Tag Archives: ARIZ. REV. STAT. § 32-2199 et seq.

Brenda Norman v. Rancho Del Lago Community Association

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Case Summary

Case ID 23F-H046-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-11
Administrative Law Judge Jenna Clark
Outcome The petition was dismissed with prejudice because Petitioner failed to meet her burden of proof that the HOA violated the community documents. The ALJ found that forcing enforcement of a discretionary restriction after decades of inaction would be unreasonable and that the matter was essentially a neighbor-to-neighbor dispute.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Michael S. McLeran, Esq.

Alleged Violations

Appendix B, Section 5

Outcome Summary

The petition was dismissed with prejudice because Petitioner failed to meet her burden of proof that the HOA violated the community documents. The ALJ found that forcing enforcement of a discretionary restriction after decades of inaction would be unreasonable and that the matter was essentially a neighbor-to-neighbor dispute.

Why this result: Petitioner failed to establish a community document violation by a preponderance of the evidence; enforcement would be an unreasonable exercise of discretion due to long-standing inaction; and there was no legal avenue for the HOA to compel removal of the private property (trees).

Key Issues & Findings

Failure to enforce Prohibited Plant List (Oleanders and Palm Trees exceeding 10 feet)

Petitioner alleged the HOA violated Appendix B, Section 5 of the CC&Rs by failing to enforce the Prohibited Plant List and require her rear neighbors to remove oleander and palm trees that exceeded height guidelines and caused nuisance and damage.

Orders: Petitioner’s petition is dismissed with prejudice.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)(1)
  • 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: homeowner dispute, prohibited plants, HOA discretion, failure to enforce, neighbor dispute, CC&Rs, oleander, palm trees
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.01(A)(1)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H046-REL Decision – 1049756.pdf

Uploaded 2026-04-24T12:08:18 (41.2 KB)

23F-H046-REL Decision – 1049882.pdf

Uploaded 2026-04-24T12:08:22 (47.2 KB)

23F-H046-REL Decision – 1055238.pdf

Uploaded 2026-04-24T12:08:26 (50.0 KB)

23F-H046-REL Decision – 1057283.pdf

Uploaded 2026-04-24T12:08:29 (50.3 KB)

23F-H046-REL Decision – 1058121.pdf

Uploaded 2026-04-24T12:08:33 (52.9 KB)

23F-H046-REL Decision – 1059849.pdf

Uploaded 2026-04-24T12:08:38 (52.5 KB)

23F-H046-REL Decision – 1072130.pdf

Uploaded 2026-04-24T12:08:41 (49.8 KB)

23F-H046-REL Decision – 1082955.pdf

Uploaded 2026-04-24T12:08:46 (155.5 KB)

23F-H046-REL Decision – 1049756.pdf

Uploaded 2026-01-23T17:56:49 (41.2 KB)

23F-H046-REL Decision – 1049882.pdf

Uploaded 2026-01-23T17:56:52 (47.2 KB)

23F-H046-REL Decision – 1055238.pdf

Uploaded 2026-01-23T17:56:55 (50.0 KB)

23F-H046-REL Decision – 1057283.pdf

Uploaded 2026-01-23T17:56:58 (50.3 KB)

23F-H046-REL Decision – 1058121.pdf

Uploaded 2026-01-23T17:57:01 (52.9 KB)

23F-H046-REL Decision – 1059849.pdf

Uploaded 2026-01-23T17:57:04 (52.5 KB)

23F-H046-REL Decision – 1072130.pdf

Uploaded 2026-01-23T17:57:08 (49.8 KB)

23F-H046-REL Decision – 1082955.pdf

Uploaded 2026-01-23T17:57:11 (155.5 KB)

This summary outlines the proceedings, arguments, and final decision in the administrative hearing *Brenda Norman vs. Rancho Del Lago Community Association* (No. 23F-H046-REL).

Key Facts and Procedural Background

The Petitioner, Brenda Norman, a member of the Rancho Del Lago Community Association (HOA), filed a petition alleging the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to enforce Appendix B, Section 5 (Prohibited Plant List), against her rear neighbors. The dispute centered on the Neighbors’ oleander and palm trees, which Petitioner claimed caused nuisance—specifically debris clogging her pool equipment and triggering her allergies/asthma.

The initial hearing scheduled for May 9, 2023, was dismissed by default when the Petitioner failed to appear. Upon Petitioner’s subsequent Motion for Reconsideration, which was granted over Respondent's objection, the matter was reset for a rehearing on July 31, 2023. The Administrative Law Judge (ALJ) denied the HOA's subsequent Motion to Dismiss, determining the sole issue for hearing was the alleged CC&R violation and the appropriateness of a civil penalty.

Main Issues and Arguments

The sole issue for the hearing was whether the Rancho Del Lago Community Association violated Appendix B, paragraph 5, of its CC&Rs by failing to enforce the restriction on certain plants whose mature growth height is reasonably expected to exceed ten feet for aesthetic reasons.

  1. Petitioner's Argument: Petitioner argued that the Neighbors’ oleanders and palm trees violated the Prohibited Plant List because of their expected height and the resulting nuisance. She asserted the HOA had a contractual duty to enforce the CC&Rs and should be compelled to require the Neighbors to remove the plants.
  1. Respondent's Argument: The HOA, represented by Counsel Michael McLeran and witness Spencer Broad (Community Manager), argued that the dispute was primarily a non-justiciable neighbor dispute, lacking jurisdiction before the Department. The HOA noted it did not own or maintain the trees, which are on private property. Crucially, the HOA argued that enforcing the height restriction (which had never been enforced since 2009) only against the Neighbors would be an unreasonable and discriminatory exercise of discretionary power. Furthermore, enforcing the restriction against this one member would unjustly impact hundreds of other members with trees over ten feet. The HOA also pointed out that the Neighbors had voluntarily trimmed the plants.

Key Legal Points and Outcome

The ALJ found that Petitioner failed to meet her burden of proving a community document violation by a preponderance of the evidence.

The decision focused on several key legal conclusions:

  • Discretionary Enforcement: The Design Guidelines at issue were determined to be discretionary. The HOA was not required to enforce a height restriction in this instance.
  • Unreasonable Authority/Due Process: Enforcement in the face of "decades of intentional inaction" would constitute an unreasonable exercise of authority and likely result in a deprivation of the Neighbors' due process rights.
  • Jurisdiction and Remedy: The ALJ noted that the Department does not have jurisdiction over disputes solely between owners. Regardless, there was no legal avenue by which the HOA could legally remove private property oleanders and palm trees or compel their removal.
  • Mootness: Petitioner’s acknowledgment that the Neighbors' voluntary trimming had, at least temporarily, alleviated the debris issues rendered the underlying petition moot.

