Case Summary
| Case ID | 22F-H2221011-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-03-21 |
| Administrative Law Judge | Jenna Clark |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | John J Balaco | Counsel | — |
|---|---|---|---|
| Respondent | Sun City Oro Valley Community Association, Inc. | Counsel | Nicholas Nogami, Esq. & Sami Farhat, Esq. |
Alleged Violations
5th Amended Master Declaration Article 6.7
Outcome Summary
The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.
Why this result: Petitioner failed to meet the burden of proof; the argument was not ripe and predicated on actions that have yet to occur.
Key Issues & Findings
Change in Use of Common Area
Petitioner alleged that the Association violated Article 6.7 by modifying renovation plans for the Activity Center's coffee bar to include the sale of alcoholic beverages (cafe wine bar) without the requisite 60% membership vote, arguing this converted common area into a restricted commercial bar.
Orders: Petitioners' petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. ADMIN. CODE R2-19-119
- ARIZ. REV. STAT. § 32-2199.04
- ARIZ. REV. STAT. § 41-1092.09
- 5th Amended Master Declaration Article 6.7
Analytics Highlights
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. ADMIN. CODE R2-19-119
- ARIZ. REV. STAT. § 32-2199.04
- ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2221011-REL Decision – 935334.pdf
22F-H2221011-REL Decision – 956246.pdf
Questions
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden of proof
- legal standards
- procedure
Question
How much evidence is required to win a case against an HOA?
Short Answer
A preponderance of the evidence.
Detailed Answer
The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
Topic Tags
- evidence
- legal standards
Question
Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?
Short Answer
Generally, no. The dispute must be 'ripe' and not theoretical.
Detailed Answer
Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.
Alj Quote
The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.
Legal Basis
Ripeness Doctrine
Topic Tags
- ripeness
- future violations
- construction
Question
Can the Administrative Law Judge order an injunction to stop the HOA from doing something?
Short Answer
No, injunctive relief is unavailable in this administrative process.
Detailed Answer
The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.
Alj Quote
Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.
Legal Basis
Administrative Hearing Limits
Topic Tags
- injunctions
- remedies
- legal relief
Question
Does a renovation of a common area facility automatically count as a 'substantial change in use'?
Short Answer
Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.
Detailed Answer
Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.
Alj Quote
Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.
Legal Basis
Master Declaration Article 6.7 (cited in decision)
Topic Tags
- common areas
- renovations
- change of use
Question
Is the decision made by the Administrative Law Judge final and binding?
Short Answer
Yes, unless a rehearing is granted.
Detailed Answer
The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(B)
Topic Tags
- appeals
- binding order
- procedure
Case
- Docket No
- 22F-H2221011-REL
- Case Title
- John J Balaco vs. Sun City Oro Valley Community Association, Inc.
- Decision Date
- 2022-03-21
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden of proof
- legal standards
- procedure
Question
How much evidence is required to win a case against an HOA?
Short Answer
A preponderance of the evidence.
Detailed Answer
The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
Topic Tags
- evidence
- legal standards
Question
Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?
Short Answer
Generally, no. The dispute must be 'ripe' and not theoretical.
Detailed Answer
Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.
Alj Quote
The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.
Legal Basis
Ripeness Doctrine
Topic Tags
- ripeness
- future violations
- construction
Question
Can the Administrative Law Judge order an injunction to stop the HOA from doing something?
Short Answer
No, injunctive relief is unavailable in this administrative process.
Detailed Answer
The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.
Alj Quote
Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.
Legal Basis
Administrative Hearing Limits
Topic Tags
- injunctions
- remedies
- legal relief
Question
Does a renovation of a common area facility automatically count as a 'substantial change in use'?
Short Answer
Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.
Detailed Answer
Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.
Alj Quote
Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.
Legal Basis
Master Declaration Article 6.7 (cited in decision)
Topic Tags
- common areas
- renovations
- change of use
Question
Is the decision made by the Administrative Law Judge final and binding?
Short Answer
Yes, unless a rehearing is granted.
Detailed Answer
The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(B)
Topic Tags
- appeals
- binding order
- procedure
Case
- Docket No
- 22F-H2221011-REL
- Case Title
- John J Balaco vs. Sun City Oro Valley Community Association, Inc.
- Decision Date
- 2022-03-21
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- John J Balaco (petitioner)
- Diane Paton (witness)
- James Gearhart (helper / observer)
Assisted Petitioner with documents; observed hearing
Respondent Side
- Nicholas Nogami (attorney)
Carpenter Hazlewood Delgado & Bolen LLP
Counsel for Respondent - Sami Farhat (attorney)
Carpenter Hazlewood Delgado & Bolen LLP
Counsel for Respondent - Mark Wade (general manager / witness)
- Randall Jean Trenary (controller / witness)
Liquor license agent - James Henry Mitchell (witness)
Also referred to as Jim Mitchell or Randall James Mitchell
Neutral Parties
- Jenna Clark (ALJ)
OAH - Louis Dettorre (Commissioner)
Arizona Department of Real Estate - DGardner (ADRE staff)
Arizona Department of Real Estate
Contact for appeal procedure - c. serrano (OAH staff)
OAH
Transmitter of Minute Entry - Miranda Alvarez (OAH staff)
OAH
Transmitter of ALJ Decision
Other Participants
- Marla Balaco (observer)
- Janet Ambrosio (observer)
- Sheila Helmuth (observer)
- Sherokee Ilse (observer)
- Edward Zwerling (observer)
- Robin Coulter (observer)
- Rocky Gedrose (observer)
- Thelma LaFleur (observer)
- Tim Kelley (observer)
- Vicki McFadden (observer)
- Allan Mashburn (observer)
- Cathy Winje (observer)
- Chris Ludwig (observer)
- Dan Edward (observer)
- Dibri Ruiz (observer)
- Donna Harting (observer)
- Eric Meyers (observer)
- Anthony Denaro (observer)
- Melanie Stenson (observer)
- Bertha Medina (observer)
- Carol Johnson (observer)
- Rita Petterson (observer)
- David Sullivan (observer)
- Gary Lurch (observer)
- Janet Keller (observer)
- Joanne Keck (observer)
- Kaaren Brent (observer)
- Karen Roche (observer)
- Ken Sandrick (observer)
- Kristi Halverson (observer)
- Lindsay Welbers (observer)
- Marie Scarpulla (observer)
- Maxine Yunker (observer)
- Pamela Sarpalius (observer)
- Phyliss Austin (observer)
- Robert Watson (observer)
- Sandra Fischer (observer)
- Sharon Kennedy (observer)
- Vicki McFadin (observer)
- William Whitney (observer)
