R.L. Whitmer v. Hilton Casitas Council of Homeowners (ROOT)

Posted on September 1, 2023 by [email protected]

Case Summary

Case ID	23F-H052-REL No. 23F-H064-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-28
Administrative Law Judge	Brian Del Vecchio
Outcome	The Administrative Law Judge affirmed the petition regarding the Bylaws violation (annual meeting held 27 days late, 23F-H052-REL) but denied the request for civil penalties. The ALJ dismissed the petition regarding the alleged statutory violation of in-person voting requirements (23F-H064-REL), finding Petitioner did not meet his burden of proof. Petitioner was reimbursed the $500 filing fee for the prevailing issue.
Filing Fees Refunded	$1,000.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	R.L. Whitmer	Counsel	—
Respondent	Hilton Casitas Council of Homeowners	Counsel	Emily H. Mann

Alleged Violations

Article III Section 3 of the Bylaws of Hilton Casitas Council of Co-owners
ARIZ. REV. STAT. § 33-1250(C)

Outcome Summary

The Administrative Law Judge affirmed the petition regarding the Bylaws violation (annual meeting held 27 days late, 23F-H052-REL) but denied the request for civil penalties. The ALJ dismissed the petition regarding the alleged statutory violation of in-person voting requirements (23F-H064-REL), finding Petitioner did not meet his burden of proof. Petitioner was reimbursed the $500 filing fee for the prevailing issue.

Why this result: Petitioner lost the statutory claim (23F-H064-REL) due to failure to provide sufficient evidence for a narrow interpretation of 'in person' voting. Petitioner failed to prove that civil penalties were warranted for the Bylaws violation (23F-H052-REL).

Key Issues & Findings

Failure to hold the annual meeting prior to March 31, 2023 (23F-H052-REL)

Petitioner alleged Respondent failed to hold the annual meeting by the Bylaws' deadline of March 31, 2023. Respondent stipulated that the meeting, held on April 27, 2023, was late, constituting a violation.

Orders: Respondent violated Article III Section 3 of the Bylaws; Petition affirmed. Petitioner was denied civil penalties but was reimbursed the $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 32-2199.02

Alleged violation for failing to allow in-person voting (23F-H064-REL)

Petitioner alleged Respondent violated the statute by allowing voting only through video conferencing and failing to provide an opportunity for in-person voting. The ALJ found Petitioner failed to provide sufficient evidence to support a narrow interpretation of 'in person' that excludes remote video attendance.

Orders: Respondent did not violate ARIZ. REV. STAT. § 33-1250(C). Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 33-1250(C)

Analytics Highlights

Topics: HOA Annual Meeting Deadline, Bylaws Violation, HOA Voting Procedure, In-Person Voting, Video Conferencing Voting, Civil Penalties, Mootness Defense, Waiver Defense

Additional Citations:

ARIZ. REV. STAT. § 33-1250(C)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09

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Decision Documents

23F-H052-REL Decision – 1071110.pdf

Uploaded 2026-04-24T12:09:14 (50.2 KB)

23F-H052-REL Decision – 1071477.pdf

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23F-H052-REL Decision – 1074907.pdf

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23F-H052-REL Decision – 1088736.pdf

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This summary outlines the proceedings, arguments, and final decision in the consolidated matters of R.L. Whitmer, Petitioner, v. Hilton Casitas Council of Homeowners, Respondent (Nos. 23F-H052-REL and 23F-H064-REL). The hearing took place at the Office of Administrative Hearings (OAH) on August 11, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The consolidated case involved two separate petitions filed by Petitioner R.L. Whitmer, an owner and member of the Association.

Late Annual Meeting (23F-H052-REL): Alleged the Association failed to hold the 2023 Annual Meeting by March 31st, violating Article III Section 3 of the Bylaws, as the meeting was held on April 27, 2023.
In-Person Voting (23F-H064-REL): Alleged the Association violated ARIZ. REV. STAT. § 33-1250(C) by holding the Annual Meeting via Zoom video conferencing and failing to provide members the opportunity to vote "in person".

Hearing Proceedings and Arguments

Respondent's (HOA) Arguments:

The Association stipulated to a technical violation regarding the late meeting (27 days late). The delay was attributed to a management company calendaring error and transition issues. The Respondent argued this issue was moot since the meeting had already occurred, and the OAH lacked jurisdiction to mandate the "impossible" (ordering the meeting to be held prior to March 31, 2023).

Regarding the voting issue, the Association acknowledged the meeting was held via Zoom but argued this was done for the convenience of out-of-town members and for fiscal responsibility, as in-person meetings required renting space. Crucially, the Association argued that the Petitioner waived his right to object to the voting procedure because he failed to lodge a complaint prior to the election, which is a requirement under established Arizona legal custom concerning procedural election challenges.

Petitioner's Arguments:

Petitioner argued that the OAH possesses statutory authority to issue an order requiring future compliance with the Bylaws (a forward-looking injunction) and to levy civil penalties. Petitioner presented testimony from Mr. Eli, a homeowner who stated he could not attend the Zoom-only meeting because he was not "tech-savvy" and was denied an in-person option, arguing this demonstrated the Association's discriminatory intent and warranted civil penalties.

Legal Points and Outcome

The ALJ issued a decision on August 28, 2023.

Issue 1 (Late Meeting): The ALJ affirmed the petition (23F-H052-REL), concluding that the Association did violate Article III Section 3 of the Bylaws based on the Respondent’s stipulation.

Issue 2 (In-Person Voting): The ALJ dismissed the petition (23F-H064-REL). The ALJ found that the Petitioner failed to meet the burden of proving that the specific interpretation of "in person" must exclude remote video attendance. The decision referenced the alternative interpretation of "in person" utilized during the COVID-19 pandemic, which allowed remote meetings in compliance with ARIZ. REV. STAT. § 33-1250(C).

Civil Penalties: The ALJ denied the Petitioner's request to levy a civil penalty against the Association, finding that the evidence did not give rise to the awarding of civil penalties.

Final Order:

The ALJ ordered that Petitioner’s petition in matter 23F-H064-REL be dismissed. The Petitioner’s petition in matter 23F-H052-REL was affirmed, and the Respondent was ordered to reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.

Questions

Question

If my HOA fails to hold the annual meeting by the specific deadline in the bylaws, is that considered a legal violation?

Short Answer

Yes. If the HOA misses the deadline mandated by the bylaws, it is a violation, even if the meeting is held later.

Detailed Answer

The ALJ ruled that missing the specific deadline set in the bylaws constitutes a violation. In this case, the bylaws required a meeting by March 31, but it was held on April 27. The HOA stipulated to the failure, and the ALJ affirmed the petition regarding this violation.

Alj Quote

Respondent stipulated it failed to adhere to Article III Section 3 of the Bylaws when it held the Annual Meeting on April 27, 2023, 27 days after the deadline. Thus, Petitioner met their burden in matter number 23F-H052-REL.

Legal Basis

Bylaws Article III Section 3

Topic Tags

annual meetings
bylaws compliance
deadlines

Question

Does a statutory requirement for 'in person' voting prevent the HOA from holding meetings via video conference?

Short Answer

Not necessarily. The term 'in person' does not strictly exclude remote attendance via technology like Zoom.

Detailed Answer

The ALJ determined that the phrase 'in person' is open to interpretation (e.g., social distancing protocols). Unless the homeowner provides sufficient evidence that 'in person' must strictly mean 'corporeal presence in a defined space,' holding a meeting via video conference does not violate the statute.

Alj Quote

While 'in person' could be interpreted as corporeal presence in a defined space, Petitioner failed to provide sufficient evidence said definition ought to be used, not the COVID-19 social distancing definition of 'in person,' or some other definition of the phrase 'in person.'

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)

Topic Tags

virtual meetings
voting rights
statutory interpretation

Question

Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the bylaws?

Short Answer

No. A violation does not automatically result in civil penalties; the evidence must justify such a penalty.

Detailed Answer

Even though the ALJ confirmed the HOA violated the bylaws by holding the meeting late, the request for a civil penalty was denied because the evidence presented did not warrant it (e.g., lack of bad faith).

Alj Quote

Because Petitioner met their burden they sought civil penalties, pursuant to ARIZ. REV. STAT. § 32-2199.02. Here, the evidence did not give rise to the awarding of civil penalties.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02

Topic Tags

civil penalties
fines
remedies

Question

If I win my case against the HOA, can I get reimbursed for the filing fees?

Short Answer

Yes. The ALJ can order the HOA to reimburse the filing fee for the specific issues where the homeowner prevailed.

Detailed Answer

The ALJ ordered the HOA to pay back the $500 filing fee to the homeowner for the petition regarding the late meeting (which he won), but dismissed the petition regarding the virtual meeting.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.

Legal Basis

Administrative Order

Topic Tags

fees
reimbursement
costs

Question

What standard of proof does a homeowner need to meet to prove the HOA violated the rules?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden is on the petitioner (homeowner) to show that their claim is 'more probably true than not.' This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence… '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

Evidentiary Standard

Topic Tags

burden of proof
legal standards
evidence

Question

Does the Office of Administrative Hearings have the power to interpret the HOA's contract (CC&Rs/Bylaws)?

Short Answer

Yes. The tribunal has the explicit authority to interpret the contract between the homeowner and the association.

Detailed Answer

The decision clarifies that the OAH is authorized by statute to hear these disputes and specifically has the authority to interpret the governing documents (contract) between the parties.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. § 41-1092 et seq.

Topic Tags

jurisdiction
contract interpretation
OAH authority

Case

Docket No: 23F-H052-REL / 23F-H064-REL
Case Title: R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date: 2023-08-28
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Questions

Question

If my HOA fails to hold the annual meeting by the specific deadline in the bylaws, is that considered a legal violation?

Short Answer

Yes. If the HOA misses the deadline mandated by the bylaws, it is a violation, even if the meeting is held later.

Detailed Answer

Alj Quote

Legal Basis

Bylaws Article III Section 3

Topic Tags

annual meetings
bylaws compliance
deadlines

Question

Does a statutory requirement for 'in person' voting prevent the HOA from holding meetings via video conference?

Short Answer

Not necessarily. The term 'in person' does not strictly exclude remote attendance via technology like Zoom.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)

Topic Tags

virtual meetings
voting rights
statutory interpretation

Question

Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the bylaws?

