**Case Summary: Robert S. Nickell v. Holiday Harbour Property Owners Association**
**Case No:** 20F-H2019008-REL
**Forum:** Arizona Department of Real Estate, Office of Administrative Hearings
**Date of Decision:** Amended Decision issued December 9, 2019,.

**Procedural Background**
Petitioner Robert S. Nickell filed a petition against the Holiday Harbour Property Owners Association (the "Association"), alleging a violation of A.R.S. § 33-1817(B)(3). Nickell claimed the Association unreasonably withheld approval for his request to build a home with an attached RV garage reaching 17 feet in height,. The hearing took place on November 19, 2019, before Administrative Law Judge Thomas Shedden.

**Key Facts and Issues**
The primary dispute concerned Section 6 of the community's Covenants, Conditions, and Restrictions (CC&Rs), which limits structure height to "fifteen (15) feet in height above lot grade".
* **Petitioner’s Arguments:** Nickell argued that the Association had previously allowed other homes to exceed the 15-foot limit. He contended that because his neighbor's home was at a higher elevation, his proposed 17-foot structure would not obstruct views. Nickell also sought a variance under Section 11 of the CC&Rs—which allows waivers for "extreme or material hardship"—arguing that excavating the lot to meet the height requirement would cause drainage issues,.
* **Respondent’s Arguments:** The Association argued that the height limit is a matter of fairness, not just views. Witnesses testified that the other "tall" homes identified by Nickell were actually compliant because those owners had excavated down from the lot grade. The Association defined "lot grade" as the elevation of the former house on the lot and informed Nickell he could build his 17-foot design if he excavated down to remain compliant.

**Legal Analysis and Findings**
The Judge applied the standard of preponderance of the evidence, placing the burden of proof on the Petitioner.
1. **Contractual Compliance:** The CC&Rs are viewed as a contract between the parties, and the Association is required to act reasonably in exercising its authority,.
2. **Reasonableness of Enforcement:** The Judge found the Association's interpretation of "lot grade" and its enforcement of the height limit were reasonable. The evidence showed the Association consistently allowed members to excavate to accommodate taller internal structures, and they had offered this same solution to Nickell,.
3. **Hardship Waiver:** The Judge determined Nickell failed to prove that adhering to the Section 6 height restriction presented an "extreme or material hardship," meaning the Association was not required to grant a waiver under Section 11.
4. **Setback Evidence:** Testimony established that the "highest buildable point" Nickell used to justify his height calculation was not within the required setbacks.

**Outcome**
The Administrative Law Judge concluded that Nickell failed to prove the Association violated A.R.S. § 33-1817(B)(3),. The petition was **dismissed**.

*(Note: The findings rely on the Amended Decision issued Dec 9, 2019, which corrected a statutory citation error in the original Dec 6, 2019 order,).*