2025-06-16 Pre-Hearing Position Statement (OAH).pdf

25F-H043-REL · Department of Real Estate - H/C · 2025-06-16

CHDB LAW LLP 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282-5691 P. 480-427-2800; F. 480-427-2801 [email redacted] (Kyle Banfield – SBN 037717) [email redacted] (Emily E. Cooper - SBN 030100) [email redacted] Attorneys for Las Brisas Community Association BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS KEITH A. SHADDEN, File No. 25F-H043 Petitioner, Docket No. 25F-H043-REL vs. RESPONDENT’S PRE-HEARING POSITION STATEMENT LAS BRISAS COMMUNITY ASSOCIATION, (ALJ Velva Moses-Thompson) Respondent. Respondent Las Brisas Community Association, through counsel, hereby submits its Pre-Hearing Position Statement in advance of the hearing in this matter for June 16, 2025 at 1:00 pm. I. INTRODUCTION Petitioner alleges the Association is “using incorrect CC&R section (5.10) to create [a] violation for garage door glass cutouts which fall under section 5.12.” The Association’s Governing Documents have clear and plain language demonstrating its intention. The Association asserts that it has properly interrupted the Governing Documents and consistently prohibited the use of reflective tint on garage door windows. PIC.BRISAS.01 II. BACKGROUND Petitioner filed his petition with the Arizona Department of Real Estate on or about March 14, 2025 alleging that the Association was using an incorrect sections of the Declaration of Covenants, Conditions, and Restrictions for Las Brisas (“CC&Rs”) and the Las Brisas Community Association Design Guidelines (the “Guidelines,” collectively the “Governing Documents”) for a violation relating to garage window cut outs. Keith Shadden alleges that the Association misapplied Section 5.10 (“Windows”) of the CC&Rs when issuing a violation concerning reflective tint installed on the glass cutouts of his garage door. Petitioner has reflective material in the garage windows, which is a violation of the CC&Rs. Petitioner takes a limited view of the CC&R provisions and contends that such features are not “windows” and the reflective tint to his garage windows should instead be solely governed by Section 5.12 (“Garages and Driveways”), which does not contain restrictions on materials used on garage door windows. The Association, through both the Architectural Committee and the Board of Directors, reviewed and interrupted the Governing Documents to contain an express prohibition on reflective materials in windows. Unwilling to accept the reality of the restriction of reflective tint on garage window cut outs, Petitioner subsequently filed the instant petition. III. ARGUMENT A. The Association Properly And Consistently Excludes Reflective Material From Garage Door Glass Cutouts. Petitioner claims that the Association incorrectly applied the restrictions set forth in the CC&Rs and the Design Guidelines. The Association’s enforcement of Section 5.10 of the CC&Rs against the reflective material placed on the Petitioner’s garage door glass cutouts is proper and consistent with both the language and purpose of the governing documents.

Petitioner argues that Section 5.10 should strictly apply only to “traditional” residential windows and not to glass cutouts in a garage door. This interpretation, however, is overly narrow and inconsistent with the plain meaning and community-wide application of the CC&Rs. Section 5.10 of the CC&Rs 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. The operative term, “window,” is not defined in the CC&Rs, but it’s plain and commonly understood meaning includes any transparent or translucent opening in a building structure through which light passes. The garage door glass cutouts on Petitioner’s home are, by their very nature and function, windows in that they are openings that allow visibility and light into the garage and are plainly visible from the street and neighboring properties. There is also no question that the material in the garage windows is reflective in direct contradiction to the CC&Rs. Petitioner’s argument that the garage door is governed exclusively by Section 5.12 ignores the complementary nature of the CC&R provisions. Arizona courts have held that homeowners’ associations have a duty to treat members fairly and act reasonably in exercising discretionary powers, including enforcement of covenants. Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195 (App. 2007). While strict construction of covenants may apply in limited contexts, Arizona courts also recognize that when interpreting CC&Rs is critical to assess the intent of the parties, as expressed in the CC&Rs as a whole. Riley v. Stoves, 22 Ariz. App. 223 (1974). Here, the Declaration’s intent is made clear by Section 2.1 of the CC&Rs, which state in relevant part, “This Declaration is being recorded to establish a general plan for the development and use of the Project in order to protect and enhance the

