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The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995 v. The Summit at Copper Square Condominium Association (ROOT)

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Case Summary

Case ID 24F-H049-REL
Agency —
Tribunal —
Decision Date 1/21/2025
Administrative Law Judge SF
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995 Counsel —
Respondent The Summit at Copper Square Condominium Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H049-REL Decision – 1214040.pdf

Uploaded 2026-04-25T10:21:08 (45.7 KB)

24F-H049-REL Decision – 1218977.pdf

Uploaded 2026-04-25T10:21:14 (46.3 KB)

24F-H049-REL Decision – 1218981.pdf

Uploaded 2026-04-25T10:21:22 (5.9 KB)

24F-H049-REL Decision – 1219895.pdf

Uploaded 2026-04-25T10:21:25 (40.5 KB)

24F-H049-REL Decision – 1235253.pdf

Uploaded 2026-04-25T10:21:28 (47.1 KB)

24F-H049-REL Decision – 1264402.pdf

Uploaded 2026-04-25T10:21:33 (277.9 KB)

Briefing on Hulbert Family Trust v. The Summit at Copper Square Condominium Association

Executive Summary

This briefing document synthesizes the key arguments, evidence, and conclusions from the administrative hearing concerning the consolidated matters The Gregory M and Donna P Hulbert Family Trust v. The Summit at Copper Square Condominium Association (Case Nos. 24F-H049-REL & 24F-H055-REL). The hearing, adjudicated by Administrative Law Judge (ALJ) Samuel Fox, addressed five distinct complaints filed by Petitioner Donna Hulbert against the Respondent Homeowners Association (HOA) Board of Directors.

The core of the dispute revolved around the Petitioner’s allegations that the HOA Board acted in violation of the Condominium Declaration and Arizona state law regarding its financial management, use of common areas, meeting procedures, and timeliness of structural repairs. The Respondent contended that its actions fell within the Board’s discretionary authority and were reasonable under the circumstances.

The ALJ’s final decision delivered a split verdict. The Petitioner prevailed on two claims: the installation of a “puppy potty” on the roof was found to be a clear violation of the Declaration’s rules on pets in common areas, and the Board’s meeting agendas were found to be statutorily deficient. The Respondent prevailed on three claims: the ALJ found no violation in the Board’s budget and reserve management, its decision to allow a news crew on common property, or the pace of its response to structural damage from a pool leak. The final order required the HOA to pay a portion of the Petitioner’s filing fees, levied a civil penalty for the “puppy potty” violation, and directed the Board to comply with state law regarding meeting notices.

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Procedural History and Key Parties

• Parties:

◦ Petitioner: The Gregory M and Donna P Hulbert Family Trust, represented by Donna Hulbert, owner of Unit 1302.

◦ Respondent: The Summit at Copper Square Condominium Association, represented by Attorney Daryl Wilson.

• Venue: Arizona Office of Administrative Hearings.

• Case Numbers: 24F-H049-REL and 24F-H055-REL, consolidated on August 21, 2024, under 24F-H049-REL.

• Presiding Judge: Administrative Law Judge Samuel Fox.

• Hearing Dates: August 28, 2024, and October 24, 2024.

• Key Witnesses:

◦ For Petitioner: Donna Hulbert; Jay Parry Erb (former Board Treasurer).

◦ For Respondent: Greg Axelrod (current Board President); Zackary Beckham (former Board President).

——————————————————————————–

Analysis of Complaints and Adjudication

Complaint 1: Budget and Reserve Funding

Allegation: The HOA violated Declaration Sections 7.1, 7.12, and 7.14 by borrowing from reserves to fund operating expenses and failing to create a budget that adequately funded reserves for future expenses.

Petitioner’s Arguments & Evidence

Respondent’s Arguments & Evidence

ALJ’s Findings & Conclusion

The HOA’s budget is structurally inadequate, evidenced by a history of borrowing from reserves (~$400,000 in 2023) to cover operating shortfalls.

The Board has sole discretion over the budget. The budgets for 2023 and 2024 met operating expenses and did not have a shortfall.

No Violation Found.

The 2024 budget was improperly based on the overrun 2023 budget figures plus a 7.5% increase, rather than on actual historical expenses.

The Association has met its budgeted contributions to the reserve fund and is not currently borrowing from reserves to pay operating expenses.

The Declaration requires a reasonable estimate for the budget, not a perfect one. It does not mandate that the budget reflect the reserve study or past unexpected expenses.

Operating expenses (e.g., pool leak testing, security fob installation) are being misclassified as reserve expenses to conceal operating deficits.

The Board relies on the professional guidance of its management company, First Service Residential, and its accountants for financial reporting and budget creation.

As of July 2024, the budget had a surplus, and monthly reserve contributions (45,365avg.)exceededthereservestudy′srecommendation(45,000).

The operating account is funded at 0.3 times monthly expenses, far below the management company’s recommendation of 3 times.

The Board fulfilled its obligation to adopt a budget containing an estimate of required funds. The Petitioner failed to prove otherwise by a preponderance of the evidence.

Outcome: Respondent deemed the prevailing party on this issue.

The HOA has a history of delaying payments to vendors (e.g., an RKS Plumbing invoice was paid seven months late), indicating cash flow issues.

Witness Jay Erb (former Treasurer): Testified to discovering a ~$392,000 deficit in the operating fund being covered by reserves upon joining the Board. He stated that these transfers lacked the two board member signatures required by Declaration Section 7.14.1 for reserve withdrawals.

Complaint 2: The “Puppy Potty”

Allegation: The HOA installed a “puppy potty” on the roof, a common element, in violation of Declaration Sections 4.6.1 and 4.6.2, constituting a nuisance.

Petitioner’s Arguments & Evidence

Respondent’s Arguments & Evidence

ALJ’s Findings & Conclusion

Declaration Section 4.6.2 constitutes an “absolute prohibition” against pets on common elements, except for ingress and egress through the service elevator.

Board President Greg Axelrod testified the installation was not an official Board action but was proposed by the general manager.

Violation Found.

The roof is defined as a “Common Element” under Declaration Section 1.12 (“all portions of the Condominium other than the Units”).

Mr. Axelrod argued the roof was not a common element in practice, as the door leading to it had always been locked and the area was unused by residents.

The roof area is part of the Common Elements by the Declaration’s explicit definition, regardless of its previous accessibility.

The “puppy potty” is a “structure for the care…of any Permitted Pet” which is explicitly forbidden on any portion of the Common Elements.

The potty was installed as an amenity for residents, particularly for the safety of women walking their dogs late at night in downtown Phoenix. It cost only 600−700.

The puppy potty is a structure for the care of pets, which is prohibited on Common Elements under Section 4.6.2.

The installation creates an odor and presents a safety hazard, as it requires an industrial roof area with unenclosed openings to be accessible.

The area is cleaned by maintenance staff at least three times per week. Most residents appreciate the amenity.

The installation of the puppy potty violates Section 4.6.2 of the Declaration.

The decision was made unilaterally by the Board President without a formal board meeting or vote.

Outcome: Petitioner deemed the prevailing party. A $500 civil penalty was levied against the Respondent.

Complaint 3: News Crew on Common Area

Allegation: The HOA allowed a news crew to use the common area during the 2023 baseball postseason, violating residents’ easement of enjoyment (Sections 3.3.1, 3.3.2) and creating a nuisance (Section 4.13).

Petitioner’s Arguments & Evidence

Respondent’s Arguments & Evidence

ALJ’s Findings & Conclusion

The easement of enjoyment in common elements is for owners and their guests. The news crew members were “strangers.”

The news crews were on the property twice: for the Diamondbacks’ opening day and for the World Series.

No Violation Found.

The crew created a nuisance with bright lights shining into units and a drone camera. At times, the crew was unsupervised.

The crew was present during a larger HOA-hosted party on the fifth-floor pool deck and was confined to a specific, underutilized area within the party.

The Declaration allows for invitees, guests, and their agents (Section 13.12). The news crew was invited to the party.

The action violated residents’ right to quiet enjoyment. A single board member approved the crew’s presence without a formal board action or recorded easement.

Having the news crew on-site provided a benefit to the Association by giving positive public exposure to the building.

The evidence did not establish that the lights and noise were unreasonable under the circumstances of a large party occurring above a public block party. The Petitioner failed to prove the drone belonged to the news crew.

The crew’s presence did not fall under any exception in the Declaration.

The crew did not displace any resident from using the area. No easement was conveyed or encumbered.

The Petitioner failed to meet the burden of proof to demonstrate the news crew was a nuisance or that any resident was deprived of their easement of enjoyment.

Outcome: Respondent deemed the prevailing party on this issue.

Complaint 4: Meeting Notices and Agendas

Allegation: The HOA fails to provide required notice for all quorum meetings and provides agendas with inadequate information, violating A.R.S. § 33-1248 (E) and (F).

Petitioner’s Arguments & Evidence

Respondent’s Arguments & Evidence

ALJ’s Findings & Conclusion

A.R.S. § 33-1248 requires open meetings and agendas with information “reasonably necessary to inform the unit owners of the matters to be discussed or decided.”

All topics the Board intends to discuss are included on the agendas, which are posted and emailed at least 48 hours in advance.

Violation Found.

Agendas are often vague, using terms like “Old Business” or “New Business,” which prevents homeowners from meaningfully preparing comments.

Board President Axelrod testified that if an urgent, non-emergency topic arises within 48 hours of a meeting, it may be added, but this has only happened once.

A.R.S. § 33-1248(F) reflects a state policy in favor of open meetings and reasonably informative agendas.

The Petitioner cited a May 29th meeting where a $33,000 expenditure for patio furniture was discussed and approved under a vague agenda item, without prior notice to homeowners.

Regarding executive sessions, Mr. Axelrod testified they are held only for permissible topics (legal, financial, employee matters) and are properly noticed.

The preponderance of evidence established that on at least one occasion, the Board failed to include a non-emergency topic on its agenda, leaving owners uninformed.

The Board holds executive sessions before open meetings without providing an agenda detailing the specific closed items being discussed.

Mr. Axelrod admitted that during his first one or two meetings as president, he may have discussed impermissible topics in executive session out of ignorance, but this was corrected.

Evidence also supported that on at least one occasion, the Board discussed inappropriate topics in an executive session.

Outcome: Petitioner deemed the prevailing party. The HOA was ordered to comply with A.R.S. § 33-1248.

Complaint 5: Structural Damage Repair

Allegation: The HOA violated its duty under Declaration Section 5.1 to “maintain, repair and replace all Common Elements” by failing to act expediently to repair structural damage from a pool leak.

Petitioner’s Arguments & Evidence

Respondent’s Arguments & Evidence

ALJ’s Findings & Conclusion

The HOA has demonstrated a history of slow response to a significant structural issue. Water leaks and cracks in the 4th-floor garage ceiling were noted as early as January 2020.

The Board has sole discretion over the “appropriate maintenance, repair, and replacement” of common elements.

No Violation Found.

