Case Summary
| Case ID | 07F-H067028-BFS |
|---|---|
| Agency | DFBLS |
| Tribunal | OAH |
| Decision Date | 2007-06-18 |
| Administrative Law Judge | Michael K. Carroll |
| Outcome | no |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Laura Frey | Counsel | — |
|---|---|---|---|
| Respondent | Tucson Estates Property Owners Association, Inc. | Counsel | Carolyn Goldschmidt |
Alleged Violations
Declarations Section 8.3.1
A.R.S. §41-2198.01B; TEPOA Bylaws Article V
Neighbor built fence blocking view/value without approval
Outcome Summary
The Petition was denied in its entirety. The ALJ ruled that the Petitioner's gazebo/arbor constituted a 'structure' in violation of the 10-foot setback requirement. The HOA's enforcement actions, including fines and suspension of privileges, were found to follow proper procedures and governing documents. The claim regarding a neighbor's fence was dismissed as the fence was approved.
Why this result: The ALJ determined that the ordinary meaning of 'structure' included the gazebo/arbor, and the Declarations' non-waiver clause precluded the defense of inconsistent enforcement. The HOA demonstrated compliance with notice and hearing procedures.
Key Issues & Findings
Violation of setback requirements regarding structure (gazebo/arbor)
Petitioner placed a gazebo (later an arbor) within the 10-foot side setback. Petitioner argued it was 'lawn furniture' or an 'accessory' and not a 'structure', and that the HOA had waived enforcement by allowing other violations.
Orders: The gazebo/arbor is deemed a structure under the ordinary meaning of the term and violates the setback. The HOA's non-waiver clause prevents the defense of selective enforcement.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- Burke v. Voicestream Wireless Corp.II
- Horton v. Mitchell
Procedural safeguards and imposition of sanctions
Petitioner alleged the HOA charged for nonexistent offenses, failed to respond/inform of contest methods, and improperly suspended voting and recreational privileges.
Orders: The ALJ found the HOA followed comprehensive procedural safeguards and that fines and suspensions were authorized by the Bylaws.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Neighbor's fence construction
Petitioner alleged her neighbor built a fence without Board approval that impacted her property value.
Orders: Denied. Evidence established the neighbor had obtained approval.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Decision Documents
07F-H067028-BFS Decision – 170235.pdf
Briefing on Frey v. Tucson Estates Property Owners Association, Inc. (No. 07F-H067028-BFS)
Executive Summary
This briefing summarizes the administrative law decision regarding a dispute between homeowner Laura Frey (Petitioner) and the Tucson Estates Property Owners Association, Inc. (TEPOA or Respondent). The core of the conflict involved the placement of a gazebo—and later an arbor—within a ten-foot side lot setback, which the Respondent deemed a violation of the community’s Declaration of Covenants, Conditions and Restrictions (CC&Rs).
The Administrative Law Judge (ALJ) ruled in favor of the Association, concluding that:
• A gazebo or arbor constitutes a “structure” under the ordinary dictionary definition and the specific language of the CC&Rs.
• The Association’s failure to enforce similar violations in the past did not constitute a waiver of its right to enforce the rules, due to an explicit “No Precedent” clause.
• The Association followed proper procedural safeguards before imposing fines and suspending the Petitioner’s membership privileges.
• The Petitioner failed to provide sufficient evidence for claims regarding inconsistent enforcement or unauthorized neighbor constructions.
Background of the Dispute
On February 20, 2007, Laura Frey filed a petition alleging six violations of planned community documents and state statutes by TEPOA. The conflict originated in late 2005 or early 2006 when the Petitioner placed a portable gazebo in her side yard within ten feet of the property line.
Procedural Timeline
• March 28, 2006: First Notice of Violation issued regarding the ten-foot setback (Section 8.3.1 of the Declarations).
• May 16, 2006: Second Notice of Violation issued.
• June 21, 2006: A Special Hearing was held where Petitioner argued the gazebo was “lawn furniture,” not a structure. The panel disagreed.
• August 23, 2006: A second Special Hearing (which Petitioner did not attend) resulted in a fine of $10 per day starting September 1, 2006.
