Ruling opens HOA sculpture dispute to jury decision - Ahwatukee Foothills News: Valley And State

Ruling opens HOA sculpture dispute to jury decision

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Posted: Saturday, June 25, 2011 9:00 am | Updated: 3:43 pm, Thu Jun 30, 2011.

A metal sculpture of a saguaro wearing sunglasses and holding an electric guitar may not be what some people want in their front yard.

But now, thanks to a ruling by the Arizona Court of Appeals, a jury may get to decide whether it’s art — and, more to the point, whether it’s ugly.

The unusual case surrounds a fight between the homeowners association of the Pinnacle Peak Vistas III subdivision and Arvin Bernstein, who owns a home there under the company name of Derailed LLC.

Court records show the sculpture was erected in 2006. Two years later, the association sent a letter to the property owner saying that this was a non-approved modification of the property and demanding it be removed.

Those notices did not say what provisions of the associations “Declaration of Covenants, Conditions and Restrictions’’ had been violated.

In 2009 a letter went out from the association’s attorney saying that the property owner did not ask for permission to make landscaping modifications. The owner refused to remove it, saying if this type of sculpture was a violation, so were others in the subdivision.

The case finally wound up in court.

Maricopa County Superior Court Judge John Buttrick threw out the association’s claims, concluding that none of the allegations it made about the sculpture fits within the definitions of what is not permitted. The association then appealed.

Judge Sheldon Weisberg, writing for the unanimous appellate court, pointed out that nothing in the association’s CC&Rs specifically mentions sculptures.

Despite that, attorneys for the association argued that there is general authority within those documents to do whatever is necessary to enhance and protect the value of homes in the subdivision. And that, they said, includes preserving the natural landscape in the yard.

Weisberg said that argument falls. “The association offered no evidence that the sculpture destroyed any vegetation, was allergy producing, or inconsistent with the desert environment,’’ he wrote. “If the association desires a broader definition of ‘landscaping,’ it is up to it to amend the governing documents accordingly.’’

Similarly, the appellate judges rejected the association’s contention that the sculpture is a “structure’’ that can be regulated. And they also brushed aside a requirement that the sculpture fits within rules that require all exterior designs to “be characteristic of Southwestern architecture.’’

But Weisberg noted that there are rules that forbid signs, billboards and other “unsightly objects’’ on any lot. And on that basis, he said, the association is entitled to have the question of whether the sculpture fits that definition decided by a jury.

The judges were quick to add, though, they’re not expressing a personal viewpoint.

“We do not intimate whether the sculpture is ‘unsightly,’ ” they added.

Weisberg noted, though, that the homeowners association and any committee reviewing the sculpture must act “reasonably’’ in applying the rules.

But in giving the association another shot at removing the sculpture, the appellate court also said that the property’s owners own claims also have to be considered. These include both the delay in complaining about the sculpture and whether their attack on this particular one is fair given what other owners have put on their front lawns.

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