CC&R’s Article XI, Sections 1, 2, and 3; Summit View Community Plat Notes
Outcome Summary
The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the walls were located in a common area. No survey evidence was presented to determine whether the walls were on the individual lots (Owner responsibility) or the common area (HOA responsibility).
Key Issues & Findings
HOA failure to maintain perimeter walls and improper charging of homeowners for repairs.
Petitioner alleged that the HOA (SVHA) violated CC&R Article XI, Sections 1, 2, and 3, and the Community Plat Notes by failing to maintain the subdivision perimeter walls and charging homeowners for repairs, arguing the walls abutted and were part of the Common Area (NAOS), making maintenance the HOA's responsibility.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
CC&R Article XI, Section 1
CC&R Article XI, Section 2
CC&R Article XI, Section 3
Summit View Community Plat Notes
Analytics Highlights
Topics: HOA, Maintenance, Perimeter Walls, CC&R, Common Area, Burden of Proof, NAOS, Lot Line Dispute
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standards
burden of proof
procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
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
legal standards
evidence
hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
maintenance
common areas
boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
evidence
surveys
property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
maintenance
construction
HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
cc&rs
plat maps
interpretation
Case
Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standards
burden of proof
procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
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
legal standards
evidence
hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
maintenance
common areas
boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
evidence
surveys
property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
maintenance
construction
HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
cc&rs
plat maps
interpretation
Case
Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Carolyn Wefsenmoe(petitioner) Appeared via Google Meet on her own behalf
Respondent Side
Chad M. Gallacher(HOA attorney) Maxwell & Morgan, P.C.
Bick Smith(witness/board president) Summit View Homeowner's Association Also referred to as Vic Smith; testified for Respondent
Henry(board member) Summit View Homeowner's Association Discussed erosion issues; toured walls with Bick Smith
Denise(board member) Summit View Homeowner's Association Participated in special board meeting
Larry Burns(property manager/GM) Summit View Homeowner's Association General Manager who wrote community painting update; participated in board meeting
Neutral Parties
Adam D. Stone(ALJ) OAH
Louis Dettorre(Commissioner) Arizona Department of Real Estate Transmitted minute entry to
James Knupp(Acting Commissioner) Arizona Department of Real Estate Transmitted order to
Susan Nicolson(Commissioner) Arizona Department of Real Estate Transmitted ALJ decision to
AHansen(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
vnunez(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
djones(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
labril(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
c. serrano(OAH Staff) OAH Signed minute entries for transmission
Helen Purcell(county recorder) Maricopa County Recorded Amended CC&R Declaration in 2004
Maria Rosana Pira(notary public) Maricopa County Notarized Amended CC&R and Bylaws in 2004
Other Participants
Elelliana(unknown) Correspondent in objected-to email exhibit
Beth Mulcahy(attorney) Mulcahy Law Firm, P.C. Firm filed the Amended CC&R Declaration in 2004
LizzieG(customer service rep) Brown Community Management Customer service contact listed on billing document
Articles of Incorporation Article 8, Covenants, Limitations & Restrictions Article 19 Sec. A, Covenants, Limitations & Restrictions Article 19 Sec. B
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that the Respondent HOA's Articles of Incorporation had been previously amended to be perpetual (1994, 1999) and that the CLRs automatically renew for an additional 25 years without requiring a homeowner vote, provided no modifications or changes are made.
Why this result: Petitioner failed to meet the burden of proof that Respondent violated the Articles of Incorporation or the CLRs, as the evidence showed the corporation's existence was perpetual and the CLRs' automatic renewal was permissible without a vote.
Key Issues & Findings
Expiration of HOA Charter and unlawful extension of CLRs by Board resolution without member vote
Petitioner alleged the HOA's charter and CLRs expired after 50 years (2022) and that the Board unlawfully extended the CLRs for 25 years via a resolution (Resolution/Memorandum of September 27, 2022) without the required vote of the co-owners. The ALJ found that the Articles of Incorporation were perpetually extended by amendments in 1994 and 1999, and the CLRs automatically renewed without a vote because no modifications were made.
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Articles of Incorporation (1972)
Articles of Amendment (1994)
Articles of Amendment (1999)
CLRs Unit One (1972)
Resolution 092722 (Sept 27, 2022)
Analytics Highlights
Topics: HOA Charter Expiration, CLRs Renewal, Perpetual Existence, Amendment Vote, HOA Board Authority, Arizona Real Estate Statute
If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?
Short Answer
No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.
Detailed Answer
The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.
Alj Quote
Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.
Legal Basis
Conclusion of Law 4
Topic Tags
CC&R Renewal
Voting Rights
Governing Documents
Question
Who bears the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof to establish the violation.
Detailed Answer
In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Procedure
Burden of Proof
Question
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is 'more probably true than not.'
Detailed Answer
The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side rather 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
Conclusion of Law 3
Topic Tags
Legal Standards
Evidence
Question
Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?
Short Answer
Yes, an HOA can amend its Articles to extend its duration to be perpetual.
Detailed Answer
The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'
Alj Quote
Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 10-12; Conclusion of Law 4
Topic Tags
Corporate Charter
Amendments
Articles of Incorporation
Question
Where can an Arizona homeowner file a dispute regarding violations of community documents?
Short Answer
A petition can be filed with the Arizona Department of Real Estate (ADRE).
Detailed Answer
Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.
Alj Quote
Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.
Legal Basis
Conclusion of Law 1; A.R.S. § 32-2199
Topic Tags
Dispute Resolution
ADRE
Jurisdiction
Question
Does a lack of knowledge about old amendments invalidate them?
Short Answer
No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.
Detailed Answer
In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.
Alj Quote
Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 13; Conclusion of Law 4
Topic Tags
Record Keeping
Constructive Notice
Amendments
Case
Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?
Short Answer
No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.
Detailed Answer
The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.
Alj Quote
Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.
Legal Basis
Conclusion of Law 4
Topic Tags
CC&R Renewal
Voting Rights
Governing Documents
Question
Who bears the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof to establish the violation.
Detailed Answer
In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Procedure
Burden of Proof
Question
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is 'more probably true than not.'
Detailed Answer
The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side rather 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
Conclusion of Law 3
Topic Tags
Legal Standards
Evidence
Question
Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?
Short Answer
Yes, an HOA can amend its Articles to extend its duration to be perpetual.
