HOA - ALJDEC decisions

22F-H2222062-REL · Department of Real Estate - H/C · 2022-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Dennis Anderson and

Mary Scheller,

Petitioners,

Tara Condominiums Association,

Respondent.

No. 22F-H2222062-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 4, 2022

APPEARANCES: Petitioners Dennis Anderson and Mary Scheller appeared on their own behalf. Lisa Marx and Renee Snow appeared on behalf of Respondent Tara Condominiums Association.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Petitioner’s Claim

Tara Condominium Association (“Respondent”) is a condominium unit owners’ association whose members own the condominiums in the Tara Condominium development in Sun City, Arizona.

Petitioners Dennis Anderson and Mary Scheller own a condominium located at 13661 North Newcastle Drive in Sun City, and they are members of Respondent.

On or about June 9, 2022, Petitioner Dennis Anderson filed a single-issue Petition with the Arizona Department of Real Estate (“Department”) alleging that Respondent had violated its Covenants, Conditions and Restrictions (“CC&Rs”) Section 11 by “unfairly, arbitrarily, and capriciously” rejecting Petitioners’ Architectural Change Form for the construction of a storage shed on Petitioners’ patio. Petitioners alleged that Respondent rejected the request based upon a “non-existent rule (shed must not be higher than patio wall).”

Respondent, through its Board, filed a written Answer to the Petition, denying that it had violated any CC&Rs by failing to approve Petitioners’ Architectural Change Form.

The Department referred the Petition to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.

A hearing was held on August 4, 2022. Administrative Notice was taken of the Agency Record. Petitioners testified on their own behalf and submitted eight exhibits into evidence. Lisa Marx, Chairperson and Secretary of Respondent’s Board, and Renee Snow, Treasurer of Respondent’s Board, testified on behalf of Respondent and submitted three exhibits into evidence.

Referenced CC&Rs

Section 11 of the CC&Rs provides in relevant part as follows:

No exterior additions, or alterations to any building, nor changes in fences, hedges, walls and other structures including, but not limited to color thereof, shall be commenced, erected or maintained until the plans and specifications showing the nature, kind, shape, height, materials, location and approximate cost of same, shall have been submitted to and approved in writing as to conformity and harmony of external design and location with existing structures in the property by an architectural committee composed of the Board of Management, or by a representative designated by the Board of Management. The members of such committee shall not be entitled to compensation for services performed pursuant to this paragraph. No such additions or alterations shall be permitted by any owner until the initial Board of Management has been established.

Hearing Evidence

On January 3, 2022, Mr. Anderson constructed a shed on his patio.

On January 29, 2022, Respondent sent Petitioners a letter that informed them that during a routine walk-through of the community, Respondent became aware that a shed was built on the patio of Petitioners’ unit. See Exhibit B. The January 29, 2022 letter cited to CC&R Section 11 and requested that Petitioners correct the matter “immediately.” Id.

On or about February 2, 2022, Petitioners submitted a Request for Approval of Architectural Change to Respondent for a “storage unit for tools.” See Exhibit 8.

On February 6, 2022, Respondent notified Petitioners that the Board “disapproved the Request for Architectural Change” (“Denial Letter”). See Exhibit C.

The February 6, 2022 Denial Letter advised Petitioners that Board members became aware of the existence of Petitioners’ shed and took photographs of the shed. The Denial Letter quoted CC&R Section 11 as set forth above. The Denial Letter requested that Petitioners “correct this matter immediately” and requested that all specifications for the shed be submitted in writing. The Denial Letter also advised that the shed could not be attached to the condominium and must be below the block wall line by three inches.

On March 2, 2022, Respondent sent another letter to Petitioners stating that during a routine property inspection on February 26, 2022, it was observed that the shed was still on the property and “was found to be in non-compliance. . . .” The March 2, 2022 letter again referenced CC&R Section 11.

On March 21, 2022, an attorney hired by Petitioners sent a letter to Respondent that stated in pertinent part, “[Mr. Anderson] is now aware that such improvement was made without prior consent by the architectural committee of [Respondent] Board.”

Mr. Anderson thereafter filed the Petition in this matter.

