HOA - ALJDEC decisions

25F-H019-REL · Department of Real Estate - H/C · 2025-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tatum Highlands Community Association, INC.

Petitioner,

vs.

Matthew P. Petrovic

Respondent.

No. 25F-H019-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 15, 2025

APPEARANCES: Danny Ford, Esq. appeared on behalf of Tatum Highlands Community Association, INC. (hereinafter “Petitioner”). Matthew P. Petrovic (hereinafter “Respondent”) appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Petitioner’s Exhibits 1 through 8. Respondent’s Exhibits B4, B6, B7, B8, and C, pg. 4.

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FINDINGS OF FACT

On January 14, 2025, the Arizona Department of Real Estate issued a Notice of Hearing setting the above-captioned matter for hearing on February 28, 2025 at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing provided that Petitioner alleges the following

violations in a petition received by the Department:

Article IV Section 4.2.1 of the Declaration of Covenants, Conditions, and Restrictions and Easement for Tatum Highlands by having a “non-complaint driveway extension.... Installed without obtaining necessary prior approval.”

Article IV Section 4.2.4 of the Declaration of Covenants, Conditions, and Restrictions and Easement for Tatum Highlands by failing to remove “prohibited plants/palms... from the front yard landscape.”

Article IV Section 4.2.7 of the Declaration of Covenants, Conditions, and Restrictions and Easement for Tatum Highlands by keeping “the exterior paint of the home.... In disrepair”

3. Petitioner’s Architectural Guidelines provide, in relevant part, as follows:

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P. PAINT COLORS

All houses shall be painted with at least two colors and not be monochromatic in color. When repainting your house, you must choose from the approved paint schemes for the Tatum Highlands Community. No custom color schemes will be allowed.

Dunn-Edwards Corporation has hosted a website which has posted all the approved paint schemes. Their website (http://www.dunnedwards.com) allows homeowners to view the approved paint schemes. The approved paint schemes are also available from The Tatum Highlands Community’s Management Company web portal.

Body of house must be flat or matte paint.

Pop-outs can either be painted the designated pop-out color or the designated body color of the house. Flat or matte paint must be used for the pop-outs.

All front doors may be painted the designated paint scheme entry door color, the body color, or the trim color that is painted on the home. Flat, eggshell, or satin may be used for the front door.

Stained front doors may be considered but must be submitted for approval when submitting for approval to paint your house.

Trim (facia boards/area) shall be painted the trim color. If the house does not have a true soffit and facia board but a stucco trim pop-out at the facia location, this stucco trim shall be painted the approved trim color or the approved pop-out color, Flat or matte paint must be used on the trim.

Garage doors must be painted a color on the house, either the body color, the trim color or the pop-out color. Flat, eggshell, or satin may be used on the garage door.

Complete and submit a Paint Submittal Form to the Committee for review. The paint submittal form is available from The Tatum Highlands Community’s Management Company web portal. Please allow up to 45 days for review by the Committee.

Upon receipt of written approval from the Committee, painting may commence.

All work must be started within 90 days of the date of the approval letter.

Upon completing your painting project, the Architectural Review Committee (ARC) may inspect to assure compliance to the requested paint scheme.

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I. DRIVEWAYS, DRIVEWAY EXTENSIONS AND SIDEWALKS

Driveways must be maintained in good condition and free from stains, chips, or other defects. Replacement or repaired driveway materials must be of the same type as the original driveway. No additional driveways to double gates are allowed. Painting of paved surfaces is prohibited. As an alternative to traditional concrete slab construction, driveway pavers may also be professionally installed. Pavers must be of high-quality materials, e.g., concrete or permeable stone. Permitted colors are tan, beige, light brown, or similar earth-tones. Any and all repairs, updates, replacement, or improvement to driveways must be submitted in advance for Architectural Committee approval. All project applications must include a photo of the proposed pavers, as well as a full description of the product (i.e., color, size, material, make and model) on the vendor/installer contract, estimate, or work order.

CCR 4.2.4 Maintenance of Landscaping and Driveway extensions will be reviewed for approval providing the following conditions are met:

Extensions not to exceed two (2) feet (or to the edge of the garage structure) in width shall be permitted on the interior and exterior sides of the existing driveway.

Submittals must include a plot plan with the following noted thereon: (a) the location and dimensions of the proposed extension; (b) the existing driveway dimensions; (c) the total linear feet of lot frontage; (d) the material proposed for the driveway extension and (e) photographs of

the entire area to be enhanced.

The total parking area may not exceed thirty (30) feet of contiguous frontage, the width of the garage, or fifty percent (50%) of the lot width (existing plus extension) as measured at its widest point, whichever is less.

Driveway extension must be at least one (1) foot off the side lot line.

