Case Summary
| Case ID | 19F-H1919064-REL |
|---|---|
| Agency | — |
| Tribunal | — |
| Decision Date | 2020-01-09 |
| Administrative Law Judge | — |
| Outcome | Petition dismissed |
| Filing Fees Refunded | — |
| Civil Penalties | — |
Parties & Counsel
| Petitioner | Myron H. Colvin | Counsel | Pro se |
|---|---|---|---|
| Respondent | Tierra Del Sol RV Resort Association | Counsel | Nicholas Nogami, Esq. and Lydia A. Peirce Linsmeier |
Alleged Violations
No violations listed
Video Overview
Audio Overview
Decision Documents
19F-H1919064-REL-RHG Decision – 763086.pdf
Administrative Decision Briefing: Colvin v. Tierra Del Sol RV Resort Association
Executive Summary
This briefing document analyzes the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (Case No. 19F-H19190064-REL-RHG). The case centered on a dispute regarding the installation of concrete pavers within a lot setback area and the interpretation of the association's Covenants, Conditions, and Restrictions (CC&Rs).
The Petitioner, Myron H. Colvin, alleged that the Tierra Del Sol RV Resort Association violated its own CC&Rs by issuing him a notice of violation. Following a rehearing on December 20, 2019, Administrative Law Judge Velva Moses-Thompson determined that the Petitioner failed to meet the burden of proof required to establish a violation by the Association. Furthermore, the judge ruled that the Office of Administrative Hearings (OAH) lacked the jurisdiction to issue a declaratory judgment regarding the Petitioner’s alleged violation. The petition was dismissed in its entirety.
Procedural History and Case Context
The dispute progressed through several administrative stages before reaching a final decision:
- Initial Petition: On September 12, 2018, Mr. Colvin filed a petition with the Arizona Department of Real Estate alleging a violation of Section 4.3 of the CC&Rs.
- Request for Hearing: On May 16, 2019, Mr. Colvin requested a hearing before the full Board of Directors concerning his alleged violation.
- Original Hearing: The first hearing was conducted on August 7, 2019. Following the decision, Mr. Colvin requested a rehearing.
- Rehearing: The Department of Real Estate set the matter for rehearing on December 20, 2019, at the OAH in Phoenix, Arizona.
Key Themes and Analysis
Interpretation of CC&R Section 4.3 (Lot Setbacks)
The core of the dispute involved the physical requirements for improvements within lot setbacks. Section 4.3 of the CC&Rs establishes specific setback areas:
- Front: 5 feet
- Sides: 3 feet
- Rear: 3 feet
The provision prohibits permanent or temporary structures and improvements in these areas, with the exception of landscaping. However, landscaping is only permitted if it consists of "features which can be moved by one person unassisted by mechanical devices."
The Association issued a violation notice because Mr. Colvin’s installed pavers were not small enough to be removed by a single person without mechanical assistance. The Association suggested a remedy of cutting the concrete into small 100-pound sections.
Burden of Proof and Legal Standards
The decision highlights the evidentiary requirements in administrative hearings:
- Preponderance of the Evidence: The Petitioner carries the burden of proving that the Respondent violated the CC&Rs by a "preponderance of the evidence." This is defined as evidence that is "more probably true than not" or possesses the "most convincing force."
- Petitioner's Failure to Allegue: The judge noted a fundamental flaw in the Petitioner's argument: Mr. Colvin did not allege that the Association had placed a structure or improvement in the setback. Rather, he used the petition to argue that his own actions did not constitute a violation.
Jurisdictional Boundaries
A critical theme in the decision is the limitation of the OAH’s authority. The judge clarified that the tribunal’s role is to hear petitions concerning violations of planned community documents under A.R.S. § 32-2199(B). The tribunal does not have the jurisdiction to issue a "declaratory judgment"—a legal determination of a party's rights or status—regarding whether a homeowner's specific actions violated the CC&Rs.
Important Quotes and Context
| Quote | Context |
|---|---|
| "Each Lot shall be subject to a setback area… in no event shall 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." | Source: CC&R Section 4.3. This quote defines the specific physical constraints that led to the violation notice against the Petitioner. |
| "Mr. Colvin did not even allege that Tierra Del Sol placed a structure, vehicle, or landscaping in the setback of a Lot. Mr. Colvin asserted that he did not violate Section 4.3 of the CC&Rs." | Source: Conclusions of Law ¶ 4. This highlights the disconnect between the Petitioner's claim and the legal requirements for a successful petition against an association. |
| "To the extent that Mr. Colvin is requesting a declaratory judgment regarding his alleged violation, this tribunal does not have jurisdiction to make such a determination." | Source: Conclusions of Law ¶ 5. This confirms the procedural limitation that the OAH cannot rule on a petitioner's "innocence" regarding a violation notice. |
| "A preponderance of the evidence is… evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." | Source: Conclusions of Law ¶ 3. This provides the legal standard used to evaluate the evidence presented during the hearing. |
Actionable Insights
For Property Owners
- Understand Petition Requirements: When filing a petition against a Homeowners Association (HOA), the owner must provide evidence that the Association violated a specific provision of the community documents.
