Complaint:
violations of CC&Rs and ACC; failure of HOA to respond within in specified time.
Source of Law: Declarations.
Discussion:
The CC&Rs contain no requirement that the DRC can only approve an application if it finds a “compelling reason” for departing from the original community plans or a prior practice. Neither applicable statute nor common-law authority supports such requirement.
Petitioners therefore have not established that the proposed private gate at the end of their shared driveway, off the cul-de-sac, would “maintain uniformity of architectural and landscaping standards throughout Eagle Mountain and thereby enhance the aesthetic and economic value of Eagle Mountain” or that the DRC should have approved their application under § 11.2 of the CC&Rs.
However, Petitioners have established that the DRC did not furnish a written decision within 45 days of the date that they submitted the application.
Therefore, under § 11.4 of the CC&Rs, the DRC’s admitted failure either to disapprove Petitioner’s application on the merits or to disapprove it as incomplete in writing within 45 days requires the application to be deemed approved.
Although Petitioners prevailed in this matter, an administrative proceeding is not an “action” such as to make attorney’s fees awardable under A.R.S. §§ 33-1807(H) or 12-341.01. Petitioners’ request for attorneys’ fees must therefore be denied.
Holding:
IT IS ORDERED granting Petitioners’ Petition and requiring Respondent to deem approved the application for the private gate at the end of Petitioners’ shared driveway.
IT IS FURTHER ORDERED that Respondent pay to Petitioners the filing fees, $550.00 each, for a total of $1,100.00, that they paid to initiate these administrative complaints within forty (40) days of the date that this order is mailed, if no appeal is taken.
Additional Remarks:
A consolidated case generally occurs when more than one complaint deals with the same legal issues. More than one homeowner is involved — one for each case.
Took HOA 72-days to respond to ACC request; CC&Rs specified a 45 day response time. Failure to respond constituted an automatic approval. (This was a 4-hour plus hearing!) Petitioner’s wanted to install a private gate on for their custom homes with 300-foot driveways. Homeowners were not allowed to remain in ACC committee during its supposed approval.
HOA claimed an incomplete submission was made — needed a waiver from neighbors. Yet, there is no waiver requirement by neighbors in the CC&Rs or rules and regulations. Aesthetic concerns were reason for denial. Mulcahy now claims, even though not stated by ACC for denial at the time in question — which is the issue — that HOA never approved private gates for private driveways.
Second issue raised by Mulcahy, again not reason for the denial, gates were not aesthetically appropriate – denial was required within 45 days as per the written contract, “black-letter law”. It was the custom of ACC to get waivers, although not in the governing documents.
A decision against homeowners would, once again, demonstrate that when it comes to protecting homeowners, the CC&Rs are not worth the paper it’s written on. We are well aware of court opinions referring to the written contract and the meaning of the provisions as stated, unless ambiguous. (No case history was mentioned in the opening arguments by either lawyer).
ALJ said, “I always forget what CC&Rs stand for.”
And to Ms. Mulcahy, “I saw your firm and recognized it.”
Beth Mulcahy for the HOA. Mr. Lynch for homeowners. Also asked for attorney fees.
The ALJ cannot remember what CC&R means? And he/she knows the HOA attorney? Wonderful.
Can you tell us what the qualifications are to become an ALJ? Thanks.
Comment by Anonymous — February 18, 2007 @ 7:27 pm |