**Case Summary: Audette v. Sun Harbor Community Association**
**Case No:** 20F-H2019009-REL
**Forum:** Office of Administrative Hearings, Arizona
**Hearing Date:** December 5, 2019
**Judge:** Velva Moses-Thompson

**Case Background and Facts**
The Petitioner, Jeffrey S. Audette, owns a waterfront residence within the Sun Harbor Community Association in Peoria, Arizona. In February 2018, Mr. Audette removed wrought iron fences on his property and replaced them with 5-foot high block walls located within 15 feet of the lake lining setback. He did not request or receive permission from the Sun Harbor Architectural Committee prior to this construction.

When Mr. Audette retroactively submitted a construction plan in March 2018, the Architectural Committee denied the request. The Association subsequently notified him that he was in violation of Article IV, Section 2(a) of the Covenants, Conditions, and Restrictions (CC&Rs) for altering the property without prior approval. Mr. Audette filed a petition with the Arizona Department of Real Estate alleging the denial was unreasonable and that the Association enforces its rules inconsistently.

**Key Arguments**
* **Petitioner (Audette):** Mr. Audette argued that the denial was unreasonable because his immediate neighbors approved the change and he had allegedly obtained permission from a sub-association. He contended that the walls were not visible to other homeowners and presented photographs attempting to show that other properties had similar setback violations.
* **Respondent (Sun Harbor):** The Association argued that the CC&Rs require prior written approval for changes. They cited Architectural Guidelines which prohibit any structure, fence, or shrub with a solid height greater than 3 feet within the 15-foot shoreline setback. Witnesses testified that the 5-foot block walls were "inharmonious" with the surroundings, obscured lake views, and that no other homeowners had replaced iron fences with such walls.

**Legal Analysis and Findings**
The Administrative Law Judge focused on the following legal principles:
1. **Burden of Proof:** The burden was on the Petitioner to prove his claims by a preponderance of the evidence.
2. **Contractual Compliance:** The CC&Rs constitute a binding contract. The Judge found Mr. Audette violated this contract by failing to obtain approval from the Architectural Committee before building the walls.
3. **Reasonableness:** The Association demonstrated it acted reasonably by enforcing specific guidelines regarding height and harmony. The evidence showed the construction was inconsistent with the governing documents.
4. **Selective Enforcement:** The Judge found that Mr. Audette failed to provide sufficient written or oral testimony to establish that the Association had selectively enforced its rules or allowed similar violations by other homeowners.

**Outcome**
The Administrative Law Judge concluded that Mr. Audette failed to prove the Association violated A.R.S. § 33-1817(B)(3) regarding the unreasonable withholding of approval.

* **Final Decision:** The petition was **dismissed**.
* **Prevailing Party:** Sun Harbor Community Association.