• January 2007: Petitioner informed the Association the gazebo had been destroyed by a tree limb but acknowledged using its “skeleton” to construct an arbor in the same setback area.
• February 6, 2007: Petitioner’s recreational facility privileges were revoked due to a “seriously delinquent” account.
Analysis of Legal Themes and Evidence
1. Definition and Interpretation of “Structure”
The primary legal question was whether a gazebo or arbor falls under the restrictions of Section 8.3.1, which mandates a 10-foot setback for “all permanent or temporary structures.”
• Ordinary Meaning: Following the precedent in Horton v. Mitchell, the ALJ determined that because the Declarations did not provide a specific definition, the term “structure” must take its ordinary meaning: “something constructed.”
• Contextual Evidence: Section 8.1 of the Declarations includes “accessory,” “TV/radio antenna,” and “similar device” under the umbrella of structures requiring approval. The ALJ reasoned that if a TV antenna is a structure, a gazebo or arbor certainly is.
• Inclusivity of Language: Petitioner argued that the mention of “overhanging awnings, parking covers or eaves” in Section 8.3.1 suggested the rule was limited to those items. The ALJ found this language was inclusive, not exclusive, and that the phrase “all permanent or temporary structures” would be superfluous if the list were exhaustive.
2. Consistency of Enforcement and Waiver
The Petitioner argued that TEPOA’s failure to challenge other setback violations in the community constituted a waiver of their right to enforce the rule against her.
• “No Precedent” Clause: Section 11 of the Declarations explicitly states that failure to enforce restrictions “shall in no event be deemed a waiver of the right to do so thereafter.”
• Board Resolution: On October 12, 2004, the Board adopted a resolution acknowledging prior non-conforming structures and declaring that any new requests or changes must fully conform to current CC&Rs to ensure consistent enforcement moving forward.
• Legal Precedent: The ALJ cited Burke v. Voicestream Wireless Corp. II, which held that non-waiver provisions in community restrictions are controlling even if previous violations went unchallenged.
3. Procedural Integrity and Association Sanctions
The Petitioner alleged she was charged for a “nonexistent offense” and denied the ability to contest the situation. The ALJ found the evidence refuted these claims:
Action
Authorization
Finding
Imposition of Fines
Bylaws Art. V, Sec. 5B (6)(b)
Authorized and properly noticed.
Suspension of Facilities
Bylaws Art. V, Sec. 3A (3)
Authorized due to delinquent account.
Suspension of Voting
Bylaws Art. VIII, Sec. 5C
Authorized for members not current on assessments.
Hearing Procedures
Bylaws Art. V, Sec. 5 B, C, D
Association followed a “comprehensive procedural scheme.”
Petitioner’s Allegations and Judicial Conclusions
The ALJ addressed the six specific allegations as follows:
1. Fines for “Nonexistent Offense”: Denied. The gazebo/arbor was a structure and the violation was real.
2. Failure to Respond/Inform: Denied. The Association followed extensive procedural steps and provided multiple notices.
3. Disallowance of Community Property: Denied. The suspension was a sanctioned response to the Petitioner’s delinquent account.
4. Denial of Voting Rights: Denied. The Bylaws require accounts to be current to vote; the issue was also deemed moot as rights were later restored.
5. Inconsistent Enforcement: Denied. The “No Precedent” clause and the 2004 Resolution protected the Association’s right to enforce the CC&Rs.
6. Neighbor’s Fence: Denied. Evidence showed the neighbor had obtained proper Association approval for the construction.
Final Order
The Administrative Law Judge concluded that the Respondent (TEPOA) acted within its rights and followed all governing documents and state statutes. The petition filed by Laura Frey was denied in its entirety. This decision was designated as the final administrative action.
Study Guide: Laura Frey v. Tucson Estates Property Owners Association, Inc.
This study guide provides a comprehensive review of the administrative law case Laura Frey v. Tucson Estates Property Owners Association, Inc. (No. 07F-H067028-BFS). It examines the legal definitions of “structures” within planned communities, the procedural requirements for enforcing Covenants, Conditions, and Restrictions (CC&Rs), and the validity of non-waiver clauses in community documents.
Part 1: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided source text.
