Case Summary
| Case ID | 23F-H026-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-04-04 |
| Administrative Law Judge | Sondra J. Vanella |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Elizabeth Flint | Counsel | — |
|---|---|---|---|
| Respondent | Citation Gardens Cooperative #1 | Counsel | Andrew Vizcarra |
Alleged Violations
A.R.S. § 33-1816(A)
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that the Respondent, Citation Gardens Cooperative #1, does not meet the statutory definition of a planned community, and therefore, the statute prohibiting the denial of solar panels (A.R.S. § 33-1816) does not apply.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1816, as the ALJ determined a cooperative's purposes and functions are separate and distinct from those of a planned community, excluding it from the planned community definition.
Key Issues & Findings
Denial of request to install solar panels
Petitioner alleged Respondent violated A.R.S. § 33-1816(A) by prohibiting the installation of a solar energy device, arguing the Cooperative qualifies as a planned community. Respondent argued it was a Cooperative Corporation, not a planned community, and the statute did not apply.
Orders: No action is required of Respondent in this matter, and the petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1816
- A.R.S. § 33-1802
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
Analytics Highlights
- A.R.S. § 33-1816
- A.R.S. § 33-1802
- A.R.S. § 32-2199.01(A)
Video Overview
Audio Overview
https://open.spotify.com/episode/51A2icH0TP8dmKblCZUFAY
Decision Documents
23F-H026-REL Decision – 1030738.pdf
23F-H026-REL Decision – 1046844.pdf
Questions
Question
Does the Arizona law protecting a homeowner's right to install solar panels apply to housing cooperatives?
Short Answer
No. The ALJ ruled that housing cooperatives do not fit the legal definition of a 'planned community,' so the solar protection statute (A.R.S. § 33-1816) does not apply to them.
Detailed Answer
In this case, a member of a cooperative sought to install solar panels, citing A.R.S. § 33-1816, which prevents planned communities from prohibiting solar devices. The judge determined that while the definition of a planned community does not explicitly list cooperatives as an exclusion, the nature and purpose of a cooperative are distinct enough that they do not fall under the planned community statutes. Therefore, the cooperative was not legally required to permit the installation.
Alj Quote
Although the definition of a planned community does not expressly exclude a cooperative, the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community, as their purposes and functions are separate and distinct.
Legal Basis
A.R.S. § 33-1802; A.R.S. § 33-1816
Topic Tags
- solar panels
- cooperatives
- planned community definition
Question
What happens if the HOA or respondent fails to attend the administrative hearing?
Short Answer
The hearing proceeds without them.
Detailed Answer
If the respondent (the HOA or Cooperative) has been properly notified of the hearing time and date but fails to appear or request a continuance, the Administrative Law Judge will conduct the hearing in their absence. The petitioner will still present their case, but the respondent loses the opportunity to defend themselves in person.
Alj Quote
Consequently, given that Respondent was properly noticed of the hearing, the hearing proceeded in Respondent’s absence.
Legal Basis
Procedural Due Process
Topic Tags
- hearing procedure
- attendance
- default
Question
Who is responsible for proving that a violation occurred in an HOA dispute?
Short Answer
The petitioner (typically the homeowner) bears the burden of proof.
Detailed Answer
The person bringing the complaint must provide sufficient evidence to prove their claims. It is not up to the HOA to disprove the claims initially; the homeowner must affirmatively establish that the HOA violated the governing documents or statutes.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
- burden of proof
- legal standards
Question
Is a housing cooperative considered a 'planned community' under Arizona law?
Short Answer
No, a cooperative is legally distinct from a planned community.
Detailed Answer
The decision clarifies that a planned community generally involves real estate owned/operated by a nonprofit where owners are mandatory members. A cooperative, however, is formed to acquire, own, and operate a housing project where members hold shares. The judge ruled that these are separate legal concepts with different purposes, meaning statutes specific to 'planned communities' do not automatically apply to cooperatives.
Alj Quote
Respondent is a nonprofit corporation that was formed for the purpose of acquiring, owning and operating a cooperative housing project… the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community…
Legal Basis
A.R.S. § 33-1802
Topic Tags
- definitions
- cooperatives
- planned community
Question
What is the standard of evidence required to win a hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
To win, the evidence must show that the claim is 'more probably true than not.' This is a lower standard than 'beyond a reasonable doubt' used in criminal cases. It means the evidence must incline a fair mind to one side even slightly more than the other.