value and desirability of the Project.” Section 2.1 of the CC&Rs reinforces the Association’s interpretation because preventing reflective material maintains aesthetic uniformity and prevent this violation of the restrictions from detracting from the appearance of the neighborhood. Furthermore, the Association has cited members for failures to adhere to the Governing Documents. The notices to members regarding violations include reflective material in windows, garage and otherwise. This consistent and reasonable interpretation aligns with the community’s standards. The Association properly and consistently excludes reflective material from garage door glass cutouts. IV. WITNESS LIST Jaime Cryblskey c/o CHDB Law LLP

Jaime Cryblskey is a representative of City Property, the Association’s community

management company, Jaime may testify regarding her knowledge of the facts surrounding the Petitioner’s violation of the Governing Documents, including but not limited to, the Association’s Declaration, the Association’s Design Guidelines, the Association’s compliance enforcement procedure, her observations of Mr. Shadden’s property and other properties in the community, and the Board of Director’s decision regarding the Governing Documents. Jaime may testify regarding the community standards and aesthetics. Additionally, Jaime may testify regarding City Property’s procedures and processes related to the Association. Keith Shadden

Keith Shadden is the Petitioner in this matter. Keith may testify regarding the events related to the Petition. Additionally, Keith may testify regarding his observations regarding the community.

V. EXHIBIT LIST The Association hereby submits the following exhibits: Exhibit A. Las Brisas CCRS Exhibit B. Las Brisas Design Guidelines Exhibit C. Violation Letters regarding Reflective Materials in Las Brisas Exhibit D. Letter to Shadden dated August 19, 2024 Exhibit E. Letter to the Association undated Exhibit F. Letter to Shadden dated September 16, 2024

Exhibit G. Letter to Shadden dated September 26, 2024

Exhibit H. Redacted October 15, 2024 Executive Minutes for Las Brisas Exhibit I. October 15, 2024 Executive Material regarding Shadden’s dispute Exhibit J. Letter to Shadden dated October 23, 2024 Exhibit K. Shadden’s Architectural Application dated October 24, 2024 Exhibit L. Letter to Shadden dated October 25, 2024 Exhibit M. Shadden's Architectural Application dated October 29, 2024 Exhibit N. Letter to Shadden dated December 2, 2024 Exhibit O. Letter to Shadden dated December 11, 2024 Exhibit P. Redacted December 17, 2024 Executive Minutes for Las Brisas Exhibit Q. December 17, 2024 Executive Material regarding Shadden’s appeal Exhibit R. Letter to Shadden dated December 18, 2024 Exhibit S. Letter to Shadden dated February 13, 2024 Exhibit T. Letter to Shadden dated March 21, 2024 Exhibit U. Photo dated June 12, 2025

VI. CONCLUSION The Association respectfully requests the Tribunal to find in favor of the Respondent Association and dismiss the same at the hearing.

RESPECTFULLY SUBMITTED this 16th day of June, 2025. CHDB LAW LLP By: /s/ Kyle Banfield, Esq. Kyle Banfield, Esq. Emily E. Cooper, Esq. 1400 East Southern Avenue, Suite 400 Tempe, Arizona 85282-5691 Attorneys for Las Brisas Community Association ORIGINAL of the foregoing e-filed this 16th day of June, 2025 with: ALJ Velva Moses-Thompson Office of Administrative Hearings COPY of the foregoing mailed and emailed this 16th day of June, 2025 to: Keith A. Shadden 18600 West Pioneer Street Goodyear, Arizona 85338 [email redacted] Petitioner Pro Per By: /s/ Suzanne Hilborn