The Administrative Law Judge denied the HOA's petition, finding the HOA failed to meet its burden of proving a violation. The homeowner justifiably relied on the ARC's approval, which was granted rapidly and without clarification requests, despite the lack of detail on the wall height, effectively granting an exception to the Guidelines.
Why this result: The HOA (Petitioner) failed to prove the violation by a preponderance of the evidence, primarily because the Architectural Review Committee (ARC) approved the plans after multiple rounds of review, and the homeowner relied on that approval. The delay in the stop construction notice was also deemed unreasonable.
Key Issues & Findings
Construction of unapproved structures/patio walls in excess of permitted height
Petitioner (HOA) alleged Respondent (homeowner) violated community documents by constructing walls around a courtyard in excess of the 42-inch height limit set by the Guidelines Section 2.24, and without sufficient prior approval (CC&R Section 5.22). The constructed wall was approximately 8 feet high.
Orders: Petitioner’s petition in this matter is denied. Respondent shall not reimburse Petitioner’s filing fee.
Arroyo Mountain Estate HOA vs. Goebel: A Dispute Over Architectural Approval
Executive Summary
This document provides a comprehensive overview of the dispute between the Arroyo Mountain Estate Homeowners Association (HOA) and homeowners Rick and Elizabeth Goebel, culminating in an administrative law hearing on August 28, 2024. The central conflict revolves around the construction of a courtyard wall at the Goebels’ property, which the HOA alleged was unapproved and in violation of community guidelines.
The Goebels maintained that they followed all required procedures, submitting multiple revised applications at the HOA’s request, and ultimately received explicit, unconditional approval from the Architectural Review Committee (ARC) before commencing work. They argued that they built a “courtyard wall” in conformance with section 2.9 of the guidelines, which does not specify a height limit, and not a “pony wall,” which is restricted to 42 inches under section 2.24.
The HOA contended that the Goebels’ application was misleading due to a lack of critical details, specifically the wall’s 8-foot 8-inch height and a three-foot overhead hood. Key members of the ARC testified they understood the application to be for landscaping only and would have denied it had the full scope been clear. The HOA argued the constructed wall violates the spirit and letter of the guidelines intended to maintain community aesthetic uniformity.
The case concluded with a definitive ruling by an Administrative Law Judge on September 11, 2024. The judge denied the HOA’s petition, finding that they had not met their burden of proof. The decision highlighted that the Goebels had followed the prescribed process, justifiably relied on the ARC’s formal approval, and that the HOA’s month-long delay in issuing a stop-construction notice was unreasonable. The ruling deemed the ARC’s approval “tantamount to an exception to the Guidelines.”
The Core Dispute: The Courtyard Wall
The conflict centers on improvements made at the Goebels’ property, located at 5408 North Prescott Court (incorrectly listed multiple times in HOA documents as 5408 North Carson Court). The primary structure in question is a wall enclosing a front courtyard area, which the Goebels’ plans identified as a “courtyard wall.”
Alleged Violations by the HOA
The HOA’s petition alleged that the Goebels were in violation of two primary governing documents:
1. CC&Rs Article V, Section 5.22: This section requires homeowners to receive ARC approval before beginning any construction that alters the exterior appearance of a property, demanding that requests “Specify in detail the nature and extent of construction.”
2. Architectural and Landscape Design Guidelines, Section 2.24: This section governs “Pony Walls and Courtyards,” stating that pony walls constructed in a front yard to form a courtyard “should be no higher than 42 inches.”
The HOA argued that the wall built by the Goebels, which reaches a height of approximately 8 feet 8 inches, is functionally a pony wall and therefore violates the 42-inch height restriction.
The Homeowner’s (Goebel) Position and Timeline
The Goebels’ defense was anchored in their assertion of procedural compliance, reliance on a formal approval, and a belief that they were being unfairly targeted.
Application and Approval Process
The timeline of the application process was a key element of the Goebels’ case:
Dec 30, 2022
Initial consolidated application for all improvements submitted via email.
Jan 3, 2023
Initial application denied with the instruction to “please resubmit separate applications for the different projects.”
Jan 3, 2023
Revised, separate applications submitted to the community manager, Katie Sand.