- Clarify "Moveable" Standards: Before installing landscaping in setback areas, owners should verify that the materials meet the "one person, unassisted" rule to avoid mechanical device requirements and subsequent violations.
- Jurisdictional Awareness: Owners should be aware that the OAH is a venue for addressing association violations, not necessarily a venue for obtaining a declaration that they are in compliance with rules after receiving a violation notice.
For Community Associations
- Consistent Enforcement: The Association’s enforcement of Section 4.3 was based on a specific, measurable standard (size/weight of pavers and the need for mechanical assistance). Maintaining such clear standards aids in defending enforcement actions.
- Remediation Options: Providing specific methods for compliance (e.g., "cutting the concrete… into small 100 pound sections") can be a useful component of a violation notice.
- Jurisdictional Defense: In administrative hearings, associations can successfully argue for dismissal if the petitioner seeks a remedy (like a declaratory judgment) that the tribunal is not authorized to provide.
Case Analysis: Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL-RHG)
This study guide provides a comprehensive overview of the administrative law proceedings regarding a dispute between a property owner and a homeowners association. It focuses on the interpretation of Covenants, Conditions, and Restrictions (CC&Rs), the burden of proof in administrative hearings, and the jurisdictional limits of the Office of Administrative Hearings (OAH).
Key Concepts and Case Summary
Case Background
The case involves a dispute between Myron H. Colvin (Petitioner) and Tierra Del Sol RV Resort Association (Respondent). Mr. Colvin, a property owner within the resort, filed a petition alleging that the Association violated Section 4.3 of its own CC&Rs.
The conflict originated from Mr. Colvin’s installation of concrete pavers in the setback area of his lot. While the Association initially approved the request, it later issued a Notice of Violation on May 8, 2019. The Association contended that the installed pavers were too large to be moved by one person without mechanical assistance, thus violating the specific mobility requirements for improvements in setback areas.
Legal Provisions: CC&R Section 4.3 (Lot Setbacks)
Section 4.3 of the Tierra Del Sol CC&Rs defines the physical boundaries and restrictions for lot setbacks:
| Setback Location | Required Distance |
|---|---|
| Front | Five (5) feet |
| Sides | Three (3) feet |
| Rear | Three (3) feet |
Core Restrictions within Setbacks:
- Prohibited Items: No permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), or Park Models/RVs may be located in these areas.
- The "One-Person" Rule: Any improvement or landscaping feature in the setback must be capable of being moved by one person unassisted by mechanical devices.
- Encroachment: No structure, slide-out, or improvement may encroach on or overhang the designated setback area unless it meets the mobility criteria.
The Burden of Proof and Legal Standards
Under Arizona law, specific standards of evidence apply to administrative hearings:
- Petitioner's Burden: The Petitioner (Colvin) bears the burden of proof to establish that the Respondent (Association) violated the CC&Rs.
- Respondent's Burden: The Respondent bears the burden of establishing any affirmative defenses.
- Standard of Evidence: Both parties must prove their claims by a preponderance of the evidence.
Defining "Preponderance of the Evidence": As cited in the decision via Black’s Law Dictionary and Udall on Evidence, this standard means:
- The contention is "more probably true than not."
- Evidence that possesses the "most convincing force" and "superior evidentiary weight."
- It does not require the total absence of reasonable doubt, but rather enough evidence to incline an impartial mind toward one side of the issue.
Jurisdictional and Interpretive Rulings
The Administrative Law Judge (ALJ) reached two primary legal conclusions:
- Restrictive Covenant Interpretation: In Arizona, unambiguous covenants are enforced to give effect to the intent of the parties and must be construed as a whole.
- Lack of Jurisdiction for Declaratory Judgments: The OAH has the authority to hear petitions regarding violations of community documents under A.R.S. § 32-2199(B). However, the tribunal determined it does not have the jurisdiction to issue a declaratory judgment regarding whether a specific owner's actions constitute a violation; its focus is on whether the Association violated the documents.
Short-Answer Practice Questions
1. What was the primary allegation made by Myron H. Colvin in his petition? Answer: Colvin alleged that the Tierra Del Sol RV Resort Association violated Section 4.3 of its CC&Rs.
