HOA - ALJDEC decisions

25F-H047-REL · Department of Real Estate - H/C · 2025-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Scott D Haferkamp,

Petitioner,

Artisan Parkview Condominium Association, Inc.,

Respondent.

No. 25F-H047-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2025

APPEARANCES: Scott D. Haferkamp represented himself. Attorney Daniel S. Francom represented Artisan Parkview Condominium Association, Inc.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing File (File), provided by the Department of Real Estate. Petitioner Exhibits A through F. Respondent Exhibits A through F.

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Department of Real Estate (“Department”) is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

On or about March 20, 2025, Scott D. Haferkamp (“Petitioner”) filed a petition (“Petition”) with the Department against the Artisan Parkview Condominium Association, Inc. (“HOA”). The Petition indicates that it is a one-issue Petition; Petitioner paid a $500.00 filing fee for the Petition. The Petition, with attachments, contained 147 pages with each page labeled with numbers and letters.

In the Petition, Petitioner alleged that HOA is in violation of the following provisions: (a) CC&Rs Article 2, Section 2.3; (b) Bylaws Article 2.2; and (c) Ariz. Rev. Stat. § 33-439. The attached explanation letter recited multiple concerns over a lengthy period of time and contained multiple issues.

The Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary administrative hearing.

At an August 26, 2025 pre-hearing conference, the parties discussed the matter and their respective positions, including whether this was the appropriate jurisdiction for Petitioner to pursue each of his arguments regarding alleged statutory application or violations. Petitioner was advised by the Tribunal that he needed to clarify his issues as he was limited to one issue, having filed and paid for a one-issue Petition.

By Order dated September 3, 2025, the hearing was continued to be conducted on October 21, 2025.

On October 3, 2025, Petitioner filed a clarification, indicating that his complaint would be limited to “lack of action on signed homeowner petition and the HOA/board not providing guidelines/rules for solar.”

BACKGROUND

HOA is a residential development located in the City of Phoenix in Maricopa County, Arizona. The development consists of 35 condominiums in separate buildings.

Tim Pawlak has been President of the HOA Board for 21 years.

In September of 2014, Petitioner submitted an Application for Design Review (“Application”) for the addition of solar panels to his condominium; he included panel information, drawings, and the name of his anticipated licensed contractor for the solar installation.

By letter dated September 26, 2014, HOA denied the Application.

Thereafter, Petitioner sought out like-minded owner-residents and collected 12 signatures regarding the issue of solar installations. Petitioner submitted the petition to the HOA through the property management company, Vision Community Management (“Vision”). The undated petition stated as follows:

I have collected the necessary 25% of homeowner signatures for meeting/vote on the issue of solar panels on roof.

With the petition, Petitioner provided an example of a solar panel guideline from a community located in California.

In September of 2015, Petitioner again filed a “petition” with Vision regarding the issue of solar panel installation on community roofs.

By email dated September 2, 2015, the Community Manager indicated to Petitioner that the issue of solar panel installation would be placed on the Agenda for discussion at the September 24, 2015 Board meeting.

The Minutes from the September 24, 2015, Board meeting indicate that the legalities of solar installation on common areas was discussed but no action was taken and the issue was tabled to the next Board meeting.

On or about August 15, 2024, Petitioner filed an Application for installation of Tesla batteries inside his garage; he included drawings, and the name of his anticipated licensed contractor for the battery installation.

By letter dated October 4, 2024, HOA denied the Application.

On February 2, 2025, Petitioner submitted an Application for the addition of solar panels and the requisite battery backup to his home; he included equipment information, drawings, and the name of his anticipated licensed contractor for the solar installation.

By letter dated March 4, 2025, HOA denied the Application indicating that such an installation would involve significant physical attachments and penetration of the common roof as well as conduits and boxes mounted on the exterior walls. HOA noted that such installations could lead to complications and costs to the HOA in maintaining the overall structural integrity, uniform appearance, overall character, and property values of the entire community. The Board stated, in part:

The Board’s decision does not constitute an absolute ban on solar devices. Rather, it reflects the unique constraints of a condominium in which the roofs and walls are collectively owner and must be protected from undue burdens. If you can propose an alternative design or location that avoids structural modifications to these common elements, the Board remains open to reviewing such a plan through the established architectural approval process. . . .

