The Weight of Compliance: Lessons from the Tierra Del Sol Setback Dispute

1. When Lot Improvements Meet the Fine Print

For many RV resort enthusiasts, the appeal of a permanent lot lies in the ability to customize. Whether it’s a new awning or a pristine patio, these improvements define the resort lifestyle. However, as one resident at Tierra Del Sol RV Resort recently discovered, there is a significant legal distance between "getting approval" and "being in compliance."

The dispute between homeowner Myron H. Colvin and the Tierra Del Sol RV Resort Association serves as a cautionary tale for all planned community members. At the center of the conflict was a common upgrade—concrete pavers—that led to a Notice of Violation and an administrative hearing. By examining the nuances of this case, we can uncover how specific CC&R technicalities and jurisdictional boundaries determine the outcome of homeowner disputes.

2. From Green Light to Red Tape: The Project Timeline

The path to litigation began with what appeared to be a straightforward request. The timeline reveals a project that was approved twice but ultimately fell short of the community’s literal standards:

• March 2018: Mr. Colvin submits his first request to the Association to install concrete pavers in his lot's setback area. The Association grants approval.
• The Intervening Year: The project is stalled when Mr. Colvin leaves the state, preventing the immediate installation of the pavers.
• March 2019: Upon his return, Mr. Colvin submits a second request for the same project. Once again, the Association issues an approval.
• May 8, 2019: Shortly after the pavers are finally installed, the Association issues a formal Notice of Violation.

While the project was approved by the Architectural Officer, the execution—specifically the physical size and weight of the installed pavers—was deemed a breach of the community’s governing documents.

3. Decoding Section 4.3: The "One-Person" Rule and the 100-Pound Safe Harbor

The legal core of this dispute is Section 4.3 of the CC&Rs, which governs lot setbacks. Setbacks are designated "no-build" zones (five feet at the front, three feet on the sides and rear) intended to remain clear for utility access and safety.

The exact text of CC&R § 4.3 states:

"…in no event shall any Recreational Vehicle, its slide-out, or any Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback."

To clarify this for members, the Association provided a "Safe Harbor" suggestion: the violation could be remedied if the concrete was cut into sections weighing no more than 100 pounds.

The Association’s grievance was that Mr. Colvin’s pavers were too large and heavy to be moved by a single person unassisted, effectively turning a "landscaping feature" into a "permanent improvement" prohibited in the setback.

4. The Legal Paradox: Why You Can’t Sue the Board for Your Own Violation

On August 7, 2019, the parties met for an administrative hearing. Mr. Colvin’s defense was built on the fact that he had received prior approval to place pavers cut into 3×5 foot pieces. He argued that because the Association approved the plan, he was not in violation.

However, the Association raised a brilliant, albeit frustrating, legal defense. They argued that under A.R.S. § 32-2199(B), the tribunal only has the authority to hear petitions regarding violations committed by the Association. Since the Association did not place the pavers in the setback—Mr. Colvin did—the Association could not have violated Section 4.3.

This created a procedural wall for the homeowner. In these hearings, the Petitioner (Mr. Colvin) bears the Burden of Proof. He had to establish his case by a Preponderance of the Evidence, meaning he had to prove it was "more probably true than not" that the Association broke a rule. Because the CC&Rs restrict what owners do, not what the Board does, the Petitioner’s argument was fundamentally misplaced.

Furthermore, the Association argued that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a "declaratory judgment." In layperson’s terms, the court is not a consulting firm; it cannot provide a "stamp of approval" or pre-emptive advice to a homeowner looking to overturn a violation notice.

5. The Verdict: Dismissal and the Limits of Jurisdiction

Administrative Law Judge Velva Moses-Thompson ultimately dismissed the petition. The decision rested on two primary Conclusions of Law:

1. Failure to Establish a Violation by the Respondent: The Petitioner admitted to placing the pavers himself. Therefore, the Association did not violate the restriction against placing objects in the setback.
2. Lack of Jurisdiction: The tribunal does not have the legal authority to decide whether a member's personal actions constitute a violation when that member is seeking a "second opinion" to challenge a notice.

The final order was issued on August 27, 2019, and transmitted to the Commissioner of the Arizona Department of Real Estate.

6. Key Takeaways: Lessons for Every Resort Member

This case provides essential insights for anyone living under the governance of an HOA or RV resort:

1. Approval Is Not Absolute: An initial nod from an Architectural Officer is a green light to proceed, but it is not a shield against the literal text of the CC&Rs. If the finished product (e.g., the weight of a paver) violates the written code, the approval is effectively voided by the non-compliant execution.
2. The Tribunal is Not a "Second Opinion": Administrative hearings are for adjudicating breaches of law by the Association. They are not a venue to seek "declaratory relief" or to ask a judge to tell the Board to leave you alone.
3. The Burden of Proof is Yours: When you file a petition, you must prove the Association did something wrong. Proving that you followed a plan that later turned out to be a violation is rarely enough to win a case against the Board.
4. The Hierarchy of Authority: While an Architectural Officer may review your plans, the Board of Directors and the written CC&Rs remain the ultimate authority. Always ensure your project meets the "fine print" standards—like the "one-person" weight limit—before the concrete is poured.

7. Conclusion: The Constant State of Compliance

The Tierra Del Sol dispute highlights a vital truth of resort living: compliance is a constant state, not a one-time event. Obtaining a permit is only the first step; maintaining the project within the technical bounds of the CC&Rs is what prevents a costly legal setback.

The order in this matter became binding upon its issuance. Under Arizona law, any party wishing to challenge such a decision has a 30-day window to file a request for a rehearing with the Commissioner of the Department of Real Estate. For homeowners, the best defense remains a thorough understanding of the "one-person" rule and a cautious approach to the setback line.