Article III Section 3 of the Bylaws of Hilton Casitas Council of Co-owners ARIZ. REV. STAT. § 33-1250(C)
Outcome Summary
The Administrative Law Judge affirmed the petition regarding the Bylaws violation (annual meeting held 27 days late, 23F-H052-REL) but denied the request for civil penalties. The ALJ dismissed the petition regarding the alleged statutory violation of in-person voting requirements (23F-H064-REL), finding Petitioner did not meet his burden of proof. Petitioner was reimbursed the $500 filing fee for the prevailing issue.
Why this result: Petitioner lost the statutory claim (23F-H064-REL) due to failure to provide sufficient evidence for a narrow interpretation of 'in person' voting. Petitioner failed to prove that civil penalties were warranted for the Bylaws violation (23F-H052-REL).
Key Issues & Findings
Failure to hold the annual meeting prior to March 31, 2023 (23F-H052-REL)
Petitioner alleged Respondent failed to hold the annual meeting by the Bylaws' deadline of March 31, 2023. Respondent stipulated that the meeting, held on April 27, 2023, was late, constituting a violation.
Orders: Respondent violated Article III Section 3 of the Bylaws; Petition affirmed. Petitioner was denied civil penalties but was reimbursed the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2199.02
Alleged violation for failing to allow in-person voting (23F-H064-REL)
Petitioner alleged Respondent violated the statute by allowing voting only through video conferencing and failing to provide an opportunity for in-person voting. The ALJ found Petitioner failed to provide sufficient evidence to support a narrow interpretation of 'in person' that excludes remote video attendance.
Orders: Respondent did not violate ARIZ. REV. STAT. § 33-1250(C). Petition dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1250(C)
Analytics Highlights
Topics: HOA Annual Meeting Deadline, Bylaws Violation, HOA Voting Procedure, In-Person Voting, Video Conferencing Voting, Civil Penalties, Mootness Defense, Waiver Defense
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)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
23F-H056-REL Decision – 1073539.pdf
Uploaded 2026-01-23T17:57:57 (51.9 KB)
23F-H056-REL Decision – 1080973.pdf
Uploaded 2026-01-23T17:58:02 (110.3 KB)
Questions
Question
Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?
Short Answer
No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.
Detailed Answer
The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.
Alj Quote
While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.
Legal Basis
Contract Law Principles / Due Diligence
Topic Tags
architectural approval
fiduciary duty
maintenance
Question
If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?
Short Answer
No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.
Detailed Answer
In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.
Alj Quote
No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.
Legal Basis
CC&Rs Section 9.2
Topic Tags
architectural approval
repairs
CC&Rs interpretation
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
burden of proof
legal procedure
Question
Can I be reimbursed for the filing fee if I win my case against the HOA?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
penalties
Question
Does winning the case automatically mean the HOA will be fined a civil penalty?
Short Answer
No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.
Detailed Answer
Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Discretion
Topic Tags
civil penalty
fines
Question
Can an HOA claim a new contractor's warranty voids my old approval?
Short Answer
Not if the HOA failed to check for existing approvals before signing the contract.
Detailed Answer
The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.
Alj Quote
Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.
Legal Basis
Duty of Care / Contract Awareness
Topic Tags
warranties
contractor
due diligence
Case
Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?
Short Answer
No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.
Detailed Answer
The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.
Alj Quote
While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.
Legal Basis
Contract Law Principles / Due Diligence
Topic Tags
architectural approval
fiduciary duty
maintenance
Question
If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?
Short Answer
No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.
Detailed Answer
In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.
Alj Quote
No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.
Legal Basis
CC&Rs Section 9.2
Topic Tags
architectural approval
repairs
CC&Rs interpretation
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
burden of proof
legal procedure
Question
Can I be reimbursed for the filing fee if I win my case against the HOA?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
penalties
Question
Does winning the case automatically mean the HOA will be fined a civil penalty?
Short Answer
No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.
Detailed Answer
Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Discretion
Topic Tags
civil penalty
fines
Question
Can an HOA claim a new contractor's warranty voids my old approval?
Short Answer
Not if the HOA failed to check for existing approvals before signing the contract.
Detailed Answer
The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.
Alj Quote
Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.