Despite a March 2023 report (Rowley & Reynolds) and an April 2024 report (Gervasio) confirming ongoing damage and recommending destructive investigation, progress has been slow.

The Board has been following the recommendations of its hired experts. The first necessary step was locating the source of the leak, which was difficult and took time.

The Declaration requires the Board to maintain elements in “good condition and repair.” The Board’s discretion is the sole judge of what is appropriate.

The Petitioner believes the filing of the petition was the primary catalyst for the Board to finally take concrete action (destructive testing).

After the leak was fixed, the Board hired Gervasio to proceed with the next step, which was destructive testing.

The Board, if slowly, followed the recommendations of its experts.

The ongoing delay constitutes a failure of the Board’s duty to maintain the property.

The Board is actively addressing the issue. Mr. Axelrod testified that there was no indication of any immediate danger to the structure.

The Petitioner’s dissatisfaction with the pace of the action is not sufficient to prove that the Board failed to comply with the requirements of the Declaration.

Outcome: Respondent deemed the prevailing party on this issue.

——————————————————————————–

Final Order

The Administrative Law Judge issued the following orders on January 21, 2025:

1. Prevailing Parties: The Petitioner was deemed the prevailing party on Issues 2 (Puppy Potty) and 4 (Meetings/Notice). The Respondent was deemed the prevailing party on Issues 1 (Budget), 3 (News Crew), and 5 (Structural Damage).

2. Filing Fee Reimbursement: Respondent was ordered to pay Petitioner $1,000 for the filing fee within 30 days.

3. Compliance Order: Respondent was directed to comply with the requirements of A.R.S. § 33-1248 and its Community Documents going forward.

4. Civil Penalty: A civil penalty of $500 was levied against the Respondent for the violation related to the “puppy potty” (Issue 2).

Questions

Question

Does my HOA have to strictly follow the reserve study when creating the budget?

Short Answer

No, the budget is a reasonable estimate and does not need to perfectly reflect the reserve study.

Detailed Answer

The ALJ ruled that the HOA Declaration required the Board to create a budget based on what they believed would be required, but it did not mandate a perfect budget or one that strictly adhered to the reserve study or funded reserves at a specific level.

Alj Quote

The Declaration did not require a perfect budget; it required a reasonable estimate. . . . The Declaration did not require the reserve account to be funded at a specific level. The Declaration did not require the budget to reflect the reserve study.

Legal Basis

Declaration Section 7.1.1

Topic Tags

  • Budget
  • Reserves
  • HOA Discretion

Question

Can the HOA install a structure for pets (like a dog run) on the roof if the CC&Rs prohibit pets on common elements?

Short Answer

No, if the CC&Rs prohibit pets on common elements and the roof is defined as part of the common elements.

Detailed Answer

Even if an area like a roof is locked or inaccessible to residents, it is still considered a Common Element. If the Declaration prohibits pets on Common Elements (except for ingress/egress) and prohibits structures for pet care there, the HOA cannot install a facility like a 'puppy potty'.

Alj Quote

“Common Elements” included all parts of the building except for the units. Accordingly, the roof area was part of the Common Elements, even if it was previously inaccessible to residents. . . . The preponderance of the evidence established that the puppy potty violated Section 4.6.2 of the Declaration.

Legal Basis

Declaration Section 4.6.2

Topic Tags

  • Common Elements
  • Pets
  • CC&R Violation

Question

Can I force my HOA to make repairs faster if I am unhappy with the pace?

Short Answer

Generally no, as long as the Board is taking action and following expert advice.

Detailed Answer

The ALJ found that even if a homeowner is dissatisfied with the speed of repairs, it does not constitute a violation of the Declaration if the Board is exercising its discretion, engaging in testing, and following the recommendations of hired experts.

Alj Quote

The preponderance of the evidence did not establish that the Board of Directors failed to fulfil its obligations even if Petitioner was dissatisfied with the pace of action by the Board of Directors.

Legal Basis

Declaration Section 5.1

Topic Tags

  • Maintenance
  • Repairs
  • Board Discretion

Question

Must the HOA list all topics to be discussed on the meeting agenda?

Short Answer

Yes, for non-emergency topics, the agenda must inform owners of matters to be discussed.

Detailed Answer

State law requires agendas to contain information reasonably necessary to inform unit owners of matters to be discussed or decided. Failing to include a non-emergency topic on the agenda leaves owners uninformed and violates this requirement.

Alj Quote

The preponderance of the evidence established that on at least one occasion, the Board failed to include a non-emergency topic on its agenda, leaving unit owners uninformed about what would be discussed or decided.

Legal Basis

A.R.S. § 33-1248(E) and (F)

Topic Tags

  • Open Meetings
  • Agendas
  • Procedural Requirements

Question

Can the Board discuss any topic they want in an executive (closed) session?

Short Answer

No, executive sessions are limited to specific permissible topics.

Detailed Answer

The Board cannot discuss general business in executive sessions. In this case, evidence supported that the Board discussed inappropriate topics in a closed session, which is a violation.

Alj Quote

Additionally, the preponderance of the evidence supports that on at least one occasion, the Board discussed inappropriate topics in an executive session.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Executive Session
  • Open Meetings

Question

Is loud noise or light from a party on common property automatically a 'nuisance'?

Short Answer

No, ordinary party activities are not inherently unreasonable or offensive.

Detailed Answer

The ALJ determined that lights and noise associated with a party (even involving a news crew) in a downtown urban environment were not a nuisance because they were not proven to be offensive or an annoyance to a reasonable person.

Alj Quote

Ordinary components of a party, such as lights and noise, were not inherently offensive or an annoyance just because one was unfamiliar with those individuals causing the noise and light.

Legal Basis

Declaration Section 4.13

Topic Tags

  • Nuisance
  • Common Area Use

Question

Does the HOA Board have the final say on maintenance decisions?

Short Answer

Yes, the Board typically has sole discretion over appropriate maintenance.

Detailed Answer

The Declaration in this case granted the Board sole discretion to judge appropriate maintenance and repairs, provided the common elements were kept in good condition.

Alj Quote

The Board of Directors had sole discretion over the appropriate maintenance, repair, and replacement of all Common Elements.

Legal Basis

Declaration Section 5.1

Topic Tags

  • Maintenance
  • Board Powers

Case

Docket No
24F-H055-REL (Consolidated with 24F-H049-REL)
Case Title
The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995 v. The Summit at Copper Square Condominium Association
Decision Date
2025-01-21
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Questions

Question

Does my HOA have to strictly follow the reserve study when creating the budget?

Short Answer

No, the budget is a reasonable estimate and does not need to perfectly reflect the reserve study.

Detailed Answer

The ALJ ruled that the HOA Declaration required the Board to create a budget based on what they believed would be required, but it did not mandate a perfect budget or one that strictly adhered to the reserve study or funded reserves at a specific level.

Alj Quote

The Declaration did not require a perfect budget; it required a reasonable estimate. . . . The Declaration did not require the reserve account to be funded at a specific level. The Declaration did not require the budget to reflect the reserve study.

Legal Basis

Declaration Section 7.1.1

Topic Tags

  • Budget
  • Reserves
  • HOA Discretion

Question

Can the HOA install a structure for pets (like a dog run) on the roof if the CC&Rs prohibit pets on common elements?

Short Answer

No, if the CC&Rs prohibit pets on common elements and the roof is defined as part of the common elements.

Detailed Answer

Even if an area like a roof is locked or inaccessible to residents, it is still considered a Common Element. If the Declaration prohibits pets on Common Elements (except for ingress/egress) and prohibits structures for pet care there, the HOA cannot install a facility like a 'puppy potty'.

Alj Quote

“Common Elements” included all parts of the building except for the units. Accordingly, the roof area was part of the Common Elements, even if it was previously inaccessible to residents. . . . The preponderance of the evidence established that the puppy potty violated Section 4.6.2 of the Declaration.

Legal Basis

Declaration Section 4.6.2

Topic Tags

  • Common Elements
  • Pets
  • CC&R Violation

Question

Can I force my HOA to make repairs faster if I am unhappy with the pace?

Short Answer

Generally no, as long as the Board is taking action and following expert advice.

Detailed Answer

The ALJ found that even if a homeowner is dissatisfied with the speed of repairs, it does not constitute a violation of the Declaration if the Board is exercising its discretion, engaging in testing, and following the recommendations of hired experts.

Alj Quote

The preponderance of the evidence did not establish that the Board of Directors failed to fulfil its obligations even if Petitioner was dissatisfied with the pace of action by the Board of Directors.

Legal Basis

Declaration Section 5.1

Topic Tags

  • Maintenance
  • Repairs
  • Board Discretion

Question

Must the HOA list all topics to be discussed on the meeting agenda?

Short Answer

Yes, for non-emergency topics, the agenda must inform owners of matters to be discussed.

Detailed Answer

State law requires agendas to contain information reasonably necessary to inform unit owners of matters to be discussed or decided. Failing to include a non-emergency topic on the agenda leaves owners uninformed and violates this requirement.

Alj Quote

The preponderance of the evidence established that on at least one occasion, the Board failed to include a non-emergency topic on its agenda, leaving unit owners uninformed about what would be discussed or decided.

Legal Basis

A.R.S. § 33-1248(E) and (F)

Topic Tags

  • Open Meetings
  • Agendas
  • Procedural Requirements

Question

Can the Board discuss any topic they want in an executive (closed) session?

Short Answer

No, executive sessions are limited to specific permissible topics.

Detailed Answer

The Board cannot discuss general business in executive sessions. In this case, evidence supported that the Board discussed inappropriate topics in a closed session, which is a violation.

Alj Quote

Additionally, the preponderance of the evidence supports that on at least one occasion, the Board discussed inappropriate topics in an executive session.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Executive Session
  • Open Meetings

Question

Is loud noise or light from a party on common property automatically a 'nuisance'?

Short Answer

No, ordinary party activities are not inherently unreasonable or offensive.

Detailed Answer

The ALJ determined that lights and noise associated with a party (even involving a news crew) in a downtown urban environment were not a nuisance because they were not proven to be offensive or an annoyance to a reasonable person.

Alj Quote

Ordinary components of a party, such as lights and noise, were not inherently offensive or an annoyance just because one was unfamiliar with those individuals causing the noise and light.

Legal Basis

Declaration Section 4.13

Topic Tags

  • Nuisance
  • Common Area Use

Question

Does the HOA Board have the final say on maintenance decisions?

Short Answer

Yes, the Board typically has sole discretion over appropriate maintenance.

Detailed Answer

The Declaration in this case granted the Board sole discretion to judge appropriate maintenance and repairs, provided the common elements were kept in good condition.

Alj Quote

The Board of Directors had sole discretion over the appropriate maintenance, repair, and replacement of all Common Elements.

