Tag Archives: ARIZ. REV. STAT. § 32-2199.02(A)

Richard K. Morris v. The Townes at Paradise Valley Landings

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Case Summary

Case ID 23F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard K. Morris Counsel —
Respondent The Townes at Paradise Valley Landings Counsel —

Alleged Violations

Section 9.2 of the CC&Rs

Outcome Summary

The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.

Key Issues & Findings

Respondent required permanent removal of pre-approved security light in violation of CC&Rs Section 9.2.

Petitioner had Architectural Review Committee (ARC) approval from 2010 to install a security light on the shed fascia (a common area). Respondent HOA later required its removal, arguing their fiduciary duty and a new roofing warranty (2023) voided the prior approval. The ALJ found the HOA failed to perform due diligence regarding the pre-existing ARC approval before contracting the new work and violated CC&Rs Section 9.2, which allows rebuilding in accordance with previously approved plans.

Orders: Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs and reimburse Petitioner's filing fee of $500.00. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: ARC Approval, CC&R Violation, Fiduciary Duty, Homeowner Victory, Warranty Voidance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H056-REL Decision – 1073539.pdf

Uploaded 2026-01-23T17:57:57 (51.9 KB)

23F-H056-REL Decision – 1080973.pdf

Uploaded 2026-01-23T17:58:02 (110.3 KB)

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard K. Morris (petitioner)
    The Townes at Paradise Valley Landings
    Appeared on his own behalf

Respondent Side

  • Joelle Lever (board member)
    The Townes at Paradise Valley Landings
    Represented the Respondent and provided testimony
  • Chelsea Hearn (board member)
    The Townes at Paradise Valley Landings
    Homeowner who complained about the light
  • alice.riesterer (management staff)
    The Management Trust Arizona

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge who signed the Order and Decision
  • Judge Svio (hearing officer)
    OAH
    Administrative Law Judge who opened the hearing
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Deborah L (ARC member)
    Association
    Association representative who approved Petitioner's request in 2010
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • labril (ADRE staff)
    ADRE
    Recipient of transmission

Felicia Woodward v. The Pointe South Mountain Residential Association

Posted on by

Case Summary

Case ID 23F-H054-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-28
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Felicia Woodward Counsel —
Respondent The Pointe South Mountain Residential Association Counsel Jonathan D. Ebertshauser

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.

Why this result: Petitioner failed to meet the burden of proof required by a preponderance of the evidence for the alleged violation of A.R.S. § 33-1804(D). The tribunal determined the meeting was advertised as a workshop and not a statutory board meeting, and the Petitioner had timely opened the notice email a week prior.

Key Issues & Findings

Petitioner alleges the Respondent has violated A.R.S. § 33-1804 by holding a meeting that 'had not been properly noticed…'

Petitioner alleged that the March 14, 2023 meeting was not properly noticed because customary channels (email, calendar, sandwich boards) were not used, and the notice provided did not include the meeting location. Respondent argued notice was given through email survey and the community calendar, meeting the statutory requirements, and that the event was a workshop.

Orders: Petitioner's petition was denied. Respondent shall not reimburse Petitioner's filing fee pursuant to A.R.S. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Notice Requirements, HOA Board Meeting, Workshop, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.01

Video Overview

Audio Overview

Decision Documents

23F-H054-REL Decision – 1068018.pdf

Uploaded 2026-01-23T17:57:36 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-01-23T17:57:40 (113.6 KB)

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

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

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

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

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Felicia Woodward (petitioner)
    Property owner/Association member
    Full name is Felicia Anne Woodward; Appeared via Google Meet.

Respondent Side

  • Jonathan D. Ebertshauser (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Marcus R. Martinez (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Erin Busey (witness/general manager)
    First Service Residential (The Pointe South Mountain Residential Association)
    Called as a witness by Respondent; Identified herself as Aaron Ducy during testimony.

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.

Other Participants

  • Debbie Robinson (witness)
    Referenced by Petitioner as the person who took a screenshot exhibit; Presence/testimony not confirmed in hearing record.

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.

Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-01-23T17:57:32 (115.3 KB)





Study Guide – 23F-H053-REL


{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }






Blog Post – 23F-H053-REL


{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }


Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Paradise Park Condominiums Phase II HOA Member
    Also referred to as Deborah Maer

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Law Group
    Appeared on behalf of Respondent
  • Carl Westlund (witness)
    Management Trust
    Community Manager for the HOA

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Also referred to as Judge Delio
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Deanna Smith v. Moondance Townhomes Homeowners Association

Posted on by

Case Summary

Case ID 23F-H049-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-06
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deanna Smith Counsel —
Respondent Moondance Townhomes Homeowners Association Counsel Christina Morgan

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ affirmed the petition, finding the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide complete financial statements (including balance sheets and statements of cash flows) to the Petitioner upon request. The HOA was ordered to provide the missing financial statements and reimburse the $500 filing fee. A civil penalty was denied.

Key Issues & Findings

Failure to provide association financial records upon member request.

The Petitioner alleged that the Association failed to comply with her request for financial records dated December 15, 2022, pursuant to ARS § 33-1805. The Association provided only Profit & Loss statements on January 12, 2023, but failed to provide other requisite financial documents, such as balance sheets, statements of cash flows, or statements of income, as defined by ARS § 32-701. The failure to fulfill the request for financial statements constituted a violation.

Orders: The petition was affirmed. Respondent was ordered to reimburse the Petitioner's filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A). Respondent was ordered to provide financial statements, as defined by ARIZ. REV. STAT. § 32-701, for the months of August 2022 through December 2022 pursuant to ARIZ. REV. STAT. § 33-1805. Petitioner's request for a civil penalty was denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Financial Records, Statutory Compliance, Record Request Delay, Filing Fee Reimbursement, HOA Board Member
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.

Video Overview

Audio Overview

Decision Documents

23F-H049-REL Decision – 1062328.pdf

Uploaded 2026-01-23T17:57:27 (149.9 KB)

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

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

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

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

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deanna Smith (petitioner, board member)
    Moondance Townhomes Homeowners Association

Respondent Side

  • Christina Morgan (HOA attorney)
    Vingham
  • George Minter (President, board member, witness)
    Moondance Townhomes Homeowners Association
  • Linda Dieball (Treasurer, board member)
    Moondance Townhomes Homeowners Association

Neutral Parties

  • Brian Del Vecchio (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • labril (ADRE staff)
    Arizona Department of Real Estate

Anthony Payson v. The Foothills Homeowners Association #1

Posted on by

Case Summary

Case ID 23F-H041-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-01
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Anthony Payson Counsel —
Respondent The Foothills Homeowners Association #1 Counsel Sean K. Mohnihan

Alleged Violations

CC&R Section 5.4

Outcome Summary

The petition was dismissed after the Administrative Law Judge concluded that the Respondent HOA did not violate CC&R Section 5.4, finding that this section applies to use restrictions on individual Lots and Members, not the Association itself.