Legal Basis
Duty of Care / Contract Awareness
Topic Tags
warranties
contractor
due diligence
Case
Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Richard K. Morris(petitioner) The Townes at Paradise Valley Landings Appeared on his own behalf
Respondent Side
Joelle Lever(board member) The Townes at Paradise Valley Landings Represented the Respondent and provided testimony
Chelsea Hearn(board member) The Townes at Paradise Valley Landings Homeowner who complained about the light
alice.riesterer(management staff) The Management Trust Arizona
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge who signed the Order and Decision
Judge Svio(hearing officer) OAH Administrative Law Judge who opened the hearing
Susan Nicolson(commissioner) Arizona Department of Real Estate
Other Participants
Deborah L(ARC member) Association Association representative who approved Petitioner's request in 2010
AHansen(ADRE staff) ADRE Recipient of transmission
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)
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.
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.
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.
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.
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
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.
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.
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
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)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Decision Documents
23F-H031-REL Decision – 1035344.pdf
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23F-H031-REL Decision – 1049021.pdf
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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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Video Overview
Mind Map
Reports
Flashcards
Quiz
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Slide Deck
Data Table
Blog Post – 23F-H031-REL
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1035344.pdf
1045278.aac
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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
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
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.
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 2026-01-23T17:53:59 (161.1 KB)
23F-H032-REL Decision – 1057366.pdf
Uploaded 2026-01-23T17:54:04 (55.7 KB)
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
Sun City West Dec CC&Rs Article 4.2(F); Deer Valley CC&Rs Articles 1.16, 6.2, 2.3, 7.1, 7.3; Deer Valley HOA Rules & Regulations ¶ 7.1 and 7.2
Outcome Summary
The Administrative Law Judge denied the petition, concluding Petitioner failed to sustain the burden of proof that the Association violated community documents by failing to replace trees on Member lots. The CC&Rs did not establish a duty for the HOA to replace homeowner trees.
Why this result: Petitioner failed to meet the burden of proof; Petitioner was not an aggrieved party; Petitioner failed to establish causation by Respondent or duty to act by Respondent; trees belong to homeowners, and the Deer Valley CC&Rs do not require the HOA to replace trees under its maintenance obligations.
Key Issues & Findings
Whether Respondent is responsible for replacing dead and/or dying trees on all Member Lots in accordance with cited community documents.
Petitioner alleged the HOA violated governing documents by failing to replace dead trees on member lots, and sought an order compelling the replacement of 59 missing trees (at a rate of 10 per year).
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
Sun City West Dec CC&Rs Article 4.2(F)
Deer Valley CC&Rs Article 1.16
Deer Valley CC&Rs Article 6.2
Deer Valley CC&Rs Article 2.3
Deer Valley CC&Rs Article 7.1
Deer Valley CC&Rs Article 7.3
Deer Valley HOA Rules & Regulations ¶ 7.1
Deer Valley HOA Rules & Regulations ¶ 7.2
Analytics Highlights
Topics: HOA dispute, Landscape maintenance, Tree replacement, Burden of proof, Standing
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
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)
If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?
Short Answer
Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.
Detailed Answer
In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.
Alj Quote
The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.
Legal Basis
Contract Interpretation / CC&Rs
Topic Tags
Maintenance vs Replacement
CC&Rs
Landscaping
Question
Can I file a petition against my HOA on behalf of the entire community regarding a general issue?
Short Answer
No. You must be an 'aggrieved party' with a specific injury to yourself or your property.
Detailed Answer
A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.
Alj Quote
Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.
Legal Basis
Standing / Aggrieved Party Status
Topic Tags
Standing
Procedural Requirements
Question
Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?
Short Answer
Generally, no, unless you have concrete evidence and it is a justiciable issue.
Detailed Answer
Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.
Alj Quote
Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.
Legal Basis
Evidence / Justiciable Issues
Topic Tags
Property Value
Evidence
Question
If I pay a filing fee for one issue, can I add other complaints to the hearing later?
Short Answer
No. The tribunal will only address the specific issue for which the filing fee was paid.
Detailed Answer
Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
Filing Fees
Scope of Hearing
Question
Does the HOA have the authority to remove items (like trees) from my private lot without permission?
Short Answer
No, unless the governing documents explicitly grant that authority.
Detailed Answer
The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.
Alj Quote
There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.
Legal Basis
Property Rights / HOA Authority
Topic Tags
Homeowner Rights
Trespass/Authority
Question
What level of proof is required for a homeowner to win a case against their HOA?
