Case Summary
| Case ID | 21F-H2120012-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-12-13 |
| Administrative Law Judge | Kay A. Abramsohn |
| Outcome | The Respondent's Motion to Dismiss was granted because the statute cited by Petitioners (A.R.S. § 33-1817(B)(2)(b)) regarding mandatory design approval meetings applies only to the construction or rebuild of the 'main residential structure,' not to a shed. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Anthony & Karen Negrete | Counsel | — |
|---|---|---|---|
| Respondent | Sundance Ranch Homeowners Association | Counsel | Quinten Cupps, Esq. |
Alleged Violations
A.R.S. §§ 33-1803 and 33-1817(B)(2)(b)
Outcome Summary
The Respondent's Motion to Dismiss was granted because the statute cited by Petitioners (A.R.S. § 33-1817(B)(2)(b)) regarding mandatory design approval meetings applies only to the construction or rebuild of the 'main residential structure,' not to a shed.
Why this result: The key statute relied upon by Petitioners was deemed inapplicable to the construction of a shed.
Key Issues & Findings
Failure to provide opportunity to participate in design approval meeting for replacement shed
Petitioners alleged they were not given the opportunity to participate in a final design approval meeting for building a replacement shed on their property, pursuant to A.R.S. § 33-1817(B)(2)(b).
Orders: Respondent’s Motion to Dismiss is granted and Petitioners’ Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1803
- A.R.S. § 33-1817(B)(2)(b)
Analytics Highlights
- A.R.S. § 33-1803
- A.R.S. § 33-1817(B)(2)(b)
- A.R.S. Title 33, Chapter 16
- A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
21F-H2120012-REL Decision – 842597.pdf
21F-H2120012-REL Decision – 842597.pdf
This administrative hearing, held on November 2, 2020, before Administrative Law Judge Kay A. Abramsohn, addressed a dispute between homeowners Anthony & Karen Negrete (Petitioners) and Sundance Ranch Homeowners Association (Sundance or Respondent).
Key Facts and Procedural Background:
Petitioners, long-time residents of Sundance, removed an existing shed (approved in 2005) due to deterioration from rodents and bees, and constructed a replacement shed in a new location on their property, intending to build a pool where the old shed stood. Petitioners did not initially seek approval for the replacement or the new location, believing it was unnecessary since a shed had been previously approved.
Sundance issued violation notices in March and April 2020, asserting the new shed was built without approval from the Architectural Committee. After applying for retroactive approval in June 2020, Sundance denied the application in July 2020, stating the new shed violated Design Guidelines regarding height, materials, and placement against a shared wall, and arguing the original approved shed could not be moved.
Main Issues and Arguments:
Petitioners filed a petition alleging Sundance violated Arizona Revised Statutes (A.R.S.) §§ 33-1803 and 33-1817(B)(2)(b). The specific issue Petitioners raised at the hearing was that they were not given the opportunity to participate in a design approval meeting pursuant to A.R.S. § 33-1817(B)(2)(b). Sundance denied the allegations and moved to dismiss the Petition.
The Design Guidelines require prior written approval from the Design Review Committee for any improvement, alteration, or change in the exterior appearance of structures. A.R.S. § 33-1803 governs the HOA's authority regarding enforcement and fines.
Legal Points and Outcome:
Petitioners had the burden of proving a violation by a preponderance of the evidence. The crucial legal point centered on the applicability of A.R.S. § 33-1817(B)(2)(b), which mandates that the association must hold a final design approval meeting allowing the member to attend.
The Administrative Law Judge (ALJ) concluded that A.R.S. § 33-1817(B)(2)(b) applies only to the "new construction of the main residential structure on a lot or for rebuilds of the main residential structure on a lot". Since the dispute involved a replacement shed—not the main residential structure—this statutory mandate for a meeting did not apply.
The ALJ concluded that Petitioners failed to establish a violation by Sundance of either A.R.S. § 33-1803 or A.R.S. § 33-1817(B)(2)(b). Consequently, the Respondent’s Motion to Dismiss was granted, and Petitioners’ Petition was dismissed. Petitioners were ordered to bear their $500.00 filing fee.
Questions
Question
Do I need HOA approval to replace an old structure (like a shed) that was approved years ago?
