Joshua M Waldvogel v. Sycamore Estate Parcel 13 Community Association

Posted on December 15, 2021 by [email protected]

Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID	21F-H2121044-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2021-12-15
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The Administrative Law Judge, upon rehearing, affirmed the denial of the petition, concluding that the Respondent HOA timely denied the Petitioner's architectural application. The timeline for a decision did not start until October 6, 2020, when the application was considered complete, making the November 19, 2020, denial valid.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Joshua M. Waldvogel	Counsel	—
Respondent	Sycamore Estate Parcel 13 Community Association	Counsel	Nicole Payne

Alleged Violations

A.R.S. § 33-1817(B)(3); CC&Rs Article VI, Section 6.5

Outcome Summary

The Administrative Law Judge, upon rehearing, affirmed the denial of the petition, concluding that the Respondent HOA timely denied the Petitioner's architectural application. The timeline for a decision did not start until October 6, 2020, when the application was considered complete, making the November 19, 2020, denial valid.

Why this result: Petitioner lost because the interpretation of the CC&Rs stipulated that the 60-day timeline starts only upon receipt of a complete application, which the ALJ determined was October 6, 2020.

Key Issues & Findings

Whether the architectural application for a casita was deemed approved due to the HOA missing the 60-day denial deadline.

Petitioner claimed his architectural application, submitted September 15, 2020, was deemed approved because the Denial Notice (November 19, 2020) occurred after the 60-day deadline (November 14, 2020). The ALJ determined that the 60-day period did not begin until the Application was complete with supporting information (October 6, 2020), making the deadline December 5, 2020, and the denial timely.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. Title 32, Ch. 20, Art. 11
Arizona Administrative Code R2-19-119
Johnson v. The Pointe Community Association
Powell v. Washburn
A.R.S. § 33-1817(B)(3)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

Analytics Highlights

Topics: Architectural Review, Deemed Approval, HOA Timeline Compliance, CC&R Interpretation, Rehearing

Additional Citations:

A.R.S. Title 32, Ch. 20, Art. 11
Arizona Administrative Code R2-19-119
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
A.R.S. § 33-1817(B)(3)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

Video Overview

Audio Overview

Decision Documents

21F-H2121044-REL-RHG Decision – 933158.pdf

Uploaded 2026-01-23T17:37:31 (106.1 KB)

21F-H2121044-REL-RHG Decision – ../21F-H2121044-REL/900658.pdf

Uploaded 2026-01-23T17:37:34 (103.7 KB)

Briefing on Waldvogel v. Sycamore Estate Parcel 13 Community Association

Executive Summary

This briefing synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Joshua M. Waldvogel (Petitioner) and the Sycamore Estate Parcel 13 Community Association (Respondent). The core of the conflict was the Petitioner’s application to build a second house, or “casita,” on his property, which was denied by the association’s Architectural Committee (ARC).

The central legal question was procedural: the timing of the association’s denial. The Petitioner argued that the 60-day review period stipulated in the community’s Covenants, Conditions, and Restrictions (CC&Rs) began when he submitted his initial application on September 15, 2020. By this calculation, the association’s November 19, 2020 denial was late, and his application should have been “deemed approved.”

The Respondent countered that the 60-day clock only began after the Petitioner provided a response to a request for additional information on October 6, 2020, making the application complete on that date. This would make the November 19 denial timely.

Administrative Law Judge Tammy L. Eigenheer presided over both an initial hearing and a subsequent rehearing. In both instances, the Judge ruled in favor of the Respondent, finding that the application was not complete until the requested information was provided. The denial was therefore timely and valid. The Petitioner failed to prove that the association violated its governing documents, and his petition was denied in both the initial decision and the final, binding decision on rehearing.

Case Background

• Case Numbers: 21F-H2121044-REL & 21F-H2121044-REL-RHG

• Presiding Judge: Administrative Law Judge Tammy L. Eigenheer

• Petitioner: Joshua M. Waldvogel, owner of Lot 228 at 11208 North 164th Lane, Surprise, Arizona 85388.

• Respondent: Sycamore Estate Parcel 13 Community Association (Sycamore Estates), a homeowners association in Surprise, Arizona.

• Core Issue: Petitioner sought approval from the Sycamore Estates Architectural Committee (ARC) to build a casita on his property. The ARC denied the application. The dispute centers on whether the denial was issued within the 60-day timeframe mandated by the community’s CC&Rs.

Chronology of Key Events

September 15, 2020

Petitioner submits an architectural application to build a casita.

October 5, 2020

Sycamore Estates requests additional information, specifically the required permits for the construction.

October 6, 2020

Petitioner emails a response, stating his architect verified compliance with city “laws” but does not provide permits.

November 13, 2020

The ARC reviews the application and decides to deny it based on CC&Rs Article V, Section 5.2.

November 14, 2020

The date the Petitioner asserts the 60-day deadline for a decision expired.

November 19, 2020

Sycamore Estates issues the official Denial Notice to the Petitioner.

December 5, 2020

The date the Respondent asserts the 60-day deadline for a decision expired.

July 12, 2021

Initial administrative hearing is held.

August 2, 2021

Initial decision is issued, denying the Petitioner’s petition.

November 29, 2021

A rehearing is held at the Petitioner’s request.

December 15, 2021

Final decision on rehearing is issued, again denying the Petitioner’s petition.

Central Arguments of the Parties

Petitioner’s Position (Joshua M. Waldvogel)

• The 60-day timeline for the ARC to approve or deny the application began on the initial submission date of September 15, 2020.

• The deadline for the ARC’s decision was therefore November 14, 2020.

• The association’s request for additional information on October 5, 2020, did not “reset” or pause this timeline.

• Because the Denial Notice was not issued until November 19, 2020, five days after the deadline, the application should be considered “deemed approved” as per the CC&Rs.

• During the rehearing, the Petitioner also argued that Sycamore Estates could only require information listed on the standard submission form.

Respondent’s Position (Sycamore Estates)

• The application was not considered complete until the Petitioner responded to the request for additional information.

• The response, received on October 6, 2020, marked the start of the 60-day review period.

• The deadline for a decision was therefore December 5, 2020.

• The Denial Notice, issued on November 19, 2020, was well within this timeframe and was therefore valid.

Governing Documents and Legal Principles

The case revolved around the interpretation of the Sycamore Estates CC&Rs, which function as a binding contract between the homeowner and the association.

Key CC&R Provisions

• Article VI, Section 6.5 (Application for Approval): This section contains the critical language that formed the basis of the Judge’s decision. It states that the 60-day review period begins:

• Article V, Section 5.2 (Building Type and Size): This section provided the substantive basis for the ARC’s denial of the casita, as it specifies:

Legal Standard

• Burden of Proof: The Petitioner, as the party asserting the claim, had the burden of proof.

• Standard of Proof: The standard was a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Contract Interpretation: In Arizona, unambiguous restrictive covenants (like the CC&Rs) are enforced to give effect to the intent of the parties.

Rulings and Judicial Rationale

The Administrative Law Judge consistently sided with the Respondent’s interpretation of the CC&Rs in both the initial hearing and the rehearing.