Short Answer
The standard is 'preponderance of the evidence'.
Detailed Answer
The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.
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
Burden of Proof
Topic Tags
Legal Standards
Evidence
Question
Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?
Short Answer
Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.
Detailed Answer
While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.
Alj Quote
The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association
Legal Basis
Governing Documents Hierarchy
Topic Tags
CC&Rs
Master Association
Case
Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?
Short Answer
Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.
Detailed Answer
In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.
Alj Quote
The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.
Legal Basis
Contract Interpretation / CC&Rs
Topic Tags
Maintenance vs Replacement
CC&Rs
Landscaping
Question
Can I file a petition against my HOA on behalf of the entire community regarding a general issue?
Short Answer
No. You must be an 'aggrieved party' with a specific injury to yourself or your property.
Detailed Answer
A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.
Alj Quote
Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.
Legal Basis
Standing / Aggrieved Party Status
Topic Tags
Standing
Procedural Requirements
Question
Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?
Short Answer
Generally, no, unless you have concrete evidence and it is a justiciable issue.
Detailed Answer
Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.
Alj Quote
Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.
Legal Basis
Evidence / Justiciable Issues
Topic Tags
Property Value
Evidence
Question
If I pay a filing fee for one issue, can I add other complaints to the hearing later?
Short Answer
No. The tribunal will only address the specific issue for which the filing fee was paid.
Detailed Answer
Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
Filing Fees
Scope of Hearing
Question
Does the HOA have the authority to remove items (like trees) from my private lot without permission?
Short Answer
No, unless the governing documents explicitly grant that authority.
Detailed Answer
The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.
Alj Quote
There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.
Legal Basis
Property Rights / HOA Authority
Topic Tags
Homeowner Rights
Trespass/Authority
Question
What level of proof is required for a homeowner to win a case against their HOA?
Short Answer
The standard is 'preponderance of the evidence'.
Detailed Answer
The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.
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
Burden of Proof
Topic Tags
Legal Standards
Evidence
Question
Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?
Short Answer
Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.
Detailed Answer
While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.
Alj Quote
The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association
Legal Basis
Governing Documents Hierarchy
Topic Tags
CC&Rs
Master Association
Case
Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Matthew E Thompson(petitioner) Also referred to as Mathew E. Thompson; Appeared on his own behalf
Respondent Side
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Also referred to as Beth Mohei, Beth Moi, or Beth Mali
Haidyn DiLorenzo(HOA attorney) Mulcahy Law Firm, PC Also referred to as Hayden Dorenzo
Charles Dean Otto(Board President; witness) Deer Valley Homeowners Association Inc. Also referred to as Charles Deano; President of the board of management
Neutral Parties
Jenna Clark(ALJ) OAH Administrative Law Judge
Other Participants
Louis Dettorre(ADRE Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE staff) Arizona Department of Real Estate Constituent Services Manager
Miranda Alvarez(Legal Secretary) Transmitted electronic order
c. serrano(OAH staff) OAH Transmitted Minute Entry
Sam Muza(Contractor President) Verde Valley Landscape Services Signed contract with HOA
Charlene Frost(homeowner) Filed Request for Exterior Change application
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
AHansen(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
The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.
Why this result: Petitioner failed to sustain the burden of proof that the Respondent violated the records request statute.
Key Issues & Findings
Alleged violation of records request statute (failure to timely provide materials lists/specifications related to roof replacement/repairs).
Petitioner requested materials lists and specifications regarding recent (Sept 2021) and past (since 1986) roof work on February 27, 2022. The Association provided a scope of work document from the vendor on May 11, 2022, after the petition was filed. The ALJ determined the requested documents were not established to be 'financial and other records of the association' as contemplated by the statute, and TMT was not in possession of them at the time of the request.
