Tag Archives: CC&Rs

Keystone Owners Association V. Bernadette M. Bennett

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Case Summary

Case ID 24F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-12-09
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keystone Owners Association Counsel Erica L. Mortenson
Respondent Bernadette M. Bennett Counsel Thomas A. Walcott

Alleged Violations

Mountain Park Association CC&Rs Art. IV, Sec. 2; Keystone CC&Rs Art. V, Sec. 5.19; Rules (35% Frontage Limit)

Outcome Summary

The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.

Why this result: Respondent failed to obtain prior written approval for the driveway alteration and failed to prove the affirmative defense of laches.

Key Issues & Findings

Unauthorized Driveway Extension Exceeding 35% of Total Yard Frontage Area

Petitioner alleged Respondent violated CC&Rs by installing a driveway extension exceeding 35% of the total yard frontage area without prior written approval. The ALJ found by a preponderance of the evidence that the violation occurred and the Respondent failed to establish the affirmative defense of laches.

Orders: Respondent ordered to pay Petitioner $1,500.00 for the filing fee and comply henceforth with the Governing Documents.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Analytics Highlights

Topics: HOA, ARC, Driveway, Frontage Area, CC&Rs, Laches
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Video Overview

Audio Overview

Decision Documents

24F-H031-REL Decision – 1159036.pdf

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24F-H031-REL Decision – 1180542.pdf

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24F-H031-REL Decision – 1227639.pdf

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24F-H031-REL Decision – 1250037.pdf

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24F-H031-REL Decision – 1159036.pdf

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24F-H031-REL Decision – 1180542.pdf

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24F-H031-REL Decision – 1180545.pdf

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24F-H031-REL Decision – 1198622.pdf

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24F-H031-REL Decision – 1198623.pdf

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24F-H031-REL Decision – 1225107.pdf

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24F-H031-REL Decision – 1227639.pdf

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24F-H031-REL Decision – 1227642.pdf

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24F-H031-REL Decision – 1230660.pdf

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24F-H031-REL Decision – 1241815.pdf

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24F-H031-REL Decision – 1250037.pdf

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This summary focuses on the hearing held on November 19, 2024 before Administrative Law Judge (ALJ) Velva Moses-Thompson, concerning the dispute between Keystone Owners Association (Petitioner) and Bernadette M. Bennett (Respondent).

Key Facts and Main Issues

The core issue was Petitioner's allegation that Respondent violated the Governing Documents by installing a driveway extension that exceeds 35% of the total yard frontage area. This included allegations of violating Article IV, Section 2 of the Mountain Park Association Covenants, Conditions, and Restrictions (CC&Rs) and Article V, Section 5.19 of Petitioner’s CC&Rs.

Key Facts Presented:

  • Respondent owns a home within Keystone, a subassociation of Mountain Park Ranch. Both associations' Governing Documents required Respondent to obtain prior written approval for any alteration to the exterior appearance.
  • Mountain Park Ranch Rules, which Keystone relied upon for enforcement, state that the parking surface shall not exceed 35 percent of the total yard frontage area.
  • Petitioner asserted that the Respondent installed the cement driveway extension without obtaining mandatory written approval.
  • An on-site inspection conducted in May 2024 determined that the driveway slabs (original 16 ft + unapproved 8 ft modification) measured 24 ft wide. Based on the lot frontage measurement of approximately 60 ft, the driveway covered 40% of the yard frontage, exceeding the 35% limit.
  • The Petitioner's right to enforce the Master Association’s rules was formalized by an Assignment Agreement signed on August 16, 2023.

Key Arguments and Proceedings

The Petitioner presented testimony from Harry Whitesell, a board member and former property appraiser, who detailed the measurements and the history of the Respondent's failed architectural requests (2015, 2017) to add parking. Petitioner argued that the Respondent ignored denial notices and that the modification was installed without approval and remains out of compliance.

The Respondent's legal strategy focused entirely on the affirmative defense of laches. Respondent's counsel argued that the condition had existed, open and obvious, since late 2017/early 2018 without enforcement. Respondent argued the HOA's delay was unreasonable, causing prejudice, and that the motivation to pursue the violation only arose after securing the enforcement authority from Mountain Park Ranch in 2023. Respondent also questioned the interpretation of "yard frontage area" used for the calculation, arguing it was ambiguous. Respondent did not present witness testimony at the hearing.

Petitioner countered the laches argument by citing a provision in the Keystone CC&Rs stating that failure to enforce a restriction "shall in no event be deemed a waiver of the right to do so thereafter".

Legal Points and Outcome

The ALJ admitted Petitioner’s Exhibits A through M and Respondent’s Exhibit 1 into evidence.

The ALJ made the following legal conclusions:

  1. Petitioner bore the burden of proof to establish the violation by a preponderance of the evidence.
  2. The preponderance of the evidence showed that Respondent erected a cement driveway extension that exceeds 35 percent of the total yard frontage area, without obtaining prior approval.
  3. Respondent failed to meet the burden of establishing the affirmative defense of laches. The ALJ found that Respondent had not established sufficient "unreasonable delay that has resulted in prejudice" to deny the relief sought by Petitioner.

Final Decision and Order:

  • Petitioner was deemed the prevailing party.
  • Respondent was ordered to pay Petitioner its filing fee of $1,500.00 within thirty days.
  • Respondent was ordered to henceforth comply with the provisions of the Governing Documents.
  • No Civil Penalty was found to be appropriate.

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

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

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 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

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

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

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 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

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Erica L. Mortenson (attorney)
    Goodman Law Group
    HOA attorney
  • Harry Whitel (board member/witness)
    Keystone Owners Association
    Secretary of the Board
  • Tim Seyfarth (board member/president)
    Keystone Owners Association
    Board President
  • Glenn Steinman (board member)
    Keystone Owners Association
    Board Vice President
  • Debbie Burch (board member)
    Keystone Owners Association
    Board Treasurer
  • Cherry Collins (board member)
    Keystone Owners Association
    Member at large; Architectural Advisory Committee member
  • Joe Getti (ARC member/former board member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Mary Hamilton (ARC member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Dan (attorney/staff)
    Goodman Law Group

Respondent Side

  • Bernadette M. Bennett (respondent)
    Lot Owner
  • Thomas A. Walcott (attorney)
    Provident Lawyers
    Respondent attorney
  • Noah Alvarado (staff)
    Staff/assistant for Respondent's Counsel
  • Christopher J. Charles (attorney/staff)
    Provident Lawyers

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
    Administrative Law Judge
  • Amy Haley (ALJ)
    OAH
    Administrative Law Judge (prior to VMT)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Isabella (property manager)
    Vision Management
    Keystone Property Manager who was asked for documents
  • Annette Wthbon (property management agent)
    City Management
    Former Property Management Agent
  • Carla Garvin (property management agent)
    City Management
    Former Property Management Agent

VVE-Casa Grande Home Owners Association v. Duane S & Mary L Eitel

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Case Summary

Case ID 24F-H003-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-02-22
Administrative Law Judge Jenna Clark
Outcome Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner VVE-Casa Grande Home Owners Association Counsel Anthony Rossetti, Esq.
Respondent Duane Eitel & Mary Eitel Counsel Kevin Harper, Esq.

Alleged Violations

CC&Rs Article VII, sections 7.2, 7.3, 7.25, 7.26, 7.28, 7.29, and 7.31

Outcome Summary

Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.

Key Issues & Findings

Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.

Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.

Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs section 7.2
  • CC&Rs section 7.3
  • CC&Rs section 7.25
  • CC&Rs section 7.26
  • CC&Rs section 7.28
  • CC&Rs section 7.31

Analytics Highlights

Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
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.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • 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

24F-H003-REL Decision – 1094853.pdf

Uploaded 2026-04-24T12:13:45 (51.0 KB)

24F-H003-REL Decision – 1113338.pdf

Uploaded 2026-04-24T12:13:48 (49.4 KB)

24F-H003-REL Decision – 1125372.pdf

Uploaded 2026-04-24T12:13:52 (65.5 KB)

24F-H003-REL Decision – 1147484.pdf

Uploaded 2026-04-24T12:13:55 (184.8 KB)

24F-H003-REL Decision – 1094853.pdf

Uploaded 2026-01-23T18:00:39 (51.0 KB)

24F-H003-REL Decision – 1113338.pdf

Uploaded 2026-01-23T18:00:44 (49.4 KB)

24F-H003-REL Decision – 1125372.pdf

Uploaded 2026-01-23T18:00:48 (65.5 KB)

24F-H003-REL Decision – 1147484.pdf

Uploaded 2026-01-23T18:00:51 (184.8 KB)

This case, *VVE-Casa Grande Home Owners Association v. Duane S & Mary L Eitel* (No. 24F-H003-REL), was heard before Administrative Law Judge (ALJ) Jenna Clark at the Office of Administrative Hearings (OAH).