Short Answer

No. A violation does not automatically result in civil penalties; the evidence must justify such a penalty.

Detailed Answer

Alj Quote

Because Petitioner met their burden they sought civil penalties, pursuant to ARIZ. REV. STAT. § 32-2199.02. Here, the evidence did not give rise to the awarding of civil penalties.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02

Topic Tags

civil penalties
fines
remedies

Question

If I win my case against the HOA, can I get reimbursed for the filing fees?

Short Answer

Yes. The ALJ can order the HOA to reimburse the filing fee for the specific issues where the homeowner prevailed.

Detailed Answer

The ALJ ordered the HOA to pay back the $500 filing fee to the homeowner for the petition regarding the late meeting (which he won), but dismissed the petition regarding the virtual meeting.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.

Legal Basis

Administrative Order

Topic Tags

fees
reimbursement
costs

Question

What standard of proof does a homeowner need to meet to prove the HOA violated the rules?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden is on the petitioner (homeowner) to show that their claim is 'more probably true than not.' This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

Legal Basis

Evidentiary Standard

Topic Tags

burden of proof
legal standards
evidence

Question

Does the Office of Administrative Hearings have the power to interpret the HOA's contract (CC&Rs/Bylaws)?

Short Answer

Yes. The tribunal has the explicit authority to interpret the contract between the homeowner and the association.

Detailed Answer

The decision clarifies that the OAH is authorized by statute to hear these disputes and specifically has the authority to interpret the governing documents (contract) between the parties.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. § 41-1092 et seq.

Topic Tags

jurisdiction
contract interpretation
OAH authority

Case

Docket No: 23F-H052-REL / 23F-H064-REL
Case Title: R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date: 2023-08-28
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

R.L. Whitmer (petitioner)
Sedack Eli (witness/homeowner)
Also referred to as Sebeck Eli.

Respondent Side

Emily H. Mann (HOA attorney)
Phillips, Maceyko & Battock, PLLC
Robert Westbrook (HOA President/witness)
Liard (community manager)
Affidavit attached to exhibits; first name unknown.
John Brookke (board member)
Attended annual meeting.
Jay Panzer (board member)
Attended annual meeting.
Joanna O’Neal (board member)
Attended annual meeting.

Neutral Parties

Brian Del Vecchio (ALJ)
OAH
ALJ for final decision; also referred to as Joe Delveio.
Sondra J. Vanella (ALJ)
OAH
Issued orders on July 6, 2023.
Alyssa Leverette (ALJ)
OAH
Issued Minute Entry on July 18, 2023.
Susan Nicolson (Commissioner)
ADRE
A. Hansen (ADRE staff)
ADRE
Recipient of transmission.
V. Nunez (ADRE staff)
ADRE
Recipient of transmission.
D. Jones (ADRE staff)
ADRE
Recipient of transmission.
L. Abril (ADRE staff)
ADRE
Recipient of transmission.

Other Participants

Stadilla Stadilla (homeowner/attendee)
Attended annual meeting.
Mike Denson (homeowner/attendee)
Attended annual meeting.
Rick Walker (homeowner/attendee)
Attended annual meeting.
Mary Griffith (homeowner/attendee)
Attended annual meeting.

Rosalie Lynne Emmons v. Rovey Farm Estates Homeowners Association

Posted on August 22, 2023 by [email protected]

Case Summary

Case ID	23F-H055-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-22
Administrative Law Judge	Brian Del Vecchio
Outcome	The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Rosalie Lynne Emmons	Counsel	—
Respondent	Rovey Farm Estates Homeowners Association	Counsel	Michael S. McLeran

Alleged Violations

CC&Rs Article 2 §§ 3.2, 3.3, and 3.11

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.

Why this result: Petitioner failed to provide sufficient evidence of selective enforcement. She admitted her shed was built without prior approval, was taller than the fence line, and was visible from the street, all of which violated the CC&Rs. The evidence presented by the Respondent showed consistent enforcement actions regarding similar violations.

Key Issues & Findings

Alleged selective, arbitrary, and capricious enforcement of CC&Rs regarding shed construction and prior approval.

Petitioner alleged that the HOA selectively enforced its shed policy against her, claiming that her denial for a shed built without prior approval and exceeding the fence height should be excused because other, similar non-compliant sheds existed in the community and were not consistently cited.

Orders: Petitioner's petition was dismissed. Petitioner's request to levy a civil penalty against Respondent was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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.
CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
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)

Analytics Highlights

Topics: HOA Enforcement, Selective Enforcement, Shed, Design Guidelines, CC&Rs, Prior Approval

Additional Citations:

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.
CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
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)

Video Overview

Audio Overview

Decision Documents

23F-H055-REL Decision – 1062778.pdf

Uploaded 2026-04-24T12:09:55 (44.1 KB)

23F-H055-REL Decision – 1086088.pdf

Uploaded 2026-04-24T12:10:00 (110.9 KB)

23F-H055-REL Decision – 1062778.pdf

Uploaded 2026-01-23T17:57:44 (44.1 KB)

23F-H055-REL Decision – 1086088.pdf

Uploaded 2026-01-23T17:57:46 (110.9 KB)

This summary concerns the matter of *Rosalie Lynne Emmons vs. Rovey Farm Estates Homeowners Association*, Docket No. 23F-H055-REL, heard before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Background

The Petitioner, Rosalie Lynne Emmons, is a Rovey Farm Estates property owner subject to the community documents, including the Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. The key fact is that Petitioner built a storage shed in the fall of 2021 without first receiving written approval from the Design Review Committee. The Petitioner admitted the shed was constructed, submitted an application post-construction in December 2021/January 2022, and the application was denied on February 7, 2022. The denial was based on the shed exceeding the height of the surrounding fence line and violating the plain language of the design guidelines and local city code.

Main Issues and Arguments

The Petitioner alleged that the Association (Respondent) engaged in selective, arbitrary, and capricious enforcement of the CC&Rs (specifically §§3.2, 3.3, and 3.11) regarding the shed policy. Petitioner argued that the HOA had a pattern of failing to enforce restrictions in a timely, fair, and reasonable manner, citing evidence and photos of approximately 20 other visible sheds allegedly in violation. Petitioner also argued the HOA demonstrated a lack of diligence in enforcement (laches).

The Respondent argued that enforcement was uniform and consistent, noting that the Design Guidelines require prior approval for construction and mandate that sheds not exceed the height of the surrounding fences. The Respondent’s witness, Matt Johnson, testified that there was no discretion when a violation was observed, and that all three applications submitted by other homeowners for sheds exceeding the fence height were also denied. Furthermore, the CC&Rs include a non-waiver provision (§3.1) stating that approving one construction does not waive the right to withhold approval of subsequent similar projects. The Respondent requested dismissal as the Petitioner had failed to meet her burden of proof.

Legal Points and Outcome

The legal proceeding established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated the CC&Rs.

The ALJ determined that the Petitioner failed to meet her burden of proof. The Petitioner admitted that her shed was built without prior approval, was taller than the fence line, and visible from the street, all of which are violations of the CC&Rs. The Respondent provided evidence showing "a multitude of compliance letters, violations, fines, and approved and rejected shed applications associated with the enforcement".

Final Decision

The Administrative Law Judge concluded that the Respondent did not violate CC&Rs §§3.2, 3.3, and 3.11.

IT IS ORDERED that Petitioner’s petition in this matter be dismissed.

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.

Legal Basis

Burden of Proof

Topic Tags

selective enforcement
burden of proof
legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

architectural approval
unauthorized construction
violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

waiver
enforcement history
COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

architectural standards
sheds
visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.

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

Evidentiary Standard

Topic Tags

legal definitions
evidence
hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.

Alj Quote

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 as long as the petitioner has filed a petition with the department…

Legal Basis

A.R.S. § 32-2199

Topic Tags

jurisdiction
ADRE
dispute resolution

Case

Docket No: 23F-H055-REL
Case Title: Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date: 2023-08-22
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

Alj Quote

Legal Basis

Burden of Proof

Topic Tags

selective enforcement
burden of proof
legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

architectural approval
unauthorized construction
violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

waiver
enforcement history
COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

architectural standards
sheds
visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

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

Evidentiary Standard

Topic Tags

legal definitions
evidence
hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

Alj Quote

Legal Basis

A.R.S. § 32-2199

Topic Tags

jurisdiction
ADRE
dispute resolution

Case

Docket No: 23F-H055-REL
Case Title: Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date: 2023-08-22
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Rosalie Lynne Emmons (petitioner)
Rovey Farm Estates property owner; appeared on her own behalf

Respondent Side

Michael S. McLeran (HOA attorney)
Childers Hanlon & Hudson, PLC
Appeared on behalf of Rovey Farm Estates Homeowners Association
Matt Johnson (community manager/witness)
Envision Community Management
Community Manager for Rovey Farm Estate; Appeared as a witness for the Association
Mark Schmidt (HOA staff)
Envision Community Management
Completed exhibit list (Exhibit 7) used by Respondent
Carrie Schmidt (compliance officer)
Envision Community Management
Compliance inspector responsible for citing violations

Neutral Parties

Brian Del Vecchio (ALJ)
OAH
Administrative Law Judge
Susan Nicolson (Commissioner)
ADRE
Arizona Department of Real Estate Commissioner

Other Participants

AHansen (ADRE staff)
ADRE
Recipient of decision transmission
vnunez (ADRE staff)
ADRE
Recipient of decision transmission
djones (ADRE staff)
ADRE
Recipient of decision transmission
labril (ADRE staff)
ADRE
Recipient of decision transmission
Jose Garcia (homeowner/applicant)
Rovey Farm Estates Homeowner whose shed application was denied
Gilbert Bar (homeowner/applicant)
Rovey Farm Estates Homeowner whose shed application was denied
Jane Kim (homeowner/applicant)
Rovey Farm Estates Homeowner whose shed application (with MJ Kim) was denied
MJ Kim (homeowner/applicant)
Rovey Farm Estates Homeowner whose shed application (with Jane Kim) was denied

Harry G. Turner v. MountainGate Home Owners Association, Inc.