Legal Basis

Declaration Section 5.1

Topic Tags

  • Maintenance
  • Board Powers

Case

Docket No
24F-H055-REL (Consolidated with 24F-H049-REL)
Case Title
The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995 v. The Summit at Copper Square Condominium Association
Decision Date
2025-01-21
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Donna Hulbert (petitioner)
    The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995
    Trustee and representative of Petitioner; also testified as a witness.
  • Jay Parry Erb (witness)
    Former Board Treasurer (April 2023 – August 2023).
  • Debbie Goodwin (witness)
    Prior board member and financial professional consulted by Mr. Erb.

Respondent Side

  • Daryl Wilson (HOA attorney)
    Gordon Rees
  • Greg Axelrod (board member)
    The Summit at Copper Square Condominium Association
    Current Board President as of hearing.
  • Zackary Beckham (board member)
    The Summit at Copper Square Condominium Association
    Former Board President.
  • Christy Woodruff (board member)
    The Summit at Copper Square Condominium Association
  • Mr. Grodier (board member)
    The Summit at Copper Square Condominium Association
  • Dana Knight (board member)
    The Summit at Copper Square Condominium Association
    Newest board member.

Neutral Parties

  • Samuel Fox (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
  • Felicia Del Sol (ALJ)
    OAH
    Signed continuance order.

Other Participants

  • Brad Palmer (property manager)
    First Service Residential
    Former General Manager.
  • Dan Harvey (property manager)
    First Service Residential
    General Manager.
  • Kimberly Greenland (property manager)
    First Service Financial
    Financial Controller.
  • Carla Chung (property manager)
    First Service Financial
    Senior VP of Cash Management and Lending.
  • Angelica Romero (property manager)
    HOA Management
    Assistant General Manager.
  • Ward Holland (witness)
    Gervasio & Assoc., Inc. Consulting Engineers
    Engineer/Architect who performed inspections.
  • Jack Gordon (witness)
    Gervasio & Assoc., Inc. Consulting Engineers
    Engineer who performed inspections.
  • Frank Derso (property manager)
    HOA Management
    Manager/Supervisor mentioned regarding easement claims.
  • Holly (property manager)
    First Service Residential
    Mid-level manager.
  • Hal (committee member)
    Resident involved in budget committee.
  • Scott McCain (committee member)
    Resident involved in budget committee.
  • Tony Carro (engineer)
    Building engineer/staff.
  • Keith (engineer)
    Building engineer/staff.

The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995 v.

Posted on by

Case Summary

Case ID 24F-H055-REL
Agency —
Tribunal —
Decision Date 2025-01-21
Administrative Law Judge SF
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995 Counsel —
Respondent The Summit at Copper Square Condominium Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H055-REL Decision – 1214040.pdf

Uploaded 2026-04-24T12:25:43 (45.7 KB)

24F-H055-REL Decision – 1218977.pdf

Uploaded 2026-04-24T12:25:46 (46.3 KB)

24F-H055-REL Decision – 1218981.pdf

Uploaded 2026-04-24T12:25:49 (5.9 KB)

24F-H055-REL Decision – 1219895.pdf

Uploaded 2026-04-24T12:25:53 (40.5 KB)

24F-H055-REL Decision – 1235253.pdf

Uploaded 2026-04-24T12:25:56 (47.1 KB)

24F-H055-REL Decision – 1264402.pdf

Uploaded 2026-04-24T12:26:00 (277.9 KB)

Briefing Document: Hulbert Family Trust v. The Summit at Copper Square Condominium Association

Executive Summary

This briefing document analyzes the consolidated administrative matters (Nos. 24F-H049-REL and 24F-H055-REL) involving the Gregory M. and Donna P. Hulbert Family Trust (the "Petitioner") and The Summit at Copper Square Condominium Association (the "Association" or "Respondent"). The case, presided over by Administrative Law Judge (ALJ) Samuel Fox, centers on allegations of fiduciary neglect, financial mismanagement, and violations of the Association’s Declaration (CC&Rs).

The Petitioner, represented by Donna Hulbert, argues that the Association’s Board of Directors has failed in its stewardship of a 23-story residential high-rise. Key grievances include a multi-year delay in addressing structural damage caused by a swimming pool leak, a critically underfunded reserve and operating budget, and unauthorized modifications to common areas. The Respondent contends that these matters fall within the Board’s broad discretionary powers and that they have acted reasonably by following the advice of hired professionals.

Detailed Analysis of Key Themes

1. Structural Integrity and Maintenance Delays

The central physical issue involves a persistent leak from the fifth-floor swimming pool area through an 18-inch concrete slab into the fourth-floor garage ceiling.

  • Timeline of Neglect: Evidence suggests damage was noted as early as January 2020. Despite recommendations for investigation in 2022, no formal forensic investigation occurred until September 2023.
  • Expert Findings: Reports from Jervasio (April and July 2024) identified water infiltration causing ongoing damage, including rebar corrosion (evidenced by staining) and deterioration of the slab.
  • Controversy of Action: The Petitioner alleges the Board intentionally delayed remediation by seeking redundant opinions from the same firm. The Respondent argues the delay was necessary to identify the specific source of the leak, which has only recently been repaired.
  • Long-term Risks: Experts indicate that while there is no immediate loss of slab strength, the deterioration is progressive due to chloride ions from pool water adhering to the rebar, which continues to corrode even after the leak is stopped.
2. Financial Stewardship and Budgetary Practices

The Petitioner presents a detailed critique of the Association's financial health, alleging the Board ignores standard accounting and management practices provided by their management company, First Service.

  • Operating Fund Deficiencies: Management recommends an operating account funded at three times monthly expenses. The Petitioner alleges it is currently funded at approximately 0.3 times expenses (30%).
  • Reserve Fund Crisis: The Petitioner calculates that if all required reserve projects for the current year are executed, the reserves will be exhausted, potentially leaving a $150,000 deficit. The current funding level is estimated at 25-29%, whereas a level below 30% is considered a high risk for special assessments.
  • Budgeting Methodology: Allegations state the Board sets the budget based on the prior year's budget plus a flat 7.5% increase, rather than using "actual" historical expenditures. This has led to significant overruns, specifically in plumbing/water damage (budgeted $20k vs. ~$89k actual in 2023).
  • Reserve Borrowing: To cover operating shortfalls, the Association reportedly borrowed nearly $400,000 from the reserve fund between 2022 and 2023.
3. Declaration Violations and Common Area Use

The dispute extends to the Board’s interpretation of the Association's Declaration regarding common elements.

  • The "Puppy Potty": The Board installed a dog pad on the roof. The Petitioner argues this violates Article 5 of the Declaration, which prohibits pets on common areas except for ingress and egress through specific service areas.
  • Third-Party Access: The Board allowed news crews onto common areas during the Diamondbacks' playoffs. The Petitioner contends the Declaration limits common area access to owners and their guests, and the Board lacks the unilateral authority to grant easements to strangers for media purposes.
  • Governance Discretion: The Respondent argues the Board has the "sole discretion" regarding the use, maintenance, and repair of common areas.
4. Transparency and Governance

Petitioner claims a systematic effort to marginalize homeowner participation:

  • Meeting Conduct: Meeting agendas are described as lacking specifics. Homeowners are limited to 30 minutes of total collective comment.
  • Information Access: The Petitioner alleges critical reports (like the Jervasio structural report) were withheld until forced by formal document requests.
  • Remote Access: The Board recently eliminated remote access (Google Meet/Teams) for board meetings, which the Petitioner views as an attempt to silence opposition from non-resident owners.

Important Quotes

Donna Hulbert (Petitioner)

"In large part, the most important evidence here today is that there has been leaking from the fifth floor swimming pool area down through an 18-inch concrete slab to the fourth floor garage ceiling… It’s been going on for over five years."

"We have an operating account that according to our management company should be funded at three times operating expenses. It is funded at 0.3 times operating expenses."

"As early as January of 2020, there was evidence of damage… the deterioration would continue… if not remediated, there would be loss of strength of a concrete slab."

"You don’t just get to as the board president, no matter how well-meaning, disregard all the documents and put a puppy potty on the roof."

Darl Wilson (Respondent Counsel)

"These are board decisions where the board has a lot of discretion, especially in the budgetary and the repairs… The CC&R specifically states that the repairs and maintenance are the sole discretion of the board."

"Just because there’s leaking and cracking doesn't necessarily mean that there is a structural problem that needs to be repaired. Concrete cracks and leaks all the time."

"Miss Hulbert wants her budget her way and she wants things to be ran at the complex her way. And even if she was a board member, she doesn't get it her way."

Administrative Law Judge Samuel Fox

"My power to order things is extremely limited to requiring that they follow the documents and the law… I cannot create an enforceable order for them to do anything in particular."

Summary of Financial Data Points

Category Recommended/Budgeted Actual/Reported
Operating Fund Level 3.0x Monthly Expenses 0.3x Monthly Expenses
Reserve Funding Level Fully Funded (~$5M range) 25% – 29% Funded
Plumbing/Water Repair (2023) $20,000 ~$89,000
Legal Expenses (2023) $20,000 $35,000
Reserve Borrowing N/A ~$400,000 (to cover operations)
Billboard Revenue (2023) N/A $120,000 – $160,000
Unbudgeted Tax Payment $0 ~$36,000

Actionable Insights

  • Structural Remediation: Destructive testing (coring) was scheduled to begin in late August 2024. The results of this testing are critical for determining the extent of rebar corrosion and the necessary scope of remediation.
  • Fiscal Correction: The Association's reliance on reserve borrowing to fund operating expenses is unsustainable. A transition to budgeting based on actual historical costs—particularly for recurring water and plumbing issues—is necessary to prevent future deficits.
  • Reserve Stabilization: At a funding level near 25%, the Association faces a high probability of a special assessment. The Board must reconcile the "fully funded" recommendations of the reserve study with current spending on capital improvements.
  • Legal Compliance: If the Board wishes to maintain the roof-top dog pad or allow third-party media access, they may need to seek a formal amendment to the Declaration to avoid ongoing claims of breach of fiduciary duty.
  • Transparency Protocols: Improving the specificity of meeting agendas and providing proposals to homeowners in advance of votes would mitigate claims of "governance by whim" and ensure meaningful homeowner participation.

Study Guide: The Hulbert Family Trust v. The Summit at Copper Square Condominium Association

This study guide provides a comprehensive overview of the administrative hearing regarding the dispute between The Gregory M and Donna P Hulbert Family Trust (Petitioner) and The Summit at Copper Square Condominium Association (Respondent). It explores issues of high-rise structural maintenance, fiduciary duties in association management, and the financial complexities of reserve funding.

I. Overview of the Administrative Proceeding

The matter involves consolidated cases (No. 24F-H049-REL and 24F-H055-REL) heard in the Office of Administrative Hearings (OAH). The OAH is an independent state agency authorized under ARS § 41-1092 to conduct hearings regarding state regulations.

Key Entities and Parties
  • The Petitioner: Donna Hulbert, representing her family trust as a homeowner at The Summit.
  • The Respondent: The Summit at Copper Square Condominium Association, a 23-story residential high-rise managed by First Service Residential.
  • Presiding Official: Administrative Law Judge (ALJ) Sam Foss (also referred to as Samuel Fox in documents).
  • Central Argument: The Petitioner alleges the Board of Directors failed in its stewardship, specifically regarding structural repairs, financial budgeting, and adherence to the community’s Declaration (CC&Rs).

