Tag Archives: 2023

John R Ashley v. Rancho Reyes II Community Association, INC

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Case Summary

Case ID 23F-H058-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-04
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed Petitioner John R. Ashley's petition against Rancho Reyes II Community Association, Inc. The ALJ found that the HOA did not violate the Bylaws regarding the minimum number of directors because compliance was impossible due to lack of member interest, and the issue was subsequently moot as the board currently met the minimum requirement.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John R. Ashley Counsel —
Respondent Rancho Reyes II Community Association, INC Counsel James Brewer, Esq.

Alleged Violations

Article IV, Section 1 of the Bylaws

Outcome Summary

The Administrative Law Judge dismissed Petitioner John R. Ashley's petition against Rancho Reyes II Community Association, Inc. The ALJ found that the HOA did not violate the Bylaws regarding the minimum number of directors because compliance was impossible due to lack of member interest, and the issue was subsequently moot as the board currently met the minimum requirement.

Why this result: Petitioner failed to provide sufficient evidence to rebut Respondent’s claim that it actively sought a third board member. The Respondent was exonerated under the legal doctrine of impossibility of performance, and the current compliance with the three-member minimum rendered the dispute moot.

Key Issues & Findings

Alleged violation regarding the minimum number of Board Directors

Petitioner alleged Respondent violated Article IV, Section 1 of the Bylaws by having only two Board Directors dismiss and order a redo of the 1/9/2023 Annual Membership Meeting for 3/7/2023, arguing that three directors were required to properly handle the Association’s affairs.

Orders: The petition is dismissed. Respondent was unable to comply with the Bylaws requiring three directors due to impossibility (lack of member interest) while actively seeking compliance, and the dispute is currently moot as the board now has three or more members.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. §§ 33-1801 to 33-1818
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • Garner v. Ellingson, 18 Ariz. 181, 182 (App. 1972)
  • Whelan v. Griffith Consumers Company, 170 A.2d 229, 230 (D.C. App., 1961)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Assân v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: impossibility of performance, board structure, election dispute, bylaw violation, Planned Communities Act, mootness
Additional Citations:

  • A.R.S. §§ 33-1801 to 33-1818
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • Garner v. Ellingson, 18 Ariz. 181, 182 (App. 1972)
  • Whelan v. Griffith Consumers Company, 170 A.2d 229, 230 (D.C. App., 1961)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Assân v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

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Video Overview

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Decision Documents

23F-H058-REL Decision – 1075520.pdf

Uploaded 2026-04-24T12:11:40 (45.8 KB)

23F-H058-REL Decision – 1078604.pdf

Uploaded 2026-04-24T12:11:43 (47.9 KB)

23F-H058-REL Decision – 1078608.pdf

Uploaded 2026-04-24T12:11:46 (5.5 KB)

23F-H058-REL Decision – 1099484.pdf

Uploaded 2026-04-24T12:11:49 (104.5 KB)

23F-H058-REL Decision – 1075520.pdf

Uploaded 2026-01-23T17:58:49 (45.8 KB)

23F-H058-REL Decision – 1078604.pdf

Uploaded 2026-01-23T17:58:52 (47.9 KB)

23F-H058-REL Decision – 1078608.pdf

Uploaded 2026-01-23T17:58:56 (5.5 KB)

23F-H058-REL Decision – 1099484.pdf

Uploaded 2026-01-23T17:59:01 (104.5 KB)

This summary addresses the administrative hearing held on September 14, 2023, in the matter of John R. Ashley v. Rancho Reyes II Community Association, INC (No. 23F-H058-REL).

Key Facts and Main Issues

Petitioner John R. Ashley challenged the actions of the Rancho Reyes II Community Association (Respondent). The sole issue of the hearing was whether the Respondent violated Article IV, Section 1 of the Community Bylaws. This bylaw requires the affairs of the Association to be managed by "not less than three (3) nor more than nine (9) directors".

The violation Petitioner alleged was that two sitting Board Directors (Sherry Ortega and Maria Ruelas) acted alone (on or about January 19, 2023) in dismissing the results of the January 2023 Annual Membership Meeting and ordering a redo election for March 7, 2023, when at least three directors were required to handle Association affairs. It was established that the Board operated with only two members from late 2021 until the March 2023 election.

The January 2023 election, in which five members were elected, was invalidated by the two existing board members after the community manager suspected fraud and irregularities (including stuffed ballots, improper envelopes, and an elected candidate whose husband stated she did not submit her name and was not fluent in English).

Key Arguments

Petitioner's Argument: Petitioner argued the decision to redo the election was invalid because it was made by fewer than three directors, thus violating the Bylaw. Petitioner also contended that the two directors (Ortega and Ruelas) were not duly elected in 2022, asserting that there were effectively zero legal board members when the re-election was ordered. Petitioner further argued that the Respondent's claims of fraud were "non-existent" under ARS title 33, Section 1812, because the board was responsible for approving returned ballots prior to the meeting.

Respondent's Legal Defense: Respondent asserted that operating with only two members was due to impossibility or impracticability of performance. Respondent argued that it actively sought a third board member, but homeowners were not interested in serving. Respondent relied on Arizona case law, stating that "when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated" (*Garner v. Ellingson*). The Respondent maintained that the re-election was necessary due to the severe irregularities in the January vote.

Outcome and Legal Decision

On October 4, 2023, Administrative Law Judge Velva Moses-Thompson issued a decision dismissing the Petition.

The Administrative Law Judge (ALJ) concluded that Petitioner failed to meet the burden of proof to establish a violation by a preponderance of the evidence. The ALJ found that while the Bylaws required a minimum of three directors, the preponderance of the evidence showed that the Respondent actively sought a third member, and it was "unable to comply with Article IV, Section 1 of the Bylaws" due to lack of interest from members. The ALJ implicitly accepted the Respondent's defense that non-compliance was due to circumstances beyond the control of the parties.

Furthermore, the ALJ noted that the Association currently has at least three duly elected board members (elected in March 2023), meaning the issue of Bylaw compliance "is no longer in dispute". Based on the impossibility defense and the resolution of the current dispute regarding board size, the Petition was ordered dismissed.

Questions

Question

Can my HOA be penalized for having fewer than the required number of board members if no one volunteers to serve?

Short Answer

Likely not. If the HOA actively seeks candidates but no one steps up, they may be exonerated due to 'impossibility of performance.'

Detailed Answer

The decision establishes that if an HOA board is understaffed (e.g., 2 members when bylaws require 3) because homeowners refuse to volunteer despite recruitment efforts, the HOA is not held liable. The legal principle of 'impossibility' applies when circumstances beyond the parties' control prevent compliance with the bylaws.

Alj Quote

It is well settled that when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated.

Legal Basis

Contract Law Principles (Garner v. Ellingson); Bylaws Article IV, Section 1

Topic Tags

  • Board Composition
  • Impossibility Defense
  • Bylaws

Question

If my HOA has already fixed a violation by the time of the hearing, can I still get a ruling against them?

Short Answer

No. If the HOA comes into compliance before the decision is made, the dispute may be considered resolved and the petition dismissed.

Detailed Answer

In this case, the homeowner sued because the board had too few members. However, by the time of the hearing, a full board had been elected. The judge dismissed the petition because the violation was no longer active and compliance was not in dispute.

Alj Quote

Accordingly, because the preponderance of the evidence has shown that Respondent was unable to comply with Article IV, Section 1 of the Bylaws and compliance with Article IV, Section 1 of the Bylaws is no longer in dispute, the Petition must be dismissed.

Legal Basis

Mootness

Topic Tags

  • Procedural
  • Mootness
  • Dismissal

Question

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

Short Answer

The homeowner (Petitioner) has the burden to prove the violation occurred.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated Article IV, Section 1 of its Bylaws, by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Hearing Procedures

Question

What counts as 'preponderance of the evidence' in an HOA dispute?

Short Answer

Evidence that makes a claim 'more probably true than not.'

Detailed Answer

It is not about the quantity of witnesses, but the convincing force of the evidence. It must be sufficient to incline a fair mind to one side over the other.

Alj Quote

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

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Evidence
  • Legal Definitions

Question

How are HOA bylaws and restrictive covenants interpreted by the judge?

Short Answer

They are interpreted to support the intent of the parties and the underlying purpose of the document.