Posted on August 15, 2023 by [email protected]

Case Summary

Case ID	23F-H045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-14
Administrative Law Judge	Brian Del Vecchio
Outcome	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.
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

Cited:

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

Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map

Additional Citations:

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

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Decision Documents

23F-H045-REL Decision – 1055488.pdf

Uploaded 2026-01-23T17:56:36 (49.7 KB)

23F-H045-REL Decision – 1057334.pdf

Uploaded 2026-01-23T17:56:40 (43.7 KB)

23F-H045-REL Decision – 1083773.pdf

Uploaded 2026-01-23T17:56:42 (105.1 KB)

This summary addresses the Administrative Law Judge (ALJ) hearing in the matter of Harry G. Turner v. MountainGate Home Owners Association, Inc., Case No. 23F-H045-REL. The hearing was conducted by Administrative Law Judge Brian Del Vecchio on July 24, 2023.

Key Facts and Main Issue

The Petitioner, Harry G. Turner, a MountainGate Homes property owner and member of the Association, challenged the Respondent Home Owners Association's (HOA) plan, announced November 14, 2022, to dig a drainage ditch in Tract H of the subdivision. The core legal issue before the Office of Administrative Hearings (OAH) was whether the HOA violated Article 10 Section 4 of the CC&Rs (Declaration of Covenants, Conditions, Restrictions and Easements).

Article 10 Section 4 requires the Board to secure approval from not less than two-thirds (2/3rds) of the members voting if they adopt a resolution to change the use of a specified part of the Common Areas. The dispute centered on the established classification of Tract H: if Tract H was already designated for drainage, implementing the ditch would not be a change of use and would not require a vote; if it was designated solely as "open space," a vote would be required.

Key Arguments

Petitioner's Argument (Harry G. Turner):

The Petitioner argued that the Board violated the CC&Rs by moving forward with the ditch without a membership vote. Turner contended that Tract H was designated as "Preserved/Active Open Space" according to the "Tract Data" portion of the plat map and the Subdivision Disclosure Reports. He also presented evidence, including certified engineering reports, suggesting that the necessary drainage facilities were completed or certified as "as built" during the community's transition from condominiums to townhomes between 2006 and 2010. Turner shared a prior legal opinion recommending a membership vote due to the ambiguity surrounding whether the ditch constituted a "change of use". He asserted that the HOA was attempting new construction on common area designated as passive open space.

Respondent's Argument (MountainGate HOA, represented by Michael Luden and witness Brenda Anderson):

The Respondent denied violating the CC&Rs, arguing that no change protocols were needed because Tract H has always been dedicated for drainage. The HOA pointed to the "Conveyance and Dedication" portion of the plat maps (dating from 2006, 2008, and 2010), which explicitly listed Tract H as common area to be used for "open space, landscaping, and drainage". The HOA argued that the drainage plan approved by certified engineers was never fully implemented by the original developers, resulting in severe flooding experienced by neighbors along the northern edge of the property (Tract H). Therefore, the HOA was merely implementing an *original* intended use, not changing the use.

Final Decision and Legal Outcome

The ALJ determined that the Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated Article 10 Section 4 of the CC&Rs.

The ALJ found that Petitioner failed to meet this burden. The evidence showed a conflict in the governing documents: the plat map described Tract H as "Preserved/Active Open Space" in the "Tract Data" section, but designated it for "drainage" in the "Conveyance and Dedication" section. Since neither party presented sufficient evidence to establish which description controlled the legal designation of Tract H, the Petitioner could not definitively prove that Tract H was *not* classified as drainage.

The ALJ concluded that the Respondent did not violate Article 10 Section 4 of the CC&Rs. Petitioner’s petition was dismissed, and the request to levy a civil penalty against the Respondent was denied.

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

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

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

Alj Quote

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

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

Alj Quote

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

Brenda Norman v. Rancho Del Lago Community Association

Posted on August 11, 2023 by [email protected]

Case Summary

Case ID	23F-H046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-11
Administrative Law Judge	Jenna Clark
Outcome	The petition was dismissed with prejudice because Petitioner failed to meet her burden of proof that the HOA violated the community documents. The ALJ found that forcing enforcement of a discretionary restriction after decades of inaction would be unreasonable and that the matter was essentially a neighbor-to-neighbor dispute.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Brenda Norman	Counsel	—
Respondent	Rancho Del Lago Community Association	Counsel	Michael S. McLeran, Esq.

Alleged Violations

Appendix B, Section 5

Outcome Summary

The petition was dismissed with prejudice because Petitioner failed to meet her burden of proof that the HOA violated the community documents. The ALJ found that forcing enforcement of a discretionary restriction after decades of inaction would be unreasonable and that the matter was essentially a neighbor-to-neighbor dispute.

Why this result: Petitioner failed to establish a community document violation by a preponderance of the evidence; enforcement would be an unreasonable exercise of discretion due to long-standing inaction; and there was no legal avenue for the HOA to compel removal of the private property (trees).

Key Issues & Findings

Failure to enforce Prohibited Plant List (Oleanders and Palm Trees exceeding 10 feet)

Petitioner alleged the HOA violated Appendix B, Section 5 of the CC&Rs by failing to enforce the Prohibited Plant List and require her rear neighbors to remove oleander and palm trees that exceeded height guidelines and caused nuisance and damage.

Orders: Petitioner’s petition is dismissed with prejudice.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 32-2199.01(A)(1)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: homeowner dispute, prohibited plants, HOA discretion, failure to enforce, neighbor dispute, CC&Rs, oleander, palm trees

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.01(A)(1)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H046-REL Decision – 1049756.pdf

Uploaded 2026-04-24T12:08:18 (41.2 KB)

23F-H046-REL Decision – 1049882.pdf

Uploaded 2026-04-24T12:08:22 (47.2 KB)

23F-H046-REL Decision – 1055238.pdf

Uploaded 2026-04-24T12:08:26 (50.0 KB)

23F-H046-REL Decision – 1057283.pdf

Uploaded 2026-04-24T12:08:29 (50.3 KB)

23F-H046-REL Decision – 1058121.pdf

Uploaded 2026-04-24T12:08:33 (52.9 KB)

23F-H046-REL Decision – 1059849.pdf

Uploaded 2026-04-24T12:08:38 (52.5 KB)

23F-H046-REL Decision – 1072130.pdf

Uploaded 2026-04-24T12:08:41 (49.8 KB)

23F-H046-REL Decision – 1082955.pdf

Uploaded 2026-04-24T12:08:46 (155.5 KB)

23F-H046-REL Decision – 1049756.pdf

Uploaded 2026-01-23T17:56:49 (41.2 KB)

23F-H046-REL Decision – 1049882.pdf

Uploaded 2026-01-23T17:56:52 (47.2 KB)

23F-H046-REL Decision – 1055238.pdf

Uploaded 2026-01-23T17:56:55 (50.0 KB)

23F-H046-REL Decision – 1057283.pdf

Uploaded 2026-01-23T17:56:58 (50.3 KB)

23F-H046-REL Decision – 1058121.pdf

Uploaded 2026-01-23T17:57:01 (52.9 KB)

23F-H046-REL Decision – 1059849.pdf

Uploaded 2026-01-23T17:57:04 (52.5 KB)

23F-H046-REL Decision – 1072130.pdf

Uploaded 2026-01-23T17:57:08 (49.8 KB)

23F-H046-REL Decision – 1082955.pdf

Uploaded 2026-01-23T17:57:11 (155.5 KB)

This summary outlines the proceedings, arguments, and final decision in the administrative hearing *Brenda Norman vs. Rancho Del Lago Community Association* (No. 23F-H046-REL).

Key Facts and Procedural Background

The Petitioner, Brenda Norman, a member of the Rancho Del Lago Community Association (HOA), filed a petition alleging the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to enforce Appendix B, Section 5 (Prohibited Plant List), against her rear neighbors. The dispute centered on the Neighbors’ oleander and palm trees, which Petitioner claimed caused nuisance—specifically debris clogging her pool equipment and triggering her allergies/asthma.

The initial hearing scheduled for May 9, 2023, was dismissed by default when the Petitioner failed to appear. Upon Petitioner’s subsequent Motion for Reconsideration, which was granted over Respondent's objection, the matter was reset for a rehearing on July 31, 2023. The Administrative Law Judge (ALJ) denied the HOA's subsequent Motion to Dismiss, determining the sole issue for hearing was the alleged CC&R violation and the appropriateness of a civil penalty.

Main Issues and Arguments

The sole issue for the hearing was whether the Rancho Del Lago Community Association violated Appendix B, paragraph 5, of its CC&Rs by failing to enforce the restriction on certain plants whose mature growth height is reasonably expected to exceed ten feet for aesthetic reasons.

Petitioner's Argument: Petitioner argued that the Neighbors’ oleanders and palm trees violated the Prohibited Plant List because of their expected height and the resulting nuisance. She asserted the HOA had a contractual duty to enforce the CC&Rs and should be compelled to require the Neighbors to remove the plants.

Respondent's Argument: The HOA, represented by Counsel Michael McLeran and witness Spencer Broad (Community Manager), argued that the dispute was primarily a non-justiciable neighbor dispute, lacking jurisdiction before the Department. The HOA noted it did not own or maintain the trees, which are on private property. Crucially, the HOA argued that enforcing the height restriction (which had never been enforced since 2009) only against the Neighbors would be an unreasonable and discriminatory exercise of discretionary power. Furthermore, enforcing the restriction against this one member would unjustly impact hundreds of other members with trees over ten feet. The HOA also pointed out that the Neighbors had voluntarily trimmed the plants.

Key Legal Points and Outcome

The ALJ found that Petitioner failed to meet her burden of proving a community document violation by a preponderance of the evidence.

The decision focused on several key legal conclusions:

Discretionary Enforcement: The Design Guidelines at issue were determined to be discretionary. The HOA was not required to enforce a height restriction in this instance.
Unreasonable Authority/Due Process: Enforcement in the face of "decades of intentional inaction" would constitute an unreasonable exercise of authority and likely result in a deprivation of the Neighbors' due process rights.
Jurisdiction and Remedy: The ALJ noted that the Department does not have jurisdiction over disputes solely between owners. Regardless, there was no legal avenue by which the HOA could legally remove private property oleanders and palm trees or compel their removal.
Mootness: Petitioner’s acknowledgment that the Neighbors' voluntary trimming had, at least temporarily, alleviated the debris issues rendered the underlying petition moot.

