Case Summary
| Case ID | 19F-H1919051-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-05-28 |
| Administrative Law Judge | Diane Mihalsky |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | David and Brenda Norman | Counsel | — |
|---|---|---|---|
| Respondent | Rancho Del Lago Community Association | Counsel | Ashley N. Moscarello |
Alleged Violations
CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)
Outcome Summary
The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.
Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).
Key Issues & Findings
Alleged violation by HOA approving a block wall built by neighbors (Hendersons)
Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.
Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 32-2199.01(A)(1)
- A.R.S. § 32-2199(B)
- A.R.S. § 33-1803
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
Analytics Highlights
- A.R.S. § 32-2199.01(A)(1)
- A.R.S. § 32-2199(B)
- A.R.S. § 33-1803
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
Audio Overview
Decision Documents
19F-H1919051-REL Decision – 710478.pdf
19F-H1919051-REL Decision – 711115.pdf
Case Briefing: Norman v. Rancho Del Lago Community Association
Executive Summary
This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.
The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.
The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.
Case Overview
Parties and Key Entities
Name/Entity
Description
Petitioners
David and Brenda Norman
Homeowners in the Rancho Del Lago Community.
Respondent
Rancho Del Lago Community Association
The homeowners’ association (HOA) for the community.
Neighbors
The Hendersons
The Petitioners’ next-door neighbors who built the disputed wall.
Management Co.
Management Solutions
The company managing the Respondent HOA.
Witness (Respondent)
Spencer Brod
Employee of Management Solutions overseeing the Respondent’s affairs.
Administrative Law Judge
Diane Mihalsky
Presiding judge from the Office of Administrative Hearings.
Regulating Body
Arizona Department of Real Estate
State agency authorized to hear certain HOA disputes.
Adjudicating Body
Office of Administrative Hearings
Independent state agency that conducted the evidentiary hearing.
Procedural Details
Detail
Information
Case Number
19F-H1919051-REL
Petition Filed
On or about February 28, 2019
Hearing Date
May 8, 2019
Amended Decision Date
May 28, 2019
Timeline of Key Events
• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.
• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.
• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.
• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.
• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.
• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.
• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.
• October 13, 2017: The ARC approves the Petitioners’ wall extension request.
• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.
• By November 2017: The Hendersons’ wall appears to have been constructed.
• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.
• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.
Governing Documents and Key Provisions
The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.
Document
Provision
Description
Article I § (p)
Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.
Article II § 2(a)
Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.
Article XII § 1
Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”
Common Project Guidelines
Section 3.11(D)(1)
States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.
Common Project Guidelines
Section 4.21
Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”
Summary of Testimony and Evidence
Testimony of Brenda Norman (Petitioner)
• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.
• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.
• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.
• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.
• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.
Testimony of Spencer Brod (for Respondent)
• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.
• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.
• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.
• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.
• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.
Administrative Law Judge’s Conclusions of Law
The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.
1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.
2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.
3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”
4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.
5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.
6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.
Final Order
IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.