Key Facts and Issues

The Petitioner, VVE-Casa Grande Home Owners Association (the Association), filed a petition alleging that the Respondents, Duane S. Eitel and Mary L. Eitel, violated several Covenants, Conditions, and Restrictions (CC&Rs) by operating an unauthorized business out of their home and housing cats far in excess of a "reasonable number of household pets".

The primary CC&R sections alleged to be violated were:

  1. 7.2 (Residential Use) & 7.3 (No Commercial Use): Prohibiting commercial use, manufacturing, storing, or vending on the lot.
  2. 7.25 (Animals): Limiting animals to a reasonable number of generally recognized household pets, and stating that state and county laws govern pet numbers, noise, and nuisance.
  3. 7.26, 7.28, 7.29, and 7.31: Related to nuisance, garbage, debris, diseases, and maintaining a safe and orderly condition.

The core factual dispute centered on the operation of Valley Kitten Nursery & Rescue Inc. (VKNR), a 501(c)(3) nonprofit. Respondents historically stored over fifty (50) cats/kittens in their three-car garage pending private adoption. Pinal County had previously determined the operation was an unauthorized use subject to a zoning violation in 2017.

Hearing Proceedings and Arguments

The evidentiary hearing took place on November 14, 2023.

Petitioner's Argument: The Association argued that Respondents were unequivocally running a business. This assertion was supported by evidence that VKNR has an Employer Identification Number (EIN), charges adoption fees ($125 for kittens, $95 for adult cats), and handles cats as "a product," not pets. Furthermore, housing 50+ non-pet animals in the garage was unreasonable and violated residential use restrictions. Petitioner’s witness testified to observing cars, deliveries, and volunteers cleaning cages in the driveway, creating concerns about debris, waste runoff, and biohazardous materials.

Respondent's Argument: Respondents argued that VKNR is a volunteer nonprofit and therefore not a "commercial business" prohibited by CC&R 7.3. They asserted they were fostering animals and that adoption fees merely covered costs. Respondent Duane Eitel (DE) testified that the operation was run so that adopters did not pick up cats at the residence (with limited exceptions), and that the cleaning processes had been moved to the rear yard in response to earlier complaints. They noted that Pinal County had never issued a final violation regarding the number of cats.

Procedural Outcome and Final Decision

Following the presentation of evidence, the ALJ recessed the hearing to encourage settlement, placing the matter in "Status". The status period was extended until February 2, 2024. As the parties were unable to settle, they requested the ALJ issue a decision based on the hearing record.

The ALJ issued the Administrative Law Judge Decision on February 22, 2024, finding that the Petitioner sustained its burden of proof by a preponderance of the evidence.

Key Legal Findings:

  • The ALJ concluded that Respondents' operation of VKNR constituted a "clear business model". The assertion that VKNR is not a "business" because it is a nonprofit was deemed "both technically and legally inaccurate".
  • Respondent DE admitted that the 50+ animals housed in the garage were not pets.
  • The continued operation, including visible debris and the scope of the operation, created a nuisance and traffic issues.
  • The ALJ found violations of CC&R sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 were established. (A violation of 7.29 was not established).

Final Order: The Association's petition was granted. Respondents were ordered to **henceforth abide by CC&R sections 7.2,

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24F-H003-REL

7 sources

In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.

What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?

Thursday, February 12

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24F-H003-REL

7 sources

In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.

What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?

Thursday, February 12

Save to note

Today • 3:04 PM

7 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Anthony Rossetti (petitioner attorney, property manager)
    Rossetti Management & Realty Services
    Represented Petitioner and owned the newly hired management company.
  • Douglas Karolak (witness, homeowner)
    VVE-Casa Grande HOA Member
    Testified on behalf of Petitioner.
  • Nicole Elliot (property manager)
    Norris Management
    Former HOA management committee/manager who issued warning letters.
  • CD Mai (homeowner/neighbor)
    VVE-Casa Grande HOA Member
    Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.

Respondent Side

  • Duane Eitel (respondent, witness)
    VVE-Casa Grande HOA Member
    Referred to as Duane S Eitel in earlier documents; DE in the decision.
  • Mary Eitel (respondent)
    VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc.
    Referred to as Mary L Eitel in earlier documents.
  • Kevin Harper (respondent attorney)
    Harper Law, PLC

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • labril (ADRE staff)
    Arizona Department of Real Estate
  • Christopher Sinco (code compliance officer)
    Pinal County Animal Control
    Involved in the 2017/2018 county inspection.

Other Participants

  • Scott Lenderman (property manager)
    HOA management administrator (prior to Rossetti)
    Mentioned as the first HOA management administrator.

Thomas P Hommrich v. The Lakewood Community Association

Posted on by

Case Summary

Case ID 24F-H009-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-11-09
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas P. Hommrich Counsel —
Respondent The Lakewood Community Association Counsel Quinten Cupps, Esq.

Alleged Violations

Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).

Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.

Key Issues & Findings

Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy

Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.

Orders: Petitioner's petition was dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

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.
  • ARIZ. REV. STAT. § 41-1092.09
  • 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: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
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.
  • ARIZ. REV. STAT. § 41-1092.09
  • 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

24F-H009-REL Decision – 1101544.pdf

Uploaded 2026-04-26T10:04:05 (47.0 KB)

24F-H009-REL Decision – 1111460.pdf

Uploaded 2026-04-26T10:04:11 (102.6 KB)

24F-H009-REL Decision – 1101544.pdf

Uploaded 2026-01-23T18:01:45 (47.0 KB)

24F-H009-REL Decision – 1111460.pdf

Uploaded 2026-01-23T18:01:48 (102.6 KB)

This concise summary details the administrative legal hearing in the matter of Thomas P. Hommrich v The Lakewood Community Association (No. 24F-H009-REL), which convened on October 24, 2023.

Key Facts and Main Issues

The Petitioner, Thomas P. Hommrich, alleged that the Respondent, The Lakewood Community Association, violated Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs) by adopting the Residential Parking Policy (Parking Policy). Section 2.1 governs public property (such as streets), stating that while such property is not generally subject to the Declaration, restrictions imposed upon owners regarding its use "shall be applicable at all times".

The specific dispute centered on the Association's authority to enforce on-street parking restrictions on government-owned property without formally amending the CC&Rs. Petitioner’s Request for Partial Summary Judgment regarding the policy was denied prior to the hearing.

Key Arguments

Petitioner's Argument:

Petitioner Hommrich asserted that the Parking Policy was invalid because it referred to itself as a set of "Rules and Regulations". He argued that under the CC&Rs (specifically referencing Section 5.3 and 12.2), "Rules and Regulations" (or "Association Rules") are only authorized to govern common areas. Therefore, for the Association to legally regulate parking on public streets, the restriction must be contained within a formal amendment to the Declaration, following a strict amendment process. By using "rules and regulations" instead of "restrictions," the Association unlawfully usurped the authority required to govern non-common property.

Respondent's Argument:

The Association contended that the Parking Policy was validly adopted under the authority granted in multiple CC&R sections, particularly Section 4.2(t) and Section 12.2. Section 4.2(t) grants the authority to adopt "additional parking rules and restrictions". Furthermore, Section 12.2 dictates that rules adopted by the Board shall have the "same force and effect as if they were set forth in this declaration," negating the necessity for an amendment to the CC&Rs to adopt every new rule. The Association argued the policy merely clarified existing use restrictions found in 4.2(t), and that the semantic difference emphasized by the Petitioner was irrelevant.

Legal Points and Outcome

The Administrative Law Judge (ALJ) held that the Petitioner bore the burden of proving the alleged violation of Section 2.1 by a preponderance of the evidence.

The ALJ concluded that the Petitioner's assertion that the semantic difference between "rules and regulations" and "rules and restrictions" was critical was irrelevant in determining the Association's authority under Section 2.1. The Association demonstrated that the Parking Policy was passed by a majority vote in compliance with Section 5.3 and that the policy did not subvert Section 4.2(t), but rather further clarified prohibited on-street parking.

The Petitioner failed to meet his burden of proof.

Final Decision:

The ALJ issued an Order dismissing Petitioner’s petition.

Questions

Question

Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?

Short Answer

Yes, owners or associations may petition the department for hearings concerning violations of community documents.

Detailed Answer

The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.

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 and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.

Topic Tags

  • jurisdiction
  • dispute resolution

Question

Can an HOA enforce restrictions on public streets or government-owned property within the community?

Short Answer

Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.

Detailed Answer

Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.

Alj Quote

Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'

Legal Basis

CC&Rs Section 2.1

Topic Tags

  • parking
  • public streets
  • authority

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The Petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof

Question

What standard of evidence is used to decide HOA disputes?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that convinces the judge that the claim is more probably true than not.

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

  • evidence
  • legal standard

Question

Can an HOA Board pass a parking policy without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.

Detailed Answer

If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.

Alj Quote

It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.

Legal Basis

CC&Rs Section 5.3

Topic Tags

  • board authority
  • rules vs amendments

Question

Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?