Orders: Petitioner's petition and request for a civil penalty were denied. Respondent was not ordered to reimburse Petitioner's filing fee.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1805 A
ARIZ. REV. STAT. § 32-2199.02 A
ARIZ. REV. STAT. § 32-2199.05
Analytics Highlights
Topics: HOA records request, Planned Community Act, Roof Repair/Replacement, Condominium, Burden of Proof
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2222048-REL Decision – 1003691.pdf
Uploaded 2026-01-23T17:48:15 (160.6 KB)
22F-H2222048-REL Decision – 979940.pdf
Uploaded 2026-01-23T17:48:17 (49.4 KB)
22F-H2222048-REL Decision – 979959.pdf
Uploaded 2026-01-23T17:48:18 (7.1 KB)
22F-H2222048-REL Decision – 985762.pdf
Uploaded 2026-01-23T17:48:20 (52.8 KB)
22F-H2222048-REL Decision – 986375.pdf
Uploaded 2026-01-23T17:48:22 (52.8 KB)
Study Guide – 22F-H2222048-REL
{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }
Blog Post – 22F-H2222048-REL
{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }
Case Participants
Petitioner Side
Robert C. Ochs(petitioner) Appeared on his own behalf
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Holmgren Appeared on behalf of respondent
Carl Westlund(witness) The Management Trust Division Vice President of Community Management at TMT
Shauna Carr(property manager) The Management Trust Former executive community manager for Camel View Greens
Dameon Cons(HOA attorney) Goodman Holmgren Sent response letter to Petitioner
Mark A. Holmgren(HOA attorney) Goodman Holmgren Counsel for Respondent listed on transmittals
Neutral Parties
Jenna Clark(ALJ) OAH
Louis Dettorre(Commissioner) ADRE
Miranda Alvarez(Legal Secretary) OAH Transmitted orders/minute entries
AHansen(ADRE Staff) ADRE Recipient of official documents
vnunez(ADRE Staff) ADRE Recipient of official documents
djones(ADRE Staff) ADRE Recipient of official documents
labril(ADRE Staff) ADRE Recipient of official documents
Other Participants
Jeff Centers(vendor/project manager) Vendor Contractor hired by the community
The petition was denied, and the case was vacated and remanded due to lack of jurisdiction. The OAH determined the Petitioner failed to meet the statutory definition of a 'planned community' required for the Department of Real Estate to have authority over the dispute.
Why this result: OAH lacked authority to hear the dispute because Petitioner failed to establish, by a preponderance of the evidence, that the Association met the definition of a 'planned community' under ARIZ. REV. STAT. § 33-1802(4). Specifically, there was no evidence of real estate ownership, roadway easements, mandatory membership, or mandatory assessments.
Key Issues & Findings
OAH jurisdiction over the dispute based on whether the Petitioner is a 'planned community.'
Petitioner alleged Respondent violated setback requirements in the Declaration of Restrictions (Section 5). Respondent moved for Judgment as a Matter of Law, arguing OAH lacked jurisdiction because Petitioner failed to prove it met the statutory definition of a 'planned community' under ARS § 33-1802(4).
Orders: Petitioner’s petition was denied. Respondent’s motion for a Judgment as a Matter of Law was granted. The matter was vacated and remanded to the Arizona Department of Real Estate (ADRE).
Filing fee: $500.00, Fee refunded: Yes
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092
ARIZ. ADMIN. CODE R2-19-111(4)
Analytics Highlights
Topics: HOA Dispute, Jurisdiction, Planned Community Definition, Setback Violation, Judgment as a Matter of Law, Voluntary Membership
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.05
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-111(4)
ARIZ. ADMIN. CODE R2-19-112
ARIZ. ADMIN. CODE R2-19-119
Video Overview
Audio Overview
Decision Documents
22F-H2222036-REL Decision – 958968.pdf
Uploaded 2026-01-23T17:45:40 (45.8 KB)
22F-H2222036-REL Decision – 962071.pdf
Uploaded 2026-01-23T17:45:43 (53.3 KB)
22F-H2222036-REL Decision – 966017.pdf
Uploaded 2026-01-23T17:45:47 (143.0 KB)
Study Guide – 22F-H2222036-REL
{ “case”: { “docket_no”: “22F-H2222036-REL”, “case_title”: “Camelback Del Este Homeowners Association, Inc. vs. Green Elephant Development LLC”, “decision_date”: “2022-04-29”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction over every type of homeowner association dispute?”, “short_answer”: “No, the Department only has jurisdiction over disputes involving a “planned community” as defined by statute.”, “detailed_answer”: “The ALJ decision clarifies that the Department’s jurisdiction is limited to disputes between an owner and a “planned community” association. If an association does not meet the statutory definition of a planned community, the administrative court cannot hear the case.”, “alj_quote”: “This matter falls outside the Department’s jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102, 32-2199”, “topic_tags”: [ “jurisdiction”, “planned community definition”, “administrative authority” ] }, { “question”: “What are the specific requirements for an association to be legally considered a ‘planned community’?”, “short_answer”: “A planned community must own/operate real estate (or maintain roadways) and have a declaration mandating membership