Case Summary
| Case ID | 07F-H067003-BFS |
|---|---|
| Agency | DFBLS |
| Tribunal | OAH |
| Decision Date | 2007-01-23 |
| Administrative Law Judge | Brian Brendan Tully |
| Outcome | complete |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | George F. Rose and Carmen Gloria Rose | Counsel | — |
|---|---|---|---|
| Respondent | Sun City Vistoso Community Association, Inc. | Counsel | David A. McEvoy |
Alleged Violations
Article IV, Section 4(a)
Outcome Summary
The ALJ denied the petition. The claim regarding the 11th Declaration was ruled moot as it was superseded. Regarding the 12th Declaration, the ALJ concluded the HOA maintained landscaping reasonably to avoid undue obstruction of golf course views and that petitioners had unrealistic expectations. The documents were found not to protect mountain views.
Why this result: Claims on old CC&Rs were moot; HOA actions were found reasonable; documents did not support mountain view rights; petitioners' expectations were unrealistic.
Key Issues & Findings
Failure to Enforce View Restrictions
Petitioners alleged the HOA failed to enforce the CC&Rs and Development Standards regarding golf course and mountain views by not requiring neighbors to remove vegetation and not sufficiently clearing common areas.
Orders: Petition denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- Article IV, Section 4(a) of the Eleventh Amended and Restated Declaration
- Article IV, Section 4(a) of the Twelfth Amended and Restated Declaration
Video Overview
Audio Overview
Decision Documents
07F-H067003-BFS Decision – 160370.pdf
Briefing Document: Rose vs. Sun City Vistoso Community Association, Inc.
Executive Summary
This briefing document analyzes the administrative law decision in Case No. 07F-H067003-BFS, involving George F. and Carmen Gloria Rose (Petitioners) and the Sun City Vistoso Community Association, Inc. (Respondent). The dispute centered on the Petitioners’ claims that the Association failed to enforce its governing documents regarding the protection of golf course and mountain views.
The Administrative Law Judge (ALJ) ruled in favor of the Respondent, concluding that:
• Board Authority: The Association’s Board of Directors has the exclusive right to interpret and construe the community’s Declaration of Covenants, Conditions, Restrictions (CC&Rs).
• View Obstruction: The Association adequately maintained common areas to prevent “undue obstruction” of the golf course. The Petitioners’ expectations regarding views of specific golf tees were deemed “unrealistic and unreasonable.”
• Mountain Views: Neither the Eleventh nor Twelfth Amended Declarations, nor the Association’s Development Standards, grant homeowners a protected right to mountain views.
• Common Area Control: The Association acted within its rights to rescind previous policies that allowed individual homeowners to maintain common areas, asserting centralized control over these spaces.
Case Background
The Petitioners, acting as Trustees of the Rose Revocable Family Trust, own a residence located at 14460 N. Choctaw Drive, Oro Valley, Arizona (Lot 6a). This property borders a golf course maintained by the Respondent, specifically situated between the 13th and 14th holes. The rear of the property faces east toward a natural desert portion of the golf course and the Catalina Mountains.
Upon acquiring the property in June 2004, the title was subject to the Sun City Vistoso Eleventh Amended and Restated Declaration. This document was later superseded by the Twelfth Amended and Restated Declaration, effective March 22, 2005.
Regulatory Framework and Governing Documents
The dispute primarily involved the interpretation of Article IV, Section 4(a) regarding landscaping and view preservation.
Comparison of Declaration Language
Provision
Eleventh Amended Declaration (2004)
Twelfth Amended Declaration (2005)
Primary Requirement
Landscaping must be planned to avoid “undue obstruction” of the golf course from the Lot and neighboring Lots.
Landscaping of Common Areas and Lots bordering the Golf Course shall be maintained to avoid “undue obstruction.”
Height Restrictions
Prohibited hedges/plantings higher than 3′ above finished floor grade within 15′ of the golf course boundary.
Walls/fences within 15′ of the rear property line limited to 5′ total (portions above 3′ must be open wrought iron).
Authority
Subject to Board interpretation via Article XVII.