During the hearing, Mr. Anderson testified that he moved into the community in 2021, and asked Ms. Scheller, who had been President of Respondent’s Board, if he could construct a shed on the patio. Mr. Anderson testified that Ms. Scheller said, “No problem.” Mr. Anderson testified that he noticed that other units in the community had sheds, and so he proceeded to build his shed on January 3, 2022.

Ms. Scheller was out of state when Mr. Anderson constructed the shed. When she returned she completed the Architectural Change Form for Mr. Anderson. Mr. Anderson asserted that at the time of construction of the shed, he was unaware of the requirement to submit an Architectural Change Form prior to commencing construction.

Mr. Anderson submitted photographs into evidence and testified as to what those photographs depict. Mr. Anderson’s photographs depict his shed, as well as other structures in the community that are higher than the block wall, including a sun shade and other sheds. See Exhibits 1-7.

Mr. Anderson acknowledged that he violated CC&R Section 11 by failing to obtain approval from Respondent prior to constructing the shed. However, Mr. Anderson argued that other sheds were built above the block wall height, and he feels he is being treated unfairly.

Ms. Scheller testified that the Board will not approve the shed because it is built over the wall height, however there is no provision in the CC&Rs that precludes the construction of a structure above the wall height. Ms. Scheller acknowledged that approval should have been obtained prior to construction, and testified that she was unaware that Mr. Anderson was going to construct the shed before she returned to Arizona and could submit the Architectural Change Request.

Ms. Marx testified that on January 14, 2022, Respondent became aware during a routine walk-through that Mr. Anderson constructed the shed without prior approval. Ms. Marx submitted into evidence a photograph of the shed taken during the January 14, 2022 walk-through. See Exhibit A. Ms. Marx testified regarding the above-delineated procedural history, including Petitioners’ submittal of the Architectural Change Form on February 2, 2022, and the Denial Letter dated February 6, 2022.

Ms. Marx testified that the shed needed to be approved prior to construction, however further asserted that the shed could not be attached to the unit and must be at least three inches below the wall height. Ms. Marx testified that Ms. Scheller, while President of the Board, informed her “numerous times” that no structure could be constructed without submitting an Architectural Change Form, that no structure could be attached to the unit, and that all structures had to be at least three inches below the wall height. Ms. Marx testified that this is the “standard in Sun City.” Ms. Marx acknowledged that the specifications she referenced as the “standard in Sun City” are not in writing.

Ms. Marx testified regarding a meeting that the Board had with Mr. Anderson in May 2022. Ms. Marx testified that the Board explained to Mr. Anderson that it was concerned with the weight of the shed and it being attached to the exterior of the unit. Ms. Marx testified that the Board asked Mr. Anderson to remove an interior shelf from the shed, and modify the shed to be free-standing and three inches below the wall height. Ms. Marx testified that at the meeting, Mr. Anderson agreed to make the modifications to the shed by the end of May 2022.

Mr. Anderson did not modify the shed, and instead filed the instant Petition.

CONCLUSIONS OF LAW

A.R.S. § 32-2199.01 permits a condominium unit owner to file a petition with the Department for a hearing concerning the condominium association’s alleged violations of the Condominium Act set forth in Title 33, Chapter 9. This matter lies within the Department’s jurisdiction. That statute provides that such petitions will be heard before the Office of Administrative Hearings.

Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence. See A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2).

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary at page 1220 (8th ed. 1999).

Section 11 of the CC&Rs provides that “[n]o exterior additions, or alterations to any building, . . . and other structures . . . shall be commenced, erected or maintained until the plans and specifications . . . shall have been submitted to and approved in writing . . . by an architectural committee composed of the Board of Management, or by a representative designated by the Board of Management.” (Emphasis added.)

While Petitioner has the right to enforce the requirements of the above provision, Petitioner is also required to abide by the same provision. In this case, Petitioner constructed the shed prior to submitting an Architectural Change Form and obtaining approval.

Therefore, based on a review of the credible and relevant evidence on the record, it is held that Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of Section 11 of the CC&Rs.

order

IT IS ORDERED that no action is required of Respondent in this matter and that 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, August 10, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile August 24, 2022 to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

[email redacted]

Tara Condominium Association

13610 N. 111th Ave.

Sun City, AZ 85351

[email redacted]

Dennis Anderson

13661 N. Newcastle Dr.

Sun City, AZ 85351

[email redacted]

By: Miranda Alvarez

Legal Secretary