Final Decision

Based on the findings and conclusions, the ALJ issued an Order on August 11, 2023, dismissing Petitioner's petition with prejudice.

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

The ALJ found that there was no legal way for the HOA to remove trees or shrubs from a neighbor's private backyard, nor compel them to be removed, particularly when the HOA does not own or maintain that specific property.

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

If an HOA has ignored a specific restriction (like a height limit on plants) for decades, enforcing it suddenly against a single homeowner can be seen as an unreasonable exercise of authority and a violation of due process.

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Even if a neighbor's landscaping causes inconvenience or subjective hardship to another homeowner, the HOA is not required to enforce discretionary guidelines, especially if they have historically not done so.

Alj Quote

It is clear that plant debris from Neighbors’ backyard is causing Petitioner subjective hardship(s) and inconveniences, which amount to a perceived nuisance… [however] Respondent is not required to enforce a flora/height restriction in this instance.

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

Docket No
23F-H046-REL
Case Title
Brenda Norman vs. Rancho Del Lago Community Association
Decision Date
2023-08-11
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

The ALJ found that there was no legal way for the HOA to remove trees or shrubs from a neighbor's private backyard, nor compel them to be removed, particularly when the HOA does not own or maintain that specific property.

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

If an HOA has ignored a specific restriction (like a height limit on plants) for decades, enforcing it suddenly against a single homeowner can be seen as an unreasonable exercise of authority and a violation of due process.

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Even if a neighbor's landscaping causes inconvenience or subjective hardship to another homeowner, the HOA is not required to enforce discretionary guidelines, especially if they have historically not done so.

Alj Quote

It is clear that plant debris from Neighbors’ backyard is causing Petitioner subjective hardship(s) and inconveniences, which amount to a perceived nuisance… [however] Respondent is not required to enforce a flora/height restriction in this instance.

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

Docket No
23F-H046-REL
Case Title
Brenda Norman vs. Rancho Del Lago Community Association
Decision Date
2023-08-11
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brenda Norman (petitioner)
    Appeared on her own behalf
  • Zvena Norman (potential witness)
    On standby as a potential witness for Petitioner
  • David Norman (associated party)
    Petitioner's husband; co-petitioner in prior litigation referenced during the hearing

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon 7 Hudson, PLC
    Counsel for Rancho Del Lago Community Association
  • Spencer Broad (witness, property manager)
    HA managed solutions
    Community Manager for Rancho Del Lago Community Association; also spelled Brod
  • Phil Brown (HOA attorney)
    Attorney referenced by Petitioner regarding a 2018 letter
  • Eric (compliance manager)
    HOA management solutions
    Compliance Manager since 2009; full last name withheld from the record

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge presiding over the matter
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Judge Mahalski (ALJ (prior case))
    Office of Administrative Hearings
    Administrative Law Judge in 2019 litigation referenced during the hearing

Other Participants

  • Cindy White (neighbor)
    Owner of the plants subject to the dispute
  • Ray White (neighbor)
    Owner of the plants subject to the dispute
  • Nathan Tennyson (former HOA attorney)
    Former in-house counsel referenced by Petitioner

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

Posted on by

Case Summary

Case ID 23F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Brian Del Vecchio
Outcome The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

Section 9.2 of the CC&Rs

Outcome Summary

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

23F-H056-REL Decision – 1073539.pdf

Uploaded 2026-04-24T12:10:08 (51.9 KB)

23F-H056-REL Decision – 1080973.pdf

Uploaded 2026-04-24T12:10:16 (110.3 KB)

23F-H056-REL Decision – 1073539.pdf

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

23F-H056-REL Decision – 1080973.pdf

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

This is a summary of the Administrative Law Judge (ALJ) decision following a contested case hearing regarding a homeowners' association dispute.

Case Summary: Richard K. Morris v. The Townes at Paradise Valley Landings

Key Facts and Background

The Petitioner, Richard K. Morris, is a townhome owner and member of The Townes at Paradise Valley Landings Association (Respondent). The dispute centers on a security light that Petitioner installed on the shed fascia of his property.

  • Prior Approval: On June 25, 2010, Petitioner received Architectural Review Committee (ARC) approval to install the motion-sensing security light on the shed fascia board. This approval was granted without any stated conditions or restrictions. The light remained installed for approximately 12 years.
  • Removal and Violation: In February 2023, the Respondent contracted a roofer to remove and replace fascia and shed roofs, warranting the work for five years. In April 2023, Respondent notified all homeowners to remove items, including security lights, from the fascia. Petitioner complied and removed the light. The Respondent later attempted to fine the Petitioner for the light, although those fines were eventually reversed.
  • Core Legal Provision: The petition alleged a violation of Section 9.2 of the Association’s CC&Rs (covenants, conditions, and restrictions). Section 9.2 states that "No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee".

Main Issues and Arguments

The core legal issue was whether the Association was required to permanently remove the pre-approved security light, violating Section 9.2 of the CC&Rs.

  • Petitioner's Argument (Estoppel/Prior Approval): Petitioner argued the case rested on the principle of estoppel, asserting that the Association granted approval (an exception or easement) that Petitioner relied upon by incurring the expense of installation. Since the 2010 approval was granted without a sunset provision, the Association could not unilaterally renege on it.
  • Respondent's Argument (Fiduciary Duty/Warranty): Respondent argued the Board had a fiduciary duty to all homeowners to maintain common elements and protect their financial investment. Respondent asserted that circumstances had changed since 2010, and installing the light would compromise the overall integrity of the new lumber and, critically, void the 5-year warranty provided by the roofing contractor.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) found that Petitioner met his burden of proving by a preponderance of the evidence that the Respondent violated the CC&Rs.

  • Due Diligence Failure: The ALJ noted that the ARC approval granted Petitioner an exception to the CC&R restriction against alterations of common areas. Crucially, the Respondent admitted that no due diligence was performed regarding the existence of prior ARC approvals which might conflict with the roof work *before* the contract was signed.
  • Fiduciary Duty Limitation: While acknowledging the Respondent's fiduciary duty to protect investments, the ALJ concluded that this duty "does not entitle Respondent to fail to do their due diligence and disavow prior agreements".
  • Final Decision: The ALJ determined that the Respondent's actions constituted a violation of Section 9.2 of the CC&Rs.

Order

The Petitioner’s petition was affirmed.

  1. Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs.
  2. Petitioner’s request to levy a civil penalty was denied.
  3. Respondent shall reimburse Petitioner’s filing fee of $500.00.

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on by

Case Summary

Case ID 23F-H060-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ryan McMahon Counsel —
Respondent Alhambra Terrace Condominium Association Counsel Mike Yohler

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.

Why this result: Petitioner failed to fully satisfy sub-requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter, as the documentation provided (specifically from the plumbing company and designer) lacked the necessary professional weight or specificity required by the Association to address structural and plumbing concerns.