Final Decision

Based on the findings and conclusions, the ALJ issued an Order on August 11, 2023, dismissing Petitioner's petition with prejudice.

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

The ALJ found that there was no legal way for the HOA to remove trees or shrubs from a neighbor's private backyard, nor compel them to be removed, particularly when the HOA does not own or maintain that specific property.

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

enforcement
landscaping
private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

If an HOA has ignored a specific restriction (like a height limit on plants) for decades, enforcing it suddenly against a single homeowner can be seen as an unreasonable exercise of authority and a violation of due process.

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

selective enforcement
waiver
due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

jurisdiction
neighbor disputes
ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

mediation
neighbor disputes
HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Even if a neighbor's landscaping causes inconvenience or subjective hardship to another homeowner, the HOA is not required to enforce discretionary guidelines, especially if they have historically not done so.

Alj Quote

It is clear that plant debris from Neighbors’ backyard is causing Petitioner subjective hardship(s) and inconveniences, which amount to a perceived nuisance… [however] Respondent is not required to enforce a flora/height restriction in this instance.

Legal Basis

Discretionary Enforcement

Topic Tags

nuisance
maintenance
discretion

Case

Docket No: 23F-H046-REL
Case Title: Brenda Norman vs. Rancho Del Lago Community Association
Decision Date: 2023-08-11
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

enforcement
landscaping
private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

selective enforcement
waiver
due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

jurisdiction
neighbor disputes
ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

mediation
neighbor disputes
HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Alj Quote

Legal Basis

Discretionary Enforcement

Topic Tags

nuisance
maintenance
discretion

Case

Docket No: 23F-H046-REL
Case Title: Brenda Norman vs. Rancho Del Lago Community Association
Decision Date: 2023-08-11
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Brenda Norman (petitioner)
Appeared on her own behalf
Zvena Norman (potential witness)
On standby as a potential witness for Petitioner
David Norman (associated party)
Petitioner's husband; co-petitioner in prior litigation referenced during the hearing

Respondent Side

Michael S. McLeran (HOA attorney)
Childers Hanlon 7 Hudson, PLC
Counsel for Rancho Del Lago Community Association
Spencer Broad (witness, property manager)
HA managed solutions
Community Manager for Rancho Del Lago Community Association; also spelled Brod
Phil Brown (HOA attorney)
Attorney referenced by Petitioner regarding a 2018 letter
Eric (compliance manager)
HOA management solutions
Compliance Manager since 2009; full last name withheld from the record

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Administrative Law Judge presiding over the matter
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Judge Mahalski (ALJ (prior case))
Office of Administrative Hearings
Administrative Law Judge in 2019 litigation referenced during the hearing

Other Participants

Cindy White (neighbor)
Owner of the plants subject to the dispute
Ray White (neighbor)
Owner of the plants subject to the dispute
Nathan Tennyson (former HOA attorney)
Former in-house counsel referenced by Petitioner

Jennifer J Sullivan v. The Village at Elk Run Homeowners Association,

Posted on August 8, 2023 by [email protected]

Case Summary

Case ID	23F-H043-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-08
Administrative Law Judge	Adam D. Stone
Outcome	The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jennifer J Sullivan	Counsel	—
Respondent	The Village at Elk Run Homeowners Association, Inc.	Counsel	Michael S. McLeran

Alleged Violations

Article 4, Section 4.1 of the Community’s CC&Rs; ARIZ. REV. STAT. § 33-1804(D)

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.

Why this result: The tribunal determined the Petitioner failed to meet her burden, as her short-term rental operation constituted a prohibited nonresidential use/business under Section 4.1 of the CC&Rs, which only permits leasing for Month to Month or Longer Terms.

Key Issues & Findings

Challenging HOA Violation Notice for Short-Term Rental Restriction

Petitioner challenged the Courtesy Violation Notice issued by the HOA for operating a short-term rental (Airbnb) with a minimum rental period less than month-to-month, arguing the CC&Rs did not explicitly prohibit such rentals. The HOA maintained that Section 4.1 prohibited nonresidential use, unless leased for month-to-month or longer terms, thereby prohibiting short-term rentals/business use.

Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
PAL versus Washburn 211 Arizona 553 2006
Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Analytics Highlights

Topics: HOA governance, short-term rental, CC&R interpretation, business use, 30-day minimum

Additional Citations:

ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
PAL versus Washburn 211 Arizona 553 2006
Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Video Overview

Audio Overview

Decision Documents

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-04-24T12:07:40 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-04-24T12:07:50 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-04-24T12:08:00 (117.7 KB)

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-01-23T17:56:20 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-01-23T17:56:23 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-01-23T17:56:27 (117.7 KB)

Case Summary: Jennifer J. Sullivan vs. The Village at Elk Run Homeowners Association, Inc.

This matter (No. 23F-H043-REL) was a contested case before the Office of Administrative Hearings (OAH), heard on July 24, 2023, by Administrative Law Judge (ALJ) Adam D. Stone. Petitioner Jennifer J. Sullivan, a homeowner in The Village at Elk Run Homeowners Association, Inc. (Respondent), challenged a violation notice she received for operating a short-term rental (Airbnb).

Key Facts and Background

Petitioner Sullivan had owned her townhome since 2006 and began renting it on a short-term basis (minimum 3 days) through Airbnb in September 2021. She testified that she had registered for a Transaction Privilege Tax number and was pursuing a license under new city rules, acknowledging that the rental was a business. The Association issued a Courtesy Violation Notice on November 22, 2022, citing a violation of Article 4, Section 4.1 of the community's Covenants, Conditions, and Restrictions (CC&Rs) due to the short-term rental operation.

Main Issues and Arguments

The core legal issue centered on the interpretation of CC&R Section 4.1, titled "Residential Use":

> "All Lots shall be used, improved and devoted exclusively to Single family Residential Use. No gainful occupation, profession, trade or other nonresidential use shall be conducted on any Lot. This Section shall not preclude the Residential Leasing or Renting of a Lot for Month to Month or Longer Terms".

Petitioner's Argument: Sullivan contended that the CC&Rs do not contain an explicit minimum rental period, and therefore, rentals shorter than 30 days are permissible. She argued that Arizona law (ARS 33-1806.01) requires HOAs to list a minimum rental period if they intend to restrict short-term leasing, which the Elk Run CC&Rs failed to do. She asserted that renting a home is considered a residential use.

Respondent's Argument: The Association, represented by Michael McLeran, argued that Section 4.1 must be read in its entirety to uphold the community's character. They asserted that operating a short-term rental for profit (as evidenced by Petitioner's tax licensing) constitutes a "gainful occupation, profession, trade or other nonresidential use," which is prohibited. The final sentence of Section 4.1 allowing "Month to Month or Longer Terms" clarifies the *only* exception where renting for profit is permitted, thereby implicitly prohibiting shorter-term rentals. Testimony from the original CC&R signatory, John Vail, supported the intent for a minimum 30-day rental period.

Outcome and Legal Decision

The ALJ issued a Decision on August 8, 2023, denying the Petitioner's petition.

The ALJ found that Petitioner Sullivan failed to meet her burden of proving that the Association violated relevant statutes or documents. The tribunal concluded that Sullivan was "clearly running a business out of the home".

The ALJ adopted the Respondent's interpretation of Section 4.1: nonresidential use (i.e., operating a rental business for gainful occupation) is *only* permitted if the lots are rented or leased for month to month or longer terms. Thus, the ALJ ruled that, as currently written, any renting or leasing shorter than a month was prohibited.

The Petitioner's request for reimbursement of her $500 filing fee was also denied.

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

short-term rentals
CC&R interpretation
Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

business use
taxes
commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

CC&R interpretation
implicit restrictions
rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

burden of proof
legal procedure
evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

fees
penalties
costs

Case

Docket No: 23F-H043-REL
Case Title: Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date: 2023-08-08
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Alj Quote

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

short-term rentals
CC&R interpretation
Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

business use
taxes
commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

CC&R interpretation
implicit restrictions
rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

burden of proof
legal procedure
evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

fees
penalties
costs

Case

Docket No: 23F-H043-REL
Case Title: Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date: 2023-08-08
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Jennifer J Sullivan (petitioner)
Appeared on her own behalf
David Sheffield (petitioner attorney)
Provided legal opinion to Petitioner in 2020

Respondent Side

Michael S. McLeran (HOA attorney)
Childers Hanlon & Hudson, PLC
Represented Respondent
Teresa Bale (board member)
The Village at Elk Run Homeowners Association, Inc.
Board President; Witness for Respondent
John R. Bale (developer/witness)
The Village at Elk Run Homeowners Association, Inc.
Original developer who drafted/signed CC&Rs; Witness for Respondent
Jason Miller (attorney)
Provided opinion letter regarding CC&Rs to the Board
Beth Moly (attorney)
Issued formal opinion letter regarding Section 4.1
Melanie Lashley (property manager)
Homeco Rent
Contacted by Petitioner regarding rental rules
Betsy Snow (board member)
The Village at Elk Run Homeowners Association, Inc.
Won board election against Petitioner

Neutral Parties

Adam D. Stone (ALJ)
Office of Administrative Hearings
Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Recipient of decision transmission
AHansen (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission
vnunez (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission
djones (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission
labril (ADRE Staff)
Arizona Department of Real Estate
Recipient of decision transmission

Richard K. Morris v. The Townes at Paradise Valley Landings

Posted on August 7, 2023 by [email protected]

Case Summary

Case ID	23F-H056-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-07
Administrative Law Judge	Brian Del Vecchio
Outcome	The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Richard K. Morris	Counsel	—
Respondent	The Townes at Paradise Valley Landings	Counsel	—

Alleged Violations

Section 9.2 of the CC&Rs

Outcome Summary

The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.

Key Issues & Findings

Respondent required permanent removal of pre-approved security light in violation of CC&Rs Section 9.2.

Petitioner had Architectural Review Committee (ARC) approval from 2010 to install a security light on the shed fascia (a common area). Respondent HOA later required its removal, arguing their fiduciary duty and a new roofing warranty (2023) voided the prior approval. The ALJ found the HOA failed to perform due diligence regarding the pre-existing ARC approval before contracting the new work and violated CC&Rs Section 9.2, which allows rebuilding in accordance with previously approved plans.