Initial Hearing and Decision (August 2, 2021)

• Finding: The Judge concluded that the application was not complete until the Petitioner provided his response on October 6, 2020.

• Rationale: Based on the language in Article VI, Section 6.5, the 60-day clock does not start until the application and all supporting information have been submitted. The association’s request for permits was a reasonable part of gathering this supporting information.

• Conclusion: The November 19, 2020 Denial Notice was issued prior to the December 5, 2020 deadline and was therefore valid. The Judge ordered that the “Petitioner’s petition is denied.”

Rehearing and Final Decision (December 15, 2021)

• Basis for Rehearing: The Petitioner requested a rehearing, alleging the initial decision was an “abuse of discretion.” His written basis was:

• Rehearing Arguments: During the rehearing, the Petitioner acknowledged that the Findings of Fact in the initial decision were not in error and presented the same legal arguments as before.

• Final Ruling: The Judge’s conclusion remained unchanged. Upon consideration of all evidence from the rehearing, the Judge again found that the application was not complete until October 6, 2020, and the denial was timely.

• Final Order: The Judge concluded that the “Petitioner failed to establish that Respondent failed to comply with its CC&Rs” and again ordered that the “Petitioner’s petition is denied.” This order was designated as binding on the parties, with any further appeal requiring judicial review in superior court.

Study Guide: Waldvogel v. Sycamore Estate Parcel 13 Community Association

This study guide provides a comprehensive review of the administrative case between homeowner Joshua M. Waldvogel and the Sycamore Estate Parcel 13 Community Association. The materials are derived from the Administrative Law Judge Decisions issued on August 2, 2021, and December 15, 2021.

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Part I: Short Answer Quiz

Instructions: Answer the following ten questions based on the provided case documents. Each answer should be two to three sentences in length.

1. Who were the petitioner and the respondent in this case, and what specific project was the petitioner seeking approval for?

2. What was the central procedural dispute regarding the timeline for the respondent’s decision on the application?

3. According to the community’s CC&Rs, what is the consequence if the Architectural Committee fails to approve or disapprove an application within the specified timeframe?

4. On what substantive grounds did the Sycamore Estates Architectural Committee ultimately base its decision to deny Mr. Waldvogel’s application?

5. What key date did the petitioner, Mr. Waldvogel, argue was the start of the 60-day review period, and what was his reasoning?

6. What key date did the respondent, Sycamore Estates, argue was the start of the 60-day review period, and what was its reasoning?

7. What was the Administrative Law Judge’s conclusion in the initial hearing decision issued on August 2, 2021?

8. On what basis did the petitioner request a rehearing after the initial decision was rendered against him?

9. During the rehearing, did the petitioner introduce new evidence or arguments, or did he challenge the established Findings of Fact?

10. What legal standard of proof was required in this administrative hearing, and which party held the burden of proof?

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Part II: Answer Key

1. The petitioner was Joshua M. Waldvogel, the record owner of Lot 228. The respondent was the Sycamore Estate Parcel 13 Community Association. Mr. Waldvogel was seeking approval for a plan to build a second house, or casita, on his property.

2. The central dispute was determining when the 60-day timeline for the Architectural Committee’s decision officially began. The petitioner argued it started upon the initial application submission, while the respondent contended it began only after a request for additional information was answered, thereby making the application “complete.”

3. Article VI, Section 6.5 of the CC&Rs states that if the committee fails to act within sixty days after a complete application and all supporting information have been submitted, “approval will not be required and this Section will be deemed to have been complied with by the Owner.”

4. The committee denied the application based on Article V, Section 5.2 of the CC&Rs. This section explicitly prohibits the construction of more than “one detached Single Family Residence” on any lot.

5. The petitioner argued the 60-day review period began on September 15, 2020, the date he submitted his initial architectural application. This would have set the deadline at November 14, 2020, making the November 19 Denial Notice late and rendering the application “deemed approved.”

6. The respondent argued the 60-day period began on October 6, 2020, the date the petitioner responded to their request for additional information (permits). Sycamore Estates maintained the application was not complete until that response was received, which would set the deadline at December 5, 2020.

7. The Administrative Law Judge concluded that the application was not complete until the petitioner provided a response to the October 5 request for information. Therefore, the Denial Notice issued on November 19, 2020, was timely and valid, and the petitioner’s petition was denied.

8. The petitioner requested a rehearing on the grounds that the initial decision was “arbitrary, capricious, or an abuse of discretion.” His written statement argued that the CC&Rs do not explicitly state that the review timeline restarts upon a request for more information.

9. No, the petitioner did not introduce new arguments. He presented the same arguments during the rehearing as he had in the initial hearing and acknowledged that the Findings of Fact from the first decision did not contain any errors, choosing only to argue their legal effect.

10. The standard of proof was a “preponderance of the evidence.” The petitioner, as the party asserting a claim, had the burden of proof to establish that the respondent violated the governing documents.

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Part III: Essay Questions

Instructions: The following questions are designed for deeper analysis of the case. Formulate comprehensive essay responses that synthesize facts and legal principles from the source documents.

1. Analyze the significance of Article VI, Section 6.5 of the CC&Rs, specifically the clause “together with all supporting information, plans and specifications required by the Design Guidelines have been submitted to it.” How did the interpretation of this specific language become the central legal issue of the case, and why was it determinative of the outcome?

2. Discuss the concept of “preponderance of the evidence” as defined in the legal decisions. Explain which party had the burden of proof and evaluate how the Administrative Law Judge applied this standard to the undisputed facts of the case to reach her conclusions in both the initial hearing and the rehearing.

3. The petitioner’s proposed casita was ultimately denied on the substantive grounds that it violated Article V, Section 5.2 of the CC&Rs. Why did the legal proceedings focus almost entirely on the procedural issue of the decision timeline rather than the substantive prohibition of a second residence on the lot?

4. Examine the petitioner’s basis for requesting a rehearing and the Commissioner’s decision to grant it. Despite the rehearing being granted, the Administrative Law Judge’s decision remained unchanged. Discuss the effectiveness of the petitioner’s arguments during the rehearing process as described in the legal documents.

5. The legal decisions state that CC&Rs are a contract between the parties and that unambiguous restrictive covenants must be enforced to give effect to the parties’ intent. Based on the details provided in this case, explain how the principles of contract law were applied to resolve the dispute between Mr. Waldvogel and the Sycamore Estates association.

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Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues legally binding decisions. In this case, Tammy L. Eigenheer.

Application

The comprehensive and detailed written request submitted by a homeowner to the Architectural Committee for approval of construction, alteration, or other improvements that would alter the exterior appearance of the property.

Architectural Committee (ARC)

The committee within the Sycamore Estates Community Association responsible for reviewing and approving or denying modifications to lots to ensure compliance with the CC&Rs and Design Guidelines.

Burden of Proof

The obligation of a party in a legal case to provide evidence to prove their claims. In this matter, the petitioner had the burden of proof.

Casita

A small, secondary house or guesthouse. This was the type of structure Mr. Waldvogel sought to build on his property.

CC&Rs (Declaration of Covenants, Conditions, and Restrictions)

A legally binding document that governs a planned community or subdivision. The courts treat it as a contract between the homeowners’ association and the property owners.