Detailed Answer
The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'
Alj Quote
Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 10-12; Conclusion of Law 4
Topic Tags
Corporate Charter
Amendments
Articles of Incorporation
Question
Where can an Arizona homeowner file a dispute regarding violations of community documents?
Short Answer
A petition can be filed with the Arizona Department of Real Estate (ADRE).
Detailed Answer
Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.
Alj Quote
Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.
Legal Basis
Conclusion of Law 1; A.R.S. § 32-2199
Topic Tags
Dispute Resolution
ADRE
Jurisdiction
Question
Does a lack of knowledge about old amendments invalidate them?
Short Answer
No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.
Detailed Answer
In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.
Alj Quote
Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 13; Conclusion of Law 4
Topic Tags
Record Keeping
Constructive Notice
Amendments
Case
Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Pamela McKinney(petitioner) Appeared on her own behalf
Respondent Side
Alan A. Meda(HOA attorney) Burch & Cracchiolo Represented Respondent Valle Vista Property Owners Association
Sharon Grossi(board member) Valle Vista Property Owners Association President of the Board; testified as a witness for Respondent
Rebecca Bankov(property manager) Valle Vista Property Owners Association Also referred to as Rebecca fan
Amy Wood(board member) Valle Vista Property Owners Association Secretary on the board
Thomas Noble(board member) Valle Vista Property Owners Association Former President of the Board (mentioned in communication)
Stan Andrews(board member) Valle Vista Property Owners Association Mentioned by Petitioner as a board member
Ray Rose(board member) Valle Vista Property Owners Association Recently resigned from the board
Neutral Parties
Sondra J. Vanella(ALJ) OAH Administrative Law Judge
Jean Newman(CPA) Independent auditor who prepared financial report
Other Participants
Dennis Hope(Fire Chief) Northern Arizona Fire District External party cited in board communications regarding water shutoff threats
High Lonesome Ranch Estates Property Owners Association
Counsel
Jason Smith, Esq.
Alleged Violations
HLR CCR 6.2.1 and HLR Association Rules: Nominating and Election Committee Mission and Procedures (approved 19 July 2021)
Outcome Summary
The Administrative Law Judge upheld the Petition, finding the Respondent HOA violated its Nominating and Elections Committee Mission and Procedures by refusing to count otherwise valid couriered ballots and subsequent in-person attempts to vote at the July 5, 2022 Special Election. Petitioners were deemed the prevailing party and awarded the $500 filing fee refund, and the HOA was assessed a $500 civil penalty.
Key Issues & Findings
Denial of the right to vote in Removal/Recall Special Election
Petitioners alleged they were denied the right to vote in the July 5, 2022 Removal/Recall Special Election after their initial ballots (couriered prior to the meeting) were rejected for lacking a postmark, and their subsequent attempts to cast new ballots in person were rejected for reasons including 'double voting' or being 'too late.' The ALJ found the HOA violated its established election procedures.
Orders: The Petition was upheld, and Petitioners were deemed the prevailing party. Respondent was ordered to pay Petitioners their $500.00 filing fee and pay a civil penalty of $500.00 to the Department.
Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?
Short Answer
No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.
Detailed Answer
The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
ballots
couriers
voting rights
Question
What are valid reasons for an HOA to consider a ballot ineligible or spoiled?
Short Answer
Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.
Detailed Answer
The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.
Alj Quote
Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.
Legal Basis
Association Election Procedures
Topic Tags
elections
ballot validity
rules
Question
Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?
Short Answer
Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.
Detailed Answer
The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.
Alj Quote
Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
fairness
HOA obligations
Question
If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?
Short Answer
No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.
Detailed Answer
The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.
Legal Basis
Voting Rights / Election Procedures
Topic Tags
in-person voting
ballot rejection
elections
Question
Can the HOA enforce a voting deadline strictly against some owners but not others?
Short Answer
No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.
Detailed Answer
The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.
Alj Quote
Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.
Legal Basis
Fair Election Practices
Topic Tags
discrimination
deadlines
fairness
Question
What penalties can an HOA face if they are found to have violated election rules?
Short Answer
The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.
Detailed Answer
In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00
Legal Basis
A.R.S. § 32-2199
Topic Tags
penalties
fines
reimbursement
Question
What is the 'burden of proof' for a homeowner in an administrative hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Detailed Answer
The decision defines the evidentiary standard required for the petitioners to win their case.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) 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)
Topic Tags
legal standards
burden of proof
hearing process
Case
Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?
Short Answer
No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.
Detailed Answer
The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
ballots
couriers
voting rights
Question
What are valid reasons for an HOA to consider a ballot ineligible or spoiled?
Short Answer
Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.
Detailed Answer
The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.
Alj Quote
Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.
Legal Basis
Association Election Procedures
Topic Tags
elections
ballot validity
rules
Question
Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?
Short Answer
Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.
Detailed Answer
The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.
Alj Quote
Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
fairness
HOA obligations
Question
If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?
Short Answer
No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.
Detailed Answer
The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.
Legal Basis
Voting Rights / Election Procedures
Topic Tags
in-person voting
ballot rejection
elections
Question
Can the HOA enforce a voting deadline strictly against some owners but not others?
Short Answer
No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.
Detailed Answer
The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.
Alj Quote
Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.
Legal Basis
Fair Election Practices
Topic Tags
discrimination
deadlines
fairness
Question
What penalties can an HOA face if they are found to have violated election rules?
Short Answer
The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.
Detailed Answer
In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00
Legal Basis
A.R.S. § 32-2199
Topic Tags
penalties
fines
reimbursement
Question
What is the 'burden of proof' for a homeowner in an administrative hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Detailed Answer
The decision defines the evidentiary standard required for the petitioners to win their case.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) 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)
Topic Tags
legal standards
burden of proof
hearing process
Case
Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Eileen Ahearn(petitioner)
Robert Barfield(petitioner)
Randy Kling(witness / former board member) Testified for Petitioners. Also referred to as Randy Clling/Clean.
Claire Peachey(witness / election committee member) Testified for Petitioners. Custodian of the ballot box.
Joyce Green(witness) Testified for Petitioners.
Jeffrey Knox(witness) Testified for Petitioners. Property owner who received rejected ballots.
Respondent Side
Jason Smith(HOA attorney) Smith & Wamsley PLLC
Nancy Sakarelli(board member) High Lonesome Ranch Estates Property Owners Association Board President; appeared virtually.