Why this result: The ALJ found that Petitioner failed to meet the burden of proof to establish the Respondent HOA violated CC&R Section 5.4 because the HOA does not own or operate the nuisance-causing television, and the CC&R section governs restrictions on lot Owners/Members, not the Association. OAH jurisdiction is limited to finding the governing document or statute violated by the respondent.

Key Issues & Findings

HOA's alleged failure to enforce nuisance provision (CC&R Section 5.4) regarding neighbor's outdoor television.

Petitioner alleged that the Respondent HOA failed to perform its duty to enforce CC&R Section 5.4 by refusing to seek removal of a neighbor's large, outdoor television that created noise disturbances and was deemed a nuisance.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(A)
  • CC&R Section 5.4

Analytics Highlights

Topics: Homeowners Association, CC&R, Nuisance, Enforcement, Jurisdiction, Outdoor TV
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. §32- 2199.02(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 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)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

https://open.spotify.com/episode/74bT2mijNKJ5SUal3ovDor

Decision Documents

23F-H041-REL Decision – 1047496.pdf

Uploaded 2026-01-23T17:55:58 (57.5 KB)

23F-H041-REL Decision – 1053240.pdf

Uploaded 2026-01-23T17:56:01 (98.4 KB)





Study Guide – 23F-H041-REL


{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its 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)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “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”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “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”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }






Blog Post – 23F-H041-REL


{ “case”: { “docket_no”: “23F-H041-REL”, “case_title”: “In the Matter of Anthony Payson vs The Foothills Homeowners Association #1”, “decision_date”: “2023-05-01”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the ADRE administrative hearing process to force my HOA to enforce CC&R rules against a neighbor?”, “short_answer”: “Generally no, if the specific rule applies to member conduct rather than Association conduct.”, “detailed_answer”: “The Administrative Law Judge (ALJ) clarified that the dispute process is for determining if the Respondent (the HOA) violated a statute or governing document. If a CC&R provision restricts how a ‘lot’ may be used, a violation of that rule is a breach by the member (the neighbor), not the Association. Therefore, the HOA cannot be found guilty of violating a rule that governs homeowner behavior.”, “alj_quote”: “These provisions refer to what members may and may not do within the Association. Therefore, any breach of this Article would be a breach by a Member, not the Association. Petitioner failed to establish that Respondent violated CC&R Section 5.4.”, “legal_basis”: “CC&R Section 5.4; OAH Jurisdiction”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have jurisdiction to decide if my HOA was negligent or violated common law duties?”, “short_answer”: “No, the OAH jurisdiction is strictly limited to violations of statutes and governing documents.”, “detailed_answer”: “The tribunal does not have the authority to hear claims based on common law, such as negligence or general failure to perform a duty, unless it is a specific violation of the statutes or the community documents tailored to the Association’s conduct.”, “alj_quote”: “To the extent that Petitioner alleged that Respondent may have violated common law, or any other laws, the OAH lacks jurisdiction to make such a determination.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “jurisdiction”, “common law”, “negligence” ] }, { “question”: “What remedies or penalties can I request from the administrative judge if I win my case against the HOA?”, “short_answer”: “Relief is limited to a finding of violation, an order to comply, return of filing fees, and civil penalties.”, “detailed_answer”: “The administrative process cannot award damages for things like pain, suffering, or lost property value. The remedies are strictly defined by statute: finding a violation occurred, ordering the HOA to abide by the provision, returning the petitioner’s filing fee, and levying a civil penalty.”, “alj_quote”: “Petitioner’s relief in this venue is limited to e is limited to a finding that the governing document or statute at issue has been violated by the respondent, an order that Respondent abide by the provision in the future, and to have the filing fee returned to the petitioner and a civil penalty levied against Respondent.”, “legal_basis”: “Ariz. Rev. Stat. §32- 2199.02(A)”, “topic_tags”: [ “remedies”, “penalties”, “civil penalty” ] }, { “question”: “Who is responsible for proving that a violation occurred in an HOA dispute hearing?”, “short_answer”: “The Petitioner (the homeowner filing the complaint) bears the burden of proof.”, “detailed_answer”: “The homeowner bringing the case must provide sufficient evidence to prove their claims. It is not the HOA’s job to disprove the claims initially; the burden lies with the person filing the petition.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated on its 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)”, “topic_tags”: [ “burden of proof”, “evidence”, “legal standard” ] }, { “question”: “What is the ‘preponderance of the evidence’ standard used in these hearings?”, “short_answer”: “It means the claim is more probable than not to be true.”, “detailed_answer”: “This legal standard requires that the evidence presented must convince the judge that the petitioner’s argument is more likely true than the opposing side’s argument. It is described as the ‘greater weight of the evidence.'”, “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”, “topic_tags”: [ “legal standard”, “definitions”, “evidence” ] }, { “question”: “How are vague or ambiguous rules in the CC&Rs interpreted by the judge?”, “short_answer”: “They are construed to give effect to the intent of the parties and the underlying purpose of the document.”, “detailed_answer”: “When interpreting restrictive covenants, the judge looks at the document as a whole. If the covenant is unambiguous, it is enforced exactly as written to match the intent.”, “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”: [ “interpretation”, “CC&Rs”, “legal principles” ] } ] }


Case Participants

Petitioner Side

  • Anthony Payson (petitioner)
    Homeowner

Respondent Side

  • Sean K. Mohnihan (HOA attorney)
    Smith & Wamsley, PLLC
    Appeared for Respondent The Foothills Homeowners Association #1
  • Jason E Smith (attorney)
    Smith & Wamsley, PLLC
    Listed with counsel
  • Gabron (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Linda Armo (board member)
    The Foothills Homeowners Association #1
    Board representative/potential witness
  • Philip Brown (former HOA attorney)
    Previously represented the HOA; wrote a letter to Petitioner

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Barry Callahan (neighbor)
    Alleged violator of CC&Rs, neighbor to Petitioner

Victoria J Whitaker v. Villas at Sunland Condominium Association

Posted on by

Case Summary

Case ID 23F-H021-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-22
Administrative Law Judge Jenna Clark
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victoria J Whitaker Counsel —
Respondent Villas at Sunland Condominium Association Counsel Austin Baillio

Alleged Violations

ARIZ. REV. STAT. § 33-1242

Outcome Summary

The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.

Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).

Key Issues & Findings

Alleged failure to follow due process concerning violation enforcement

Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.

Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Condominium Association, Due Process, Violation Enforcement, Carport Damage, Statutory Compliance, Filing Fee Denial
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 33-1260(A)(3)(e)
  • ARIZ. REV. STAT. § 33-1243
  • Declaration Article 5.3
  • Declaration Article 5.1
  • Declaration Article 5.2

Video Overview

Audio Overview

https://open.spotify.com/episode/72I03UkB36YQYWN0aeBE1m

Decision Documents

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-01-23T17:53:06 (224.9 KB)

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Victoria Whitaker (petitioner)
    Appeared on her own behalf without counsel
  • Kimball Whitaker (observer)
    Observed hearing; potential witness for petitioner
  • Realtor (realtor)
    Petitioner's realtor (name not provided)

Respondent Side

  • Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Joseph Milin (board member)
    Villas at Sunland Condominium Association
    Board President; Witness
  • Steven Cheff (property manager)
    Haywood Community Management (HMC)
    Community Manager and Compliance Inspector; Witness
  • Carly Collins (property management admin)
    Haywood Community Management (HMC)
    Admin responsible for correspondence
  • Harvey Colin (property management admin)
    Haywood Community Management (HMC)
    Signed resale disclosure statement
  • Neighbor (Unit 15) (witness)
    Unit 15 resident
    Provided alleged eyewitness testimony regarding the damage

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Presiding Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)

Other Participants

  • Chad and Ida Carpenter (prior owners/sellers)
    Unit 16 (prior owners)
    The sellers of the property at issue
  • Kevin Finley (contractor)
    Signature
    Provided repair estimate

Robert C. Ochs v. The Camelview Greens Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2222048-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-04
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert C. Ochs Counsel —
Respondent The Camelview Greens Homeowners Association Counsel Ashley Moscarello, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805 A

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.

Why this result: Petitioner failed to sustain the burden of proof that the Respondent violated the records request statute.

Key Issues & Findings

Alleged violation of records request statute (failure to timely provide materials lists/specifications related to roof replacement/repairs).

Petitioner requested materials lists and specifications regarding recent (Sept 2021) and past (since 1986) roof work on February 27, 2022. The Association provided a scope of work document from the vendor on May 11, 2022, after the petition was filed. The ALJ determined the requested documents were not established to be 'financial and other records of the association' as contemplated by the statute, and TMT was not in possession of them at the time of the request.

Orders: Petitioner's petition and request for a civil penalty were denied. Respondent was not ordered to reimburse Petitioner's filing fee.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805 A
  • ARIZ. REV. STAT. § 32-2199.02 A
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: HOA records request, Planned Community Act, Roof Repair/Replacement, Condominium, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222048-REL Decision – 1003691.pdf

Uploaded 2026-01-23T17:48:15 (160.6 KB)

22F-H2222048-REL Decision – 979940.pdf

Uploaded 2026-01-23T17:48:17 (49.4 KB)

22F-H2222048-REL Decision – 979959.pdf

Uploaded 2026-01-23T17:48:18 (7.1 KB)

22F-H2222048-REL Decision – 985762.pdf

Uploaded 2026-01-23T17:48:20 (52.8 KB)

22F-H2222048-REL Decision – 986375.pdf

Uploaded 2026-01-23T17:48:22 (52.8 KB)





Study Guide – 22F-H2222048-REL


{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }






Blog Post – 22F-H2222048-REL


{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }


Case Participants

Petitioner Side

  • Robert C. Ochs (petitioner)
    Appeared on his own behalf

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren
    Appeared on behalf of respondent
  • Carl Westlund (witness)
    The Management Trust
    Division Vice President of Community Management at TMT
  • Shauna Carr (property manager)
    The Management Trust
    Former executive community manager for Camel View Greens
  • Dameon Cons (HOA attorney)
    Goodman Holmgren
    Sent response letter to Petitioner
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren
    Counsel for Respondent listed on transmittals

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    OAH
    Transmitted orders/minute entries
  • AHansen (ADRE Staff)
    ADRE
    Recipient of official documents
  • vnunez (ADRE Staff)
    ADRE
    Recipient of official documents
  • djones (ADRE Staff)
    ADRE
    Recipient of official documents
  • labril (ADRE Staff)
    ADRE
    Recipient of official documents

Other Participants

  • Jeff Centers (vendor/project manager)
    Vendor
    Contractor hired by the community

Marc Archer v. PMPE Community Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2121040-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-30
Administrative Law Judge Thomas Shedden
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel —
Respondent PMPE Community Association, Inc. Counsel Nicholas C. S. Nogami

Alleged Violations

ARIZ. REV. STAT. section 33-1817(B)(3)

Outcome Summary

The Association unreasonably withheld approval for Marc Archer's two-story garage addition, thereby violating ARIZ. REV. STAT. § 33-1817(B)(3). The Association was ordered to grant preliminary approval for the design and refund the $500 filing fee.

Key Issues & Findings

Unreasonable withholding of architectural approval

The Association unreasonably withheld preliminary approval for the Petitioner's January 2020 two-story garage addition request. The ALJ determined that none of the three reasons provided by the Association for the denial were reasonable.

Orders: The Association must grant preliminary approval for the proposed design and must pay the Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2

Analytics Highlights

Topics: HOA architectural approval, unreasonable denial, two-story garage addition, filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. ADMIN. CODE § R2-19-119
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2




Briefing Doc – 21F-H2121040-REL-RHG


Briefing Document: Archer v. PMPE Community Association, Inc.

Executive Summary

This document synthesizes the key themes, evidence, and legal proceedings in the administrative case Marc Archer v. PMPE Community Association, Inc. (No. 21F-H2121040-REL). The central conflict revolves around Petitioner Marc Archer’s proposal for a two-story addition to his home, which was denied by the Respondent, the PMPE Community Association’s Architectural Committee (AC). Mr. Archer alleged this denial was an unreasonable withholding of approval, violating Arizona statute § 33-1817(B)(3).

The case is marked by a protracted history, including a previous denial for a different one-story design in 2019 and an earlier ruling in this matter (December 2020) that found the Association had violated its own procedures by not providing a written reason for its April 2020 denial. This procedural failure led to a formal denial letter on December 30, 2020, which became the central focus of the subsequent hearings.

The Association cited three primary reasons for the denial: 1) the addition lacked harmony with the existing structure, resembling a “large box”; 2) the proposal to use painted roof tiles was unacceptable; and 3) the design lacked sufficient architectural elements to break up large, flat expanses.

Mr. Archer countered with extensive evidence, including testimony from building industry experts and a registered architect, arguing that the design was harmonious, incorporated numerous architectural details found on the existing house, and that the Association’s objections were unfounded and inconsistent. The proceedings revealed significant confusion stemming from the Association’s denial letter, which conflated mandatory reasons for denial with what it later claimed were “advisory only” suggestions.