Jan 3, 2023
Additional comments received from Katie Sand requesting further changes.
Jan 3, 2023
Final revised applications submitted at 4:14 p.m. and notice of acceptance received at 4:26 p.m.
Jan 5, 2023
The ARC formally approved the applications, within 48 hours of submission, without requesting additional information.
Argument of Good Faith and Procedural Adherence
Mr. Goebel argued that he diligently followed the HOA’s process and could not have done more to ensure compliance.
“I follow the requirement of the architectural community prepared the application submitted the application via the appropriate application approval process and received approval. It’s unclear what I’m being violated for. It is unclear as to how I violated any part of the approval or constructed improvements not identified on the plan.” – Rick Goebel
He emphasized that the ARC, under its own guidelines, had the power to request more information if the application was deemed incomplete but chose not to, instead granting full approval. Elizabeth Goebel further stated, “they approved the application and we move forward with our approval… We still got the approval. We moved forward in good faith and constructed what we had done.”
Construction Timeline and HOA Response
• March 21, 2023: Engineering drawings submitted to Maricopa County.
• March 24, 2023: Technical approvals and permits issued by the county.
• April 7, 2023: Construction commenced.
• April 19, 2023: The wall reached its full height.
• May 12, 2023: Nearly one month after the wall was completed, the Goebels received a stop-construction notice from the HOA.
Claims of Targeted Harassment
Mr. Goebel testified that he felt his family and home were being targeted by board members, leading to significant distress and financial cost.
“Over the past 12 months, I’ve had to deal with continued harassment from our board… People drive past my home, take pictures of my home. John Conalo has driven past my home multiple times taking pictures of my home… I have people to drive by my home, take photos and post these photos online and generally disrupt the reasonable enjoyment of my property. I am of the opinion that me and my home are being targeted for these improvements by members of the board who are utilizing funds to support the basic attack.” – Rick Goebel
The Homeowners Association’s (HOA) Position
The HOA’s case, presented by attorney Daniel Francom, focused on the argument that the Goebels’ application was deficient and that any approval granted was therefore invalid for the wall as constructed.
Insufficient Detail and Misleading Application
The HOA argued the Goebels “failed to provide sufficient details” in their application.
• Wall Height: The plans did not specify the wall would be 8 feet 8 inches high.
• Overhead Hood: The plans did not clearly indicate a three-foot deep overhead structure above the gate.
• County Plans: The detailed plans submitted to Maricopa County, which included engineering reports and the exact wall height, were never provided to the HOA.
Board President John Consalvo testified that the application “showed nothing about a construction wall showing landscape application turned in.”
Architectural Committee’s Interpretation
ARC member Judy Oliver provided crucial testimony for the HOA, stating that the committee was misled by the application’s presentation.
• She testified that since the application was titled “revamping of landscaping,” she and other members “assumed that this was regarding landscaping only.”
• Regarding the wall itself, she stated, “I felt that that wall wasn’t even up for discussion at the time.”
• Crucially, she asserted that had the Goebels provided specifics for an 8-foot wall, the committee would have denied the project as it “counters the architectural guidelines.”
Violation of Guideline 2.24 (“Pony Walls”)
The HOA’s legal argument rested on classifying the Goebels’ structure under section 2.24. They argued that because the wall creates a courtyard, it should be considered a “pony wall” and is therefore subject to the 42-inch height limit, regardless of what the Goebels labeled it in their plans. They argued the wall “sticks out like a sore thumb” and that there are no other similar walls in the community.
Key Witness Testimony
Ms. Rozzo’s testimony significantly undermined the HOA’s position.
• Admission of Error: When asked if she noted the courtyard wall, she stated, “No, I absolutely missed it. I am completely honest about that. I have missed it just like we’ve missed other ones and nothing’s done about it.”
• Precedent of Inaction: She testified that the ARC had mistakenly approved “at least 15 to 20 homes” with non-compliant improvements and that “the HOA has never pursued them.” She cited unapproved walls, pavers, and concrete pads at other properties.
• Challenge to HOA’s Pursuit: She expressed surprise that the HOA was pursuing this case, stating that when she told John Consalvo that pursuing the Goebels meant they should pursue all other erroneous approvals, he “chuckled and said, ‘Mike, my neighbor,'” implying a neighbor of the board president also had unapproved improvements.