Short Answer
Yes. Prior approval of an original structure does not automatically apply to a replacement, especially if the location or condition changes.
Detailed Answer
Even if a structure was approved in the past, building a replacement is considered a new improvement or alteration. The ALJ found that despite having a shed approved in 2005, the homeowners were required to seek approval for the new shed, particularly because the governing documents stated that no improvements or alterations could be made without prior written approval.
Alj Quote
All subsequent additions to or changes or alterations in any building, fence, wall or other structure … shall be subject to the prior written approval of the Design Review Committee.
Legal Basis
CC&Rs Article 4, Section 4.1(a)
Topic Tags
- Architectural Review
- Improvements
- Grandfathering
Question
Is the HOA required to hold a 'final design approval meeting' for backyard projects like sheds?
Short Answer
No. The legal requirement for a design approval meeting applies only to the main residential structure.
Detailed Answer
The ALJ clarified that A.R.S. § 33-1817(B)(2)(b), which mandates a design approval meeting, is specific to the new construction or rebuild of the 'main residential structure.' It does not apply to ancillary structures like sheds.
Alj Quote
The Administrative Law Judge concludes that A.R.S. § 33-1817(B)(2)(b) contains a mandate for a “design approval” meeting in the circumstance of construction of a “main residential structure.” That was not the circumstance in this case.
Legal Basis
A.R.S. § 33-1817(B)(2)(b)
Topic Tags
- Meetings
- Statutory Interpretation
- Homeowner Rights
Question
Can I move an approved structure to a different location on my lot without new approval?
Short Answer
No. Moving a structure is considered a change that must adhere to current guidelines and receive approval.
Detailed Answer
The HOA successfully argued that an approval from 2005 was for a specific location and condition. Moving the structure constitutes a change that requires adherence to current guidelines.
Alj Quote
Again, the shed that was approved in 2005 cannot move or change- it is not denied, it simply cannot be moved or change. Any changes must adhere to the guidelines and be approved.
Legal Basis
CC&Rs / Design Guidelines
Topic Tags
- modifications
- Architectural Review
- Compliance
Question
Who bears the burden of proof when a homeowner challenges an HOA in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the law.
Detailed Answer
In an administrative hearing, it is up to the homeowner to provide evidence that carries more weight than the evidence offered by the HOA to prove a violation occurred.
Alj Quote
In this proceeding, pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, Petitioners bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1803 and 33-1817(B)(2)(b).
Legal Basis
A.A.C. R2-19-119
Topic Tags
- Legal Procedure
- Burden of Proof
- Hearings
Question
Can the HOA restrict the height and placement of backyard sheds?
Short Answer
Yes. The HOA can enforce specific design guidelines regarding dimensions and location relative to neighbors and the street.
Detailed Answer
The ALJ upheld the validity of Design Guidelines that mandated maximum heights and specific lot placements to ensure conformity with city codes and minimize visibility.
Alj Quote
Sundance Design Guidelines regarding “sheds” mandates: (a) a maximum height, including the roof pitch, of no more than eight (8) feet, … [and] (c) lot placement has to conform to City codes and have approval from the Design Committee “based on neighboring properties and visibility from the street,”
Legal Basis
Design Guidelines
Topic Tags
- Architectural Guidelines
- Restrictions
- Property Use
Question
What happens if I start construction without approval?
Short Answer
The HOA may issue violation notices, impose fines, and require the structure be returned to its original state.
Detailed Answer
The ALJ noted that the HOA acted within its rights to issue violation notices and fines when it discovered unapproved construction. They also warned the homeowner to return the property to its original state.
Alj Quote
If the work has been started or completed, you will have 30 days from the date of this letter to have the submitted items returned to the original state. Or fines will be imposed.
Legal Basis
A.R.S. § 33-1803
Topic Tags
- Violations
- Fines
- Enforcement
Case
- Docket No
- 21F-H2120012-REL
- Case Title
- Anthony & Karen Negrete v. Sundance Ranch Homeowners Association
- Decision Date
- 2020-12-13
- Alj Name
- Kay A. Abramsohn
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Do I need HOA approval to replace an old structure (like a shed) that was approved years ago?
Short Answer
Yes. Prior approval of an original structure does not automatically apply to a replacement, especially if the location or condition changes.
