Case Details

– Petitioner: Jeffrey S. Audette
– Respondent: Sun Harbor Community Association dba Desert Harbor Homeowners Association
– Case Number: Not explicitly provided.
– Date and Time of Hearing: December 5, 2019
– Judge’s Name: Velva Moses-Thompson
– Petitioner Success: No, the petitioner was not successful.

Case Description

The case involved a dispute between Jeffrey S. Audette (the Petitioner) and the Sun Harbor Community Association (the Respondent), concerning a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Mr. Audette, a homeowner and member of Sun Harbor, had replaced his wrought iron fences with 5-foot high block walls near the shoreline of Desert Harbor Lake without the required prior approval from the Sun Harbor Architectural Committee. The Sun Harbor CC&Rs specified that homeowners must obtain architectural approval before making such alterations, particularly in a designated setback area where structures greater than 3 feet in height are prohibited.

After Mr. Audette removed the fences and received a violation notice from Sun Harbor regarding this unauthorized construction, he appealed the denial of his request for approval to change the fences. Sun Harbor upheld the denial, leading Mr. Audette to file a petition with the Arizona Department of Real Estate, claiming that Sun Harbor had improperly enforced its rules and inconsistently applied its guidelines.

During the administrative hearing on December 5, 2019, Mr. Audette represented himself and argued that his construction was reasonable and necessary, suggesting that he had obtained approval from his neighbors and a sub-association prior to making alterations. He asserted that other homeowners in the community had previously received approvals for similar modifications and presented photographs as evidence of inconsistencies in the enforcement of the CC&Rs by Sun Harbor.

Sun Harbor defended its decision by highlighting the intended harmony of structure modifications within the community. The testimony from Sun Harbor representatives indicated that the block walls obstructed the view of the lake, which was contrary to community guidelines.

Ultimately, the Administrative Law Judge concluded that Mr. Audette did not meet the burden of proof necessary to demonstrate that Sun Harbor had violated any statutes or that it had selectively enforced its guidelines. The judge found that Sun Harbor acted within its rights in denying Mr. Audette’s construction plan based on the community’s CC&Rs.

As a result, the Administrative Law Judge ruled in favor of Sun Harbor, declaring it the prevailing party, and dismissed Mr. Audette’s petition. The order was binding unless a request for rehearing was made within 30 days, which was communicated to both parties following the hearing.

Analysis Of The Case

In This Case, The Petitioner Jeffrey S. Audette Lost His Appeal Against The Sun Harbor Community Association. The Key Findings Leading To This Conclusion Are As Follows

1. Violation of CC&Rs: Mr. Audette removed two wrought iron fences and replaced them with 5-foot high block walls without obtaining prior approval from the Sun Harbor Architectural Committee, which directly violates the Sun Harbor CC&Rs Article IV, Section 2(a). The CC&Rs which he is subject to clearly outline the requirement for prior approval before making alterations to property.

2. No Evidence of Selective Enforcement: Mr. Audette claimed that the association was inconsistently enforcing the guidelines but failed to produce any written or oral evidence to support this assertion. Without sufficient evidence demonstrating inconsistency in enforcement, his argument became weaker.

3. Submission of Construction Plans: Mr. Audette did not initially submit a request prior to construction, which weakened his standing. According to Arizona law (A.R.S. § 33-1817(B)(3)), while an association must not unreasonably withhold approval, in this case, the ARB had clear guidelines, and the modifications did not comply with them.

4. Precedence and Reasonableness: The committee’s decision to deny his request was supported by testimony establishing that the block walls were not harmonious with the surroundings and would obstruct views, thus justifying their denial to prevent setting a precedent that could affect the integrity of the community’s aesthetics.

Overall, the administrative law judge determined that Sun Harbor acted within its rights under the governing documents, leading to Mr. Audette’s loss.

Recommendations For The Petitioner

If Mr. Audette Were To Approach This Situation Again Or If Any Homeowner In A Similar Situation Were To Seek Modifications To Their Property, The Following Steps Could Assist In Achieving A More Favorable Outcome

1. Obtain Written Approval: Before performing any alterations, it is crucial to acquire written approval from the HOA’s Architectural Committee. This submission should include detailed plans and specifications that comply with CC&Rs.

2. Document Support from Neighbors: While Mr. Audette did mention support from his neighbors, it may have been beneficial to obtain written permission demonstrating community acceptance of his plans, which could strengthen his case.

3. Provide Evidence of Selective Enforcement: To substantiate claims of selective enforcement, the petitioner should gather evidence such as photographs, written complaints, or other documentation proving that similar modifications were allowed without repercussions.

4. Consult Legal Counsel Early: If there are concerns about CC&R restrictions or HOA enforcement actions, obtaining legal advice before proceeding with any modifications is advisable to ensure compliance and to evaluate the potential implications of any action taken.

5. Engage in Mediation: If an impasse occurs, consider engaging in mediation with the HOA to resolve disputes amicably rather than escalating to hearings.

Advice For Similar Cases

Homeowners facing similar disputes should prioritize understanding the CC&Rs and any governing documents fully. Being proactive about compliance, maintaining open communication with the HOA, and fostering strong relationships with neighbors can facilitate a smoother process for future alterations. Furthermore, if homeowners believe that their rights are being infringed upon, they should prepare meticulously with evidence before pursuing formal complaints or petitions.

Additionally, staying informed about Arizona legislation concerning homeowner associations, such as A.R.S. § 33-1801 to § 33-1818, can provide homeowners with important insights into their rights and responsibilities within the context of their HOA.