Short Answer

Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.

Detailed Answer

Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.

Alj Quote

Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).

Legal Basis

N/A

Topic Tags

  • legal interpretation
  • semantics

Question

What happens if a homeowner fails to meet the burden of proof?

Short Answer

The petition will be dismissed.

Detailed Answer

If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.

Alj Quote

The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.

Legal Basis

N/A

Topic Tags

  • outcome
  • dismissal

Question

How long does a party have to request a rehearing after an ALJ decision?

Short Answer

30 days.

Detailed Answer

A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • appeal
  • deadlines

Case

Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?

Short Answer

Yes, owners or associations may petition the department for hearings concerning violations of community documents.

Detailed Answer

The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.

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 and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.

Topic Tags

  • jurisdiction
  • dispute resolution

Question

Can an HOA enforce restrictions on public streets or government-owned property within the community?

Short Answer

Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.

Detailed Answer

Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.

Alj Quote

Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'

Legal Basis

CC&Rs Section 2.1

Topic Tags

  • parking
  • public streets
  • authority

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The Petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof

Question

What standard of evidence is used to decide HOA disputes?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that convinces the judge that the claim is more probably true than not.

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

  • evidence
  • legal standard

Question

Can an HOA Board pass a parking policy without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.

Detailed Answer

If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.

Alj Quote

It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.

Legal Basis

CC&Rs Section 5.3

Topic Tags

  • board authority
  • rules vs amendments

Question

Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?

Short Answer

Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.

Detailed Answer

Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.

Alj Quote

Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).

Legal Basis

N/A

Topic Tags

  • legal interpretation
  • semantics

Question

What happens if a homeowner fails to meet the burden of proof?

Short Answer

The petition will be dismissed.

Detailed Answer

If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.

Alj Quote

The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.

Legal Basis

N/A

Topic Tags

  • outcome
  • dismissal

Question

How long does a party have to request a rehearing after an ALJ decision?

Short Answer

30 days.

Detailed Answer

A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • appeal
  • deadlines

Case

Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas P. Hommrich (petitioner)
    Property owner, appeared on his own behalf

Respondent Side

  • Quinten Cupps (HOA attorney)
    VIal Fotheringham, LLP
    Represented The Lakewood Community Association
  • Sandra Smith (community manager)
    Lakewood Community Association
    Witness who testified on behalf of Respondent

Neutral Parties

  • Brian Del Vecchio (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge for the hearing and final decision
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge who issued the October 12, 2023 Order
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Moses Thompson (Judge)
    Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission/contact
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission/contact
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission/contact
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission/contact
  • Brian Seatic (party)
    Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing

Rosalie Lynne Emmons v. Rovey Farm Estates Homeowners Association

Posted on by

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

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

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

Brenda Norman v. Rancho Del Lago Community Association

Posted on by

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

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23F-H046-REL Decision – 1055238.pdf

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23F-H046-REL Decision – 1057283.pdf

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23F-H046-REL Decision – 1058121.pdf

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23F-H046-REL Decision – 1059849.pdf

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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.

  1. 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.
  1. 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

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

Thomas P. Hommrich v. The Lakewood Community Association

Posted on by

Case Summary

Case ID 23F-H048-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-19
Administrative Law Judge Velva Moses-Thompson
Outcome Order Granting Respondent’s Motion to Dismiss the Petition on jurisdictional grounds.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas P. Hommrich Counsel —
Respondent The Lakewood Community Association Counsel Quinten Cupps, Esq.

Alleged Violations

Article lV, Section 4.2(t) of the CC&R's

Outcome Summary

Order Granting Respondent’s Motion to Dismiss the Petition on jurisdictional grounds.

Why this result: The Administrative Law Judge ruled that the Office of Administrative Hearings (OAH) lacked jurisdiction to hear the case because the petition challenged the Association’s power to act (A.R.S. § 10-3304), which requires injunctive relief in a court of law, and did not concern a violation of community documents or statute (A.R.S. § 32-2199.01(A)).

Key Issues & Findings

Authority to enforce parking rule on residential public streets

Petitioner sought an order prohibiting the Respondent from restricting parking access on public residential streets, alleging the Association breached the CC&Rs by misapplying Article IV, Section 4.2(t).

Orders: The petition was dismissed because OAH lacked jurisdiction as the case challenged the Association's power to act under A.R.S. § 10-3304, rather than alleging a violation of community documents or statute under A.R.S. § 32-2199.01(A).

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)

Analytics Highlights

Topics: Parking Restrictions, Jurisdiction, Motion to Dismiss, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

23F-H048-REL Decision – 1057905.pdf

Uploaded 2026-04-24T12:08:54 (71.7 KB)

23F-H048-REL Decision – 1059621.pdf

Uploaded 2026-04-24T12:08:57 (44.2 KB)

23F-H048-REL Decision – 1057905.pdf

Uploaded 2026-01-23T17:57:20 (71.7 KB)

23F-H048-REL Decision – 1059621.pdf

Uploaded 2026-01-23T17:57:22 (44.2 KB)

The matter of *Thomas P. Hommrich vs. The Lakewood Community Association* (No. 23F-H048-REL) was heard in the Office of Administrative Hearings (OAH).

Key Facts and Issues

Petitioner Thomas P. Hommrich filed a single-issue petition on March 9, 2023, alleging the Respondent Association lacked the authority to enforce a parking restriction. Specifically, the Petitioner claimed the Association improperly relied upon Article IV, Section 4.2(t) of the CC&Rs, which, in the Petitioner's view, does not prohibit parking on public residential streets. The Petitioner sought an order from the OAH prohibiting the Respondent from restricting parking access on such streets.

Article IV, Section 4.2(t) of the CC&Rs indicates the Declarant's intent is to "eliminate on-street parking at Lakewood as much as possible," requiring vehicles to be kept in garages, driveways, or designated areas. It further states that "No parking is permitted on any street within Lakewood" designated on the Map of Dedication, and allows the Association to adopt additional parking rules.

Hearing Proceedings and Main Arguments

The Association filed a Motion to Dismiss on May 8, 2023. The Respondent argued that the OAH lacked jurisdiction because the petition did not concern a violation of community documents or any statute, as required by A.R.S. § 32-2199.01(A). Furthermore, the Association contended that the OAH lacked the authority to grant the specific injunctive relief requested by the Petitioner.

The Petitioner responded, asserting he was alleging that the Association breached the CC&Rs.

Legal Points and Final Decision

The Administrative Law Judge granted the Respondent's Motion to Dismiss the Petition on May 19, 2023.

The OAH determined that the petition did not concern a violation of community documents or any statute. The most important legal point focused on jurisdiction: the OAH found that the Petitioner was essentially attempting to challenge the Association’s power to act (authority to restrict parking on public streets). Under A.R.S. § 10-3304, the Petitioner is not permitted to challenge the Association’s power to act in the OAH tribunal. The appropriate venue for seeking injunctive relief regarding an association’s power to act is a court of law (A.R.S. § 10-3304(B)(2)).

Outcome

The petition was dismissed. Following the dismissal, the OAH received a Motion to Amend the Petition, which it could not consider because a decision had already been rendered. However, the Petitioner’s request for a rehearing was forwarded to the Arizona Department of Real Estate (ADRE), as the ADRE, not the OAH, handles rehearing requests pursuant to A.R.S. § 33-2199.04(A).

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days of the order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days of the order.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas P. Hommrich (petitioner)

Respondent Side

  • Quinten Cupps (respondent attorney)
    vf-law.com
    Esq.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Carl-Mitchell Smoot v. Los Reyes Homeowners Association Inc.

Posted on by

Case Summary

Case ID 22F-H2222063-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Sondra J. Vanella
Outcome The ALJ affirmed the Petitioner's position that the HOA's denial of artificial turf violated CC&Rs Section 8.8. The ALJ found that because maintenance was shared and the HOA's CC&Rs cannot contradict the superior McCormick Ranch rules (which allow artificial turf), the denial was improper and the HOA failed to meet the exemption requirements under A.R.S. § 33-1819(B).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Smoot Carl-Mitchell Counsel Stewart F. Gross, Esq.
Respondent Los Reyes Homeowners Association Inc. Counsel Michael S. McLeran, Esq.

Alleged Violations

A.R.S. § 33-1819; CC&Rs Article VIII, Section 8.8

Outcome Summary

The ALJ affirmed the Petitioner's position that the HOA's denial of artificial turf violated CC&Rs Section 8.8. The ALJ found that because maintenance was shared and the HOA's CC&Rs cannot contradict the superior McCormick Ranch rules (which allow artificial turf), the denial was improper and the HOA failed to meet the exemption requirements under A.R.S. § 33-1819(B).

Key Issues & Findings

Architectural disapproval of landscaping plans to install artificial turf

Petitioner alleged Respondent's disapproval of his landscaping plans to install artificial turf violated the CC&Rs and was unreasonable under Arizona law. The ALJ concluded the disapproval violated CC&Rs Section 8.8 because the maintenance responsibility was shared, not exclusive to the HOA, and the HOA's CC&Rs must not contradict McCormick Ranch's Rules, which permit artificial turf.