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

Petitioner alleged the Association violated ARS § 33-1221 by denying his request to combine two units and add two bathrooms, claiming the denial was unsupported by facts or governing documents. The ALJ found Petitioner failed to prove the violation.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • 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. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: condominium modification, HOA denial, structural integrity, plumbing concerns, burden of proof, architectural approval
Additional Citations:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • 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. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

Uploaded 2026-01-23T17:59:25 (189.0 KB)

This is a summary of the administrative hearing held on July 19, 2023, regarding Petitioner Ryan McMahon's claim against the Alhamra Terrace Condominium Association (OAD doc number 23 FH060 REL). Administrative Law Judge (ALJ) Jenna Clark presided.

Key Facts

Petitioner Ryan McMahon, who owns Unit B8, and his fiancée, who owns the adjacent Unit B4 below him, sought permission from the Association to combine the two units (B8 and B4) and add two new bathrooms. The Association, governed by its CC&Rs, issued a series of denials based on concerns regarding the structural integrity and the piping system of the condominium.

In June 2022, the Association issued a conditional approval that required Petitioner to provide specific documentation, including an engineer's sign-off on community plumbing concerns, detailing the proper size and condition of the main sewer line, and ensuring the pipes could accommodate up to six bathrooms, four kitchens, and four laundry units. The conditions also required submission of detailed plans for sewer pipe venting and exhaust fans.

Petitioner subsequently submitted documentation, including letters from a licensed structural engineer (Robert A. Young, PE) confirming no structural reason for denial, and correspondence from a plumbing company (Paradise Valley Plumbing Company, Inc.) providing calculations and stating the project would not negatively impact the plumbing or drainage capacity. The City of Scottsdale had reviewed the plans for code conformity but required HOA approval before issuing permits.

The Association, represented by witness Kit Groseth (Board President), denied the request multiple times, asserting the documents submitted were "vague, incomplete, and unreliable". The Association argued that the Petitioner failed to provide information specifically requested by the preliminary approval letter, particularly documentation from a registered plumbing engineer addressing the detailed capacity concerns. The Association admitted it did not hire its own engineer due to the anticipated high cost (estimated $5,000–$10,000).

Main Issues and Legal Points

The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1221 by denying the interior modification request. This statute permits unit owners to make alterations that *do not impair the structural integrity or mechanical systems* of the condominium.

The critical legal point focused on Petitioner's burden of proof. The ALJ was tasked with determining if Petitioner provided a preponderance of the evidence proving the Association acted illegally by denying the request.

The Association argued that while Petitioner provided some engineering support, he did not meet the specific itemized requirements of the conditional approval, particularly regarding specific plumbing engineering reports.

Outcome and Final Decision

The Administrative Law Judge concluded that Petitioner did not sustain his burden of proof.

The ALJ found that Petitioner failed to fully comply with itemized requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter. Specifically, the plumbing company providing calculations was not a licensed structural engineering firm, limiting the weight of its attestation. Furthermore, the structural engineer’s reports (Mr. Young) were not offered for consideration regarding the pipes, fans, and vents, as required by the conditional approval.

Based on these findings, the ALJ issued an ORDER that Petitioner's petition be denied. This decision is binding unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate.

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Ryan McMahon (petitioner)
    Full name: Ryan Christopher McMahon
  • Christina Samaras (witness)
    Petitioner's fiance and observer. Also referred to as Christina Cincer.
  • Robert A. Young (engineer/consultant)
    Structural Engineer (PE) providing documentation for Petitioner
  • Scott Olsson (plumber/consultant)
    Paradise Valley Plumbing Company, Inc.
    Licensed plumber/Qualifying Party providing statements for Petitioner
  • Gary Devol (designer/consultant)
    Designs by Devol LLC
    Designer who created the modification plans

Respondent Side

  • Mike Yohler (attorney)
    Farmers Insurance
    Counsel of record for Respondent
  • Kent William Groseth (board member)
    Alhamra Terrace Condominium Association
    Board President and witness
  • Emma (property manager representative)
    AMCOR Property Professionals, Inc.
    Exchanged correspondence with Petitioner regarding denial
  • Mia (board member)
    Alhamra Terrace Condominium Association
    HOA president at the time of initial request
  • Jim Nelson (board member)
    Alhamra Terrace Condominium Association
    Co-vice president
  • Robin (property manager representative)
    AMCOR Property Professionals, Inc.
    Vice President involved in email correspondence
  • Miss Morgan (attorney)
    Previous counsel replaced by Mike Yohler

Neutral Parties

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

Wanda Swartling v. Val Vista Park Townhome Association of Mesa

Posted on by

Case Summary

Case ID 23F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-01
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wanda Swartling Counsel —
Respondent Val Vista Park Townhome Association of Mesa Counsel Chad Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.

Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.

Key Issues & Findings

Failure to hold open board meeting prior to special assessment meeting

Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-04-24T12:10:30 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

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23F-H057-REL Decision – 1071120.pdf

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23F-H057-REL Decision – 1071121.pdf

Uploaded 2026-04-24T12:10:51 (4055.1 KB)

23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071126.pdf

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23F-H057-REL Decision – 1071127.pdf

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23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

Uploaded 2026-04-24T12:11:28 (114.8 KB)

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-01-23T17:58:11 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

Uploaded 2026-01-23T17:58:14 (7935.6 KB)

23F-H057-REL Decision – 1071120.pdf

Uploaded 2026-01-23T17:58:19 (1989.0 KB)

23F-H057-REL Decision – 1071121.pdf

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23F-H057-REL Decision – 1071122.pdf

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23F-H057-REL Decision – 1071126.pdf

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23F-H057-REL Decision – 1071127.pdf

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23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

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This summary concerns the legal case *Wanda Swartling v. Val Vista Park Townhome Association of Mesa*, Docket No. 23F-H057-REL. The evidentiary hearing took place on July 10, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The Petitioner, Wanda Swartling (a property owner and Association member), filed a single-issue petition on or about April 10, 2023. The core allegation was that the Val Vista Park Townhome Association of Mesa (Respondent) violated ARIZ. REV. STAT. § 33-1804 (the open meeting law for planned communities).

The Petitioner contended that the Board of Directors:

  1. Sent a February 7, 2023, email to homeowners informing them of the intent to hold a special meeting and proposing funding options without first holding an open board meeting.
  2. Held a March 2, 2023, special meeting to vote on a special assessment without having held an open board meeting prior to determining the items to be voted upon.

Petitioner argued that the board unilaterally determined which special assessments would be voted on through "closed door board meetings," thereby denying members the opportunity to be present for the decision-making processes. The March 2, 2023, special assessment vote ultimately failed to pass.