Ultimately, Administrative Law Judge (ALJ) Thomas Shedden ruled in favor of Mr. Archer. The March 30, 2022 decision concluded that the Association’s reasons for denial were unreasonable and not supported by a preponderance of the evidence. The Association was ordered to grant preliminary approval for the project and reimburse Mr. Archer’s $500 filing fee. A subsequent request for rehearing by the Association was withdrawn, making the ALJ’s decision final.

1. Case Overview

Case Number

21F-H2121040-REL

Petitioner

Marc Archer

Respondent

PMPE Community Association, Inc.

Presiding Judge

Administrative Law Judge (ALJ) Thomas Shedden

Core Allegation

The Association violated ARIZ. REV. STAT. § 33-1817(B)(3), which states, “Approval of a construction project’s architectural designs, plans and amendments shall not unreasonably be withheld.”

Subject of Dispute

The denial of Mr. Archer’s January 2020 preliminary submittal for a two-story garage addition to his home at 8619 North Place, Phoenix, AZ.

2. Detailed Procedural History

The dispute has a multi-year history involving multiple architectural proposals and administrative hearings.

• 2019 Denial (One-Story Design): Mr. Archer first sought approval for a one-story garage with a flat roof. The Association denied final approval. In a decision dated September 3, 2019 (Docket 19F-H1919063-REL), an ALJ concluded the Association had not violated the statute, noting the architectural rules favored pitched roofs and the structure would be visible above a nine-foot wall.

• January 2020 Submittal (Two-Story Design): Mr. Archer submitted the current proposal for a two-story garage addition.

• April 10, 2020 Denial (No Written Basis): The Association’s Architectural Committee (AC) denied the proposal during a conference call but failed to provide a written basis for the denial, as required by its own rules.

• December 3, 2020 ALJ Decision (Procedural Violation): In response to a petition filed by Mr. Archer, an ALJ determined the Association had violated its CC&Rs and the state statute by not providing a written reason for denial. The decision explicitly noted it was not a finding on the merits of the architectural design itself.

• December 30, 2020 Written Denial: The Association issued a formal written response outlining its reasons for denial. This document’s confusing structure, with separate sections for “reasons for denial” and “comments… for resubmittal,” became a major point of contention.

• 2021-2022 Hearings: Hearings on the reasonableness of the denial were held before ALJ Thomas Shedden on July 29, 2021, October 22, 2021, and January 31, 2022.

• March 30, 2022 ALJ Decision: ALJ Shedden found in favor of Mr. Archer, ruling the Association’s denial was unreasonable.

• July 13, 2022 Finality: The Association requested a rehearing but subsequently withdrew the request, rendering the March 30, 2022 decision final.

3. The Association’s Rationale for Denial

The Association’s denial, as articulated in the December 30, 2020 letter and testimony from its president, Keith Kauffman, was based on three main points.

3.1 Lack of Harmony and Integration

The primary objection was that the addition failed to “harmonize with the current building structure” as required by the Architectural Rules (ARs).

• Argument: The Association contended Mr. Archer was “attaching a large two-story ‘box’ to [his] home and not incorporating the addition into the current structure.”

• Kauffman’s Testimony: Mr. Kauffman elaborated that the addition was akin to “building a structure and then attaching that structure instead of… building an addition to his home.” Key issues he identified were that the new roofline did not blend into the existing second-story roof and that the structure connected to the house at only two points. The committee felt it would not look like it “was there from the beginning.”

3.2 Unacceptable Painted Roof Tiles

The second reason for denial was that Mr. Archer’s proposal to paint new roof tiles to match the existing roof was unacceptable.

• Argument: According to the letter, “painted roof tiles are not acceptable and are not identified as under section 4.4 of the archetypal rule.”

• Kauffman’s Testimony: Mr. Kauffman argued that because AR Section 4.4 does not explicitly state that painted tiles are acceptable, they are therefore not acceptable. He stated, “[The committee] didn’t feel that in this kind of development… that is not an acceptable… way to… tile one’s roof.”

3.3 Insufficient Architectural Expression

The final reason was that the design lacked sufficient architectural elements to break up large, flat wall expanses.

• Argument: The denial stated, “There needs to be architectural elements per pop out in windows etc. Prim to break up expanses and add ‘architectural expression’ to the addition as outlined in 4.2.”

• Testimony: Both Mr. Kauffman and community manager Gail Zigler testified that the proposed windows were not appropriate because they were not the same size as other windows on the house.

4. The Petitioner’s Rebuttal and Evidence

Mr. Archer presented a comprehensive case to counter each of the Association’s points, supported by his own testimony and that of multiple expert witnesses.

4.1 Design Harmony and Architectural Details

Mr. Archer argued that his design was meticulously planned to be harmonious with the existing home.

• Existing Elements: He demonstrated that the proposed addition incorporated numerous features already present on his house, including stucco pop-outs, soffit details, and eave designs. During cross-examination of Mr. Kauffman, Mr. Archer used photographs to establish that pop-outs, which the committee initially claimed were not present elsewhere on the house, did in fact exist near the bay windows.

• Roofline: He testified that staggering the rooflines adds aesthetic appeal and that tying the new roof directly into the existing second-story roof was not aesthetically viable.

• Expert Opinion:

◦ Greg Hancock, a builder of 25,000-30,000 homes, testified that the proposed addition is “not non-harmonious.”

◦ Dan Earlie, with 47 years in homebuilding, opined that Mr. Archer “went overboard in an effort to harmonize the addition.”

◦ Thomas Bragg, a registered architect, concluded in a sealed affidavit that the proposal was in compliance with the ARs, noting the design “matched the existing architecture” and was “varied and does not present any large unbroken wall areas with the blended details.”

4.2 Defense of Roof Tiles and Window Design

Mr. Archer presented evidence that the objections regarding tiles and windows were unreasonable.

• Painted Tiles: He provided evidence that painting roof tiles is no different than painting stucco, as both are cement-based products. Furthermore, he noted that the ARs do not contain any prohibition on painting tiles, whereas other materials like vinyl siding are explicitly prohibited. During the hearings, he also indicated he may have located matching tiles, potentially rendering the issue moot.

• Window Sizes: Evidence showed that window sizes on Mr. Archer’s existing house, as well as on other houses in the community, already vary.

4.3 Witness Testimony

In addition to the building experts, a neighbor provided testimony supporting Mr. Archer’s position.

• Dr. Victor Zach, who lives across the street, testified that he is not opposed to the proposed addition.

5. Key Hearing Dynamics and Controversies

5.1 The Confounding Denial Letter

The structure of the December 30, 2020 letter was a central issue.

• Mr. Kauffman testified that the second set of six bullet points was “advisory only” and intended to provide guidance.

• However, this section contained two of the three official reasons for denial (roof tiles and architectural elements) and included the statement that the addition “will be limited to a single story,” which Mr. Kauffman later admitted under questioning was not a firm requirement.

