Case Summary
| Case ID | 24F-H019-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2024-01-01 |
| Administrative Law Judge | Brian Del Vecchio |
| Outcome | total |
| Filing Fees Refunded | $1,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Kevin W. Schafer & Patricia A. Lawton | Counsel | Craig L. Cline |
|---|---|---|---|
| Respondent | Sycamore Springs Homeowners Association, INC. | Counsel | Edith I. Rudder & Eden G. Cohen |
Alleged Violations
ARIZ. REV. STAT. § 33-1808(B) & CC&Rs Design Guidelines Section II(O)
CC&Rs Design Guidelines Section III(A)
Outcome Summary
Petitioners prevailed on both filed issues: the Respondent's conditional approval of the flagpole violated CC&Rs and statute, and the Violation Notice regarding the building envelope was improper as Petitioners were found to be in compliance (17,451 sq ft vs. 22,000 sq ft maximum). Respondent was ordered to reimburse the $1,000 filing fee. Request for civil penalties was denied.
Key Issues & Findings
Conditional approval of portable flagpole
Respondent conditionally approved Petitioners' DMR for a portable flagpole, but the conditions placed (limiting height, restricting mobility, and requiring placement on the side of the house) were outside the authority granted by the CC&Rs and violated ARIZ. REV. STAT. § 33-1808, which protects the display of the American flag in front or back yards. Petitioner sustained burden of proof.
Orders: Respondent must abide by the statute; civil penalty denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- ARIZ. REV. STAT. § 33-1808(B)
- CC&Rs Design Guidelines Section II(O)
Violation Notice regarding Building Envelope compliance
Respondent sent a Violation Notice claiming Petitioners' building envelope was 38,000 square feet, exceeding the 22,000 square foot maximum limit defined in DG § III(A). The evidence established Petitioners' actual building envelope was 17,451 square feet, based on a superior 'boots on the ground' survey, proving no violation occurred. Petitioner sustained burden of proof.
Orders: Petitioners' building envelope did not violate the CC&Rs maximum limit; civil penalty denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- CC&Rs Design Guidelines Section III(A)
Analytics Highlights
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 33-1808
- ARIZ. REV. STAT. § 32-2199.02(A)
Video Overview
Audio Overview
Decision Documents
24F-H019-REL Decision – 1117050.pdf
24F-H019-REL Decision – 1121577.pdf
24F-H019-REL Decision – 1122554.pdf
24F-H019-REL Decision – 1128513.pdf
24F-H019-REL Decision – 1128831.pdf
Questions
Question
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
- flags
- federal/state rights
- homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
- architectural control
- CC&Rs
- flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- fees
- reimbursement
- prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- civil penalties
- fines
- harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
- evidence
- property disputes
- surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are 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. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden of proof
- legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
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
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
- jurisdiction
- ADRE authority
Case
- Docket No
- 24F-H019-REL
- Case Title
- Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
- Decision Date
- 2024-01-01
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
- flags
- federal/state rights
- homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
- architectural control
- CC&Rs
- flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- fees
- reimbursement
- prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- civil penalties
- fines
- harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
- evidence
- property disputes
- surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are 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. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden of proof
- legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
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
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
- jurisdiction
- ADRE authority
Case
- Docket No
- 24F-H019-REL
- Case Title
- Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
- Decision Date
- 2024-01-01
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Schafer, Kevin W. (petitioner)
- Lawton, Patricia A. (petitioner/witness)
- Cline, Craig L. (petitioner attorney)
Udall Law - Mlan, Steven Wallace (witness/surveyor)
Tucson Surveying and Mapping
Expert witness for Petitioners
Respondent Side
- Rudder, Edith I. (HOA attorney)
Carpenter, Hazelwood, Delgado & Bolen - Cohen, Eden G. (HOA attorney)
Carpenter, Hazelwood, Delgado & Bolen - Rowlette, Kristen (board member/witness)
Sycamore Springs Homeowners Association, INC.
HOA President - Leech, Herbert (board member/witness)
Sycamore Springs Homeowners Association, INC.
HOA Vice President - Teague, J.O. (witness/surveyor)
Southern Arizona Land Survey Associates
Expert witness for Respondent - Jennifer (property manager)
Mission Management
Sent conditional flag approval letter
Neutral Parties
- Del Vecchio, Brian (ALJ)
OAH
ALJ for December 7 & 12 hearings and final decision - Eigenheer, Tammy L. (ALJ)
OAH
Signed November 27, 2023 Order - Jacio (ALJ)
OAH
Identified as ALJ on December 7, 2023 - Nicolson, Susan (ADRE commissioner)
ADRE - Hansen, A. (ADRE official)
ADRE - Nunez, V. (ADRE official)
ADRE - Jones, D. (ADRE official)
ADRE - Abril, L. (ADRE official)
ADRE
Other Participants
- Andrews, Tom (former board member)
Mentioned in board minutes and testimony regarding past ACC actions - Tantis, Pam (former board member)
Mentioned in board minutes - Bloodcot, GMA (resident)
Recipient of email regarding flag rules
