HOA - ALJDEC decisions

22F-H2221009-REL-RHG · Department of Real Estate - H/C · 2022-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sam & Pipper O' Shaughnessy Stangl,

Petitioners,

vs.

Sabino Vista Townhouse Association,

Respondent.

No. 22F-H2221009-REL-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 4, 2022

APPEARANCES: Petitioners Sam & Pipper O' Shaughnessy Stangl appeared on behalf of themselves. Nathan Tennyson, Esq. appeared on behalf of Respondent Sabino Vista Townhouse Association

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

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 in Arizona.

2. Respondent Sabino Vista Townhouse Association (Respondent or the Association) is a homeowners’ association whose members own townhomes in the Sabino Vista Townhouse subdivision (Sabino Vista).

3. Petitioners own a townhome unit in Sabino Vista and are members of Respondent.

4. On or about August 6, 2021, Petitioners filed a single-issue petition with the Department alleging that Respondent had violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs) by failing to maintain and otherwise manage all property up to the exterior lines and patio enclosures.

5. Respondent filed a written answer to the petition, denying that it had violated any CC&Rs.

6. The Department referred the petition to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

7. A hearing was held on November 8, 2021.

8. On November 29, 2021, the Administrative Law Judge issued a decision and found Petitioners to be the prevailing party.

9. Respondent filed a request for re-hearing with the Department.

10. The re-hearing request was granted by the Department and the matter was set for re-hearing on April 4, 2022.

11. A re-hearing was held on April 4, 2022.

12. Article 6 of Respondent’s CC&Rs concerns Common Maintenance. Article 6 of the CC&Rs provides, in relevant part, as follows:

The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping, lighting, parking areas, streets and recreational facilities (including swimming pool service), roofs, common elements, decorative walls, drainage, road way easements and the building located upon the common properties, and such additional maintenance as the Board of Directors of the Association shall from time to time determine to be in the best interest of the Association and the owners and shall maintain and otherwise manage and be responsible for the rubbish removal of all areas within the common properties. The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership. All maintenance and repair of the individual dwelling units and patios shall be the sole obligation and expense of the individual owners, except to the extent the exterior maintenance and repair is provided by the Association.

In the event that the need for maintenance or repair is caused through the willful or negligent act of the owner, his family, guests, tenants or invitees or licensees, the cost of such maintenance or repairs shall be added to and become a part of the assessment to which such owner and his lot are subject.

13. At the re-hearing, Mr. O' Shaughnessy Stangl testified on behalf of himself. Respondent presented the testimony of John Polasi, a member of Respondent’s Board and the Chairman of the Landscaping Committee.

14. At the re-hearing, Petitioners raised a new allegation that Respondent failed to maintain a drainage channel. See Exhibit J.

15. The evidence presented at hearing shows that Respondent determined that it would not maintain the desert area within the Common Area. Mr. Polasi explained that the desert area is located about 35-40 feet away from the back patio walls of the homeowners’ lots.

16. Mr. Stangl contended at hearing that Respondent is required under Article 6 of the CC&RS to maintain the Common Area and remove all rubbish, including the desert area.

17. Mr. Polasi explained that Respondent does not maintain the desert area. Mr. Polasi stated that the desert area serves as a natural buffer to keep animals on the other side from coming onto the property of homeowners. Mr. Polasi also stated that the natural desert area prevents bikers and hikers from wandering into the neighborhood.

18. Respondent plans to trim the trees in the desert area. However, Mr. Polasi stated that Respondent does not currently have the budget required to do so. Mr. Polasi explained that Respondent hires a company called “Mr. Pack Rat” to visit once a quarter and survey the association for snakes or pack rat issues.

19. In support of its case, Respondent submitted into evidence Board Minutes from 2020 that show that the Board determined that any area outside of the “inside of west wall which is at the entrance, inside of north wall, inside east boundary wall denoted by fence and south section denoted 35 feet to south of southern homeowner rear wall” is designated maintained natural desert landscape.” See Exhibit C.

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. This matter lies with the Department’s jurisdiction.

2. Petitioners bear the burden of proof to establish that Respondent violated CC&R § 5(G) 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.” Article VI of the CC&Rs provides that the Association, “....shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping and common elements....” The Association is also required to use a “high standard of care” in the maintenance of the Association’s property “so that said townhouse project will reflect a high pride of ownership.”

5. Petitioners have failed to establish by a preponderance of the evidence that Respondent failed to maintain a drainage channel and thereby violated its CC&Rs.

6. It is undisputed that the Respondent has not maintained the area designated as natural desert area that lies within its Common Area. Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. The Administrative Law Judge concludes that the CC&Rs require that the Association maintain and remove all rubbish within its property up to the exterior building lines, including the natural desert area. If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.

order

IT IS ORDERED that Petitioners be deemed the prevailing party in this matter.

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this Order.

IT IS FURTHER ORDERED Respondent is directed to comply with the requirements of Article VI of the CC&Rs going forward.

No Civil Penalty is found to be appropriate in this matter.

NOTICE

This administrative law judge order, having been issued as a result of a rehearing, is binding on the parties. A.R.S. § 32-2199.02(B). A party wishing to appeal this order must seek judicial review as prescribed by A.R.S. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties. A.R.S. § 12-904(A).

-54864001

001

-137160-45720000Done this day, April 25, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile April 25, 2022 to:

Nathan Tennyson, Esq.

Blake R. Johnson, Esq.

The Brown Law Group, PLLC

373 S. Main Ave.

Tucson, AZ 85701

[email redacted]

Sam & Pipper O' Shaughnessy Stangl

7134 E. Sabino Vista Cr.

Tucson, AZ 85750

[email redacted]

Louis Dettorre

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

By: Miranda Alvarez