• The ALJ noted this created significant confusion: “At the hearing, Mr. Kauffman testified that the second set of bullets was advisory only, which was not clear to Mr. Archer until the hearing.”

5.2 Irrelevant Considerations by the Committee

Evidence from a previous hearing revealed that the AC’s decision-making process was influenced by factors outside the scope of architectural review.

• A prior ALJ decision found that during the April 10, 2020 conference call, “at least two members expressed their concerns with how Petitioner was planning to use the new addition. Specifically, the members were concerned Petitioner was going to accumulate more ‘junk’.”

• In the current hearing, Mr. Archer played an audio recording where a prior judge asked Mr. Kauffman, “Is there anything in the architectural guidelines that says how a structure is going to be used should affect whether or not it’s approved?”

5.3 The “Collaborative Process” Breakdown

Mr. Kauffman repeatedly testified that the approval process is intended to be collaborative, yet acknowledged that no discussions occurred after the April 2020 denial. The Association’s stance was that Mr. Archer failed to engage, while Mr. Archer felt he was facing a “moving target.” The ALJ highlighted the lack of clarity from the Association, which hindered any potential collaboration. The judge expressed surprise at the need to clarify that the existing house must be considered in the review:

“I don’t see how you could possibly make a decision without taking the house into consideration. And I apologize… that just strikes me as so self-evident that… I’m surprised we we’ve had to have it out.” – ALJ Thomas Shedden

6. Final Adjudication and Outcome

In his March 30, 2022 decision, ALJ Thomas Shedden ruled definitively in favor of the Petitioner, Marc Archer.

6.1 Conclusions of Law

The decision found that Mr. Archer had met his burden of proof to show the Association unreasonably withheld approval. The ALJ systematically dismantled each of the Association’s reasons for denial:

1. Harmony: “There was no substantial evidence adduced showing that Mr. Archer’s proposed addition will dominate or sharply contrast with the community.” The judge noted that other houses have more than one roofline, making the proposed addition consistent with the neighborhood.

2. Painted Roof Tiles: “The preponderance of the evidence shows that the Association acted outside its scope of authority because the ARs do not include a prohibition on painting tiles.”

3. Architectural Expression: “Mr. Archer provided credible evidence showing that the proposed addition will provide architectural expression as required by AR section 4.2.”

6.2 Final Order

Based on these conclusions, the Judge issued a two-part order:

1. IT IS ORDERED that Marc Archer is the prevailing party in this matter and that the Association should approve his preliminary design;

2. IT IS FURTHER ORDERED that the Association must pay to Mr. Archer Petitioner his filing fee of $500.00 within thirty days of this Order.

The Association’s subsequent withdrawal of its rehearing request finalized this decision.


Marc Archer v. PMPE Community Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2121040-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-30
Administrative Law Judge Thomas Shedden
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel —
Respondent PMPE Community Association, Inc. Counsel Nicholas C. S. Nogami

Alleged Violations

ARIZ. REV. STAT. section 33-1817(B)(3)

Outcome Summary

The Association unreasonably withheld approval for Marc Archer's two-story garage addition, thereby violating ARIZ. REV. STAT. § 33-1817(B)(3). The Association was ordered to grant preliminary approval for the design and refund the $500 filing fee.

Key Issues & Findings

Unreasonable withholding of architectural approval

The Association unreasonably withheld preliminary approval for the Petitioner's January 2020 two-story garage addition request. The ALJ determined that none of the three reasons provided by the Association for the denial were reasonable.

Orders: The Association must grant preliminary approval for the proposed design and must pay the Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2

Analytics Highlights

Topics: HOA architectural approval, unreasonable denial, two-story garage addition, filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. ADMIN. CODE § R2-19-119
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2




Briefing Doc – 21F-H2121040-REL-RHG


Briefing Document: Archer v. PMPE Community Association, Inc.

Executive Summary

This document synthesizes the key themes, evidence, and legal proceedings in the administrative case Marc Archer v. PMPE Community Association, Inc. (No. 21F-H2121040-REL). The central conflict revolves around Petitioner Marc Archer’s proposal for a two-story addition to his home, which was denied by the Respondent, the PMPE Community Association’s Architectural Committee (AC). Mr. Archer alleged this denial was an unreasonable withholding of approval, violating Arizona statute § 33-1817(B)(3).

The case is marked by a protracted history, including a previous denial for a different one-story design in 2019 and an earlier ruling in this matter (December 2020) that found the Association had violated its own procedures by not providing a written reason for its April 2020 denial. This procedural failure led to a formal denial letter on December 30, 2020, which became the central focus of the subsequent hearings.

The Association cited three primary reasons for the denial: 1) the addition lacked harmony with the existing structure, resembling a “large box”; 2) the proposal to use painted roof tiles was unacceptable; and 3) the design lacked sufficient architectural elements to break up large, flat expanses.

Mr. Archer countered with extensive evidence, including testimony from building industry experts and a registered architect, arguing that the design was harmonious, incorporated numerous architectural details found on the existing house, and that the Association’s objections were unfounded and inconsistent. The proceedings revealed significant confusion stemming from the Association’s denial letter, which conflated mandatory reasons for denial with what it later claimed were “advisory only” suggestions.

Ultimately, Administrative Law Judge (ALJ) Thomas Shedden ruled in favor of Mr. Archer. The March 30, 2022 decision concluded that the Association’s reasons for denial were unreasonable and not supported by a preponderance of the evidence. The Association was ordered to grant preliminary approval for the project and reimburse Mr. Archer’s $500 filing fee. A subsequent request for rehearing by the Association was withdrawn, making the ALJ’s decision final.

1. Case Overview

Case Number

21F-H2121040-REL

Petitioner

Marc Archer

Respondent

PMPE Community Association, Inc.

Presiding Judge

Administrative Law Judge (ALJ) Thomas Shedden

Core Allegation

The Association violated ARIZ. REV. STAT. § 33-1817(B)(3), which states, “Approval of a construction project’s architectural designs, plans and amendments shall not unreasonably be withheld.”

Subject of Dispute

The denial of Mr. Archer’s January 2020 preliminary submittal for a two-story garage addition to his home at 8619 North Place, Phoenix, AZ.

2. Detailed Procedural History

The dispute has a multi-year history involving multiple architectural proposals and administrative hearings.

• 2019 Denial (One-Story Design): Mr. Archer first sought approval for a one-story garage with a flat roof. The Association denied final approval. In a decision dated September 3, 2019 (Docket 19F-H1919063-REL), an ALJ concluded the Association had not violated the statute, noting the architectural rules favored pitched roofs and the structure would be visible above a nine-foot wall.