II. Key Concept: Structural Integrity and the "Duty to Maintain"

A primary point of contention is the physical maintenance of the common elements, specifically an ongoing leak from the fifth-floor pool area.

Timeline of the Structural Issue
Date Event
January 2020 Initial evidence of damage/cracking noted in the fourth-floor garage ceiling.
2022 Area re-investigated; cracks noted to have extended.
September 2023 Initial forensic investigation by a registered architect.
January 2024 Additional investigation conducted by Jervasio (engineering firm).
April 2024 Report by Ward Holland (Jervasio) indicates water infiltration is causing ongoing damage to the structural slab.
July 2024 Second Jervasio report (Jack Gordon) confirms deterioration and recommends destructive testing (core samples).
August 2024 Destructive testing scheduled to begin.
Technical Considerations
  • Concrete Slab: The pool area sits above an 18-inch concrete slab that separates the pool from the garage.
  • Corrosion Mechanism: Chlorinated water from the pool seeps into the concrete, causing chloride ions to bond with and corrode the steel rebar within the slab. This process continues even if the leak is stopped because the chemicals remain in the concrete.
  • Destructive vs. Visual Testing: Visual inspections only identified staining and cracking. Destructive testing involves "coring" samples of the concrete for laboratory analysis to determine the extent of rebar corrosion and loss of structural strength.

III. Key Concept: Financial Stewardship and Reserve Funding

The Petitioner argues that the Board violated Article 7 of the Declaration, which requires the adoption of a budget that estimates total funds needed for common expenses and adequate reserves.

Financial Health Metrics
  1. Operating Reserves: Management recommendations suggest an operating account should hold three times monthly operating expenses. Evidence suggests the Association’s account was funded at approximately 0.3 times expenses.
  2. The "30% Rule": Reserve studies and management advice indicate that if reserves fall below 30% funding, the association faces a high risk of a "special assessment" (an unplanned fee charged to all owners).
  3. Revenue vs. Expense Budgeting: The Petitioner alleges the Board used "surface level" planning—raising rates by a flat percentage (7.5%) rather than analyzing actual historical costs (e.g., plumbing and water damage repairs consistently exceeded their $20,000 budget, reaching nearly $90,000).
Accounting Discrepancies Cited
  • Billboard Income: The Association received over $120,000 (up to $170,000 in some years) from billboards. Taxes on this income were reportedly not estimated or paid quarterly as required by corporate tax rates, leading to unplanned lump-sum payments ($36,000).
  • Reserve Borrowing: The Board allegedly borrowed nearly $400,000 from the reserve account to cover operating shortfalls in previous years.
  • Accrual Errors: Invoices (such as an insurance deposit and a $35,400 plumbing bill) were reportedly held for months due to cash flow issues or misclassified across fiscal years to make balance sheets appear healthier.

IV. Key Concept: Adherence to the Declaration (CC&Rs)

Disputes arose over the Board's discretion versus the mandatory language of the Association's governing documents.

  • Article 5: States the Association shall maintain, repair, and replace all common elements. The Petitioner argues this is a mandatory duty, not a discretionary choice for the Board.
  • Common Area Usage: The Declaration prohibits pets on common areas except for "ingress and egress" (entering and exiting). The Board allowed a "dog pad" on the roof.
  • Third-Party Access: The Petitioner challenged the Board's decision to allow news crews onto common areas during baseball playoffs, citing the Declaration's clause that common areas are for owners and their guests.
  • Transparency: Issues were raised regarding meeting notices that lacked specific proposals or writing, and the decision to limit or remove remote (virtual) access to board meetings.

V. Short-Answer Practice Questions

  1. What is the legal basis for the Office of Administrative Hearings' authority in this case?
  • Answer: The OAH is authorized under ARS section 41-1092 to conduct hearings arising out of state regulations, including condominium act disputes.
  1. Why did the Petitioner argue that stopping the pool leak was insufficient to stop the structural damage?
  • Answer: Because the chlorinated water introduced chloride ions into the 18-inch concrete slab, which continue to corrode the rebar even after the water source is removed.
  1. According to the Petitioner, what is the "straw man" defense used by the Respondent?
  • Answer: The Respondent characterized the Petitioner as a "disgruntled homeowner" to dismiss her claims, rather than addressing the factual merits of the maintenance and financial allegations.
  1. What specific financial risk occurs when an Association’s reserves fall to 20-30%?
  • Answer: It creates a high likelihood of a special assessment, and property values may decline as the units are viewed as "fire sale" risks.
  1. How did the Board justify its decisions regarding repairs and budgeting?
  • Answer: The Board argued they have "sole discretion" under the CC&Rs and that they were following the advice of hired professionals.

VI. Essay Prompts for Deeper Exploration

  1. Mandatory Duty vs. Board Discretion: Compare the Petitioner’s interpretation of Article 5 (the duty to maintain) with the Respondent’s assertion of "sole discretion." At what point does a Board’s delay in maintenance constitute a breach of fiduciary duty?
  2. The Ethics of Transparency in HOA Governance: Discuss the impact of removing remote access to meetings and providing vague agendas. Does the law’s requirement for "meaningful comment" by homeowners necessitate providing all proposals and documents prior to the meeting?
  3. Fiscal Sustainability in High-Rise Management: Analyze the dangers of "surface level budget planning." Using the Summit at Copper Square as a case study, explain how underestimating tax liabilities and ignoring historical expense trends (like plumbing) can lead to a "special assessment" crisis.

VII. Glossary of Important Terms

Term Definition
Accrual Expense An accounting term for an expense that has been incurred but not yet paid; often used in the hearing to track when work was performed versus when it hit the balance sheet.
CC&Rs / Declaration The Covenants, Conditions, and Restrictions; the primary governing document that outlines the rules of the condominium and the duties of the Board.
Common Elements Parts of the condominium property that are not owned by a single unit owner but are shared by all (e.g., the pool, garage, roof).
Destructive Testing An engineering method involving the removal of physical samples (coring) of a structure to test internal integrity.
Fiduciary Duty The legal and ethical obligation of Board members to act in the best interests of the Association and its homeowners.
Post-Tension Cable A system of high-strength steel cables used to reinforce concrete slabs; accidentally cutting these during repairs is expensive and dangerous.
Reserve Study A budget planning tool conducted by experts every three years to estimate the remaining life of building components and the funds needed for their eventual replacement.
Special Assessment A one-time fee charged to all homeowners to cover a budget shortfall or an unplanned major repair.
Stack Jetting A high-pressure water cleaning process for a building's vertical plumbing pipes to prevent backups.
Variance Report An accounting document that compares actual expenses to the budgeted amounts, highlighting discrepancies over a certain threshold (e.g., $500).

Cracks in the Foundation: Key Takeaways from the Summit at Copper Square HOA Legal Dispute

1. Introduction: A High-Rise at a Crossroads

Standing 23 stories tall directly across from Chase Field, The Summit at Copper Square is a landmark of the Phoenix skyline currently mired in a cautionary tale of governance failure. The legal battle in the Office of Administrative Hearings, The Gregory M. and Donna P. Hulbert Family Trust v. The Summit at Copper Square Condominium Association, exposes a widening rift between professional stewardship and board-level "whims."

As an analyst, I must first frame the limitations of this conflict: Administrative Law Judge Sam Fox explicitly noted that his power is "extremely limited" to requiring compliance with governing documents and law. He cannot order specific repair methods or substitute his discretion for the board’s. This leaves homeowners in a precarious "crossroads"—fighting for oversight in a system where a judge can identify a breach but cannot always hammer the nails of the remedy.

2. The Structural Crisis: The 18-Inch Slab and the Five-Year Leak

The most damning evidence involves a persistent leak from the fifth-floor pool area through an 18-inch concrete slab into the fourth-floor garage. The timeline illustrates a pattern of deferred maintenance that borders on negligence:

  1. January 2020: Cracks first identified in the garage ceiling and marked for monitoring.
  2. 2022: Visual evidence confirms the cracks have extended; professional investigation is recommended but ignored.
  3. March/April 2023: The "Rally & Reynolds" forensic report is completed. This 435-page document (with 37 core pages of analysis) highlights corrosion and structural concerns, yet action remains stalled.
  4. September 2023: Jervasio & Associates (Ward Holland) performs a visual inspection but requests further time.
  5. January 2024: Jervasio conducts a follow-up investigation.
  6. April 2024: Formal report issued, indicating water infiltration is causing ongoing damage to the structural slab and recommending destructive testing.
  7. July 2024: A second Jervasio report (Jack Gordon) confirms slab deterioration and staining indicating rebar corrosion.
  8. August 2024: Destructive testing—drilling core samples to expose rebar—is finally scheduled to begin the Monday following the legal hearing.

The Technical Reality: The board’s defense—that the leak has now been "stopped"—is scientifically flawed. Chlorinated water introduces chloride ions that bond chemically to the steel rebar. These ions remain adhered to the metal even in a dry environment, continuing the corrosion process and expanding the metal until the concrete spalls and the slab loses structural integrity. Stopping the water is only the first step; the contaminated concrete must be remediated to halt the chemical decay.

3. Financial Red Flags: Reserves, Budgets, and "Blunders"

The Association’s financial health is in a state of managed decline. Beyond typical underfunding, the board has engaged in what the petitioner accurately characterized as "unsustainable" financial maneuvers.

The Reserve Fund Reality Check
Metric Management/Expert Recommendation Actual Status (Mid-2024)
Operating Account Balance 3.0x monthly operating expenses 0.3x monthly operating expenses
Monthly Reserve Contribution ~$45,000 / month $29,000 / month
Reserve Funding Level >30% (to avoid special assessments) 25%–29% (Projected)
Absolute Net Position Maintain positive liquidity $150,000 Deficit (If current-year study items are completed)

Budget Blunders and Negligence:

  • The $400,000 "Loan": Between 2022 and 2023, the board transferred approximately $400,000 from the reserve fund to cover operating expenses. This is a clear indicator that the operating budget is decoupled from reality.
  • Tax Liability Negligence: The HOA received $120,000–$160,000 in billboard revenue. Despite homeowner warnings, the board failed to budget for the resulting tax liability (estimated at $36,000), paying only $1,300 in estimated taxes initially.
  • Surface-Level Planning: The board utilized a flat 7.5% "escalation rate" for budget line items instead of analyzing actual history. For example, "Water Damage Repairs" was budgeted at $20,000 in 2023, while actual expenditures reached $89,000.
4. Governance and the Declaration: Pets, Guests, and "Puppy Patties"

The board’s exercise of discretion has frequently bypassed the Association’s Declaration, specifically Articles 5 and 7.