Orders: Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs and reimburse Petitioner's filing fee of $500.00. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 32-2199.02(A)
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. § 33-1804
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: ARC Approval, CC&R Violation, Fiduciary Duty, Homeowner Victory, Warranty Voidance

Additional Citations:

ARIZ. REV. STAT. § 32-2199.02(A)
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. § 33-1804
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H056-REL Decision – 1073539.pdf

Uploaded 2026-04-24T12:10:08 (51.9 KB)

23F-H056-REL Decision – 1080973.pdf

Uploaded 2026-04-24T12:10:16 (110.3 KB)

23F-H056-REL Decision – 1073539.pdf

Uploaded 2026-01-23T17:57:57 (51.9 KB)

23F-H056-REL Decision – 1080973.pdf

Uploaded 2026-01-23T17:58:02 (110.3 KB)

This is a summary of the Administrative Law Judge (ALJ) decision following a contested case hearing regarding a homeowners' association dispute.

Case Summary: Richard K. Morris v. The Townes at Paradise Valley Landings

Key Facts and Background

The Petitioner, Richard K. Morris, is a townhome owner and member of The Townes at Paradise Valley Landings Association (Respondent). The dispute centers on a security light that Petitioner installed on the shed fascia of his property.

Prior Approval: On June 25, 2010, Petitioner received Architectural Review Committee (ARC) approval to install the motion-sensing security light on the shed fascia board. This approval was granted without any stated conditions or restrictions. The light remained installed for approximately 12 years.
Removal and Violation: In February 2023, the Respondent contracted a roofer to remove and replace fascia and shed roofs, warranting the work for five years. In April 2023, Respondent notified all homeowners to remove items, including security lights, from the fascia. Petitioner complied and removed the light. The Respondent later attempted to fine the Petitioner for the light, although those fines were eventually reversed.
Core Legal Provision: The petition alleged a violation of Section 9.2 of the Association’s CC&Rs (covenants, conditions, and restrictions). Section 9.2 states that "No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee".

Main Issues and Arguments

The core legal issue was whether the Association was required to permanently remove the pre-approved security light, violating Section 9.2 of the CC&Rs.

Petitioner's Argument (Estoppel/Prior Approval): Petitioner argued the case rested on the principle of estoppel, asserting that the Association granted approval (an exception or easement) that Petitioner relied upon by incurring the expense of installation. Since the 2010 approval was granted without a sunset provision, the Association could not unilaterally renege on it.
Respondent's Argument (Fiduciary Duty/Warranty): Respondent argued the Board had a fiduciary duty to all homeowners to maintain common elements and protect their financial investment. Respondent asserted that circumstances had changed since 2010, and installing the light would compromise the overall integrity of the new lumber and, critically, void the 5-year warranty provided by the roofing contractor.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) found that Petitioner met his burden of proving by a preponderance of the evidence that the Respondent violated the CC&Rs.

Due Diligence Failure: The ALJ noted that the ARC approval granted Petitioner an exception to the CC&R restriction against alterations of common areas. Crucially, the Respondent admitted that no due diligence was performed regarding the existence of prior ARC approvals which might conflict with the roof work *before* the contract was signed.
Fiduciary Duty Limitation: While acknowledging the Respondent's fiduciary duty to protect investments, the ALJ concluded that this duty "does not entitle Respondent to fail to do their due diligence and disavow prior agreements".
Final Decision: The ALJ determined that the Respondent's actions constituted a violation of Section 9.2 of the CC&Rs.

Order

The Petitioner’s petition was affirmed.

Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs.
Petitioner’s request to levy a civil penalty was denied.
Respondent shall reimburse Petitioner’s filing fee of $500.00.

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

architectural approval
fiduciary duty
maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

architectural approval
repairs
CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

burden of proof
legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

fees
reimbursement
penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

civil penalty
fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

warranties
contractor
due diligence

Case

Docket No: 23F-H056-REL
Case Title: Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date: 2023-08-07
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

Alj Quote

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

architectural approval
fiduciary duty
maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

architectural approval
repairs
CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

burden of proof
legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

fees
reimbursement
penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

civil penalty
fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

Alj Quote

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

warranties
contractor
due diligence

Case

Docket No: 23F-H056-REL
Case Title: Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date: 2023-08-07
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Richard K. Morris (petitioner)
The Townes at Paradise Valley Landings
Appeared on his own behalf

Respondent Side

Joelle Lever (board member)
The Townes at Paradise Valley Landings
Represented the Respondent and provided testimony
Chelsea Hearn (board member)
The Townes at Paradise Valley Landings
Homeowner who complained about the light
alice.riesterer (management staff)
The Management Trust Arizona

Neutral Parties

Brian Del Vecchio (ALJ)
OAH
Administrative Law Judge who signed the Order and Decision
Judge Svio (hearing officer)
OAH
Administrative Law Judge who opened the hearing
Susan Nicolson (commissioner)
Arizona Department of Real Estate

Other Participants

Deborah L (ARC member)
Association
Association representative who approved Petitioner's request in 2010
AHansen (ADRE staff)
ADRE
Recipient of transmission
vnunez (ADRE staff)
ADRE
Recipient of transmission
djones (ADRE staff)
ADRE
Recipient of transmission
labril (ADRE staff)
ADRE
Recipient of transmission

Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on August 7, 2023 by [email protected]

Case Summary

Case ID	23F-H060-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-07
Administrative Law Judge	Jenna Clark
Outcome	The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Ryan McMahon	Counsel	—
Respondent	Alhambra Terrace Condominium Association	Counsel	Mike Yohler

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.

Why this result: Petitioner failed to fully satisfy sub-requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter, as the documentation provided (specifically from the plumbing company and designer) lacked the necessary professional weight or specificity required by the Association to address structural and plumbing concerns.

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

Petitioner alleged the Association violated ARS § 33-1221 by denying his request to combine two units and add two bathrooms, claiming the denial was unsupported by facts or governing documents. The ALJ found Petitioner failed to prove the violation.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1221
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
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

Analytics Highlights

Topics: condominium modification, HOA denial, structural integrity, plumbing concerns, burden of proof, architectural approval

Additional Citations:

ARIZ. REV. STAT. § 33-1221
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
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. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

Uploaded 2026-01-23T17:59:25 (189.0 KB)

This is a summary of the administrative hearing held on July 19, 2023, regarding Petitioner Ryan McMahon's claim against the Alhamra Terrace Condominium Association (OAD doc number 23 FH060 REL). Administrative Law Judge (ALJ) Jenna Clark presided.

Key Facts

Petitioner Ryan McMahon, who owns Unit B8, and his fiancée, who owns the adjacent Unit B4 below him, sought permission from the Association to combine the two units (B8 and B4) and add two new bathrooms. The Association, governed by its CC&Rs, issued a series of denials based on concerns regarding the structural integrity and the piping system of the condominium.

In June 2022, the Association issued a conditional approval that required Petitioner to provide specific documentation, including an engineer's sign-off on community plumbing concerns, detailing the proper size and condition of the main sewer line, and ensuring the pipes could accommodate up to six bathrooms, four kitchens, and four laundry units. The conditions also required submission of detailed plans for sewer pipe venting and exhaust fans.

Petitioner subsequently submitted documentation, including letters from a licensed structural engineer (Robert A. Young, PE) confirming no structural reason for denial, and correspondence from a plumbing company (Paradise Valley Plumbing Company, Inc.) providing calculations and stating the project would not negatively impact the plumbing or drainage capacity. The City of Scottsdale had reviewed the plans for code conformity but required HOA approval before issuing permits.

The Association, represented by witness Kit Groseth (Board President), denied the request multiple times, asserting the documents submitted were "vague, incomplete, and unreliable". The Association argued that the Petitioner failed to provide information specifically requested by the preliminary approval letter, particularly documentation from a registered plumbing engineer addressing the detailed capacity concerns. The Association admitted it did not hire its own engineer due to the anticipated high cost (estimated $5,000–$10,000).

Main Issues and Legal Points

The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1221 by denying the interior modification request. This statute permits unit owners to make alterations that *do not impair the structural integrity or mechanical systems* of the condominium.

The critical legal point focused on Petitioner's burden of proof. The ALJ was tasked with determining if Petitioner provided a preponderance of the evidence proving the Association acted illegally by denying the request.

The Association argued that while Petitioner provided some engineering support, he did not meet the specific itemized requirements of the conditional approval, particularly regarding specific plumbing engineering reports.

Outcome and Final Decision

The Administrative Law Judge concluded that Petitioner did not sustain his burden of proof.

The ALJ found that Petitioner failed to fully comply with itemized requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter. Specifically, the plumbing company providing calculations was not a licensed structural engineering firm, limiting the weight of its attestation. Furthermore, the structural engineer’s reports (Mr. Young) were not offered for consideration regarding the pipes, fans, and vents, as required by the conditional approval.

Based on these findings, the ALJ issued an ORDER that Petitioner's petition be denied. This decision is binding unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate.