Detailed Answer

The judge will look at the documents as a whole rather than isolating a single sentence, ensuring that the interpretation gives effect to the intended purpose of the rules.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Contract Interpretation Principles (Powell v. Washburn)

Topic Tags

  • CC&R Interpretation
  • Bylaws

Question

Can an HOA board order a new election if they suspect fraud in the previous one?

Short Answer

Yes, this action was accepted in the context of this decision.

Detailed Answer

The decision notes that the community manager and board members decided to hold a new election after consulting with an attorney regarding suspected fraudulent tactics and unfair processes in the initial election.

Alj Quote

Respondent’s community manager suspected that the election was not a fair process and that certain individuals used fraudulent tactics to influence the election. After consulting with Respondent’s attorney, the community manager along with Ms. Ortega decided to hold a new election in March of 2023.

Legal Basis

Board Authority

Topic Tags

  • Elections
  • Fraud
  • Board Powers

Case

Docket No
23F-H058-REL
Case Title
John R. Ashley v. Rancho Reyes II Community Association, Inc.
Decision Date
2023-10-04
Alj Name
Velva Moses-Thompson
Tribunal
Office of Administrative Hearings
Agency
Arizona Department of Real Estate

Questions

Question

Can my HOA be penalized for having fewer than the required number of board members if no one volunteers to serve?

Short Answer

Likely not. If the HOA actively seeks candidates but no one steps up, they may be exonerated due to 'impossibility of performance.'

Detailed Answer

The decision establishes that if an HOA board is understaffed (e.g., 2 members when bylaws require 3) because homeowners refuse to volunteer despite recruitment efforts, the HOA is not held liable. The legal principle of 'impossibility' applies when circumstances beyond the parties' control prevent compliance with the bylaws.

Alj Quote

It is well settled that when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated.

Legal Basis

Contract Law Principles (Garner v. Ellingson); Bylaws Article IV, Section 1

Topic Tags

  • Board Composition
  • Impossibility Defense
  • Bylaws

Question

If my HOA has already fixed a violation by the time of the hearing, can I still get a ruling against them?

Short Answer

No. If the HOA comes into compliance before the decision is made, the dispute may be considered resolved and the petition dismissed.

Detailed Answer

In this case, the homeowner sued because the board had too few members. However, by the time of the hearing, a full board had been elected. The judge dismissed the petition because the violation was no longer active and compliance was not in dispute.

Alj Quote

Accordingly, because the preponderance of the evidence has shown that Respondent was unable to comply with Article IV, Section 1 of the Bylaws and compliance with Article IV, Section 1 of the Bylaws is no longer in dispute, the Petition must be dismissed.

Legal Basis

Mootness

Topic Tags

  • Procedural
  • Mootness
  • Dismissal

Question

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

Short Answer

The homeowner (Petitioner) has the burden to prove the violation occurred.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated Article IV, Section 1 of its Bylaws, by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Hearing Procedures

Question

What counts as 'preponderance of the evidence' in an HOA dispute?

Short Answer

Evidence that makes a claim 'more probably true than not.'

Detailed Answer

It is not about the quantity of witnesses, but the convincing force of the evidence. It must be sufficient to incline a fair mind to one side over the other.

Alj Quote

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

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Evidence
  • Legal Definitions

Question

How are HOA bylaws and restrictive covenants interpreted by the judge?

Short Answer

They are interpreted to support the intent of the parties and the underlying purpose of the document.

Detailed Answer

The judge will look at the documents as a whole rather than isolating a single sentence, ensuring that the interpretation gives effect to the intended purpose of the rules.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Contract Interpretation Principles (Powell v. Washburn)

Topic Tags

  • CC&R Interpretation
  • Bylaws

Question

Can an HOA board order a new election if they suspect fraud in the previous one?

Short Answer

Yes, this action was accepted in the context of this decision.

Detailed Answer

The decision notes that the community manager and board members decided to hold a new election after consulting with an attorney regarding suspected fraudulent tactics and unfair processes in the initial election.

Alj Quote

Respondent’s community manager suspected that the election was not a fair process and that certain individuals used fraudulent tactics to influence the election. After consulting with Respondent’s attorney, the community manager along with Ms. Ortega decided to hold a new election in March of 2023.

Legal Basis

Board Authority

Topic Tags

  • Elections
  • Fraud
  • Board Powers

Case

Docket No
23F-H058-REL
Case Title
John R. Ashley v. Rancho Reyes II Community Association, Inc.
Decision Date
2023-10-04
Alj Name
Velva Moses-Thompson
Tribunal
Office of Administrative Hearings
Agency
Arizona Department of Real Estate

Case Participants

Petitioner Side

  • John R. Ashley (petitioner)
    Represented himself
  • Rmulo Gonzalez (board member elect)
    Elected in March 2023 election; contested re-election procedures
  • James Canella (board member elect)
    Elected in January 2023 election; member of the community who desired to serve
  • Daniel Walker (board member elect)
    Elected in January 2023 election
  • Richard Springer (witness reference)
    Homeowner mentioned by Petitioner as willing to serve on the board
  • Charles Seers (witness reference)
    Homeowner mentioned by Petitioner as willing to serve on the board; name variations include Charles Zippers

Respondent Side

  • James Brewer (attorney)
    Tyson & Mendes, LLP
    Represented Respondent Rancho Reyes II Community Association
  • Leah M. McKeever (attorney)
    Tyson & Mendes, LLP
  • Lynn M. Allen (attorney)
    Tyson & Mendes, LLP
  • Sherry Ortega (board member)
    Rancho Reyes II Community Association
    Vice President since March 2023; President previously; testified for Respondent
  • Maria Ruelas (board member)
    Rancho Reyes II Community Association
    Director in 2022 until March 2023
  • Kimberly Schone (COO/witness)
    Mission Management (Community Manager)
    Chief Operating Officer, testified for Respondent
  • Ronda Raal (CEO/property manager)
    Mission Management (Community Manager)
    CEO of the management company
  • Sammy (assistant)
    Mission Management (Community Manager)
    Assistant who helped count ballots for January 2023 election; name variations include Tammy, Cammy, Samantha
  • Joy (manager)
    Mission Management (Community Manager)
    Manager during January 2023 election period
  • Jennifer (manager)
    Mission Management (Community Manager)
    Current manager of the account
  • Vince (management staff)
    Mission Management (Community Manager)
    Saw ballot video footage

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Also referred to as Fala Moses Thompson
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)
  • AHansen (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • VNunez (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • DJones (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • Labril (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents

Other Participants

  • Cordova Sapola (board member elect)
    Elected in March 2023 election; unresponsive and did not attend meetings
  • Eugenia Francisco (elected candidate)
    Elected in January 2023 election but refuted candidacy; name variations include Eugene Silva
  • Yolanda Molina (former board member)
    Former Treasurer; resigned December 2021
  • Mario Martinez (witness reference)
    Adam LMC
  • Diane (former property manager)
    First manager for the HOA around 2017-2018

John W Gray v. Mesa Coronado III Condominium Association

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Case Summary

Case ID 23F-H063-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-09-20
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner prevailed on Issue 2 (Records Requests violation), resulting in the refund of the $500 filing fee. Respondent prevailed on Issue 1 (Failure to Hold Meetings, found moot) and Issue 3 (Board Legitimacy, insufficient evidence). No civil penalty was imposed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John W. Gray Counsel —
Respondent Mesa Coronado III Condominium Association Counsel Chad M. Gallacher, Esq.

Alleged Violations

ARS § 33-1248(B), Bylaw Article 2.1
ARS § 33-1258, Bylaw Article 1.6
ARS § 33-1243(B), Bylaw Article 3.2

Outcome Summary

Petitioner prevailed on Issue 2 (Records Requests violation), resulting in the refund of the $500 filing fee. Respondent prevailed on Issue 1 (Failure to Hold Meetings, found moot) and Issue 3 (Board Legitimacy, insufficient evidence). No civil penalty was imposed.

Why this result: Petitioner lost Issue 1 because the failure to hold meetings was resolved and deemed moot. Petitioner lost Issue 3 due to insufficient evidence.

Key Issues & Findings

No meeting was held in 2020, 2021, or 2022

Petitioner alleged violation for failure to hold annual meetings in 2020, 2021, and 2022. The Board admitted meetings were not held due to the pandemic but held an annual meeting in 2023.