Hearing Proceedings and Key Arguments

Respondent (represented by Chad Gallacher, with community manager Steve Cheff testifying) denied the claims. Respondent argued that the claims were factually incorrect and legally insufficient.

Respondent's Legal Defense:

  • There is no legal requirement in ARS § 33-1804 stipulating that an open board meeting must be held before an email is sent to the community or prior to calling a special meeting of the members.
  • The authority to call a special meeting rests with the Board President, as per the association's bylaws (Section 2.2).
  • The issues had been previously discussed: Evidence submitted included meeting minutes showing discussions of capital projects, including painting, roofs, and special assessments, dating back to an Architectural Committee meeting on August 18, 2022, and a subsequent Board meeting on October 11, 2022.

Petitioner’s Burden and ALJ Rulings:

The ALJ emphasized that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated ARS § 33-1804. The ALJ strictly limited the scope of the hearing to the specific violations alleged in the complaint (the process surrounding the February 7th email and March 2nd meeting). Attempts by the Petitioner to introduce evidence demonstrating a *pattern* of closed meetings or to challenge procedural changes related to a prior annual meeting were repeatedly objected to and sustained as irrelevant or beyond the scope of jurisdiction.

Final Decision and Outcome

The ALJ issued a decision on August 1, 2023. The ALJ concluded that the Petitioner failed to meet her burden of proof.

  • The ALJ found that the special assessment voted on March 2, 2023, resulted from maintenance recommendations developed during the August 18, 2022, architectural committee meeting.
  • Regarding claims of informal discussions or emails constituting a violation, the Petitioner failed to provide sufficient evidence that the number of board members involved constituted a quorum necessary to trigger the notice requirement under ARS § 33-1804.

The ALJ ordered that Petitioner’s petition be dismissed and denied the request to levy a civil penalty against the Respondent.

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their 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 ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable 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 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their 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 ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable 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 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Wanda Swartling (petitioner)
    Val Vista Park Townhome Association
    Homeowner, VVP Unit 82

Respondent Side

  • Chad Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Steve Cheff (property manager / witness)
    Heywood Community Management
    Also community manager
  • Patti Locks (board member)
    Val Vista Park HOA
    Also listed as candidate/incumbent
  • Stephanie Hamrock (board member / witness)
    Val Vista Park HOA
  • Troy Goudeau (board member)
    Val Vista Park HOA
    Elected director
  • Paul Wilcox (board member)
    Val Vista Park HOA
    Elected director
  • Bettie Smiley (board member)
    Val Vista Park HOA
  • Carlee Collins (administrative assistant)
    Heywood Community Management
  • Alli (attorney)
    Maxwell & Morgan, P.C.
    Associate attorney

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Other Participants

  • Shelley Dusek (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Lori Solomon (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Tanya (committee attendee)
    Val Vista Park HOA
    Attended Building Architectural Committee meeting
  • David Clem Sr (homeowner)
    Val Vista Park Townhomes
    Email recipient

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

Posted on by

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

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

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

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Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-04-24T12:09:36 (115.3 KB)

23F-H053-REL Decision – 1072068.pdf

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

This summary addresses the legal case hearing concerning Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association (HOA), docket number 23F-H053-REL, which was heard by Administrative Law Judge (ALJ) Brian Del Vecchio on June 19, 2023. The case was referred by the Arizona Department of Real Estate.

Key Facts and Main Issue

The main issue was whether the HOA violated Article II Section 3 of its governing bylaws by failing to hold its 2023 annual meeting as required. The HOA’s bylaws, as amended in 1996, explicitly mandate that the Annual Meeting of Members "shall be held" on the second Monday in March each year. For 2023, the required date was March 13. The Petitioner, Deborah Masear, filed her complaint around April 10, 2023, after the mandated March date had passed without a meeting being scheduled.

Key Arguments and Proceedings

The Petitioner argued that the HOA had been out of compliance regarding the annual meeting schedule for both 2022 and 2023, and that the 2023 meeting was only scheduled *after* she filed her complaint.

The Respondent (HOA) admitted that the meeting was not held on the required March date. However, the HOA argued that the petition should be dismissed because they eventually noticed and held a meeting on May 8, 2023. The HOA further argued that while an election was attempted, no business or election could take place because the members failed to meet the required quorum of 25% (35 members needed), as only 29 members participated. The HOA asserted that the failure to conduct business was due to member non-participation, not a failure of the association itself.

Most Important Legal Points

The ALJ’s determination centered on the interpretation of the HOA’s bylaws. The ALJ emphasized that the phrase "shall be held" within the bylaws is not permissive. Therefore, the HOA was obligated to hold the meeting on the designated March date. The ALJ noted that the May 8, 2023, meeting was 56 days late.

Outcome and Final Decision

The ALJ concluded that the Petitioner sustained her burden of proof. The ALJ found that the Respondent’s conduct violated Article II Section 3 of its bylaws.

The ALJ affirmed the Petitioner’s petition. As relief, the HOA was ordered to reimburse the Petitioner’s filing fee of $500.00. The Petitioner's request to levy a civil penalty against the Respondent was denied. The ALJ's recommendation was set to become the final administrative order unless modified or rejected by the Department of Real Estate within 30 days.

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Lisa Kittredge v. SunBird Golf Resort Homeowners Association

Posted on by

Case Summary

Case ID 23F-H040-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-13
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lisa Kittredge Counsel —
Respondent SunBird Golf Resort Homeowners Association Counsel Lori N Brown

Alleged Violations

ARIZ. REV. STAT. § 32-2199 et seq.

Outcome Summary

The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).

Key Issues & Findings

Expenditure of HOA Contingency Funds for Golf Course Drainage Maintenance

Petitioner alleged the HOA improperly used annual assessments (Contingency Fund) to pay $15,968 (capped at $20,000) for cleaning drainage wells on the privately owned SunBird Golf Club property. The ALJ concluded that under the 2015 CC&Rs, as amended in 2021, the HOA was only permitted to expend funds collected specifically pursuant to Section 6.7(C) (Capital Improvement Assessment for Golf Course) for golf course drainage issues, and therefore, using the Contingency fund violated the governing documents.

Orders: Respondent must reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA Governance, CC&R Interpretation, Unauthorized Expenditure, Contingency Fund, Drainage Maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment

Video Overview

Audio Overview

Decision Documents

23F-H040-REL Decision – 1039237.pdf

Uploaded 2026-04-24T12:06:37 (47.3 KB)

23F-H040-REL Decision – 1053619.pdf

Uploaded 2026-04-24T12:06:41 (43.9 KB)

23F-H040-REL Decision – 1064270.pdf

Uploaded 2026-04-24T12:06:47 (155.3 KB)

23F-H040-REL Decision – 1039237.pdf

Uploaded 2026-01-23T17:55:43 (47.3 KB)

23F-H040-REL Decision – 1053619.pdf

Uploaded 2026-01-23T17:55:47 (43.9 KB)

23F-H040-REL Decision – 1064270.pdf

Uploaded 2026-01-23T17:55:51 (155.3 KB)

This summary outlines the hearing proceedings, key arguments, and final decision in the matter of *Lisa Kittredge vs. SunBird Golf Resort Homeowners Association* (No. 23F-H040-REL) before the Office of Administrative Hearings (OAH).