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

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

Common Law / Legal Standard

Topic Tags

legal standards
evidence
definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

homeowner rights
renovations
condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

jurisdiction
CC&Rs
contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

renovations
architectural committee
expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

exterior changes
architectural control
common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

renovations
compliance
engineering reports

Case

Docket No: 23F-H060-REL
Case Title: Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date: 2023-08-07
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

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

Common Law / Legal Standard

Topic Tags

legal standards
evidence
definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

homeowner rights
renovations
condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

jurisdiction
CC&Rs
contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

renovations
architectural committee
expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

exterior changes
architectural control
common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Alj Quote

Legal Basis

Evidence sufficiency

Topic Tags

renovations
compliance
engineering reports

Case

Docket No: 23F-H060-REL
Case Title: Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date: 2023-08-07
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Ryan McMahon (petitioner)
Full name: Ryan Christopher McMahon
Christina Samaras (witness)
Petitioner's fiance and observer. Also referred to as Christina Cincer.
Robert A. Young (engineer/consultant)
Structural Engineer (PE) providing documentation for Petitioner
Scott Olsson (plumber/consultant)
Paradise Valley Plumbing Company, Inc.
Licensed plumber/Qualifying Party providing statements for Petitioner
Gary Devol (designer/consultant)
Designs by Devol LLC
Designer who created the modification plans

Respondent Side

Mike Yohler (attorney)
Farmers Insurance
Counsel of record for Respondent
Kent William Groseth (board member)
Alhamra Terrace Condominium Association
Board President and witness
Emma (property manager representative)
AMCOR Property Professionals, Inc.
Exchanged correspondence with Petitioner regarding denial
Mia (board member)
Alhamra Terrace Condominium Association
HOA president at the time of initial request
Jim Nelson (board member)
Alhamra Terrace Condominium Association
Co-vice president
Robin (property manager representative)
AMCOR Property Professionals, Inc.
Vice President involved in email correspondence
Miss Morgan (attorney)
Previous counsel replaced by Mike Yohler

Neutral Parties

Jenna Clark (ALJ)
OAH
Administrative Law Judge
Susan Nicolson (Commissioner)
ADRE
Commissioner of the Arizona Department of Real Estate

Wanda Swartling v. Val Vista Park Townhome Association of Mesa

Posted on August 1, 2023 by [email protected]

Case Summary

Case ID	23F-H057-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-08-01
Administrative Law Judge	Brian Del Vecchio
Outcome	The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Wanda Swartling	Counsel	—
Respondent	Val Vista Park Townhome Association of Mesa	Counsel	Chad Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.

Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.

Key Issues & Findings

Failure to hold open board meeting prior to special assessment meeting

Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.

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: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting

Additional Citations:

ARIZ. REV. STAT. § 33-1804
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.
Tierra Ranchos Homeowners Ass'n v. Kitchukov
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Decision Documents

23F-H057-REL Decision – 1071114.pdf

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23F-H057-REL Decision – 1071115.pdf

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23F-H057-REL Decision – 1071120.pdf

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23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

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23F-H057-REL Decision – 1071114.pdf

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23F-H057-REL Decision – 1071115.pdf

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23F-H057-REL Decision – 1071121.pdf

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23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071126.pdf

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23F-H057-REL Decision – 1071127.pdf

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23F-H057-REL Decision – 1079574.pdf

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This summary concerns the legal case *Wanda Swartling v. Val Vista Park Townhome Association of Mesa*, Docket No. 23F-H057-REL. The evidentiary hearing took place on July 10, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The Petitioner, Wanda Swartling (a property owner and Association member), filed a single-issue petition on or about April 10, 2023. The core allegation was that the Val Vista Park Townhome Association of Mesa (Respondent) violated ARIZ. REV. STAT. § 33-1804 (the open meeting law for planned communities).

The Petitioner contended that the Board of Directors:

Sent a February 7, 2023, email to homeowners informing them of the intent to hold a special meeting and proposing funding options without first holding an open board meeting.
Held a March 2, 2023, special meeting to vote on a special assessment without having held an open board meeting prior to determining the items to be voted upon.

Petitioner argued that the board unilaterally determined which special assessments would be voted on through "closed door board meetings," thereby denying members the opportunity to be present for the decision-making processes. The March 2, 2023, special assessment vote ultimately failed to pass.

Hearing Proceedings and Key Arguments

Respondent (represented by Chad Gallacher, with community manager Steve Cheff testifying) denied the claims. Respondent argued that the claims were factually incorrect and legally insufficient.

Respondent's Legal Defense:

There is no legal requirement in ARS § 33-1804 stipulating that an open board meeting must be held before an email is sent to the community or prior to calling a special meeting of the members.
The authority to call a special meeting rests with the Board President, as per the association's bylaws (Section 2.2).
The issues had been previously discussed: Evidence submitted included meeting minutes showing discussions of capital projects, including painting, roofs, and special assessments, dating back to an Architectural Committee meeting on August 18, 2022, and a subsequent Board meeting on October 11, 2022.

Petitioner’s Burden and ALJ Rulings:

The ALJ emphasized that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated ARS § 33-1804. The ALJ strictly limited the scope of the hearing to the specific violations alleged in the complaint (the process surrounding the February 7th email and March 2nd meeting). Attempts by the Petitioner to introduce evidence demonstrating a *pattern* of closed meetings or to challenge procedural changes related to a prior annual meeting were repeatedly objected to and sustained as irrelevant or beyond the scope of jurisdiction.

Final Decision and Outcome

The ALJ issued a decision on August 1, 2023. The ALJ concluded that the Petitioner failed to meet her burden of proof.

The ALJ found that the special assessment voted on March 2, 2023, resulted from maintenance recommendations developed during the August 18, 2022, architectural committee meeting.
Regarding claims of informal discussions or emails constituting a violation, the Petitioner failed to provide sufficient evidence that the number of board members involved constituted a quorum necessary to trigger the notice requirement under ARS § 33-1804.

The ALJ ordered that Petitioner’s petition be dismissed and denied the request to levy a civil penalty against the Respondent.

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

legal standards
burden of proof
procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

open meetings
emails
board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

evidence
secret meetings
quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

special assessments
committees
voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

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 (1960)

Topic Tags

legal definitions
evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

open meetings
homeowner rights
statutes

Case

Docket No: 23F-H057-REL
Case Title: Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date: 2023-08-01
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

legal standards
burden of proof
procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

open meetings
emails
board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

evidence
secret meetings
quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

special assessments
committees
voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

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 (1960)

Topic Tags

legal definitions
evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

open meetings
homeowner rights
statutes

Case

Docket No: 23F-H057-REL
Case Title: Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date: 2023-08-01
Alj Name: Brian Del Vecchio
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Wanda Swartling (petitioner)
Val Vista Park Townhome Association
Homeowner, VVP Unit 82

Respondent Side

Chad Gallacher (HOA attorney)
Maxwell & Morgan, P.C.
Steve Cheff (property manager / witness)
Heywood Community Management
Also community manager
Patti Locks (board member)
Val Vista Park HOA
Also listed as candidate/incumbent
Stephanie Hamrock (board member / witness)
Val Vista Park HOA
Troy Goudeau (board member)
Val Vista Park HOA
Elected director
Paul Wilcox (board member)
Val Vista Park HOA
Elected director
Bettie Smiley (board member)
Val Vista Park HOA
Carlee Collins (administrative assistant)
Heywood Community Management
Alli (attorney)
Maxwell & Morgan, P.C.
Associate attorney

Neutral Parties

Brian Del Vecchio (ALJ)
OAH
Susan Nicolson (ADRE Commissioner)
ADRE
A. Hansen (ADRE staff)
ADRE
V. Nunez (ADRE staff)
ADRE
D. Jones (ADRE staff)
ADRE
L. Abril (ADRE staff)
ADRE

Other Participants

Shelley Dusek (candidate)
Val Vista Park HOA
Candidate for Board of Directors
Lori Solomon (candidate)
Val Vista Park HOA
Candidate for Board of Directors
Tanya (committee attendee)
Val Vista Park HOA
Attended Building Architectural Committee meeting
David Clem Sr (homeowner)
Val Vista Park Townhomes
Email recipient

Felicia Woodward v. The Pointe South Mountain Residential Association

Posted on July 28, 2023 by [email protected]

Case Summary

Case ID	23F-H054-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2023-07-28
Administrative Law Judge	Adam D. Stone
Outcome	The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Felicia Woodward	Counsel	—
Respondent	The Pointe South Mountain Residential Association	Counsel	Jonathan D. Ebertshauser

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.

Why this result: Petitioner failed to meet the burden of proof required by a preponderance of the evidence for the alleged violation of A.R.S. § 33-1804(D). The tribunal determined the meeting was advertised as a workshop and not a statutory board meeting, and the Petitioner had timely opened the notice email a week prior.

Key Issues & Findings

Petitioner alleges the Respondent has violated A.R.S. § 33-1804 by holding a meeting that 'had not been properly noticed…'

Petitioner alleged that the March 14, 2023 meeting was not properly noticed because customary channels (email, calendar, sandwich boards) were not used, and the notice provided did not include the meeting location. Respondent argued notice was given through email survey and the community calendar, meeting the statutory requirements, and that the event was a workshop.

Orders: Petitioner's petition was denied. Respondent shall not reimburse Petitioner's filing fee pursuant to A.R.S. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Notice Requirements, HOA Board Meeting, Workshop, Filing Fee Reimbursement

Additional Citations:

ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.01

Video Overview

Audio Overview

Decision Documents

23F-H054-REL Decision – 1068018.pdf

Uploaded 2026-04-24T12:09:44 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-04-24T12:09:47 (113.6 KB)

23F-H054-REL Decision – 1068018.pdf

Uploaded 2026-01-23T17:57:36 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-01-23T17:57:40 (113.6 KB)

This summary addresses the legal case hearing held on July 14, 2023, concerning the matter of Felicia Woodward (Petitioner) versus The Pointe South Mountain Residential Association (Respondent). The hearing was conducted before Administrative Law Judge (ALJ) Adam D. Stone at the Office of Administrative Hearings (OAH).

Key Facts and Main Issues

The central issue was whether the Association violated A.R.S. § 33-1804 by failing to properly notice a community event—the Courthome Improvement Workshop—held on March 14, 2023. Arizona Revised Statute § 33-1804(D) mandates that notice for board meetings must be given at least 48 hours in advance by newsletter, conspicuous posting, or other reasonable means, and must state the date, time, and place of the meeting.

Hearing Arguments

Petitioner’s Case:

Petitioner Felicia Woodward argued that the notice was improper because the Association failed to follow customary notice methods (community-wide email, portal calendar, and sandwich boards). Although she received an email survey more than 48 hours prior to the meeting, she alleged that the link provided the date and time, but did not include the location (the Zoom link). She presented evidence suggesting the meeting was not listed on the community calendar 24 hours prior. Woodward also noted that a board member questioned the adequacy of the notice at the meeting.