Orders: —

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARS § 33-1248(B)
  • Bylaw Article 2.1
  • ARS § 33-1250(C)

Petitioner has received no response to multiple requests for information

Petitioner made multiple requests for information and records (including meeting minutes from 2018-2023 and fire suppression invoices from 2014-2023). Respondent failed to provide copies of minutes from 2018-2019 and records related to the sprinkler system.

Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty (30) days and directed to comply with A.R.S. § 33-1258 and Bylaw Article 1.6 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARS § 33-1258
  • Bylaw Article 1.6

The people claiming to be the Board are not legitimate, not duly elected, and have appointed themselves to successive terms of office

Petitioner alleged the board members were illegitimate because annual meetings lacked quorum (2018, 2019) or were not held (2020-2022), leading directors to continue in office unlawfully.

Orders: —

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARS § 33-1243(B)
  • Bylaw Article 3.2
  • A.R.S. § 10-3805(E)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H063-REL Decision – 1081668.pdf

Uploaded 2026-04-24T12:13:14 (46.0 KB)

23F-H063-REL Decision – 1095241.pdf

Uploaded 2026-04-24T12:13:19 (143.2 KB)

23F-H063-REL Decision – 1081668.pdf

Uploaded 2026-01-23T17:59:50 (46.0 KB)

23F-H063-REL Decision – 1095241.pdf

Uploaded 2026-01-23T17:59:55 (143.2 KB)

This matter, *John W. Gray v Mesa Coronado III Condominium Association* (No. 23F-H063-REL), was heard before Administrative Law Judge (ALJ) Velva Moses-Thompson at the Office of Administrative Hearings (OAH) on August 31, 2023. The Petitioner, John W. Gray, alleged that the Mesa Coronado III Condominium Association violated Arizona Revised Statutes (A.R.S.) and its Bylaws across three issues.

Key Facts and Procedural History

The Petitioner, a unit owner, filed his petition on or about May 15, 2023. Prior to the hearing, the OAH denied the Petitioner’s motion for a Default Decision, noting that the Commissioner, not the OAH, holds jurisdiction for defaults based on failure to respond, and the Commissioner had already accepted the Respondent's response.

The Association admitted that it failed to hold annual board meetings in 2020, 2021, and 2022. Furthermore, prior meetings in 2018 and 2019 failed to achieve quorum. The Petitioner also made multiple requests for information and records (including meeting minutes and fire sprinkler system invoices dating back to 2014) which he contended were ignored or inadequately addressed.

Main Issues and Arguments

  1. Failure to Hold Annual Meetings (2020–2022) (A.R.S. § 33-1248(B) and Bylaw Article 2.1):
  • *Respondent's Argument:* The failure was due to the COVID-19 pandemic and related health concerns. The Association argued it should not be penalized for trying to cope with an unprecedented situation, noting the difficulty of holding mandatory in-person voting (A.R.S. § 33-1250(C)) during the crisis. A meeting was successfully held in July 2023.
  • *Petitioner's Argument:* The statutes and bylaws have no emergency exception. Meetings could have been conducted remotely or effectively via absentee ballot, which was already an accepted practice.
  1. Board Legitimacy (A.R.S. § 33-1243(B) and Bylaw Article 3.2):
  • *Respondent's Argument:* The directors’ continuation in office was required by operation of law, specifically the Bylaws (Article 3.2) and the Nonprofit Corporation Act (A.R.S. § 10-3805(E)). These provisions dictate that directors shall continue to hold office until a successor is elected and qualified, preventing a lapse in governance when quorum is not met due to owner apathy. The current board members were validly elected in July 2023.
  • *Petitioner's Argument:* The board improperly and unilaterally appointed themselves to successive terms for five years (2018–2022) by making only a single attempt at an annual election and failing to reschedule, largely due to cost concerns.
  1. Failure to Respond to Information Requests (A.R.S. § 33-1258 and Bylaw Article 1.6):
  • *Respondent's Argument:* Some requests were for information rather than formal records, and some requests (like the fire system invoices back to 2014) were extensive and time-consuming to compile. They admitted they were still working on producing these records. They also noted that meeting minutes for 2020-2022 did not exist because no meetings were held.
  • *Petitioner's Argument:* The law requires a timely response, which the Association failed to provide, constituting a violation of the Condo Act.

Final Decision and Outcome

The ALJ issued her decision on September 20, 2023.

  • Issue 1 (Annual Meetings): The ALJ ruled the issue was moot because an annual meeting was held in 2023. Respondent was deemed the prevailing party on Issue 1.
  • Issue 3 (Board Legitimacy): The Petitioner failed to establish by a preponderance of the evidence that the board members were not legitimate or duly elected, citing the legal principle allowing directors to hold office until successors are elected (A.R.S. § 10-3805(E)). Respondent was deemed the prevailing party on Issue 3.
  • Issue 2 (Records Requests): The ALJ found that the Respondent failed to provide copies of minutes for meetings held in 2018 and 2019, and records reques

Questions

Question

If my HOA fails to hold an annual meeting, do the current directors automatically lose their positions?

Short Answer

No. Directors typically continue to serve until a successor is elected or qualified.

Detailed Answer

The ALJ concluded that board members may serve successive terms and, in the absence of a new election (often due to lack of quorum), existing members continue to serve. The failure to hold a meeting does not automatically illegitimate the board.

Alj Quote

Directors of a non-profit organization may be elected for successive terms, unless otherwise provided for in the articles of incorporation or bylaws.

Legal Basis

A.R.S. § 10-3805(B)

Topic Tags

  • Board Legitimacy
  • Elections
  • Terms of Office

Question

Can I penalize my HOA for failing to hold meetings during a public health emergency like COVID-19?

Short Answer

Likely no, especially if the issue is resolved by the time of the hearing.

Detailed Answer

The ALJ found that failing to hold in-person meetings due to the pandemic was supported by the weight of evidence. Furthermore, because the HOA eventually held a meeting in 2023, the dispute regarding the missed meetings was considered moot.

Alj Quote

The weight of the evidence shows that the Board failed to hold in person board meetings from 2020 to 2022, due to the pandemic… Because there is no current dispute regarding the failure to hold an annual board meeting, the issue is now moot.

Legal Basis

Mootness Doctrine

Topic Tags

  • Meetings
  • COVID-19
  • Mootness

Question

Does the HOA have a valid excuse for not providing old meeting minutes if they claim they are hard to find?

Short Answer

No. The HOA must justify any failure to provide requested minutes.

Detailed Answer

The ALJ ruled against the HOA for failing to provide minutes from 2018 and 2019, noting that the HOA provided no evidence to justify this failure, despite arguments about the difficulty of production.

Alj Quote

Although there were no board meetings from 2020-2022, Respondent provide no evidence to justify its failure to provide copies of the minutes of Association meetings from 2018 to 2019.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Meeting Minutes
  • HOA Obligations

Question

If I win my case against the HOA regarding records requests, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this case, the Petitioner prevailed on the issue regarding records requests (Issue 2), and the ALJ ordered the Respondent to pay the Petitioner the $500 filing fee directly.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Filing Fees
  • Costs

Question

Is the HOA required to allow in-person voting even if they want to hold virtual meetings?

Short Answer

Yes, the law requires providing for votes to be cast in person.

Detailed Answer

The decision highlights that state law requires the Board to allow members to vote in person, which was a factor in why the Board did not hold virtual-only meetings during the pandemic.

Alj Quote

The Board was required by law to allow members to vote in person.

Legal Basis

A.R.S. § 33-1250(C)

Topic Tags

  • Voting
  • In-Person Requirements
  • Virtual Meetings

Question

What standard of proof do I need to meet to prove my HOA violated the law?

Short Answer

You must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden of proof lies with the Petitioner to show that their contention is more probably true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Association’s Bylaws and applicable statutes by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Evidence

Question

Can the HOA withhold records just because I didn't ask for them in a specific format?

Short Answer

The request must be for records/copies; a general inquiry for information might not trigger the statutory obligation.

Detailed Answer

The ALJ distinguished between requests for information (like names of directors) and requests to examine or copy specific records. The decision noted that some initial correspondence 'did not include a request to examine records or to make copies of records.'

