Case Summary
| Case ID | 21F-H2121042-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-11-01 |
| Administrative Law Judge | Sondra J. Vanella |
| Outcome | none |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Aaron J. Gragg | Counsel | — |
|---|---|---|---|
| Respondent | Anthem Parkside at Merrill Ranch Community Association, Inc. | Counsel | Curtis Ekmark, Esq. |
Alleged Violations
CC&R Article 12.4(a)
A.R.S. § 33-1803
A.R.S. § 33-1805
CC&R 2.4(a)
Outcome Summary
The Petitioner's Petition, alleging four separate violations of Arizona statutes and CC&Rs (regarding ADR procedures, fraudulent violation assessment, failure to produce documents, and selective enforcement), was denied as the Petitioner failed to prove any of the alleged violations by a preponderance of the evidence.
Why this result: Petitioner failed to meet the burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, or CC&R sections 2.4(a) and 12.4(a).
Key Issues & Findings
Refusal to participate in Alternate Dispute Resolution (ADR)
Petitioner alleged Respondent failed to comply with CC&R Article 12.4(a) regarding ADR. The ALJ found that CC&R Article 12.4(a) excluded proceedings initiated by the Association to enforce architectural, design, and landscape controls from mandatory arbitration.
Orders: Petitioner’s Petition is denied
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- CC&Rs Section 12.4(a)
Fraudulent assessment of violations
Petitioner alleged Respondent assessed violations without observation. Evidence showed Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.
Orders: Petitioner’s Petition is denied
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1803
Failure to produce documents
Petitioner requested documents establishing design review requirements and enforcement authority. The ALJ found Petitioner’s requests were actually legal questions posed to Respondent regarding the CC&Rs, not requests for specific documents or records.
Orders: Petitioner’s Petition is denied
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1805
Selective Enforcement / Similar Treatment
Petitioner alleged selective enforcement because he was required to provide a photograph to prove compliance. The ALJ found Respondent has required photographic verification from other similarly situated non-compliant homeowners since 2010.
Orders: Petitioner’s Petition is denied
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- CC&R Section 2.4(a)
Analytics Highlights
- A.R.S. § 33-1803
- A.R.S. § 33-1805
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
- CC&Rs Section 12.4(a)
- CC&R Section 2.4(a)
Video Overview
Audio Overview
Decision Documents
21F-H2121042-REL Decision – 921903.pdf
Questions
Question
Can I use a records request to force the HOA to explain their legal authority or justification for fines?
Short Answer
No. A records request must be for existing documents, not a method to pose legal questions to the HOA.
Detailed Answer
The ALJ ruled that requests asking for 'evidence… supporting justification' or the 'location of explicit CC&Rs' are actually interrogatories (questions) rather than requests for existing records. The HOA is not required to create new documents to answer legal questions under the guise of a records request.
Alj Quote
Petitioner’s request was not for documents or records, but rather for answers to legal questions.
Legal Basis
A.R.S. § 33-1805
Topic Tags
- records request
- legal authority
- HOA obligations
Question
Can the HOA require me to submit photos proving I fixed a violation?
Short Answer
Yes, particularly if there is a history of non-compliance.
Detailed Answer
The decision found it reasonable for an HOA to require a homeowner to submit photographic evidence to close a violation file, especially when the homeowner had failed to comply for an extended period. This requirement does not necessarily constitute unequal treatment.
Alj Quote
Respondent has requested of homeowners that have not been in compliance with the Landscape Design Guidelines, to submit photographic evidence when in compliance, in order prove such compliance.
Legal Basis
CC&R Section 2.4(a)
Topic Tags
- violations
- compliance
- evidence
Question
Is it discrimination if the HOA asks me for proof of compliance but doesn't ask my neighbors?
Short Answer
Not if you are in a different situation (e.g., non-compliant) than your neighbors.
Detailed Answer
The ALJ determined that homeowners who are not in compliance are not 'similarly situated' to those who completed their obligations on time. Therefore, the HOA can impose different requirements (like submitting photos) on non-compliant owners without violating equal treatment clauses.
Alj Quote
This request is no different than those requests made by Respondent in the past of similarly situated homeowners, i.e., those not in compliance.
Legal Basis
CC&R Section 2.4(a)
Topic Tags
- discrimination
- selective enforcement
- equal treatment
Question
Who has the burden of proof in a hearing against the HOA?
Short Answer
The homeowner (Petitioner) must prove the HOA violated the law or CC&Rs.
Detailed Answer
The homeowner bears the burden of proving their allegations by a 'preponderance of the evidence,' which means showing that the fact sought to be proved is more probable than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, and CC&Rs sections 2.4(a) and 12.4(a).
Legal Basis
A.A.C. R2-19-119
Topic Tags
- hearing process
- burden of proof
- legal standards
Question
Does the HOA have to prove they physically saw a violation?
Short Answer
Yes, but testimony regarding routine inspections is sufficient proof.
Detailed Answer
The homeowner alleged the HOA assessed violations that were not observed. However, the ALJ accepted credible testimony from the Community Standards Administrator that the violations were observed during routine inspections as sufficient proof.
Alj Quote
The credible evidence of record established that Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.
