Case No 07F-H067002-BFS

Complaint:

Source of Law:
ARS 41-2198.01 relating to OAH authority.

Discussion:
Dismissed; no jurisdiction.

Holding:
Because Petitioner Mr. Wojtowicz admitted that his dispute is against the successor in interest to the original developer, Voyager at Juniper Ridge, L.L.C. and its principal N.E. Isaacson, regarding their amendments to the original declarations of Covenants, Conditions, and Restrictions (“CC&Rs”) when they took over development of the planned community rather than against Respondent Voyager at Juniper Ridge Homeowners’ Association for any alleged violation of valid CC&Rs.

IT IS FURTHER ORDERED allowing Respondent leave to file an application for attorney’s fees and costs and affidavit on or before February 9, 2007. As the Administrative Law Judge stated on the record, she does not believe that attorney’s fees and costs are available as a matter of right to a Homeowners’ Association in an administrative proceeding, even if, as here, it prevails on the merits. The statutes and regulations governing procedure in the Office of Administrative Hearings do not provide for counterclaims in this type of proceeding. Respondent has not paid any filing fee or filed any petition for affirmative relief against Petitioner under the CC&Rs, which A.R.S. § 41-2198.01(B) allowed it to do. Moreover, an administrative proceeding such as this one is not an “action” such as to make attorney’s fees available under either A.R.S. §§ 33-1807(H) or 12-341.01. The Administrative Law Judge requests Respondent to address these concerns in its application for attorney’s fees and costs.


Additional Remarks:
The Holding above relates to a third party, the developer and not the HOA. Only complaints against the HOA are permitted.

HOA is not entitled to fees if HOA wins as in civil court case, but attorney must argue why it should be paid fees and costs.

HOA filed a response seeking to declare the new law, ARS 33-2198.01 as unconstitutional and that OAH lacks jurisdiction. OAH replied that constitutional challenges are not within its jurisdiction and must be filed in Superior Court. It further advised parties that OAH "will not rule of Respondent's constitutional argument, but merely notes that the argument was properly preserved for purposes of any appeal ..." (An appeal must specify goings on at the trial level, and if an issue was not raised there, it cannot be raised on appeal).

From material provided to me to my petitioner, this seems to be a case where a developer declared himself Declarant, by means of amendments and proceeded to create his own personal fiefdom, solely controlling amendments without member approval, and exempting Declarant from all restrictions.

Original CC&Rs make it clear from its wording that no amendments were permitted until after the initial 30 year period. The amendments violated Arizona law with respect to uniformity of covenants. La Esparanza Town Home Association, Inc. v. Title Security Agency of Arizona, 142 Ariz. 235, 689 P.2d 178 (App. 1984).

Finally, petitioner's attorney wrote Respondent in 2005 that there is no documentation on record showing that alleged declarant, the Respondent, was the legal successor or assignee assigned of the original declarant. The property, the lots still owned by Developer were purchased through bankruptcy sales, but this alone does not make the original lot purchaser the Declarant. We have, thereby, a broken and invalid chain of subsequent property owners claiming to be the Developer’s assigns or successor’s in interest. Consequently, Respondent has no standing as declarant and no control of HOA board.

Property is in the Pinetop, AZ area, northeast of Phoenix.