Alj Quote

Mr. Gray’s attorney requested that the Board respond in within 30 days of receipt of the letter. However, the letter did not include a request to examine records or to make copies of records.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Procedural Requirements

Case

Docket No
23F-H063-REL
Case Title
John W. Gray v. Mesa Coronado III Condominium Association
Decision Date
2023-09-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA fails to hold an annual meeting, do the current directors automatically lose their positions?

Short Answer

No. Directors typically continue to serve until a successor is elected or qualified.

Detailed Answer

The ALJ concluded that board members may serve successive terms and, in the absence of a new election (often due to lack of quorum), existing members continue to serve. The failure to hold a meeting does not automatically illegitimate the board.

Alj Quote

Directors of a non-profit organization may be elected for successive terms, unless otherwise provided for in the articles of incorporation or bylaws.

Legal Basis

A.R.S. § 10-3805(B)

Topic Tags

  • Board Legitimacy
  • Elections
  • Terms of Office

Question

Can I penalize my HOA for failing to hold meetings during a public health emergency like COVID-19?

Short Answer

Likely no, especially if the issue is resolved by the time of the hearing.

Detailed Answer

The ALJ found that failing to hold in-person meetings due to the pandemic was supported by the weight of evidence. Furthermore, because the HOA eventually held a meeting in 2023, the dispute regarding the missed meetings was considered moot.

Alj Quote

The weight of the evidence shows that the Board failed to hold in person board meetings from 2020 to 2022, due to the pandemic… Because there is no current dispute regarding the failure to hold an annual board meeting, the issue is now moot.

Legal Basis

Mootness Doctrine

Topic Tags

  • Meetings
  • COVID-19
  • Mootness

Question

Does the HOA have a valid excuse for not providing old meeting minutes if they claim they are hard to find?

Short Answer

No. The HOA must justify any failure to provide requested minutes.

Detailed Answer

The ALJ ruled against the HOA for failing to provide minutes from 2018 and 2019, noting that the HOA provided no evidence to justify this failure, despite arguments about the difficulty of production.

Alj Quote

Although there were no board meetings from 2020-2022, Respondent provide no evidence to justify its failure to provide copies of the minutes of Association meetings from 2018 to 2019.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Meeting Minutes
  • HOA Obligations

Question

If I win my case against the HOA regarding records requests, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this case, the Petitioner prevailed on the issue regarding records requests (Issue 2), and the ALJ ordered the Respondent to pay the Petitioner the $500 filing fee directly.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Filing Fees
  • Costs

Question

Is the HOA required to allow in-person voting even if they want to hold virtual meetings?

Short Answer

Yes, the law requires providing for votes to be cast in person.

Detailed Answer

The decision highlights that state law requires the Board to allow members to vote in person, which was a factor in why the Board did not hold virtual-only meetings during the pandemic.

Alj Quote

The Board was required by law to allow members to vote in person.

Legal Basis

A.R.S. § 33-1250(C)

Topic Tags

  • Voting
  • In-Person Requirements
  • Virtual Meetings

Question

What standard of proof do I need to meet to prove my HOA violated the law?

Short Answer

You must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden of proof lies with the Petitioner to show that their contention is more probably true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Association’s Bylaws and applicable statutes by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Evidence

Question

Can the HOA withhold records just because I didn't ask for them in a specific format?

Short Answer

The request must be for records/copies; a general inquiry for information might not trigger the statutory obligation.

Detailed Answer

The ALJ distinguished between requests for information (like names of directors) and requests to examine or copy specific records. The decision noted that some initial correspondence 'did not include a request to examine records or to make copies of records.'

Alj Quote

Mr. Gray’s attorney requested that the Board respond in within 30 days of receipt of the letter. However, the letter did not include a request to examine records or to make copies of records.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Procedural Requirements

Case

Docket No
23F-H063-REL
Case Title
John W. Gray v. Mesa Coronado III Condominium Association
Decision Date
2023-09-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John W. Gray (petitioner)
    Mesa Coronado III Condominium Association (Member)
    Appeared on behalf of himself.
  • David Bacon (petitioner's attorney)
    Davis Ma Magcguire Gardner
    Wrote letter on behalf of Petitioner John W. Gray.

Respondent Side

  • Chad M. Gallacher (HOA attorney)
    HOALaw.biz
    Attorney for Mesa Coronado III Condominium Association.
  • Adriana Lacombe (Community Manager/Witness)
    Curtis Management
    Community Manager for Mesa Coronado III Condominium Association. Also referred to as Andrea Lome in testimony.
  • Jim Reid (property manager)
    Curtis Management
    Contact listed for Mesa Coronado III Condominium Association.
  • Rita Ali (board member/president)
    Mesa Coronado III Condominium Association
    Board President; reelected July 18, 2023.
  • Cassandra Miller (board member)
    Mesa Coronado III Condominium Association
    Appointed/elected board member.
  • Richard Randolph (board member)
    Mesa Coronado III Condominium Association
    Re-elected July 18, 2023.
  • Carl Fleming (former board member)
    Mesa Coronado III Condominium Association
    Moved out, creating a vacancy.
  • Derek Blackman (former board member/president)
    Mesa Coronado III Condominium Association
    Sold unit in 2016.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.

Other Participants

  • Andrea West (proposed board member)
    Mesa Coronado III Condominium Association (Member)
    Requested appointment to the board in 2018; presence noted by Petitioner at 2018 meeting.
  • Jennifer Dulick (homeowner/member)
    Mesa Coronado III Condominium Association (Member)
    Attended 2018 annual meeting attempt.

Charlotte Tande v. Wintergardens Co-Operative

Posted on by

Case Summary

Case ID 23F-H059-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-09-05
Administrative Law Judge Tammy L. Eigenheer
Outcome The case was dismissed because the Administrative Law Judge determined the Wintergardens Co-Operative, a cooperative mobile home park, did not qualify as a 'planned community' or 'condominium association' under Title 33, Chapter 9 or 16, thus the Arizona Department of Real Estate lacked jurisdiction to hear the dispute.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charlotte Tande Counsel —
Respondent Wintergardens Co-Operative Counsel Beth Mulcahy, Esq.

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1810

Outcome Summary

The case was dismissed because the Administrative Law Judge determined the Wintergardens Co-Operative, a cooperative mobile home park, did not qualify as a 'planned community' or 'condominium association' under Title 33, Chapter 9 or 16, thus the Arizona Department of Real Estate lacked jurisdiction to hear the dispute.

Why this result: The Respondent was found not to be a 'Planned Community' because its shareholders were lessees, not owners of 'separately owned lots, parcels or units' as required by A.R.S. § 33-1802(4).

Key Issues & Findings

Open Meeting Requirements

Petitioner alleged Respondent failed to comply with the open meeting requirements of A.R.S. § 33-1804.

Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.

Filing fee: $0.00

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1802(4)
  • A.R.S. § 32-2199.01(A)

Financial Records Provision

Petitioner alleged Respondent failed to provide certain financial records as required by A.R.S. § 33-1810.

Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.

Filing fee: $0.00

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1810
  • A.R.S. § 33-1802(4)
  • A.R.S. § 32-2199.01(A)

Video Overview

Audio Overview

Decision Documents

23F-H059-REL Decision – 1074375.pdf

Uploaded 2026-04-24T12:11:59 (45.4 KB)

23F-H059-REL Decision – 1089824.pdf

Uploaded 2026-04-24T12:12:05 (83.6 KB)

23F-H059-REL Decision – 1089829.pdf

Uploaded 2026-04-24T12:12:12 (40.0 KB)

23F-H059-REL Decision – 1091579.pdf

Uploaded 2026-04-24T12:12:23 (38.0 KB)

23F-H059-REL Decision – 1074375.pdf

Uploaded 2026-01-23T17:59:07 (45.4 KB)

23F-H059-REL Decision – 1089824.pdf

Uploaded 2026-01-23T17:59:10 (83.6 KB)

23F-H059-REL Decision – 1089829.pdf

Uploaded 2026-01-23T17:59:13 (40.0 KB)

23F-H059-REL Decision – 1091579.pdf

Uploaded 2026-01-23T17:59:17 (38.0 KB)

This summary details the proceedings, key arguments, and final decision in the case of *Charlotte Tande vs. Wintergardens Co-Operative*, No. 23F-H059-REL, heard before the Office of Administrative Hearings (OAH).