• Board Vote: Ms. Rozzo, who was also a board member for a short time, revealed that the decision to take action against the Goebels was not unanimous, with two of the five board members voting “no.”
Mr. Consalvo testified that the board’s function is to maintain the community and enforce HOA rules. He stated that the Goebels’ application did not provide the required detail for the courtyard wall, its height, or the overhead gate structure. He confirmed he took photos of the property and that, in his view, the wall as built did not conform to any approved application and should have been limited to 42 inches.
Ms. Oliver testified she had been on the ARC since 2017. She stated that the application was understood to be for landscaping and that the wall was not considered for approval due to the lack of detail. She testified that had the 8-foot height been specified, the application would have been denied.
The Final Decision: Administrative Law Judge Ruling
On September 11, 2024, Administrative Law Judge Adam D. Stone issued a final, binding decision in the case (No. 24F-H050-REL).
Ruling
The Petitioner’s (HOA’s) petition was denied. The judge found that the HOA failed to prove its case by a preponderance of the evidence.
Reasoning for the Decision
The judge provided a clear, multi-point rationale for siding with the Goebels:
1. Procedural Compliance: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC.”
2. Justifiable Reliance on Approval: The ARC had multiple opportunities to question the plans and did so on other matters. The judge concluded that Ms. Rozzo’s approval, even if she “missed it,” was a formal action on which the “Respondent justifiably relied… and moved ahead with construction.”
3. Approval as an Exception: The judge stated the formal approval “was tantamount to an exception to the Guidelines as the project was approved.”
4. Unreasonable Delay by HOA: The judge found that for the HOA “to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”
5. Inconsistent Enforcement: The judge noted that “this was not the first time the ARC had approved projects that were not within the Guidelines,” referencing the testimony about other unpursued violations in the community.
Final Order
• The HOA’s petition was formally denied.
• The Respondent (Goebels) was not required to reimburse the HOA’s $500 filing fee.
Study Guide – 24F-H050-REL
{
“case”: {
“docket_no”: “24F-H050-REL”,
“case_title”: “Arroyo Mountain Estate Homeowners Association v. Goebel”,
“decision_date”: “2024-09-11”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “If the HOA approves my architectural application, can they later claim a violation because they ‘missed’ details in the plan?”,
“short_answer”: “No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.”,
“detailed_answer”: “The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they ‘missed’ a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee’s oversight after approval has been granted.”,
“alj_quote”: “Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.”,
“legal_basis”: “Justifiable Reliance”,
“topic_tags”: [
“architectural approval”,
“committee oversight”,
“homeowner reliance”
]
},
{
“question”: “Can an approved application serve as a valid exception to written architectural guidelines?”,
“short_answer”: “Yes. An approved application can be considered tantamount to an exception to the community’s design guidelines.”,
“detailed_answer”: “In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.”,
“alj_quote”: “This was tantamount to an exception to the Guidelines as the project was approved.”,
“legal_basis”: “Exception to Guidelines”,
“topic_tags”: [
“guidelines”,
“exceptions”,
“compliance”
]
},
{
“question”: “Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?”,
“short_answer”: “No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.”,
“detailed_answer”: “The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.”,
“alj_quote”: “Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”,
“legal_basis”: “Reasonableness / Laches”,
“topic_tags”: [
“enforcement timing”,
“stop work order”,
“construction”
]
},
{
“question”: “Who has to prove that a violation occurred during an HOA hearing?”,
“short_answer”: “The HOA (the Petitioner) bears the burden of proof.”,
“detailed_answer”: “When an HOA petitions for a hearing regarding a violation, they must prove their case by a ‘preponderance of the evidence.’ This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.”,
“alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.”,
“legal_basis”: “Burden of Proof”,
“topic_tags”: [
“legal procedure”,
“evidence”,
“burden of proof”
]
},
{
“question”: “Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?”,
“short_answer”: “Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner’s defense.”,
“detailed_answer”: “The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA’s position in enforcing the rule against the current homeowner.”,
“alj_quote”: “Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.”,
“legal_basis”: “Arbitrary Enforcement / Precedent”,