Denial Notice

The official written communication from the homeowners’ association (Sycamore Estates) informing a homeowner (Mr. Waldvogel) that their architectural application has been formally denied.

Petitioner

The party who initiates a legal action by filing a petition seeking a legal remedy. In this case, homeowner Joshua M. Waldvogel.

Preponderance of the Evidence

The standard of proof in this matter, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Property

The specific lot owned by the petitioner, identified as Lot 228 of Sycamore Estates, located at 11208 North 164th Lane, Surprise, Arizona 85388.

Respondent

The party against whom a petition is filed and who must respond to the claims. In this case, the Sycamore Estate Parcel 13 Community Association.

Restrictive Covenant

A provision within the CC&Rs that limits the use of property. Article V, Section 5.2, which prohibits more than one detached residence per lot, is an example of a restrictive covenant.

He Tried to Use a 60-Day Deadline to Beat His HOA. Here’s What the Judge Decided.

Introduction: The Waiting Game

You’ve done the research, hired the architect, and finally submitted your home improvement plans to the Homeowners Association (HOA). Now, the waiting game begins. The days tick by, and you start wondering: What happens if they miss their own deadline to respond? Can you just start building?

A recent administrative law case in Arizona provides a fascinating and cautionary answer to this very question. It serves as a stark reminder that your community’s governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—are a legally binding contract, and assumptions about deadlines can lead to a losing battle.

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The Core of the Dispute: A Casita and a Calendar

The case involved Joshua M. Waldvogel, a homeowner in the Sycamore Estates community in Surprise, Arizona. His goal was to build a second house, or “casita,” on his property.

The conflict centered on a simple timeline. Waldvogel submitted his application on September 15, 2020. He argued the HOA had 60 days to respond, making the deadline November 14. When the HOA sent its denial on November 19, Waldvogel claimed that because the denial was late, his project was automatically “deemed approved.” This dispute over a five-day difference escalated to an administrative law hearing. Here are the key takeaways from the judge’s decision that every homeowner should understand.

1. The 60-Day Clock Doesn’t Start Until Your Application is “Complete”

The homeowner believed the 60-day review clock started the moment he sent his initial application. The judge, however, disagreed based on the precise wording in the HOA’s CC&Rs—the binding contract governing the community.

The power was in the fine print. Article VI, Section 6.5 of the CC&Rs stated:

In the event that the Architectural Committee fails to approve or disapprove an Application for approval within sixty (60) days after the Application, together with all supporting information, plans and specifications required by the Design Guidelines have been submitted to it, approval will not be required…

This single clause was the linchpin of the entire case. On October 5, the HOA requested additional information—specifically, the appropriate permits for the proposed construction. The next day, the homeowner responded, but according to the case findings, he “did not provide any permits as requested.” Instead, he emailed to confirm that his architect had verified the plans complied with city “laws.”

The judge ruled that the 60-day clock never started on September 15 because the application wasn’t yet “complete.” The HOA’s simple request for more information was the pivotal event. It established that the official start date for the review period was October 6, the day the homeowner provided his response. This made the November 19 denial well within the required timeframe. The crucial lesson here is that an HOA’s request for information can determine the official start date of their review, regardless of when you first submitted paperwork.

2. The Underlying Rules Are Your Biggest Hurdle

The entire legal battle focused on the procedural timeline—when the HOA denied the project. But in a twist of irony, the substance of the project—what was being proposed—was a non-starter from the beginning.

Even if the homeowner had won his argument about the deadline, his project was in direct violation of another core rule. Article V, Section 5.2 of the CC&Rs clearly stated:

No building shall be constructed or permitted to remain on any lot other than one detached Single Family Residence…

The homeowner fought and lost a battle over how he was denied, when the rules clearly stated his casita project was never going to be approved in the first place. This highlights a critical point: winning a procedural argument is meaningless if your project fundamentally violates the community’s substantive rules.

3. You Can Appeal, But It’s an Uphill Battle

After losing the initial hearing, the homeowner filed for a rehearing, claiming the judge’s decision was an “abuse of discretion.” The appeal, however, only solidified the original outcome and underscored the difficulty of such challenges.

The legal record from the rehearing is particularly telling. The judge noted two critical facts: first, the petitioner “acknowledged that the Findings of Fact set forth in the underlying decision in this matter did not include any errors.” Second, he “presented the same arguments during the rehearing that he provided during the initial hearing.”

In essence, the homeowner appealed without disputing the established facts and by using the same legal argument that had already failed. Unsurprisingly, the judge’s decision remained the same, and the petition was denied again. This serves as a potent reminder that challenging an HOA’s interpretation of its own governing documents can be a difficult, expensive, and often fruitless endeavor.

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Conclusion: Read the Fine Print Before You Dream

This case serves as a powerful lesson for every homeowner living under an HOA. Your community’s CC&Rs are a binding contract, and the specific language within them holds immense power. Assumptions about procedures, deadlines, and what you’re allowed to build can be costly mistakes.

It all boils down to one final, critical question: When was the last time you read your community’s governing documents, and what crucial detail might be waiting in the fine print?

Case Participants

Petitioner Side

Joshua M. Waldvogel (petitioner)
Appeared on his own behalf

Respondent Side

Nicole Payne (HOA attorney)
Carpenter Hazlewood Delgado & Bolen LLP
Represented Respondent
Carlotta L. Turman (HOA attorney)
Carpenter Hazlewood Delgado & Bolen LLP

Neutral Parties

Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Addressed during initial decision transmission
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Addressed during rehearing decision transmission
AHansen (ADRE staff)
Arizona Department of Real Estate
Email recipient for case transmission
djones (ADRE staff)
Arizona Department of Real Estate
Email recipient for case transmission
DGardner (ADRE staff)
Arizona Department of Real Estate
Email recipient for case transmission
vnunez (ADRE staff)
Arizona Department of Real Estate
Email recipient for case transmission

Jeffrey S Audette vs. Sun Harbor Community Association dba Desert

Posted on December 25, 2019 by [email protected]

Case Summary

Case ID	20F-H2019009-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-12-25
Administrative Law Judge	Velva Moses-Thompson
Outcome	The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jeffrey S. Audette	Counsel	Mark J. Bainbridge
Respondent	Sun Harbor Community Association dba Desert Harbor Homeowners Association	Counsel	Lauren Vie

Alleged Violations

A.R.S. § 33-1817(B)(3)

Outcome Summary

The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.

Why this result: The Petitioner modified his property without required prior approval. The modification (block walls in a setback area) violated specific architectural guidelines. The Petitioner provided no evidence that the HOA had not enforced these guidelines against other homeowners (selective enforcement).

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner alleged the HOA unreasonably denied his request to replace wrought iron fences with block walls and inconsistently enforced rules.

Orders: Petition dismissed; Respondent deemed prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1817(B)(3)
CC&R Article IV, Section 2(a)

Video Overview

Audio Overview

Decision Documents

20F-H2019009-REL Decision – 760862.pdf

Uploaded 2026-04-24T11:23:04 (87.1 KB)

20F-H2019009-REL Decision – 760862.pdf

Uploaded 2026-01-27T21:17:38 (87.1 KB)

Administrative Law Judge Decision: Jeffrey S. Audette v. Sun Harbor Community Association

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision in the matter of Jeffrey S. Audette v. Sun Harbor Community Association dba Desert Harbor Homeowners Association (No. 20F-H2019009-REL). The dispute arose when the Petitioner, Jeffrey S. Audette, replaced wrought iron fencing with five-foot-high block walls on his lakefront property without obtaining prior authorization from the Respondent, Sun Harbor Community Association (Sun Harbor).