Key Facts and Issues

Petitioner Lisa Kittredge filed a petition alleging that the SunBird Golf Resort Homeowners Association (HOA) violated governing documents by accepting financial responsibility to maintain drainage features on the privately owned, for-profit SunBird Golf Club.

The immediate action challenged was the HOA Board's December 2022 decision to allocate up to $20,000 from the HOA Contingency funding stream to open, inspect, and clean out specific drainage wells on the golf course, in response to standing water, odors, and mosquito problems affecting the community.

The main legal issue was whether the current governing documents authorized the HOA to use general homeowner assessment funds for maintenance activities on the Golf Course property.

Arguments and Proceedings

The evidentiary hearing was conducted over two days, May 1 and May 15, 2023.

Petitioner's Argument: The Petitioner argued that the expenditure was improper because the governing documents prohibit the use of general assessments for the golf course. She contended that the 1999 CC&Rs/Transition Documents, which generally exempted the HOA from maintaining the Golf Course land, were still relevant or controlling. Crucially, she argued that the 2021 Amendment to the CC&Rs explicitly restricted funding for golf course activities only to monies collected pursuant to Section 6.7(C) (the newly created $300 Capital Improvement Assessment fund for the Golf Course and Community). The Petitioner conceded that had the HOA used funds from the restricted 6.7(C) account, she would not have filed the petition.

Respondent's Argument (HOA): The HOA countered that the 1999 documents were superseded by subsequent documents, including the 2015 CC&Rs and 2021 Amendment, which were approved by residents. The HOA asserted that Section 6.3(A) of the 2015 CC&Rs authorized using assessments for "drainage areas within SunBird," arguing that fixing the drainage was necessary for the "common good" of SunBird residents, whose property values and quality of life were negatively impacted by flooding caused in part by community runoff. The HOA classified the allocation as an unbudgeted emergency expense appropriate for the Contingency Fund.

Legal Focus: The Administrative Law Judge (ALJ) focused strictly on the HOA's governing documents (CC&Rs, Bylaws, Articles of Incorporation, and Rules), excluding the 1999 leases and transition agreements as enforceable governing documents in this venue. The ALJ also found that the Petitioner did not establish that the 1999 CC&Rs were still in effect by a preponderance of the evidence, citing the clear intent of the 2008 and 2015 restatements to be the sole current CC&Rs.

Outcome and Final Decision

The ALJ determined that the Petitioner sustained her burden of proof that the Respondent violated the Association’s governing documents.

Key Legal Finding: The ALJ concluded that the 2021 Amendment was controlling regarding the funding mechanism for the Golf Course. While the 2015 CC&Rs allowed assessments for "drainage areas within SunBird," the 2021 Amendment clearly restricted the use of assessments for the golf course (including recreational facilities) to "only from funds collected pursuant to Section 6.7(C)". Since the HOA decision specified the use of the general HOA Contingency funding stream for the $20,000 project, the expenditure violated the governing documents.

Order: The Petitioner's petition was granted. The Respondent was ordered to reimburse the Petitioner’s filing fee of $500.00 and was further ordered to henceforth comply with the provisions of the governing documents. (3,803 characters)

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it 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. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial 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

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it 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. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial 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

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lisa Kittredge (petitioner)
    Property owner, appeared on her own behalf.
  • Beth Lockwood (witness)
    Testified for Petitioner.

Respondent Side

  • Lori N. Brown (HOA attorney)
    Gordon Rees Scully Mansukhani LLP
  • Ben Bednarek (HOA attorney)
    Also referred to as Benjamin Dinard and Mr. Venorf/Benark.
  • Layne Barney (General Manager)
    SunBird Golf Resort Homeowners Association
    Also referred to as Layne Varney.
  • Charles Brian Heitbrink (board member)
    SunBird Golf Resort Homeowners Association
    Secretary of the Board of Directors. Also referred to as Charles Height.
  • Dirk (board member)
    SunBird Golf Resort Homeowners Association
    Moved motion regarding drainage in Dec 2022 meeting.
  • Jim (board member)
    SunBird Golf Resort Homeowners Association
    Seconded motion regarding drainage in Dec 2022 meeting.
  • Nancy (board member)
    SunBird Golf Resort Homeowners Association
    Made motion regarding golf purchases in Dec 2022 meeting.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Also referred to as Tammy Igener.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.

Other Participants

  • Lewis Ne (Expert (City Engineer))
    City of Chandler
    Consulted regarding storm water drainage.
  • Thomas (Former HOA President)
    Signed 1999 declaration.

Deanna Smith v. Moondance Townhomes Homeowners Association

Posted on by

Case Summary

Case ID 23F-H049-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-06
Administrative Law Judge Brian Del Vecchio
Outcome The ALJ affirmed the petition, finding the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide complete financial statements (including balance sheets and statements of cash flows) to the Petitioner upon request. The HOA was ordered to provide the missing financial statements and reimburse the $500 filing fee. A civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

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

Key Issues & Findings

Failure to provide association financial records upon member request.

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

23F-H049-REL Decision – 1062328.pdf

Uploaded 2026-04-29T11:20:11 (149.9 KB)

23F-H049-REL Decision – 1062328.pdf

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

This summary details the administrative hearing held on May 17, 2023, regarding *Deanna Smith v Moondance Town Home Association* (Docket No. 23F-H049-RE).

Key Facts and Parties

The Petitioner, Deanna Smith, is a property owner, member, and board member of the Moondance Townhomes Homeowners Association (HOA), the Respondent. The HOA was represented by Christina Morgan, Esq., with George Minter (President) appearing as a witness. The case was heard by Administrative Law Judge (ALJ) Brian Del Vecchio at the Office of Administrative Hearings (OAH).

Main Issues and Legal Points

The central issue was whether the Respondent violated Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805, which requires associations to make financial and other records reasonably available to members, typically within ten business days of a request.

Petitioner Smith filed a petition on March 6, 2023, alleging the HOA failed to comply with her December 15, 2022, request for the Association's financial statements for September, October, and November 2022. Smith, who has an accounting background, argued that the financial statements she requested encompassed a balance sheet, statement of cash flows, and statement of income, in addition to the Profit & Loss (P&L) statement. This definition aligns with ARIZ. REV. STAT. § 32-701, which defines "Financial Statement" broadly to include these comprehensive reports.