“topic_tags”: [
“selective enforcement”,
“consistency”,
“precedent”
]
},
{
“question”: “If I submit an application and answer the committee’s questions, do I have to ensure they asked about every single detail?”,
“short_answer”: “No. If you follow the submission process and the committee has the opportunity to ask questions but doesn’t, the responsibility lies with them.”,
“detailed_answer”: “The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.”,
“alj_quote”: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project”,
“legal_basis”: “Due Process / Procedural Compliance”,
“topic_tags”: [
“application process”,
“due diligence”,
“homeowner obligations”
]
},
{
“question”: “Do I have to pay the HOA’s filing fees if they sue me and lose?”,
“short_answer”: “No. If the HOA’s petition is denied, the homeowner is not required to reimburse the filing fee.”,
“detailed_answer”: “The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.”,
“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”: “ARIZ. REV. STAT. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“penalties”,
“costs”
]
}
]
}
Blog Post – 24F-H050-REL
{
“case”: {
“docket_no”: “24F-H050-REL”,
“case_title”: “Arroyo Mountain Estate Homeowners Association v. Goebel”,
“decision_date”: “2024-09-11”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “If the HOA approves my architectural application, can they later claim a violation because they ‘missed’ details in the plan?”,
“short_answer”: “No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.”,
“detailed_answer”: “The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they ‘missed’ a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee’s oversight after approval has been granted.”,
“alj_quote”: “Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.”,
“legal_basis”: “Justifiable Reliance”,
“topic_tags”: [
“architectural approval”,
“committee oversight”,
“homeowner reliance”
]
},
{
“question”: “Can an approved application serve as a valid exception to written architectural guidelines?”,
“short_answer”: “Yes. An approved application can be considered tantamount to an exception to the community’s design guidelines.”,
“detailed_answer”: “In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.”,
“alj_quote”: “This was tantamount to an exception to the Guidelines as the project was approved.”,
“legal_basis”: “Exception to Guidelines”,
“topic_tags”: [
“guidelines”,
“exceptions”,
“compliance”
]
},
{
“question”: “Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?”,
“short_answer”: “No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.”,
“detailed_answer”: “The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.”,
“alj_quote”: “Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”,
“legal_basis”: “Reasonableness / Laches”,
“topic_tags”: [
“enforcement timing”,
“stop work order”,
“construction”
]
},
{
“question”: “Who has to prove that a violation occurred during an HOA hearing?”,
“short_answer”: “The HOA (the Petitioner) bears the burden of proof.”,
“detailed_answer”: “When an HOA petitions for a hearing regarding a violation, they must prove their case by a ‘preponderance of the evidence.’ This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.”,
“alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.”,
“legal_basis”: “Burden of Proof”,
“topic_tags”: [
“legal procedure”,
“evidence”,
“burden of proof”
]
},
{
“question”: “Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?”,
“short_answer”: “Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner’s defense.”,
“detailed_answer”: “The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA’s position in enforcing the rule against the current homeowner.”,
“alj_quote”: “Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.”,
“legal_basis”: “Arbitrary Enforcement / Precedent”,
“topic_tags”: [
“selective enforcement”,
“consistency”,
“precedent”
]
},
{
“question”: “If I submit an application and answer the committee’s questions, do I have to ensure they asked about every single detail?”,
“short_answer”: “No. If you follow the submission process and the committee has the opportunity to ask questions but doesn’t, the responsibility lies with them.”,
“detailed_answer”: “The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.”,
“alj_quote”: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project”,
“legal_basis”: “Due Process / Procedural Compliance”,
“topic_tags”: [
“application process”,
“due diligence”,
“homeowner obligations”
]
},
{
“question”: “Do I have to pay the HOA’s filing fees if they sue me and lose?”,
“short_answer”: “No. If the HOA’s petition is denied, the homeowner is not required to reimburse the filing fee.”,
“detailed_answer”: “The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.”,
“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”: “ARIZ. REV. STAT. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“penalties”,
“costs”
]
}
]
}
Case Participants
Petitioner Side
Daniel S. Francom(HOA attorney) Goodman Law Represented Arroyo Mountain Estate Homeowners Association.
