Case Details
– Petitioner: Myron H. Colvin
– Respondent: Tierra Del Sol RV Resort Association
– Case Number: Not explicitly stated in the provided document.
– Date and Time of Hearing: August 7, 2019
– Judge’s Name: Velva Moses-Thompson
– Petitioner Successful: No, the petition was dismissed.
Case Description
This case involves a dispute between Myron H. Colvin and the Tierra Del Sol RV Resort Association regarding the installation of concrete pavers in the setback area of Colvin’s lot. Colvin, a member of the association, had initially submitted a request for approval to install concrete pavers in 2018, which was granted by the association. Due to personal circumstances, Colvin could not complete the installation at that time. He submitted a second request in March 2019, which was also approved by the association.
After proceeding with the installation, Colvin received a Notice of Violation from Tierra Del Sol on May 8, 2019, claiming that the installed pavers violated the association’s Covenants, Conditions, and Restrictions (CC&Rs) specifically under section 4.3, which mandates that no permanent or temporary structures, improvements, or landscaping features be placed in setback areas unless they can be moved by one person unaided by mechanical devices.
In response to the violation notice, Colvin filed a petition with the Arizona Department of Real Estate alleging that Tierra Del Sol had itself violated section 4.3. He requested a hearing to contest the notice and assert that he had not violated the regulations since he believed the pavers had been installed with prior approval and in accordance with the CC&Rs.
At the hearing, the arguments centered around whether Colvin’s actions constituted a violation of the CC&Rs and whether Tierra Del Sol had properly issued the notice of violation. Colvin contended that his previous approvals negated the allegation of violation, while the association argued that no approved object was present in the setback area.
The administrative law judge concluded that Colvin did not meet the burden of proof required to establish that Tierra Del Sol violated the CC&Rs. Additionally, the judge noted that Colvin failed to demonstrate any violation of section 4.3 on his part. Consequently, the petition was dismissed, thereby reaffirming the association’s position and the enforceability of the CC&Rs in this case.
An order, signed by the Administrative Law Judge, was issued confirming the dismissal of the petition, with a notice detailing the next steps for appealing the ruling if needed.
Legal Advice & Recommendations
In the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association, the petitioner lost his case primarily due to not successfully establishing that the Association violated its own CC&Rs (Covenants, Conditions, and Restrictions) or that he had complied with them. The ruling emphasized the requirements of CC&R § 4.3, which together with the stipulated facts, demonstrated that the installation of the concrete pavers as performed did not comply with the restrictions set forth therein.
Analysis Of Why The Petitioner Lost
1. Lack of Jurisdiction for Declaratory Judgment: The Administrator Law Judge noted that Mr. Colvin’s request for declaratory relief regarding whether he violated the CC&Rs could not be addressed due to a lack of jurisdiction. He failed to provide evidence demonstrating that the Respondent itself violated in any capacity, hence supporting the dismissal of the case (Finding of Fact 15).
2. Failure to Meet Burden of Proof: Under A.R.S. § 32-2199(B), it was Mr. Colvin’s burden to prove that the Association had violated the CC&Rs by a preponderance of the evidence (Conclusion of Law 2). The judge found that Mr. Colvin failed to provide any facts to support his claim that he was wrongfully cited, leading to his unsuccessful argument.
3. CC&R Interpretation: The CC&Rs were deemed clear and unambiguous in their prohibition against placing non-removable structures within designated setback areas (Conclusion of Law 4). The court supported the interpretation that the concrete pavers, installed as they were, violated the agreements set forth, as they were not removable without mechanical assistance.
Recommendations For The Petitioner
1. Ensure Clarity in Requests: When submitting requests to an HOA about improvements, it is vital to ensure that all details are clear and compliant with existing CC&Rs prior to starting any work. Mr. Colvin could have emphasized his intent to comply with the requirments of CC&R § 4.3 and sought clarification if there were any concerns about compliance.
2. Documentation of Compliance: Mr. Colvin should have prepared documentation that demonstrated how his installation was compliant with the CC&Rs. This could have included obtaining a written agreement from HOA confirming the manner of installation further supporting his position.
3. Understand the Appeals Process: It would have been beneficial for Mr. Colvin to fully understand the appeal or review process for HOA violations. If his request for a hearing had been better structured, it may have bolstered his position in making clear arguments against the violation notice.
Advice For Similar Cases
1. Clarity in CC&R Language: Ensure that the CC&Rs are fully understood, including any administrative interpretations. Seek amendments if terms seem ambiguous to prevent future enforcement issues.
2. Procedural Proficiency: Maintain an understanding of the procedural rights and obligations when engaging with HOAs. If violations arise, know how to appropriately present them and where jurisdiction lies.
3. Consulting Legal Expertise: Before confronting an HOA or filing a legal petition, it may be wise to consult legal counsel experienced in property and HOA law to avoid pitfalls present in the administrative procedural landscape.
Ultimately, while Mr. Colvin’s intentions regarding the installation of the pavers may have been good, the execution overlooked several criterion needed for compliance under the community’s CC&Rs.