• January 2020 Submittal (Two-Story Design): Mr. Archer submitted the current proposal for a two-story garage addition.

• April 10, 2020 Denial (No Written Basis): The Association’s Architectural Committee (AC) denied the proposal during a conference call but failed to provide a written basis for the denial, as required by its own rules.

• December 3, 2020 ALJ Decision (Procedural Violation): In response to a petition filed by Mr. Archer, an ALJ determined the Association had violated its CC&Rs and the state statute by not providing a written reason for denial. The decision explicitly noted it was not a finding on the merits of the architectural design itself.

• December 30, 2020 Written Denial: The Association issued a formal written response outlining its reasons for denial. This document’s confusing structure, with separate sections for “reasons for denial” and “comments… for resubmittal,” became a major point of contention.

• 2021-2022 Hearings: Hearings on the reasonableness of the denial were held before ALJ Thomas Shedden on July 29, 2021, October 22, 2021, and January 31, 2022.

• March 30, 2022 ALJ Decision: ALJ Shedden found in favor of Mr. Archer, ruling the Association’s denial was unreasonable.

• July 13, 2022 Finality: The Association requested a rehearing but subsequently withdrew the request, rendering the March 30, 2022 decision final.

3. The Association’s Rationale for Denial

The Association’s denial, as articulated in the December 30, 2020 letter and testimony from its president, Keith Kauffman, was based on three main points.

3.1 Lack of Harmony and Integration

The primary objection was that the addition failed to “harmonize with the current building structure” as required by the Architectural Rules (ARs).

• Argument: The Association contended Mr. Archer was “attaching a large two-story ‘box’ to [his] home and not incorporating the addition into the current structure.”

• Kauffman’s Testimony: Mr. Kauffman elaborated that the addition was akin to “building a structure and then attaching that structure instead of… building an addition to his home.” Key issues he identified were that the new roofline did not blend into the existing second-story roof and that the structure connected to the house at only two points. The committee felt it would not look like it “was there from the beginning.”

3.2 Unacceptable Painted Roof Tiles

The second reason for denial was that Mr. Archer’s proposal to paint new roof tiles to match the existing roof was unacceptable.

• Argument: According to the letter, “painted roof tiles are not acceptable and are not identified as under section 4.4 of the archetypal rule.”

• Kauffman’s Testimony: Mr. Kauffman argued that because AR Section 4.4 does not explicitly state that painted tiles are acceptable, they are therefore not acceptable. He stated, “[The committee] didn’t feel that in this kind of development… that is not an acceptable… way to… tile one’s roof.”

3.3 Insufficient Architectural Expression

The final reason was that the design lacked sufficient architectural elements to break up large, flat wall expanses.

• Argument: The denial stated, “There needs to be architectural elements per pop out in windows etc. Prim to break up expanses and add ‘architectural expression’ to the addition as outlined in 4.2.”

• Testimony: Both Mr. Kauffman and community manager Gail Zigler testified that the proposed windows were not appropriate because they were not the same size as other windows on the house.

4. The Petitioner’s Rebuttal and Evidence

Mr. Archer presented a comprehensive case to counter each of the Association’s points, supported by his own testimony and that of multiple expert witnesses.

4.1 Design Harmony and Architectural Details

Mr. Archer argued that his design was meticulously planned to be harmonious with the existing home.

• Existing Elements: He demonstrated that the proposed addition incorporated numerous features already present on his house, including stucco pop-outs, soffit details, and eave designs. During cross-examination of Mr. Kauffman, Mr. Archer used photographs to establish that pop-outs, which the committee initially claimed were not present elsewhere on the house, did in fact exist near the bay windows.

• Roofline: He testified that staggering the rooflines adds aesthetic appeal and that tying the new roof directly into the existing second-story roof was not aesthetically viable.

• Expert Opinion:

◦ Greg Hancock, a builder of 25,000-30,000 homes, testified that the proposed addition is “not non-harmonious.”

◦ Dan Earlie, with 47 years in homebuilding, opined that Mr. Archer “went overboard in an effort to harmonize the addition.”

◦ Thomas Bragg, a registered architect, concluded in a sealed affidavit that the proposal was in compliance with the ARs, noting the design “matched the existing architecture” and was “varied and does not present any large unbroken wall areas with the blended details.”

4.2 Defense of Roof Tiles and Window Design

Mr. Archer presented evidence that the objections regarding tiles and windows were unreasonable.

• Painted Tiles: He provided evidence that painting roof tiles is no different than painting stucco, as both are cement-based products. Furthermore, he noted that the ARs do not contain any prohibition on painting tiles, whereas other materials like vinyl siding are explicitly prohibited. During the hearings, he also indicated he may have located matching tiles, potentially rendering the issue moot.

• Window Sizes: Evidence showed that window sizes on Mr. Archer’s existing house, as well as on other houses in the community, already vary.

4.3 Witness Testimony

In addition to the building experts, a neighbor provided testimony supporting Mr. Archer’s position.

• Dr. Victor Zach, who lives across the street, testified that he is not opposed to the proposed addition.

5. Key Hearing Dynamics and Controversies

5.1 The Confounding Denial Letter

The structure of the December 30, 2020 letter was a central issue.

• Mr. Kauffman testified that the second set of six bullet points was “advisory only” and intended to provide guidance.

• However, this section contained two of the three official reasons for denial (roof tiles and architectural elements) and included the statement that the addition “will be limited to a single story,” which Mr. Kauffman later admitted under questioning was not a firm requirement.

• The ALJ noted this created significant confusion: “At the hearing, Mr. Kauffman testified that the second set of bullets was advisory only, which was not clear to Mr. Archer until the hearing.”

5.2 Irrelevant Considerations by the Committee

Evidence from a previous hearing revealed that the AC’s decision-making process was influenced by factors outside the scope of architectural review.

• A prior ALJ decision found that during the April 10, 2020 conference call, “at least two members expressed their concerns with how Petitioner was planning to use the new addition. Specifically, the members were concerned Petitioner was going to accumulate more ‘junk’.”

• In the current hearing, Mr. Archer played an audio recording where a prior judge asked Mr. Kauffman, “Is there anything in the architectural guidelines that says how a structure is going to be used should affect whether or not it’s approved?”

5.3 The “Collaborative Process” Breakdown

Mr. Kauffman repeatedly testified that the approval process is intended to be collaborative, yet acknowledged that no discussions occurred after the April 2020 denial. The Association’s stance was that Mr. Archer failed to engage, while Mr. Archer felt he was facing a “moving target.” The ALJ highlighted the lack of clarity from the Association, which hindered any potential collaboration. The judge expressed surprise at the need to clarify that the existing house must be considered in the review:

“I don’t see how you could possibly make a decision without taking the house into consideration. And I apologize… that just strikes me as so self-evident that… I’m surprised we we’ve had to have it out.” – ALJ Thomas Shedden

6. Final Adjudication and Outcome

In his March 30, 2022 decision, ALJ Thomas Shedden ruled definitively in favor of the Petitioner, Marc Archer.