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
Common Law / A.A.C. R2-19-119
Topic Tags
- evidence
- legal standards
Case
- Docket No
- 23F-H026-REL
- Case Title
- Elizabeth Flint v. Citation Gardens Cooperative #1
- Decision Date
- 2023-04-04
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Does the Arizona law protecting a homeowner's right to install solar panels apply to housing cooperatives?
Short Answer
No. The ALJ ruled that housing cooperatives do not fit the legal definition of a 'planned community,' so the solar protection statute (A.R.S. § 33-1816) does not apply to them.
Detailed Answer
In this case, a member of a cooperative sought to install solar panels, citing A.R.S. § 33-1816, which prevents planned communities from prohibiting solar devices. The judge determined that while the definition of a planned community does not explicitly list cooperatives as an exclusion, the nature and purpose of a cooperative are distinct enough that they do not fall under the planned community statutes. Therefore, the cooperative was not legally required to permit the installation.
Alj Quote
Although the definition of a planned community does not expressly exclude a cooperative, the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community, as their purposes and functions are separate and distinct.
Legal Basis
A.R.S. § 33-1802; A.R.S. § 33-1816
Topic Tags
- solar panels
- cooperatives
- planned community definition
Question
What happens if the HOA or respondent fails to attend the administrative hearing?
Short Answer
The hearing proceeds without them.
Detailed Answer
If the respondent (the HOA or Cooperative) has been properly notified of the hearing time and date but fails to appear or request a continuance, the Administrative Law Judge will conduct the hearing in their absence. The petitioner will still present their case, but the respondent loses the opportunity to defend themselves in person.
Alj Quote
Consequently, given that Respondent was properly noticed of the hearing, the hearing proceeded in Respondent’s absence.
Legal Basis
Procedural Due Process
Topic Tags
- hearing procedure
- attendance
- default
Question
Who is responsible for proving that a violation occurred in an HOA dispute?
Short Answer
The petitioner (typically the homeowner) bears the burden of proof.
Detailed Answer
The person bringing the complaint must provide sufficient evidence to prove their claims. It is not up to the HOA to disprove the claims initially; the homeowner must affirmatively establish that the HOA violated the governing documents or statutes.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
- burden of proof
- legal standards
Question
Is a housing cooperative considered a 'planned community' under Arizona law?
Short Answer
No, a cooperative is legally distinct from a planned community.
Detailed Answer
The decision clarifies that a planned community generally involves real estate owned/operated by a nonprofit where owners are mandatory members. A cooperative, however, is formed to acquire, own, and operate a housing project where members hold shares. The judge ruled that these are separate legal concepts with different purposes, meaning statutes specific to 'planned communities' do not automatically apply to cooperatives.
Alj Quote
Respondent is a nonprofit corporation that was formed for the purpose of acquiring, owning and operating a cooperative housing project… the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community…
Legal Basis
A.R.S. § 33-1802
Topic Tags
- definitions
- cooperatives
- planned community
Question
What is the standard of evidence required to win a hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
To win, the evidence must show that the claim is 'more probably true than not.' This is a lower standard than 'beyond a reasonable doubt' used in criminal cases. It means the evidence must incline a fair mind to one side even slightly more than the other.
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
Common Law / A.A.C. R2-19-119
Topic Tags
- evidence
- legal standards
Case
- Docket No
- 23F-H026-REL
- Case Title
- Elizabeth Flint v. Citation Gardens Cooperative #1
- Decision Date
- 2023-04-04
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Elizabeth Flint (petitioner)
Appeared on her own behalf and testified.
Respondent Side
- Andrew Vizcarra (respondent representative)
Tucson Realty & Trust Co. Management Services, L.L.C.
Did not appear at the hearing; also referenced verbally as 'Andrew Biscara'.
Neutral Parties
- Sondra J. Vanella (ALJ)
Office of Administrative Hearings
Other Participants
- James Knupp (Acting Commissioner)
Arizona Department of Real Estate
Listed on the service list for the Order Setting Hearing dated Feb 2, 2023. - Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Listed on the service list for the Decision dated April 4, 2023. - AHansen (ADRE Staff)
Arizona Department of Real Estate
Recipient of case documents via email address. - vnunez (ADRE Staff)
Arizona Department of Real Estate
Recipient of case documents via email address. - djones (ADRE Staff)
Arizona Department of Real Estate
Recipient of case documents via email address. - labril (ADRE Staff)
Arizona Department of Real Estate
Recipient of case documents via email address.
