ALJDEC decisions subject to certification as final

25F-H019-REL-RHG · Department of Real Estate - H/C · 2025-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Tatum Highlands Community Association, Inc.

Petitioner,

Matthew P. Petrovic,

Respondent.

No. 25F-H019-REL-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 30, 2025 at 1:00pm and December 5, 2025 at 1:00pm

APPEARANCES: Attorney Danny Ford represented Petitioner Tatum Highlands Community Association, Incorporated with witness Brian Lemke. Respondent Matthew P. Petrovic appeared on his own behalf with witnesses Todd Pehrson, Thomas Coletto, and Tracy Kennedy.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Department of Real Estate Case File. Petitioner Exhibits 1 through 13. Respondent Exhibits 1 through 5 and 7.

FINDINGS OF FACT

Background and Procedure

The Arizona Department of Real Estate (“Department”) is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

On or about October 17, 2024, Tatum Highlands Community Association, Incorporated (“Petitioner” or “Association”) filed a three (3) issue petition with the Department which alleged that Matthew P. Petrovic (“Respondent”) violated the Association’s Covenants, Conditions, and Restrictions (“CC&Rs”) – Article IV, Section 4.2.1; Section 4.2.4; Section 4.2.7; and the Architectural Design Guidelines effective April 1, 2024 (“Design Guidelines”).

The relief requested by Petitioner, other than ordering Respondent to pay to Petitioner the filing fee required by Ariz. Rev. Stat. § 32-2199.01 if Petitioner prevailed, includes the following:

Declare the Owner in Violation of Article IV, Section 4.2 et seq. of the Declaration;

Declare the Owner in Violation of the Architectural Review Guidelines;

Order the Owner to remedy unauthorized modifications;

Order the Owner to bring the landscape into compliance;

Order the Owner to bring the exterior paint into compliance;

Order a party to abide by the section(s) of the condominium/planned community document(s) specified; and

Impose a civil penalty based on the violation specified.

On November 6, 2024, the Department sent a Homeowner’s Association (“HOA”) Notice of Petition to Respondent which informed Respondent of the petition initiated against it. In addition, the petition informed Respondent to send a timely response to the Department and to Petitioner no later than November 27, 2024.

On or about November 21, 2024, Respondent returned his Answer to the Department whereby he denied Petitioner’s claims and stated the following in pertinent part:

In response to the paint allegations...“I purchased my house in 2021 and neither me nor the seller were notified that paint could not be just 1 color. For almost 2 years it was never an issue or for years prior. Over 10 neighbors on my block have lived here as long as 30 years also have their homes painted 1 color with no prior issues.”

In response to the paver allegations... “[t]he Association’s governing documents do not prohibit installation. Instead, the governing documents simply require that homeowners obtain prior written approval before installing modifications. ..Denying my ability to have a small driveway extension, which has been professionally installed, such that my vehicles can be parked on the driveway with sufficient room to access the vehicles, without any justification for the denial is unreasonable...moreover, the Association cannot selectively enforce the document...There are a multitude of other homes with similar driveway extensions and, to our knowledge, the Association has either approved the extensions or is not taking enforcement action. Finally and most importantly, the Association’s denial of the driveway extension and pathway for trash cans is a violation of the Fair Housing Act, dragging what is often a several hundred pound bin across landscaping rock is impossible. Furthermore, the ‘LShape’ pathway desired by the Association is equally unacceptable.”

In response to the plant allegations... “[m]y front yard was approved and I have not violated anything.”

On or about July 8, 2025, the Department referred this matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary rehearing to address the issues set forth as follows:

The Petitioner’s allegation within the petition states in regards to the paint that “the exterior paint of the home is in disrepair,” in violation of CC&Rs Article IV, Section 4.2.7 and the Design Guidelines which provides “further requirements, guidance, and direction to homeowners as well as procedures for maintaining compliance.”

The Petitioner’s allegation further states in regards to the pavers that “a non-compliant driveway extension was installed without obtaining necessary prior approval,” in violation of CC&Rs Article IV, Section 4.2.1.

Lastly, the allegation within the petition states in regards to the plants that “prohibited plants/palms must be removed from the front yard landscape,” in violation of CC&Rs Article IV, Section 4.2.4.

The Parties and Governing Documents

Petitioner is a community association whose members own properties in the Tatum Highlands residential real estate development located in Phoenix, Maricopa County, Arizona.

Respondent is a Tatum Highlands property owner and a member of the Association.

Trestle Management was the community’s property manager up until December 2024. The current property management team is First Service Residential.

The governing documents for the community include the Tatum Highlands CC&Rs and the Design Guidelines.