John Consalvo(board president, witness) Arroyo Mountain Estate Homeowners Association Board President of the Association's Board; testified for Petitioner.
Judy Oliver(architectural committee member, witness) Arroyo Mountain Estate Homeowners Association Architectural Committee Testified for Petitioner; member of the ARC.
Respondent Side
Rick Goebel Jr.(respondent, homeowner) Testified on his own behalf; also referred to as Mr. Gobel/Goebel.
Elizabeth Goebel(respondent, homeowner) Testified on her own behalf; also referred to as Ms. Goebel.
Nancy Rozzo(architectural committee member, witness, former board member) Arroyo Mountain Estate Homeowners Association Architectural Committee Approved Respondent's plans; testified for Respondent. Referred to as Ms. Brazo/Rozo.
Neutral Parties
Adam D. Stone(ALJ) OAH Administrative Law Judge assigned to the hearing.
Susan Nicolson(Commissioner) ADRE Commissioner of the Arizona Department of Real Estate.
V. Nunez(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
D. Jones(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
L. Abril(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
M. Neat(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
L. Recchia(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
G. Osborn(ADRE staff) ADRE Recipient of the decision for transmission (derived from email [email protected]).
Other Participants
Katie Sand(property manager) Vision Community Management Former employee/property manager involved in initial communications; also referred to as Katie Tam and Katie Pan.
Bylaws Article II, Section 8, as amended October 18, 2000
Outcome Summary
The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.
Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.
Key Issues & Findings
Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.
Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.
Orders: Petitioner's petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 33-1802(1)
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.
ARIZ. REV. STAT. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Analytics Highlights
Topics: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
Additional Citations:
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. § 33-1802(1)
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H035-REL Decision – 1163387.pdf
Uploaded 2026-01-23T18:06:04 (48.4 KB)
24F-H035-REL Decision – 1163395.pdf
Uploaded 2026-01-23T18:06:08 (7.2 KB)
24F-H035-REL Decision – 1165696.pdf
Uploaded 2026-01-23T18:06:11 (49.1 KB)
24F-H035-REL Decision – 1165699.pdf
Uploaded 2026-01-23T18:06:13 (7.3 KB)
24F-H035-REL Decision – 1179128.pdf
Uploaded 2026-01-23T18:06:15 (53.7 KB)
24F-H035-REL Decision – 1179136.pdf
Uploaded 2026-01-23T18:06:19 (7.6 KB)
24F-H035-REL Decision – 1209016.pdf
Uploaded 2026-01-23T18:06:23 (146.3 KB)
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jesse Freeman(petitioner) Millett Ranch Homeowners’ Association Member Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
Nicholas Belisi(witness) Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines, LLC Counsel for Respondent Millett Ranch Homeowners’ Association.
Brandon David Moore(senior community manager/witness) Brown Property Management Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
Christopher Redden(Board President/witness) Millett Ranch Homeowners’ Association Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
Mark Saul(HOA attorney) Millett Ranch Homeowners’ Association Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
vnunez(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
djones(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
labril(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
mneat(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
akowaleski(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
gosborn(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
The Administrative Law Judge denied the Petitioners' petition, concluding they failed to meet their burden of proving a violation of ARIZ. REV. STAT. § 33-1248 regarding the May 19, 2023, Executive Board Meeting.
Why this result: Petitioners failed to prove the statutory violation by a preponderance of the evidence, as the Executive Session was deemed appropriate for receiving legal advice or conducting discussion related thereto, which falls under ARIZ. REV. STAT. § 33-1248(A)(1).
Key Issues & Findings
Alleged violation of open meeting law concerning Executive Board Meeting on May 19, 2023
Petitioners alleged the Association violated ARS § 33-1248 by improperly conducting business (Code of Conduct review and vote on minutes) in a closed Executive Session on May 19, 2023, and by failing to provide 48-hour notice.