Explicitly states: “The Board of Directors shall be the final authority as to whether a view is unduly obstructed.”
Development Standards
Petitioners argued that the Development Standards were intended to “respect the vistas and views of the mountain setting.” However, the Respondent and the ALJ determined that:
• The Standards apply only to individual Lots and Parcels, not to Association-owned Common Areas or the golf course.
• The language regarding vistas is a general introductory statement and does not create a specific, enforceable right to mountain views.
Chronology of the Dispute
The Golf Course View (2004)
In August 2004, the Petitioners requested that the Association require their neighbors (the Millers) to remove backyard vegetation to improve the Petitioners’ view of the 14th tees.
• Board Action: The Board sought legal counsel and attempted conflict resolution.
• Resolution: On October 26, 2004, the Board denied the request. They concluded that Association trimming in the common area provided an adequate view for Lot 6a and that requiring a neighbor to remove established shrubs was unnecessary.
Maintenance Policy Shift (2004–2005)
Historically, a 1997 policy allowed members to maintain portions of Common Areas at their own expense. In July 2004, the Board voted to eliminate this policy, asserting full Association control over Common Area vegetation. Members were formally reminded in 2005 and 2006 to refrain from unauthorized trimming.
The Mountain View Requests (2005–2006)
Petitioners submitted multiple “Common Area Vegetation Maintenance Request Forms”:
• October 2005: Requested removal of 6′ cholla to open the view looking south toward the #14 tees. This work was completed by the Association in January 2006.
• February 2006: Requested to personally “trim and top off” mesquite trees and brush in the common area to open views of the Catalina Mountains.
• Denial: The Association denied the February request, stating that mountain views are not protected by the governing documents and that residents are prohibited from performing their own maintenance in common areas.
Legal Analysis and Conclusions of Law
The Administrative Law Judge reached several key legal conclusions based on the evidence presented at the January 3, 2007, hearing:
1. Board Interpretive Authority
Under Article XVII of the Declaration, the Board holds the “exclusive right to construe and interpret” the provisions of the document. These interpretations are “final, conclusive and binding” in the absence of a court adjudication to the contrary.
2. Mootness of Prior Claims
The ALJ determined that Petitioners’ complaints regarding the Eleventh Amended Declaration were untimely and moot. Because the membership approved the Twelfth Amended Declaration in March 2005, the previous document was superseded.
3. “Undue Obstruction” and Reasonableness
The ALJ found that the Association successfully fulfilled its duty to avoid undue obstruction.
4. Absence of Mountain View Protection
The ALJ explicitly ruled that the CC&Rs and Development Standards do not grant rights to mountain views. While the Association had been “reasonable” in maintaining common areas to the east, it was not legally obligated to guarantee a mountain vista.
Final Order
The Petition for Hearing filed by George F. and Carmen Gloria Rose was denied. Under A.R.S. § 41-2198.02(B), the decision issued on January 23, 2007, by Administrative Law Judge Brian Brendan Tully, serves as the final administrative decision.
Study Guide: Rose v. Sun City Vistoso Community Association, Inc.
This study guide provides a comprehensive review of the administrative law case between George F. and Carmen Gloria Rose and the Sun City Vistoso Community Association, Inc. The materials focus on the interpretation of property covenants, the authority of community associations, and the legal standards applied in administrative hearings regarding homeowners’ associations.
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Part 1: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided source context.
1. Who are the Petitioners in this case, and what is their legal relationship to the property at 14460 N. Choctaw Drive?
2. What specific limitations did Article IV, Section 4 (a) of the Eleventh Amended and Restated Declaration place on fences for lots bordering the golf course?
3. What was the initial dispute between the Petitioners and their neighbors, the Millers, regarding landscaping?
4. Based on the Board of Directors’ October 19, 2004, analysis, how should golf course views be determined and interpreted?
5. Why did the Association’s membership vote to amend the Eleventh Declaration in March 2005?
6. According to the Twelfth Amended and Restated Declaration, who holds the final authority regarding whether a view is “unduly obstructed”?
7. What was the Association’s reason for denying the Petitioners’ February 3, 2006, request to trim vegetation for mountain views?