Key Facts and Procedural History

The Petitioner, Charlotte Tande, is a shareholder and lessee of a property within the Respondent, Wintergardens Co-Operative, a non-profit corporation operating a cooperative mobile home and R.V. Park in Yuma, Arizona. Petitioner filed a two-issue petition with the Arizona Department of Real Estate (Department) alleging the Respondent failed to comply with: 1) open meeting requirements (A.R.S. § 33-1804), and 2) the requirement to provide certain financial records (A.R.S. § 33-1810). The Department referred the petition to the OAH for an evidentiary hearing.

Main Issues and Arguments

The central legal issue was whether the Wintergardens Co-Operative was subject to the provisions of the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16).

  1. Respondent's Position: Wintergardens Co-Operative filed a Motion to Dismiss arguing that it is not a "Planned Community" as defined in A.R.S. § 33-1802(4). Respondent asserted that its shareholders are lessees under a Proprietary Lease, not owners of "separately owned lots, parcels or units," which is a requirement for a Planned Community designation.
  2. Petitioner's Position: Petitioner argued in response that Wintergardens was a "Planned Community" and was therefore required to comply with the relevant statutes. Petitioner asserted that shareholders were "Lessees and OWNERS under a proprietary Lease," although she did not identify what the shareholders owned other than a share of the co-operative.

Key Legal Points and Outcome

The Administrative Law Judge (ALJ) reviewed the Motion, Response, and Reply.

The statutes granting the Department and OAH jurisdiction (A.R.S. § 32-2199.01(A)) are limited to hearing disputes between an owner and a condominium association or a planned community association. Therefore, for the OAH to have jurisdiction, the Respondent had to qualify as one of these entities.

The ALJ analyzed the definition of a "Planned Community" (A.R.S. § 33-1802(4)), which explicitly requires that the declaration state that the owners of separately owned lots, parcels or units are mandatory members. The ALJ concluded that, while shareholders may own a share of the co-operative entity, nothing in the pleadings indicated they were owners of any "separately owned lots, parcels or units".

Conclusion of Law: The ALJ determined that Respondent’s cooperative does not fall within the definition of a planned community because its purposes and functions are separate and distinct.

Final Decision: Because Wintergardens Co-Operative does not meet the definition of a planned community, the Department lacked jurisdiction to hear the dispute between the Petitioner and the Respondent. The Order granted the Respondent’s Motion to Dismiss, and the scheduled hearing was vacated from the calendar. This Order, issued September 5, 2023, is binding unless a rehearing is requested within 30 days.

{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… 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”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }

{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… 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”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }

Case Participants

Petitioner Side

  • Charlotte Tande (petitioner)

Respondent Side

  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, PC
    Esq.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Signed Orders dated July 18, 2023 and September 5, 2023
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Alyssa Leverette (ALJ)
    Office of Administrative Hearings
    Signed Minute Entry granting continuance dated September 5, 2023
  • AHansen (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions
  • vnunez (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions
  • djones (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions
  • labril (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions

R.L. Whitmer v. Hilton Casitas Council of Homeowners (ROOT)

Posted on by

Case Summary

Case ID 23F-H052-REL No. 23F-H064-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-28
Administrative Law Judge Brian Del Vecchio
Outcome 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.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas Council of Homeowners Counsel Emily H. Mann

Alleged Violations

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
Additional Citations:

  • ARIZ. REV. STAT. § 33-1250(C)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09

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Video Overview

Audio Overview

Decision Documents

23F-H052-REL Decision – 1071110.pdf

Uploaded 2026-04-24T12:09:14 (50.2 KB)

23F-H052-REL Decision – 1071477.pdf

Uploaded 2026-04-24T12:09:19 (58.2 KB)

23F-H052-REL Decision – 1074907.pdf

Uploaded 2026-04-24T12:09:22 (40.0 KB)

23F-H052-REL Decision – 1088736.pdf

Uploaded 2026-04-24T12:09:25 (113.8 KB)

This summary outlines the proceedings, arguments, and final decision in the consolidated matters of R.L. Whitmer, Petitioner, v. Hilton Casitas Council of Homeowners, Respondent (Nos. 23F-H052-REL and 23F-H064-REL). The hearing took place at the Office of Administrative Hearings (OAH) on August 11, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The consolidated case involved two separate petitions filed by Petitioner R.L. Whitmer, an owner and member of the Association.

  1. Late Annual Meeting (23F-H052-REL): Alleged the Association failed to hold the 2023 Annual Meeting by March 31st, violating Article III Section 3 of the Bylaws, as the meeting was held on April 27, 2023.
  2. In-Person Voting (23F-H064-REL): Alleged the Association violated ARIZ. REV. STAT. § 33-1250(C) by holding the Annual Meeting via Zoom video conferencing and failing to provide members the opportunity to vote "in person".

Hearing Proceedings and Arguments

Respondent's (HOA) Arguments:

The Association stipulated to a technical violation regarding the late meeting (27 days late). The delay was attributed to a management company calendaring error and transition issues. The Respondent argued this issue was moot since the meeting had already occurred, and the OAH lacked jurisdiction to mandate the "impossible" (ordering the meeting to be held prior to March 31, 2023).

Regarding the voting issue, the Association acknowledged the meeting was held via Zoom but argued this was done for the convenience of out-of-town members and for fiscal responsibility, as in-person meetings required renting space. Crucially, the Association argued that the Petitioner waived his right to object to the voting procedure because he failed to lodge a complaint prior to the election, which is a requirement under established Arizona legal custom concerning procedural election challenges.

Petitioner's Arguments:

Petitioner argued that the OAH possesses statutory authority to issue an order requiring future compliance with the Bylaws (a forward-looking injunction) and to levy civil penalties. Petitioner presented testimony from Mr. Eli, a homeowner who stated he could not attend the Zoom-only meeting because he was not "tech-savvy" and was denied an in-person option, arguing this demonstrated the Association's discriminatory intent and warranted civil penalties.

Legal Points and Outcome

The ALJ issued a decision on August 28, 2023.

Issue 1 (Late Meeting): The ALJ affirmed the petition (23F-H052-REL), concluding that the Association did violate Article III Section 3 of the Bylaws based on the Respondent’s stipulation.

Issue 2 (In-Person Voting): The ALJ dismissed the petition (23F-H064-REL). The ALJ found that the Petitioner failed to meet the burden of proving that the specific interpretation of "in person" must exclude remote video attendance. The decision referenced the alternative interpretation of "in person" utilized during the COVID-19 pandemic, which allowed remote meetings in compliance with ARIZ. REV. STAT. § 33-1250(C).

Civil Penalties: The ALJ denied the Petitioner's request to levy a civil penalty against the Association, finding that the evidence did not give rise to the awarding of civil penalties.

Final Order:

The ALJ ordered that Petitioner’s petition in matter 23F-H064-REL be dismissed. The Petitioner’s petition in matter 23F-H052-REL was affirmed, and the Respondent was ordered to reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.

Questions

Question

If my HOA fails to hold the annual meeting by the specific deadline in the bylaws, is that considered a legal violation?

Short Answer

Yes. If the HOA misses the deadline mandated by the bylaws, it is a violation, even if the meeting is held later.

Detailed Answer

The ALJ ruled that missing the specific deadline set in the bylaws constitutes a violation. In this case, the bylaws required a meeting by March 31, but it was held on April 27. The HOA stipulated to the failure, and the ALJ affirmed the petition regarding this violation.

Alj Quote

Respondent stipulated it failed to adhere to Article III Section 3 of the Bylaws when it held the Annual Meeting on April 27, 2023, 27 days after the deadline. Thus, Petitioner met their burden in matter number 23F-H052-REL.

Legal Basis

Bylaws Article III Section 3

Topic Tags

  • annual meetings
  • bylaws compliance
  • deadlines

Question

Does a statutory requirement for 'in person' voting prevent the HOA from holding meetings via video conference?

Short Answer

Not necessarily. The term 'in person' does not strictly exclude remote attendance via technology like Zoom.

Detailed Answer

The ALJ determined that the phrase 'in person' is open to interpretation (e.g., social distancing protocols). Unless the homeowner provides sufficient evidence that 'in person' must strictly mean 'corporeal presence in a defined space,' holding a meeting via video conference does not violate the statute.

Alj Quote

While 'in person' could be interpreted as corporeal presence in a defined space, Petitioner failed to provide sufficient evidence said definition ought to be used, not the COVID-19 social distancing definition of 'in person,' or some other definition of the phrase 'in person.'