Orders: Petitioner’s petition is affirmed. Respondent must reimburse Petitioner the $500.00 filing fee. Respondent is directed to comply with the requirements of CC&Rs Section 8.8 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1819
  • CC&Rs Article VIII, Section 8.8
  • CC&Rs Article 9.4
  • CC&Rs Article 6.2

Analytics Highlights

Topics: artificial turf, landscaping, CC&Rs, shared maintenance, architectural control, McCormick Ranch
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 33-1819
  • A.A.C. R2-19-119
  • CC&Rs Article VIII, Section 8.8
  • CC&Rs Article 9.4
  • CC&Rs Article 6.2

Video Overview

Audio Overview

Decision Documents

22F-H2222063-REL Decision – 1005074.pdf

Uploaded 2026-05-01T22:04:27 (54.0 KB)

22F-H2222063-REL Decision – 1005155.pdf

Uploaded 2026-05-01T22:04:30 (6.9 KB)

22F-H2222063-REL Decision – 1023283.pdf

Uploaded 2026-05-01T22:04:36 (54.3 KB)

22F-H2222063-REL Decision – 1029871.pdf

Uploaded 2026-05-01T22:04:42 (52.1 KB)

22F-H2222063-REL Decision – 1049042.pdf

Uploaded 2026-05-01T22:04:45 (175.7 KB)

22F-H2222063-REL Decision – 992691.pdf

Uploaded 2026-05-01T22:04:50 (48.6 KB)

22F-H2222063-REL Decision – 992789.pdf

Uploaded 2026-05-01T22:04:54 (5.9 KB)

22F-H2222063-REL Decision – 1005074.pdf

Uploaded 2026-01-23T17:49:14 (54.0 KB)

22F-H2222063-REL Decision – 1005155.pdf

Uploaded 2026-01-23T17:49:19 (6.9 KB)

22F-H2222063-REL Decision – 1023283.pdf

Uploaded 2026-01-23T17:49:22 (54.3 KB)

22F-H2222063-REL Decision – 1029871.pdf

Uploaded 2026-01-23T17:49:25 (52.1 KB)

22F-H2222063-REL Decision – 1049042.pdf

Uploaded 2026-01-23T17:49:29 (175.7 KB)

22F-H2222063-REL Decision – 992691.pdf

Uploaded 2026-01-23T17:49:30 (48.6 KB)

22F-H2222063-REL Decision – 992789.pdf

Uploaded 2026-01-23T17:49:32 (5.9 KB)

The hearing concerned the matter of Carl-Mitchell Smoot (Petitioner) versus Los Reyes Homeowners Association, Inc. (Respondent), conducted before the Office of Administrative Hearings (OAH). The proceedings took place over two dates: January 25, 2023, and a further hearing on March 29, 2023.

Key Facts and Main Issue

The main issue was whether the Respondent HOA’s architectural disapproval of Petitioner’s plans to install artificial turf in his front yard violated Los Reyes CC&Rs Article VIII, Section 8.8, and was unreasonable under Arizona law. Los Reyes is a sub-association of the McCormick Ranch Property Owners Association ("McCormick Ranch"). Petitioner sought the redesign for water conservation and aesthetic improvement.

Key Arguments

  1. Respondent's Position: The HOA justified the denial primarily based on A.R.S. § 33-1819(B), which allows an association to prohibit artificial turf if it is installed in an area the association is "required to maintain or irrigate". Respondent cited its CC&Rs Section 6.2, which states the HOA "shall maintain the landscaping in the front yards of the Lots". Respondent also argued that its CC&Rs referenced the "growth of turf" (Section 8.8), anticipating only natural grass, and that artificial turf would disrupt the harmony and uniformity of the community, where all front yards consist of natural grass. Additionally, early denials cited the plans as being "conceptual" and lacking vital information.
  1. Petitioner's Position: Petitioner argued that the Los Reyes CC&Rs are silent regarding the prohibition of artificial turf. Petitioner emphasized that the Los Reyes CC&Rs Article 9.4 incorporates the superior McCormick Ranch Restrictions and Architectural Control Criteria, stipulating that Los Reyes’ rules "shall not contradict them". McCormick Ranch criteria explicitly permit artificial turf subject to quality standards and limits (e.g., typically not more than 30% of the front yard area), a condition Petitioner claimed his plan met. Petitioner further argued that the A.R.S. § 33-1819(B) exemption did not apply because maintenance responsibility is shared: while the HOA handles mowing and trimming (Section 6.2), the owner pays for and controls the irrigation water (Section 8.8).

Outcome and Legal Points

The Administrative Law Judge (ALJ) Sondra J. Vanella issued a decision on April 13, 2023, affirming Petitioner’s petition.

The ALJ concluded that Petitioner established by a preponderance of the evidence that the disapproval violated the CC&Rs. Key legal findings included:

  • The maintenance of the front yards is shared between the homeowners (who pay for and control irrigation) and the Respondent HOA.
  • Respondent’s CC&Rs are silent as to artificial turf and do not prohibit it.
  • Los Reyes cannot contradict the McCormick Ranch Rules and Regulations, which permit artificial turf, as mandated by Los Reyes CC&Rs Article 9.4.
  • The ALJ found that the installation of artificial turf, under the circumstances, would not be contrary to the "overall goal of harmony of external design".

The Order required Respondent to comply with the CC&Rs Section 8.8 going forward and to reimburse Petitioner the $500.00 filing fee.

Questions

Question

Can my HOA prohibit artificial turf if the CC&Rs don't specifically ban it?

Short Answer

Likely not. If the CC&Rs are silent regarding artificial turf and do not explicitly prohibit it, the HOA may not be able to enforce a ban, especially if a master association permits it.

Detailed Answer

The Administrative Law Judge ruled that because the HOA's CC&Rs were silent regarding artificial turf and did not explicitly prohibit it, they could not ban it. This was further reinforced because the master association's rules, which the sub-association could not contradict, explicitly permitted artificial turf.

Alj Quote

Although Respondent’s CC&Rs are silent as to artificial turf, they do not prohibit artificial turf and they shall not contradict McCormick Ranch’s Rules and Regulations.

Legal Basis

CC&Rs Construction; A.R.S. § 33-1819

Topic Tags

  • artificial turf
  • CC&Rs interpretation
  • architectural requests

Question

Can a sub-association ban artificial turf if the master association allows it?

Short Answer

No, generally a sub-association cannot contradict the master association's rules if its own governing documents prohibit such contradictions.

Detailed Answer

In this case, the sub-association's CC&Rs incorporated the master association's rules and stated they could not contradict them. Since the master association allowed artificial turf, the sub-association could not prohibit it.

Alj Quote

McCormick Ranch allows artificial turf, and Respondent cannot contradict McCormick Ranch’s Rules and Regulations according to Respondent’s CC&Rs Section 9.4.

Legal Basis

CC&Rs Section 9.4; Governing Documents Hierarchy

Topic Tags

  • master association
  • sub-association
  • conflicting rules

Question

Does the HOA mowing my front lawn give them the exclusive right to ban artificial turf under state law?

Short Answer

Not necessarily, if the maintenance is shared. If the homeowner is responsible for irrigation and replacing plants, the HOA does not have exclusive maintenance rights to prohibit turf under A.R.S. § 33-1819(B).

Detailed Answer

The HOA argued that because they mowed the lawn, they could prohibit artificial turf under A.R.S. § 33-1819(B). However, the judge found that because the homeowner paid for water and was responsible for keeping plants healthy (shared maintenance), the HOA could not use the maintenance statute to completely ban turf.

Alj Quote

In this case, it is undisputed that Petitioner pays for and can control the irrigation of his property. It is also undisputed that the maintenance of the front yards of the homes within Respondent is shared between the individual homeowners and Respondent.

Legal Basis

A.R.S. § 33-1819(B); CC&Rs Section 8.8

Topic Tags

  • maintenance responsibility
  • artificial turf
  • state statute

Question

Can an HOA deny an architectural request claiming it disrupts the 'harmony' of the neighborhood?

Short Answer

They can claim it, but a judge may overrule them if the evidence shows the improvement (like artificial turf) wouldn't actually violate the goal of harmony.

Detailed Answer

The HOA denied the request based on the 'overall goal of harmony,' arguing that artificial turf would look different from the natural grass in the neighborhood. The judge reviewed the evidence and concluded that installing artificial turf would not actually be contrary to the goal of harmony.

Alj Quote

The Administrative Law Judge further concludes based on the evidence presented at hearing, that the installation of artificial turf would not be contrary to the “overall goal of harmony of external design” as asserted by Respondent.