Respondent’s Case:

The Association, represented by Jonathan D. Ebertshauser and Marcus R. Martinez, argued that the Association complied with A.R.S. § 33-1804, noting that the statute does not require consistent notice methods. The General Manager, Erin Busey, testified that the March 14th event was a workshop, not a regular monthly board meeting, explaining why costly sandwich boards were not used. Busey stated that the meeting information, including the date, time, and location (the Zoom link), was entered into the system and sent via email survey on March 7, 2023, exceeding the 48-hour requirement. Furthermore, evidence showed the Petitioner actually opened the survey email and clicked the link. Counsel emphasized the legal point that the failure of any member to receive *actual* notice does not affect the validity of actions taken, provided notice was issued.

Final Decision and Outcome

The Administrative Law Judge determined that the Petitioner did not meet her burden of proving a violation of A.R.S. § 33-1804(D) by a preponderance of the evidence.

Nature of the Meeting: The tribunal was not convinced the workshop was a formal “meeting of the board of directors” under the statute, as it was intended for discussion and review of survey results, with no expectation of voting or decisions.
Sufficiency of Notice: Even if the event were considered a board meeting, the Petitioner was found to have had sufficient notice, having opened the email containing the survey and link on March 7, 2023, a week before the workshop.

The ALJ issued an Order denying the Petitioner’s petition. Furthermore, the Association was not required to reimburse the Petitioner’s filing fee.

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

meetings
workshops
definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

legal standards
burden of proof
procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

notice
validity
homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

notice
timelines
HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

virtual meetings
notice
technology

Question

If I lose my hearing against the HOA, will I get my filing fee back?

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

fees
penalties
outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

notice
email
digital communication

Case

Docket No: 23F-H054-REL
Case Title: Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date: 2023-07-28
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

meetings
workshops
definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

legal standards
burden of proof
procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

notice
validity
homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

notice
timelines
HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

virtual meetings
notice
technology

Question

If I lose my hearing against the HOA, will I get my filing fee back?

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

fees
penalties
outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Legal Basis

A.R.S. § 33-1804

Topic Tags

notice
email
digital communication

Case

Docket No: 23F-H054-REL
Case Title: Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date: 2023-07-28
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Felicia Woodward (petitioner)
Property owner/Association member
Full name is Felicia Anne Woodward; Appeared via Google Meet.

Respondent Side

Jonathan D. Ebertshauser (attorney)
Carpenter, Hazlewood, Delgado, & Bolen
Represented Respondent.
Marcus R. Martinez (attorney)
Carpenter, Hazlewood, Delgado, & Bolen
Represented Respondent.
Erin Busey (witness/general manager)
First Service Residential (The Pointe South Mountain Residential Association)
Called as a witness by Respondent; Identified herself as Aaron Ducy during testimony.

Neutral Parties

Adam D. Stone (ALJ)
Office of Administrative Hearings
Susan Nicolson (commissioner)
Arizona Department of Real Estate
Recipient of official transmission.
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmission.
vnunez (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmission.
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmission.
labril (ADRE staff)
Arizona Department of Real Estate
Recipient of official transmission.

Other Participants

Debbie Robinson (witness)
Referenced by Petitioner as the person who took a screenshot exhibit; Presence/testimony not confirmed in hearing record.

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on July 10, 2023 by [email protected]

Case Summary

Case ID	23F-H036-REL
Agency	—
Tribunal	—
Decision Date	2023-07-10
Administrative Law Judge	—
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	R.L. Whitmer	Counsel	—
Respondent	Hilton Casitas Council of Homeowners	Counsel	—

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H036-REL Decision – 1040709.pdf

Uploaded 2026-04-24T12:03:54 (46.5 KB)

23F-H036-REL Decision – 1044686.pdf

Uploaded 2026-04-24T12:03:58 (45.2 KB)

23F-H036-REL Decision – 1072349.pdf

Uploaded 2026-04-24T12:04:03 (125.2 KB)

Case Briefing: R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 23F-H036-REL)

Executive Summary

The legal dispute between R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent) centered on the procedural requirements for approving management contracts within a condominium association. The Petitioner alleged that the Respondent violated Section 17.1 of the Declaration of Horizontal Property Regime by entering into a management contract with Arizona Community Management Services, LLC (AZCMS) without obtaining the mandated prior approval from a majority of the homeowners.

The Administrative Law Judge (ALJ), Tammy L. Eigenheer, determined that the plain language of the association’s governing documents required homeowner approval before a contract becomes effective. The Respondent’s attempt to retroactively ratify the contract more than two years after its execution was found insufficient to cure the initial breach. Consequently, the Petitioner was granted summary judgment, the Respondent was ordered to reimburse the Petitioner’s filing fee, and the association was directed to strictly adhere to the Declaration’s approval requirements for all future management contracts.

Analysis of Key Themes

1. Interpretation of Governing Documents as Contracts

The case reinforces the legal principle that an association’s governing documents—Declarations, Bylaws, and Articles of Incorporation—constitute a binding contract between the association and its members. The ALJ emphasized that when the language of such a contract is "clear and unambiguous," it must be enforced according to its plain meaning without further interpretation.

2. The Scope of "Prior Approval"

A central theme was the temporal requirement of "prior approval." The Respondent argued that the issue was moot because the owners eventually ratified the management contract in January 2023. However, the court ruled that ratification does not satisfy a "prior approval" requirement. The decision established that "prior" explicitly means before the effective date of the contract, and a vote taken two years into the contract's term cannot retroactively fulfill that condition.

3. Administrative Jurisdiction and Petition Scope

The proceedings highlighted the procedural limitations of the Office of Administrative Hearings (OAH). While the Petitioner attempted to raise concerns regarding the eligibility of board members (arguing they were not record owners and thus not members), the ALJ refused to address these allegations. The judge clarified that the scope of the decision is strictly limited to the specific violations alleged in the original petition. To address board qualifications, a separate petition would have been required.

4. Financial and Civil Penalties in HOA Disputes

The ruling distinguished between compensatory measures and punitive penalties. While the Respondent was ordered to reimburse the Petitioner’s $500 filing fee (a standard result when a violation is found), the ALJ denied the request for additional civil penalties. The transcript suggests that civil penalties require a higher threshold of evidence regarding their appropriateness, which was not met in this summary judgment phase.

Important Quotes and Context

On Governing Document Requirements

"The Council may employ a responsible individual, corporation, partnership or other entity as Manager… subject to prior approval of any such management contract by a majority of the Owners." — Section 17.1 of the Declaration

Context: This is the specific provision at the heart of the dispute. It limits the Board's power by requiring homeowner consent for management hires.

On the Respondent's Defense of Ratification

"I would just reiterate from the association's perspective that you know this issue is moot at this point. given the overwhelming approval and it's just wasting everyone's money um to continue furthering the issue in light of that approval." — Edith Rudder, Counsel for Respondent (March 29, 2023 Transcript)

Context: The Respondent argued that since the owners eventually voted to approve the contract in January 2023, the previous lack of approval no longer mattered.

On the Nature of Breach and Retroactivity

"The reality is is they're in breach of the contract and to try to retroactively uh approve it doesn't cure the breach." — R.L. Whitmer, Petitioner (March 29, 2023 Transcript)

Context: The Petitioner’s counter-argument, which the judge ultimately upheld, asserting that a past violation of the Declaration remains a violation regardless of subsequent actions.

On the Limitation of the Legal Issue

"What I have is the management contract and whether or not that was properly executed and approved by the owners. So, um I will not be addressing the qualifications of the board members… That's not before me in this matter." — Judge Tammy L. Eigenheer (March 29, 2023 Transcript)

Context: The Judge clarifies that she will only rule on the specific management contract approval issue, ignoring secondary arguments about board member eligibility.

Actionable Insights

For Homeowners Associations (HOAs)

Strict Compliance with "Prior" Mandates: Associations must identify any provisions in their Declarations that require homeowner approval before taking action. "Ratification" after the fact is not a legal substitute for "prior approval" and leaves the association vulnerable to litigation.
Audit of Existing Contracts: Boards should review current vendor and management contracts to ensure they were executed in accordance with the specific voting requirements of their governing documents.
Cost of Non-Compliance: Even if an association believes its members support a decision, failing to follow the correct procedure can lead to the mandatory reimbursement of legal filing fees and potential orders for corrective action.

For Petitioners/Homeowners

Petition Specificity: When filing a petition with the Department of Real Estate or OAH, it is critical to include all alleged violations. The court will not rule on issues (like board member eligibility) if they are not explicitly raised in the initial filing, even if they seem relevant to the broader context of the dispute.
Focus on Plain Language: Success in these matters often depends on pointing to clear, unambiguous language in the Declaration. Arguments based on the "plain meaning" of words (like "prior") are highly effective in summary judgment motions.

Procedural Timeline

Date	Event
October 9, 2020	Respondent’s board votes unanimously to enter into the AZCMS contract.
December 1, 2020	Effective start date of the AZCMS management contract.
December 27, 2022	Petitioner (R.L. Whitmer) files the petition alleging a violation of Section 17.1.
January 26, 2023	Owners ratify the AZCMS contract via absentee ballots.
March 10, 2023	ALJ issues order setting a deadline for responses to pending motions.
March 29, 2023	Prehearing conference conducted via Google Meet.
July 10, 2023	Final Decision issued: Summary Judgment granted to Petitioner.

Case Study: R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 23F-H036-REL)

This study guide examines the legal dispute between Petitioner R.L. Whitmer and the Respondent, Hilton Casitas Council of Homeowners. The case centers on the interpretation of Homeowners Association (HOA) governing documents, specifically regarding the authorization requirements for management contracts.

1. Case Overview and Parties

The matter was adjudicated in the Arizona Office of Administrative Hearings (OAH) before Administrative Law Judge (ALJ) Tammy L. Eigenheer.

Petitioner: R.L. Whitmer, a member of the association.
Respondent: Hilton Casitas Council of Homeowners, a non-profit corporation governing 29 condominium units in Scottsdale, Arizona.
Central Dispute: Whether the Respondent violated its own Declaration of Horizontal Property Regime by entering into a management contract without the prior approval of a majority of the owners.

2. Key Governing Documents

The relationship between the parties and the legal requirements for association actions are governed by a hierarchy of documents:

Document	Description and Relevance
Declaration (1972)	The primary governing document. Section 17.1 specifically mandates that management contracts are subject to "prior approval" by a majority of the Owners.
Bylaws	Outlines administrative procedures, including quorum requirements (majority of members) and voting procedures. Article XI specifies that the Declaration controls in any conflict.
Condominium Act	State legislation under which the Respondent is governed.
Nonprofit Corporation Act	State legislation governing the corporate structure of the Respondent.

