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25F-H043-REL · Department of Real Estate - H/C · 2025-07-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of: No. 25F-H043-REL

Keith A. Shadden ADMINISTRATIVE LAW JUDGE DECISION Petitioner, v. Las Brisas Community Association

Respondent.

HEARING: June 16, 2025 APPEARANCES: Keith A. Shadden (hereinafter “Complainant”) appeared on behalf of himself. Emily Cooper, Esq. appeared on behalf of Las Brisas Community Association (hereinafter “Respondent”). ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson EXHIBITS ADMITTED INTO EVIDENCE: Petitioner’s Exhibits A through Q. Respondent’s Exhibits A through H; J, N, P, R, and U. FINDINGS OF FACT 1. The Arizona Department of Real Estate (hereinafter “the Department”) is authorized by statute to receive and to decide Petitions for Hearings from members of homeowners’ associations and from homeowners’ associations in Arizona. Homeowners’ associations and their members are governed by the Chapter 16 of Title 33, the Planned Communities Act, A.R.S. §§ 33-1801 to 33-1818 (hereinafter “the Act”). 2. Respondent is a homeowners’ association whose members own single- family residences in the La Brisas development in Goodyear, Arizona. See Exhibit A. 3. Petitioner owns Lot #1-175 in Las Brisas and is a member of Respondent. 4. On August 19, 2024, Respondent issued a VIOLATION NOTICE to Petitioner that provided in relevant part, as follows: It was noted that the following condition, observed on 8/19/2024, may not be in accordance with the Association documents: …………………………….

It was observed during a recent inspection of the community on 8/19/2024 that your property has reflective material covering your windows. No reflective material, including, but no limited to, aluminum foil, reflective screen or glass, mirror or similar type items, shall be installed or placed upon the outside or inside of any windows.

This condition is in violation of the Association governing documents, including but not limited to Section 5.10 “Windows” of Article 5 “USE RESTRICTIONS” ON PAGE 19 OF THE Covenants, Conditions and Restrictions, Section “SECURITY DOORS, SCREEN DOORS AND SUNSCREENS” OF section “design guidelines” ON PAGES 8-9 OF THE Association Rules and Design Guidelines, Section “windows” of t Section “DESIGN GUIDELINES” on page 10 of the Association Rules and Design Guidelines. …………………………….

[Exhibit C.]

5. On March 14, 2025, Petitioner filed a single-issue petition alleging that

Respondent was using incorrect sections of Respondents Covenant, Conditions, and

Restrictions (hereinafter “CC&Rs”) for a violation regarding garage door cut outs.

6. Through the petition, Petitioner alleged that Respondent misapplied

Section 5.10 of the CC&Rs that applies to windows when it issued a violation regarding

reflective tint installed on the glass cutouts of his garage door. See Exhibit C. 7. The petition was referred to the Office of Administrative Hearings for an evidentiary hearing. 8. A hearing was held on June 16, 2025. At hearing, Petitioner testified on behalf of himself. Jamie Cryblskey, Respondent’s community manager, testified on behalf of Respondent. 9. It was undisputed that there are glass door cut outs on Petitioner’s garage door. Petitioner admitted during hearing that a person can see through the glass door cut outs. Petitioner stated at hearing that he and his wife paid Taylor Morrison, the Declarant, to place window treatments on the home. Petitioner contended that because

2 Taylor Morrison did not place window treatment on the garage door cut outs, Taylor Morrison did intend for Section 5.10 of the CC&Rs to apply to garage doors. Referenced Authorities 10. Article 5.10 of Respondent’s CC&Rs concerns windows and provides: Within ninety (90) days of occupancy of a Residential Unit each Owner shall install permanent suitable window treatments that are Visible from Neighboring Property. No reflective materials, including, but without limitation, aluminum foil, reflective screens or glass, mirrors or similar type items, shall be installed or placed upon the outside or inside of any windows.

11. Article 5.12 of Respondent’s CC&Rs concerns Garages and Driveways

and provides:

The interior of all garages situated on any lot shall be maintained in a neat and clean condition. Garages shall be used only for the parking of Vehicles and the storage of normal household supplies and materials and shall not be used for or converted to living quarters or recreational activities after the initial construction thereof without the prior written approval of the Architectural Committee. Garage doors shall be left open only as needed for ingress and egress.

CONCLUSIONS OF LAW 1. Arizona Revised Statute (hereinafter “A.R.S.”) § 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 16.1 Such petitions will be heard before the Office of Administrative Hearings, an independent state agency. 2. Petitioner bears the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.2 Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.3

1 See A.R.S. § 33-1803, which authorizes homeowners associations in planned communities to enforce the development’s CC&Rs. 2 See A.R.S. § 41-1092.07(G)(2); 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). See A.A.C. R2-19-119(B)(2). 3 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”4 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 4. 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.”6 5. In this case, the plain meaning of the word “window” in Section 5.10 is any transparent opening through which light passes. The CC&Rs do not define the word “window.” Petitioner contended that Section 5.10 does not apply to garages. However, Section 5.10 of Respondent’s CC&Rs does not exclude garages. 6. Petitioner has failed to meet its burden to establish that Respondent used incorrect sections of the CC&Rs when it issued its VIOLATION NOTICE. Because Petitioner has not established by a preponderance of the evidence that Respondent violated its CC&Rs, their petition must be dismissed. RECOMMENDED ORDER IT IS ORDERED that Keith A. Shadden’s petition against Respondent Las Brisas Community Association 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. MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 5 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993) (quoted in Powell, 211 Ariz. at 557 ¶ 16, 125 P.3d at 377). 4 Done this day, July 7, 2025.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile July 7, 2025 to: Susan Nicolson Commissioner Arizona Department of Real Estate

Shadden, Keith A [email redacted]

Emily Cooper, Esq. [email redacted]

Las Brisas Community Association [email redacted]