Legal Basis

Subjective Standards; Harmony Provisions

Topic Tags

  • architectural control
  • harmony
  • aesthetics

Question

Who has the burden of proof when a homeowner challenges an HOA decision?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation by a preponderance of the evidence.

Detailed Answer

The decision explicitly states that in these administrative hearings, the Petitioner (the homeowner filing the complaint) bears the burden of proving that the HOA violated its governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated its CC&Rs Article VIII, Section 8.8.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

If I win my case against the HOA, can I get my filing fee back?

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 reimburse the $500.00 filing fee the homeowner paid to bring the case.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Can the HOA deny my plans for being 'conceptual' if I provided specific details?

Short Answer

No. If the plans include specific information like plant types, numbers, and dimensions, the HOA cannot validly deny them as merely 'conceptual'.

Detailed Answer

The HOA denied the application claiming plans were 'conceptual.' The judge noted the plans contained specific types and numbers of plants, dimensions, and detailed renderings, and ultimately ruled the disapproval was a violation.

Alj Quote

Those plans contain the types and number of plants proposed, and the dimensions and shape of the area of artificial turf, and detailed renderings.

Legal Basis

Reasonableness of Approval Process

Topic Tags

  • architectural plans
  • application denial
  • reasonableness

Case

Docket No
22F-H2222063-REL
Case Title
Smoot Carl-Mitchell v. Los Reyes Homeowners Association, Inc.
Decision Date
2023-04-13
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA prohibit artificial turf if the CC&Rs don't specifically ban it?

Short Answer

Likely not. If the CC&Rs are silent regarding artificial turf and do not explicitly prohibit it, the HOA may not be able to enforce a ban, especially if a master association permits it.

Detailed Answer

The Administrative Law Judge ruled that because the HOA's CC&Rs were silent regarding artificial turf and did not explicitly prohibit it, they could not ban it. This was further reinforced because the master association's rules, which the sub-association could not contradict, explicitly permitted artificial turf.

Alj Quote

Although Respondent’s CC&Rs are silent as to artificial turf, they do not prohibit artificial turf and they shall not contradict McCormick Ranch’s Rules and Regulations.

Legal Basis

CC&Rs Construction; A.R.S. § 33-1819

Topic Tags

  • artificial turf
  • CC&Rs interpretation
  • architectural requests

Question

Can a sub-association ban artificial turf if the master association allows it?

Short Answer

No, generally a sub-association cannot contradict the master association's rules if its own governing documents prohibit such contradictions.

Detailed Answer

In this case, the sub-association's CC&Rs incorporated the master association's rules and stated they could not contradict them. Since the master association allowed artificial turf, the sub-association could not prohibit it.

Alj Quote

McCormick Ranch allows artificial turf, and Respondent cannot contradict McCormick Ranch’s Rules and Regulations according to Respondent’s CC&Rs Section 9.4.

Legal Basis

CC&Rs Section 9.4; Governing Documents Hierarchy

Topic Tags

  • master association
  • sub-association
  • conflicting rules

Question

Does the HOA mowing my front lawn give them the exclusive right to ban artificial turf under state law?

Short Answer

Not necessarily, if the maintenance is shared. If the homeowner is responsible for irrigation and replacing plants, the HOA does not have exclusive maintenance rights to prohibit turf under A.R.S. § 33-1819(B).

Detailed Answer

The HOA argued that because they mowed the lawn, they could prohibit artificial turf under A.R.S. § 33-1819(B). However, the judge found that because the homeowner paid for water and was responsible for keeping plants healthy (shared maintenance), the HOA could not use the maintenance statute to completely ban turf.

Alj Quote

In this case, it is undisputed that Petitioner pays for and can control the irrigation of his property. It is also undisputed that the maintenance of the front yards of the homes within Respondent is shared between the individual homeowners and Respondent.

Legal Basis

A.R.S. § 33-1819(B); CC&Rs Section 8.8

Topic Tags

  • maintenance responsibility
  • artificial turf
  • state statute

Question

Can an HOA deny an architectural request claiming it disrupts the 'harmony' of the neighborhood?

Short Answer

They can claim it, but a judge may overrule them if the evidence shows the improvement (like artificial turf) wouldn't actually violate the goal of harmony.

Detailed Answer

The HOA denied the request based on the 'overall goal of harmony,' arguing that artificial turf would look different from the natural grass in the neighborhood. The judge reviewed the evidence and concluded that installing artificial turf would not actually be contrary to the goal of harmony.

Alj Quote

The Administrative Law Judge further concludes based on the evidence presented at hearing, that the installation of artificial turf would not be contrary to the “overall goal of harmony of external design” as asserted by Respondent.

Legal Basis

Subjective Standards; Harmony Provisions

Topic Tags

  • architectural control
  • harmony
  • aesthetics

Question

Who has the burden of proof when a homeowner challenges an HOA decision?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation by a preponderance of the evidence.

Detailed Answer

The decision explicitly states that in these administrative hearings, the Petitioner (the homeowner filing the complaint) bears the burden of proving that the HOA violated its governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated its CC&Rs Article VIII, Section 8.8.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

If I win my case against the HOA, can I get my filing fee back?

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 reimburse the $500.00 filing fee the homeowner paid to bring the case.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Can the HOA deny my plans for being 'conceptual' if I provided specific details?

Short Answer

No. If the plans include specific information like plant types, numbers, and dimensions, the HOA cannot validly deny them as merely 'conceptual'.

Detailed Answer

The HOA denied the application claiming plans were 'conceptual.' The judge noted the plans contained specific types and numbers of plants, dimensions, and detailed renderings, and ultimately ruled the disapproval was a violation.

Alj Quote

Those plans contain the types and number of plants proposed, and the dimensions and shape of the area of artificial turf, and detailed renderings.

Legal Basis

Reasonableness of Approval Process

Topic Tags

  • architectural plans
  • application denial
  • reasonableness

Case

Docket No
22F-H2222063-REL
Case Title
Smoot Carl-Mitchell v. Los Reyes Homeowners Association, Inc.
Decision Date
2023-04-13
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carl-Mitchell Smoot (petitioner)
    Los Reyes Homeowners Association, Inc. (Member)
    Former HOA President/Treasurer
  • Stewart F. Gross (petitioner attorney)
    Law Offices of Stewart F. Gross, PLLC

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
  • Denise Mueller (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA Vice President; ALC Member
  • Dawn Feigert (property manager/witness)
    Trestle Management Group
    Senior Manager at HOA management company
  • Timothy Fischer (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA Treasurer; ALC Member
  • Kirk Nelson (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA President; ALC Member
  • Jan Greenfield (board member)
    Los Reyes Homeowners Association, Inc.
    Former ARC Chair

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Presided over hearings and issued final decision
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
    Listed in transmission records prior to final decision
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
    Listed in final decision transmission
  • Tammy L. Eigenheer (ALJ)
    OAH
    Presided over initial continuances
  • c. serrano (OAH Staff)
    OAH
    Document processor

Other Participants

  • Valerie (McCormick Ranch Staff)
    McCormick Ranch Property Owners Association
    Contact regarding compliance

Evin Abromowitz v. The Meadows Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2222038-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-22
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the homeowner failed to prove the HOA violated CC&Rs Sections 3.5 or 3.6 regarding its authority to enact or enforce the rules and regulations that were at issue.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Evin Abromowitz Counsel —
Respondent The Meadows Homeowners Association Counsel Nicholas Nogami, Esq.

Alleged Violations

CC&Rs, Section 3.5 and 3.6

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the homeowner failed to prove the HOA violated CC&Rs Sections 3.5 or 3.6 regarding its authority to enact or enforce the rules and regulations that were at issue.

Why this result: Petitioner failed to sustain her burden of proving by a preponderance of the evidence that the Respondent violated CC&Rs Section 3.5 or 3.6. The ALJ concluded that the HOA was authorized to enact rules relating to the operation of the association and to enforce them.

Key Issues & Findings

Petitioner claimed Respondent violated CC&Rs 3.5 and 3.6 regarding its power to adopt and enforce rules by applying rules allegedly unrelated to the operation of the association and/or failing to follow protocol.

Petitioner challenged the HOA's authority to enact (3.5) and enforce (3.6) specific rules, arguing they were not related to association operation (e.g., controlling off-site email communication or fining for vendor interaction) and that enforcement protocols were violated. The ALJ denied the petition, finding the HOA was authorized to enact and enforce rules related to the operation of the association, and Petitioner failed to meet her burden of proof.