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)

Topic Tags

  • virtual meetings
  • voting rights
  • statutory interpretation

Question

Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the bylaws?

Short Answer

No. A violation does not automatically result in civil penalties; the evidence must justify such a penalty.

Detailed Answer

Even though the ALJ confirmed the HOA violated the bylaws by holding the meeting late, the request for a civil penalty was denied because the evidence presented did not warrant it (e.g., lack of bad faith).

Alj Quote

Because Petitioner met their burden they sought civil penalties, pursuant to ARIZ. REV. STAT. § 32-2199.02. Here, the evidence did not give rise to the awarding of civil penalties.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • remedies

Question

If I win my case against the HOA, can I get reimbursed for the filing fees?

Short Answer

Yes. The ALJ can order the HOA to reimburse the filing fee for the specific issues where the homeowner prevailed.

Detailed Answer

The ALJ ordered the HOA to pay back the $500 filing fee to the homeowner for the petition regarding the late meeting (which he won), but dismissed the petition regarding the virtual meeting.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What standard of proof does a homeowner need to meet to prove the HOA violated the rules?

Short Answer

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

Detailed Answer

The burden is on the petitioner (homeowner) to show that their claim is 'more probably true than not.' This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence… '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

Evidentiary Standard

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Does the Office of Administrative Hearings have the power to interpret the HOA's contract (CC&Rs/Bylaws)?

Short Answer

Yes. The tribunal has the explicit authority to interpret the contract between the homeowner and the association.

Detailed Answer

The decision clarifies that the OAH is authorized by statute to hear these disputes and specifically has the authority to interpret the governing documents (contract) between the parties.

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. § 41-1092 et seq.

Topic Tags

  • jurisdiction
  • contract interpretation
  • OAH authority

Case

Docket No
23F-H052-REL / 23F-H064-REL
Case Title
R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date
2023-08-28
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA fails to hold the annual meeting by the specific deadline in the bylaws, is that considered a legal violation?

Short Answer

Yes. If the HOA misses the deadline mandated by the bylaws, it is a violation, even if the meeting is held later.

Detailed Answer

The ALJ ruled that missing the specific deadline set in the bylaws constitutes a violation. In this case, the bylaws required a meeting by March 31, but it was held on April 27. The HOA stipulated to the failure, and the ALJ affirmed the petition regarding this violation.

Alj Quote

Respondent stipulated it failed to adhere to Article III Section 3 of the Bylaws when it held the Annual Meeting on April 27, 2023, 27 days after the deadline. Thus, Petitioner met their burden in matter number 23F-H052-REL.

Legal Basis

Bylaws Article III Section 3

Topic Tags

  • annual meetings
  • bylaws compliance
  • deadlines

Question

Does a statutory requirement for 'in person' voting prevent the HOA from holding meetings via video conference?

Short Answer

Not necessarily. The term 'in person' does not strictly exclude remote attendance via technology like Zoom.

Detailed Answer

The ALJ determined that the phrase 'in person' is open to interpretation (e.g., social distancing protocols). Unless the homeowner provides sufficient evidence that 'in person' must strictly mean 'corporeal presence in a defined space,' holding a meeting via video conference does not violate the statute.

Alj Quote

While 'in person' could be interpreted as corporeal presence in a defined space, Petitioner failed to provide sufficient evidence said definition ought to be used, not the COVID-19 social distancing definition of 'in person,' or some other definition of the phrase 'in person.'

Legal Basis

ARIZ. REV. STAT. § 33-1250(C)

Topic Tags

  • virtual meetings
  • voting rights
  • statutory interpretation

Question

Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the bylaws?

Short Answer

No. A violation does not automatically result in civil penalties; the evidence must justify such a penalty.

Detailed Answer

Even though the ALJ confirmed the HOA violated the bylaws by holding the meeting late, the request for a civil penalty was denied because the evidence presented did not warrant it (e.g., lack of bad faith).

Alj Quote

Because Petitioner met their burden they sought civil penalties, pursuant to ARIZ. REV. STAT. § 32-2199.02. Here, the evidence did not give rise to the awarding of civil penalties.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • remedies

Question

If I win my case against the HOA, can I get reimbursed for the filing fees?

Short Answer

Yes. The ALJ can order the HOA to reimburse the filing fee for the specific issues where the homeowner prevailed.

Detailed Answer

The ALJ ordered the HOA to pay back the $500 filing fee to the homeowner for the petition regarding the late meeting (which he won), but dismissed the petition regarding the virtual meeting.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $500.00 filing fee for the issue on which he prevailed.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What standard of proof does a homeowner need to meet to prove the HOA violated the rules?

Short Answer

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

Detailed Answer

The burden is on the petitioner (homeowner) to show that their claim is 'more probably true than not.' This is the standard evidentiary weight required in these administrative hearings.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence… '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

Evidentiary Standard

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Does the Office of Administrative Hearings have the power to interpret the HOA's contract (CC&Rs/Bylaws)?

Short Answer

Yes. The tribunal has the explicit authority to interpret the contract between the homeowner and the association.

Detailed Answer

The decision clarifies that the OAH is authorized by statute to hear these disputes and specifically has the authority to interpret the governing documents (contract) between the parties.

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. § 41-1092 et seq.

Topic Tags

  • jurisdiction
  • contract interpretation
  • OAH authority

Case

Docket No
23F-H052-REL / 23F-H064-REL
Case Title
R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date
2023-08-28
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • R.L. Whitmer (petitioner)
  • Sedack Eli (witness/homeowner)
    Also referred to as Sebeck Eli.

Respondent Side

  • Emily H. Mann (HOA attorney)
    Phillips, Maceyko & Battock, PLLC
  • Robert Westbrook (HOA President/witness)
  • Liard (community manager)
    Affidavit attached to exhibits; first name unknown.
  • John Brookke (board member)
    Attended annual meeting.
  • Jay Panzer (board member)
    Attended annual meeting.
  • Joanna O’Neal (board member)
    Attended annual meeting.

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    ALJ for final decision; also referred to as Joe Delveio.
  • Sondra J. Vanella (ALJ)
    OAH
    Issued orders on July 6, 2023.
  • Alyssa Leverette (ALJ)
    OAH
    Issued Minute Entry on July 18, 2023.
  • Susan Nicolson (Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
    Recipient of transmission.
  • V. Nunez (ADRE staff)
    ADRE
    Recipient of transmission.
  • D. Jones (ADRE staff)
    ADRE
    Recipient of transmission.
  • L. Abril (ADRE staff)
    ADRE
    Recipient of transmission.

Other Participants

  • Stadilla Stadilla (homeowner/attendee)
    Attended annual meeting.
  • Mike Denson (homeowner/attendee)
    Attended annual meeting.
  • Rick Walker (homeowner/attendee)
    Attended annual meeting.
  • Mary Griffith (homeowner/attendee)
    Attended annual meeting.

Rosalie Lynne Emmons v. Rovey Farm Estates Homeowners Association

Posted on by

Case Summary

Case ID 23F-H055-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-22
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rosalie Lynne Emmons Counsel —
Respondent Rovey Farm Estates Homeowners Association Counsel Michael S. McLeran

Alleged Violations

CC&Rs Article 2 §§ 3.2, 3.3, and 3.11

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.

Why this result: Petitioner failed to provide sufficient evidence of selective enforcement. She admitted her shed was built without prior approval, was taller than the fence line, and was visible from the street, all of which violated the CC&Rs. The evidence presented by the Respondent showed consistent enforcement actions regarding similar violations.

Key Issues & Findings

Alleged selective, arbitrary, and capricious enforcement of CC&Rs regarding shed construction and prior approval.

Petitioner alleged that the HOA selectively enforced its shed policy against her, claiming that her denial for a shed built without prior approval and exceeding the fence height should be excused because other, similar non-compliant sheds existed in the community and were not consistently cited.