Sidewalks installed to utilize the side gates will be reviewed for approval and must meet the following conditions:

1. The additional sidewalk is four (4) feet or less in width and is setback one (1) foot or more from the property line and one (1) foot or more from the house and/or driveway.

2. Such setback areas between the property line and the sidewalk and the house and the sidewalk

must have groundcover installed to match the existing front yard ground cover (e.g.,

decomposed granite, turf).

3. All sidewalks from the gate must attach to the top of the driveway and be no wider than 4 feet.

4. Sidewalks running from the gate to the street are prohibited.

Additional sidewalks in any other location must be submitted for approval.

*** No gloss or semi-gloss paint shall be used on the exterior of the house. ***.

Residential. Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking ... shall be conducted from any Residence [or part thereof.]”

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A. FRONT YARD LANDSCAPING

Each owner shall install landscaping Improvements, together with any sprinkler system or drip irrigation system sufficient to adequately water the landscaping improvements in the front yard of their lot, any portion of a right-of-way for a dedicated street which is between the boundary of the owner’s lot and the back of the curb of such street. All landscaping Improvements installed in such areas must be approved by the Committee prior to installation.

Every front yard must contain the following (addition guidelines are included in the Approved Landscape Plant List):

A minimum of two trees from the Approved Landscape Plant List or,

One tree and one cactus from the Approved Landscape Plant List or,

Two cacti from the Approved Landscape Plant List or,

One tree and one shrub from the Approved Landscape Plant List or,

One cactus and one shrub from the Approved Landscape Plant List.

Shrubs should be used in all front yards to soften and screen. Organic or inorganic ground cover is required on all areas (no bare earth is allowed), and underground irrigation to plant material is required in the front yard.

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4. Article IV, Section 4.2.1 of Petitioner’s CC&Rs provides that all changes to the structure of any area within Tatum Highlands including landscaping must be approved in writing by the Architectural Committee.

5. Article IV, Section 4.2.4 of Petitioner’s CC&Rs provides, “Each owner will be required to comply with Design Guidelines for landscaping and approved plant palette established by the governing Architectural Committee including but not limited to specific plant selections and the timing of landscape installation.”

6. Article IV, Section 4.2.7 of Petitioner’s CC&RS provides, “No building or structure on any area in Tatum Highlands shall be permitted to fall into disrepair and each such building and structure shall at all times be kept in good condition and repair and adequately painted or otherwise finished.”

7. A hearing was held on April 15, 2025. At hearing, Petitioner presented the testimony of Kevin Hufnagel. Respondent testified on behalf of himself.

Testimony of Kevin Hufnagel

8. Mr. Hufnagel currently serves on Petitioner’s Board of Directors.

Mr. Hufnagel also served on the Board from 2013 to 2018. Mr. Hufnagel explained that Respondent has violated Section 4.2.1 of the CC&RS because his driveway extension exceeds 2 feet off of his cement to the property line; Respondent has violated Section 4.2.4 because he has a pygmy palm in his front yard. Palm trees of any kind are prohibited under the Architectural Guidelines; Respondent has violated Section 4.2.7. because the paint on his home is deteriorating. Mr. Hufnagel also stated that a home with only one color is outdated.

Testimony of Matthew Petrovic

9. Mr. Petrovic alleged that Respondent is selectively enforcing the community Bylaws. Mr. Petrovic stated that the paint on his home is not deteriorating. Mr. Petrovic stated that he does not have a driveway extension, but rather, a sidewalk. Mr. Petrovic stated that he does not have palm tree in his front yard, but rather, a sago. However, Mr. Petrovic also testified to the effect that a majority of his neighbors have a palm tree in their yard.

CONCLUSIONS OF LAW

The Department of Real Estate has authority over this matter. Ariz. Rev. Stat. 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. Ariz. Admin. 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).

The preponderance of the evidence shows the following:

Respondent had a driveway extension that exceeds 2 feet in width from the edge of his driveway to the property line.

Respondent has palm trees in his front yard that are prohibited under the Petitioner’s architectural guidelines.

The exterior paint of Respondent’s home is in disrepair.

7. Petitioner has established by a preponderance of the evidence that Respondent is in violation of Article IV, Sections 4.2.1, 4.2.4 and 4.2.7 of Petitioner’s CC&Rs. The issues of selective and retaliatory enforcement are not within the jurisdiction of the tribunal.

order

IT IS ORDERED that Petitioner be deemed the prevailing party in this matter. IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

IT IS FURTHER ORDERED that that Respondent shall henceforth comply with the provisions of the governing documents.

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

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 5, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile May 5, 2025 to:

Susan Nicolson

Commissioner

Arizona Department of Real Estate

Danny Ford, Esq.

[email redacted]

Matthew Petrovic

[email redacted]

By: OAH Staff