Case No 07F-H067008-BFS

Complaint:
enforce the architectural standards (allow petitioner’s changes)

Source of Law:
declaration; bylaws; Rules & Regs

Discussion:

Holding:

Additional Remarks:
Homeowner sought to cover driveway with concrete to prevent drainage runoff from eroding front yard in this desert-landscaped community. HOA considered this to be a structure and subject to its prior approval. No Cave Creek ordnance violation. Cement addition existed for some time period, about a month, before HOA insisted that it be removed, and threaten fines if homeowner did not comply. Cement composition was same as used on existing driveway. Other properties have extensions – what was allowed leads to the meanings of the rules.

HOA notice referred to a violation that in reality did not exist – “driveway must extend to garage”. Homeowner seeks approval; HOA seeks removal.

Homeowner attorney stated that the restriction was a rule and not a covenant in the CC&Rs, and that HOA could not add to CC&Rs by means of rules. [Cases exist relating to the meaning of “to amend” – to modify or to change, but not to add]. There is no mention of driveways in CC&Rs, but only in the Rules & Regs. HOA claims general powers under ”abiding by ACC decisions”.

HOA attorney clarifies that “going to the city for approval is not the same as going to the HOA for approval.” Furthermore, he argued that it was irrelevant what other properties looked like since HOA can change the rules, unless it could be shown that other properties were subject to same set of rules or CC&Rs. Homeowner failed to get prior approval of ACC for any appearance or landscaping changes. Portrays HOA as really cooperative, helpful and willing to resolve the issue.

HOA board has broad discretionary powers, as granted by the CC&Rs, in regard to concerns relating to appeal of community.

Morgan of Maxwell & Morgan, representing HOA. James Tanner of Jackson, White, representing homeowner. HOA is Rancho Manana in Cave Creek.