  • Article 5 (Ingress and Egress): The Declaration limits pets in common areas strictly to entering and exiting the building via the service elevator and loading dock. The permanent installation of a "Puppy Potty" (dog pad) on the roof is a direct violation of these location restrictions and the 40-pound weight limit.
  • Breach of Exclusive Use: During the Arizona Diamondbacks’ playoff run, the board allowed news crews and non-residents to occupy common areas. Article 5 guarantees common areas for the "exclusive use" of owners and their guests. The board’s defense—that this provides "community exposure"—does not override the recorded Declaration.
5. The Transparency Gap: Communication and Participation

Governance has moved toward a "closed-loop" system that marginalizes the membership. A notable shift was the transition from virtual/remote meeting access to in-person-only meetings. This move specifically disenfranchised owners like the Hulberts, who reside in California and cannot fly to Phoenix for every board discussion.

Furthermore, the board implemented a 30-minute total window for all homeowner comments. In a building with over 150 units, this allows for mere seconds per owner, rendering meaningful dialogue on complex structural or financial issues mathematically impossible. Agendas often lack specific proposals or background documents, preventing residents from offering informed input before votes are cast.

6. Conclusion: Lessons for the Modern Homeowner

The Summit at Copper Square dispute is a textbook case of "straw man defense" tactics—where a board dismisses data-driven criticism by labeling the messenger a "disgruntled homeowner." However, the data does not lie: five years of a known leak and a $400,000 reserve raid are not "matters of opinion."

Three Critical Takeaways
  1. The High Cost of Deferment: Proactive investigation in 2020 would have cost a fraction of the looming remediation. Delaying structural repairs is not a cost-saving measure; it is a high-interest loan taken against the building's future.
  2. The Fiction of Flat-Rate Increases: Budgeting based on a 7.5% "escalation" while actual plumbing costs exceed the budget by 300% is a failure of fiduciary care. Financial planning must be grounded in actual historical data, not arbitrary caps designed to keep dues artificially low.
  3. Rule of Law vs. Board Discretion: The Declaration is the supreme law of the community. Board discretion is not a "blank check" to bypass rules regarding pet locations or common area usage. If a board wishes to change the culture of a building, they must amend the documents, not ignore them.

In high-rise living, the stability of the concrete is inextricably linked to the transparency of the boardroom. When one cracks, the other inevitably follows.

Case Participants

Petitioner Side

  • Donna Hulbert (Petitioner / Representative)
    The Gregory M and Donna P Hulbert Family Trust dated May 25, 1995
    Trustee of the petitioner trust and resident of Unit 1302.
  • Jay Perry Erb (Witness / Former Board Treasurer)
    The Summit at Copper Square Condominium Association
    Former treasurer of the board of directors; called as a witness by the petitioner.

Respondent Side

  • Daryl Wilson (Attorney)
    Gordon Rees
    Attorney representing the respondent, The Summit at Copper Square Condominium Association.
  • Greg Axelrod (Witness / Board President)
    The Summit at Copper Square Condominium Association
    Current board president; called as a witness by the respondent.
  • Zackary Beckham (Witness / Former Board President)
    The Summit at Copper Square Condominium Association
    Former board president; called as a witness by the respondent.

Neutral Parties

  • Samuel Fox (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding Administrative Law Judge who issued the final decision.
  • Felicia Del Sol (Administrative Law Judge)
    Office of Administrative Hearings
    Administrative Law Judge who issued an order granting a continuance.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Commissioner to whom the orders and decisions were transmitted.
  • Ward Holland (Inspector / Engineer)
    Gervasio & Assoc., Inc.
    Conducted an initial inspection of the garage cracks and ceiling damage.
  • Jack Gordon (Engineer)
    Gervasio & Assoc., Inc.
    Authored the July 15th structural report regarding concrete testing and corrosion.

Other Participants

  • Brad Palmer (Former General Manager)
    First Service Residential
    Former general manager for the association mentioned during testimony.
  • Dan Harvey (General Manager)
    First Service Residential
    General manager for the association mentioned during testimony.
  • Carla Chung (Senior Vice President of Cash Management and Lending)
    First Service Financial
    Mentioned in testimony regarding the restructuring of the reserve portfolio.
  • Kimberly Greenland (Financial Controller)
    First Service Residential
    Financial controller mentioned during testimony regarding budget and reserve accounts.
  • Frank Derso (Manager)
    First Service Residential
    Mentioned during testimony regarding the granting of access to the news crew.
  • Angelica Romero (Assistant General Manager)
    First Service Residential
    Mentioned during testimony as the person who handled meeting organization and notices.
  • Deborah Goodwin (Former Board Member)
    The Summit at Copper Square Condominium Association
    Former board member with financial experience who consulted on the budget.
  • Christy Woodruff (Board Member)
    The Summit at Copper Square Condominium Association
    Mentioned as a board member contacted regarding the news crew presence.
  • Scott McCain (Budget Committee Member)
    The Summit at Copper Square Condominium Association
    Mentioned as a resident participating on the budget committee.
  • Dana Knight (Board Member)
    The Summit at Copper Square Condominium Association
    Mentioned as the newest board member.

Cross Creek Ranch Community Association v. Turquoise Textures, LLC

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Case Summary

Case ID 25F-H005-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2024-12-16
Administrative Law Judge NR
Outcome Petitioner's petition granted.
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Cross Creek Ranch Community Association Counsel —
Respondent Turquoise Textures, LLC Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H005-REL Decision – 1246254.pdf

Uploaded 2026-04-24T12:28:17 (51.8 KB)

25F-H005-REL Decision – 1252576.pdf

Uploaded 2026-04-24T12:28:21 (148.6 KB)

25F-H005-REL Decision – 1252586.pdf

Uploaded 2026-04-24T12:28:24 (55.1 KB)

Briefing Document: Cross Creek Ranch Community Association vs. Turquoise Textures, LLC

Executive Summary

This briefing document synthesizes the proceedings and outcome of the case Cross Creek Ranch Community Association vs. Turquoise Textures, LLC (No. 25F-H005-REL), heard by the Arizona Office of Administrative Hearings (OAH). The central dispute involved the unauthorized clear-cutting of approximately 30 old-growth trees and native vegetation from a lot owned by William D. Durham, principal of Turquoise Textures, LLC.

The Administrative Law Judge (ALJ), Nicole Robinson, ultimately ruled in favor of the Petitioner, the Cross Creek Ranch Community Association (HOA). The decision found that Mr. Durham violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. While Mr. Durham’s primary defense was to blame his general contractor, the ALJ’s decision was based on credible testimony from the contractor implicating Mr. Durham, a documented pattern of non-compliance by Mr. Durham, and his own admission that the lot was cleared in violation of his approved plans.

The HOA sought a court order compelling Mr. Durham to plant 30 trees, 10-12 feet in height, by March 15, 2025. The final OAH order granted the HOA’s petition, requiring Mr. Durham to comply with the governing documents and reimburse the association’s $500 filing fee.

Case Overview

Parties Involved

Name / Entity

Key Role/Witness For

Petitioner

Cross Creek Ranch Community Association

Homeowners’ Association alleging violation of governing documents.

Respondent

Turquoise Textures, LLC (William D. Durham)

Property owner accused of violating governing documents.

Adjudicator

Nicole Robinson

Administrative Law Judge, Office of Administrative Hearings.

Witness

Greg Chambers

Petitioner; HOA Board Member.

Witness

Steve Germaine

Petitioner; Member of Architectural Review Committee (ARC), former ARC Chair.

Witness

Daniel Donahghue

Petitioner; Current ARC Chair and Board Member.

Witness

Jeffrey Penchina

Petitioner; Member of the ARC.

Witness

Timothy Smith

Petitioner; General Contractor hired by William Durham.

Core Allegation and Relief Sought

The HOA filed a petition on July 16, 2024, alleging that in September 2023, the Respondent clear-cut his lot of 20-30 old-growth trees (Junipers and Pinions) and native vegetation. This action was in direct violation of his ARC-approved plans, which were contingent on those plantings remaining in place. The HOA contended this violated:

• CC&Rs Article 3, Section 3.1.3: Pertaining to architectural approval and control.

• CC&Rs Article 7, Section 7.5: Pertaining to improper maintenance and use of lots.

The HOA argued that the clear-cutting was done to improve Mr. Durham’s view and detrimentally affected the community’s appearance and value. The specific relief requested was an order compelling Mr. Durham to plant 30 trees (10 to 12 feet in size) and replace additional vegetation by March 15, 2025.

Chronology of Key Events

• April 18, 2021: Prior to purchasing the lot, William Durham meets with ARC member Steve Germaine and is informed via a follow-up email that “The ARC does not approve the removal of trees… solely for the purpose of preserving or improving a view.”

• May 3, 2021: William Durham purchases Lot 62 in Cross Creek Ranch.

• July 7, 2022: Mr. Durham receives permission from the ARC to remove four specific dead trees.

• July 9, 2022: Mr. Germaine observes Mr. Durham removing more than the four approved dead trees and instructs him to stop.

• June 7, 2023: The ARC approves Mr. Durham’s residential and landscape plans, which show the preservation of existing trees and vegetation in the “transitional area.”

• August 29, 2023: A pre-construction meeting is held with Mr. Durham, his General Contractor (GC) Timothy Smith, and ARC members. ARC member Jeffrey Penchina testified that Mr. Durham personally assured him no trees outside the construction envelope would be removed.

• September 2023: Over approximately three days, Mr. Smith’s company clear-cuts the lot of 30+ old-growth trees and shrubs.

• October 2023: Following the discovery of the clearing, the ARC sends a letter to Mr. Durham to cease construction.

• October 6, 2023: Mr. Durham files a complaint with the Arizona Registrar of Contractors (ROC) against Tim Smith, blaming him for the tree removal.

• February 9, 2024: Mr. Durham transfers the property title to Turquoise Textures, LLC.

• July 16, 2024: The HOA files its petition with the Arizona Department of Real Estate.

• October 15, 2024: Mr. Durham submits a revised landscape plan to the HOA.

• November 4, 2024: The HOA responds to the plan, requiring 10-12 foot trees for remediation.

• November 11, 2024: Mr. Durham sends a detailed email responding to the HOA’s requirements.

• November 26, 2024: The OAH hearing is conducted virtually.

• December 16, 2024: The ALJ issues a final decision granting the HOA’s petition. A separate minute entry notes that documents filed by Mr. Durham after the hearing record closed would not be considered.

Key Testimony and Arguments

Petitioner’s Case (Cross Creek Ranch HOA)

The HOA presented a case built on documented warnings, contractual obligations, and direct eyewitness testimony.

• Established Pattern of Non-Compliance: Witness Steve Germaine testified that he warned Mr. Durham about the rules regarding tree removal for views even before the lot was purchased in April 2021. He further testified to the incident on July 9, 2022, where he witnessed Mr. Durham cutting down live trees without authorization, beyond the four dead trees he had permission for.

• Violation of Approved Plans: Daniel Donahghue and Jeffrey Penchina testified that during the pre-construction meeting on August 29, 2023, the rules were clearly explained. Mr. Penchina stated, “he assured me that nothing outside of the construction envelope would be removed.” The approved plans, entered as evidence, explicitly showed the preservation of the natural landscape in the transitional area.