Corinthia Pangalinan(former board president / board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition; responded to original complaint.
Becky Hilgart(Election Committee Chair / board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition. Also referred to as Rebecca Kilgart/Gilgart/Elart.
Tommy Smith(Election Committee Volunteer / property owner) Involved in denying votes.
Wally Oliday(board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition.
Amanda Miller(board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition.
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Louis Dettorre(Commissioner) Arizona Department of Real Estate
Miranda Alvarez(Legal Secretary) OAH staff transmitting documents.
c. serrano(Administrative Staff) Staff transmitting documents.
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
Other Participants
Edna Barton(observer) On the line during the hearing.
Jill Burns(observer) Present in the hearing room.
John Kron(observer) Present in the hearing room.
Stacy(board director) Director mentioned in meeting agenda.
Deborah Bonesac(property owner) Referenced in testimony regarding past courier procedures.
Billy McFarland(board member) Subject of previous recall election.
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.
Why this result: The ARC successfully argued that A.R.S. § 33-1804(A) only mandates open access for 'any regularly scheduled committee meetings.' Since they transitioned to using an online portal on an irregular schedule, they were no longer holding 'regularly scheduled meetings,' meaning the statute did not require them to be open.
Key Issues & Findings
Failure of Architectural Review Committee (ARC) to hold open meetings where members can comment prior to a vote.
Petitioner alleged the Architectural Review Committee (ARC) was violating A.R.S. § 33-1804 (open meetings statute) by failing to hold open meetings, particularly after the ARC began processing requests using an online portal which allows for discussion and voting among members outside of noticed meetings. Historically, the ARC held regularly scheduled meetings on the first Tuesday of every month until March 2022. The ALJ ultimately ruled that since March 2022, the ARC was not holding 'regularly scheduled committee meetings' as defined by the statute.
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804(A)
A.R.S. § 32-2199
Article 6.2 of the Bylaws
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. § 41-1092.09
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
Analytics Highlights
Topics: HOA Open Meeting Law, Architectural Review Committee (ARC), Regularly Scheduled Meetings, Online Portal, Statutory Interpretation
{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation 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”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }
Blog Post – 23F-H008-REL
{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation 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”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }
Case Participants
Petitioner Side
Amy Hilburn(petitioner) Stetson Valley Owners Association member Appeared pro se; former Board President
Respondent Side
Melissa Doolan(HOA attorney) Travis Law Firm
Danielle Miglio(community manager, witness) Oasis Community Management
Ann Renee Wilsey(ARC member, witness) Stetson Valley Owners Association ARC
Nichollet Widner(board member, witness) Stetson Valley Owners Association Board President
Tom Young(board member, observer) Stetson Valley Owners Association Board
Pam Weller(ARC member, observer) Stetson Valley Owners Association ARC
Omar Chavez(board member, observer) Stetson Valley Owners Association Board
Miranda Alvarez(legal secretary) Travis Law Firm Transmitting staff
Elizabeth Franco(community manager staff) Oasis Community Management Referenced in Petitioner's Exhibit 6 testimony
Benjamin Butler(ARC chairperson) Stetson Valley Owners Association ARC Referenced in Petitioner's Exhibit 6 testimony
The ALJ denied the petition, concluding that the Sanalina HOA did not violate its Bylaws when it removed Petitioner John Zumph from the Board of Directors. The tribunal held that a 'regular meeting' can occur even without the presence of a quorum necessary to conduct business, validating the HOA's decision to declare his office vacant after three consecutive absences.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the Bylaws. The ALJ determined that the meetings existed despite lack of quorum, and the Petitioner's intentional absences constituted an abuse of process and were not in the spirit of the bylaws.
Key Issues & Findings
Wrongful removal from the Board of Directors
Petitioner challenged his removal from the Board of Directors, arguing that his three consecutive absences from regularly scheduled meetings (July 8, 2021, September 9, 2021, and November 11, 2021) did not count because no quorum was met at those meetings, meaning the meetings did not exist.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Sanalina Bylaws Article VII Section 1(d)
Sanalina Bylaws Article VI Section 3
Analytics Highlights
Topics: HOA Board Removal, Quorum Dispute, Bylaw Interpretation, Director Absence, Regular Meeting Definition
These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.
What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?
Thursday, February 12
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Today • 1:35 PM
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Blog Post – 22F-H2222049-REL
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22F-H2222049-REL
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These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.
What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?
Thursday, February 12
Save to note
Today • 1:35 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
John Zumph(petitioner) Sanalina Homeowners Association Also referred to as John Zump or John Edward Dump; Former Board member removed from his position
Pete Selei(board member) Sanalina Homeowners Association Aligned with petitioner's refusal to attend meetings; Board member removed/vacated position; Also referred to as Joe Pete or Pete
Joe(board member) Sanalina Homeowners Association Aligned with petitioner's refusal to attend meetings
Respondent Side
Nick Eicher(HOA attorney) Sanalina Homeowners Association Also referred to as Nick Aker
Lisa Jean Terror(board member) Sanalina Homeowners Association Board Secretary; witness for Respondent
Neutral Parties
Adam D. Stone(ALJ) OAH
Louis Dettorre(commissioner) Arizona Department of Real Estate
Miranda Alvarez(legal secretary)
Other Participants
Thomas Campanella(property manager) Sanalina Homeowners Association Community Manager; Also referred to as Thomas Pampanella
Javier Gimenez(management representative) Sanalina Homeowners Association Handled minutes for March meeting
Petitioner was deemed the prevailing party and RDLCA was ordered to comply with CC&R Section 3.1(D)(3) and refund the $500.00 filing fee. The specific remedy requested by Petitioner (ordering RDLCA to fine the neighbor or force light removal) was denied as the ALJ lacked statutory authority (A.R.S. § 32-2199.02) to grant that relief.
Key Issues & Findings
Violation of CC&R regarding flood illumination direction and ARC approval process.
Petitioner alleged that Respondent (RDLCA) violated CC&R 3.1(D)(3) because a neighbor installed flood lights shining onto Petitioner's property without RDLCA approval (ARC approval). The ALJ found RDLCA in violation because the lights were never approved.
Orders: RDLCA must comply with CC&R Section 3.1(D)(3) and pay Petitioner her $500.00 filing fee. No civil penalty was levied.
Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
A.R.S. § 32-2199.02
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2221019-REL Decision – 939490.pdf
Uploaded 2026-01-23T17:42:27 (95.0 KB)
Questions
Question
Can an Administrative Law Judge order my HOA to fine a neighbor for a violation?
Short Answer
No, the ALJ does not have the statutory authority to order fines against neighbors.
Detailed Answer
Even if a violation is found, the ALJ explicitly stated that the statute does not grant them the power to order the HOA to fine a neighbor or to force a neighbor to remove non-compliant items.
Alj Quote
The Administrative Law Judge does not have the authority under the applicable statute to order that RDLCA fine or order the neighbor remove the lights.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
Remedies
Fines
Authority
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the dispute must prove the HOA's violation by a 'preponderance of the evidence'. It is not the HOA's job to disprove it initially.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
Burden of Proof
Evidence
Procedure
Question
If I win my case against the HOA, can I get my filing fee back?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
In this decision, because the homeowner was the prevailing party, the HOA was ordered to pay the $500 filing fee directly to the homeowner within 30 days.
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
Order
Topic Tags
Fees
Reimbursement
Prevailing Party
Question
Can I challenge my HOA for failing to enforce architectural rules on a neighbor?
Short Answer
Yes, if the HOA allows modifications without the required approval.
Detailed Answer
The ALJ found the HOA in violation of the CC&Rs because the neighbor installed lights without the required Architectural Review Committee (ARC) approval, and the HOA failed to address this specific lack of approval.
Alj Quote
Because this never occurred, Respondent is in violation of CC&R Section 3.1(D)(3).
Legal Basis
CC&R Section 3.1(D)(3)
Topic Tags
Enforcement
Architectural Review
Lighting
Question
What happens if we don't provide the full text of the CC&Rs during the hearing?
Short Answer
The judge cannot rule on parts of the rules that are not provided.
Detailed Answer
The HOA tried to argue a rule applied only to the front yard, but because neither party submitted the full section of the CC&Rs, the judge could not verify that claim and had to rule based only on the evidence available.
Alj Quote
At the outset, neither party submitted the full Section 3.1 of the CC&R’s and the ALJ therefore cannot determine if the section in question applies to the front yard only.
Legal Basis
Evidentiary Standard
Topic Tags
Evidence
CC&Rs
Documentation
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the claim is more likely true than not.
Detailed Answer
The decision defines this legal standard as proof that convinces the judge that a contention is 'more probably true than not,' even if there is still some doubt.
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
Arizona Law of Evidence
Topic Tags
Legal Definitions
Standards
Case
Docket No
22F-H2221019-REL
Case Title
Brenda C Norman vs. Rancho Del Lago Community Association
Decision Date
2022-01-18
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can an Administrative Law Judge order my HOA to fine a neighbor for a violation?
Short Answer
No, the ALJ does not have the statutory authority to order fines against neighbors.
Detailed Answer
Even if a violation is found, the ALJ explicitly stated that the statute does not grant them the power to order the HOA to fine a neighbor or to force a neighbor to remove non-compliant items.
Alj Quote
The Administrative Law Judge does not have the authority under the applicable statute to order that RDLCA fine or order the neighbor remove the lights.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
Remedies
Fines
Authority
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the dispute must prove the HOA's violation by a 'preponderance of the evidence'. It is not the HOA's job to disprove it initially.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
Burden of Proof
Evidence
Procedure
Question
If I win my case against the HOA, can I get my filing fee back?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
In this decision, because the homeowner was the prevailing party, the HOA was ordered to pay the $500 filing fee directly to the homeowner within 30 days.
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
Order
Topic Tags
Fees
Reimbursement
Prevailing Party
Question
Can I challenge my HOA for failing to enforce architectural rules on a neighbor?
Short Answer
Yes, if the HOA allows modifications without the required approval.
Detailed Answer
The ALJ found the HOA in violation of the CC&Rs because the neighbor installed lights without the required Architectural Review Committee (ARC) approval, and the HOA failed to address this specific lack of approval.
Alj Quote
Because this never occurred, Respondent is in violation of CC&R Section 3.1(D)(3).
Legal Basis
CC&R Section 3.1(D)(3)
Topic Tags
Enforcement
Architectural Review
Lighting
Question
What happens if we don't provide the full text of the CC&Rs during the hearing?
Short Answer
The judge cannot rule on parts of the rules that are not provided.
Detailed Answer
The HOA tried to argue a rule applied only to the front yard, but because neither party submitted the full section of the CC&Rs, the judge could not verify that claim and had to rule based only on the evidence available.
Alj Quote
At the outset, neither party submitted the full Section 3.1 of the CC&R’s and the ALJ therefore cannot determine if the section in question applies to the front yard only.
Legal Basis
Evidentiary Standard
Topic Tags
Evidence
CC&Rs
Documentation
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the claim is more likely true than not.
Detailed Answer
The decision defines this legal standard as proof that convinces the judge that a contention is 'more probably true than not,' even if there is still some doubt.
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
Arizona Law of Evidence
Topic Tags
Legal Definitions
Standards
Case
Docket No
22F-H2221019-REL
Case Title
Brenda C Norman vs. Rancho Del Lago Community Association
Decision Date
2022-01-18
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Brenda C Norman(petitioner) Appeared on her own behalf
Respondent Side
Mackenzie Hill(HOA attorney) The Brown Law Group, PLLC Represented Rancho Del Lago Community Association
Nathan Tennyson(HOA attorney) Represented Rancho Del Lago Community Association
Spencer Brod(community manager) Testified for Respondent
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Louis Dettorre(Commissioner) Arizona Department of Real Estate
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of order transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of order transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of order transmission
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of order transmission
The Administrative Law Judge ordered that the Petitioner’s Petition be dismissed after finding that the Petitioner failed to sustain her burden to establish a violation by the Respondent of the cited sections of the CC&Rs.
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated the CC&Rs, and did not establish that Respondent was obligated to provide her with an individual access code separate from the one already provided to the Lot.
Key Issues & Findings
The dispute between Petitioner and Respondent arises from Community Document Conditions, Covenants, and Restrictions Article 1 Section 26, Article 4 Section 4.6, and Article 2, Section 2.4.
Petitioner filed an HOA Dispute Process Petition alleging a violation of community documents because the HOA refused to grant her a personal access gate code. Petitioner argued that as an owner and member, she was entitled to her own personal and individual access code. Respondent disputed the violation, asserting the lot already had multiple modes of access, and was not obligated to provide an additional individual code.
