Case Summary
| Case ID | 23F-H060-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-08-07 |
| Administrative Law Judge | Jenna Clark |
| Outcome | loss |
| 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
- 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
- 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
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
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
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