6.1 Conclusions of Law

The decision found that Mr. Archer had met his burden of proof to show the Association unreasonably withheld approval. The ALJ systematically dismantled each of the Association’s reasons for denial:

1. Harmony: “There was no substantial evidence adduced showing that Mr. Archer’s proposed addition will dominate or sharply contrast with the community.” The judge noted that other houses have more than one roofline, making the proposed addition consistent with the neighborhood.

2. Painted Roof Tiles: “The preponderance of the evidence shows that the Association acted outside its scope of authority because the ARs do not include a prohibition on painting tiles.”

3. Architectural Expression: “Mr. Archer provided credible evidence showing that the proposed addition will provide architectural expression as required by AR section 4.2.”

6.2 Final Order

Based on these conclusions, the Judge issued a two-part order:

1. IT IS ORDERED that Marc Archer is the prevailing party in this matter and that the Association should approve his preliminary design;

2. IT IS FURTHER ORDERED that the Association must pay to Mr. Archer Petitioner his filing fee of $500.00 within thirty days of this Order.

The Association’s subsequent withdrawal of its rehearing request finalized this decision.


Marc Archer v. PMPE Community Association, Inc.

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Case Summary

Case ID 21F-H2121040-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-30
Administrative Law Judge Thomas Shedden
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel —
Respondent PMPE Community Association, Inc. Counsel Nicholas C. S. Nogami

Alleged Violations

ARIZ. REV. STAT. section 33-1817(B)(3)

Outcome Summary

The Association unreasonably withheld approval for Marc Archer's two-story garage addition, thereby violating ARIZ. REV. STAT. § 33-1817(B)(3). The Association was ordered to grant preliminary approval for the design and refund the $500 filing fee.

Key Issues & Findings

Unreasonable withholding of architectural approval

The Association unreasonably withheld preliminary approval for the Petitioner's January 2020 two-story garage addition request. The ALJ determined that none of the three reasons provided by the Association for the denial were reasonable.

Orders: The Association must grant preliminary approval for the proposed design and must pay the Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2

Analytics Highlights

Topics: HOA architectural approval, unreasonable denial, two-story garage addition, filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. ADMIN. CODE § R2-19-119
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2




Briefing Doc – 21F-H2121040-REL-RHG


Briefing Document: Archer v. PMPE Community Association, Inc.

Executive Summary

This document synthesizes the key themes, evidence, and legal proceedings in the administrative case Marc Archer v. PMPE Community Association, Inc. (No. 21F-H2121040-REL). The central conflict revolves around Petitioner Marc Archer’s proposal for a two-story addition to his home, which was denied by the Respondent, the PMPE Community Association’s Architectural Committee (AC). Mr. Archer alleged this denial was an unreasonable withholding of approval, violating Arizona statute § 33-1817(B)(3).

The case is marked by a protracted history, including a previous denial for a different one-story design in 2019 and an earlier ruling in this matter (December 2020) that found the Association had violated its own procedures by not providing a written reason for its April 2020 denial. This procedural failure led to a formal denial letter on December 30, 2020, which became the central focus of the subsequent hearings.

The Association cited three primary reasons for the denial: 1) the addition lacked harmony with the existing structure, resembling a “large box”; 2) the proposal to use painted roof tiles was unacceptable; and 3) the design lacked sufficient architectural elements to break up large, flat expanses.

Mr. Archer countered with extensive evidence, including testimony from building industry experts and a registered architect, arguing that the design was harmonious, incorporated numerous architectural details found on the existing house, and that the Association’s objections were unfounded and inconsistent. The proceedings revealed significant confusion stemming from the Association’s denial letter, which conflated mandatory reasons for denial with what it later claimed were “advisory only” suggestions.

Ultimately, Administrative Law Judge (ALJ) Thomas Shedden ruled in favor of Mr. Archer. The March 30, 2022 decision concluded that the Association’s reasons for denial were unreasonable and not supported by a preponderance of the evidence. The Association was ordered to grant preliminary approval for the project and reimburse Mr. Archer’s $500 filing fee. A subsequent request for rehearing by the Association was withdrawn, making the ALJ’s decision final.

1. Case Overview

Case Number

21F-H2121040-REL

Petitioner

Marc Archer

Respondent

PMPE Community Association, Inc.

Presiding Judge

Administrative Law Judge (ALJ) Thomas Shedden

Core Allegation

The Association violated ARIZ. REV. STAT. § 33-1817(B)(3), which states, “Approval of a construction project’s architectural designs, plans and amendments shall not unreasonably be withheld.”

Subject of Dispute

The denial of Mr. Archer’s January 2020 preliminary submittal for a two-story garage addition to his home at 8619 North Place, Phoenix, AZ.

2. Detailed Procedural History

The dispute has a multi-year history involving multiple architectural proposals and administrative hearings.

• 2019 Denial (One-Story Design): Mr. Archer first sought approval for a one-story garage with a flat roof. The Association denied final approval. In a decision dated September 3, 2019 (Docket 19F-H1919063-REL), an ALJ concluded the Association had not violated the statute, noting the architectural rules favored pitched roofs and the structure would be visible above a nine-foot wall.

• January 2020 Submittal (Two-Story Design): Mr. Archer submitted the current proposal for a two-story garage addition.

• April 10, 2020 Denial (No Written Basis): The Association’s Architectural Committee (AC) denied the proposal during a conference call but failed to provide a written basis for the denial, as required by its own rules.

• December 3, 2020 ALJ Decision (Procedural Violation): In response to a petition filed by Mr. Archer, an ALJ determined the Association had violated its CC&Rs and the state statute by not providing a written reason for denial. The decision explicitly noted it was not a finding on the merits of the architectural design itself.

• December 30, 2020 Written Denial: The Association issued a formal written response outlining its reasons for denial. This document’s confusing structure, with separate sections for “reasons for denial” and “comments… for resubmittal,” became a major point of contention.

• 2021-2022 Hearings: Hearings on the reasonableness of the denial were held before ALJ Thomas Shedden on July 29, 2021, October 22, 2021, and January 31, 2022.

• March 30, 2022 ALJ Decision: ALJ Shedden found in favor of Mr. Archer, ruling the Association’s denial was unreasonable.

• July 13, 2022 Finality: The Association requested a rehearing but subsequently withdrew the request, rendering the March 30, 2022 decision final.

3. The Association’s Rationale for Denial

The Association’s denial, as articulated in the December 30, 2020 letter and testimony from its president, Keith Kauffman, was based on three main points.