1. What was the primary violation alleged by the Tucson Estates Property Owners Association (TEPOA) against Laura Frey?
2. How did Petitioner Laura Frey justify the presence of the gazebo in her side yard setback?
3. What was the significance of the Board’s October 12, 2004, Resolution regarding setbacks?
4. How did the Administrative Law Judge (ALJ) determine the definition of a “structure” in the absence of a specific definition in the Declarations?
5. What specific items does Section 8.3.1 of the Declarations list as being included in the ten-foot setback requirement?
6. Why was the Petitioner’s “arbor” also considered a violation of the Declarations?
7. How did the ALJ address the Petitioner’s claim that TEPOA had waived its right to enforcement by failing to act against other similar violations?
8. What were the specific sanctions imposed on the Petitioner for the continuing violation?
9. What procedural evidence did TEPOA provide to demonstrate they had informed the Petitioner of the August 23, 2007, hearing?
10. What was the finding regarding the Petitioner’s allegation that her neighbor built an unapproved fence?
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Part 2: Answer Key
1. TEPOA Violation: The Association alleged that the Petitioner violated Section 8.3.1 of the Declarations by placing a structure (a gazebo) within the ten-foot side lot setback. The Association issued multiple notices requesting the removal of the structure to bring the property into compliance.
2. Petitioner’s Justification: Frey argued that the gazebo did not meet the definition of a “structure” prohibited by the Declarations, instead equating it to “lawn furniture.” She later contended that the remnants of the gazebo, which she fashioned into an “arbor” for vines, should not be classified as a prohibited structure.
3. 2004 Resolution: The Board adopted this resolution to acknowledge existing non-conforming structures and to establish a consistent method for future enforcement. It mandated that any request to replace or change a non-compliant structure would only be approved if the new structure fully conformed to current CC&Rs.
4. Defining “Structure”: Following the precedent set in Horton v. Mitchell, the ALJ applied the “ordinary meaning” of the word, which is “something constructed.” Because the Declarations did not provide a limiting definition, the gazebo and arbor were found to fall under this broad dictionary definition.
5. Section 8.3.1 Inclusions: This section specifies that the setback applies to all permanent or temporary structures, including mobile homes. It explicitly includes “overhanging awnings, parking covers or eaves” to clarify that items protruding into the airspace are also restricted.
6. Arbor Violation: The ALJ determined that the arbor, constructed from the “skeleton” of the destroyed gazebo, was still “something constructed.” Therefore, it met the ordinary definition of a structure and remained in violation of the side lot setback.
7. Waiver Claim: The ALJ cited Section 11 of the Declarations, a “non-waiver” clause, which states that failure to enforce a restriction does not waive the right to do so in the future. Legal precedent in Burke v. Voicestream Wireless Corp. II supported the idea that such clauses are controlling regardless of previous unchallenged violations.
8. Sanctions Imposed: The Petitioner was assessed a fine of $10 per day starting September 1, 2006. Additionally, her rights to vote in Association elections and her privileges to use common area recreational facilities were suspended.
9. Procedural Evidence: TEPOA sent a “Call to Hearing” letter via both first-class and certified mail. While the certified letter was returned as “unclaimed,” the first-class mail was not returned, and the Association followed the procedural steps outlined in its Bylaws.
10. Neighbor’s Fence: The ALJ dismissed this allegation because evidence presented at the hearing established that the neighbor had actually obtained board approval for the fence. This contradicted the Petitioner’s claim that the fence was built without Association oversight.
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Part 3: Essay Questions
Instructions: Use the Source Context to develop comprehensive responses to the following prompts.
1. The Interpretation of Language: Analyze how the ALJ used the Horton v. Mitchell analysis to interpret the term “structure.” Discuss the importance of “ordinary meaning” versus “specific language” in the interpretation of community governing documents.
2. The Non-Waiver Doctrine: Evaluate the legal weight of Section 11 of the TEPOA Declarations. Why is a non-waiver clause critical for a homeowners’ association’s ability to maintain community standards over long periods?
3. Due Process in Planned Communities: Examine the procedural steps TEPOA took before imposing fines and suspending privileges. Based on the Bylaws mentioned in the text, what constitutes a “comprehensive procedural scheme” for protecting homeowner rights?
