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
- 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
- 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
23F-H055-REL Decision – 1086088.pdf
23F-H055-REL Decision – 1062778.pdf
23F-H055-REL Decision – 1086088.pdf
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