and assessments.”, “detailed_answer”: “According to Arizona statute cited in the decision, a planned community requires three elements: 1) The association owns/operates real estate or holds easements to maintain roadways; 2) The declaration explicitly states owners are mandatory members; and 3) The declaration explicitly states owners are required to pay assessments.”, “alj_quote”: “a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation… and in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “legal definitions”, “planned community”, “assessments”, “mandatory membership” ] }, { “question”: “If my HOA membership is voluntary, can the HOA take me to an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings lacks authority over voluntary associations.”, “detailed_answer”: “If the evidence shows that membership is voluntary rather than mandatory, the association does not qualify as a planned community. Consequently, the administrative law judge must dismiss the case for lack of authority.”, “alj_quote”: “Because the evidence failed to establish, at a minimum, that the Association is a planned community, OAH does not have any authority to consider a dispute between the Association and Respondent”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199(2), 41-1092”, “topic_tags”: [ “voluntary membership”, “jurisdiction”, “dismissal” ] }, { “question”: “Who has the burden of proof in a hearing regarding an alleged violation?”, “short_answer”: “The Petitioner (the party filing the complaint) bears the burden of proof.”, “detailed_answer”: “The party bringing the action must prove their case by a preponderance of the evidence. This includes proving that the tribunal has jurisdiction and that the specific violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence first that this matter is properly before the OAH and then that Respondent violated Section 5 of the DECLARATION.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA need to provide actual measurements to prove a setback violation?”, “short_answer”: “Yes, specific evidence of the actual construction dimensions is required.”, “detailed_answer”: “The ALJ noted that the HOA failed to provide evidence that construction had factually taken place that exceeded the specific setback requirements (e.g., 7ft side, 20ft front). Without measurements or factual proof of the construction’s location relative to property lines, the violation cannot be established.”, “alj_quote”: “[N]o evidence was submitted to establish… that any construction has factually taken place… which exceeds the DECLARATION’S 7ft side setback and 20ft front setback property requirements.”, “legal_basis”: “Preponderance of the Evidence”, “topic_tags”: [ “evidence”, “setbacks”, “violations” ] }, { “question”: “Is an HOA considered a ‘planned community’ if it does not own any common areas?”, “short_answer”: “No, the association must own real estate or hold easements for maintaining roadways.”, “detailed_answer”: “A critical component of the legal definition of a planned community is that the association must own and operate real estate or hold specific maintenance easements. Failure to prove this ownership prevents the association from being classified as a planned community under the statute.”, “alj_quote”: “Petitioner failed to present any evidence that it owns and operates any real estate, or that it has an easement or covenant to maintain roadways.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “common areas”, “property ownership”, “planned community definition” ] }, { “question”: “What is the standard of proof used in these administrative hearings?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is whether the contention is more probably true than not. This is described as the greater weight of the evidence or superior evidentiary weight.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)”, “topic_tags”: [ “legal standards”, “preponderance of evidence” ] } ] }
Blog Post – 22F-H2222036-REL
{ “case”: { “docket_no”: “22F-H2222036-REL”, “case_title”: “Camelback Del Este Homeowners Association, Inc. vs. Green Elephant Development LLC”, “decision_date”: “2022-04-29”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction over every type of homeowner association dispute?”, “short_answer”: “No, the Department only has jurisdiction over disputes involving a “planned community” as defined by statute.”, “detailed_answer”: “The ALJ decision clarifies that the Department’s jurisdiction is limited to disputes between an owner and a “planned community” association. If an association does not meet the statutory definition of a planned community, the administrative court cannot hear the case.”, “alj_quote”: “This matter falls outside the Department’s jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102, 32-2199”, “topic_tags”: [ “jurisdiction”, “planned community definition”, “administrative authority” ] }, { “question”: “What are the specific requirements for an association to be legally considered a ‘planned community’?”, “short_answer”: “A planned community must own/operate real estate (or maintain roadways) and have a declaration mandating membership and assessments.”, “detailed_answer”: “According to Arizona statute cited in the decision, a planned community requires three elements: 1) The association owns/operates real estate or holds easements to maintain roadways; 2) The declaration explicitly states owners are mandatory members; and 3) The declaration explicitly states owners are required to pay assessments.”, “alj_quote”: “a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation… and in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “legal definitions”, “planned community”, “assessments”, “mandatory membership” ] }, { “question”: “If my HOA membership is voluntary, can the HOA take me to an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings lacks authority over voluntary associations.”, “detailed_answer”: “If the evidence shows that membership is voluntary rather than mandatory, the association does not qualify as a planned community. Consequently, the administrative law judge must dismiss the case for lack of authority.”, “alj_quote”: “Because the evidence failed to establish, at a minimum, that the Association is a planned community, OAH does not have any authority to consider a dispute between the Association and Respondent”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199(2), 41-1092”, “topic_tags”: [ “voluntary membership”, “jurisdiction”, “dismissal” ] }, { “question”: “Who has the burden of proof in a hearing regarding an alleged violation?”, “short_answer”: “The Petitioner (the party filing the complaint) bears the burden of proof.”, “detailed_answer”: “The party bringing the action must prove their case by a preponderance of the evidence. This includes proving that the tribunal has jurisdiction and that the specific violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence first that this matter is properly before the OAH and then that Respondent violated Section 5 of the DECLARATION.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA need to provide actual measurements to prove a setback violation?”, “short_answer”: “Yes, specific evidence of the actual construction dimensions is required.”, “detailed_answer”: “The ALJ noted that the HOA failed to provide evidence that construction had factually taken place that exceeded the specific setback requirements (e.g., 7ft side, 20ft front). Without measurements or factual proof of the construction’s location relative to property lines, the violation cannot be established.”, “alj_quote”: “[N]o evidence was submitted to establish… that any construction has factually taken place… which exceeds the DECLARATION’S 7ft side setback and 20ft front setback property requirements.”, “legal_basis”: “Preponderance of the Evidence”, “topic_tags”: [ “evidence”, “setbacks”, “violations” ] }, { “question”: “Is an HOA considered a ‘planned community’ if it does not own any common areas?”, “short_answer”: “No, the association must own real estate or hold easements for maintaining roadways.”, “detailed_answer”: “A critical component of the legal definition of a planned community is that the association must own and operate real estate or hold specific maintenance easements. Failure to prove this ownership prevents the association from being classified as a planned community under the statute.”, “alj_quote”: “Petitioner failed to present any evidence that it owns and operates any real estate, or that it has an easement or covenant to maintain roadways.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “common areas”, “property ownership”, “planned community definition” ] }, { “question”: “What is the standard of proof used in these administrative hearings?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is whether the contention is more probably true than not. This is described as the greater weight of the evidence or superior evidentiary weight.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)”, “topic_tags”: [ “legal standards”, “preponderance of evidence” ] } ] }
Case Participants
Petitioner Side
Robert Chiffelle(HOA President/Petitioner Rep/Witness) Camelback Del Este Homeowners Association, Inc. Also referred to as Bob Chappelle.
Jeremy Lyons(HOA Treasurer/Observer) Camelback Del Este Homeowners Association, Inc. Also referred to as Mr. Lions; submitted the petition on behalf of Petitioner.
Missy Lopez(Observer) Camelback Del Este Homeowners Association, Inc.
Dr. B. Paul Scott(Architectural Committee member/Observer) Camelback Del Este Homeowners Association, Inc.
Mike Goldwater(Previous HOA President) Camelback Del Este Homeowners Association, Inc.
Respondent Side
Ronald E. Huser(Respondent Attorney) Huser Law Firm
Bryant Aplass(Respondent Co-Owner/Director/Witness) Green Elephant Development LLC Co-owner and member; also referred to as Bryant Alpass/Applas; role listed as Director of Business Development.
Cody Sperber(Respondent President/Witness) Green Elephant Development LLC Also referred to as Cody Fergburgger.
Garrett Schmidt(Respondent Rep/Witness) Green Elephant Development LLC
Reggie Martinez(Witness) Green Elephant Development LLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Louis Dettorre(Commissioner) Arizona Department of Real Estate
c. serrano(Legal Staff) Office of Administrative Hearings Transmitted Minute Entries.