The Petitioner alleged that the Association unreasonably denied his construction plans and practiced inconsistent enforcement of community rules. However, the Administrative Law Judge (ALJ) determined that Sun Harbor acted reasonably and within the scope of its governing documents. The ALJ found that the Petitioner failed to meet the burden of proof required to establish selective enforcement or a violation of Arizona law. Consequently, the petition was dismissed, and Sun Harbor was deemed the prevailing party.

Detailed Analysis of Key Themes

1. Procedural Non-Compliance and Prior Approval

A central theme of the case is the Petitioner’s failure to adhere to the procedural requirements set forth in the Sun Harbor Covenants, Conditions, and Restrictions (CC&Rs).

Unauthorized Modification: In February 2018, the Petitioner replaced two wrought iron fences with five-foot-high block walls.
Lack of Prior Consent: This construction occurred before the Petitioner requested permission from the Sun Harbor Architectural Committee.
Retrospective Denial: When the Petitioner eventually submitted a request in March 2018, the Committee denied it, and the Association upheld this denial upon appeal.

2. Architectural Guidelines and Setback Restrictions

The decision highlights specific technical violations regarding the placement and height of the new structures.

The 15-Foot Setback Rule: Sun Harbor Architectural Guidelines prohibit any structure, fence, or shrub with a solid height greater than three feet within the 15-foot setback of the concrete shoreline.
Violation Specifics: The Petitioner’s block walls were five feet high and located within the restricted 15-foot lake lining setback.
Preservation of Harmony and Views: Testimony from Association representatives established that the block walls were "inharmonious with the surroundings" and "obscured the view of the lake" for other homeowners, specifically those on lots 1 through 9.

3. Standards of Evidence and Selective Enforcement

The Petitioner attempted to defend the modification by claiming that Sun Harbor inconsistently enforced its rules.

Burden of Proof: Under Arizona Administrative Code R2-19-119, the party asserting a claim (the Petitioner) bears the burden of proof by a preponderance of the evidence.
Insufficient Evidence: While the Petitioner provided photographs of other properties allegedly in violation of the three-foot height limit, he failed to provide written or oral testimony proving that the Association had not enforced the guidelines against those specific homeowners.
The Precedent Concern: The Association testified that its denial was partly based on a desire to avoid creating a precedent that would allow other homeowners to replace iron fences with high block walls.

Important Quotes with Context

Quote	Context
"The Committee will take into consideration the suitability of the proposed alteration… the harmony thereof with the surroundings and the effect of the alteration as planned on any adjacent or neighboring property."	Found in the Sun Harbor Architectural Guidelines (Sept 2002), this establishes the Association's broad authority to judge projects based on aesthetics and community impact.
"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks."	The specific rule from the Architectural Guidelines that the Petitioner's five-foot wall violated.
"The CC&Rs are a contract between the parties and the parties are required to comply with its terms."	A legal conclusion citing Johnson v. The Pointe Community Association, reinforcing that homeowners are legally bound by the association's governing documents.
"An association shall not unreasonably withhold approval of a construction project’s architectural plans."	A reference to A.R.S. § 33-1817(B)(3), which serves as the legal standard for determining if an HOA's denial was lawful.
"A preponderance of the evidence is: The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other."	The legal standard used by the ALJ to evaluate the claims, citing Black’s Law Dictionary.

Actionable Insights

For Community Associations (HOAs)

Consistency in Documentation: The Association's success in this matter was tied to having clear, written Architectural Guidelines that specified height and setback requirements.
Aesthetic Justification: Boards should document how a non-compliant structure impacts the "harmony" of the community or the views of other residents, as these are defensible reasons for denial under Arizona law.
Precedent Awareness: Associations may validly deny a request if granting it would set an undesirable precedent for the community, provided the denial is based on existing CC&Rs.

For Homeowners and Members

The "Prior Approval" Mandate: Homeowners must obtain written approval before beginning construction. Attempting to seek approval after the fact (retrospective approval) puts the homeowner at a significant legal and financial disadvantage.
Sub-Association vs. Master Association: Approval from a sub-association does not automatically grant approval from the master association. Homeowners must ensure they have consent from all relevant governing bodies.
Substantiating Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just photos of other violations; they must prove that the association actively chose not to enforce rules in those specific instances while enforcing them against the homeowner.

Legal and Regulatory Takeaways

Preponderance of Evidence: In administrative hearings regarding HOA disputes, the petitioner must provide convincing force to their claims. Merely showing that neighbors approve of a change is insufficient to override the contractual obligations of the CC&Rs.
Contractual Nature of CC&Rs: The courts and administrative offices treat CC&Rs as unambiguous contracts. If the terms are clear, they will be enforced as written to give effect to the intent of the parties.

Study Guide: Audette v. Sun Harbor Community Association

This study guide provides a comprehensive overview of the administrative hearing between Jeffrey S. Audette (Petitioner) and Sun Harbor Community Association (Respondent). It explores the legal obligations of homeowners within an association, the authority of architectural committees, and the standards of proof required in administrative law.

Key Concepts and Case Overview

1. Architectural Control and Prior Approval

Under Sun Harbor’s Covenants, Conditions, and Restrictions (CC&R) Article IV, Section 2(a), homeowners are strictly required to obtain written notification and approval from the Architectural Committee before undertaking any structural changes. This ensures that alterations are suitable in terms of materials, site location, and harmony with the surrounding environment.

2. Specific Property Restrictions

The Sun Harbor Architectural Guidelines (adopted September 2002) establish specific limitations for waterfront properties:

The 15-Foot Setback: No structure, fence, or shrub with a solid height greater than 3 feet is permitted within the 15-foot setback of the concrete shoreline.
Exceptions: The only structures generally exempt from this height restriction are approved docks.

3. Legal Status of CC&Rs

In Arizona, CC&Rs are viewed as a legal contract between the association and the property owner. Courts and administrative bodies must enforce these documents according to their clear and unambiguous terms to give effect to the intent of the parties involved.

4. Burden of Proof in Administrative Hearings

In an administrative hearing, the party asserting a claim (the Petitioner) bears the "burden of proof." The standard used is a "preponderance of the evidence," meaning the evidence presented must have the most convincing force and demonstrate that the claim is more likely true than not.

5. Selective Enforcement Claims

A common defense in HOA disputes is the allegation of selective enforcement—the idea that the association is enforcing rules against one member while ignoring similar violations by others. To succeed, the petitioner must provide concrete evidence (written or oral) that the association knowingly failed to enforce guidelines in those other instances.

Short-Answer Practice Questions

1. What specific modification did Mr. Audette make to his property that led to the violation notice?

Mr. Audette removed two wrought iron fences and replaced them with 5-foot high block walls.