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

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.
  • CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Analytics Highlights

Topics: HOA Enforcement, Selective Enforcement, Shed, Design Guidelines, CC&Rs, Prior Approval
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.
  • CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H055-REL Decision – 1062778.pdf

Uploaded 2026-04-24T12:09:55 (44.1 KB)

23F-H055-REL Decision – 1086088.pdf

Uploaded 2026-04-24T12:10:00 (110.9 KB)

23F-H055-REL Decision – 1062778.pdf

Uploaded 2026-01-23T17:57:44 (44.1 KB)

23F-H055-REL Decision – 1086088.pdf

Uploaded 2026-01-23T17:57:46 (110.9 KB)

This summary concerns the matter of *Rosalie Lynne Emmons vs. Rovey Farm Estates Homeowners Association*, Docket No. 23F-H055-REL, heard before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Background

The Petitioner, Rosalie Lynne Emmons, is a Rovey Farm Estates property owner subject to the community documents, including the Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. The key fact is that Petitioner built a storage shed in the fall of 2021 without first receiving written approval from the Design Review Committee. The Petitioner admitted the shed was constructed, submitted an application post-construction in December 2021/January 2022, and the application was denied on February 7, 2022. The denial was based on the shed exceeding the height of the surrounding fence line and violating the plain language of the design guidelines and local city code.

Main Issues and Arguments

The Petitioner alleged that the Association (Respondent) engaged in selective, arbitrary, and capricious enforcement of the CC&Rs (specifically §§3.2, 3.3, and 3.11) regarding the shed policy. Petitioner argued that the HOA had a pattern of failing to enforce restrictions in a timely, fair, and reasonable manner, citing evidence and photos of approximately 20 other visible sheds allegedly in violation. Petitioner also argued the HOA demonstrated a lack of diligence in enforcement (laches).

The Respondent argued that enforcement was uniform and consistent, noting that the Design Guidelines require prior approval for construction and mandate that sheds not exceed the height of the surrounding fences. The Respondent’s witness, Matt Johnson, testified that there was no discretion when a violation was observed, and that all three applications submitted by other homeowners for sheds exceeding the fence height were also denied. Furthermore, the CC&Rs include a non-waiver provision (§3.1) stating that approving one construction does not waive the right to withhold approval of subsequent similar projects. The Respondent requested dismissal as the Petitioner had failed to meet her burden of proof.

Legal Points and Outcome

The legal proceeding established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated the CC&Rs.

The ALJ determined that the Petitioner failed to meet her burden of proof. The Petitioner admitted that her shed was built without prior approval, was taller than the fence line, and visible from the street, all of which are violations of the CC&Rs. The Respondent provided evidence showing "a multitude of compliance letters, violations, fines, and approved and rejected shed applications associated with the enforcement".

Final Decision

The Administrative Law Judge concluded that the Respondent did not violate CC&Rs §§3.2, 3.3, and 3.11.

IT IS ORDERED that Petitioner’s petition in this matter be dismissed.

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.

Legal Basis

Burden of Proof

Topic Tags

  • selective enforcement
  • burden of proof
  • legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

  • architectural approval
  • unauthorized construction
  • violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

  • waiver
  • enforcement history
  • COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

  • architectural standards
  • sheds
  • visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing 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

Evidentiary Standard

Topic Tags

  • legal definitions
  • evidence
  • hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.

Alj Quote

The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • ADRE
  • dispute resolution

Case

Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.

Legal Basis

Burden of Proof

Topic Tags

  • selective enforcement
  • burden of proof
  • legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

  • architectural approval
  • unauthorized construction
  • violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

  • waiver
  • enforcement history
  • COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

  • architectural standards
  • sheds
  • visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing 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

Evidentiary Standard

Topic Tags

  • legal definitions
  • evidence
  • hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.

Alj Quote

The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • ADRE
  • dispute resolution

Case

Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rosalie Lynne Emmons (petitioner)
    Rovey Farm Estates property owner; appeared on her own behalf

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
    Appeared on behalf of Rovey Farm Estates Homeowners Association
  • Matt Johnson (community manager/witness)
    Envision Community Management
    Community Manager for Rovey Farm Estate; Appeared as a witness for the Association
  • Mark Schmidt (HOA staff)
    Envision Community Management
    Completed exhibit list (Exhibit 7) used by Respondent
  • Carrie Schmidt (compliance officer)
    Envision Community Management
    Compliance inspector responsible for citing violations

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    ADRE
    Arizona Department of Real Estate Commissioner

Other Participants

  • AHansen (ADRE staff)
    ADRE
    Recipient of decision transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision transmission
  • djones (ADRE staff)
    ADRE
    Recipient of decision transmission
  • labril (ADRE staff)
    ADRE
    Recipient of decision transmission
  • Jose Garcia (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application was denied
  • Gilbert Bar (homeowner/applicant)
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  • MJ Kim (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application (with Jane Kim) was denied

Harry G. Turner v. MountainGate Home Owners Association, Inc.

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Case Summary

Case ID 23F-H045-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-14
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Harry G. Turner Counsel —
Respondent Mountain Gate Home Owners Association, Inc. Counsel —

Alleged Violations

Article 10 Section 4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.

Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.

Key Issues & Findings

Required membership vote for common area use change (Tract H drainage ditch)

Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 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)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Analytics Highlights

Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 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)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

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Video Overview

Audio Overview

Decision Documents

23F-H045-REL Decision – 1055488.pdf

Uploaded 2026-01-23T17:56:36 (49.7 KB)

23F-H045-REL Decision – 1057334.pdf

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23F-H045-REL Decision – 1083773.pdf

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This summary addresses the Administrative Law Judge (ALJ) hearing in the matter of Harry G. Turner v. MountainGate Home Owners Association, Inc., Case No. 23F-H045-REL. The hearing was conducted by Administrative Law Judge Brian Del Vecchio on July 24, 2023.

Key Facts and Main Issue

The Petitioner, Harry G. Turner, a MountainGate Homes property owner and member of the Association, challenged the Respondent Home Owners Association's (HOA) plan, announced November 14, 2022, to dig a drainage ditch in Tract H of the subdivision. The core legal issue before the Office of Administrative Hearings (OAH) was whether the HOA violated Article 10 Section 4 of the CC&Rs (Declaration of Covenants, Conditions, Restrictions and Easements).

Article 10 Section 4 requires the Board to secure approval from not less than two-thirds (2/3rds) of the members voting if they adopt a resolution to change the use of a specified part of the Common Areas. The dispute centered on the established classification of Tract H: if Tract H was already designated for drainage, implementing the ditch would not be a change of use and would not require a vote; if it was designated solely as "open space," a vote would be required.

Key Arguments

Petitioner's Argument (Harry G. Turner):

The Petitioner argued that the Board violated the CC&Rs by moving forward with the ditch without a membership vote. Turner contended that Tract H was designated as "Preserved/Active Open Space" according to the "Tract Data" portion of the plat map and the Subdivision Disclosure Reports. He also presented evidence, including certified engineering reports, suggesting that the necessary drainage facilities were completed or certified as "as built" during the community's transition from condominiums to townhomes between 2006 and 2010. Turner shared a prior legal opinion recommending a membership vote due to the ambiguity surrounding whether the ditch constituted a "change of use". He asserted that the HOA was attempting new construction on common area designated as passive open space.

Respondent's Argument (MountainGate HOA, represented by Michael Luden and witness Brenda Anderson):

The Respondent denied violating the CC&Rs, arguing that no change protocols were needed because Tract H has always been dedicated for drainage. The HOA pointed to the "Conveyance and Dedication" portion of the plat maps (dating from 2006, 2008, and 2010), which explicitly listed Tract H as common area to be used for "open space, landscaping, and drainage". The HOA argued that the drainage plan approved by certified engineers was never fully implemented by the original developers, resulting in severe flooding experienced by neighbors along the northern edge of the property (Tract H). Therefore, the HOA was merely implementing an *original* intended use, not changing the use.

Final Decision and Legal Outcome

The ALJ determined that the Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated Article 10 Section 4 of the CC&Rs.

The ALJ found that Petitioner failed to meet this burden. The evidence showed a conflict in the governing documents: the plat map described Tract H as "Preserved/Active Open Space" in the "Tract Data" section, but designated it for "drainage" in the "Conveyance and Dedication" section. Since neither party presented sufficient evidence to establish which description controlled the legal designation of Tract H, the Petitioner could not definitively prove that Tract H was *not* classified as drainage.

The ALJ concluded that the Respondent did not violate Article 10 Section 4 of the CC&Rs. Petitioner’s petition was dismissed, and the request to levy a civil penalty against the Respondent was denied.