Orders: Petitioners' petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1248
ARIZ. REV. STAT. § 33-1248(A)(1)
Analytics Highlights
Topics: HOA Open Meeting Law, Executive Session, Legal Advice Exception, Code of Conduct, Burden of Proof, Condominium Association Statute, Filing Fee
Additional Citations:
ARIZ. REV. STAT. § 33-1248
ARIZ. REV. STAT. § 33-1248(A)(1)
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
24F-H024-REL Decision – 1138580.pdf
Uploaded 2026-01-23T18:03:38 (54.3 KB)
24F-H024-REL Decision – 1144884.pdf
Uploaded 2026-01-23T18:03:41 (50.1 KB)
24F-H024-REL Decision – 1146526.pdf
Uploaded 2026-01-23T18:03:44 (61.9 KB)
24F-H024-REL Decision – 1161533.pdf
Uploaded 2026-01-23T18:03:47 (48.9 KB)
24F-H024-REL Decision – 1179547.pdf
Uploaded 2026-01-23T18:03:52 (132.9 KB)
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
burden of proof
legal standards
procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
executive session
legal advice
open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
hearing procedure
filing fees
scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
evidence
board documents
voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
executive session
public records
violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Standard of Proof
Topic Tags
legal standards
evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
code of conduct
executive session
board meetings
Case
Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
burden of proof
legal standards
procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
executive session
legal advice
open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
hearing procedure
filing fees
scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
evidence
board documents
voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
executive session
public records
violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Standard of Proof
Topic Tags
legal standards
evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
code of conduct
executive session
board meetings
Case
Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jeffrey Connell(petitioner) Casa Del Monte, Inc. HOA Also served as a board member.
Corey Cox(petitioner) Casa Del Monte, Inc. HOA Also served as a board member.
Ross Meyer(attorney) Meyer & Partners, PLLC; Enara Law PLLC Counsel for Petitioners.
Jonathan Dessaules(witness) The Sol Law Group Testified as a subject matter expert/HOA attorney.
Matthew Elias(attorney) Enara Law PLLC Counsel for Petitioners; listed in final decision transmittal.
Respondent Side
Lori N. Brown(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent.
Benjamin Bednarek(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent.
Curtis Ekmark(HOA attorney) Casa Del Monte, Inc. HOA Association Corporate Counsel/General Counsel.
Solomon Krotzer(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent; appeared at hearing (referred to as 'Paulo' once).
Mary Lou Ehmann(property manager) Pride Management Former Community Manager for Casa Del Monte; provided testimony.
Jonathan Ryder(board president) Casa Del Monte, Inc. HOA Also referred to as John Ryder.
Jean Yen(board member) Casa Del Monte, Inc. HOA Also referred to as Jeannie Yen; Treasurer.
Bill McMichael(board member) Casa Del Monte, Inc. HOA Vice President.
Jim Burton(board member) Casa Del Monte, Inc. HOA Secretary.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
AHansen(ADRE staff) ADRE Recipient of official case transmission.
vnunez(ADRE staff) ADRE Recipient of official case transmission.
djones(ADRE staff) ADRE Recipient of official case transmission.
labril(ADRE staff) ADRE Recipient of official case transmission.
kvanfredenberg(ADRE staff) ADRE Recipient of official case transmission.
Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
Select all sources
1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
No emoji found
Loading
24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H003-REL
Select all sources
1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
No emoji found
Loading
24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(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
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.
Key Issues & Findings
Failure to provide documents
Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.
Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “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”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the 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 the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Blog Post – 24F-H015-REL
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “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”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the 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 the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Case Participants
Petitioner Side
Teri S. Morcomb(petitioner) Lot 8 owner, testified
J. Ted Morcomb(petitioner) Lot 8 owner
Jeffrey T. Brei(petitioner attorney)
Tracy Allen Bogardis(witness) Civil Engineer Testified regarding drainage/hydrology
Respondent Side
Phillip Brown(HOA attorney)
Kelly Oetinger(HOA attorney)
Robert Leuen(board president) Sierra Tortuga HOA Testified
Marcella Bernadette Aguilar(witness) Sierra Tortuga HOA Lot 9 owner, testified
Abel Sodto(lot owner) Sierra Tortuga HOA Lot 9 owner, former Board/ARC member, subject of violation
Clint Stoddard(board member) Sierra Tortuga HOA Investigator
Benny Medina(board member) Sierra Tortuga HOA Investigator, former president
Joseph D. Martino(ARC member) Sierra Tortuga HOA Former Architectural Committee Head
Chris Stler(board member) Sierra Tortuga HOA Vice President of HOA
Yvon Posche(board member) Sierra Tortuga HOA Secretary of HOA
Steve Brockam(board member) Sierra Tortuga HOA Board Director
Perry Terren(ARC chair) Sierra Tortuga HOA ARC Chairman and Board Director
Jeremy Thompson(law clerk) HOA Attorney's office
Mike Shupe(former HOA attorney)
Neutral Parties
Adam D. Stone(ALJ) OAH
Tim Ross(board member) Sierra Tortuga HOA Former board/investigator, criticized current board actions
The ALJ denied the petition, concluding that the Association's voting system constituted permissible delegate voting, which is not prohibited by the Planned Community Act. The prohibition in ARS § 33-1812 against proxy voting applies only when votes are “allocated to a unit,” which is not the case for Director elections where votes are allocated to the Neighborhood Voting Members as delegates.
