Estate Parcel 13 Community Association was represented by Nicole Payne.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Respondent Sycamore Estate Parcel 13 Community Association (Sycamore Estates or Respondent) is an association of homeowners located in Surprise, Arizona.

Petitioner Joshua M. Waldvogel is the record owner of Lot 228 of Sycamore Estates, located at 11208 North 164th Lane, Surprise, Arizona 85388 (Property) and is a member of Respondent.

Pursuant to the Sycamore Estates Declaration of Covenants, Conditions, and Restrictions (CC&Rs), modifications to lots must be submitted and approved by the Sycamore Estates Architectural Committee (ARC). See CC&Rs, Article VI.

On or about September 15, 2020, Sycamore Estates received an architectural application from Petitioner seeking approval of a plan to build a second house, or casita, on the Property (Application).

On or about October 5, 2020, after receipt of the Application, Sycamore Estates, by and through its management company, requested additional information from Petitioner to complete the Application. Specifically, Sycamore Estates requested the appropriate permits for the proposed construction of the casita.

On or about October 6, 2020, in response to the request, Petitioner emailed Sycamore Estates confirming that his architect had verified that the building plans complied with the City of Surprise “laws.” Petitioner did not provide any permits as requested.

On or about November 13, 2020, the ARC reviewed the Application and decided that it should be denied based on Article V, Section 5.2 of the CC&Rs, which prohibits the building of more than one detached single family residence on a lot.

On or about November 19, 2020, Sycamore Estates sent Petitioner the notice of denial (Denial Notice).

Petitioner filed the instant petition asserting that the Application was submitted on September 15, 2020, and therefore, the deadline to approve or deny the Application was November 14, 2020. Petitioner argued that because Sycamore Estates did not issue the Denial Notice until November 19, 2020, the Application was deemed approved.

Sycamore Estates filed a response to the petition denying the allegations.

At hearing, the parties presented their arguments as to when the timeline began for the ARC’s decision on the Application—whether it started on September 15, 2020, or on October 6, 2020.

At hearing, Petitioner argued that Sycamore Estates’ request for additional information did not reset the timeline for a decision on the Application. Therefore, Petitioner maintained that the Application was received on September 15, 2020, and a decision was due by November 14, 2020.

At hearing, Sycamore Estates argued that the Application was not complete until Petitioner submitted the additional information that was requested. As that information was received on October 6, 2020, a decision was not due until December 5, 2020.

CONCLUSIONS OF LAW

The ADRE has authority over this matter. See 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).

Article VI, Section 6.5 of the CC&Rs provides, in pertinent part, as follows:

Application for Approval. Any Owner desiring approval of the Architectural Committee for the construction, installation, addition, alteration, repair, change or replacement of an Improvement which would alter the exterior appearance of the Improvement, shall submit to the Architectural Committee a comprehensive, complete and detailed written request for approval specifying in detail the nature and extent of the construction, installation, addition, alteration, repair, change or other work which the Owner desires to perform (“Application”). Any Owner requesting the approval of the Architectural Committee shall also submit the Architectural Committee any additional information, plans and specifications required by the Design Guidelines. In the event that the Architectural Committee fails to approve or disapprove an Application for approval within sixty (60) days after the Application, together with all supporting information, plans and specifications required by the Design Guidelines have been submitted to it, approval will not be required and this Section will be deemed to have been complied with by the Owner who had requested approval of such plans.

Emphasis added.

Article V, Section 5.2 of the CC&Rs provides, in pertinent part, as follows:

Building Type and Size. No building shall be constructed or permitted to remain on any lot other than one detached Single Family Residence not to exceed two stories in height and a private one to five car garage.

The facts of this matter were not in dispute. The Application was submitted on September 15, 2020, additional information was provided on October 6, 2020, and the Denial Notice was issued on November 19, 2020.

Based on the evidence presented, the Application was not complete until Petitioner provided a response to the October 5, 2020 request from Sycamore Estates. Accordingly, Sycamore Estates was not required to approve or deny the Application until December 5, 2020. As the Denial Notice was issued on November 19, 2020, it was issued prior to the deadline and was, therefore, valid.

Upon consideration of all of the evidence presented at hearing, the Administrative Law Judge concludes that Petitioner failed to establish that Respondent failed to comply with its CC&Rs in a matter that constituted a violation of the governing documents.

order

IT IS ORDERED that Petitioner’s 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 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.

-54864001

001

-137160-45720000Done this day, August 2, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile August 2, 2021, to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Carlotta L. Turman

Nicole Payne

Carpenter Hazlewood Delgado & Bolen LLP

[email redacted]

Joshua M Waldvogel

[email redacted]

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001

-137160-45720000