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

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

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

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

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

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

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

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

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Harry G. Turner (petitioner)
    Appeared on his own behalf

Respondent Side

  • Michael Luden (president/representative)
    Mountain Gate Home Owners Association, Inc.
    Appeared on behalf of Respondent. Identified as President of the Homeowners Association
  • Brenda Anderson (witness/secretary)
    Mountain Gate Home Owners Association, Inc.
    Witness for Respondent; Secretary of Mountain Gate Homeowners Association
  • Kelly Callahan (HOA attorney)
    HOA's attorney who wrote an email regarding the drainage ditch proposal

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Listed in transmission list
  • Jeremiah Lloyd (Community Development Director)
    Pinetop Lakeside
    Community Development Director for Pinetop Lakeside
  • Bill Best (County Engineer)
    Navajo County
    Navajo County Engineer
  • Emory Ellsworth (engineer)
    Painted Sky Engineering and Surveying
    Engineer consulted by Petitioner
  • John Murphy (engineer)
    Murphy Engineering Group
    Engineer whose company provided original certified plans

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • Ken Anderson (community member)
    Mentioned as being present when a document was allegedly falsified
  • Gary Lao (developer)
    Original developer

Brenda Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

Appendix B, Section 5

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner’s petition is dismissed with prejudice.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: homeowner dispute, prohibited plants, HOA discretion, failure to enforce, neighbor dispute, CC&Rs, oleander, palm trees
Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

23F-H046-REL Decision – 1049756.pdf

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

23F-H046-REL Decision – 1049882.pdf

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

23F-H046-REL Decision – 1055238.pdf

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

23F-H046-REL Decision – 1057283.pdf

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

23F-H046-REL Decision – 1058121.pdf

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

23F-H046-REL Decision – 1059849.pdf

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

23F-H046-REL Decision – 1072130.pdf

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

23F-H046-REL Decision – 1082955.pdf

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

23F-H046-REL Decision – 1049756.pdf

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

23F-H046-REL Decision – 1049882.pdf

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

23F-H046-REL Decision – 1055238.pdf

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

23F-H046-REL Decision – 1057283.pdf

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

23F-H046-REL Decision – 1058121.pdf

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

23F-H046-REL Decision – 1059849.pdf

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

23F-H046-REL Decision – 1072130.pdf

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

23F-H046-REL Decision – 1082955.pdf

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

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

Key Facts and Procedural Background

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

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

Main Issues and Arguments

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

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

Key Legal Points and Outcome

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

The decision focused on several key legal conclusions:

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

Final Decision

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Jennifer J Sullivan v. The Village at Elk Run Homeowners Association,

Posted on by

Case Summary

Case ID 23F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-08
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jennifer J Sullivan Counsel —
Respondent The Village at Elk Run Homeowners Association, Inc. Counsel Michael S. McLeran

Alleged Violations

Article 4, Section 4.1 of the Community’s CC&Rs; ARIZ. REV. STAT. § 33-1804(D)

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.

Why this result: The tribunal determined the Petitioner failed to meet her burden, as her short-term rental operation constituted a prohibited nonresidential use/business under Section 4.1 of the CC&Rs, which only permits leasing for Month to Month or Longer Terms.

Key Issues & Findings

Challenging HOA Violation Notice for Short-Term Rental Restriction

Petitioner challenged the Courtesy Violation Notice issued by the HOA for operating a short-term rental (Airbnb) with a minimum rental period less than month-to-month, arguing the CC&Rs did not explicitly prohibit such rentals. The HOA maintained that Section 4.1 prohibited nonresidential use, unless leased for month-to-month or longer terms, thereby prohibiting short-term rentals/business use.

Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Analytics Highlights

Topics: HOA governance, short-term rental, CC&R interpretation, business use, 30-day minimum
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Video Overview

Audio Overview

Decision Documents

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-04-24T12:07:40 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-04-24T12:07:50 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-04-24T12:08:00 (117.7 KB)

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-01-23T17:56:20 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-01-23T17:56:23 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-01-23T17:56:27 (117.7 KB)

Case Summary: Jennifer J. Sullivan vs. The Village at Elk Run Homeowners Association, Inc.

This matter (No. 23F-H043-REL) was a contested case before the Office of Administrative Hearings (OAH), heard on July 24, 2023, by Administrative Law Judge (ALJ) Adam D. Stone. Petitioner Jennifer J. Sullivan, a homeowner in The Village at Elk Run Homeowners Association, Inc. (Respondent), challenged a violation notice she received for operating a short-term rental (Airbnb).

Key Facts and Background

Petitioner Sullivan had owned her townhome since 2006 and began renting it on a short-term basis (minimum 3 days) through Airbnb in September 2021. She testified that she had registered for a Transaction Privilege Tax number and was pursuing a license under new city rules, acknowledging that the rental was a business. The Association issued a Courtesy Violation Notice on November 22, 2022, citing a violation of Article 4, Section 4.1 of the community's Covenants, Conditions, and Restrictions (CC&Rs) due to the short-term rental operation.

Main Issues and Arguments

The core legal issue centered on the interpretation of CC&R Section 4.1, titled "Residential Use":

> "All Lots shall be used, improved and devoted exclusively to Single family Residential Use. No gainful occupation, profession, trade or other nonresidential use shall be conducted on any Lot. This Section shall not preclude the Residential Leasing or Renting of a Lot for Month to Month or Longer Terms".

  1. Petitioner's Argument: Sullivan contended that the CC&Rs do not contain an explicit minimum rental period, and therefore, rentals shorter than 30 days are permissible. She argued that Arizona law (ARS 33-1806.01) requires HOAs to list a minimum rental period if they intend to restrict short-term leasing, which the Elk Run CC&Rs failed to do. She asserted that renting a home is considered a residential use.
  1. Respondent's Argument: The Association, represented by Michael McLeran, argued that Section 4.1 must be read in its entirety to uphold the community's character. They asserted that operating a short-term rental for profit (as evidenced by Petitioner's tax licensing) constitutes a "gainful occupation, profession, trade or other nonresidential use," which is prohibited. The final sentence of Section 4.1 allowing "Month to Month or Longer Terms" clarifies the *only* exception where renting for profit is permitted, thereby implicitly prohibiting shorter-term rentals. Testimony from the original CC&R signatory, John Vail, supported the intent for a minimum 30-day rental period.

Outcome and Legal Decision

The ALJ issued a Decision on August 8, 2023, denying the Petitioner's petition.

The ALJ found that Petitioner Sullivan failed to meet her burden of proving that the Association violated relevant statutes or documents. The tribunal concluded that Sullivan was "clearly running a business out of the home".

The ALJ adopted the Respondent's interpretation of Section 4.1: nonresidential use (i.e., operating a rental business for gainful occupation) is *only* permitted if the lots are rented or leased for month to month or longer terms. Thus, the ALJ ruled that, as currently written, any renting or leasing shorter than a month was prohibited.

The Petitioner's request for reimbursement of her $500 filing fee was also denied.

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

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

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

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

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

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

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

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

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jennifer J Sullivan (petitioner)
    Appeared on her own behalf
  • David Sheffield (petitioner attorney)
    Provided legal opinion to Petitioner in 2020

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
    Represented Respondent
  • Teresa Bale (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Board President; Witness for Respondent
  • John R. Bale (developer/witness)
    The Village at Elk Run Homeowners Association, Inc.
    Original developer who drafted/signed CC&Rs; Witness for Respondent
  • Jason Miller (attorney)
    Provided opinion letter regarding CC&Rs to the Board
  • Beth Moly (attorney)
    Issued formal opinion letter regarding Section 4.1
  • Melanie Lashley (property manager)
    Homeco Rent
    Contacted by Petitioner regarding rental rules
  • Betsy Snow (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Won board election against Petitioner

Neutral Parties

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

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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

Section 9.2 of the CC&Rs

Outcome Summary

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

23F-H056-REL Decision – 1073539.pdf

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

23F-H056-REL Decision – 1080973.pdf

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

23F-H056-REL Decision – 1073539.pdf

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

23F-H056-REL Decision – 1080973.pdf

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

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

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

Key Facts and Background

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

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

Main Issues and Arguments

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

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

Legal Conclusion and Outcome

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

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

Order

The Petitioner’s petition was affirmed.

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

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

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

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

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

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

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

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

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

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

Key Facts

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

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

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

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

Main Issues and Legal Points

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

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

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

Outcome and Final Decision

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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