8. How did the Board’s policy regarding member maintenance of common areas change between 1997 and 2004?
9. What legal burden did the Petitioners carry during the administrative hearing, and what was the required standard of proof?
10. What was the Administrative Law Judge’s final conclusion regarding the Petitioners’ claims for mountain views?
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Part 2: Answer Key
1. Who are the Petitioners in this case, and what is their legal relationship to the property at 14460 N. Choctaw Drive?
The Petitioners are George F. Rose and Carmen Gloria Rose. They serve as the Trustees and beneficiaries of The Rose Revocable Family Trust, which is the record title owner of the residence.
2. What specific limitations did Article IV, Section 4 (a) of the Eleventh Amended and Restated Declaration place on fences for lots bordering the golf course?
Fences within fifteen feet of the rear property line were limited to a maximum height of five feet. Any portion of the fence exceeding three feet in height was required to be of open wrought iron construction.
3. What was the initial dispute between the Petitioners and their neighbors, the Millers, regarding landscaping?
The Petitioners requested that the Millers remove vegetation in their backyard because it obstructed the Petitioners’ view of the 14th tees. The Board ultimately denied this request, believing the Association’s trimming of common areas provided an adequate view.
4. Based on the Board of Directors’ October 19, 2004, analysis, how should golf course views be determined and interpreted?
The Board determined that it is their responsibility to make reasonable interpretations of governing documents on a case-by-case basis. They concluded that views are site-specific and should be evaluated based on what provides a “reasonable” view from the owner’s property.
5. Why did the Association’s membership vote to amend the Eleventh Declaration in March 2005?
The Board proposed the amendment because the existing language regarding golf views was considered “confusing, hard to understand and difficult to interpret and enforce.” The goal was to simplify the section and explicitly grant the Board authority to determine if a view is obstructed.
6. According to the Twelfth Amended and Restated Declaration, who holds the final authority regarding whether a view is “unduly obstructed”?
The Twelfth Amended and Restated Declaration explicitly states that the Board of Directors shall be the final authority on this matter. This interpretation is binding on all persons and property bound by the Declaration unless overturned by a court of competent jurisdiction.
7. What was the Association’s reason for denying the Petitioners’ February 3, 2006, request to trim vegetation for mountain views?
The Association denied the request because mountain views were not protected by the developer or the governing documents. General statements in the Development Standards regarding the “mountain setting” were deemed general intent rather than enforceable protections for specific views.
8. How did the Board’s policy regarding member maintenance of common areas change between 1997 and 2004?
A 1997 policy allowed members to maintain portions of the common areas at their own expense through agreements with the Board. In July 2004, the Board rescinded this policy and revoked all prior agreements to assert total control over the maintenance of the Association’s common areas.
9. What legal burden did the Petitioners carry during the administrative hearing, and what was the required standard of proof?
Pursuant to A.A.C. R2-19-119(B), the Petitioners held the burden of proof in the matter. The standard of proof required was a “preponderance of the evidence.”
10. What was the Administrative Law Judge’s final conclusion regarding the Petitioners’ claims for mountain views?
The Judge concluded that the governing documents and Development Standards do not grant Petitioners any rights to mountain views. Furthermore, he found that the Association had been reasonable in its maintenance of the common area to avoid undue obstruction.
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Part 3: Essay Questions
Instructions: Use the case details to develop comprehensive responses to the following prompts.
1. The Evolution of Governance: Analyze how the transition from the Eleventh to the Twelfth Amended and Restated Declaration shifted the balance of power between individual homeowners and the Association’s Board.
2. Interpretation of Intent: Discuss the legal significance of the Board’s “exclusive right to construe and interpret” the Declaration. How does this authority impact a homeowner’s ability to challenge Board decisions in an administrative setting?
3. The Scope of Protected Views: Compare and contrast the Association’s obligations regarding “golf course views” versus “mountain views” as established by the governing documents and the ALJ’s findings.
4. Reasonableness in Property Disputes: Examine the ALJ’s determination that the Petitioners held “unrealistic and unreasonable expectations” regarding their views. What evidence from the case supports or refutes this characterization?