The Respondent’s defense focused on miscommunication and substantial compliance. The Respondent acknowledged internal "dysfunction" and delays caused by the transition from their prior accounting firm to self-management using QuickBooks. While the Respondent emailed P&L statements on January 12, 2023, they failed to provide other requisite documents. Furthermore, the Association’s President Minter initially directed Smith to search a Google Drive, claiming the records were available there, but the Treasurer later admitted the financial reports were never available on the drive. The ALJ noted that even after receiving the P&L statements, Smith’s subsequent request on January 18, 2023, went unfulfilled.

Outcome and Final Decision

The ALJ found that Petitioner Smith sustained her burden of proving the violation by a preponderance of the evidence.

The ALJ issued a decision on June 6, 2023, concluding that the Respondent’s failure to supply the requisite documents—such as balance sheets and statements of cash flows—constituted a violation of ARIZ. REV. STAT. § 33-1805.

The ALJ issued the following order:

  1. The Petitioner’s petition is affirmed.
  2. The request to levy a civil penalty against the Respondent is denied.
  3. The Respondent shall reimburse the Petitioner’s $500.00 filing fee.
  4. The Respondent shall provide financial statements (as defined by ARIZ. REV. STAT. § 32-701) for the months of August 2022 through December 2022.

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Quail Creek Villas Association, Inc. v. Randall & Gisela White

Posted on by

Case Summary

Case ID 23F-H042-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-09
Administrative Law Judge Jenna Clark
Outcome The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $100.00

Parties & Counsel

Petitioner Quail Creek Villas Association, Inc. Counsel Michael Shupe, Esq.
Respondent Randall & Gisela White Counsel —

Alleged Violations

CC&Rs Section 3(j)

Outcome Summary

The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.

Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.

Key Issues & Findings

Unauthorized exterior modification (tile installation)

Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.

Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $100.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Analytics Highlights

Topics: CC&R violation, Architectural Review Committee (ALC), exterior modification, tile installation, constructive notice, affirmative defense, HOA maintenance
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. § 33-1805
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1803
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-04-24T12:07:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-04-24T12:07:25 (219.4 KB)

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-01-23T17:56:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-01-23T17:56:11 (219.4 KB)

This summary addresses the legal case hearing concerning the Quail Creek Villas Association, Inc. (Petitioner) versus Randall and Gisela White (Respondents) regarding compliance with community documents, held remotely before Administrative Law Judge (ALJ) Jenna Clark on April 27, 2023, under Docket No. 23F-H042-REL.

Key Facts and Main Issues

The central issue was whether the Respondents violated Section 3(j) of the Covenants, Conditions, and Restrictions (CC&Rs) by installing permanent tile on their front porch entryway without prior written approval from the Association's Board of Directors. The Petitioner sought an order confirming the violation, requiring compliance, and imposing a civil penalty.

The key facts were largely undisputed:

  1. Respondents installed large, permanent tile squares in their entryway around May/June 2022.
  2. The Association’s management (Cadden Community Management) advised Mr. White in May 2022 that an Architectural Landscape Committee (ALC) form was required for any exterior modifications.
  3. The Association has a duty to maintain the structural integrity of the concrete, which the Board contended the permanent tile placement compromised, increasing maintenance costs and creating a potential trip hazard.
  4. The Association provided multiple violation notices and extended the compliance deadline from August 2022 to January 31, 2023.

Key Arguments

Petitioner's Arguments (HOA):

Petitioner argued that the Respondents acted in knowing disregard of their obligation to seek approval for exterior modifications, thereby violating the CC&Rs. They asserted that the recorded CC&Rs provide constructive notice of all provisions to all purchasers as a matter of Arizona law, regardless of any perceived defect in the documents provided at closing.

Respondents' Defense (Owners):

Mr. White acknowledged installing the tile but maintained an affirmative defense that the CC&Rs set provided during his closing was "flawed," missing pages 4 and 6, which included the foundational Section 3(j). He claimed that he had no duty to comply with documents he had not received. Mr. White also argued that the tile was not visible (covered by a rug) and that its removal, based on his engineering knowledge, would cause severe damage to the underlying post-tension concrete slab, making enforcement punitive.

Final Decision and Legal Outcome

The ALJ found that the Petitioner established a community document violation by a preponderance of the evidence.

Focus on Legal Points:

The ALJ concluded that the Respondents’ defense regarding the missing CC&Rs pages was insufficient because the Pima County recorded CC&Rs provided constructive notice of all provisions, and the CC&Rs constitute a contract binding upon the owners. Furthermore, Mr. White’s own communications referenced Section 3(j) prior to the permanent installation, confirming actual knowledge of the approval requirement. The ALJ found that allowing the tile to remain would violate the CC&Rs requirements for architectural approval and compatibility/uniformity within the Villas Property.

Outcome and Order:

The ALJ Decision, dated May 9, 2023, granted the petition. The final order mandates that Respondents:

  1. Abide by CC&Rs Section 3(j) henceforth.
  2. Reimburse the Petitioner $500.00 for its filing fee.
  3. Pay a $100.00 civil penalty to the Arizona Department of Real Estate.

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

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

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

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

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael Shupe (HOA attorney)
    Goldschmidt Shupe, PLLC
    Appeared as counsel for Petitioner
  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt Shupe, PLLC
    Legal counsel for the Association; communication contact listed
  • Lori Don Woullet (Property Manager/Witness)
    Cadden Community Management
    Senior Community Association Manager
  • Diane Patricia Weber (Former Board Member/Witness)
    Quail Creek Villas Association, Inc.
    Former Board Treasurer
  • Lynn Birleffi (Witness)
    Quail Creek Villas Association, Inc.
    Called as a witness for Petitioner

Respondent Side

  • Randall White (Respondent)
    Quail Creek Villas Association, Inc.
    Appeared pro se and testified
  • Gisela White (Respondent)
    Quail Creek Villas Association, Inc.
    Appearance waived

Neutral Parties

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

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on by

Case Summary

Case ID 23F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty

Alleged Violations

SCHA Bylaws Article 2.1

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.

Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.

Key Issues & Findings

Annual meeting

Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at 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. § 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)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Analytics Highlights

Topics: HOA, Bylaws, Election Dispute, Dissolution, Annual Meeting, Burden of Proof, Waiver
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)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Decision Documents

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-04-24T12:01:26 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-04-24T12:01:32 (114.7 KB)

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-01-23T17:53:49 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-01-23T17:53:51 (114.7 KB)

This summary concerns the hearing held before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings (OAH) on March 29, 2023, in the matter of *Clifford S Burnes v. Saguaro Crest Homeowners' Association* (SCHA), Docket No. 23F-H031-REL.