4. Consistency in Enforcement: Compare the Petitioner’s argument regarding “inconsistent enforcement” with the Board’s 2004 Resolution. How does a Board balance the acknowledgment of past non-compliance with the need for future strict adherence to CC&Rs?
5. Authority of the Association: Discuss the extent of an Association’s power to restrict the use of private lots as described in Section 8 of the Declarations. How do items like “accessories” or “TV antennas” impact the legal understanding of what an owner can “commence, erect, or maintain”?
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Part 4: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A judicial officer who presides over hearings and makes decisions regarding disputes involving state agency actions or statutes.
Arrears
The state of being behind in payments; in this case, the Petitioner’s failure to pay Association assessments or fines.
Bylaws
The internal rules and regulations that govern the administration of an association, including hearing procedures and voting rights.
CC&Rs (Declarations)
Covenants, Conditions, and Restrictions; the legal documents that establish the rules for land use and behavior within a planned community.
Common Area
Facilities and property owned by the Association for the use of all members, such as recreational facilities.
Non-Waiver Clause
A provision in a contract or declaration stating that the failure to enforce a rule in one instance does not prevent the enforcement of that rule in the future.
Petitioner
The party who files a petition or brings a legal case against another; in this case, Laura Frey.
Respondent
The party against whom a legal petition is filed; in this case, the Tucson Estates Property Owners Association (TEPOA).
Setback
A specific distance from a property line (e.g., front or side) where structures are prohibited from being placed.
Structure
Legally interpreted in this context as “something constructed,” encompassing items ranging from gazebos and arbors to cellular towers and roads.
Superfluous
Unnecessary or redundant; used by the ALJ to describe how the phrase “all permanent or temporary structures” would be viewed if the setback list were considered exclusive.
Unclaimed
A status for certified mail that was not collected by the recipient, though it does not necessarily invalidate the attempt at notice if other methods were used.
When Your Gazebo Becomes a ‘Structure’: Hard Lessons from a Legal Battle in the Backyard
1. Introduction: The High Cost of a Backyard Sanctuary
For many homeowners, the dream of a private sanctuary begins with a simple addition: a portable gazebo for shade or a vine-covered arbor for aesthetics. These items often feel like “lawn furniture”—temporary, movable, and far removed from the world of building permits and architectural committees. However, as the case of Laura Frey vs. Tucson Estates Property Owners Association (TEPOA) demonstrates, the gap between a piece of furniture and a prohibited “structure” can lead to a punishing administrative adjudication and thousands of dollars in fines.
The dispute began when Laura Frey placed a portable gazebo in her side yard. After a tree limb crushed the gazebo in May 2006, she attempted to adapt by repurposing the metal “skeleton” into a vine-covered arbor. What Frey viewed as a creative solution to a natural accident, the Association viewed as a persistent violation of its setback rules. This multi-month escalation serves as a definitive cautionary tale regarding the legal definitions that govern our backyards.
2. Takeaway 1: Your Gazebo is a “Structure” (Even if You Call It Furniture)
The central conflict in Frey v. TEPOA hinged on whether a portable gazebo—or the arbor built from its remains—constituted a “structure” under the community’s Declarations. Frey argued that because the item was portable and akin to “lawn furniture,” it should be exempt from Section 8.3.1, which mandates a 10-foot setback from side property lines.
The Administrative Law Judge (ALJ) rejected this distinction, focusing on the act of assembly rather than the portability of the materials. Under Section 8.1 of the TEPOA Declarations, the “broad net” of regulation includes a wide-ranging list: buildings, additions, fences, accessories, walls, paving, and even TV antennas or “similar devices.”
The Construction Standard In the eyes of the law, the “nature” of the item (portable or permanent) is secondary to the fact that it was “constructed” or “erected.” If a homeowner must assemble it, the HOA can likely regulate it.
By this standard, if an accessory as minor as a TV antenna is legally classified as a structure, a metal gazebo frame—regardless of its “skeleton” status—is undeniably subject to setback requirements.
