HOA - ALJDEC decisions

23F-H041-REL · Department of Real Estate - H/C · 2023-05-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Anthony Payson

Petitioner

The Foothills Homeowners Association #1

Respondent

No. 23F-H041-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 13, 2023

APPEARANCES: Petitioner Anthony Payson appeared on behalf of himself. Sean K. Mohnihan, Esq. appeared on behalf of Respondent The Foothills Homeowners Association #1.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Petitioner Anthony Payson owns property in Respondent The Foothills Homeowners Association #1.

2. Respondent’s Covenants, Codes, & Restrictions (CC&R) Section 5.4 provides, in relevant part, as follows:

Nuisances. No lot shall be used in whole or in part for the storage of rubbish of any character, nor for the storage of any property or things which will cause the lot to appear in an unclean or untidy condition or which will be offensive to the eye; nor shall any substance, thing, or material be kept upon an lot that will emit foul or obnoxious odors, or that will cause any noise that will or might disturb the peace, quiet, comfort, or serenity of the occupants of the surrounding property.

3. On or about January 23, 2023, the Arizona Department of Real Estate (Department) received a single-issue petition from Petitioner with the following allegations:

FHOA #1 is neglecting their duty to enforce the community CC&Rs. Petitioner’s neighbors at 6650 N. Sutherland Ridge Pl. have installed and are keeping a very large, outdoor Television in their backyard. Noise from this TV has disturbed Petitioner’s peace and quiet and will continue to do so until it is removed. This TV is a nuisance pursuant to Section 5.4 of the CC&Rs which provides that nothing “shall ... be kept upon any lot ... that will cause any noise that will or might disturb the peace, quiet, and comfort, or serenity of the occupants of the surrounding property.”

Petitioner has repeatedly requested the HOA to enforce this CC&R. The HOA has refused to do so. Wherefore, the Petitioner hereby seeks an order instructing the HOA to enforce the CC&Rs and seek removal of the nuisance TV.

4. Respondent filed a timey response to the petition denying all complaint items.

5. The matter was referred to the Office of Administrative Hearings (OAH) for

an evidentiary hearing.

6. On or about March 15, 2023, the Department issued a Notice of Hearing setting the above-captioned matter for hearing on April 13, 2023, at the OAH in Phoenix, Arizona.

7. The Notice of Hearing provided, in relevant part, as follows:

Petitioner states, “[n]oise from [a] TV has disturbed Petitioner’s peace and quiet... This TV is a nuisance pursuant to Section 5.4 of the CC&Rs...” Petitioner also states, “[Respondent] is neglecting their duty to enforce the community CC&Rs.

8. A hearing was held on April 13, 2023.

9. At hearing, Petitioner stated that he has notified Respondent that noise from his neighbor’s television, located in his neighbor’s backyard, has violated his peace and quiet. Petitioner alleged that Respondent has failed to enforce CC&R Section 5.4.

10. Respondent contended that the petition should be dismissed because Respondent cannot violate CC&R Section 5.4. Respondent contended that the OAH only has jurisdiction over alleged violations of Respondent’s governing documents or an applicable Arizona statute, under Ariz. Rev. Stat. § 32-2199.01(A).

CONCLUSIONS OF LAW

1. Ariz. Rev. Stat. § 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. Pursuant to Ariz. Rev. Stat. §32- 2199.02(A), Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent. The OAH lacks jurisdiction over any other matter.

3. Petitioner bears the burden of proof to establish that Respondent violated on its CC&Rs by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

4. “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.”

5. 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.” CC&R Section 5.4 forbids the use of lots for the storage of property that would cause noise that would or might disturb the peace, quiet, comfort, or serenity of occupants of surrounding property. Petitioner did not even contend, nor provide any facts to establish that that Respondent used a lot for the storage of property that would cause noise or disturb the peace, quiet, comfort, or serenity of occupants of surrounding property.

6. CC&R Section 5.4 relates to use restrictions and nuisances within the community. See the Department’s Hearing File, FH1 CC&R’s.pdf. However, the Respondent cannot violate the use restrictions of its CC&Rs. Article 5 addresses the use restrictions on the Members and Lots within the Association. These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.

7. To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.

8. Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that Respondent did not violate CC&R section 5.4.

order

IT IS ORDERED, 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, May 1, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile May 1, 2023 to:

Anthony Payson

[email redacted]

Sean K. Mohnihan, Esq.

[email redacted]

Mission Management

8375 N Oracle Rd, Ste. 150

Tucson, AZ 85704

Susan Nicolson

Commissioner

Arizona Department of Real Estate

[email redacted]

By: OAH Staff