Legal Basis
A.R.S. § 33-1803
Topic Tags
- violations
- inspections
- evidence
Question
Can I sue the HOA for refusing Alternative Dispute Resolution (ADR) if I didn't try to arbitrate?
Short Answer
No. If you skip the arbitration process required by the CC&Rs, you cannot claim the HOA refused ADR.
Detailed Answer
The homeowner claimed the HOA refused ADR procedures. However, the ALJ found that because the homeowner filed a petition with the Department instead of submitting the dispute to binding arbitration as required by the CC&Rs, the claim was invalid.
Alj Quote
Petitioner did not submit the dispute to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, choosing instead to file a Petition with the Department.
Legal Basis
CC&R Section 12.4(a)
Topic Tags
- ADR
- arbitration
- dispute resolution
Case
- Docket No
- 21F-H2121042-REL
- Case Title
- Aaron J. Gragg v. Anthem Parkside at Merrill Ranch Community Association, Inc.
- Decision Date
- 2021-11-01
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can I use a records request to force the HOA to explain their legal authority or justification for fines?
Short Answer
No. A records request must be for existing documents, not a method to pose legal questions to the HOA.
Detailed Answer
The ALJ ruled that requests asking for 'evidence… supporting justification' or the 'location of explicit CC&Rs' are actually interrogatories (questions) rather than requests for existing records. The HOA is not required to create new documents to answer legal questions under the guise of a records request.
Alj Quote
Petitioner’s request was not for documents or records, but rather for answers to legal questions.
Legal Basis
A.R.S. § 33-1805
Topic Tags
- records request
- legal authority
- HOA obligations
Question
Can the HOA require me to submit photos proving I fixed a violation?
Short Answer
Yes, particularly if there is a history of non-compliance.
Detailed Answer
The decision found it reasonable for an HOA to require a homeowner to submit photographic evidence to close a violation file, especially when the homeowner had failed to comply for an extended period. This requirement does not necessarily constitute unequal treatment.
Alj Quote
Respondent has requested of homeowners that have not been in compliance with the Landscape Design Guidelines, to submit photographic evidence when in compliance, in order prove such compliance.
Legal Basis
CC&R Section 2.4(a)
Topic Tags
- violations
- compliance
- evidence
Question
Is it discrimination if the HOA asks me for proof of compliance but doesn't ask my neighbors?
Short Answer
Not if you are in a different situation (e.g., non-compliant) than your neighbors.
Detailed Answer
The ALJ determined that homeowners who are not in compliance are not 'similarly situated' to those who completed their obligations on time. Therefore, the HOA can impose different requirements (like submitting photos) on non-compliant owners without violating equal treatment clauses.
Alj Quote
This request is no different than those requests made by Respondent in the past of similarly situated homeowners, i.e., those not in compliance.
Legal Basis
CC&R Section 2.4(a)
Topic Tags
- discrimination
- selective enforcement
- equal treatment
Question
Who has the burden of proof in a hearing against the HOA?
Short Answer
The homeowner (Petitioner) must prove the HOA violated the law or CC&Rs.
Detailed Answer
The homeowner bears the burden of proving their allegations by a 'preponderance of the evidence,' which means showing that the fact sought to be proved is more probable than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, and CC&Rs sections 2.4(a) and 12.4(a).
Legal Basis
A.A.C. R2-19-119
Topic Tags
- hearing process
- burden of proof
- legal standards
Question
Does the HOA have to prove they physically saw a violation?
Short Answer
Yes, but testimony regarding routine inspections is sufficient proof.
Detailed Answer
The homeowner alleged the HOA assessed violations that were not observed. However, the ALJ accepted credible testimony from the Community Standards Administrator that the violations were observed during routine inspections as sufficient proof.
Alj Quote
The credible evidence of record established that Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.
Legal Basis
A.R.S. § 33-1803
Topic Tags
- violations
- inspections
- evidence
Question
Can I sue the HOA for refusing Alternative Dispute Resolution (ADR) if I didn't try to arbitrate?
Short Answer
No. If you skip the arbitration process required by the CC&Rs, you cannot claim the HOA refused ADR.
Detailed Answer
The homeowner claimed the HOA refused ADR procedures. However, the ALJ found that because the homeowner filed a petition with the Department instead of submitting the dispute to binding arbitration as required by the CC&Rs, the claim was invalid.
Alj Quote
Petitioner did not submit the dispute to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, choosing instead to file a Petition with the Department.
Legal Basis
CC&R Section 12.4(a)
Topic Tags
- ADR
- arbitration
- dispute resolution
Case
- Docket No
- 21F-H2121042-REL
- Case Title
- Aaron J. Gragg v. Anthem Parkside at Merrill Ranch Community Association, Inc.
- Decision Date
- 2021-11-01
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Aaron J. Gragg (petitioner)
Appeared on his own behalf
Respondent Side
- Curtis Ekmark (HOA attorney)
CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Represented Respondent - Michelle Haney (community manager)
Appeared as witness for Respondent
Neutral Parties
- Sondra J. Vanella (ALJ)
- Louis Dettorre (Commissioner)
Arizona Department of Real Estate - AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal - djones (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal - DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of transmittal
