Case Summary
| Case ID | 18F-H1817019-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2018-02-09 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | total_loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Jerry L. Webster | Counsel | — |
|---|---|---|---|
| Respondent | Mountain Rose Homeowners Association | Counsel | Nathan Tennyson, Esq. |
Alleged Violations
CC&Rs Article 10, Section 10.8
Outcome Summary
The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs Article 10.8, because that provision applies only to recorded notices, and the notices issued to the Petitioner were not recorded.
Key Issues & Findings
Alleged violation of CC&R notice requirements regarding clarity and completeness of violation notices.
The Petitioner alleged the HOA violated CC&Rs Article 10.8 because the violation notices sent to him failed to include five mandatory pieces of information required by that section of the CC&Rs. The Petitioner also sought the refund of $175 in fines.
Orders: Petitioners' petition in this matter is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 41-2198.01
- A.A.C. R2-19-119
Analytics Highlights
- A.R.S. § 41-2198.01
- A.A.C. R2-19-119
Audio Overview
Decision Documents
18F-H1817019-REL Decision – 620124.pdf
Case Briefing: Webster v. Mountain Rose Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817019-REL, wherein Petitioner Jerry L. Webster’s complaint against the Mountain Rose Homeowners Association was dismissed. The central issue revolved around Mr. Webster’s claim that the HOA engaged in a pattern of harassment by issuing vague and improper violation notices that failed to comply with Article 10.8 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The case was decided on a critical legal interpretation of the CC&Rs. The presiding judge determined that the specific requirements of Article 10.8, which Mr. Webster cited as being violated, apply exclusively to violation notices that are formally “Recorded” with the Maricopa County Recorder’s office. The petitioner failed to provide any evidence, or even make the claim, that the notices he received had been recorded. Consequently, Mr. Webster did not meet his burden of proof to demonstrate that the HOA had violated the cited article. The dismissal of the petition was based entirely on this procedural and definitional distinction, without a ruling on the petitioner’s underlying allegations of harassment or selective enforcement.
Case Background
• Parties:
◦ Petitioner: Jerry L. Webster, a homeowner and member of the Mountain Rose Homeowners Association.
◦ Respondent: Mountain Rose Homeowners Association (“Mountain Rose”), located in Scottsdale, Arizona.
• Adjudicating Body:
◦ The Office of Administrative Hearings in Phoenix, Arizona.
◦ Administrative Law Judge: Velva Moses-Thompson.
• Key Dates:
◦ 2016–2017: Mountain Rose issues a series of violation notices to Mr. Webster regarding tree trimming and debris cleanup.
◦ December 6, 2017: Mr. Webster files a petition with the Arizona Department of Real Estate.
◦ February 9, 2018: A hearing is held.
◦ February 9, 2018: The Administrative Law Judge issues the decision dismissing the petition.
Petitioner’s Allegations and Arguments
Mr. Webster’s petition centered on the claim that the HOA’s actions constituted harassment and violated specific provisions of the governing documents.
Core Claim: Violation of CC&Rs Article 10.8
Mr. Webster contended that the violation notices he received from Mountain Rose were invalid because they failed to contain information mandated by Article 10.8 (“Notice of Violation”) of the CC&Rs. Specifically, he alleged the notices omitted the following required elements:
• (ii) The legal description of the lot against which the notice is being Recorded.
• (iii) A brief description of the nature of the violation.
• (iv) A statement that the notice is being Recorded by the Association pursuant to the Declaration.
• (v) A statement of the specific steps which must be taken by the Owner or occupant to cure the violation.
Allegations of Harassment and Prejudicial Treatment
In his petition, Mr. Webster framed the HOA’s actions as a targeted and unfair campaign against him.
• Stated Intent: “The intent of this action is to stop the HOA from violating our civil rights by prejudicially harassing us with unclear and unwarranted violation notices.”
• History of Conflict: He alleged that “The HOA has harassed us for over 10 years with vague violation notices.”
• Lack of Communication: He claimed that his “Numerous requests were made for clarification…which were ignored.”
• Financial Penalties: Mr. Webster stated he was recently fined three times for a total of $175, which he sought to have refunded.
• Alleged Bias: To demonstrate selective enforcement, Mr. Webster noted that a review of the neighborhood revealed “22 trees touching dwellings, including ours,” and stated, “It is very doubtful any other member received notices or fines for identical circumstances.”
• Supporting Evidence: Mr. Webster submitted an aerial photo from 2012 showing the tree in a similar condition, a 2017 photo of another home with a tree touching the dwelling, and a 2017 photo of HOA-maintained trees.
Respondent’s Position
The Mountain Rose HOA, represented by Nathan Tennyson, Esq., presented a focused defense based on the specific language of the CC&Rs.
• Central Argument: The HOA contended that the violation notices issued to Mr. Webster were not recorded with the Maricopa County Recorder.
• Legal Position: Because the notices were not recorded, the stringent requirements outlined in Article 10.8 did not apply to them.
• Additional Detail: The HOA also argued that it had previously communicated the necessary corrective action to Mr. Webster, stating that “his tree needed to be trimmed 8 feet above the ground.”
The Decisive Legal Interpretation and Ruling
The Administrative Law Judge’s decision hinged on the precise definition and application of “Recording” as established within the Mountain Rose CC&Rs.
The Definition of “Recording”
Article 1.33 of the CC&Rs provides the controlling definition:
“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.
Application of Law to Facts
The Judge concluded that Mr. Webster’s entire case rested on a misapplication of Article 10.8.
• Limited Scope of Article 10.8: The ruling states, “Mountain Rose CC&Rs Article 10.8. applies to the recording of notices and recorded notices.”
• Burden of Proof: Under Arizona law (A.A.C. R2-19-119), the burden of proof fell to the petitioner, Mr. Webster, to demonstrate his claim by a preponderance of the evidence.
• Crucial Factual Finding: The decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.“
• Petitioner’s Failure to Allege: The Judge further noted, “Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him.”
Conclusion of Law
Based on the evidence and the plain language of the CC&Rs, the Judge found that Mr. Webster failed to make his case.
“Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.”
Final Order and Disposition
The petition was summarily dismissed based on the failure to prove that the relevant CC&R article was applicable to the facts presented.
Order:
“IT IS ORDERED that Petitioners’ petition in this matter is dismissed.”
The order was dated February 9, 2018, and transmitted to the parties on February 28, 2018.