Miranda Alvarez(Legal Secretary) Office of Administrative Hearings Transmitted ALJ Decision.
The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.
Why this result: Petitioner failed to meet the burden of proof; the argument was not ripe and predicated on actions that have yet to occur.
Key Issues & Findings
Change in Use of Common Area
Petitioner alleged that the Association violated Article 6.7 by modifying renovation plans for the Activity Center's coffee bar to include the sale of alcoholic beverages (cafe wine bar) without the requisite 60% membership vote, arguing this converted common area into a restricted commercial bar.
Orders: Petitioners' petition is 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. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
5th Amended Master Declaration Article 6.7
Analytics Highlights
Topics: HOA, Master Declaration, Change of Use, Common Area, Liquor License, Renovation, Ripeness, Cafe Wine Bar
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. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2221011-REL Decision – 935334.pdf
Uploaded 2026-01-23T17:40:43 (49.3 KB)
22F-H2221011-REL Decision – 956246.pdf
Uploaded 2026-01-23T17:40:48 (138.2 KB)
Questions
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
procedure
Question
How much evidence is required to win a case against an HOA?
Short Answer
A preponderance of the evidence.
Detailed Answer
The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
Topic Tags
evidence
legal standards
Question
Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?
Short Answer
Generally, no. The dispute must be 'ripe' and not theoretical.
Detailed Answer
Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.
Alj Quote
The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.
Legal Basis
Ripeness Doctrine
Topic Tags
ripeness
future violations
construction
Question
Can the Administrative Law Judge order an injunction to stop the HOA from doing something?
Short Answer
No, injunctive relief is unavailable in this administrative process.
Detailed Answer
The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.
Alj Quote
Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.
Legal Basis
Administrative Hearing Limits
Topic Tags
injunctions
remedies
legal relief
Question
Does a renovation of a common area facility automatically count as a 'substantial change in use'?
Short Answer
Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.
Detailed Answer
Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.
Alj Quote
Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.
Legal Basis
Master Declaration Article 6.7 (cited in decision)
Topic Tags
common areas
renovations
change of use
Question
Is the decision made by the Administrative Law Judge final and binding?
Short Answer
Yes, unless a rehearing is granted.
Detailed Answer
The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(B)
Topic Tags
appeals
binding order
procedure
Case
Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
procedure
Question
How much evidence is required to win a case against an HOA?
Short Answer
A preponderance of the evidence.
Detailed Answer
The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
Topic Tags
evidence
legal standards
Question
Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?
Short Answer
Generally, no. The dispute must be 'ripe' and not theoretical.
Detailed Answer
Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.
Alj Quote
The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.
Legal Basis
Ripeness Doctrine
Topic Tags
ripeness
future violations
construction
Question
Can the Administrative Law Judge order an injunction to stop the HOA from doing something?
Short Answer
No, injunctive relief is unavailable in this administrative process.
Detailed Answer
The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.
Alj Quote
Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.
Legal Basis
Administrative Hearing Limits
Topic Tags
injunctions
remedies
legal relief
Question
Does a renovation of a common area facility automatically count as a 'substantial change in use'?
Short Answer
Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.
Detailed Answer
Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.
Alj Quote
Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.
Legal Basis
Master Declaration Article 6.7 (cited in decision)
Topic Tags
common areas
renovations
change of use
Question
Is the decision made by the Administrative Law Judge final and binding?
Short Answer
Yes, unless a rehearing is granted.
Detailed Answer
The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(B)
Topic Tags
appeals
binding order
procedure
Case
Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John J Balaco(petitioner)
Diane Paton(witness)
James Gearhart(helper / observer) Assisted Petitioner with documents; observed hearing
Respondent Side
Nicholas Nogami(attorney) Carpenter Hazlewood Delgado & Bolen LLP Counsel for Respondent
Sami Farhat(attorney) Carpenter Hazlewood Delgado & Bolen LLP Counsel for Respondent
Mark Wade(general manager / witness)
Randall Jean Trenary(controller / witness) Liquor license agent
James Henry Mitchell(witness) Also referred to as Jim Mitchell or Randall James Mitchell
Neutral Parties
Jenna Clark(ALJ) OAH
Louis Dettorre(Commissioner) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate Contact for appeal procedure
c. serrano(OAH staff) OAH Transmitter of Minute Entry
Miranda Alvarez(OAH staff) OAH Transmitter of ALJ Decision