Key Facts and Main Issues

The central issue was whether the Saguaro Crest Homeowners' Association (Respondent) violated its Bylaws, specifically Article 2.1, by failing to hold Board of Directors elections at the annual meeting on December 11, 2021.

Article 2.1 mandates that an annual meeting "shall be held at least every twelve (12) months… for the purpose of electing or announcing the results of the election of Directors and transacting such other business as may properly come before the meeting".

Key facts established during the hearing include:

  1. The annual meeting was held on December 11, 2021.
  2. At that meeting, the voting members properly approved a vote to dissolve the SCHA.
  3. The Board President and Vice President, whose terms were ending, volunteered to remain in their positions to oversee the dissolution process.
  4. No elections were held for the subsequent 2022 calendar year.
  5. Petitioner Clifford S. Burnes was present at the meeting but did not voice an objection to the board members remaining or to the lack of elections at that time.

Key Arguments

Petitioner's Argument: Petitioner Burnes argued that the use of the word "shall" and the phrase "for the purpose of electing" in Article 2.1 constituted a requirement for elections to be held annually, and the SCHA violated this bylaw. Mr. Burnes requested that the ALJ find in his favor, require the SCHA to comply, reimburse his filing fee, and impose a civil fine on the HOA.

Respondent's Argument: The SCHA, represented by John T. Crotty, denied the claim. The Respondent argued that Article 2.1 provided options: either holding elections *or* announcing the results of elections, and also permitted transacting "such other business," which included the majority-approved dissolution. The SCHA argued that had the dissolution vote failed, an election would have been held. Crucially, the SCHA argued that Mr. Burnes waived his claim of violation by failing to object at the meeting, despite his familiarity with the governing documents.

Legal Outcome and Final Decision

The ALJ determined that the Petitioner bore the burden of proving the violation of Article 2.1 by a preponderance of the evidence.

The ALJ concluded that the Petitioner failed to meet his burden of proof. The legal analysis found that Article 2.1, as written, did not strictly require elections to be held at the meeting itself, as it allowed for results to be announced. Furthermore, the ALJ noted that the clear approval of the dissolution vote meant there would be no need for a new board once the process was complete. The ALJ deemed the Petitioner’s failure to raise an objection at the meeting to be "most harmful" to his claim.

The ALJ issued an Order denying the Petitioner’s petition.

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23F-H031-REL

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These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

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23F-H031-REL

3 sources

These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

Save to note

Today • 2:17 PM

3 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Saguaro Crest Homeowners' Association Member
    Also referred to as Clifford (Norm) Burnes.

Respondent Side

  • John T. Crotty (HOA attorney)
    Saguaro Crest Homeowners' Association
  • Esmerina Martinez (board member)
    Saguaro Crest Homeowners' Association
    President; referred to as Serena Martinez or Esmerelda Martinez in sources.
  • Dave Madill (board member)
    Saguaro Crest Homeowners' Association
    Vice President; referred to as Dave Matt or Dave Mel in testimony.
  • Joseph Martinez (board member)
    Saguaro Crest Homeowners' Association

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.

Michael H. Jahr v. Leisure World Community Association

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Case Summary

Case ID 23F-H032-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-14
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied Petitioner Michael H. Jahr's petition, concluding that he failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1816, because a clothesline is not a 'solar energy device' under ARS § 44-1761, and ARS § 33-439(a) was inapplicable.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael H. Jahr Counsel —
Respondent Leisure World Community Association Counsel —

Alleged Violations

ARIZ. REV. STAT. § 33-1816(a-b)

Outcome Summary

The Administrative Law Judge denied Petitioner Michael H. Jahr's petition, concluding that he failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1816, because a clothesline is not a 'solar energy device' under ARS § 44-1761, and ARS § 33-439(a) was inapplicable.

Why this result: Petitioner failed to sustain his burden of proof that the Association violated ARS § 33-1816. The Tribunal determined that a clothesline does not meet the statutory definition of a solar energy device.

Key Issues & Findings

Alleged violation of ARS § 33-1816 regarding denial of utilizing solar means to reduce energy consumption.

Petitioner alleged the Association violated ARS § 33-1816 by refusing him the ability to utilize solar means (a clothesline) to reduce energy consumption, arguing the clothesline met the definition of a 'solar energy device' under ARS § 44-1761, which the HOA cannot prohibit.

Orders: Petitioner's petition was denied. Respondent was ordered not to owe Petitioner any reimbursement for fees incurred.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1816(a-b)
  • ARIZ. REV. STAT. § 44-1761
  • ARIZ. REV. STAT. § 33-439(a)
  • Association Rules & Regulations 2-304(D)

Analytics Highlights

Topics: HOA Dispute, Solar Energy Device, Clothesline, Planned Community, Statutory Interpretation, Burden of Proof
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. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 33-439(a)
  • ARIZ. REV. STAT. § 33-1808(a)
  • ARIZ. REV. STAT. § 33-1816(a-b)
  • ARIZ. REV. STAT. § 44-1761
  • ARIZ. ADMIN. CODE R2-19-111(4)
  • Association Rules & Regulations 2-304(D)

Video Overview

Audio Overview

Decision Documents

23F-H032-REL Decision – 1041743.pdf

Uploaded 2026-05-01T22:11:14 (161.1 KB)

23F-H032-REL Decision – 1057366.pdf

Uploaded 2026-05-01T22:11:22 (55.7 KB)

23F-H032-REL Decision – 1041743.pdf

Uploaded 2026-01-23T17:53:59 (161.1 KB)

23F-H032-REL Decision – 1057366.pdf

Uploaded 2026-01-23T17:54:04 (55.7 KB)

This is a concise summary of the hearing regarding Michael H. Jahr, Petitioner, versus Leisure World Community Association (LWCA), Respondent, conducted before Administrative Law Judge Jenna Clark on February 27, 2023. The matter concerned OA docket number 23 FH032L.

Key Facts and Issues

The central issue was an alleged violation of Arizona Revised Statute (ARS) § 33-1816, claiming that the Respondent denied the Petitioner the right to utilize solar means to reduce his energy consumption. This dispute revolved specifically around the Association’s denial of Petitioner’s request to use an installed in-ground sleeve for a clothesline.

The Petitioner, a homeowner in the Leisure World planned community, applied to install a sleeve in August 2022, initially listing uses including a clothesline. The request was denied for the clothesline use, but permission was later granted for a “flag pole installation sleeve”. Petitioner subsequently used the sleeve for a clothesline, resulting in an Architectural Control Courtesy Violation Notice dated October 31, 2022, which cited a violation of Association Rules & Regulations 2-304(D) prohibiting clotheslines visible from outside the residence.