2. According to CC&R Section 4.3, what is the weight/size limit for landscaping features in a setback? Answer: There is no specific weight listed in the CC&R text, but the feature must be able to be moved by one person unassisted by mechanical devices. (Note: The Association suggested cutting concrete into 100-pound sections to meet this intent).
3. What are the specific dimensions of the setbacks for the front, sides, and rear of a lot? Answer: Front: 5 feet; Sides: 3 feet; Rear: 3 feet.
4. Why did the Administrative Law Judge dismiss Mr. Colvin’s petition? Answer: The Petitioner failed to establish that the Association violated Section 4.3. Furthermore, the tribunal ruled it lacked jurisdiction to provide a declaratory judgment on whether Colvin himself was in violation.
5. Which Arizona Revised Statute permits an owner to file a petition regarding violations of planned community documents? Answer: A.R.S. § 32-2199(B).
Essay Prompts for Deeper Exploration
- The Nature of Association Violations: The Association argued that Section 4.3 can only be violated if an entity places an unapproved object in a setback. Analyze the distinction between an Association failing to enforce a rule and an Association "violating" a rule. Based on the Source Context, why was Colvin’s argument fundamentally misaligned with the tribunal's jurisdictional scope?
- Interpreting "Unambiguous" Covenants: The decision notes that restrictive covenants must be construed as a whole to give effect to the intent of the parties. Discuss the potential challenges in interpreting the phrase "moved by one person unassisted by mechanical devices." How does such a subjective standard complicate enforcement for both homeowners and Boards of Directors?
- The Standard of Evidence in Administrative Law: Compare and contrast "preponderance of the evidence" with other legal standards (such as "beyond a reasonable doubt"). Using the definitions provided in the text, explain why the ALJ found that Colvin failed to meet this standard in his claim against the Association.
Glossary of Important Terms
- Administrative Law Judge (ALJ): A judge who moves to resolve disputes between government agencies and people or between private parties under the authority of statutory law.
- A.R.S. § 32-2199(B): The Arizona Revised Statute that grants the Department of Real Estate the authority to hear disputes regarding planned community violations.
- CC&Rs (Covenants, Conditions, and Restrictions): The legal documents that lay out the rules for a planned community or homeowners association.
- Declaratory Judgment: A binding adjudication that establishes the rights or legal status of the parties without necessarily awarding damages or ordering specific action.
- Mechanical Device: In the context of CC&R 4.3, any tool or machine (such as a forklift or hoist) used to assist in moving objects that a person cannot move alone.
- OAH (Office of Administrative Hearings): The agency responsible for conducting independent administrative hearings for the state.
- Petitioner: The party who presents a petition to a court or tribunal (in this case, Myron H. Colvin).
- Preponderance of the Evidence: The evidentiary standard where the proof shows that a fact is more likely to be true than not.
- Respondent: The party against whom a petition is filed (in this case, Tierra Del Sol RV Resort Association).
- Setback: The minimum distance which a building or other structure must be set back from a street, road, or lot boundary.
When Landscaping Leads to Legal Limbo: Lessons from the Tierra Del Sol RV Resort Dispute
1. Introduction: The High Cost of a Three-Foot Setback
What begins as a minor aesthetic modification can swiftly evolve into a protracted legal battle within the Office of Administrative Hearings (OAH). For Myron H. Colvin, a homeowner at the Tierra Del Sol RV Resort, the installation of concrete pavers triggered a dispute that spanned nearly a year and a half, beginning with a petition filing on September 12, 2018, and concluding only after a formal rehearing in early 2020.
The conflict centered on an alleged violation of Section 4.3 of the community’s Covenants, Conditions, and Restrictions (CC&Rs). This case highlights the precarious nature of property setbacks—specifically, how a three-foot strip of land can dictate the technical specifications of landscaping materials and the procedural hurdles a homeowner must clear when challenging an Association’s enforcement actions.
2. The Rule: Understanding CC&R Section 4.3
The governing documents of Tierra Del Sol RV Resort Association establish rigid "setback areas" intended to maintain safety and utility access between lots. Section 4.3 governs the placement of all structures, vehicles, and improvements within these zones.
CC&R § 4.3 Lot Setbacks: Restrictions "Each Lot shall be subject to a setback area across the front five (5) feet, on both sides three (3) feet, and the rear three (3) feet of each Lot. No permanent or temporary structures, improvements (other than landscaping), vehicles (other than golf carts and car dollies), Park Models or Recreational Vehicles shall be located within such setback area. A Recreational Vehicle, Park Model, Arizona Room, awning, shed, or any other permitted structure must be located on a Lot in compliance with setback requirements and rules of the Board, and 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."
