Case Details
– Petitioner: Donald S. Fern and Judith A. Hedges
– Respondent: San Ignacio Heights Inc.
– Case Number: Not provided in the transcript
– Date and Time of Hearing: November 3, 2020
– Judge’s Name: Thomas Shedden
– Petitioner Successful: Yes
Case Description
This case involves a dispute between Petitioners Donald S. Fern and Judith A. Hedges, who own a “view lot” (lot 46) located at 1546 West Acala Street in Green Valley, and the Respondent, San Ignacio Heights Inc. The dispute centers around an alleged violation of the Second Amended and Restated Declaration of Conditions, Covenants, and Restrictions (CC&Rs), specifically Article VI(D), referred to as “View Obstructions.”
The case was brought to the Office of Administrative Hearings following a Notice of Hearing issued by the Arizona Department of Real Estate on October 5, 2020. Petitioners claimed that the pergola built by the owners of the neighboring lot 47 obstructed their view of the Santa Rita Mountains, a view that the CC&Rs stipulate must be maintained for owners of view lots.
The hearing was conducted without witness testimonies, as both parties agreed to rely on the existing administrative record. Each side presented closing arguments regarding the situation. Petitioners argued that the architecture review committee (ARC) of the Respondent had improperly approved the construction of the pergola in February 2018, which they contend violated the CC&Rs.
Respondent’s defense included the assertion that Petitioners’ predecessors had been aware of the pergola construction and did not object, as well as a claim that maintaining an unobstructed view would necessitate removing eight other houses in the vicinity. Importantly, Respondent acknowledged that its prior approval of the pergola was an error and had since rescinded this approval in August 2020.
Despite the Respondent’s acknowledgment of the error, the tribunal determined that the Petitioners were the prevailing party in this matter. As per Arizona law, since the Petitioners successfully argued their case regarding the CC&R violation, they were entitled to the relief they requested, which included reimbursement of their filing fee of $500.00, to be paid by the Respondent within thirty days of the order.
The order concluded with the stipulation that while Respondent had rectified its previous approval of the pergola, Petitioners had not successfully demonstrated a case for a civil penalty against the Respondent. This ruling emphasizes the importance of adherence to community agreements and the vital role of clear communication in resolving neighborhood disputes regarding property use.
Legal Advice & Recommendations
In the matter between Donald S. Fern and Judith A. Hedges (“Petitioners”) and San Ignacio Heights Inc. (“Respondent”), the Administrative Law Judge (ALJ) ruled in favor of the Petitioners on the basis that the Respondent had violated the “View Obstructions” provision of the Second Amended and Restated Declaration of CC&Rs by granting approval for the pergola that obstructed the Petitioners’ view.
Analysis Of The Decision
1. Standing and Jurisdiction: The Petitioners, as owners of a designated “view lot,” had standing to bring the complaint under the CC&Rs. The authority of the Department of Real Estate (per ARS Title 32, Chapter 20, Article 11) allowed the ALJ to adjudicate the dispute.
2. Burden of Proof: The Petitioners had the burden of proving that a violation occurred. They successfully established that the Respondent acknowledged its error in granting approval for the pergola but did not prove that the Respondent should be assessed a civil penalty. The ALJ determined that the admission of error constituted a violation of the CC&Rs.
3. Rescission of Approval: The Respondent acted to rescind the approval prior to the hearing. The ALJ noted that this action effectively resolved the core issue of the complaint (the existence of an obstruction).
4. Prevailing Party Status: Although Petitioners did not receive a civil penalty, they were deemed the prevailing party due to their successful argument that the Respondent violated the CC&Rs, resulting in a ruling that required the Respondent to reimburse the Petitioners for their filing fee.
Recommendations For Petitioners
1. Documenting Timeline: The Petitioners could have presented clearer evidence regarding the timing of when they first confronted the Respondent about the pergola and the exact timeline for its construction. Clear documentation or communications showing the timeline would strengthen their position and could influence findings on penalties or other remedies.
2. Seeking Permanent Remedies: In addition to requesting civil penalties, they could have sought specific performance that would require the Respondent to take more proactive steps to prevent future violations or additional penalties if violations recur.
3. Communication: Prior to escalating to a formal petition, maintaining open lines of communication with the Board and the owners of the neighboring lot could potentially avert disputes. Offering to mediate directly with the lot owners may have been an alternative route before filing a formal complaint.
Conclusion
In this case, the Petitioners won on the procedural basis of being considered the prevailing party as the Respondent acknowledged its violation. They were advised to consider comprehensive documentation in future disputes and proactive communication strategies with both the HOA and their neighbors. Additionally, while they did not achieve civil penalties, they effectively brought attention to the need for compliance within the CC&Rs, which could foster ongoing vigilance in enforcement.
Future litigants in similar scenarios should learn from this case to prepare robust evidence and subsequent requests for remedies beyond mere acknowledgment of a violation to improve the outcomes of their disputes.