The Tatum Highlands CC&Rs provides, in pertinent part, these sections:

Article IV, Section 4.2.1 – Architectural Control. Except as otherwise expressly provided in this Declaration, the Architectural Guidelines or any applicable Tract Declaration which has been approved by the Declarant, (i) no improvements (whether temporary or permanent), alterations, repairs, excavation, grading, lighting, landscaping or other work which in any way alters the exterior appearance of any property within Tatum Highlands or improvements thereon from its natural or improved state existing on the date this Declaration is recorded shall be made and (ii) no building, fence, exterior wall, residence or other structure shall be commenced, erected, maintained, improved, altered or made without the prior written approval of the governing Architectural Committee. All subsequent additions to or changes or alterations in any building, fence, wall or other structure, including exterior color scheme, and all changes in the grade, lighting or landscaping of any area in Tatum Highlands, shall be subject to the prior written approval of the governing Architectural Committee.

Article IV, Section 4.2.4 – Maintenance of Landscaping and Driveways. 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.

Article IV, Section 4.2.7 – Repair of Building. 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. In the event any building or structure is damaged or destroyed, then, subject to the approvals required by Subsection 4.2.1 above, such building or structure shall be promptly repaired, rebuilt or demolished. In the event an Owner fails to comply with this provision, the Board may give notice to the offending Owner, and may then proceed to repair the building or improvement and charge the Owner therefore as permitted in Paragraph 10.3.

Tatum Highlands Architectural Guidelines, April 1, 2024, in pertinent part these sections:

IV. 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

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.

IV. 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.

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

V. 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.

hearing evidence

Brian Lemke, Association Vice President, testified on behalf of Petitioner. Mr. Lemke has lived in the community since 2002, has been the vice president for the last three years, and prior to that a Board Member-At-Large. Respondent presented testimony on his own behalf. In 2021, Respondent purchased his residential home in the community. Respondent presented witnesses Todd Pehrson, Thomas Coletto, and Tracy Kennedy, on his behalf and whom all live in the community. Administrative notice was taken of the Department’s electronic file and Notice of Hearing. The substantive evidence of record is as follows:

The Association’s CC&Rs were established on December 17, 1993, with no amendments.

The Association had Design Guidelines that went into effect on July 19, 2018 (“2018 DG”). The current Design Guidelines went into effect on April 1, 2024. The Association’s Design Guidelines provide further requirements, guidance, and direction to homeowners as well as procedures for maintaining compliance.

The introduction of the Design Guidelines state, “The Board of Directors, through the Tatum Highlands Community’s Management Company, administers and enforces all terms and conditions after the completion of projects as outlined herein. Owners shall be responsible for the maintenance and repair of such items. The Association retains the right to determine when items must be cleaned, repaired, or replaced due to weathering, fading, tearing, etc.”

The Design Guidelines state the architectural review process as (1) submit the application, (2) the review will be approved or disapproved within 45 days, (3) if approved the homeowner must start the construction/painting within 90 days or plans must be resubmitted for review, (4) construction shall be completed within six months after approval.

Pavers

Respondent installed a paver driveway extension some time prior to September 2023.

Respondent did not submit an architectural design request prior to completing the extension.

On August 21, 2023, the Association sent to Respondent a Courtesy Notice that stated the driveway extension was in violation of CC&Rs Section 4.2.1.

On June 6, 2024, Respondent sent in an ARC request for the paver driveway extension which was denied and provided “If it is a walkway then the width exceeds guidelines. However, from the sketch, it appears to be a driveway extension. This then fails for the width of the driveway area. It also may fail for the total paved and parking area as a percentage of the total front lot size.”

On November 8, 2024, the Association sent to Respondent a Violation Notice/Monetary Penalty because the driveway extension was still out of compliance. A $200.00 fine was assessed.

Respondent filed ARC requests for the pavers in April 2025 and June 2025; Petitioner denied both requests due to not meeting the parameters of the CC&Rs and Design Guidelines.

Paint Colors

Respondent purchased his home and at the time of purchase, the home was painted one color. In 2016, the Design Guidelines were revised to require homes to be painted in two different colors.

The Association noticed the Owner of Violation and the imposition of Monetary Penalty related to exterior paint on: January 23, 2024; February 26, 2024; March 11, 2024; March 25, 2024; April 8, 2024; April 22, 2024; May 6, 2024; June 17, 2024; July 1, 2024; July 15, 2024; July 29, 2024; August 12, 2024; August 26, 2024; and on May 8, 2025.

On October 3, 2024, a Notice of Violation, referred to the paint violation as the exterior paint was in “disrepair.”

On June 6, 2025, Respondent filed an ARC request for paint, the #10 color scheme. On June 10, 2025, Petitioner approved the request.

Palm Tree/Landscaping

In the 2018 DG, pigmy date palms are approved for rear yards only.

On December 12, 2023, Respondent requested through ARC to “add turf to upper level and plant two pigmy palms,” to the front yard.

On December 20, 2023, Respondent’s application was denied and stated “palms are not allowed in front yard per the guidelines.”

After the December 20, 2023 denial, Respondent planted a pigmy palm in his front yard.