We appreciate your interest in solar energy and would be glad to discuss any alternative approaches that do to encroach on the community’s shared areas.

HEARING

Petitioner argued that he had never heard back from the HOA with regard to his 2014 and 2015 homeowner petitions on the issue of solar installations, which would be a violation of the Bylaws, Article 2, Section 2.2. Petitioner argued that a special meeting was not called and Visions only put the issue on a Board meeting agenda. Petitioner testified that he had hoped the Board would have considered adopting rules and guidelines, and amend the CC&Rs or Bylaws.

HOA argued that there was no current controversy because the 2014 and 2015 petitions were now outside a limitations period. HOA opined that those petitions had not specifically requested that a special meeting be called and that the HOA had discretion whether or not to hold a special meeting under the Bylaws. HOA argued that the Bylaws do not call for members to vote on amendments to Board rules or guidelines, and that members cannot force the Board to take action.

Mr. Pawlak indicated his presumption that an architectural request would be a suggestion for the Board to consider the subject of the request.

Mr. Pawlak believed that the matter of the first two Applications for solar equipment was discussed at the September 2015 meeting, that such equipment had been discussed before, and that the Board rejected the Application(s) determining that such installation could not be done. Mr. Pawlak presumed that the attorney had been invited to the September 2015 meeting, likely because he would have received an email from Visions that Petitioner wanted to discuss the solar issue.

Petitioner did not recall any discussion of the solar installation issue taking place at the September 2015 meeting.

Mr. Pawlak did not recall having seen the [2014 and 2015] homeowner petitions.

Conclusions of Law

This matter lies within the Department’s jurisdiction. Pursuant to Ariz. Rev. Stat. §§ 32-2102 and 32-2199 et al., 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 as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in Ariz. Rev. Stat. § 32-2199.05.

Pursuant to Ariz. Rev. Stat. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092, OAH has the authority to hear and decide the contested case at bar and to order a Respondent to follow the alleged operative governing documents. OAH does not have authority to award damages.

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent HOA violated the alleged CC&R or Bylaws provisions.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

The Bylaws, Article II, Section 2.2 provides as follows:

Special meetings of the Members may be called at any time by the President or by a majority of the Board of Directors or by a written request signed by Members having at least twenty-five percent (25%) of the total number of eligible votes of each class of Members in the Association.

The hearing evidence clearly demonstrates the HOA has discretion whether or not to call a special members meeting. The hearing record does not contain a specific written denial by the Board to call a special meeting; however, by placing the issue of solar installation on the September 24, 2015 Board meeting agenda, HOA had implicitly declined to call a special meeting at that time.

The hearing record clearly demonstrates Petitioner’s interest in being able to utilize solar equipment at his home. However, Petitioner has not demonstrated, pursuant to the controlling CC&Rs or Bylaw, the Board’s inaction to have adopted solar rules or guidelines to be a violation of those controlling documents.

The Tribunal concludes that Petitioner has not met his burden to demonstrate by a preponderance of the evidence that HOA was in violation of the CC&Rs or Bylaws.

ORDER

IT IS ORDERED that Petitioner’s Petition in 25F-H047-REL be denied and HOA be determined to be the prevailing party.

IT IS FURTHER ORDERED that Petitioner shall bear his filing fees.

IT IS FURTHER ORDERED that no civil penalty is awarded.

NOTICE

Pursuant to Ariz. Rev. Stat. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to Ariz. Rev. Stat. § 32-2199.04. Pursuant to Ariz. Rev. Stat. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

-54864001

001

-137160-45720000DONE this day, December 6, 2025.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Susan Nicolson

Commissioner

Arizona Department of Real Estate

[email redacted]

Scott Haferkamp

[email redacted]

Daniel S. Francom

Artisan Parkview Condominium Association

[email redacted]

By: OAH Staff