2. Why did the Sun Harbor Architectural Committee deny Mr. Audette’s retroactive request for the block walls?

The request was denied because the walls exceeded the 3-foot height limit within the 15-foot setback and were deemed inharmonious with the surroundings, specifically obscuring the view of the lake.

3. Which state agency has authority over disputes involving homeowners' associations in this case?

The Arizona Department of Real Estate (ADRE).

4. According to Black’s Law Dictionary, as cited in the case, how is "preponderance of the evidence" defined?

It is the greater weight of the evidence; evidence that has the most convincing force and inclines a fair and impartial mind to one side of the issue.

5. What was Mr. Audette's argument regarding the visibility of his block walls?

He asserted that no other homeowners could see the walls except for his immediate neighbors to the left and right, both of whom approved of the modification.

6. What is the association’s legal obligation regarding the approval of architectural plans under A.R.S. § 33-1817(B)(3)?

An association shall not unreasonably withhold approval of a construction project’s architectural plans.

7. Why did the Administrative Law Judge (ALJ) reject Mr. Audette’s claim of selective enforcement?

Mr. Audette provided no written or oral testimony to establish that the association had failed to enforce the guidelines against other homeowners who he claimed were also in violation.

Essay Prompts for Deeper Exploration

Contractual Obligations vs. Property Rights: Analyze the legal argument that CC&Rs serve as a binding contract. How does this contractual nature limit a homeowner's ability to modify their property, even if they have the support of their immediate neighbors?
The "Harmony" Standard in Architectural Review: The Sun Harbor Architectural Committee is tasked with considering the "harmony" of a proposed change with its surroundings. Discuss the subjective and objective elements of this standard as applied to the view of Desert Harbor Lake and the precedent of moving from wrought iron to solid block walls.
Evaluating Selective Enforcement: Mr. Audette provided photographs of other properties to argue that the association inconsistently enforced its rules. Explain the evidentiary gap between showing "other violations exist" and proving "selective enforcement" according to the ALJ's findings.

Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A professional hearing officer who presides over administrative proceedings and issues decisions based on findings of fact and conclusions of law.
A.R.S. § 33-1817(B)(3)	The Arizona Revised Statute stipulating that homeowners' associations cannot unreasonably withhold approval for architectural plans.
CC&R	Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for a planned community.
Inharmonious	A term used by the association to describe a structure that does not fit aesthetically or functionally with the surrounding properties or environment.
Petitioner	The party who initiates a lawsuit or petition; in this case, Jeffrey S. Audette.
Preponderance of the Evidence	The standard of proof in civil and administrative cases, requiring that a fact be more likely than not to be true.
Respondent	The party against whom a petition is filed; in this case, Sun Harbor Community Association.
Setback	The minimum distance a structure must be kept from a property line, shoreline, or other defined boundary.
Sub-association	A secondary homeowners' association governing a specific subset of homes within a larger master association.

The Price of a View: Lessons from a Waterfront HOA Dispute

1. Introduction: The High Cost of Bypassing the Board

For many residents in planned communities, the home is a castle, but the CC&Rs (Covenants, Conditions, and Restrictions) are the contractual bedrock that defines how that castle can be modified. When personal preference collides with community standards, the resulting neighborly friction often shifts from the front yard to the courtroom. A homeowner attempting to enhance their privacy or "improve" their property without following established protocols can quickly find themselves in a legal quagmire, proving that the cost of a better view is far higher when it bypasses the board.

The case of Jeffrey S. Audette vs. Sun Harbor Community Association (doing business as Desert Harbor Homeowners Association) serves as a quintessential cautionary tale. This dispute centered on a waterfront property owner who replaced open wrought iron fences with solid five-foot-high block walls within a restricted setback area—all without securing the necessary prior approval from the Master Association.

2. The Timeline of a Conflict

The path from a backyard renovation to an administrative judgment is often paved with missed opportunities for compliance. The chronological breakdown of this dispute highlights a nearly two-year struggle:

February 2018: Without obtaining prior permission, Mr. Audette removes two wrought iron fences and replaces them with five-foot-high block walls located within 15 feet of the lake lining setback.
March 2018: Mr. Audette submits a retroactive construction plan to the Sun Harbor Architectural Committee. The committee denies the request, leading the homeowner to file an internal appeal.
May 9, 2018: Following the denial of his appeal, Sun Harbor issues a formal violation notice citing CC&R Article IV, Section 2(a) for the unauthorized conversion of the fences.
September 4, 2019: Mr. Audette files a petition with the Arizona Department of Real Estate (ADRE), alleging that the Association improperly denied his request and was inconsistent in its enforcement of community rules.
December 5, 2019: The matter reaches a formal evidentiary hearing at the Office of Administrative Hearings.

3. The Homeowner’s Defense: Permission vs. Process

Mr. Audette’s defense was built on the argument that the Association’s denial was unreasonable and discriminatory. Notably, Mr. Audette had previously served on the Sun Harbor board, making this a case where a former "insider" found himself at odds with the very process he once helped oversee—a reminder that personal history does not exempt one from current regulations. His primary arguments included:

Sub-Association Approval: He claimed he had secured permission from his specific sub-association before construction commenced.
Immediate Neighbor Consent: He testified that the neighbors directly to his left and right approved of the new block walls.
Past Board Practices: Drawing on his experience as a former board member, he argued that the Association traditionally granted requests that had already received a "green light" from a sub-association.
Limited Visibility: He contended that the walls were only visible to his immediate neighbors and did not negatively impact the community at large.
Selective Enforcement Claims: To meet the high bar of selective enforcement, he submitted photographs of other properties in the community that he alleged were also in violation of height restrictions.

4. The Association’s Stand: Aesthetics and Regulations

The Association stood firmly on the "Sun Harbor Architectural Guidelines" adopted in September 2002. These rules exist to preserve the visual "harmony" of the community. Per Finding of Fact #17, the Architectural Committee is required to consider specific factors including the suitability of the alteration, the materials used, the topography and finished grade elevation of the site, and the effect on adjacent properties.

The Association focused heavily on the specific restrictions for shoreline lots:

"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks." (Sun Harbor Architectural Guidelines, pg. 11).

The Association argued that while the guidelines allowed for 3-foot structures, Mr. Audette’s 5-foot walls were fundamentally inharmonious. Testimony from the Association emphasized that these walls obscured lake views for residents on lots 1 through 9. Furthermore, the board expressed a valid concern regarding precedent: allowing one homeowner to swap transparent wrought iron for solid block would fundamentally alter the character of the waterfront for everyone.

5. The Legal Verdict: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson ruled in favor of the Association, dismissing the petition. The legal reasoning offers a masterclass in HOA law:

The Burden of Proof: In this administrative venue, the Petitioner (Mr. Audette) bore the burden of proving his case by a "Preponderance of the Evidence."
Defining the Standard: The Judge utilized Black’s Law Dictionary to define this standard as: "The greater weight of the evidence… 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."
Failure to Prove Unreasonableness: Under A.R.S. § 33-1817(B)(3), an association cannot "unreasonably withhold" approval. However, the legal reality was not that the HOA proved it was right, but that Mr. Audette failed to prove the HOA acted unreasonably. The Association’s adherence to its height and harmony guidelines was found to be a reasonable exercise of its authority.
The Selective Enforcement Trap: The Judge found that Mr. Audette failed to establish selective enforcement. Simply providing photos of other violations is insufficient; a petitioner must prove that the Association knowingly allowed those violations to persist without taking enforcement action.

