Complaint:
1. discrimination by landscaping 2. threats of additional assessments
Source of Law:
Declaration; by-laws; case law
Discussion:
At the hearing, Petitioner submitted 30 photographs of homes within Respondent’s jurisdiction illustrating the use of wrought iron and landscaping at the front of homes within the Respondent’s community. It is uncontroverted that Respondent does not have the authority to regulate a member homeowner’s landscaping. Respondent’s contention that Petitioner’s plan to install trelliswork between the columns of his residence creates the appearance of security issues for its community is not justified by the evidence.
There is an inconsistent logic in denying Petitioner request to install wrought iron trelliswork between the columns of his carport as he proposes, and the presence of existing wrought iron in homes throughout Respondent’s community.
A.R.S. § 41-2198.02(A) provides that a homeowner association may be assessed a civil penalty not to exceed $500.00. Respondent threatened Petitioner with the imposition of its attorney fees in this matter, which it had no basis for doing so. The Administrative Law Judge concludes that the imposition of a civil penalty is appropriate for such improper conduct by Respondent.
Holding:
The Administrative Law Judge concludes that Respondent made an arbitrary and capricious decision when it did not approved Petitioner’s request for installing trellis work, but instead restricted such installation to a height limited to 3 feet 11 inches rather than 8 feet, the height of the arch above the columns.
IT IS ORDERED that Petitioner’s request to install the trelliswork for Jasmine between the columns of his carport, including attaching the trelliswork to the structure, be granted.
IT IS FURTHER ORDERED that Respondent repay Petitioner his $550.00 filing paid to the Department within 30 days of the effective date of the entered Order in this matter.
IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 to the Department within 30 days of the effective date of the entered Order in this matter.
