HOA - ALJDEC decisions

23F-H018-REL · Department of Real Estate - H/C · 2023-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Shawna Townsend,

Petitioner,

North Canyon Ranch Owners Association,

Respondent.

No. 23F-H018-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 19, 2023

APPEARANCES: Petitioner Shawna Townsend appeared on her own behalf. Haidyn DiLorenzo, Esq. and Justin DeLuca, Esq. represented Respondent North Canyon Ranch Owners Association. Josey Perkins appeared as a witness for Respondent North Canyon Ranch Owners Association.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Petitioner’s Claim

North Canyon Ranch Owners Association (“Respondent”) is a planned community in Glendale, Arizona.

Shawna Townsend (“Petitioner”) owns Lot 177 in North Canyon Ranch and is a member of Respondent.

On or about October 21, 2022, Petitioner 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 4.3 Storage, Section 4.17 Motor Vehicles, and Community Guidelines 2007, stating that she “found a legal loophole in the CC&Rs . . . for truck campers, and would appreciate it if our HOA would abide by them.”

Respondent filed a written answer to the petition, denying that it had violated any CC&Rs or Community Documents. The Department referred the petition to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.

A hearing was held on January 19, 2023. Administrative Notice was taken of the agency record. Petitioner testified on her own behalf. Josey Perkins, Respondent’s Community Manager, testified on behalf of Respondent.

Referenced CC&Rs

Section 4.3 of the CC&Rs provides as follows:

Storage. No exterior storage of any items of any kind shall be permitted in the front yard of any Lot. These provisions shall apply by way of illustration and without limitation, to woodpiles, camping trailers, boats, mobile homes and unmounted pickup camper units. Also by way of illustration and without limitation, no automobile, truck, or other vehicle, regardless of ownership, age condition or appearance, shall remain on any Lot in any manner which could be construed as being stored, neglected, abandoned or otherwise not in frequent use.

Section 4.17 of the CC&Rs provides as follows:

Motor Vehicles. Motor Vehicles owned or in the custody of any Owner or resident may be parked only in the garage or driveway located upon or pertaining to such person’s Lot. No buses, vans, motor homes, recreational vehicles or trucks having a carrying capacity in excess of one (1) ton or designed for commercial purposes shall be placed, allowed or maintained upon any Lot except in areas attractively screened or concealed from view of neighboring Lots and streets.

Referenced Community Guidelines

Respondent’s Architectural and Community Guidelines, Revised 2007, provides in relevant part as follows:

RECREATIONAL VEHICLES [UNCHANGED]

No motor vehicle classed by the manufacturer rating as exceeding one ton, or being a mobile home, travel trailer, tent trailer, trailer, camper shell, detached camper, boat, boat trailer, hang glider, or other similar equipment or vehicle, may be parked, stored, maintained, constructed, reconstructed or repaired on any street or lot if visible from neighboring properties.

Hearing Evidence

Josey Perkins, Respondent’s Community Manager, testified as to Sections 6.5 and 6.7 of Respondent’s Bylaws that authorize the enforcement of Respondent’s architectural guidelines:

6.5. Duties. It shall be the duty of the Architectural Committee to consider and act upon any and all proposals or plans submitted to it pursuant to the terms of the Declaration, to adopt Architectural Committee Rules, to perform other duties delegated to it by the Board, and to carry out all other duties imposed upon it by the Declaration.

6.7 Architectural Committee Rules. The Architectural Committee may adopt, amend and repeal, by unanimous vote or written consent, rules and regulations. Said rules shall interpret and implement the Declaration by setting forth the standards and procedures for Architectural Committee review and the guidelines for architectural design, placement of buildings, landscaping, color schemes, exterior finishes and materials and similar features which are required to be used within the Property.

Ms. Perkins further referenced Respondent’s CC&Rs Section 2.3 which sets forth the following:

Association Rules. The Board may, from time to time and subject to the provisions of this Declaration, adopt, amend and repeal rules and regulations. The Association Rules may restrict and govern the use of any area by any Owner, by the family of such Owner, or by any invitee, licensee or lessee of such Owner except that the Association Rules may not discriminate among Owners and shall not be inconsistent with this Declaration, the Articles or Bylaws. Upon adoption, the Association Rules shall have the same force and effect as if they were set forth in and were a part of this Declaration.

Ms. Perkins also testified about Respondent’s Rules Regarding the Storing, Keeping or Parking of Recreational Type Vehicles, the effective date of which was August 9, 2000. Those Rules state the following in pertinent part:

These Rules pertain to the storing, keeping or otherwise parking of mobile homes, travel trailers, tent trailers, campers, camper shells, recreational vehicles, boats, boat trailers and other similar equipment (collectively referred to as “Recreational Type Vehicles”) within North Canyon Ranch.

. . .

Storage of Recreational Type Vehicles In Front of Lots, Common Areas and Streets

No Recreational Type Vehicles shall be parked, stored, maintained or otherwise kept in a front yard of a Lot, in a driveway, in the Common Areas or on a street within North Canyon Ranch. Brief loading and unloading of Recreational Type Vehicles in the driveway or street of the applicable residence, such as that incidental to readying for a trip, vacation or excursion, shall not be deemed a violation. Parking for these aforementioned purposes will be reviewed on a case by case basis to determine if a violation has been committed. However, parking or storing any Recreational Type Vehicle in a driveway or street for such purposes of loading or unloading for greater then twenty-four consecutive hours within any seven (7) day period is prohibited, unless prior approval is requested and obtained from the Board of Directors.