Orders: Petitioner's petition is 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.
  • 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: HOA rules and regulations, CC&Rs, Enforcement authority, Burden of Proof, Planned community association dispute
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.
  • 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

22F-H2222038-REL Decision – 966844.pdf

Uploaded 2026-04-24T11:48:55 (48.2 KB)

22F-H2222038-REL Decision – 969590.pdf

Uploaded 2026-04-24T11:48:58 (44.1 KB)

22F-H2222038-REL Decision – 994145.pdf

Uploaded 2026-04-24T11:49:02 (145.3 KB)

22F-H2222038-REL Decision – 966844.pdf

Uploaded 2026-01-23T17:45:56 (48.2 KB)

22F-H2222038-REL Decision – 969590.pdf

Uploaded 2026-01-23T17:46:01 (44.1 KB)

22F-H2222038-REL Decision – 994145.pdf

Uploaded 2026-01-23T17:46:05 (145.3 KB)

This summary addresses the hearing proceedings, key arguments, and final decision in the matter of *Evin Abromowitz vs The Meadows Homeowners Association*, Docket No. 22F-H2222038-REL.

Key Facts and Procedural History

The Petitioner, Evin Abromowitz, is a property owner and member of the Respondent Homeowners Association (HOA). The case was heard by Administrative Law Judge (ALJ) Tammy L. Eigenheer at the Office of Administrative Hearings (OAH) on July 20, 2022. The Petitioner contested fines levied by the HOA, which stemmed from alleged conduct including sending derogatory emails to the HOA President/Manager and assistant community manager (carrying $500.00 fines each), and hindering a hired vendor ($100.00 fine). The Petitioner did not attend the scheduled HOA violation hearing, instead filing a petition with the Department of Real Estate.

Main Legal Issues

The core legal issue was whether the Respondent HOA violated specific sections of its Covenants, Conditions, and Restrictions (CC&Rs) through the enactment and enforcement of its rules. Specifically, the Petitioner alleged violations of CC&Rs Section 3.5 (Power to Adopt Rules and Regulations) and Section 3.6 (Power to Enforce Declaration and Rules & Regulations). The Petitioner bore the burden of proving these alleged violations by a preponderance of the evidence.

Key Arguments

  • Petitioner's Argument: Petitioner argued the rules regarding "derogatory language" were unrelated to the operation of the association or property, especially since the communication occurred via off-site email, thereby violating Section 3.5. Regarding Section 3.6, Petitioner argued the HOA failed to follow its own enforcement protocol by not providing violation notices or courtesy notifications, and by issuing one fine 47 days after the alleged event. Petitioner also characterized the enforcement measures as retaliation.
  • Respondent's Argument: The Respondent, represented by Nicholas Nogami, argued that the rules drafted and promulgated were certainly relevant to the association's business and well within its authority pursuant to the declaration. The HOA presented testimony from its manager/president, Lynn Mater, confirming the rules were duly approved by the Board in August 2021 and reviewed by legal counsel. The HOA maintained that the rules related to association operations and governance. The ALJ clarified throughout the hearing that the focus was strictly on the HOA's authority to adopt and enforce the rules (3.5 and 3.6), not on the individual facts of the alleged violations against the Petitioner.

Outcome and Final Decision

The ALJ issued the Administrative Law Judge Decision on August 22, 2022, ordering that the Petitioner’s petition be denied.

The ALJ concluded that the Petitioner failed to sustain her burden of proof. The decision held that the material facts were clear: the Respondent was authorized to enact rules and regulations relating to the operation of the association, and the rules at issue do relate to the operation of the association. Furthermore, the Respondent was authorized to enforce the rules it promulgated. Since the Petitioner failed to establish a violation of either Section 3.5 or 3.6 of the CC&Rs, the petition was denied.

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs are an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person purchases a property within an HOA, they agree to be bound by the terms of the CC&Rs. The decision explicitly states that this document constitutes a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between Respondent and each property owner.

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

Can an HOA create rules regarding behavior toward staff and board members?

Short Answer

Yes, rules prohibiting harassment or abuse of staff and board members are valid.

Detailed Answer

The ALJ determined that rules governing conduct towards the board and management relate to the operation of the association and are therefore within the HOA's authority to enact.

Alj Quote

Respondent was authorized to enact rules and regulations relating to the operation of the association. The rules at issue in this matter relate to the operation of the association.

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

Yes, due written notice and an opportunity for a hearing are generally required.

Detailed Answer

The decision cites the HOA's specific fine guidelines which mandate that a member must be given notice and a chance to be heard before a fine is assessed.

Alj Quote

No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

What is the burden of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their contention is more likely true than not. The burden is on the petitioner to prove the HOA violated its documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

The ALJ upheld the HOA's authority to enforce rules that include fines for hindering hired vendors, as these rules relate to the association's operations.

Alj Quote

Hindering a hired vendor from their work at another property in The Meadows. This violation carries a $100.00 fine.

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

If I challenge the validity of a rule, will the judge also decide if I am guilty of the specific violation?

Short Answer

Not necessarily; the judge only decides the issues raised in the petition.

Detailed Answer

If a homeowner's petition only challenges the HOA's authority to make a rule, the ALJ will not rule on the facts of the specific violation (e.g., whether the conduct actually happened) if that issue was not explicitly raised.

Alj Quote

While Petitioner may have wanted to argue that the alleged violations brought against her were not proper, she did not raise that issue in her Petition.

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

Does the HOA have the power to enforce rules that are not explicitly detailed in the original CC&Rs?

Short Answer

Yes, if the CC&Rs grant the power to adopt and enforce new rules.

Detailed Answer

The CC&Rs in this case allowed the Association to adopt new rules deemed necessary for the operation of the association, and gave them the same force as the Declaration.

Alj Quote

The Association shall have the power to enforce the provisions of this Declaration and of Rules & Regulations by any lawful remedy or means…

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

Docket No
22F-H2222038-REL
Case Title
Evin Abromowitz vs The Meadows Homeowners Association
Decision Date
2022-08-22
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs are an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person purchases a property within an HOA, they agree to be bound by the terms of the CC&Rs. The decision explicitly states that this document constitutes a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between Respondent and each property owner.

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

Can an HOA create rules regarding behavior toward staff and board members?

Short Answer

Yes, rules prohibiting harassment or abuse of staff and board members are valid.

Detailed Answer

The ALJ determined that rules governing conduct towards the board and management relate to the operation of the association and are therefore within the HOA's authority to enact.

Alj Quote

Respondent was authorized to enact rules and regulations relating to the operation of the association. The rules at issue in this matter relate to the operation of the association.

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

Yes, due written notice and an opportunity for a hearing are generally required.

Detailed Answer

The decision cites the HOA's specific fine guidelines which mandate that a member must be given notice and a chance to be heard before a fine is assessed.

Alj Quote

No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

What is the burden of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their contention is more likely true than not. The burden is on the petitioner to prove the HOA violated its documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

The ALJ upheld the HOA's authority to enforce rules that include fines for hindering hired vendors, as these rules relate to the association's operations.

Alj Quote

Hindering a hired vendor from their work at another property in The Meadows. This violation carries a $100.00 fine.

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

If I challenge the validity of a rule, will the judge also decide if I am guilty of the specific violation?

Short Answer

Not necessarily; the judge only decides the issues raised in the petition.

Detailed Answer

If a homeowner's petition only challenges the HOA's authority to make a rule, the ALJ will not rule on the facts of the specific violation (e.g., whether the conduct actually happened) if that issue was not explicitly raised.

Alj Quote

While Petitioner may have wanted to argue that the alleged violations brought against her were not proper, she did not raise that issue in her Petition.

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

Does the HOA have the power to enforce rules that are not explicitly detailed in the original CC&Rs?

Short Answer

Yes, if the CC&Rs grant the power to adopt and enforce new rules.

Detailed Answer

The CC&Rs in this case allowed the Association to adopt new rules deemed necessary for the operation of the association, and gave them the same force as the Declaration.

Alj Quote

The Association shall have the power to enforce the provisions of this Declaration and of Rules & Regulations by any lawful remedy or means…

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

Docket No
22F-H2222038-REL
Case Title
Evin Abromowitz vs The Meadows Homeowners Association
Decision Date
2022-08-22
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Evin Abromowitz (petitioner)
    Property owner and member of The Meadows Homeowners Association.
  • Carolyn C. E. Davis (witness)
    Known as Carrie Davis.
  • Shannon Kelsey (witness)
    Former employee of the association.
  • Patrick Scott (witness)
    Witness for Petitioner.

Respondent Side

  • Nicholas Nogami (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
    Represented The Meadows Homeowners Association.
  • Lynn Mater (HOA President/manager/witness)
    The Meadows Homeowners Association/ADAM LLC
    Testified for Respondent.
  • Jacqueline Conoy (assistant community manager)
    ADAM LLC/The Meadows Homeowners Association
    Recipient of emails from Petitioner.
  • Omid (board member)
    The Meadows Homeowners Association
    Mentioned in relation to drafting rules with Lynn.
  • Hiker (attorney associate)
    Carpenter Hazlewood Delgado & Bolen, LLP (implied)
    Appeared on the call with Nicholas Nogami.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge.
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH administrative staff)
    OAH
    Signed transmission.
  • Miranda Alvarez (legal secretary)
    Signed transmission.

