Case Summary
| Case ID | 24F-H007-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-11-08 |
| Administrative Law Judge | Brian Del Vecchio |
| Outcome | The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable). |
| Filing Fees Refunded | $1,500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Virginia Guest | Counsel | — |
|---|---|---|---|
| Respondent | Bella Tierra Community Association | Counsel | Nicholas C. S. Nogami, Esq. |
Alleged Violations
CC&Rs § 5.1, ARIZ. REV. STAT. § 33-1803
Outcome Summary
The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable).
Why this result: Petitioner failed to prove violations of CC&Rs § 9.1.1 and CC&Rs § 9.15. Chickens are banned as birds/fowl under CC&Rs § 3.3, and the mediation clause only applies to disputes involving Declarant Parties, not general homeowner disputes.
Key Issues & Findings
Wrongfully charging costs of certified letters/appeal response as a balance forward
Petitioner alleged Respondent wrongfully forwarded the cost of sending certified letters (categorized as a 'balance forward') onto her account without authority in the CC&Rs, violating rules for imposing fines.
Orders: Respondent ordered to pay Petitioner $500.00 of her filing fee and remove the balance forward associated with certified letter costs from her assessment.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
- CC&Rs § 5.1
- ARIZ. REV. STAT. § 33-1803
Analytics Highlights
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 33-1803
- CC&Rs § 9.1.1
- CC&Rs § 3.3
- CC&Rs § 9.15
- CC&Rs § 5.1
Video Overview
Audio Overview
Decision Documents
24F-H007-REL Decision – 1095892.pdf
24F-H007-REL Decision – 1111192.pdf
24F-H007-REL Decision – 1095892.pdf
24F-H007-REL Decision – 1111192.pdf
This summary addresses the hearing proceedings, key arguments, and final decision in the matter of *Virginia Guest v. Bella Tierra Community Association* (No. 24F-H007-REL), held before Administrative Law Judge Brian Del Vecchio on October 19, 2023.
Key Facts and Main Issues
Virginia Guest (Petitioner), an owner in the Bella Tierra Community Association (Respondent), filed a petition alleging three main violations by the Homeowners Association (HOA):
- Enforcement Authority: Whether the HOA wrongfully issued violation notices for owning chickens, thereby violating CC&Rs § 9.1.1 (enforcement rights). This centered on CC&Rs § 3.3, which bans "animal, bird, fowl, poultry, reptile or livestock," except for a "reasonable number of dogs, cats, parakeets or similar household birds".
- Dispute Resolution: Whether the HOA violated CC&Rs § 9.15 by failing to engage in mediation regarding the dispute over animal use.
- Improper Fines/Fees: Whether the HOA violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803 by charging the Petitioner a "balance forward" (totaling $16.20 at the time of the hearing) to cover the cost of certified letters sent in response to her appeal.
Key Legal Arguments
Petitioner's Arguments:
Petitioner Guest argued that the chickens were permitted because they are domestic pets similar to parakeets and therefore qualify under the exception clause of CC&Rs § 3.3. She contended that the HOA was enforcing a rule that does not exist and acting arbitrarily, violating the enforcement provision (CC&Rs § 9.1.1). Guest insisted that mediation under CC&Rs § 9.15 was required because the Declarant Party (KB Home) still controls the HOA, making the dispute a claim regarding project use against the Declarant or its agents. Finally, she argued that the $16.20 charge for certified letters was an unauthorized fine, as CC&Rs § 5.1 only permits fines for document violations *after* notice and opportunity to be heard, not for administrative costs.
Respondent's Arguments:
The HOA (represented by Nicholas Nogami, Esq.) argued that chickens are plainly classified as "birds" and "fowl" and are thus explicitly banned by CC&Rs § 3.3. The HOA's authority to enforce its governing documents was deemed legitimate under CC&Rs § 9.1.1. Regarding mediation (CC&Rs § 9.15), the HOA asserted that the section only applies to disputes involving Declarant Parties (e.g., construction defects) and not standard homeowner enforcement claims, therefore mediation was not required. The HOA maintained that the $16.20 charge was a certified letter fee, not a fine, imposed to offset costs incurred for correspondence that state law required to be certified.
Final Decision and Outcome
The Administrative Law Judge (ALJ) issued a decision on November 8, 2023, denying the petition in part and granting it in part.
- Enforcement (Chickens): DENIED. The ALJ concluded that Petitioner failed to meet the burden of proof that the HOA violated CC&Rs § 9.1.1. The CC&Rs plainly ban birds and fowl. The ALJ ruled that chickens are both birds and fowl, and while the Petitioner subjectively believes they are pets similar to parakeets, the plain language objectively bans them. The HOA thus had the authority to issue violation notices.
- Mediation (Dispute Resolution): DENIED. The ALJ found that CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those related to construction defects or project conditions, and does not apply to homeowner disputes. Since the Petitioner is not a Declarant Party, mediation was not required.