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs Article 1 Section 26
CC&Rs Article 4 Section 4.6
CC&Rs Article 2, Section 2.4
A.R.S. § 32-2199
ARIZ. REV. STAT. section 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)
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Gate Access, Access Code Policy
Additional Citations:
A.R.S. § 32-2199
ARIZ. REV. STAT. section 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(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2221003-REL Decision – 930504.pdf
Uploaded 2026-01-23T17:39:28 (109.5 KB)
Questions
Question
Who is responsible for proving that a violation occurred in an HOA dispute hearing?
Short Answer
The Petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden is not on the HOA to prove they are innocent. Instead, the homeowner filing the petition must prove that the HOA committed the violation.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
Burden of Proof
Hearing Procedures
Question
What is the legal standard of proof required to win a hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard means that the evidence must show that the claim is more likely true than not true. It is based on the convincing force of the evidence rather than just the number of witnesses.
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
Legal Standards
Evidence
Question
If Association Rules conflict with the CC&Rs (Declaration), which document controls?
Short Answer
The Declaration (CC&Rs) prevails.
Detailed Answer
The governing documents usually establish a hierarchy. If the Board adopts rules that are inconsistent with the recorded Declaration, the Declaration is the superior document.
Alj Quote
In the event of any conflict or inconsistency between the provisions of this Declaration and the Association Rules, the provisions of this Declaration shall prevail.
Legal Basis
CC&Rs Article 4 Section 4.3
Topic Tags
Governing Documents
Rules vs CC&Rs
Question
Is an HOA obligated to provide a unique gate access code to every individual owner?
Short Answer
Not necessarily, if access is provided to the Lot.
Detailed Answer
If the HOA provides valid methods of access for a Lot (such as a shared code, key fob, or remote), they may not be legally obligated to provide a specific 'personal' code for each individual owner of that Lot.
Alj Quote
Petitioner did not establish that Respondent is obligated to provide her with a “personal” or “individual” access code.
Legal Basis
Findings of Fact / Conclusions of Law 4
Topic Tags
Access Rights
Gate Codes
Security
Question
Can the Administrative Law Judge resolve disputes between co-owners regarding access to the property?
Short Answer
No, disputes between co-owners are personal matters.
Detailed Answer
If one co-owner restricts another co-owner from using a shared access code, the Department of Real Estate views this as a private issue between the owners, not a violation by the HOA.
Alj Quote
Mr. Gribble, as co-owner, has placed restrictions upon Petitioner’s use of the code for the Lot. That is an issue for Petitioner to take up with Mr. Gribble, not the Department.
Legal Basis
Conclusions of Law 4
Topic Tags
Co-owner Disputes
Jurisdiction
Question
Are Association Rules as enforceable as the CC&Rs?
Short Answer
Yes, generally rules are enforceable to the same extent as the Declaration.
Detailed Answer
Once validly adopted, Association Rules regarding the management and operation of the community can be enforced just like the recorded covenants.
Alj Quote
The Association Rules shall be enforceable in the same manner and to the same extent as the covenants, conditions and restrictions set forth in this Declaration.
Legal Basis
CC&Rs Article 4 Section 4.3
Topic Tags
Enforcement
Rules
Case
Docket No
22F-H2221003-REL
Case Title
Kathy Padalino v. Legend Trail Parcel A
Decision Date
2021-12-08
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that a violation occurred in an HOA dispute hearing?
Short Answer
The Petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden is not on the HOA to prove they are innocent. Instead, the homeowner filing the petition must prove that the HOA committed the violation.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
Burden of Proof
Hearing Procedures
Question
What is the legal standard of proof required to win a hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard means that the evidence must show that the claim is more likely true than not true. It is based on the convincing force of the evidence rather than just the number of witnesses.
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
Legal Standards
Evidence
Question
If Association Rules conflict with the CC&Rs (Declaration), which document controls?
Short Answer
The Declaration (CC&Rs) prevails.
Detailed Answer
The governing documents usually establish a hierarchy. If the Board adopts rules that are inconsistent with the recorded Declaration, the Declaration is the superior document.
Alj Quote
In the event of any conflict or inconsistency between the provisions of this Declaration and the Association Rules, the provisions of this Declaration shall prevail.
Legal Basis
CC&Rs Article 4 Section 4.3
Topic Tags
Governing Documents
Rules vs CC&Rs
Question
Is an HOA obligated to provide a unique gate access code to every individual owner?
Short Answer
Not necessarily, if access is provided to the Lot.
Detailed Answer
If the HOA provides valid methods of access for a Lot (such as a shared code, key fob, or remote), they may not be legally obligated to provide a specific 'personal' code for each individual owner of that Lot.
Alj Quote
Petitioner did not establish that Respondent is obligated to provide her with a “personal” or “individual” access code.
Legal Basis
Findings of Fact / Conclusions of Law 4
Topic Tags
Access Rights
Gate Codes
Security
Question
Can the Administrative Law Judge resolve disputes between co-owners regarding access to the property?
Short Answer
No, disputes between co-owners are personal matters.
Detailed Answer
If one co-owner restricts another co-owner from using a shared access code, the Department of Real Estate views this as a private issue between the owners, not a violation by the HOA.
Alj Quote
Mr. Gribble, as co-owner, has placed restrictions upon Petitioner’s use of the code for the Lot. That is an issue for Petitioner to take up with Mr. Gribble, not the Department.
Legal Basis
Conclusions of Law 4
Topic Tags
Co-owner Disputes
Jurisdiction
Question
Are Association Rules as enforceable as the CC&Rs?
Short Answer
Yes, generally rules are enforceable to the same extent as the Declaration.
Detailed Answer
Once validly adopted, Association Rules regarding the management and operation of the community can be enforced just like the recorded covenants.
Alj Quote
The Association Rules shall be enforceable in the same manner and to the same extent as the covenants, conditions and restrictions set forth in this Declaration.