David G. Iadevavia v. Ventana Shadows Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2222044-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-29
Administrative Law Judge Velva Moses-Thompson
Outcome The HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against Petitioner regarding his mobile observatory.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David G. Iadevavia Counsel —
Respondent Ventana Shadows Homeowners Association, Inc. Counsel Carolyn B. Goldschmidt, Esq.

Alleged Violations

CC&R Section 2.16

Outcome Summary

The HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against Petitioner regarding his mobile observatory.

Why this result: Petitioner failed to prove that the mobile observatory was not a trailer under the plain and obvious meaning of CC&R Section 2.16, or that the HOA's enforcement constituted illegal selective enforcement.

Key Issues & Findings

Selective enforcement of CC&R Section 2.16 regarding vehicles/trailers.

Petitioner alleged that the HOA selectively enforced CC&R Section 2.16 (regarding parking/vehicles/trailers) against him concerning his 'mobile observatory' while failing to enforce the rule or similar rules against other homeowners (sheds).

Orders: The Administrative Law Judge determined that the HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against the Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Arizona Biltmore Estates vs. TZAC, 868 T2 1030
  • Arizona Biltmore Estates vs. TZAC, 177 Arizona 47
  • Burke versus Voice Screen Wireless Corporation, 87P381
  • Burke versus Voice Screen Wireless Corporation, 207 Arizona 393
  • Restatement (Third) of Property: Servitudes § 6.13(1)(b),(c) (2000)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • A.R.S. 41-1092.07
  • A.A.C. R2-19-106(D)
  • A.A.C. R2-19-113(A)(3) and (4)
  • A.A.C. R2-19-116

Analytics Highlights

Topics: HOA, CC&Rs, Selective Enforcement, Trailer, Mobile Observatory, Parking
Additional Citations:

  • CC&R Section 2.16
  • Restatement (Third) of Property: Servitudes
  • Arizona Biltmore Estates vs. TZAC
  • Burke versus Voice Screen Wireless Corporation

Video Overview

Audio Overview

Decision Documents

22F-H2222044-REL Decision – 973802.pdf

Uploaded 2026-04-29T11:07:26 (46.0 KB)

22F-H2222044-REL Decision – 974694.pdf

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22F-H2222044-REL Decision – 975118.pdf

Uploaded 2026-04-29T11:07:30 (40.9 KB)

22F-H2222044-REL Decision – 977059.pdf

Uploaded 2026-04-29T11:07:33 (52.0 KB)

22F-H2222044-REL Decision – 977202.pdf

Uploaded 2026-04-29T11:07:35 (48.2 KB)

22F-H2222044-REL Decision – 977294.pdf

Uploaded 2026-04-29T11:07:40 (6.1 KB)

22F-H2222044-REL Decision – 978417.pdf

Uploaded 2026-04-29T11:07:42 (50.1 KB)

22F-H2222044-REL Decision – 978990.pdf

Uploaded 2026-04-29T11:07:44 (44.1 KB)

22F-H2222044-REL Decision – 978991.pdf

Uploaded 2026-04-29T11:07:46 (42.3 KB)

22F-H2222044-REL Decision – 979005.pdf

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22F-H2222044-REL Decision – 982403.pdf

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22F-H2222044-REL Decision – 993469.pdf

Uploaded 2026-04-29T11:07:53 (55.5 KB)

22F-H2222044-REL Decision – 973802.pdf

Uploaded 2026-01-23T17:47:05 (46.0 KB)

22F-H2222044-REL Decision – 974694.pdf

Uploaded 2026-01-23T17:47:08 (48.1 KB)

22F-H2222044-REL Decision – 975118.pdf

Uploaded 2026-01-23T17:47:12 (40.9 KB)

22F-H2222044-REL Decision – 977059.pdf

Uploaded 2026-01-23T17:47:15 (52.0 KB)

22F-H2222044-REL Decision – 977202.pdf

Uploaded 2026-01-23T17:47:20 (48.2 KB)

22F-H2222044-REL Decision – 977294.pdf

Uploaded 2026-01-23T17:47:23 (6.1 KB)

22F-H2222044-REL Decision – 978417.pdf

Uploaded 2026-01-23T17:47:26 (50.1 KB)

22F-H2222044-REL Decision – 978990.pdf

Uploaded 2026-01-23T17:47:31 (44.1 KB)

22F-H2222044-REL Decision – 978991.pdf

Uploaded 2026-01-23T17:47:34 (42.3 KB)

22F-H2222044-REL Decision – 979005.pdf

Uploaded 2026-01-23T17:47:38 (50.4 KB)

22F-H2222044-REL Decision – 982403.pdf

Uploaded 2026-01-23T17:47:42 (55.2 KB)

22F-H2222044-REL Decision – 993469.pdf

Uploaded 2026-01-23T17:47:44 (55.5 KB)

This summary addresses the hearing proceedings, key facts, main issues, and the status of the final decision in the matter of *David G. Iadevavia v. Ventana Shadows Homeowners Association, Inc.* (No. 22F-H2222044-REL) before the Office of Administrative Hearings.

Summary of Hearing Proceedings

Key Facts & Procedural History

The Petitioner, David G. Iadevavia, proceeded *pro se* following the grant of his prior counsel's withdrawal. The Respondent, Ventana Shadows Homeowners Association, Inc. (HOA), was represented by Carolyn Goldmith. The hearing was conducted virtually on June 27, 2022, before Administrative Law Judge (ALJ) Velva Moses-Thompson.

The ALJ initially identified three potential issues based on Iadevavia’s petition (CCNR 2.16, ARS 33-1803, ARS 33-1804), requiring $1,500 in fees, but since only $500 was paid, the matter was narrowed to a single issue. The final issue for determination, established after a pre-hearing conference and subsequent amendment, was: Whether the Respondent Ventana Shadows Homeowners Association, Inc. selectively enforced section 2.16 of the CC&Rs against Petitioner David G. Iadevavia while at the same time not enforcing it against other homeowners, including homeowners who currently serve on the board.

The ALJ denied Iadevavia's subsequent motion to amend the hearing issue further, citing lack of jurisdiction. The ALJ also denied Iadevavia's request for a subpoena because it did not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Key Arguments and Legal Points

Petitioner's Argument (Iadevavia): Selective Enforcement and Ambiguity

Iadevavia, a retired professor of astronomy and physics, argued that the HOA selectively enforced the restrictive covenant, specifically CCNR 2.16, against him.

  1. Object Identification: He contended that his "mobile observatory" was factually a storage shed on a trailer, not a trailer or recreational vehicle. He presented photos showing that the HOA had seemingly "grandfathered" numerous storage sheds owned by other residents, including board members, that were visible above walls. Since "storage shed" was not defined in the CCNRs, he argued the board failed to act reasonably by not grandfathering his structure.
  2. CCNR Ambiguity: Iadevavia emphasized that the CCNRs lacked clear definitions for key terms like "trailer," "storage shed," "garage," or "driveway". He asserted that without unambiguous definitions, the board relied on subjectivity, leading to selective enforcement.
  3. Inconsistent Application: He noted the board's delay of 270 days in denying his Architectural Review Committee (ARC) request to shield the object, despite a 30-day requirement, demonstrating that the board does not follow its own rules.

Respondent's Argument (HOA): Plain Meaning and Contract Law

The HOA focused on the plain meaning of the CCNRs and legal standards governing restrictive covenants.

  1. Plain Meaning of "Trailer": The HOA asserted that Iadevavia’s object was commonly understood to be a trailer (utility trailer or RV). Witnesses confirmed the structure had features like axles, wheels, and a license plate.
  2. Contractual Interpretation: The HOA argued that CCNRs are considered a contract under Arizona law, and a term is only ambiguous if it defeats the plain and obvious meaning of the restriction. They cited case law (*Arizona Builtmore Estates v. TZAK*; *Burke v. Voice Screen Wireless Corporation*) to support the reliance on commonly accepted meanings when terms are undefined.
  3. Applicability of 2.16: CCNR 2.16.2 requires that vehicles like trailers must be stored in an enclosed garage or screened from view. The HOA noted that the specific violation regarding visibility was resolved when Iadevavia erected a wooden structure in early 2021. The HOA distinguished Iadevavia’s mobile trailer from stationary, constructed sheds, arguing that equating the two makes "no sense" und

Questions

Question

Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?

Short Answer

No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.

Detailed Answer

The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.

Alj Quote

This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

Am I entitled to a rebuttal closing argument after the hearing record closes?

Short Answer

No. Rebuttal closing arguments are generally not permitted under OAH rules.

Detailed Answer

Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.

Alj Quote

Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?

Short Answer

The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.

Detailed Answer

In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.

Alj Quote

IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.

Detailed Answer

A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.

Alj Quote

IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

Does the filing fee cover multiple unrelated issues in my petition?

Short Answer

No. The filing fee is tied to the number of issues; additional issues require additional payment.

Detailed Answer

If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.

Alj Quote

With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.

Alj Quote

IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?

Short Answer

No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.