• Direct Culpability via GC Testimony: The general contractor, Timothy Smith, provided critical testimony directly contradicting Mr. Durham’s defense.

◦ Mr. Smith stated that Mr. Durham directed the clear-cutting: “he started to point out at trees that were in disturbing the… surrounding views… I let him know, well, now we’re going outside of the construction envelope. And he said he doesn’t really care.”

◦ He testified that Mr. Durham was on-site during the three-day clearing process and that the business relationship fractured later over non-payment for subsequent work, not over the tree removal.

Respondent’s Defense (William D. Durham)

Mr. Durham admitted the plans were violated but placed all blame on his general contractor and portrayed the HOA as a hostile and unresponsive entity.

• Blame Assigned to General Contractor: Mr. Durham’s central argument was that his GC acted against instructions. He stated, “I was forced to have a GC that I didn’t need, and the GC insisted on doing all the initial work… He ignored all the directives from Mark and from me.” He testified that he “absolutely not” directed Mr. Smith to clear the land and claimed to be out of town for most of the clearing.

• Allegations of HOA Harassment and Inefficiency: Mr. Durham repeatedly described the HOA as slow, uncooperative, and corrupt.

◦ He claimed he was trying to remediate the issue but the HOA was “very very very slow to ever get back to me.”

◦ He accused the HOA of “moving the goalposts” by demanding 10-12 foot trees, a requirement he said was never mentioned until the hearing.

◦ He testified he was facing over “$40,000 in fines” and was being harassed by specific members. He stated, “There’s a degree of corruption and cronyism in this HOA that is deeply disturbing.”

• Proactive Remediation Efforts: Mr. Durham asserted he had been proactive, submitting a new landscape plan with 32 plants. He testified, “all I need is their input back that’s helpful to resolve everything.” He repeatedly requested a single liaison from the ARC to facilitate faster solutions.

Administrative Law Judge’s Decision

The ALJ’s decision, issued December 16, 2024, was a conclusive victory for the Petitioner.

Findings of Fact

The ALJ established a clear factual record that supported the HOA’s position, highlighting:

• The pre-purchase warning to Mr. Durham in April 2021 regarding tree removal.

• The unauthorized removal of viable trees in July 2022.

• The September 2023 clear-cutting incident, which the judge factually concluded occurred at Mr. Durham’s direction. Finding #15 states: “Mr. Smith, the general contractor, cleared Lot 64 of approximately 30 plus trees and shrubs that were not included in the approved plans per Respondent’s instruction.”

Conclusions of Law

Based on the evidence, the ALJ made the following legal conclusions:

• The Petitioner (HOA) successfully met its burden of proving by a preponderance of the evidence that the Respondent violated the governing documents.

• The ALJ identified a clear “pattern” of behavior, noting Mr. Durham began “failing to heed the ARC’s directions in July 2022.”

• Critically, the judge determined that even without the GC’s testimony, Mr. Durham’s own admission was sufficient for a finding of violation: “Respondent admitted what happened to his Lot was not a part of the approved plan and, hence, was a violation of Petitioner’s CC&Rs and Design Guidelines.”

Final Order

The OAH issued the following orders:

1. IT IS ORDERED that Petitioner’s petition be granted.

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

3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents.

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25F-H005-REL

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These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.

What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?

Thursday, February 12

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25F-H005-REL

5 sources

These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.

What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?

Thursday, February 12

Save to note

Today • 5:13 PM

5 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • John Kalinich (Representative)
    Cross Creek Ranch Community Association
    Acted as representative for the petitioner
  • Gregory J. Chambers (Board Member / Witness)
    Cross Creek Ranch Community Association
  • Daniel Kevin Donahue (Board Member and ARC Chair / Witness)
    Cross Creek Ranch Community Association
    Also spelled Donahghue in the transcript
  • Steven Matthew Jermaine (ARC Member / Witness)
    Cross Creek Ranch Community Association
    Also spelled Germaine in the transcript
  • Jeffrey Penchina (ARC Member / Witness)
    Cross Creek Ranch Community Association
    Also spelled Panchina in the transcript
  • Timothy Cody Smith (General Contractor / Witness)
    Smith & Sons Construction
    Hired by the respondent, but appeared as a witness for the petitioner

Respondent Side

  • William D. Durham (Principal / Owner)
    Turquoise Textures, LLC
    Respondent who cleared the lot

Neutral Parties

  • Nicole Robinson (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Keystone Owners Association V. Bernadette M. Bennett

Posted on by

Case Summary

Case ID 24F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-12-09
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keystone Owners Association Counsel Erica L. Mortenson
Respondent Bernadette M. Bennett Counsel Thomas A. Walcott

Alleged Violations

Mountain Park Association CC&Rs Art. IV, Sec. 2; Keystone CC&Rs Art. V, Sec. 5.19; Rules (35% Frontage Limit)

Outcome Summary

The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.

Why this result: Respondent failed to obtain prior written approval for the driveway alteration and failed to prove the affirmative defense of laches.

Key Issues & Findings

Unauthorized Driveway Extension Exceeding 35% of Total Yard Frontage Area

Petitioner alleged Respondent violated CC&Rs by installing a driveway extension exceeding 35% of the total yard frontage area without prior written approval. The ALJ found by a preponderance of the evidence that the violation occurred and the Respondent failed to establish the affirmative defense of laches.

Orders: Respondent ordered to pay Petitioner $1,500.00 for the filing fee and comply henceforth with the Governing Documents.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Analytics Highlights

Topics: HOA, ARC, Driveway, Frontage Area, CC&Rs, Laches
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Video Overview

Audio Overview

Decision Documents

24F-H031-REL Decision – 1159036.pdf

Uploaded 2026-04-24T12:18:46 (52.8 KB)

24F-H031-REL Decision – 1180542.pdf

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24F-H031-REL Decision – 1180545.pdf

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24F-H031-REL Decision – 1198622.pdf

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24F-H031-REL Decision – 1198623.pdf

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24F-H031-REL Decision – 1225107.pdf

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24F-H031-REL Decision – 1227639.pdf

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24F-H031-REL Decision – 1227642.pdf

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24F-H031-REL Decision – 1230660.pdf

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24F-H031-REL Decision – 1241815.pdf

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24F-H031-REL Decision – 1250037.pdf

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This summary focuses on the hearing held on November 19, 2024 before Administrative Law Judge (ALJ) Velva Moses-Thompson, concerning the dispute between Keystone Owners Association (Petitioner) and Bernadette M. Bennett (Respondent).

Key Facts and Main Issues

The core issue was Petitioner's allegation that Respondent violated the Governing Documents by installing a driveway extension that exceeds 35% of the total yard frontage area. This included allegations of violating Article IV, Section 2 of the Mountain Park Association Covenants, Conditions, and Restrictions (CC&Rs) and Article V, Section 5.19 of Petitioner’s CC&Rs.

Key Facts Presented:

  • Respondent owns a home within Keystone, a subassociation of Mountain Park Ranch. Both associations' Governing Documents required Respondent to obtain prior written approval for any alteration to the exterior appearance.
  • Mountain Park Ranch Rules, which Keystone relied upon for enforcement, state that the parking surface shall not exceed 35 percent of the total yard frontage area.
  • Petitioner asserted that the Respondent installed the cement driveway extension without obtaining mandatory written approval.
  • An on-site inspection conducted in May 2024 determined that the driveway slabs (original 16 ft + unapproved 8 ft modification) measured 24 ft wide. Based on the lot frontage measurement of approximately 60 ft, the driveway covered 40% of the yard frontage, exceeding the 35% limit.
  • The Petitioner's right to enforce the Master Association’s rules was formalized by an Assignment Agreement signed on August 16, 2023.

Key Arguments and Proceedings

The Petitioner presented testimony from Harry Whitesell, a board member and former property appraiser, who detailed the measurements and the history of the Respondent's failed architectural requests (2015, 2017) to add parking. Petitioner argued that the Respondent ignored denial notices and that the modification was installed without approval and remains out of compliance.

The Respondent's legal strategy focused entirely on the affirmative defense of laches. Respondent's counsel argued that the condition had existed, open and obvious, since late 2017/early 2018 without enforcement. Respondent argued the HOA's delay was unreasonable, causing prejudice, and that the motivation to pursue the violation only arose after securing the enforcement authority from Mountain Park Ranch in 2023. Respondent also questioned the interpretation of "yard frontage area" used for the calculation, arguing it was ambiguous. Respondent did not present witness testimony at the hearing.

Petitioner countered the laches argument by citing a provision in the Keystone CC&Rs stating that failure to enforce a restriction "shall in no event be deemed a waiver of the right to do so thereafter".

Legal Points and Outcome

The ALJ admitted Petitioner’s Exhibits A through M and Respondent’s Exhibit 1 into evidence.

The ALJ made the following legal conclusions:

  1. Petitioner bore the burden of proof to establish the violation by a preponderance of the evidence.
  2. The preponderance of the evidence showed that Respondent erected a cement driveway extension that exceeds 35 percent of the total yard frontage area, without obtaining prior approval.
  3. Respondent failed to meet the burden of establishing the affirmative defense of laches. The ALJ found that Respondent had not established sufficient "unreasonable delay that has resulted in prejudice" to deny the relief sought by Petitioner.

Final Decision and Order:

  • Petitioner was deemed the prevailing party.
  • Respondent was ordered to pay Petitioner its filing fee of $1,500.00 within thirty days.
  • Respondent was ordered to henceforth comply with the provisions of the Governing Documents.
  • No Civil Penalty was found to be appropriate.

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

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

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 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

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

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

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

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

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

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 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

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

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

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

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Erica L. Mortenson (attorney)
    Goodman Law Group
    HOA attorney
  • Harry Whitel (board member/witness)
    Keystone Owners Association
    Secretary of the Board
  • Tim Seyfarth (board member/president)
    Keystone Owners Association
    Board President
  • Glenn Steinman (board member)
    Keystone Owners Association
    Board Vice President
  • Debbie Burch (board member)
    Keystone Owners Association
    Board Treasurer
  • Cherry Collins (board member)
    Keystone Owners Association
    Member at large; Architectural Advisory Committee member
  • Joe Getti (ARC member/former board member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Mary Hamilton (ARC member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Dan (attorney/staff)
    Goodman Law Group

Respondent Side

  • Bernadette M. Bennett (respondent)
    Lot Owner
  • Thomas A. Walcott (attorney)
    Provident Lawyers
    Respondent attorney
  • Noah Alvarado (staff)
    Staff/assistant for Respondent's Counsel
  • Christopher J. Charles (attorney/staff)
    Provident Lawyers

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
    Administrative Law Judge
  • Amy Haley (ALJ)
    OAH
    Administrative Law Judge (prior to VMT)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Isabella (property manager)
    Vision Management
    Keystone Property Manager who was asked for documents
  • Annette Wthbon (property management agent)
    City Management
    Former Property Management Agent
  • Carla Garvin (property management agent)
    City Management
    Former Property Management Agent

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on by

Case Summary

Case ID 25F-H001-REL
Agency —
Tribunal —
Decision Date 11/12/2024
Administrative Law Judge SF
Outcome —
Filing Fees Refunded —
Civil Penalties $7.00

Parties & Counsel

Petitioner R.L. Whitmer [1]. Counsel —
Respondent Hilton Casitas Council of Homeowners [1]. Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H001-REL Decision – 1235116.pdf

Uploaded 2026-04-24T12:26:29 (44.0 KB)

25F-H001-REL Decision – 1241814.pdf

Uploaded 2026-04-24T12:26:32 (115.8 KB)

Briefing on Administrative Hearing Case No. 25F-H001-REL

Executive Summary

This briefing document synthesizes the proceedings and outcome of the administrative hearing case R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 25F-H001-REL). The central issue was whether the Respondent Homeowners Association’s (HOA) governing Declaration complied with Arizona Revised Statutes (A.R.S.) § 33-1215(A)(1), which mandates that the Declaration contain both the name of the condominium (with the word “condominium”) and the specific name of the association.