Legal Basis
CC&Rs Article 4 Section 4.3
Topic Tags
Enforcement
Rules
Case
Docket No
22F-H2221003-REL
Case Title
Kathy Padalino v. Legend Trail Parcel A
Decision Date
2021-12-08
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Kathy Padalino(petitioner) Appeared on her own behalf
Respondent Side
Kelsey Dressen(attorney) LAW OFFICES OF CHOATE & WOOD Represented Respondent Legend Trail Parcel A
Neutral Parties
Sondra J. Vanella(ALJ)
Louis Dettorre(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
Other Participants
Vance Gribble(co-owner) Co-owns home with Petitioner
A.R.S. § 33-1808(E); Article 1 § 18 of the Declaration; Article 3 § 5 of the Declaration
Outcome Summary
The petition was dismissed because the Petitioner failed to meet the burden of proof necessary to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited Declaration Articles.
Why this result: Petitioner failed to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or Article 3 § 5/Article 1 § 18 of the Declaration.
Key Issues & Findings
HOA rule adoption/enforcement regarding motorized vehicle use (ATVs/scooters)
Petitioner alleged the Association improperly prohibited the use of ATVs and motorized scooters on Association streets via e-mails (March 31, 2021, and June 21, 2021). The Association contended these were not rules and no formal enforcement action was taken.
Orders: Petitioner Vance Gribble’s petition against Respondent Legend Trail Community Association is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1808(E)
A.R.S. § 33-1808(F)
Article 1 § 18 of the Declaration
Article 3 § 5 of the Declaration
Analytics Highlights
Topics: Recreational Activity, Motorized Vehicles, ATVs, Scooters, Rule Adoption, Declaration, Common Area
Additional Citations:
A.R.S. § 33-1808(E)
A.R.S. § 33-1808(F)
Article 1 § 18 of the Declaration
Article 3 § 5 of the Declaration
A.R.S. § 32-2199(B)
Title 33, Chapter 16
A.R.S. §§ 33-3101 to 33-11702
A.R.S. § 10-3140
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(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Vazanno v. Superior Court
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Video Overview
Audio Overview
Decision Documents
22F-H2221004-REL Decision – 922828.pdf
Uploaded 2026-01-23T17:39:42 (100.5 KB)
Study Guide – 22F-H2221004-REL
{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather 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”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “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”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }
Blog Post – 22F-H2221004-REL
{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather 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”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “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”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }
Case Participants
Petitioner Side
Vance Gribble(petitioner) Appeared on behalf of himself
Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.
Why this result: Petitioner lost Issue 2 because he failed to prove the Respondent's no-pet policy was arbitrarily or unreasonably applied.
Key Issues & Findings
Alleged violation of CC&R Article 2 § 3(a)(2)
The Administrative Law Judge (ALJ) concluded that screen doors are not permitted in Xanadu under CC&R Article 2 § 3(a)(2), and CC&R Article 7 (Architectural Committee authority) does not override this explicit prohibition.
Orders: Respondent is directed to comply with the requirements of CC&R Article 2 § 3(a)(2) going forward.
Filing fee: $0.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&R Article 2 § 3(a)(2)
CC&R Article 7
Alleged violation of CC&R Article 3 § 3(d)(1)
Petitioner alleged violation concerning the 'no-pet' policy. The ALJ concluded that Respondent is not required to allow pets, but may allow them with Board approval, and the Petitioner did not establish that the policy was arbitrarily or unreasonably applied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&R Article 3 § 3(d)(1)
A.R.S. § 12-548
Alleged violation of CC&R Article 6 § 2(a)
The ALJ concluded that the marquee is common area, and the Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence the $50 assessment complied with CC&R Article 6 § 5 (special assessment requirements).
Orders: Respondent is directed to comply with the requirements of CC&R Article 6 § 2(a) going forward.
Filing fee: $0.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&R Article 6 § 2(a)
CC&R Article 6 § 5
A.R.S. § 12-548
Analytics Highlights
Topics: HOA Governance, Condominium, CC&R Violation, Assessment Dispute, Architectural Control, Pet Policy, Statute of Limitations Defense
Additional Citations:
A.R.S. § 32-2199(1)
A.R.S. § 12-548
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R Article 2 § 3(a)(2)
CC&R Article 3 § 3(d)(1)
CC&R Article 6 § 2(a)
CC&R Article 6 § 5
CC&R Article 7
Video Overview
Audio Overview
Decision Documents
21F-H2121065-REL Decision – 913797.pdf
Uploaded 2026-01-23T17:39:10 (41.8 KB)
21F-H2121065-REL Decision – 913859.pdf
Uploaded 2026-01-23T17:39:13 (5.9 KB)
21F-H2121065-REL Decision – 921820.pdf
Uploaded 2026-01-23T17:39:16 (100.1 KB)
21F-H2121065-REL Decision – 921823.pdf
Uploaded 2026-01-23T17:39:19 (112.8 KB)
Questions
Question
Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?
Short Answer
No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.
Detailed Answer
Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.
Alj Quote
If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.
Legal Basis
Contract Interpretation
Topic Tags
Architectural Control
Board Authority
CC&R Interpretation
Question
If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?
Short Answer
No. The Board has discretion to deny permission.
Detailed Answer
If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.
Alj Quote
The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).
Legal Basis
Board Discretion
Topic Tags
Pets
Rules Enforcement
Question
Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?
Short Answer
Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.
Detailed Answer
The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.
Alj Quote
The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.
Legal Basis
CC&R Article 6 § 2(a)
Topic Tags
Assessments
Common Areas
Financials
Question
Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?
Short Answer
No.
Detailed Answer
The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.
Alj Quote
A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.
Legal Basis
A.R.S. § 12-548 (distinguished)
Topic Tags
Procedure
Statute of Limitations
Question
Can the HOA levy a special assessment for repairs without a vote of the members?
Short Answer
No, not if the CC&Rs require a member vote.
Detailed Answer
If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.
Alj Quote
Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.
Legal Basis
CC&R Article 6 § 5
Topic Tags
Special Assessments
Voting
Question
If I win my hearing against the HOA, can I get my filing fee back?
Short Answer
Yes.
Detailed Answer
The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
Remedies
Fees
Question
How are conflicts or ambiguities in the CC&Rs interpreted by the judge?
Short Answer
They are construed as a whole to determine the underlying purpose.
Detailed Answer
Restrictive covenants are interpreted by looking at the document as a whole 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
Common Law Interpretation
Topic Tags
Legal Standards
CC&R Interpretation
Case
Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?
Short Answer
No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.
Detailed Answer
Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.
Alj Quote
If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.