The Design Guidelines effective April 1, 2024 states, “**Important Note** Previous TH Landscape Plant lists contain trees, shrubs, and other plant matter or materials that are no longer listed as “approved.” If a homeowner has one or more of these plants the Association will allow the owner to keep them. That is, the Association will not force any homeowner to remove existing, well-maintained plants or materials that were community compliant at time of planting. However, future planting or replacement of those plants of the same common name or botanical name is prohibited, effective immediately.

The Association noticed the Owner of Violation and the imposition of Monetary Penalty related to non-compliant plants/palms on July 2, 2024, and August 2, 2024.

Arguments

Petitioner’s argument

Petitioner argued that Respondent was in violation of the following provisions in the CC&Rs and Design Guidelines: Article IV Sections 4.2.1 (paver driveway extension), 4.2.4 (palm/plant), and 4.2.7 (paint); and needed to come into compliance.

Respondent’s argument

Respondent asserted that the paint on his home was one color but never in disrepair. Respondent testified that he planned to get his home painted after his ARC request was approved on June 10, 2025, but needed to deal with this OAH petition filing first. Mr. Pehrson and Thomas Coletto, Respondent witness and neighbor, both testified that Respondent’s paint was not in disrepair. In regards to the paver driveway extension, Respondent argued that he should be allowed to keep the driveway extension, as is, because if the extension was any smaller, he would not be able to get his trash cans down to the curb without dragging cans over landscape. In addition, Respondent asserted that other neighbors have hardscape driveway extensions that touch their neighbors lot line. Respondent argued that Petitioner requiring him to remove the extension would be a violation of the Fair Housing Act. Lastly, in regards to the installation of the pigmy palm tree, Respondent argued that many homeowners have a pigmy palm tree planted in their front yard. Mr. Coletto testified that he planted two pigmy palm trees in his front yard without filing an ARC application first. Mr. Coletto further testified that he was fined and had to remove the palms around 2019/2020.

Conclusions of Law

The Department’s jurisdiction pursuant to Ariz. Rev. Stat. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in Ariz. Rev. Stat. § 32-2199.05.

Pursuant to Ariz. Rev. Stat. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02, and 41-1092 et seq., OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the aforementioned CC&Rs and Design Guidelines.

A preponderance of the evidence means “proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.”

In this case, Respondent constructed his paver driveway extension prior to receiving approval from ARC. In fact, Todd Pehrson, Respondent’s neighbor for the last four years, testified that he was aware of neighbors who had their driveway extensions approved and then moved on to construction. The evidence established that was not Respondent’s process for his driveway extension. Respondent provided multiple photos of neighbors’ homes and the record established the following: out of the eight photos – two houses had side gate pavers that touched their neighbor’s lot lines, two houses did not show pavers from the side gate, and four photos showed side gate pavers that did not touch their neighbor’s lot lines. Regardless, the record has established that Respondent did not seek ARC approval prior to installing the paver driveway extension. In addition, Respondent’s claims regarding the Association violating the Fair Housing Act cannot be addressed in this venue. As such, Petitioner has established that Respondent violated CC&R, Section 4.2.1.

In regard to the pigmy palm tree matter, the evidence clearly established that Respondent requested to plant two pigmy palm trees in his front yard, was denied by ARC, and planted them anyway. The 2018 DG explicitly forbade planting pigmy palm trees in front yards. In addition, the 2024 Design Guidelines plainly detail some neighbors were able to keep plantings that were allowable under prior design guidelines. Hence, Petitioner has established that Respondent violated CC&R Section 4.2.7.

Lastly, the record clearly established that Respondent’s home was only painted one color when he purchased his home. In order to come into compliance with the two paint color scheme, Respondent planned to paint his house which was evident per the ARC June 10, 2025 approval. Also, the evidence established from firsthand witnesses that Respondent’s paint was not in disrepair. Therefore, Respondent should be given the opportunity to move forward with the ARC approval for painting his home and any fines he received in regards to the paint be waived.

As such, the undersigned Administrative Law Judge concludes that, because Petitioner sustained its burden of proof that Respondent committed the alleged violations to the paver driveway extension and to the plant/palm tree, its petition must be partially granted.

ORDER

Based on the foregoing,

It is Ordered that Petitioner’s petition be partially Granted in regards to the paver driveway extension and to the plant/palm tree.

It is Further Ordered that Respondent reimburse Petitioner’s filing fee of $1,000.00 in certified funds for the two issues.

It is Further Ordered that Respondent paint his home per the June 10, 2025 ARC approval with the effective date of this Administrative Law Judge Decision, renewing the timeline set out in the Design Guidelines.

It is Further Ordered that Petitioner waive all fines issued to Respondent in regards to the paint issue.

It is Further Ordered that Respondent shall henceforth comply with the provisions of the governing documents.

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

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, December 26, 2025.

/s/ Nicole Robinson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

[email redacted]

Matthew Petrovic

26273 N 47th Place

Phoenix AZ 85050

[email redacted]

Danny Ford

Goodman Law Group

3654 N. Power Rd., Ste. 132

Mesa, Arizona 85215

[email redacted]

By: OAH Staff