6. Key Takeaways for Homeowners and Boards

This case yields several vital insights for those living in or managing common-interest communities:

Prior Approval is Mandatory: Never assume that a sub-association’s "okay" or a neighbor’s "thumbs up" overrides the Master Association’s authority. Process must always precede construction.
Respect the Setbacks: Shoreline and common-area setbacks are often the most strictly protected zones in a community. In this case, the distinction between the allowed 3-foot height and the offending 5-foot wall was the difference between a compliant project and a legal violation.
The Evidence Gap in Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just pictures of other non-compliant homes. You must provide written or oral testimony proving that the board was aware of those violations and failed to act. Without proof of board inaction, photos are just pictures of other people’s potential problems.
Process Over Personal History: Even former board members are subject to the current rules. Familiarity with the system is no substitute for following the current, written architectural guidelines.

7. Final Summary

The integrity of a community’s aesthetic depends on the consistent application of its governing documents. As Audette vs. Sun Harbor illustrates, the CC&Rs are not mere suggestions but binding contracts. Bypassing the architectural review process is a high-risk gamble that can result in expensive litigation, the dismissal of your claims, and the eventual requirement to tear down the very improvements you sought to enjoy. Following the rules from the start is the only guaranteed way to protect both your property and your peace of mind.

Case Participants

Petitioner Side

Jeffrey S. Audette (Petitioner)
Sun Harbor Community Association (Member)
Homeowner; former board member
Mark J. Bainbridge (attorney)
Appeared on behalf of Petitioner

Respondent Side

Lauren Vie (attorney)
Appeared on behalf of Respondent
Yvette Rushford (witness)
Testified for Sun Harbor
Bud Levey (witness)
Testified for Sun Harbor
Beth Mulcahy (attorney)
Mulcahy Law Firm, PC
Listed in distribution list

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Received electronic transmission of order

Robert S. Nickell v. Holiday Harbour Property Owners Association

Posted on December 9, 2019 by [email protected]

Case Summary

Case ID	20F-H2019008-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-12-09
Administrative Law Judge	Thomas Shedden
Outcome	The Administrative Law Judge dismissed the petition, ruling that the Association did not violate A.R.S. § 33-1817(B)(3). The Association's enforcement of the height restriction was reasonable as they allowed for excavation to meet height requirements, and the Petitioner did not demonstrate the necessary hardship for a waiver.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Robert S. Nickell	Counsel	—
Respondent	Holiday Harbour Property Owners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1817(B)(3)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Association did not violate A.R.S. § 33-1817(B)(3). The Association's enforcement of the height restriction was reasonable as they allowed for excavation to meet height requirements, and the Petitioner did not demonstrate the necessary hardship for a waiver.

Why this result: Petitioner failed to meet the burden of proof to show the Association acted unreasonably or that the height restriction caused extreme hardship.

Key Issues & Findings

Unreasonable withholding of architectural design approval

Petitioner alleged the Association unreasonably denied his request to build a home 17 feet in height, violating the 15-foot limit in the CC&Rs, and failed to grant a variance for hardship.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1817(B)(3)
CC&Rs Section 6
CC&Rs Section 11

Video Overview

Audio Overview

Decision Documents

20F-H2019008-REL Decision – 757400.pdf

Uploaded 2026-04-24T05:35:18 (107.8 KB)

20F-H2019008-REL Decision – 757626.pdf

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20F-H2019008-REL Decision – 757400.pdf

Uploaded 2026-01-27T21:17:34 (107.8 KB)

20F-H2019008-REL Decision – 757626.pdf

Uploaded 2026-01-27T21:17:34 (108.4 KB)

Case Analysis: Nickell v. Holiday Harbour Property Owners Association (No. 20F-H2019008-REL)

Executive Summary

This briefing document analyzes the administrative law decision and subsequent amended decision regarding a dispute between Robert S. Nickell (Petitioner) and the Holiday Harbour Property Owners Association (Respondent). The conflict centered on the Association’s denial of Mr. Nickell's request to construct a residence and attached RV garage with a height of 17 feet, which exceeded the 15-foot limit stipulated in the community's Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner argued that the Association's denial was unreasonable and sought a variance based on claims of selective enforcement and potential drainage issues. However, the Administrative Law Judge (ALJ) determined that the Petitioner failed to meet the burden of proof required to show that the Association acted unreasonably or that the height restriction caused an "extreme or material hardship." Consequently, the petition was dismissed, upholding the Association's right to enforce its established architectural standards.

Case Overview

Category	Details
Case Number	20F-H2019008-REL
Petitioner	Robert S. Nickell
Respondent	Holiday Harbour Property Owners Association
Administrative Law Judge	Thomas Shedden
Hearing Date	November 19, 2019
Core Dispute	Denial of a 17-foot structure in a 15-foot limit zone
Legal Basis	A.R.S. § 33-1817(B)(3); CC&Rs Sections 6 and 11
Final Decision	Petition Dismissed

Detailed Analysis of Key Themes

1. Architectural Standards and "Lot Grade" Interpretation

The primary technical dispute involved the definition of "lot grade" as the starting point for measuring the 15-foot height restriction mandated by Section 6 of the CC&Rs.

Association's Position: The Association interprets "lot grade" as the "highest buildable point," specifically the elevation where the original house on the lot was located. They define the highest buildable point as an area within required setbacks capable of accommodating a structure with 800 square feet of livable space.
Petitioner’s Argument: Mr. Nickell contended that the Association had previously used different definitions of lot grade and argued that since his lot had been excavated down by 3.4 feet, he should be permitted a total height of 18.4 feet.
Adjudication: The ALJ found the Association’s interpretation reasonable. Testimony from Board member Douglas Clark clarified that the "highest buildable point" identified by the Petitioner was actually outside the required setbacks, undermining the Petitioner's measurement claims.

2. Reasonableness of Architectural Control (A.R.S. § 33-1817(B))

Under Arizona law, an Association cannot unreasonably withhold approval of architectural designs. The Petitioner alleged the Association violated this statute.

Proposed Mitigation: The Association demonstrated reasonableness by offering an alternative: they informed Mr. Nickell he could build his 17-foot-2-inch structure if he excavated down from the established lot grade. This would allow him the desired building height while maintaining the community's elevation profile.
Fairness vs. Aesthetics: The Association testified that the height restriction is enforced as a "matter of fairness" rather than strictly to preserve specific views. The ALJ concluded that because the Association provided a path to compliance via excavation, their denial of the original non-compliant plan was not unreasonable.

3. Hardship and the Variance Standard

Section 11 of the CC&Rs allows the Association to grant a variance at its discretion if the height restriction causes "extreme or material hardship."

Hardship Claims: Mr. Nickell argued that excavation was unfeasible due to drainage concerns. He also rejected the Association’s suggestion to reverse the house footprint, citing impacts on his personal views and the utility of an existing garage bathroom.
Legal Conclusion: The ALJ ruled that these inconveniences did not rise to the level of "extreme or material hardship." The Petitioner failed to provide sufficient evidence that the lot could not be drained properly if excavated.