In a decision issued on November 12, 2024, Administrative Law Judge (ALJ) Samuel Fox ruled in favor of the Petitioner, R.L. Whitmer. The ALJ found that while the Declaration’s associated plat satisfied the requirement for the condominium’s name, the Declaration failed to contain the association’s actual, current legal name, “Hilton Casitas Council of Homeowners.”

The Respondent HOA advanced three primary defenses, all of which were rejected by the tribunal:

1. Constructive Compliance: The HOA argued that the Declaration’s reference to its predecessor entity (“Council of Co-owners”), combined with numerous court rulings affirming the current HOA as its legal successor, constituted compliance. The ALJ dismissed this, stating the statute requires the actual name to be present and that “constructive compliance” is not sufficient.

2. Statute of Limitations: The HOA claimed the petition was barred by a four-year statute of limitations (A.R.S. § 12-550), as the Petitioner had notice of the Declaration’s contents since 2014. The ALJ ruled that this statute applies only to “actions” in a “court,” and that proceedings before the Office of Administrative Hearings (OAH), an executive branch agency, do not qualify.

3. Impossibility of Unilateral Action: The HOA contended that it could not be ordered to amend the Declaration because such an action requires a membership vote and is not unilaterally achievable. The ALJ found this was not a valid legal defense, as the procedural requirements for achieving statutory compliance do not excuse non-compliance.

The final order declared the Petitioner the prevailing party, ordered the Respondent to pay the Petitioner’s $500 filing fee, and mandated that the Respondent comply with A.R.S. § 33-1215(A)(1). No civil penalty was imposed.

Case Overview

• Case Number: 25F-H001-REL

• Forum: Office of Administrative Hearings (OAH), State of Arizona

• Petitioner: R.L. Whitmer

• Respondent: Hilton Casitas Council of Homeowners

• Presiding Judge: Administrative Law Judge Samuel Fox

• Respondent’s Counsel: Emily H. Mann

• Core Legal Issue: Whether the Respondent’s Declaration of Horizontal Property Regime for Hilton Casitas violates A.R.S. § 33-1215(A)(1), which states:

Procedural History

• Petition Filed: On or about June 27, 2024, R.L. Whitmer filed a petition with the Arizona Department of Real Estate alleging the violation.

• Motion to Dismiss: On October 1, 2024, the Respondent filed a motion for summary judgment (or to dismiss), which was denied by the OAH on October 18, 2024.

• Evidentiary Hearing: A hearing was held on October 25, 2024, though the hearing transcript is dated October 26, 2024.

• ALJ Decision Issued: The final Administrative Law Judge Decision was issued on November 12, 2024.

Analysis of Key Arguments and Rulings

The case centered on three distinct legal arguments presented by the Respondent HOA and the subsequent rulings by the ALJ.

1. Statutory Compliance of the Declaration

The fundamental dispute was whether the Declaration, as written, satisfied the plain language of A.R.S. § 33-1215(A)(1).

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The Declaration is non-compliant because the legal name “Hilton Casitas Council of Homeowners” is not present anywhere in the document.

The Declaration refers to the “Council of Co-owners,” an unincorporated association created in 1972. The current non-profit corporation, formed in 1994, is not named. The Petitioner argued, “It’s just not there.”

Respondent (HOA)

The Declaration is compliant when its constituent parts are read together with established case law.

1. Condominium Name: The plat, which is legally part of the Declaration per A.R.S. § 33-1219(A), contains the phrase “HILTON CASITAS A CONDOMINIUM DEVELOPMENT.”
2. Association Name: Section 1.4 of the Declaration defines “Council” as the “Council of Co-owners.” Multiple Arizona Court of Appeals decisions have held that the “Hilton Casitas Council of Homeowners” is the legal successor entity to the “Council of Co-owners.” Therefore, a reference to the old name legally constitutes a reference to the current name.

ALJ Ruling

Violation Established. The Declaration does not contain the name of the association as required.

The ALJ agreed with the Respondent that the plat satisfied the condominium name requirement. However, the judge rejected the “successor entity” argument for the association’s name, concluding: > “The statute requires ‘the name of the association,’ not merely a reference to it. Even if the current association was the entity with standing, its name was not present in the Declaration. Assuming that there is some purpose for the statutory requirement, a reader should be able to identify the association from the declaration. Accordingly, the Tribunal is not willing to accept constructive compliance.”

2. The Statute of Limitations Defense

The Respondent argued that even if a violation existed, the Petitioner’s claim was filed too late.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The statute of limitations does not apply because the violation is a continuous act.

The Petitioner framed the non-compliant Declaration as a “cloud on the title,” a type of defect to which a statute of limitations is never a bar.

Respondent (HOA)

The claim is time-barred by the four-year default statute of limitations under A.R.S. § 12-550.

The Petitioner acquired his property in August 2014 and thus had constructive notice of the Declaration’s contents. The four-year period to file a claim expired in August 2018, making the 2024 petition six years too late.

ALJ Ruling

Defense Rejected. The statute of limitations does not apply to OAH proceedings.

The ALJ performed a statutory analysis, noting that A.R.S. § 12-550 applies to an “action” which is defined as “any matter or proceeding in a court.” Because the OAH is an agency of the executive branch and not a court, its proceedings are not “actions” under the statute. Therefore, the general statute of limitations is inapplicable.

3. The “Impossibility” of Unilateral Compliance

The Respondent argued that the relief sought by the Petitioner—an order to amend the Declaration—was not something the tribunal could grant because the HOA Board could not comply on its own.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The HOA has a clear path to compliance.

The Petitioner stated that the HOA simply needs to “call the election, amend the… or propose an amendment that cures this problem and ask the membership to approve it.” He offered to stipulate that he would not seek a contempt order if the HOA made a good-faith effort.

Respondent (HOA)

An order to amend would be inappropriate because the HOA cannot unilaterally amend the Declaration.

Amending the Declaration requires a vote of the membership (either 51% or 67%) and consent from an entity referred to as “the corporation.” If a vote failed, the HOA could not comply with the order, exposing it to further litigation from the Petitioner seeking to hold it in contempt.

ALJ Ruling

Defense Rejected. Procedural requirements for compliance do not constitute a legal defense against non-compliance.

The ALJ noted that it is ordinary for an HOA board or membership to have to vote to enact compliance with a statute. The ruling states: > “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.” The tribunal’s role is to determine compliance and order it where it is lacking.

Final Order

The Administrative Law Judge Decision concluded with the following orders:

1. Prevailing Party: The Petitioner, R.L. Whitmer, is deemed the prevailing party.

2. Filing Fee: The Respondent must pay the Petitioner the filing fee of $500.00 within thirty days of the order.

3. Compliance: The Respondent shall comply with A.R.S. § 33-1215(A)(1) going forward.

4. Civil Penalty: No civil penalty was found to be appropriate in the matter.

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days.

Questions

Question

Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?

Short Answer

No. The general statute of limitations applies to court 'actions,' and administrative hearings are not considered court actions.

Detailed Answer

The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as 'actions' by the legislature.

Alj Quote

Accordingly, proceedings before OAH are not 'actions' as defined by the legislature, and the general statute of limitations does not apply.

Legal Basis

A.R.S. § 12-550; A.R.S. § 1-215

Topic Tags

  • statute of limitations
  • jurisdiction
  • filing deadlines

Question

Must the HOA's Declaration explicitly state the full legal name of the Association?

Short Answer

Yes. The Declaration must contain the actual name of the association, not just a definition or reference like 'The Council'.

Detailed Answer

State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like 'Council' to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.

Alj Quote

The statute requires 'the name of the association,' not merely a reference to it. The name of the association as stated in the defined term 'Council' is not the name of the association.

Legal Basis

A.R.S. § 33-1215(A)(1)

Topic Tags

  • CC&Rs
  • governing documents
  • HOA name

Question

Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?

Short Answer

No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.

Detailed Answer

An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.

Alj Quote

Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.

Legal Basis

Administrative Authority

Topic Tags

  • amendments
  • voting
  • defenses

Question

If I win my case against the HOA, will I be reimbursed for the filing fee?

Short Answer

Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.

Detailed Answer

When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.

Alj Quote

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

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • remedies
  • costs

Question

Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?

Short Answer

No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.

Detailed Answer

Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • fines
  • civil penalties
  • enforcement

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is 'more probably true than not.'

Alj Quote

Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
25F-H001-REL
Case Title
R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date
2024-11-12
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?

Short Answer

No. The general statute of limitations applies to court 'actions,' and administrative hearings are not considered court actions.

Detailed Answer

The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as 'actions' by the legislature.

Alj Quote

Accordingly, proceedings before OAH are not 'actions' as defined by the legislature, and the general statute of limitations does not apply.

Legal Basis

A.R.S. § 12-550; A.R.S. § 1-215

Topic Tags

  • statute of limitations
  • jurisdiction
  • filing deadlines

Question

Must the HOA's Declaration explicitly state the full legal name of the Association?

Short Answer

Yes. The Declaration must contain the actual name of the association, not just a definition or reference like 'The Council'.

Detailed Answer

State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like 'Council' to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.

Alj Quote

The statute requires 'the name of the association,' not merely a reference to it. The name of the association as stated in the defined term 'Council' is not the name of the association.

Legal Basis

A.R.S. § 33-1215(A)(1)

Topic Tags

  • CC&Rs
  • governing documents
  • HOA name

Question

Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?

Short Answer

No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.

Detailed Answer

An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.

Alj Quote

Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.

Legal Basis

Administrative Authority

Topic Tags

  • amendments
  • voting
  • defenses

Question

If I win my case against the HOA, will I be reimbursed for the filing fee?

Short Answer

Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.

Detailed Answer

When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.

Alj Quote

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

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • remedies
  • costs

Question

Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?

Short Answer

No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.

Detailed Answer

Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • fines
  • civil penalties
  • enforcement

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is 'more probably true than not.'