Legal Basis
Contract Interpretation
Topic Tags
Architectural Control
Board Authority
CC&R Interpretation
Question
If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?
Short Answer
No. The Board has discretion to deny permission.
Detailed Answer
If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.
Alj Quote
The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).
Legal Basis
Board Discretion
Topic Tags
Pets
Rules Enforcement
Question
Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?
Short Answer
Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.
Detailed Answer
The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.
Alj Quote
The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.
Legal Basis
CC&R Article 6 § 2(a)
Topic Tags
Assessments
Common Areas
Financials
Question
Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?
Short Answer
No.
Detailed Answer
The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.
Alj Quote
A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.
Legal Basis
A.R.S. § 12-548 (distinguished)
Topic Tags
Procedure
Statute of Limitations
Question
Can the HOA levy a special assessment for repairs without a vote of the members?
Short Answer
No, not if the CC&Rs require a member vote.
Detailed Answer
If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.
Alj Quote
Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.
Legal Basis
CC&R Article 6 § 5
Topic Tags
Special Assessments
Voting
Question
If I win my hearing against the HOA, can I get my filing fee back?
Short Answer
Yes.
Detailed Answer
The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
Remedies
Fees
Question
How are conflicts or ambiguities in the CC&Rs interpreted by the judge?
Short Answer
They are construed as a whole to determine the underlying purpose.
Detailed Answer
Restrictive covenants are interpreted by looking at the document as a whole 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
Common Law Interpretation
Topic Tags
Legal Standards
CC&R Interpretation
Case
Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Brian D. Sopatyk(petitioner) Unit Owner
Jacob A. Kubert(petitioner attorney) Dessaules Law Group
Respondent Side
Penny L. Koepke(respondent attorney) Maxwell Morgan PC
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
Louis Dettorre(ADRE Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
Other Participants
c. serrano(clerk/staff) Transmitting agent mentioned in distribution list
The Petitioner prevailed on the claim of violating CC&R Article 11.3.2 (failure to negotiate in good faith) but was denied relief on the claim of violating A.R.S. § 33-1811 (conflict of interest). Petitioner was ordered reimbursed $500.00 for the filing fee.
Why this result: Petitioner failed to prove the A.R.S. § 33-1811 violation because the statute was interpreted by the Tribunal to require the action to involve compensation.
Key Issues & Findings
Conflict of Interest Disclosure
Petitioner alleged the Respondent violated A.R.S. § 33-1811 because the HOA President failed to disclose a conflict of interest during the approval of his own flagpole. The Tribunal found the statute requires the decision to involve compensation, and Petitioner failed to meet the burden of proof.
Orders: Petition denied as to a violation of A.R.S. 33-1811. Tribunal declined to award a civil penalty.
Filing fee: $1,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1811
Failure to Negotiate Claim Resolution in Good Faith
Petitioner claimed Mountain Bridge failed to negotiate a resolution in good faith after he filed a claim notice. Mountain Bridge failed to communicate until approximately 35 days after the claim was noticed. The Tribunal found Respondent failed to negotiate in good faith.
Orders: Petitioner is deemed the prevailing party as to his claim of an Article 11 violation. Respondent must reimburse the $500.00 filing fee within 30 days. Tribunal declined to award a civil penalty.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&R Article 11.3.2
Analytics Highlights
Topics: HOA, Conflict of Interest, Failure to Negotiate, Flagpole, Filing Fee
Additional Citations:
A.R.S. § 33-1811
A.R.S. § 32-2199(B)
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(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
21F-H2121037-REL Decision – 887461.pdf
Uploaded 2026-01-23T17:36:47 (121.4 KB)
Questions
Question
Does a board member violate conflict of interest laws by voting on their own architectural request if no money is exchanged?
Short Answer
Likely not. The ALJ ruled that the conflict of interest statute (A.R.S. § 33-1811) applies specifically to decisions involving compensation.
Detailed Answer
The ALJ interpreted A.R.S. § 33-1811 narrowly. While acknowledging that abstaining from voting on one's own request is 'best practice,' the Judge determined that the phrase 'contract, decision or other action for compensation' implies that the decision must involve compensation to trigger the statutory violation. Since the architectural approval was not for compensation, the statute was not violated.
Alj Quote
However, the word “other” would indicate that the contract or decision would involve compensation. … Therefore, the Tribunal finds that Mr. Smith has not sustained his burden in demonstrating that Mountain Bridge violated A.R.S. § 33-1811.
Legal Basis
A.R.S. § 33-1811
Topic Tags
Conflict of Interest
Board Conduct
Architectural Review
Question
If the CC&Rs require the HOA to negotiate a dispute within a certain time, can they simply ignore it?
Short Answer
No. Ignoring a request for negotiation beyond the mandated timeframe can be considered a violation of the duty to negotiate in good faith.
Detailed Answer
In this case, the CC&Rs required the parties to make a reasonable effort to meet and confer. The HOA failed to communicate with the homeowner until 35 days after the claim was noticed (past the 30-day negotiation period). The ALJ found this lack of communication to be a violation of the specific CC&R article requiring good faith negotiation.
Alj Quote
The credible evidence presented demonstrated that Mountain Bridge, or its attorneys, did not communicate with Mr. Smith until October 13, 2020, approximately 35 days after the claim was noticed. … Therefore, the Tribunal finds that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s.
Legal Basis
CC&R Article 11.3.2
Topic Tags
Dispute Resolution
Good Faith
HOA Obligations
Question
Can the HOA use the COVID-19 pandemic as a valid excuse for failing to communicate with me?
Short Answer
Not if they fail to send any updates. The HOA must at least inform the homeowner of potential delays.
Detailed Answer
The ALJ rejected the HOA's implicit defense that the pandemic justified the delay in communication. The ruling stated that even if the pandemic caused issues, the HOA had an obligation to at least inform the homeowner that delays were occurring. Total silence was not justified.
Alj Quote
While this dispute occurred during the COVID-19 pandemic, certainly communications could have been sent to Mr. Smith informing him there may be some delays in communication. However, there were none, and thus no valid justification for the Board not entering into negotiations with the Smiths.
Legal Basis
Administrative Discretion / Good Faith
Topic Tags
Communication
Delays
Good Faith
Question
Who is responsible for proving that the HOA violated the rules during a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred. The HOA does not have to disprove the claim initially; the burden starts with the homeowner.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated CC&R § 3.1 by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
Legal Procedure
Burden of Proof
Evidence
Question
Can I claim the HOA violated a definition in the CC&Rs, such as 'Visible from Neighboring Property'?