4. Consistency in Enforcement

The Petitioner attempted to argue selective enforcement by providing photographs of other homes with RV garages exceeding 15 feet.

Association Rebuttal: The Association successfully argued that the homes identified by the Petitioner were compliant because those owners had excavated down from the lot grade to accommodate the taller structures.
Exceptions: While the Association admitted to granting one 17-foot waiver previously, it was for a specific waterfront lot on the west side of Highway 95, which did not establish a precedent for the Petitioner's inland lot.

Important Quotes with Context

On the Burden of Proof

"Mr. Nickell bears the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence." (Conclusion of Law No. 2)

Context: This establishes that the Petitioner was legally required to prove that it was more likely than not that the Association acted improperly.

Legal Definition of Preponderance of Evidence

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force…" (Conclusion of Law No. 3, quoting Black’s Law Dictionary)

Context: The ALJ used this to evaluate the conflicting testimonies regarding the "highest buildable point" and the feasibility of excavation.

On Contractual Compliance

"The CC&Rs are a contract between the parties and the parties are required to comply with its terms." (Conclusion of Law No. 5)

Context: This reinforces that the 15-foot height limit is a binding contractual obligation that the Association has a right and duty to enforce.

Regarding the Reasonableness of the Association

"The Association allows members to excavate down from the highest buildable point to accommodate structures that are taller than fifteen feet… This was not unreasonable, and Mr. Nickell has not proven that the Association violated ARIZ. REV. STAT. section 33-1817(B)(3)." (Conclusion of Law No. 7)

Context: This quote is the crux of the decision, highlighting that providing an alternative path to compliance (excavation) satisfies the legal requirement for an Association to act reasonably.

Actionable Insights

Establishing "Lot Grade" Protocols: Associations should clearly define "lot grade" and "highest buildable point" within their architectural guidelines—ideally referencing areas within setbacks—to avoid disputes during new construction or major renovations.
The Power of Compromise: The Association’s willingness to suggest excavation and footprint reversals served as strong evidence of "reasonableness" in the eyes of the court. Proposing alternative solutions to non-compliant homeowners can protect an Association from claims of being "unreasonable."
Hardship is a High Bar: For homeowners seeking variances, "hardship" must be more than a preference for a specific view or the convenience of an existing bathroom. "Extreme or material hardship" typically requires proof of physical or structural impossibility.
Documentation of Compliance: The Association was able to successfully defend against claims of selective enforcement because they had records showing that other "tall" buildings in the neighborhood had followed the excavation rules. Maintaining a clear paper trail of how previous exceptions or compliant tall structures were handled is vital for legal defense.
Correction of Errors: The issuance of the Amended Decision on December 9, 2019, to correct a typographical error in Conclusion of Law No. 9 demonstrates the necessity for parties to review final orders immediately for technical accuracy to ensure the legal record is clear.

Study Guide: Robert S. Nickell v. Holiday Harbour Property Owners Association

This study guide provides a comprehensive overview of the administrative hearing between Robert S. Nickell and the Holiday Harbour Property Owners Association (Case No. 20F-H2019008-REL). It covers the core legal issues regarding height restrictions in planned communities, the application of Arizona Revised Statutes (A.R.S.), and the standards for architectural approval.

I. Overview of the Dispute

The case centers on a petition filed by Robert S. Nickell (Petitioner) against the Holiday Harbour Property Owners Association (Respondent). The Petitioner sought to build a home with a height of seventeen feet on his lot at 4835 Marina View. The Association denied the request based on its Covenants, Conditions, and Restrictions (CC&Rs).

Central Legal Questions

Architectural Approval: Did the Association unreasonably withhold approval of the Petitioner’s construction plans in violation of A.R.S. § 33-1817(B)(3)?
Variances and Hardships: Did the Petitioner qualify for a height variance under Section 11 of the CC&Rs based on "extreme or material hardship"?
Definition of Lot Grade: How is "lot grade" determined for the purposes of enforcing height restrictions?

II. Key Concepts and Findings

1. The Height Restriction (CC&R Section 6)

The Association’s CC&Rs explicitly state that structures may not exceed fifteen (15) feet in height above lot grade. The Association interprets "lot grade" as the "highest buildable point," which in this specific case was the elevation where the original house on the lot was located.

2. Methods of Compliance

The Association allows homeowners to build structures taller than fifteen feet provided they excavate down from the lot grade. This ensures the total height above the original grade does not exceed the 15-foot limit. The Association informed the Petitioner he could build his requested 17-foot, 2-inch structure if he excavated accordingly.

3. The "Highest Buildable Point" Dispute

The Petitioner argued that his lot had already been excavated by 3.4 feet and that the "highest buildable point" should allow for an 18.4-foot structure. However, the Association provided testimony that the point identified by the Petitioner was located outside the required setbacks, and therefore did not qualify as the highest buildable point.

4. Variance Criteria (CC&R Section 11)

A variance or waiver of the height restriction can be granted at the Association's discretion if the restriction causes extreme or material hardship. The Petitioner cited drainage issues and the potential loss of his own views as hardships, but these were not found to meet the legal standard of extreme or material hardship.

5. Legal Standards for Administrative Hearings

Authority: The Arizona Department of Real Estate has authority over these matters under A.R.S. Title 32, Ch. 20, Art. 11.
Burden of Proof: The Petitioner carries the burden of proof.
Standard of Proof: The case is decided based on a preponderance of the evidence, meaning the evidence has the most convincing force and is sufficient to incline an impartial mind to one side.

III. Short-Answer Practice Questions

Q1: What is the maximum height permitted for structures under Section 6 of the Holiday Harbour CC&Rs?

Answer: Fifteen (15) feet above lot grade.

Q2: How does the Association define the "highest buildable point" for a lot?

Answer: It is an area inside the required setbacks that can accommodate a structure with 800 square feet of livable space.

Q3: Under A.R.S. § 33-1817(B)(3), what is the limitation placed on an Association regarding architectural designs?

Answer: Approval of a construction project's architectural designs, plans, and amendments shall not be unreasonably withheld.

Q4: Why did the Petitioner reject the Association's suggestion to reverse the footprint of his proposed house?

Answer: He claimed it would affect his own views and his ability to use a bathroom located in the existing garage.

Q5: What was the Petitioner's argument regarding his neighbor's home?

Answer: He argued that because the neighboring home was at a higher elevation, his proposed 17-foot home would still be six to eight feet lower than the neighbor’s and would not affect their views.

Q6: What specific reason did the Association give for enforcing height restrictions if not to preserve views?

Answer: The Association enforces height restrictions as a matter of fairness.

IV. Essay Prompts for Deeper Exploration

1. The Intersection of Contract Law and HOA Governance

The decision references Johnson v. The Pointe Community Association, noting that CC&Rs are a contract between parties. Discuss the implications of viewing CC&Rs as a contract. How does this contractual nature limit or empower an Association’s Board when enforcing restrictions like height limits?