Under this provision, the Association enforces three distinct setback requirements:
- Front: 5 feet
- Sides: 3 feet
- Rear: 3 feet
As a specialist, it is vital to note that Section 4.3 applies the same "manual movability" standard to pavers as it does to "Arizona Rooms" and "Recreational Vehicle slide-outs." The core requirement is the "one-person" rule: any improvement in these areas must be capable of being moved by a single individual without mechanical assistance. This ensures that the Association or utility providers can clear the setback area quickly if emergency access to underground lines or property boundaries is required.
3. The Conflict: Pavers, Permits, and "Mechanical Devices"
While the Association initially granted approval for Mr. Colvin to install concrete pavers, the Association initiated formal enforcement proceedings following the actual installation. On May 8, 2019, the Association issued a Notice of Violation, asserting that the installed pavers were too large and heavy to comply with the "unassisted" movement requirement of CC&R § 4.3.
To resolve the non-compliance, the Board offered a compromise designed to bring the improvement within the "one-person" rule:
- Complete removal of the concrete pavers from the setback areas; or
- Sectioning the material: Cutting the concrete within the three-foot setback into small, 100-pound sections that a single person could theoretically move.
Mr. Colvin contested the violation, mounting a defense based on a prior alleged approval. He contended that the Association had previously sanctioned his plan to place concrete pavers cut into 3×5 foot pieces within the setback. This disagreement led to an initial hearing on August 7, 2019, and a subsequent rehearing on December 20, 2019, after Mr. Colvin challenged the initial decision.
4. The Legal Breakdown: Why the Petition Was Dismissed
The matter was adjudicated by an Administrative Law Judge (ALJ) under the authority of A.R.S. § 32-2199(B). Despite the lengthy proceedings, the ALJ sustained the Respondent's jurisdictional objections and dismissed the petition based on two fundamental legal failures.
A "Dead on Arrival" Legal Strategy
Under Arizona law, the Petitioner bears the preponderance of the evidence burden. This requires the Petitioner to prove that their contention is "more probably true than not" or carries the "most convincing force."
Mr. Colvin’s strategy was fundamentally flawed. Under A.R.S. § 32-2199(B), a petitioner must allege and prove that the Association violated the community documents. Instead, Mr. Colvin’s arguments were focused entirely on proving that he had not violated the CC&Rs. Because he failed to allege or prove a specific violation committed by the Association, he failed to meet his evidentiary burden.
The Jurisdictional Trap: No Declaratory Judgments
A critical takeaway for any homeowner is that the Office of Administrative Hearings is a venue of limited jurisdiction. The Association argued, and the ALJ confirmed, that the tribunal does not have the authority to issue a "declaratory judgment."
In practical terms, the OAH cannot provide "clearance" for a homeowner’s project or issue a ruling simply stating that a homeowner’s pavers are compliant. The tribunal’s power is restricted to determining if the Association’s actions—such as the issuance of a fine or a notice—violated the CC&Rs. By asking the court to rule on the status of his own improvements rather than the illegality of the Association's enforcement, the Petitioner sought a remedy the court had no power to give.
5. Conclusion: 3 Essential Takeaways for Homeowners
The petition was officially dismissed on January 9, 2020, with the ALJ noting that the order was binding as it resulted from a rehearing. This case serves as a vital case study in procedural correctness:
- Frame the Petition Correctly: In administrative law, being "right" about your landscaping is insufficient. You must frame the dispute as a violation committed by the Association. Do not defend your actions; instead, prove the Association’s enforcement action contradicts the CC&Rs.
- The "Unassisted" Standard is Absolute: When CC&Rs specify "manual movability," they create a technical threshold. If an improvement requires a dolly, crowbar, or a second person to move, it is a violation. The Board's offer of "100-pound sections" is a common benchmark for what constitutes "one person unassisted."
- Respect the Finality of Rehearings: The OAH process is exhaustive. This dispute lasted from September 2018 to January 2020. Once a rehearing decision is issued, it is binding, and the path to appeal through the Superior Court is narrow and time-sensitive.
Before engaging in a legal battle over setbacks, homeowners must realize that the tribunal is there to police the Association, not to validate the homeowner. Review the fine print—and your procedural strategy—before the first stone is laid.
Case Participants
Petitioner Side
- Myron H. Colvin (Petitioner)
Appeared on behalf of himself
Respondent Side
- Nicholas Nogami (Attorney)
Appeared on behalf of Respondent Tierra Del Sol RV Resort Association - Lydia A. Peirce Linsmeier (Attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Received copy of decision via US mail
Neutral Parties
- Velva Moses-Thompson (Administrative Law Judge)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate