Complaint: enforce the architectural standards (allow petitioner’s changes)
Source of Law:
declaration; bylaws; Rules & Regs
Discussion:
However, to the extent that Arizona case law is applicable to and informs an alleged violation, it should be considered, and the Administrative Law Judge will do so herein.
[T]he Administrative Law Judge first observes that Mr. Fairfield comes before this Tribunal with unclean hands in that he directly violated the terms of the Declaration by proceeding with the installation of the driveway extension without first obtaining the approval of the Architectural Committee (approval he knew he was required to have).
The evidence in the instant case demonstrated that the Architectural Committee considers the type of extension installed by Mr. Fairfield to conflict with the harmony of the external design of lots within the subdivision, and that in the past six years, the Architectural Committee has not granted any requests to install such extensions.
Holding:
IT IS ORDERED that Mr. Fairfield’s petition is denied.
Additional Remarks:
Homeowner sought to cover driveway with concrete to prevent drainage runoff from eroding front yard in this desert-landscaped community. HOA considered this to be a structure and subject to its prior approval. No Cave Creek ordnance violation. Cement addition existed for some time period, about a month, before HOA insisted that it be removed, and threaten fines if homeowner did not comply. Cement composition was same as used on existing driveway. Other properties have extensions – what was allowed leads to the meanings of the rules.
HOA notice referred to a violation that in reality did not exist – “driveway must extend to garage”. Homeowner seeks approval; HOA seeks removal.
Homeowner attorney stated that the restriction was a rule and not a covenant in the CC&Rs, and that HOA could not add to CC&Rs by means of rules. [Cases exist relating to the meaning of “to amend” – to modify or to change, but not to add]. There is no mention of driveways in CC&Rs, but only in the Rules & Regs. HOA claims general powers under ”abiding by ACC decisions”.
HOA attorney clarifies that “going to the city for approval is not the same as going to the HOA for approval.” Furthermore, he argued that it was irrelevant what other properties looked like since HOA can change the rules, unless it could be shown that other properties were subject to same set of rules or CC&Rs.
Homeowner failed to get prior approval of ACC for any appearance or landscaping changes. Portrays HOA as really cooperative, helpful and willing to resolve the issue.
HOA board has broad discretionary powers, as granted by the CC&Rs, in regard to concerns relating to appeal of community. In the last paragraph in the Discussion above, we see that the ALJ may have ignored the fact that ALJ did not state whether there had been requests for extensions, but simply said the HOA did not grant other extensions. The Petitioner alleged that other lots had similar modifications, but is not clear whether or not the others, existing since the time of construction, were a meaningful deviation from the Petitioner’s extension. In any event, Petitioner had argued that his extension blended in with the landscaping as currently existed, but did not argue for arbitrary or capricious inforcement.
Morgan of Maxwell & Morgan, representing HOA. James Tanner of Jackson, White, representing homeowner. HOA is Rancho Manana in Cave Creek.