Detailed Answer
Even if a structure was approved in the past, building a replacement is considered a new improvement or alteration. The ALJ found that despite having a shed approved in 2005, the homeowners were required to seek approval for the new shed, particularly because the governing documents stated that no improvements or alterations could be made without prior written approval.
Alj Quote
All subsequent additions to or changes or alterations in any building, fence, wall or other structure … shall be subject to the prior written approval of the Design Review Committee.
Legal Basis
CC&Rs Article 4, Section 4.1(a)
Topic Tags
- Architectural Review
- Improvements
- Grandfathering
Question
Is the HOA required to hold a 'final design approval meeting' for backyard projects like sheds?
Short Answer
No. The legal requirement for a design approval meeting applies only to the main residential structure.
Detailed Answer
The ALJ clarified that A.R.S. § 33-1817(B)(2)(b), which mandates a design approval meeting, is specific to the new construction or rebuild of the 'main residential structure.' It does not apply to ancillary structures like sheds.
Alj Quote
The Administrative Law Judge concludes that A.R.S. § 33-1817(B)(2)(b) contains a mandate for a “design approval” meeting in the circumstance of construction of a “main residential structure.” That was not the circumstance in this case.
Legal Basis
A.R.S. § 33-1817(B)(2)(b)
Topic Tags
- Meetings
- Statutory Interpretation
- Homeowner Rights
Question
Can I move an approved structure to a different location on my lot without new approval?
Short Answer
No. Moving a structure is considered a change that must adhere to current guidelines and receive approval.
Detailed Answer
The HOA successfully argued that an approval from 2005 was for a specific location and condition. Moving the structure constitutes a change that requires adherence to current guidelines.
Alj Quote
Again, the shed that was approved in 2005 cannot move or change- it is not denied, it simply cannot be moved or change. Any changes must adhere to the guidelines and be approved.
Legal Basis
CC&Rs / Design Guidelines
Topic Tags
- modifications
- Architectural Review
- Compliance
Question
Who bears the burden of proof when a homeowner challenges an HOA in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the law.
Detailed Answer
In an administrative hearing, it is up to the homeowner to provide evidence that carries more weight than the evidence offered by the HOA to prove a violation occurred.
Alj Quote
In this proceeding, pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, Petitioners bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1803 and 33-1817(B)(2)(b).
Legal Basis
A.A.C. R2-19-119
Topic Tags
- Legal Procedure
- Burden of Proof
- Hearings
Question
Can the HOA restrict the height and placement of backyard sheds?
Short Answer
Yes. The HOA can enforce specific design guidelines regarding dimensions and location relative to neighbors and the street.
Detailed Answer
The ALJ upheld the validity of Design Guidelines that mandated maximum heights and specific lot placements to ensure conformity with city codes and minimize visibility.
Alj Quote
Sundance Design Guidelines regarding “sheds” mandates: (a) a maximum height, including the roof pitch, of no more than eight (8) feet, … [and] (c) lot placement has to conform to City codes and have approval from the Design Committee “based on neighboring properties and visibility from the street,”
Legal Basis
Design Guidelines
Topic Tags
- Architectural Guidelines
- Restrictions
- Property Use
Question
What happens if I start construction without approval?
Short Answer
The HOA may issue violation notices, impose fines, and require the structure be returned to its original state.
Detailed Answer
The ALJ noted that the HOA acted within its rights to issue violation notices and fines when it discovered unapproved construction. They also warned the homeowner to return the property to its original state.
Alj Quote
If the work has been started or completed, you will have 30 days from the date of this letter to have the submitted items returned to the original state. Or fines will be imposed.
Legal Basis
A.R.S. § 33-1803
Topic Tags
- Violations
- Fines
- Enforcement
Case
- Docket No
- 21F-H2120012-REL
- Case Title
- Anthony & Karen Negrete v. Sundance Ranch Homeowners Association
- Decision Date
- 2020-12-13
- Alj Name
- Kay A. Abramsohn
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Anthony Negrete (petitioner)
- Karen Negrete (petitioner)
Respondent Side
- Quinten Cupps (HOA attorney)
Sundance Ranch Homeowners Association
Neutral Parties
- Kay A. Abramsohn (ALJ)
OAH - Judy Lowe (Commissioner)
Arizona Department of Real Estate