3.1 Lack of Harmony and Integration

The primary objection was that the addition failed to “harmonize with the current building structure” as required by the Architectural Rules (ARs).

• Argument: The Association contended Mr. Archer was “attaching a large two-story ‘box’ to [his] home and not incorporating the addition into the current structure.”

• Kauffman’s Testimony: Mr. Kauffman elaborated that the addition was akin to “building a structure and then attaching that structure instead of… building an addition to his home.” Key issues he identified were that the new roofline did not blend into the existing second-story roof and that the structure connected to the house at only two points. The committee felt it would not look like it “was there from the beginning.”

3.2 Unacceptable Painted Roof Tiles

The second reason for denial was that Mr. Archer’s proposal to paint new roof tiles to match the existing roof was unacceptable.

• Argument: According to the letter, “painted roof tiles are not acceptable and are not identified as under section 4.4 of the archetypal rule.”

• Kauffman’s Testimony: Mr. Kauffman argued that because AR Section 4.4 does not explicitly state that painted tiles are acceptable, they are therefore not acceptable. He stated, “[The committee] didn’t feel that in this kind of development… that is not an acceptable… way to… tile one’s roof.”

3.3 Insufficient Architectural Expression

The final reason was that the design lacked sufficient architectural elements to break up large, flat wall expanses.

• Argument: The denial stated, “There needs to be architectural elements per pop out in windows etc. Prim to break up expanses and add ‘architectural expression’ to the addition as outlined in 4.2.”

• Testimony: Both Mr. Kauffman and community manager Gail Zigler testified that the proposed windows were not appropriate because they were not the same size as other windows on the house.

4. The Petitioner’s Rebuttal and Evidence

Mr. Archer presented a comprehensive case to counter each of the Association’s points, supported by his own testimony and that of multiple expert witnesses.

4.1 Design Harmony and Architectural Details

Mr. Archer argued that his design was meticulously planned to be harmonious with the existing home.

• Existing Elements: He demonstrated that the proposed addition incorporated numerous features already present on his house, including stucco pop-outs, soffit details, and eave designs. During cross-examination of Mr. Kauffman, Mr. Archer used photographs to establish that pop-outs, which the committee initially claimed were not present elsewhere on the house, did in fact exist near the bay windows.

• Roofline: He testified that staggering the rooflines adds aesthetic appeal and that tying the new roof directly into the existing second-story roof was not aesthetically viable.

• Expert Opinion:

◦ Greg Hancock, a builder of 25,000-30,000 homes, testified that the proposed addition is “not non-harmonious.”

◦ Dan Earlie, with 47 years in homebuilding, opined that Mr. Archer “went overboard in an effort to harmonize the addition.”

◦ Thomas Bragg, a registered architect, concluded in a sealed affidavit that the proposal was in compliance with the ARs, noting the design “matched the existing architecture” and was “varied and does not present any large unbroken wall areas with the blended details.”

4.2 Defense of Roof Tiles and Window Design

Mr. Archer presented evidence that the objections regarding tiles and windows were unreasonable.

• Painted Tiles: He provided evidence that painting roof tiles is no different than painting stucco, as both are cement-based products. Furthermore, he noted that the ARs do not contain any prohibition on painting tiles, whereas other materials like vinyl siding are explicitly prohibited. During the hearings, he also indicated he may have located matching tiles, potentially rendering the issue moot.

• Window Sizes: Evidence showed that window sizes on Mr. Archer’s existing house, as well as on other houses in the community, already vary.

4.3 Witness Testimony

In addition to the building experts, a neighbor provided testimony supporting Mr. Archer’s position.

• Dr. Victor Zach, who lives across the street, testified that he is not opposed to the proposed addition.

5. Key Hearing Dynamics and Controversies

5.1 The Confounding Denial Letter

The structure of the December 30, 2020 letter was a central issue.

• Mr. Kauffman testified that the second set of six bullet points was “advisory only” and intended to provide guidance.

• However, this section contained two of the three official reasons for denial (roof tiles and architectural elements) and included the statement that the addition “will be limited to a single story,” which Mr. Kauffman later admitted under questioning was not a firm requirement.

• The ALJ noted this created significant confusion: “At the hearing, Mr. Kauffman testified that the second set of bullets was advisory only, which was not clear to Mr. Archer until the hearing.”

5.2 Irrelevant Considerations by the Committee

Evidence from a previous hearing revealed that the AC’s decision-making process was influenced by factors outside the scope of architectural review.

• A prior ALJ decision found that during the April 10, 2020 conference call, “at least two members expressed their concerns with how Petitioner was planning to use the new addition. Specifically, the members were concerned Petitioner was going to accumulate more ‘junk’.”

• In the current hearing, Mr. Archer played an audio recording where a prior judge asked Mr. Kauffman, “Is there anything in the architectural guidelines that says how a structure is going to be used should affect whether or not it’s approved?”

5.3 The “Collaborative Process” Breakdown

Mr. Kauffman repeatedly testified that the approval process is intended to be collaborative, yet acknowledged that no discussions occurred after the April 2020 denial. The Association’s stance was that Mr. Archer failed to engage, while Mr. Archer felt he was facing a “moving target.” The ALJ highlighted the lack of clarity from the Association, which hindered any potential collaboration. The judge expressed surprise at the need to clarify that the existing house must be considered in the review:

“I don’t see how you could possibly make a decision without taking the house into consideration. And I apologize… that just strikes me as so self-evident that… I’m surprised we we’ve had to have it out.” – ALJ Thomas Shedden

6. Final Adjudication and Outcome

In his March 30, 2022 decision, ALJ Thomas Shedden ruled definitively in favor of the Petitioner, Marc Archer.

6.1 Conclusions of Law

The decision found that Mr. Archer had met his burden of proof to show the Association unreasonably withheld approval. The ALJ systematically dismantled each of the Association’s reasons for denial:

1. Harmony: “There was no substantial evidence adduced showing that Mr. Archer’s proposed addition will dominate or sharply contrast with the community.” The judge noted that other houses have more than one roofline, making the proposed addition consistent with the neighborhood.

2. Painted Roof Tiles: “The preponderance of the evidence shows that the Association acted outside its scope of authority because the ARs do not include a prohibition on painting tiles.”

3. Architectural Expression: “Mr. Archer provided credible evidence showing that the proposed addition will provide architectural expression as required by AR section 4.2.”

6.2 Final Order

Based on these conclusions, the Judge issued a two-part order:

1. IT IS ORDERED that Marc Archer is the prevailing party in this matter and that the Association should approve his preliminary design;

2. IT IS FURTHER ORDERED that the Association must pay to Mr. Archer Petitioner his filing fee of $500.00 within thirty days of this Order.

The Association’s subsequent withdrawal of its rehearing request finalized this decision.