- Improper Fees/Fines: GRANTED. The ALJ found that the HOA failed to establish that the CC&Rs empowered them to forward the cost of certified letters (the "balance forward") directly to the Petitioner prior to the completion of the hearing. The HOA violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803 by assessing this unauthorized charg
Questions
Question
Can my HOA ban chickens even if I consider them household pets?
Short Answer
Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.
Detailed Answer
The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.
Alj Quote
Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.
Legal Basis
CC&Rs § 3.3
Topic Tags
- animals
- chickens
- CC&Rs interpretation
- violations
Question
Can my HOA charge me for the cost of sending certified letters regarding a violation?
Short Answer
Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.
Detailed Answer
The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.
Alj Quote
Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803
Legal Basis
CC&Rs § 5.1; A.R.S. § 33-1803
Topic Tags
- fines
- fees
- administrative costs
- certified mail
Question
Is my HOA required to go to mediation before enforcing a rule violation?
Short Answer
It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.
Detailed Answer
The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.
Alj Quote
The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.
Legal Basis
CC&Rs § 9.15
Topic Tags
- mediation
- dispute resolution
- procedure
- declarant
Question
Who has the burden of proof when a homeowner challenges an HOA violation?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.
Detailed Answer
In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.
Legal Basis
Standard of Proof
Topic Tags
- legal standards
- burden of proof
- hearings
Question
If I win part of my case against the HOA, can I get my filing fees reimbursed?
Short Answer
The ALJ may order partial reimbursement of filing fees if the petition is granted in part.
Detailed Answer
In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.
Alj Quote
IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.
Legal Basis
ALJ Order
Topic Tags
- remedies
- filing fees
- penalties
Question
Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?
Short Answer
Likely not, if chickens are also defined as 'fowl' which are otherwise banned.
Detailed Answer
The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'
Alj Quote
Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.
Legal Basis
CC&Rs § 3.3
Topic Tags
- animals
- CC&Rs interpretation
- exceptions
Case
- Docket No
- 24F-H007-REL
- Case Title
- Virginia Guest v Bella Tierra Community Association
- Decision Date
- 2023-11-08
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can my HOA ban chickens even if I consider them household pets?
Short Answer
Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.
Detailed Answer
The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.
Alj Quote
Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.
Legal Basis
CC&Rs § 3.3
Topic Tags
- animals
- chickens
- CC&Rs interpretation
- violations
Question
Can my HOA charge me for the cost of sending certified letters regarding a violation?
Short Answer
Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.
Detailed Answer
The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.
Alj Quote
Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803
Legal Basis
CC&Rs § 5.1; A.R.S. § 33-1803
Topic Tags
- fines
- fees
- administrative costs
- certified mail
Question
Is my HOA required to go to mediation before enforcing a rule violation?
Short Answer
It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.
Detailed Answer
The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.
Alj Quote
The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.
Legal Basis
CC&Rs § 9.15
Topic Tags
- mediation
- dispute resolution
- procedure
- declarant
Question
Who has the burden of proof when a homeowner challenges an HOA violation?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.
Detailed Answer
In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.
Legal Basis
Standard of Proof
Topic Tags
- legal standards
- burden of proof
- hearings
Question
If I win part of my case against the HOA, can I get my filing fees reimbursed?
Short Answer
The ALJ may order partial reimbursement of filing fees if the petition is granted in part.
Detailed Answer
In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.
Alj Quote
IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.
Legal Basis
ALJ Order
Topic Tags
- remedies
- filing fees
- penalties
Question
Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?
Short Answer
Likely not, if chickens are also defined as 'fowl' which are otherwise banned.
Detailed Answer
The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'
Alj Quote
Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.
Legal Basis
CC&Rs § 3.3
Topic Tags
- animals
- CC&Rs interpretation
- exceptions
Case
- Docket No
- 24F-H007-REL
- Case Title
- Virginia Guest v Bella Tierra Community Association
- Decision Date
- 2023-11-08
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Virginia Guest (petitioner)
Appeared on her own behalf
Respondent Side
- Nicholas C. S. Nogami (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP - Marcus R. Martinez (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP - Jamie Petty (association manager / witness)
Platinum Management
Association manager for Bella Tierra Community Association; also referenced as Jamie Teddy/Miss Teddy - Sean Moynihan (HOA attorney)
Senology
General counsel for Respondent; referenced in Petitioner's claims; also referred to as John Moahan
Neutral Parties
- Brian Del Vecchio (ALJ)
OAH
Administrative Law Judge for the hearing and decision - Jenna Clark (ALJ)
OAH
Administrative Law Judge who issued the September 22, 2023 Order - Susan Nicolson (Commissioner)
Arizona Department of Real Estate - AHansen (ADRE staff)
Arizona Department of Real Estate
Email recipient of decisions/orders - vnunez (ADRE staff)
Arizona Department of Real Estate
Email recipient of decisions/orders - djones (ADRE staff)
Arizona Department of Real Estate
Email recipient of decisions/orders - labril (ADRE staff)
Arizona Department of Real Estate
Email recipient of decisions/orders