Arizona neighbors' new house plans not a nuisance, court rules

Nor does the fact that your scenic view would be blocked, the judges concluded.

In fact, in their unanimous ruling, the three-judge panel said there is no basis at all in Arizona law for claims for loss of privacy or that a view will be obstructed. And, absent a contrary decision from the Arizona Supreme Court, the ruling not only allows construction to begin but also confirms that precedent for all future cases.

The unusual case dates back to 2014 when Tina and John Pavlak purchased a home on Lot 11 within the gated Sonoran Estates community, which is part of Red Mountain Ranch in northeast Mesa.

At the time, the adjacent Lot 10 was vacant. Further, the city and the homeowners association had required any new home and additions to fit within the "building envelope'' within the lot.

Based on those assurances, the Pavlaks said they made significant improvements to their own property.

In 2024, however, the HOA and the city approved a request by Funk Family Enterprises, which had purchased that adjacent lot, to modify the envelope and allow a home to be built farther uphill on the property to improve the view and to be able to get a better price for it.

A trial judge threw out a series of claims by the Pavlaks to block construction, including one claiming consumer fraud, which he called frivolous. That left the argument that the revamped plans created a nuisance.

The judge agreed that plans for the new home are different than what they understood were the original plans for the envelope. But he said that because the HOA has a process for modifying those envelopes, a homeowner has no reasonable expectation that the plan would remain unchanged.

That led to the appeal.

Appellate Judge Samuel Thumma said nuisance laws serve a purpose. He said they kick in when the activity of another, even though it is not on the property, affects the private use and enjoyment of land.

But the judge said that someone filing such a claim needs to prove that the actions of the other party "unreasonably interfered with their use and enjoyment of their property, causing significant harm.'' Under Arizona law, not every interference is a nuisance, Thumma said.

"Since the rules of a civilized society requires us to tolerate our neighbors, the law requires our neighbors to keep their activities within the limits of what is tolerable by a reasonable person,'' he wrote. And he said that a claimed nuisance "must constitute more than slight inconvenience or petty annoyance.''

The Pavlak's claimed that they were harmed by the change in what was going on next door, including their property being worth $300,000 less and the loss of $287,107 in recent improvements in their backyard. Thumma, however, said under Arizona law any loss of value doesn't interfere with the ability to use the property and cannot alone be the basis for a nuisance claim.

Nor was the appellate court compelled to rule for the Pavlaks on other claims.

"Arizona has never recognized a private nuisance claim based on alleged loss of privacy,'' the judge wrote. "Moreover, the Pavlaks have not shown that this should be the case to do so.''

About the only reason for ignoring that precedent, Thumma said, would be in cases of "repeated, harassing, intrusive undertakings that compromise privacy.''

"The Pavlaks, however, have alleged no such conduct here,'' the judge said. "Nor to the Pavlaks allege that Funk's modifications of the Lot 10 envelope was done out of spite or malice.''

The appellate court was no more willing to accept the argument that having the neighbor's house built outside the original envelope — and further up the hill — would unreasonably interfere with their peaceful use and enjoyment of their home and cause harm because it would deprive them of their scenic view and diminish the value of their property.

"Arizona has never recognized a right to an unobstructed or scenic view across a neighbor's property, and this court does not recognize such a right here,'' Thumma said.

Attorney Richard Cobb, who represents the buyers of the next-door property, said the decision — and the precedent it sets — clears the way for construction, which has been on hold while the case was making its way through the court system.