Case Summary
| Case ID | 23F-H045-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-08-14 |
| Administrative Law Judge | Brian Del Vecchio |
| Outcome | none |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Harry G. Turner | Counsel | — |
|---|---|---|---|
| Respondent | Mountain Gate Home Owners Association, Inc. | Counsel | — |
Alleged Violations
Article 10 Section 4 of the CC&Rs
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.
Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.
Key Issues & Findings
Required membership vote for common area use change (Tract H drainage ditch)
Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.
Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. §§ 32-2102
- ARIZ. REV. STAT. §§ 32-2199 et seq.
- ARIZ. REV. STAT. § 33-1804
- 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.
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
- MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
- BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
- Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Analytics Highlights
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. §§ 32-2102
- ARIZ. REV. STAT. §§ 32-2199 et seq.
- ARIZ. REV. STAT. § 33-1804
- 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.
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
- MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
- BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
- Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Video Overview
Audio Overview
https://open.spotify.com/episode/1KAeIyRL8kVCBXnkJx4Gy7
Decision Documents
23F-H045-REL Decision – 1055488.pdf
23F-H045-REL Decision – 1057334.pdf
23F-H045-REL Decision – 1083773.pdf
Questions
Question
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
- legal standards
- procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
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
Preponderance of Evidence
Topic Tags
- evidence
- legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
- document interpretation
- common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
- jurisdiction
- regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
- common areas
- voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
- penalties
- remedies
Case
- Docket No
- 23F-H045-REL
- Case Title
- Harry G. Turner v Mountain Gate Home Owners Association, Inc.
- Decision Date
- 2023-08-14
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
- legal standards
- procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
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
Preponderance of Evidence
Topic Tags
- evidence
- legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
- document interpretation
- common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
- jurisdiction
- regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
- common areas
- voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
- penalties
- remedies
Case
- Docket No
- 23F-H045-REL
- Case Title
- Harry G. Turner v Mountain Gate Home Owners Association, Inc.
- Decision Date
- 2023-08-14
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Harry G. Turner (petitioner)
Appeared on his own behalf
Respondent Side
- Michael Luden (president/representative)
Mountain Gate Home Owners Association, Inc.
Appeared on behalf of Respondent. Identified as President of the Homeowners Association - Brenda Anderson (witness/secretary)
Mountain Gate Home Owners Association, Inc.
Witness for Respondent; Secretary of Mountain Gate Homeowners Association - Kelly Callahan (HOA attorney)
HOA's attorney who wrote an email regarding the drainage ditch proposal
Neutral Parties
- Brian Del Vecchio (ALJ)
OAH
Administrative Law Judge - Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Listed in transmission list - Jeremiah Lloyd (Community Development Director)
Pinetop Lakeside
Community Development Director for Pinetop Lakeside - Bill Best (County Engineer)
Navajo County
Navajo County Engineer - Emory Ellsworth (engineer)
Painted Sky Engineering and Surveying
Engineer consulted by Petitioner - John Murphy (engineer)
Murphy Engineering Group
Engineer whose company provided original certified plans
Other Participants
- AHansen (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list - vnunez (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list - djones (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list - labril (ADRE staff)
Arizona Department of Real Estate
Listed in transmission list - Ken Anderson (community member)
Mentioned as being present when a document was allegedly falsified - Gary Lao (developer)
Original developer