5. Common Area Control: Evaluate the implications of the Board rescinding the 1997 “Common Area Policies, Procedures and Request Form.” How did this change affect the Petitioners’ ability to manage the vegetation impacting their property?
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Part 4: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A judge who trier of fact who presides over hearings and adjudicates disputes involving government agencies or specific statutory petitions.
Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for a planned community or homeowners’ association.
Common Area
Land within a development (such as the golf course or natural desert buffer) that is owned and maintained by the Association rather than an individual homeowner.
Declarant
The entity (often the developer, such as Del Webb) that originally established the community and its governing documents.
Development Standards
Guidelines intended to preserve the desert environment and architectural character of the community, which apply to lots and parcels.
Eleventh Amended and Restated Declaration
The version of the community’s governing documents effective at the time the Petitioners acquired their property in June 2004.
Preponderance of the Evidence
The standard of proof in a civil or administrative case, requiring that a claim be more likely true than not.
Respondent
The party against whom a petition is filed; in this case, the Sun City Vistoso Community Association, Inc.
Trustee
An individual or entity holding legal title to property on behalf of a trust and its beneficiaries.
Warranty Deed
A legal document that transfers ownership of real property and guarantees that the seller holds clear title.
Wrought Iron Construction
A type of open fencing material required for the portions of fences exceeding three feet in height to ensure visibility.
The Premium You Paid for That View? It Might Be Worthless: Lessons from Rose v. Sun City Vistoso
The allure of “living on the green” is a powerful force in Southwest real estate. For many, the premium paid for a lot bordering a golf course—like Lot 6a in the Sun City Vistoso community—is an investment in a specific lifestyle: the right to watch the morning light hit the fairways or the sunset glow on distant peaks. Homeowners often assume that because they paid for the vista, they have a permanent legal right to maintain it.
However, as the Trustees of the Rose Revocable Family Trust discovered, a “view” is often a legally fragile asset. When George and Carmen Rose found their sightlines disappearing behind growing mesquite trees and a neighbor’s vegetation, they didn’t just find a gardening problem; they found a jurisdictional trap. The case of George and Carmen Rose vs. Sun City Vistoso Community Association stands as a definitive cautionary tale for any homeowner who believes their property lines extend to the horizon.
Your “Mountain View” Might Not Legally Exist
The Jurisdictional Trap Between Lots and Common Areas
One of the most jarring revelations in the Rose case was the discovery that not all vistas are created equal. The Roses argued that the Association’s Development Standards were intended to “respect the vistas and views of the mountain setting.” However, General Manager Scott Devereaux delivered a cold legal reality: while “Golf Course Views” were mentioned in the CC&Rs, “Mountain Views” lacked explicit protection.
More importantly, Devereaux highlighted a critical distinction regarding where those rules apply. He noted that the Development Standards were designed for “Lots and Parcels”—the land owned by residents—and did not legally bind the Association’s management of its own land (the common areas). This means an HOA can allow a desert forest to grow in a common area even if it completely erases the “mountain setting” described in the community’s marketing materials.
The Board as the “Supreme Court” of the Neighborhood
The Interpretive Monopoly and the Power of Article XVII
Even when CC&Rs contain language about views, the power to define those terms rests entirely with the HOA Board. Article XVII of the Declaration granted the Sun City Vistoso Board the “exclusive right to construe and interpret” the provisions of the document. Under this authority, the Board’s interpretation is “final, conclusive and binding,” leaving the homeowner with almost no recourse short of a high-stakes judicial challenge.
The Board essentially acts as the “Supreme Court” of the street. In an October 19, 2004, memorandum, the Board outlined the limits of their interpretive responsibilities, effectively narrowing the scope of what a homeowner can expect:
• Case-by-Case Basis: View disputes are site-specific and do not create a community-wide precedent.
• Reasonable Locations: The Association is only required to provide a view from “several reasonable locations” in a backyard, not a panoramic vista from every window.
• Natural Reversal: While the Association initially trimmed vegetation to assist the Roses, they later exercised their authority to let the area behind the neighboring lot “grow back naturally,” effectively rescinding previous maintenance.