2. Evaluating "Reasonableness" in Architectural Denials

Under A.R.S. § 33-1817(B)(3) and Tierra Ranchos Homeowners Ass'n v. Kitchukov, an Association must act reasonably. Analyze the Association's actions in this case. Was the offer to allow the Petitioner to build a 17-foot home—contingent on excavation—a "reasonable" compromise? Why did the Administrative Law Judge conclude that the Petitioner failed to prove the Association acted unreasonably?

3. The Challenge of Proving "Extreme or Material Hardship"

The Petitioner argued that excavation was impossible due to drainage issues and that changing his house footprint would negatively impact his personal views and garage access. Compare these claims against the standard of "extreme or material hardship." Why might a court or ALJ find these personal preferences insufficient to warrant a variance?

V. Glossary of Important Terms

Term	Definition
A.R.S. § 33-1817(B)(3)	An Arizona statute stating that HOAs cannot unreasonably withhold approval of construction architectural designs or plans.
CC&Rs	Covenants, Conditions, and Restrictions; a contract between the Association and property owners governing the use of land.
Highest Buildable Point	The elevation used to determine lot grade; specifically, an area within setbacks that can hold 800 sq. ft. of livable space.
Lot Grade	The reference point for measuring structure height; in this case, the elevation at which the original house was located.
Preponderance of the Evidence	The legal standard of proof where the evidence presented is more convincing than the evidence opposed to it.
Setbacks	Required distances between a structure and the property lines or other features where building is prohibited.
Variance	An exception to the established rules (CC&Rs) granted by the Association, typically in cases of extreme hardship.
Waiver	The voluntary relinquishment of a known right or the decision not to enforce a specific restriction in the CC&Rs.

Heights and Hardships: Navigating HOA Construction Disputes

1. Introduction: The Battle for the Extra Two Feet

Homeowners, take note: spending thousands of dollars on architectural designs before clearing the legal hurdles of your CC&Rs is a recipe for a very expensive heartbreak. The case of Robert S. Nickell vs. Holiday Harbour Property Owners Association serves as a textbook example of what happens when a homeowner’s dream of a custom RV garage collides with a Board’s duty to enforce community standards. What began as a request for an extra two feet of height evolved into a legal battle that reaffirmed a fundamental truth in property law: your "vision" for your property does not override the binding contract you signed when you bought into an HOA.

2. The Rulebook: Understanding CC&Rs Section 6 and 11

The dispute hinged on the interpretation of two critical sections of the Holiday Harbour governing documents. As a consultant, I always tell my clients that these are not mere suggestions; they are the boundaries of your property rights.

The Height Limit: Section 6 explicitly prohibits any structure from exceeding 15 feet in height when measured above the "lot grade."
The Variance Clause: Section 11 provides the Board with the discretion to waive this restriction, but only in instances where the petitioner can demonstrate an "extreme or material hardship."

3. The Homeowner’s Argument: Why 17 Feet?

Petitioner Robert S. Nickell approached the Arizona Department of Real Estate seeking to overturn the Association’s denial of his 17-foot design. His strategy relied on an escalating set of interpretations and grievances:

The "Precedent" Claim: Nickell argued the Association was being arbitrary, presenting photos of other homes with RV garages that appeared to exceed the 15-foot limit.
A Moving Target: While the initial dispute was over a 17-foot home, Nickell’s demands escalated during the process. He eventually argued for a height of 18.4 feet, based on his own calculations of excavation and "highest buildable point."
Subjective Interpretation of Grade: He contended that "lot grade" should be defined as the "highest buildable point" on the property—a definition that favored his desired elevation.
The Subjective View Argument: Nickell claimed that because a neighboring home was at a higher elevation, his 17-foot home would not obstruct any neighbor's view. Conversely, he rejected the Association's suggestion to reverse his house footprint because it would negatively impact his own view from a garage bathroom.
Practical Hardship: He claimed excavation was impossible due to drainage concerns, asserting that the height limit effectively barred him from his desired build.

4. The Association’s Defense: Fairness Over Views

The Association, supported by testimony from Board members Douglas Clark and Michael Frue, maintained a defense rooted in consistency and mathematical precision. Their rebuttal offered a masterclass in how Boards should handle challenges:

Defining "Lot Grade": The Association successfully argued that "lot grade" refers to the historical elevation of the original home on the site.
The Setback Criticality: In a move that highlights the importance of surveyed boundaries, the Board proved that the "highest buildable point" Nickell used for his 18.4-foot claim was actually located outside the required property setbacks, rendering it legally irrelevant for height calculations.
The Compromise Offer: To prove they were not being "unreasonable," the Association informed Nickell he could build a structure up to 17 feet, 2 inches in total height, provided he excavated down from the lot grade—a standard they had applied to every other "tall" home in the community.
The Waterfront Exception: While Nickell pointed to a 17-foot home that had received a waiver, the Association clarified this was one of only six waterfront lots west of Highway 95. This specific class of lot did not set a precedent for Nickell’s inland property.
The Fairness Doctrine: The Board testified that height restrictions are enforced to ensure community-wide fairness, not to manage the subjective "views" of individual owners.

5. The Legal Verdict: Defining "Unreasonable"

The Administrative Law Judge (ALJ) reviewed the case under A.R.S. § 33-1817(B), which states that architectural approval shall not be "unreasonably withheld." The court reaffirmed the principle that the petitioner bears the burden of proof under a specific legal standard:

Preponderance of the Evidence: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014).

The ALJ determined the Association acted reasonably. By offering a compromise (the 17' 2" excavation option) that was consistent with past enforcement, the Board met its legal obligations.

6. Key Takeaways for Homeowners and HOAs

The lesson for Boards and owners alike is clear. The ruling provides three actionable insights:

Definitions are Legal, Not Subjective: "Lot grade" is typically tied to historical or surveyed points (like the original house footprint), not the most convenient mound of dirt on the property. Nickell’s attempt to use a point outside the setbacks was a fatal flaw in his argument.
The Hardship Bar is Immense: To secure a variance, you must show more than a "preference." The court found that wanting an RV garage or refusing to move a footprint to protect a "garage bathroom view" does not constitute an "extreme or material hardship." Personal amenities are not legal rights.
Case Law Protects the Contract: The court cited Johnson v. The Pointe Community Association and Tierra Ranchos v. Kitchukov to emphasize that CC&Rs are binding contracts. If an Association enforces its rules consistently—even if it offers a path to compromise like excavation—the courts will generally stay out of their hair.

7. Conclusion: The Final Order

The Administrative Law Judge ordered that Robert S. Nickell’s petition be dismissed in its entirety. This case serves as a stark warning: the "highest buildable point" on your lot isn't just where the ground is highest; it's where the law and your contract say it is. Before you break ground, ensure your architect is designing to the CC&Rs, not just your wishlist. In the world of HOAs, the rulebook always stands taller than your extra two feet.

Case Participants

Petitioner Side

Robert S. Nickell (Petitioner)
Appeared on his own behalf

Respondent Side

Larry Boquette (HOA President)
Holiday Harbour Property Owners Association
Also listed as Lawrence E Boquette; appeared for Respondent
Douglas Clark (Board member)
Holiday Harbour Property Owners Association
Provided testimony
Michael Frue (Board member)
Holiday Harbour Property Owners Association
Provided testimony

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of order