Why this result: Petitioner did not sustain the burden of proving a violation of ARIZ. REV. STAT. § 33-1812.
Key Issues & Findings
Whether Respondent is in violation of ARIZ. REV. STAT. § 33-1812
Petitioner alleged that the Association's use of a voting delegate system, where Voting Members cast votes for unit owners who did not respond to neighborhood polls, constitutes proxy voting prohibited under ARS § 33-1812.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 10-3708
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Analytics Highlights
Topics: HOA, Planned Community Act, Delegate Voting, Proxy Voting, Board Election, ARS 33-1812, Nonprofit Corporation Act
Additional Citations:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 10-3708
ARIZ. REV. STAT. § 1-211(B)
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Video Overview
Audio Overview
Decision Documents
24F-H012-REL Decision – 1115010.pdf
Uploaded 2026-01-23T18:01:58 (162.7 KB)
Study Guide – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely 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. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Blog Post – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely 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. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Case Participants
Petitioner Side
Robert J. Garing(petitioner) Prescott Lakes Community Association, Inc. member Also served as alternate Voting Member for 2 years
James Thomas Joan(witness) Also listed as Jimmy Yiannis
Respondent Side
Adrianne A. Speas(HOA attorney) Krupnik & Speas, LLC Appeared as counsel for Respondent
Robert Sisley(board president; witness) Prescott Lakes Community Association, Inc. Also Alternate Voting Member for Parkside; served as the association representative
Catherine Black(assistant community manager; witness) Homeco Homeco is the HOA management company for Respondent
Lynn M. Krupnik(HOA attorney) Krupnik & Speas, LLC Counsel listed for Respondent in distribution
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate Final decision authority/recipient of ALJ Decision
The Administrative Law Judge denied the petition, concluding that the homeowner failed to meet the burden of proof to show the HOA violated its documents. The Declaration and Rules unambiguously prohibited hard floor coverings (including vinyl) in the Petitioner's third-floor unit, and the Petitioner admitted installing the flooring without seeking approval.
Why this result: Petitioner failed to meet the burden of proof. Petitioner received the governing documents prior to closing, failed to fully read them, and failed to seek permission from the Association prior to installing the prohibited Luxury Vinyl Plank flooring.
Key Issues & Findings
Flooring Restriction for New Units
Petitioner challenged the Association's enforcement of a declaration rule prohibiting hard floor coverings (like LVP) in his third-floor unit, arguing his chosen flooring had sufficient soundproofing. The Association argued the rule was clear, unambiguous, and mandatory for enforcement.
Orders: Petitioner's petition is denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: Flooring Restriction, Luxury Vinyl Plank (LVP), CCNR Enforcement, Third Floor Unit, Prior Approval
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
Video Overview
Audio Overview
Decision Documents
23F-H066-REL Decision – 1085177.pdf
Uploaded 2026-01-23T18:00:06 (48.3 KB)
23F-H066-REL Decision – 1112087.pdf
Uploaded 2026-01-23T18:00:14 (110.4 KB)
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the 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
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the 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
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Sebastien Verstraet(petitioner) Appeared on his own behalf
Ron Riecks(witness) Flooring installer for Petitioner; also referred to as Ron Reichkes
Respondent Side
Joshua M. Bolen(attorney) Carpenter Hazlewood
Marcus R. Martinez(attorney) Carpenter Hazlewood
Robert Stein(property manager) City Property Management Testified as a witness for Respondent
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned 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 as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned 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 as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
The Villages at Rancho El Dorado Homeowners Association
Counsel
Lydia Linsmeier
Alleged Violations
CC&Rs Article 4.4
Outcome Summary
The Administrative Law Judge concluded that Petitioner failed to establish a violation of Article 4.4 of the CC&Rs, finding that the Association's regulation of the lap pool temperature was authorized and reasonable, and dismissed the petition.