Ms. Perkins testified that she conducts inspections for recreational vehicles in the community on Tuesdays at 8:30 a.m. In the event Ms. Perkins observes a recreational vehicle, she conducts a recheck on Thursday evenings. If the recreational vehicle continues to be observed, Ms. Perkins notes the violation and the homeowner is issued a violation notice.

Ms. Perkins testified that on October 21, 2021, during her weekly inspection, she became aware of Petitioner’s recreational vehicle parked in Petitioner’s driveway.

On November 1, 2021, Ms. Perkins, on behalf of Respondent, issued a notice of violation to Petitioner. No fine was imposed, however, Petitioner was put on notice that if the violation was not corrected with fourteen (14) days, a $30.00 fine would be imposed. The notice provided a link for Petitioner to inquire about or appeal the violation notice.

On January 17, 2022, another violation notice was issued to Petitioner by Respondent. Again, no fine was imposed, however, Petitioner was put on notice that if the violation was not corrected with fourteen (14) days, a $30.00 fine would be imposed. The notice provided a link for Petitioner to inquire about or appeal the violation notice.

On January 17, 2022, Petitioner filed an appeal to the Board.

On February 14, 2022, Respondent denied Petitioner’s appeal and gave Petitioner until February 17, 2022 to remove the “camper from view” and noticed Petitioner that if the violation was not corrected, a fine would be imposed.

On June 30, 2022, another violation notice was issued to Petitioner by Respondent. Again, no fine was imposed, however, Petitioner was put on notice that if the violation was not corrected with fourteen (14) days, a $30.00 fine would be imposed. The notice provided a link for Petitioner to inquire about or appeal the violation notice.

On August 3, 2022, Respondent issued a final violation letter to Petitioner and assessed a $30.00 fine, with the notice that an additional $55.00 fine would be imposed if the” trailer” was not moved out of public view within fourteen (14) days.

Ms. Perkins referenced in her testimony the Meeting Minutes from the August 16, 2022 Executive Session Meeting during which Petitioner appeared before the Board to discuss the “camper shell violations.” Petitioner’s appeal was denied.

On September 22, 2022, in response to email correspondence with Petitioner, Ms. Perkins explained to Petitioner that the Board denied her appeal because she was in violation of the Community Guidelines dated September 2007, in regard to Recreational Vehicles.

Petitioner asserted at hearing that the item at issue is a truck camper, and argued that there is a “legal loophole” in the CC&Rs and Community Guidelines concerning truck campers because a truck camper is not a Recreational Vehicle or a trailer or a camper shell, and that because her truck camper is attached and mounted to a vehicle, it is not prohibited. Petitioner’s argument is one of semantics.

However, during the course of the hearing, Petitioner acknowledged and contradicted her initial assertion, by stating that a truck camper actually is a recreational vehicle. Petitioner further acknowledged that prior to purchasing the camper on May 10, 2021, she did not ask Respondent whether such was permitted to be parked in Petitioner’s driveway, but rather, she inquired of other homeowners.

Petitioner submitted into evidence her purchase receipt for the truck camper and a photograph depicting the difference between a truck camper and a camper shell.

CONCLUSIONS OF LAW

A.R.S. § 32-2199.01 permits a homeowner to file a petition with the Department for a hearing concerning a planned community association’s alleged violations of the planned community documents. 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. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“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.”

A.R.S. § 33-2102(18) defines “Recreational vehicle” as a vehicular type unit that is any of the following:

. . . .

(e) A portable truck camper constructed to provide temporary living quarters for recreational, camping or travel use and consisting of a roof, floor and sides designed to be loaded onto and unloaded from the bed of a pickup truck.

Section 4.3 of the CC&Rs provides that there shall be “no exterior storage of any items of any kind” . . . “in the front yard of any Lot.”

Respondent’s Architectural and Community Guidelines, Revised 2007, provides that “no motor vehicle classed by the manufacturer rating as exceeding one ton, or being a mobile home, travel trailer, tent trailer, trailer, camper shell, detached camper, boat, boat trailer, hang glider, or other similar equipment or vehicle, may be parked, stored, maintained, constructed, reconstructed or repaired on any street or lot if visible from neighboring properties.

Respondent’s Rules Regarding the Storing, Keeping or Parking of Recreational Type Vehicles, the effective date of which was August 9, 2000, state in pertinent part:

. . .

Storage of Recreational Type Vehicles In Front of Lots, Common Areas and Streets

No Recreational Type Vehicles shall be parked, stored, maintained or otherwise kept in a front yard of a Lot, in a driveway, in the Common Areas or on a street within North Canyon Ranch. . . .

Petitioner acknowledged at hearing that her “truck camper” is a recreational vehicle. Moreover, the language contained in the above-cited provisions unequivocally state multiple times, “other similar equipment.” Petitioner’s “truck camper” clearly falls within such category.

Therefore, based on a review of the credible and relevant evidence of record, it is held that Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 4.3 Storage, 4.17 Motor Vehicles, and Community Guidelines 2007.

order

IT IS ORDERED that no action is required of Respondent in this matter and that Petitioner’s 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, February 7, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile February 7, 2023 to:

James Knupp

Acting Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Shawna Townsend

24427 N. 37th Lane

Glendale AZ 85310

[email redacted]

Beth Mulcahy, Esq.

Mulcahy Law Firm, PC

3001 E. Camelback Rd., Ste. 130

Phoenix, AZ 85016

[email redacted]

By: OAH Staff