3. Takeaway 2: The “But My Neighbor Did It Too” Defense is Dead
Homeowners frequently rely on the defense of inconsistent enforcement, arguing that because the HOA ignored similar violations by neighbors, they have waived the right to enforce the rule now. Frey raised this exact point (Allegation 5), noting other setback violations in the subdivision.
This argument was defeated by the Non-Waiver Doctrine, codified in Section 11 of the TEPOA Declarations. This clause is a powerful legal shield for associations, ensuring that past leniency does not result in a permanent loss of enforcement power.
The 2004 Policy Pivot Crucially, the TEPOA Board had prepared for this challenge years earlier. On October 12, 2004, the Board adopted a formal Resolution acknowledging past laxity regarding setbacks and declaring that, effective immediately, all new or replacement structures must fully conform to the CC&Rs. This proactive policy change effectively “reset” the enforcement clock.
4. Takeaway 3: The Power of the Dictionary in Court
When community documents fail to define a specific term, courts look to the “ordinary meaning.” In this case, the ALJ utilized the Burke v. Voicestream Wireless Corp. II and Horton v. Mitchell precedents to bridge the gap between common parlance and legal obligation.
The court’s logic regarding Section 8.3.1 involved a critical lesson in statutory construction: the “Inclusive vs. Exclusive” rule. Frey argued that because the section specifically listed “awnings, parking covers or eaves,” it excluded gazebos.
The ALJ countered that the list was inclusive, not exclusive. To interpret the list as exclusive would make the preceding phrase—”all permanent or temporary structures”—entirely superfluous.
The takeaway is chilling for the DIY-inclined homeowner: if your CC&Rs don’t define it, the dictionary will. In previous cases, the “ordinary meaning” of a structure has been broad enough to encompass everything from a gravel road to a fifty-foot cellular tower.
5. Takeaway 4: HOAs Can Take More Than Just Your Money
While many homeowners worry about the financial toll of fines—which in this case amounted to $10 per day beginning in September 2006—the Association’s power extends to the revocation of fundamental community rights.
When Frey’s account became “seriously delinquent” due to unpaid fines, the Board moved beyond monetary penalties. A simple setback dispute over an arbor resulted in a total loss of community standing:
• Suspension of Voting Rights: The Petitioner was precluded from participating in Board elections in November 2006.
• Revocation of Common Area Privileges: The homeowner was barred from using community recreational facilities.
Notably, these rights were only restored after the formal Petition was filed in early 2007. This escalation demonstrates that architectural non-compliance can strip a resident of their “membership in good standing,” effectively making them a stranger in their own community.
6. Takeaway 5: Notice is a One-Way Street (The Certified Mail Trap)
A pivotal procedural moment occurred on August 7, 2006, when the Association sent a “Call to Hearing” notice for a special session on August 23. The notice was sent via both first-class and certified mail. Frey claimed she never received the notice because the certified letter was returned “unclaimed.”
The court ruled the notice was legally sufficient. Because the first-class version was not returned, the law presumes delivery. This highlights a dangerous “one-way street” in administrative hearings: avoiding a certified letter does not stop the clock. If the HOA follows its mailing protocols, the hearing proceeds, the fines are levied, and the homeowner’s absence is treated as a missed opportunity to defend their case.
Conclusion: The Fine Print is the Final Word
The legal saga of the Tucson Estates gazebo underscores a vital reality of community governance: your personal perception of your property is subordinate to the written word of the CC&Rs and the “ordinary meaning” found in a dictionary. Whether it is a portable gazebo, a repurposed “skeleton” of a frame, or a simple trellis, the act of construction brings you under the jurisdiction of the Association.
Before you add that “temporary” accessory to your yard, ask yourself: do you know if your HOA—or the local judge—would call it a structure? In the world of HOAs, the fine print is always the final word.
Case Participants
Petitioner Side
- Laura Frey (petitioner)
Tucson Estates
Homeowner; appeared on her own behalf
Respondent Side
- Carolyn Goldschmidt (attorney)
Goldschmidt Law Firm
Attorney for Respondent (TEPOA)
Neutral Parties
- Michael K. Carroll (ALJ)
Office of Administrative Hearings
Administrative Law Judge - 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