You Can’t Always Force a Neighbor to Trim
The “Diagonal View” and Unreasonable Expectations
The conflict between the Roses and their neighbors, the Millers, highlights the limits of the “diagonal” view. As members of the “nine-hole club,” the Roses specifically wanted to watch people tee-off from the 14th tees, which required looking diagonally across the Millers’ property.
The Board—and later the Administrative Law Judge—found this expectation to be a bridge too far. The ruling established that a homeowner’s right to a view does not grant them a veto over a neighbor’s landscaping, especially when the desired sightline isn’t a direct view. The court’s finding was a blunt assessment of homeowner entitlement.
The Vanishing Right to “DIY” Common Area Maintenance
The 2004 Policy Shift and the Bureaucratic Nightmare
Before 2004, a “self-help” policy allowed Sun City Vistoso members to maintain common areas at their own expense. When mesquite trees and “Desert Broom” began to block their mountain views, the Roses offered to do the work themselves for free. They even promised to “not disturb any of the cactus” and to dispose of all cuttings.
However, the HOA asserted total control in a 2004 policy reversal, revoking all prior “DIY” agreements. The Association argued this was necessary to prevent members from “disturbing” the desert environment. This shift stripped the Roses of their ability to solve their own problem, forcing them out of their backyard and into a grueling administrative process with the Department of Fire, Building and Life Safety. The lesson is clear: your right to “improve” the common area ends the moment the Board decides to assert its legislative monopoly.
CC&Rs Can Change Mid-Dispute
The “Mootness Trap” of Legislative Maneuvering
Perhaps the most impactful takeaway is that an HOA can change the rules while you are in the middle of a fight. While the Roses were disputing the Eleventh Amended Declaration, the Board proposed and passed the Twelfth Amended and Restated Declaration in March 2005. This new version simplified the language and explicitly codified the Board as the “final authority” on view obstructions.
When the case reached the judge in 2007, this maneuver proved fatal to the Roses’ petition. Because the Roses failed to prosecute a civil claim while the Eleventh Declaration was still effective, the judge ruled their complaints “moot.”
This “Mootness Trap” demonstrates that delay is the homeowner’s greatest enemy. By the time you get your day in court, the Association may have already legislated away the very rule you are trying to enforce.
The Final Verdict on Living with an HOA
The Roses’ petition was ultimately denied, a result that underscores the immense power of community associations. When you buy into an HOA, you aren’t just purchasing a home; you are consenting to a system of governance where your individual “rights” are secondary to the Board’s interpretive authority.
The Rose case proves that “undue obstruction” is whatever the Board says it is, and a “mountain view” is only a right if it’s written in stone in the CC&Rs. Before you pay that “view premium,” you must ask yourself: Do you truly know who owns the sightlines outside your window? In a managed community, the answer is almost certainly the Association.
Case Participants
Petitioner Side
- George F. Rose (Petitioner)
The Rose Revocable Family Trust
Trustee/Owner of Lot 6a - Carmen Gloria Rose (Petitioner)
The Rose Revocable Family Trust
Trustee/Owner of Lot 6a
Respondent Side
- David A. McEvoy (attorney)
McEvoy, Daniels & Darcy, P.C.
Attorney for Sun City Vistoso Community Association, Inc. - Scott G. Devereaux (General Manager)
Sun City Vistoso Community Association, Inc. - Sikkink (board member)
Sun City Vistoso Community Association, Inc.
Moved to deny petitioners' request - Natt (board member)
Sun City Vistoso Community Association, Inc.
Seconded motion to deny request - Frasca (board member)
Sun City Vistoso Community Association, Inc.
Called vote
Neutral Parties
- Brian Brendan Tully (ALJ)
Office of Administrative Hearings
Administrative Law Judge - Lawrence Miller (neighbor)
Owner of neighboring lot; spoke at board meeting - Anita Miller (neighbor)
Owner of neighboring lot - Robert Barger (Director)
Department of Fire, Building and Life Safety
Recipient of transmitted order - Joyce Kesterman (Agency Staff)
Department of Fire, Building and Life Safety
Recipient of transmitted order
