Case Summary
| Case ID | 23F-H046-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-08-11 |
| Administrative Law Judge | Jenna Clark |
| Outcome | no |
| 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
- 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
- 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
23F-H046-REL Decision – 1049882.pdf
23F-H046-REL Decision – 1055238.pdf
23F-H046-REL Decision – 1057283.pdf
23F-H046-REL Decision – 1058121.pdf
23F-H046-REL Decision – 1059849.pdf
23F-H046-REL Decision – 1072130.pdf
23F-H046-REL Decision – 1082955.pdf
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
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
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