Detailed Answer

The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.

Alj Quote

This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

Am I entitled to a rebuttal closing argument after the hearing record closes?

Short Answer

No. Rebuttal closing arguments are generally not permitted under OAH rules.

Detailed Answer

Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.

Alj Quote

Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?

Short Answer

The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.

Detailed Answer

In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.

Alj Quote

IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.

Detailed Answer

A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.

Alj Quote

IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

Does the filing fee cover multiple unrelated issues in my petition?

Short Answer

No. The filing fee is tied to the number of issues; additional issues require additional payment.

Detailed Answer

If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.

Alj Quote

With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.

Alj Quote

IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • David G. Iadevavia (petitioner)
  • Jill H. Perrella (attorney)
    Snell & Wilmer LLP

Respondent Side

  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt | Shupe, PLLC
  • Bill Borg (witness/board member)
  • Jason Bader (witness/board member)

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
  • M Alvarez (OAH staff)
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • Rick Abbott (spectator)

Nancy L Pope v. La Vida Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221013-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-02
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge granted Petitioner's request, finding that the HOA violated its community documents regarding common area maintenance because a bottle tree in the common area caused damage to Petitioner's property. The ALJ ordered the HOA to comply with the relevant community document provisions and refund the Petitioner's $500.00 filing fee. The ALJ noted she lacked statutory authority to award the approximately $28,486.00 in monetary damages requested by Petitioner.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy L Pope Counsel —
Respondent La Vida Homeowners Association Counsel Erik J. Stone

Alleged Violations

CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c

Outcome Summary

The Administrative Law Judge granted Petitioner's request, finding that the HOA violated its community documents regarding common area maintenance because a bottle tree in the common area caused damage to Petitioner's property. The ALJ ordered the HOA to comply with the relevant community document provisions and refund the Petitioner's $500.00 filing fee. The ALJ noted she lacked statutory authority to award the approximately $28,486.00 in monetary damages requested by Petitioner.

Key Issues & Findings

HOA failure to maintain common area landscaping resulting in root damage to homeowner property.

The Respondent HOA violated its community document obligations for common area maintenance (including landscaping) because a bottle tree located in the common area caused substantial root intrusion damage (lifting and heaving) to the Petitioner's patio and concrete slab.

Orders: Petition granted. Respondent ordered to abide by CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c. Respondent ordered to pay Petitioner the filing fee of $500.00 within thirty (30) days. No civil penalty imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • 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. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Analytics Highlights

Topics: homeowner rights, maintenance violation, root damage, planned community, bottle tree, CC&Rs
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • 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. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Video Overview

Audio Overview

Decision Documents

22F-H2221013-REL Decision – 932121.pdf

Uploaded 2026-04-30T09:52:28 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-04-30T09:52:34 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-04-30T09:52:42 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-04-30T09:52:48 (46.1 KB)

22F-H2221013-REL Decision – 932121.pdf

Uploaded 2026-01-23T17:41:00 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-01-23T17:41:05 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-01-23T17:41:08 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-01-23T17:41:10 (46.1 KB)

This summary details the hearing proceedings, key arguments, and final decision in the case of Nancy L. Pope v. La Vida Homeowners Association (No. 22F-H2221013-REL).

Key Facts and Issues

Petitioner Nancy L. Pope, a homeowner in the La Vida subdivision, filed a petition against the La Vida Homeowners Association (HOA), alleging violations of the HOA's Bylaws (Article IV, Section 2c) and CC&Rs (Article V, Section 1; Article VI, Section 1a). The central dispute stemmed from the HOA’s alleged failure to maintain or remove a bottle tree located on the Common Area adjacent to Petitioner’s property, resulting in root intrusion that caused heaving and cracking of Petitioner’s concrete slab and patio.

The damage was discovered in June 2021 during a home remodel, when Petitioner’s contractor tore up the concrete slab and found a substantial web of roots from the bottle tree. Petitioner sought total damages of $28,487, covering floor repair, patio replacement, grinding, and the $550.00 cost Petitioner incurred to remove the bottle tree.

Key Arguments

  1. Petitioner's Argument (Negligence and Maintenance Duty): Petitioner argued the HOA was negligent in its maintenance duty. Testimony established that bottle trees are known for their aggressive root systems, which can spread up to 100 feet, and should generally be planted at least 25 to 30 feet from structures. Petitioner argued that the HOA, responsible for common area maintenance, should have been aware of the risks posed by the bottle tree planted close to her home. Petitioner also cited the delay of several months in authorizing the removal of the tree as contributing to increased damages.
  2. Respondent's Argument (Lack of Knowledge and Origin): The HOA denied negligence, arguing they had fulfilled their duty by trimming the trees. Respondent asserted that the trees were planted by a predecessor homeowner, not the HOA or developer, and that Petitioner's own irrigation system had watered them. Crucially, the HOA argued that it was not negligent because it "did not know or have reason to know" of the subterranean root intrusion prior to the damage discovery in June 2021, and proactive root maintenance was not an industry standard.

Outcome and Legal Decision

The Administrative Law Judge (ALJ) found that the Petitioner sustained her burden of proving a community document violation by a preponderance of the evidence.

The ALJ granted Petitioner’s petition, concluding that the Respondent violated CC&Rs Article V section 1, Article VI section 1a, and Bylaws Article IV, Section 2c. The ALJ held that the HOA's duty to maintain the Common Area did not end at the boundary line. The core legal finding was that "But for the bottle tree being situated where it was and in the state it was in, there would not be roots coming onto Petitioner’s property to such an extent that caused any amount of damage or harm".

However, in a subsequent order clarifying the scope of authority, the ALJ noted that the statutes governing these disputes (A.R.S. § 32-2199 et seq.) do not grant the Administrative Law Judge authority to award compensatory damages, injunctive relief, or declaratory judgments.

The final *Order* required the Respondent to abide by the community documents and statutes specified. Specifically, the Respondent was ordered to pay Petitioner her filing fee of $500.00.

Questions

Question

If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?

Short Answer

Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.

Detailed Answer

The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.

Alj Quote

Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.

Legal Basis

CC&Rs Article V Section 1; Article VI Section 1a

Topic Tags

  • common area maintenance
  • property damage
  • landscaping
  • liability

Question

Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?

Short Answer

No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.

Detailed Answer

While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.

Alj Quote

Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • damages
  • remedies
  • jurisdiction
  • repairs

Question

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

Short Answer

Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.

Detailed Answer

The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner her filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • reimbursement
  • costs

Question

Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?

Short Answer

The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.

Detailed Answer

The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.

Alj Quote

Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • maintenance definition
  • landscaping
  • negligence defense

Question

What is the standard of proof I need to meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

A.R.S. § 41-1092.07

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Is the HOA liable if they claim they didn't know the roots were causing problems?

Short Answer

Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.

Detailed Answer

The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.

Alj Quote

Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • negligence
  • liability
  • defense arguments

Case

Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?

Short Answer

Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.

Detailed Answer

The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.

Alj Quote

Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.

Legal Basis

CC&Rs Article V Section 1; Article VI Section 1a

Topic Tags

  • common area maintenance
  • property damage
  • landscaping
  • liability

Question

Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?

Short Answer

No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.

Detailed Answer

While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.

Alj Quote

Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • damages
  • remedies
  • jurisdiction
  • repairs

Question

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

Short Answer

Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.

Detailed Answer

The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner her filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • reimbursement
  • costs

Question

Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?

Short Answer

The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.

Detailed Answer

The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.

Alj Quote

Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • maintenance definition
  • landscaping
  • negligence defense

Question

What is the standard of proof I need to meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

A.R.S. § 41-1092.07

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Is the HOA liable if they claim they didn't know the roots were causing problems?

Short Answer

Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.

Detailed Answer

The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.

Alj Quote

Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • negligence
  • liability
  • defense arguments

Case

Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nancy L Pope (petitioner)
  • Ed Humston (witness)
    H&H Enterprises of Arizona
    Petitioner's Contractor

Respondent Side

  • Erik J. Stone (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Gabrielle Sherwood (property manager)
    City Property Management
    Community Manager for La Vida HOA
  • Debbie Duffy (board member)
    La Vida Homeowners Association
    Board Secretary
  • Lawrence Oliva (board member)
    La Vida Homeowners Association
    Board President
  • Barbara (board member)
    La Vida Homeowners Association
    Mentioned in email correspondence

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Santos Diaz (witness)
    CareScape
    Area Manager for CareScape, Respondent's landscaper
  • c. serrano (unknown)
    Transmitted documents
  • Miranda Alvarez (unknown)
    Transmitted documents
  • AHansen (unknown)
    ADRE staff
    Recipient of transmission
  • djones (unknown)
    ADRE staff
    Recipient of transmission
  • DGardner (unknown)
    ADRE staff
    Recipient of transmission
  • vnunez (unknown)
    ADRE staff
    Recipient of transmission
  • tandert (unknown)
    ADRE staff
    Recipient of transmission