Legal Arguments and Proceedings

  1. Jurisdiction and Applicable Statute: Initially, the ALJ noted that the Petitioner incorrectly filed under condominium statutes (ARS § 33-439). The hearing proceeded after confirming the accurate statutory basis for the complaint was the planned community statute, specifically ARS § 33-1816(a-b), which prohibits associations from banning the installation or use of a "solar energy device" as defined in ARS § 44-1761.
  2. Petitioner’s Argument: Petitioner argued that the clothesline qualified as a solar energy device because it uses the sun’s heat (solar means) to evaporate moisture (second law of thermodynamics), thereby reducing energy consumption and fitting the definition of a "system or series of mechanisms". He asserted that the legislative intent behind the statute was to allow homeowners to use solar energy to save financial resources and help with climate issues.
  3. Respondent’s Argument: The Respondent (LWCA), represented by Assistant Community Manager Daniel Clark Collier, argued that their legal counsel determined a clothesline does not meet the definition of a solar energy device found in ARS § 44-1761. LWCA noted that the rules prohibiting clotheslines were in place prior to Petitioner moving in. The Respondent argued that extending the definition to a clothesline would absurdly extend it to nearly any object heated by the sun.
  4. Burden of Proof: The Administrative Law Judge noted that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Association violated the relevant statute.
  5. Relief Requested: Petitioner requested relief, including reimbursement of his filing fee and injunctive action. The ALJ clarified that monetary relief (other than potential filing fee reimbursement) and injunctive relief (such as a temporary restraining order) were not permissible in this administrative tribunal; the tribunal's authority was limited primarily to ordering a party to abide by the specified statute or imposing a civil penalty.

Outcome and Final Decision

The Administrative Law Judge issued a decision finding that the clothesline is not a solar energy device. The Tribunal found that the Association acted within its lawful authority to deny permission to erect the clothesline.

The final order was that the Petitioner’s petition be denied. Consequently, the Respondent was not ordered to reimburse the Petitioner for any incurred filing fees. The ALJ concluded that the Petitioner failed to sustain his burden of proof that the Association violated ARS § 33-1816. The decision was binding unless a rehearing was granted by the Arizona Department of Real Estate Commissioner. (Note: A subsequent order addressed a poten

Questions

Question

Can my HOA prohibit me from using a clothesline in my backyard?

Short Answer

Yes, if the community rules prohibit them.

Detailed Answer

The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.

Alj Quote

Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).

Legal Basis

Rules & Regulations 2-304(D); ARS 33-1816

Topic Tags

  • architectural_control
  • prohibited_items
  • solar_energy

Question

Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?

Short Answer

No, a clothesline does not meet the statutory definition of a solar energy device.

Detailed Answer

The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.

Alj Quote

Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.

Legal Basis

ARS 44-1761(8); ARS 33-439(a)

Topic Tags

  • solar_energy
  • definitions
  • statutory_interpretation

Question

What is the burden of proof for a homeowner challenging an HOA decision?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • legal_standards
  • hearing_procedure

Question

Can I be reimbursed for my filing fees if I lose the hearing?

Short Answer

No, reimbursement is generally not awarded if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.

Alj Quote

IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.

Legal Basis

Order

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Are CC&Rs considered a binding contract?

Short Answer

Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.

Detailed Answer

The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Common Law

Topic Tags

  • cc&rs
  • contract_law
  • governing_documents

Question

Can I use a flag pole sleeve for something other than a flag, like a clothesline?

Short Answer

No, if the permit was granted specifically for a flag pole.

Detailed Answer

In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.

Alj Quote

Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.

Legal Basis

ARS 33-1808(a)

Topic Tags

  • architectural_requests
  • permits
  • flag_poles

Question

How do courts interpret words in statutes that aren't explicitly defined?

Short Answer

They use the ordinary meaning of the words, often consulting dictionaries.

Detailed Answer

The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.

Alj Quote

Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole

Legal Basis

Statutory Construction Principles

Topic Tags

  • legal_standards
  • definitions
  • interpretation

Question

What is the deadline for filing a request for a rehearing?

Short Answer

30 days from the service of the order.

Detailed Answer

If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.

Legal Basis

ARS 41-1092.09

Topic Tags

  • appeals
  • deadlines
  • procedural_requirements

Case

Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA prohibit me from using a clothesline in my backyard?

Short Answer

Yes, if the community rules prohibit them.

Detailed Answer

The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.

Alj Quote

Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).

Legal Basis

Rules & Regulations 2-304(D); ARS 33-1816

Topic Tags

  • architectural_control
  • prohibited_items
  • solar_energy

Question

Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?

Short Answer

No, a clothesline does not meet the statutory definition of a solar energy device.

Detailed Answer

The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.

Alj Quote

Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.

Legal Basis

ARS 44-1761(8); ARS 33-439(a)

Topic Tags

  • solar_energy
  • definitions
  • statutory_interpretation

Question

What is the burden of proof for a homeowner challenging an HOA decision?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • legal_standards
  • hearing_procedure

Question

Can I be reimbursed for my filing fees if I lose the hearing?

Short Answer

No, reimbursement is generally not awarded if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.

Alj Quote

IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.

Legal Basis

Order

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Are CC&Rs considered a binding contract?

Short Answer

Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.

Detailed Answer

The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Common Law

Topic Tags

  • cc&rs
  • contract_law
  • governing_documents

Question

Can I use a flag pole sleeve for something other than a flag, like a clothesline?

Short Answer

No, if the permit was granted specifically for a flag pole.

Detailed Answer

In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.

Alj Quote

Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.

Legal Basis

ARS 33-1808(a)

Topic Tags

  • architectural_requests
  • permits
  • flag_poles

Question

How do courts interpret words in statutes that aren't explicitly defined?

Short Answer

They use the ordinary meaning of the words, often consulting dictionaries.

Detailed Answer

The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.

Alj Quote

Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole

Legal Basis

Statutory Construction Principles

Topic Tags

  • legal_standards
  • definitions
  • interpretation

Question

What is the deadline for filing a request for a rehearing?

Short Answer

30 days from the service of the order.

Detailed Answer

If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.

Legal Basis

ARS 41-1092.09

Topic Tags

  • appeals
  • deadlines
  • procedural_requirements

Case

Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael H. Jahr (petitioner)

Respondent Side

  • Daniel Clark Collier (assistant community manager)
    Leisure World Community Association
    Appeared on behalf of Respondent and testified as a witness
  • Regis Salazar (witness)
    Testified for Respondent

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (commissioner)
    ADRE
    Recipient of recommended decision

Other Participants

  • AHansen (ADRE staff)
    ADRE
    Recipient of electronic transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of electronic transmission
  • djones (ADRE staff)
    ADRE
    Recipient of electronic transmission
  • labril (ADRE staff)
    ADRE
    Recipient of electronic transmission