Why this result: Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated CC&Rs Article 4.4. Petitioner's preference for warmer water did not establish discrimination or a rule violation.
Key Issues & Findings
Whether The Villages at Rancho El Dorado Homeowners Association (Respondent) is in violation of CC&Rs Article 4.4 for “turning off the lap pool heater … [f]or approximately one month” which Petitioner further alleges constitutes discrimination against senior residents.
Petitioner alleged the HOA violated CC&Rs Article 4.4 by turning off the lap pool heater around mid-April 2023, making the temperature too cold for her use and constituting discrimination against senior residents who rely on the pool for exercise. The ALJ found Petitioner failed to prove a violation of CC&Rs Article 4.4 or age-based discrimination.
Orders: Petitioner's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Article 4.4
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7(e)
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Pool Heating, Discrimination Claim, Common Area Use, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-106
ARIZ. ADMIN. CODE R2-19-119
CC&Rs Article 4.4
CC&Rs 8.2(c)(12)
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H001-REL Decision – 1089588.pdf
Uploaded 2026-01-23T18:00:27 (52.0 KB)
24F-H001-REL Decision – 1102316.pdf
Uploaded 2026-01-23T18:00:31 (136.7 KB)
Study Guide – 24F-H001-REL
{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }
Blog Post – 24F-H001-REL
{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }
Case Participants
Petitioner Side
Kristeen L. Herron(petitioner) The Villages at Rancho El Dorado Homeowners Association Property owner and member of the Association
Karen Ellis(witness) The Villages at Rancho El Dorado Homeowners Association Witness for Petitioner; property owner/member
LouAnne Schmidt(observer) Potential witness for Petitioner, not permitted to testify
Article III Section 3 of the Bylaws of Hilton Casitas Council of Co-owners ARIZ. REV. STAT. § 33-1250(C)
Outcome Summary
The Administrative Law Judge affirmed the petition regarding the Bylaws violation (annual meeting held 27 days late, 23F-H052-REL) but denied the request for civil penalties. The ALJ dismissed the petition regarding the alleged statutory violation of in-person voting requirements (23F-H064-REL), finding Petitioner did not meet his burden of proof. Petitioner was reimbursed the $500 filing fee for the prevailing issue.
Why this result: Petitioner lost the statutory claim (23F-H064-REL) due to failure to provide sufficient evidence for a narrow interpretation of 'in person' voting. Petitioner failed to prove that civil penalties were warranted for the Bylaws violation (23F-H052-REL).
Key Issues & Findings
Failure to hold the annual meeting prior to March 31, 2023 (23F-H052-REL)
Petitioner alleged Respondent failed to hold the annual meeting by the Bylaws' deadline of March 31, 2023. Respondent stipulated that the meeting, held on April 27, 2023, was late, constituting a violation.
Orders: Respondent violated Article III Section 3 of the Bylaws; Petition affirmed. Petitioner was denied civil penalties but was reimbursed the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2199.02
Alleged violation for failing to allow in-person voting (23F-H064-REL)
Petitioner alleged Respondent violated the statute by allowing voting only through video conferencing and failing to provide an opportunity for in-person voting. The ALJ found Petitioner failed to provide sufficient evidence to support a narrow interpretation of 'in person' that excludes remote video attendance.
Orders: Respondent did not violate ARIZ. REV. STAT. § 33-1250(C). Petition dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1250(C)
Analytics Highlights
Topics: HOA Annual Meeting Deadline, Bylaws Violation, HOA Voting Procedure, In-Person Voting, Video Conferencing Voting, Civil Penalties, Mootness Defense, Waiver Defense