3. Timeline of Events

Date	Event
October 9, 2020	The Board of Directors votes unanimously to enter a contract with Arizona Community Management Services, LLC (AZCMS).
December 1, 2020	The management contract with AZCMS becomes effective.
December 27, 2022	Petitioner R.L. Whitmer files a petition alleging a violation of the Declaration.
January 26, 2023	The Owners attempt to ratify the AZCMS contract via absentee ballots during an open meeting.
March 29, 2023	A prehearing conference is held to determine if factual disputes require an evidentiary hearing.
July 10, 2023	ALJ Eigenheer issues the final Administrative Law Judge Decision.

4. Legal Reasoning and Conclusion

The ALJ’s decision rested on the plain language of the contract between the association and its members (the Declaration).

The "Prior Approval" Standard: Section 17.1 of the Declaration requires approval prior to the establishment of a management contract.
Ineffectiveness of Ratification: The ALJ ruled that the vote taken in January 2023 did not satisfy the "prior approval" requirement for a contract that had already been in effect for over two years.
Summary Judgment: Because the facts regarding the timing of the contract and the lack of initial owner approval were undisputed, the case was decided as a matter of law without the need for a full evidentiary hearing on the violation itself.

Final Order Summary

Motion for Summary Judgment: Granted to the Petitioner.
Motion to Dismiss: Denied.
Restitution: Respondent ordered to reimburse Petitioner's $500.00 filing fee.
Civil Penalty: Denied.
Injunctive Relief: Respondent directed to comply with Section 17.1 for all future management contracts.

5. Short-Answer Practice Questions

Q1: According to Section 1.4 and 1.8 of the Declaration, who constitutes the "Council" and how is an "Owner" defined? Answer: The Council consists of all Owners of the Casitas. An Owner is defined as the record owner of a Casita.

Q2: What was the Respondent’s primary argument for why the legal challenge was moot? Answer: The Respondent argued that the issue was moot because the Owners ratified the contract in January 2023 with "overwhelming approval," showing the community was content with the management.

Q3: Why did the ALJ refuse to address Petitioner Whitmer’s allegations regarding the eligibility of certain board members? Answer: The ALJ stated that the qualifications of board members were not raised in the original petition, which was strictly limited to the approval process of the management contract.

Q4: In the event of a conflict between the Bylaws and the Declaration, which document takes precedence? Answer: According to Article XI, Section 1 of the Bylaws, the provisions of the Declaration shall control.

Q5: What was the specific start date of the AZCMS contract, and when did the Petitioner file the petition? Answer: The contract started on December 1, 2020; the petition was filed on December 27, 2022.

6. Essay Prompts for Deeper Exploration

Prompt 1: Contractual Interpretation in HOA Governance Analyze the ALJ’s decision to apply the "plain language" rule to Section 17.1 of the Declaration. Discuss why the court rejected the concept of retroactive ratification as a substitute for "prior approval." How does this interpretation protect the rights of individual homeowners within an association?

Prompt 2: Procedural Hierarchy and the Scope of Administrative Hearings During the prehearing conference, the Petitioner attempted to raise issues regarding board member eligibility, which the ALJ excluded. Discuss the importance of the "original petition" in defining the scope of a legal matter. Why is it procedurally necessary for a judge to limit the case to the issues initially filed?

7. Glossary of Important Terms

Administrative Law Judge (ALJ): A judge who trie cases relating to the functions of administrative agencies (in this case, the Office of Administrative Hearings).
Casita: The term used in the governing documents to refer to the individual condominium units within the Hilton Casitas.
Declaration for Horizontal Property Regime: A legal document that creates the condominium and sets forth the primary rules and restrictions for the association.
Motion for Summary Judgment: A request for the court to rule in favor of one party without a trial because there are no disputed facts and the law is clearly on their side.
Motion to Dismiss: A formal request for a court to throw out a case, often on the grounds that the claim is moot or lacks legal merit.
Prior Approval: A requirement that consent be obtained before an action is taken or a contract is finalized.
Quorum: The minimum number of members of an assembly or group that must be present at any of its meetings to make the proceedings of that meeting valid.
Ratification: The action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid after the fact.
Respondent: The party against whom a petition is filed (the Association in this case).

The Power of "Prior Approval": Lessons from the Whitmer vs. Hilton Casitas HOA Ruling

1. Introduction: When Governing Documents Mean Exactly What They Say

In the complex landscape of community association law, an HOA’s Declaration and Bylaws are not merely helpful suggestions or flexible guidelines—they are binding contracts. When a board of directors bypasses the procedural requirements clearly outlined in these governing documents, they undermine the legal foundation of the community.

The case of R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 23F-H036-REL) stands as a pivotal warning for associations that attempt to take procedural shortcuts. As this administrative ruling demonstrates, even if a decision is eventually favored by a majority of owners, it does not excuse an initial breach of the governing documents. In the eyes of the law, "fixing it later" is rarely a valid substitute for doing it right the first time.

2. The Core Dispute: A Management Contract Without Consent

The conflict originated from an October 9, 2020, board meeting where the Hilton Casitas board voted unanimously to hire Arizona Community Management Services, LLC (AZCMS). The contract was set to begin on December 1, 2020. While the board followed their internal meeting procedures, they neglected a mandatory contractual prerequisite found in their Declaration of Horizontal Property Regime.

The Petitioner, R.L. Whitmer, asserted that the board failed to comply with Section 17.1 of the Declaration, which places a specific limitation on the Council’s authority to employ management.

Section 17.1 of the Declaration states: “Employment: The Council may employ a responsible individual, corporation, partnership or other entity as Manager to manage and control the General Common Elements… subject to prior approval of any such management contract by a majority of the Owners.”

By committing the association to a management entity without first securing the affirmative vote of the majority of the 29 owners, the board bypassed the clear requirement for owner participation in the decision-making process.

3. The "Mootness" Defense: Why Retroactive Ratification Failed

During the pre-hearing conference held on March 29, 2023, the Respondent (the HOA) moved to dismiss the case, arguing that the issue was "moot." They pointed to a vote taken in January 2023—more than two years after the contract began—where the community ratified the management contract. The association’s counsel argued that because the community was "content" with the service, continuing the legal dispute was a waste of members' money and legal fees.

The Petitioner countered that a retroactive vote cannot "cure" a breach of contract that has persisted for years. He argued that the board's ongoing disregard for the governing documents and state statutes necessitated a formal ruling to ensure future compliance.

The Administrative Law Judge (ALJ) rejected the association's defense. In the Conclusions of Law, the ALJ noted that when the intent of the parties is "clear and unambiguous from its plain language," that language must be enforced. The ALJ specifically determined that the term "prior approval" cannot be satisfied by a vote taken after the contract is already in effect. The board’s later attempt to ratify the contract did not change the fact that they had already breached the Declaration.

4. The Administrative Ruling: Findings and Penalties

On July 10, 2023, the ALJ issued a decision granting Summary Judgment in favor of the Petitioner. Because the association admitted to the timeline of the contract and the date of the owners' vote, the facts were "uncontested." This allowed the judge to rule immediately on the law without the need for a full evidentiary hearing on the violation itself.

The final order established the following:

Granting of Summary Judgment: The judge affirmed that the association failed to comply with Section 17.1 of the Declaration.
Denial of Motion to Dismiss: The "mootness" argument based on the retroactive vote was rejected.
Reimbursement of Filing Fee: The HOA was ordered to pay the Petitioner $500.00 for his filing costs.
Directive for Compliance: The ALJ denied the request for civil penalties, opting instead to issue a directive for the HOA to strictly comply with Section 17.1 in all future management contract dealings.
Strict Adherence to the Petition: In a critical lesson for homeowners, the ALJ refused to hear arguments regarding the eligibility of certain board members (corporate vs. trust ownership). The ALJ clarified that because these issues were not raised in the initial petition, they were outside the scope of the matter—reminding all parties that you only get to argue the issues you formally file.

5. Critical Takeaways for HOA Boards and Homeowners

The Whitmer vs. Hilton Casitas ruling offers several essential lessons for maintaining the integrity of community governance:

Words Matter: The ALJ's logic was uncompromising: "The plain language of the Declaration is unambiguous" (Conclusion of Law #2). Specifically, an approval given "after the contract… does not constitute prior approval" (Conclusion of Law #8). Terms like "prior" are interpreted strictly; they cannot be redefined for convenience.
Procedural Integrity Over Convenience: The association’s defense that the community was "content" or that the board was trying to "save money" by avoiding a hearing was not a legal defense for skipping a mandatory vote. The board must prioritize the process defined in the contract over perceived administrative efficiency.
The Scope of the Petition: Homeowners must be meticulous when filing a petition. The ALJ will not opine on issues—such as board eligibility or trust status—unless they are explicitly included in the original filing. You must lay your entire legal groundwork from day one.
The Hidden Costs of Non-Compliance: While the association was only ordered to reimburse a $500 filing fee, the real financial impact was the "legal fees for this defense" mentioned by the association’s counsel during the conference. These costs are ultimately borne by the 29 owners, proving that violating the governing documents is far more expensive than following them.

6. Conclusion: Strengthening Community Governance

This ruling is a significant victory for transparency and the adherence to established rules. It reinforces the principle that homeowners have a contractual right to participate in the governance of their community as specified in their Declaration. When a board ignores "prior approval" requirements, they are not just skipping a step; they are breaching a contract with every owner they represent.

For board members, the mandate is clear: Conduct a thorough review of your Declaration and Bylaws before entering into any major contract. For homeowners, this case is a testament to the importance of staying engaged and holding leadership accountable to the community's own rules. Governing documents are the law of the association, and compliance is a non-negotiable obligation.

Case Participants

Petitioner Side

R.L. Whitmer (Petitioner)

Respondent Side

Edith Rudder (Counsel)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Also referred to as Eadie Rudder
Maria McKe (Representative)
Appeared on behalf of respondent at the pre-hearing conference

Neutral Parties

Tammy L. Eigenheer (Administrative Law Judge)
Office of Administrative Hearings
Susan Nicolson (Commissioner)
Arizona Department of Real Estate