Short Answer
No. You cannot violate a definition; you can only violate the rules that use the definition.
Detailed Answer
The homeowner argued the HOA violated the definition of 'Visible from Neighboring Property.' The ALJ ruled that a definition is descriptive and cannot be violated in and of itself. Violations must be tied to specific covenants or restrictions.
Alj Quote
Further, because “Visible from Neighboring Property” as mentioned in Article 1 is a definition, it is impossible for Mountain Bridge to violate the same.
Legal Basis
Contract Interpretation
Topic Tags
CC&R Interpretation
Definitions
Legal Standards
Question
If I win my hearing against the HOA, will I get my filing fee back?
Short Answer
Yes, if you prevail on a claim, the ALJ can order the HOA to reimburse your filing fee.
Detailed Answer
The ALJ deemed the homeowner the prevailing party regarding the 'failure to negotiate' claim (even though other claims were denied) and ordered the HOA to reimburse the $500.00 filing fee within 30 days.
Alj Quote
Thus, Petitioner is entitled to his filing fee of $500.00 and Respondent must reimburse the same with 30 days.
Legal Basis
Administrative Remedy
Topic Tags
Remedies
Fees
Reimbursement
Case
Docket No
21F-H2121037-REL
Case Title
Gregory L. Smith vs. Mountain Bridge Community Association
Decision Date
2021-06-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Does a board member violate conflict of interest laws by voting on their own architectural request if no money is exchanged?
Short Answer
Likely not. The ALJ ruled that the conflict of interest statute (A.R.S. § 33-1811) applies specifically to decisions involving compensation.
Detailed Answer
The ALJ interpreted A.R.S. § 33-1811 narrowly. While acknowledging that abstaining from voting on one's own request is 'best practice,' the Judge determined that the phrase 'contract, decision or other action for compensation' implies that the decision must involve compensation to trigger the statutory violation. Since the architectural approval was not for compensation, the statute was not violated.
Alj Quote
However, the word “other” would indicate that the contract or decision would involve compensation. … Therefore, the Tribunal finds that Mr. Smith has not sustained his burden in demonstrating that Mountain Bridge violated A.R.S. § 33-1811.
Legal Basis
A.R.S. § 33-1811
Topic Tags
Conflict of Interest
Board Conduct
Architectural Review
Question
If the CC&Rs require the HOA to negotiate a dispute within a certain time, can they simply ignore it?
Short Answer
No. Ignoring a request for negotiation beyond the mandated timeframe can be considered a violation of the duty to negotiate in good faith.
Detailed Answer
In this case, the CC&Rs required the parties to make a reasonable effort to meet and confer. The HOA failed to communicate with the homeowner until 35 days after the claim was noticed (past the 30-day negotiation period). The ALJ found this lack of communication to be a violation of the specific CC&R article requiring good faith negotiation.
Alj Quote
The credible evidence presented demonstrated that Mountain Bridge, or its attorneys, did not communicate with Mr. Smith until October 13, 2020, approximately 35 days after the claim was noticed. … Therefore, the Tribunal finds that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s.
Legal Basis
CC&R Article 11.3.2
Topic Tags
Dispute Resolution
Good Faith
HOA Obligations
Question
Can the HOA use the COVID-19 pandemic as a valid excuse for failing to communicate with me?
Short Answer
Not if they fail to send any updates. The HOA must at least inform the homeowner of potential delays.
Detailed Answer
The ALJ rejected the HOA's implicit defense that the pandemic justified the delay in communication. The ruling stated that even if the pandemic caused issues, the HOA had an obligation to at least inform the homeowner that delays were occurring. Total silence was not justified.
Alj Quote
While this dispute occurred during the COVID-19 pandemic, certainly communications could have been sent to Mr. Smith informing him there may be some delays in communication. However, there were none, and thus no valid justification for the Board not entering into negotiations with the Smiths.
Legal Basis
Administrative Discretion / Good Faith
Topic Tags
Communication
Delays
Good Faith
Question
Who is responsible for proving that the HOA violated the rules during a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred. The HOA does not have to disprove the claim initially; the burden starts with the homeowner.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated CC&R § 3.1 by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
Legal Procedure
Burden of Proof
Evidence
Question
Can I claim the HOA violated a definition in the CC&Rs, such as 'Visible from Neighboring Property'?
Short Answer
No. You cannot violate a definition; you can only violate the rules that use the definition.
Detailed Answer
The homeowner argued the HOA violated the definition of 'Visible from Neighboring Property.' The ALJ ruled that a definition is descriptive and cannot be violated in and of itself. Violations must be tied to specific covenants or restrictions.
Alj Quote
Further, because “Visible from Neighboring Property” as mentioned in Article 1 is a definition, it is impossible for Mountain Bridge to violate the same.
Legal Basis
Contract Interpretation
Topic Tags
CC&R Interpretation
Definitions
Legal Standards
Question
If I win my hearing against the HOA, will I get my filing fee back?
Short Answer
Yes, if you prevail on a claim, the ALJ can order the HOA to reimburse your filing fee.
Detailed Answer
The ALJ deemed the homeowner the prevailing party regarding the 'failure to negotiate' claim (even though other claims were denied) and ordered the HOA to reimburse the $500.00 filing fee within 30 days.
Alj Quote
Thus, Petitioner is entitled to his filing fee of $500.00 and Respondent must reimburse the same with 30 days.
Legal Basis
Administrative Remedy
Topic Tags
Remedies
Fees
Reimbursement
Case
Docket No
21F-H2121037-REL
Case Title
Gregory L. Smith vs. Mountain Bridge Community Association
Decision Date
2021-06-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Gregory L. Smith(petitioner) Appeared on his own behalf
Christa Smith(witness) Called by Petitioner
Respondent Side
Nicole Payne(HOA attorney) Carpenter Hazlewood Appeared on behalf of Respondent
Amber Martin(community manager) Mountain Bridge Community Association Also testified as a witness
Jim Rayment(ARC Chair) Mountain Bridge Community Association Approved the flagpole; also testified as a witness
Mr. Riggs(HOA President) Mountain Bridge Community Association Petitioner's backyard neighbor
Neutral Parties
Adam D. Stone(ALJ) OAH Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of decision transmission
