Case Summary
| Case ID | 22F-H2222044-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-07-29 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | David G. Iadevavia | Counsel | — |
|---|---|---|---|
| Respondent | Ventana Shadows Homeowners Association, Inc. | Counsel | Carolyn B. Goldschmidt, Esq. |
Alleged Violations
CC&R Section 2.16
Outcome Summary
The HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against Petitioner regarding his mobile observatory.
Why this result: Petitioner failed to prove that the mobile observatory was not a trailer under the plain and obvious meaning of CC&R Section 2.16, or that the HOA's enforcement constituted illegal selective enforcement.
Key Issues & Findings
Selective enforcement of CC&R Section 2.16 regarding vehicles/trailers.
Petitioner alleged that the HOA selectively enforced CC&R Section 2.16 (regarding parking/vehicles/trailers) against him concerning his 'mobile observatory' while failing to enforce the rule or similar rules against other homeowners (sheds).
Orders: The Administrative Law Judge determined that the HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against the Petitioner.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- Arizona Biltmore Estates vs. TZAC, 868 T2 1030
- Arizona Biltmore Estates vs. TZAC, 177 Arizona 47
- Burke versus Voice Screen Wireless Corporation, 87P381
- Burke versus Voice Screen Wireless Corporation, 207 Arizona 393
- Restatement (Third) of Property: Servitudes § 6.13(1)(b),(c) (2000)
- A.R.S. §32-2199.02(B)
- A.R.S. § 41-1092.09
- A.R.S. § 41-1092.08(H)
- A.R.S. § 12-904(A)
- A.R.S. 41-1092.07
- A.A.C. R2-19-106(D)
- A.A.C. R2-19-113(A)(3) and (4)
- A.A.C. R2-19-116
Analytics Highlights
- CC&R Section 2.16
- Restatement (Third) of Property: Servitudes
- Arizona Biltmore Estates vs. TZAC
- Burke versus Voice Screen Wireless Corporation
Video Overview
Audio Overview
Decision Documents
22F-H2222044-REL Decision – 973802.pdf
22F-H2222044-REL Decision – 974694.pdf
22F-H2222044-REL Decision – 975118.pdf
22F-H2222044-REL Decision – 977059.pdf
22F-H2222044-REL Decision – 977202.pdf
22F-H2222044-REL Decision – 977294.pdf
22F-H2222044-REL Decision – 978417.pdf
22F-H2222044-REL Decision – 978990.pdf
22F-H2222044-REL Decision – 978991.pdf
22F-H2222044-REL Decision – 979005.pdf
22F-H2222044-REL Decision – 982403.pdf
22F-H2222044-REL Decision – 993469.pdf
Questions
Question
Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?
Short Answer
No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.
Detailed Answer
The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.
Alj Quote
This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.
Legal Basis
CC&R Interpretation
Topic Tags
- CC&R Violations
- HOA Obligations
- Legal Standards
Question
Am I entitled to a rebuttal closing argument after the hearing record closes?
Short Answer
No. Rebuttal closing arguments are generally not permitted under OAH rules.
Detailed Answer
Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.
Alj Quote
Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.
Legal Basis
Arizona Administrative Code R2-19-116
Topic Tags
- Hearing Procedures
- Homeowner Rights
- Closing Arguments
Question
Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?
Short Answer
The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.
Detailed Answer
In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.
Alj Quote
IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.
Legal Basis
Jurisdiction
Topic Tags
- Jurisdiction
- Amending Claims
- Fairness
Question
Will my request for a subpoena automatically be granted?
Short Answer
No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.
Detailed Answer
A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.
Alj Quote
IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).
Legal Basis
Arizona Administrative Code R2-19-113
Topic Tags
- Evidence
- Subpoenas
- Procedural Requirements
Question
Does the filing fee cover multiple unrelated issues in my petition?
Short Answer
No. The filing fee is tied to the number of issues; additional issues require additional payment.
Detailed Answer
If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.
Alj Quote
With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.
Legal Basis
Filing Fees
Topic Tags
- Filing Fees
- Petition Process
- Costs
Question
Can the hearing be conducted virtually instead of in person?
Short Answer
Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.
Detailed Answer
The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.
Alj Quote
IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet
Legal Basis
Hearing Procedures
Topic Tags
- Virtual Hearing
- Accessibility
- Procedure
Case
- Docket No
- 22F-H2222044-REL
- Case Title
- David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
- Decision Date
- 2022-07-08
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?
Short Answer
No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.
Detailed Answer
The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.
Alj Quote
This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.
Legal Basis
CC&R Interpretation
Topic Tags
- CC&R Violations
- HOA Obligations
- Legal Standards
Question
Am I entitled to a rebuttal closing argument after the hearing record closes?
Short Answer
No. Rebuttal closing arguments are generally not permitted under OAH rules.
Detailed Answer
Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.
Alj Quote
Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.
Legal Basis
Arizona Administrative Code R2-19-116
Topic Tags
- Hearing Procedures
- Homeowner Rights
- Closing Arguments
Question
Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?
Short Answer
The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.
Detailed Answer
In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.
Alj Quote
IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.
Legal Basis
Jurisdiction
Topic Tags
- Jurisdiction
- Amending Claims
- Fairness
Question
Will my request for a subpoena automatically be granted?
Short Answer
No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.
Detailed Answer
A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.
Alj Quote
IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).
Legal Basis
Arizona Administrative Code R2-19-113
Topic Tags
- Evidence
- Subpoenas
- Procedural Requirements
Question
Does the filing fee cover multiple unrelated issues in my petition?
Short Answer
No. The filing fee is tied to the number of issues; additional issues require additional payment.
Detailed Answer
If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.
Alj Quote
With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.
Legal Basis
Filing Fees
Topic Tags
- Filing Fees
- Petition Process
- Costs
Question
Can the hearing be conducted virtually instead of in person?
Short Answer
Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.
Detailed Answer
The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.
Alj Quote
IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet
Legal Basis
Hearing Procedures
Topic Tags
- Virtual Hearing
- Accessibility
- Procedure
Case
- Docket No
- 22F-H2222044-REL
- Case Title
- David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
- Decision Date
- 2022-07-08
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- David G. Iadevavia (petitioner)
- Jill H. Perrella (attorney)
Snell & Wilmer LLP
Respondent Side
- Carolyn B. Goldschmidt (HOA attorney)
Goldschmidt | Shupe, PLLC - Bill Borg (witness/board member)
- Jason Bader (witness/board member)
Neutral Parties
- Velva Moses-Thompson (ALJ)
- Louis Dettorre (Commissioner)
Arizona Department of Real Estate - c. serrano (OAH staff)
- M Alvarez (OAH staff)
- A. Hansen (ADRE staff)
Arizona Department of Real Estate - V. Nunez (ADRE staff)
Arizona Department of Real Estate - D. Jones (ADRE staff)
Arizona Department of Real Estate - L. Abril (ADRE staff)
Arizona Department of Real Estate
Other Participants
- Rick Abbott (spectator)