Alj Quote

Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
25F-H001-REL
Case Title
R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date
2024-11-12
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • R.L. Whitmer (Petitioner)

Respondent Side

  • Emily H. Mann (Attorney)
    Phillips, Maceyko & Battock, PLLC
  • Robert Westbrook (President)
    Hilton Casitas Council of Homeowners

Neutral Parties

  • Samuel Fox (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

AZNH Revocable Trust v. Sunland Springs Village HOA: Electronic Ballots, Remand, and ALJ Reassignment

Posted on by

Arizona HOA Election Records • OAH 24F-H047-REL • Superior Court Remand

This page reorganizes the OAH case record into a readable guide. The dispute began as an Arizona planned-community election-records case over electronic ballots, then turned into a procedural fight over remand scope and a new statutory right to a peremptory change of administrative law judge.

Last updated June 3, 2026. Case family: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association, OAH No. 24F-H047-REL; rehearing dockets 24F-H047-REL-RMD and 24F-H047-REL-RHG; Maricopa County Superior Court Nos. LC2025-000025-001 and CV2025-036466.

Download initial OAH decision Download limited remand order Download special action ruling Watch video overview Homeowner guide Procedure checklist Timeline Source documents Related AZNH pages FAQ

Scope note: This page covers the administrative/OAH election-records case and the later Superior Court remand and special-action proceedings. It is separate from the published Court of Appeals executive-session voting page. NotebookLM briefing and study-guide material was reviewed only as orientation; the page relies on court and agency documents for the procedural record.

The posture in one sentence

The HOA initially won the OAH electronic-ballot dispute, the Superior Court later ordered a limited evidentiary remand, and a separate special-action ruling vacated later ALJ orders after the Trust invoked a new peremptory-change statute.

Case snapshot

Original issue

Whether electronic voting records and ballot-related materials had to be retained and made available under A.R.S. § 33-1812(A)(7).

Initial OAH result

ALJ Kay A. Abramsohn denied the petition on November 5, 2024, finding the association in compliance.

Superior Court remand

Judge Joseph P. Mikitish dismissed the broader appeal but remanded for a limited evidentiary hearing on two proposed pieces of evidence.

Special action result

Judge Scott A. Blaney ordered reassignment to a different ALJ and vacated ALJ orders entered on or after September 26, 2025.

Case Dossier

This section mirrors the structured data blocks used on the regular OAH/ADRE case pages, then points readers back to the custom source-document roadmap below.

Case Summary

Case ID24F-H047-REL; related rehearing/remand dockets 24F-H047-REL-RMD and 24F-H047-REL-RHG
Agency / tribunalArizona Department of Real Estate / Office of Administrative Hearings
Decision dateNovember 5, 2024 initial OAH decision; later Superior Court orders on April 17, 2025 and March 25, 2026 changed the posture
Administrative Law Judge / court judgesALJ Kay A. Abramsohn; Hon. Joseph P. Mikitish; Hon. Scott A. Blaney
Petitioner sideAZNH Revocable Trust; John F. Sullivan; Susan Sullivan
Respondent / agency sideSunland Springs Village Homeowners Association; Arizona Department of Real Estate; Office of Administrative Hearings; related agency officials
Counsel and representatives extractedJohn F. Sullivan for the Trust; Chad M. Gallacher and B. Austin Baillio for Sunland Springs; additional Attorney General/agency counsel appear in the later Superior Court record
Outcome summaryThe ALJ initially denied the petition, ADRE denied rehearing, the Superior Court later ordered a limited evidentiary remand, and the special-action court ruled the Trust was entitled to a peremptory ALJ change and reassignment.

Alleged Violations and Issues

Primary alleged violationA.R.S. § 33-1812(A)(7): whether electronic ballots and related materials had to be retained and made available for owner inspection after the February 2024 election.
Related authorities cited in extracted legal dataA.R.S. § 10-3708(F), A.R.S. § 41-1092.07(A), A.R.S. § 12-910, A.R.S. § 12-911, and A.R.S. § 32-2199.
Money / fees notedThe extracted legal data notes requests for reimbursement of a $500 filing fee and attorney-fee/cost requests. This custom page does not treat those requests as a final monetary award unless a linked order says so.

Key Issues & Findings

Electronic voting records

The initial dispute asks whether VoteHOANow electronic voting data lists satisfied the ballot-retention and inspection requirements, or whether additional ballot-level materials had to be preserved and produced.

Limited remand scope

After judicial review, the remand focused on specified additional evidence. That narrow remand scope drove the later subpoena and evidentiary-hearing disputes.

Peremptory ALJ change

The March 25, 2026 special-action ruling found the Trust was entitled to a peremptory change of ALJ under the amended A.R.S. § 41-1092.07(A), vacated later ALJ orders, and required reassignment.

Analytics and Research Coverage

Key entity extractedVoteHOANow
TopicHOA election records, ballot retention, administrative remand, OAH procedure, ALJ reassignment
MediaYouTube overview embedded on this page; no Spotify embed is currently used on the custom page.
Decision and source documents11 curated key documents, 31 linked source files in the complete uploaded list, and 3 static/raw fallback downloads for oversized PDFs and the source-file roadmap.
NotebookLM-style artifacts retainedBriefing document, study guide, legal JSON, participants JSON, and summary files are present in the source corpus and used for orientation, with court/agency documents controlling the public analysis.

How to read this record

The source record is useful, but it is not a single-document story. The key materials are spread across OAH filings, Superior Court administrative-review filings, and a later special-action case. This guide puts the case posture, dates, issues, participants, and key documents first.

The case is not a clean single-ruling page. It is a procedural chain: initial OAH decision, ADRE rehearing denial, administrative appeal, limited remand, remand-scope dispute, peremptory ALJ-change dispute, and a later special-action judgment. The layout reflects that sequence.

What the record shows

Electronic ballot retention remains the underlying dispute

The Trust challenged whether the HOA retained and produced the actual electronic ballots or only data outputs from VoteHOANow.

The remand was narrow

The Superior Court remanded for an evidentiary hearing on specified additional evidence, not a complete restart of discovery.

The subpoena dispute flowed from that narrow remand

OAH treated additional subpoenas as outside the limited remand scope; the Superior Court later denied a motion to enforce judgment and order to show cause.

The ALJ-change issue changed the posture

In CV2025-036466, the Superior Court held the Trust was entitled to a peremptory change of ALJ under A.R.S. § 41-1092.07(A), vacated later ALJ orders, and required reassignment.

Video overview: Arizona HOA election records fight

Watch this overview for the procedural path behind 24F-H047-REL: the electronic-ballot records dispute, the limited Superior Court remand, the fight over remand scope, and the later peremptory ALJ-change ruling.

For homeowners: how to use this OAH record

This record is most useful as a procedure map. It shows how a homeowner petition can move from ADRE to OAH, then to judicial review, then back to OAH on a limited remand, and finally into a separate special-action fight when a procedural right is denied.

If you are tracking an HOA records dispute, separate the underlying records question from the procedural questions. The electronic-ballot issue, the limited-remand scope, the subpoena dispute, and the peremptory ALJ-change issue each need their own timeline and source documents.

Suggested ADRE/OAH records workflow

  1. Identify the exact record category. For election disputes, distinguish actual ballots, voter lists, tabulation data, vendor exports, board minutes, and correspondence.
  2. Preserve the agency timeline. Keep the ADRE petition, hearing notices, OAH orders, rehearing requests, and final agency action together.
  3. Track the judicial-review scope. If Superior Court remands only for specific evidence or a specific hearing, do not treat the remand as a complete restart unless the order says so.
  4. Keep procedural rights separate. A subpoena dispute, remand-scope issue, and ALJ-change request may have different deadlines and remedies.
  5. Use the source PDFs. This page links the key orders and the full uploaded document list so readers can check the sequence directly.

Procedure checklist for boards, managers, and ADRE/OAH litigants

Do this
  • Preserve election-vendor records, ballot exports, tabulation records, and retention-policy materials before a dispute starts.
  • Document what was produced, what was withheld, and why.
  • Read remand orders narrowly and calendar every deadline attached to the remand.
  • Keep written proof of any procedural request, including ALJ-change requests and subpoena applications.
Avoid this
  • Do not assume a data export is the same thing as every ballot-related record a homeowner may request.
  • Do not blur the merits dispute with remand-scope or procedural-right disputes.
  • Do not rely on oral understandings when the OAH/Superior Court record needs a written order.
  • Do not let oversized or rejected PDFs disappear from the public source record.

What this administrative record does not decide

This page does not convert the initial OAH loss into a final homeowner merits win. It explains why the case did not remain a simple OAH decision page after the Superior Court remand and the later ALJ-reassignment ruling.

It also does not replace the separate published Court of Appeals executive-session voting case. That page interprets A.R.S. § 33-1804. This page is about the election-records administrative case and related procedural litigation.

Procedural timeline

DateEventWhy it matters
February 2024Sunland Springs Village HOA election used paper and electronic voting.The later records dispute focused on what counts as retained electronic ballots and related materials.
April 2024AZNH filed the HOA dispute through ADRE.ADRE referred the matter to OAH for hearing.
November 5, 2024OAH issued the initial decision denying the petition.The ALJ found the HOA had complied with the records-retention requirements.
January 8, 2025ADRE denied rehearing.The administrative case moved into judicial review.
April 17, 2025Superior Court dismissed the broader appeal and remanded for a limited evidentiary hearing.The remand focused on specific additional evidence, not open-ended discovery.
August 15, 2025OAH denied expanded subpoena relief.The ALJ applied the limited-remand framing.
September 17, 2025Superior Court denied the motion to enforce judgment and order to show cause.The court did not grant relief against OAH/ADRE over the remand-scope dispute.
September 26, 2025Revised A.R.S. § 41-1092.07(A) became effective; the Trust sought a peremptory ALJ change.This became the central issue in the later special action.
March 25, 2026Superior Court ruled for the Trust in CV2025-036466.Orders entered on or after September 26, 2025 were vacated and the case had to be reassigned to a different ALJ.

Key source documents

These are the documents a reader should start with. The full uploaded source list is below this curated set.

Doc 1Initial OAH decision

Initial OAH decision

ALJ decision denying the original electronic-ballot records claim; final agency action unless appealed.

Download
1240168.pdf
Doc 3Limited remand order

Limited remand order

Superior Court dismissed the broader appeal but remanded for a limited evidentiary hearing on specified additional evidence.

Download
a6f03d3e-db86-4778-9926-14e8cba0a583.pdf
Doc 4OAH subpoena/remand order

OAH subpoena/remand order

OAH order addressing the subpoena request after the limited remand.

Download
1338932.pdf
Doc 5OAH order denying subpoena

OAH order denying subpoena

OAH order limiting the remand hearing and denying the expanded subpoena request.

Download
1340272.pdf
Doc 7Motion to enforce denied

Motion to enforce denied

Superior Court denied relief on the post-remand motion to enforce judgment and order to show cause.

Download
a07f5717-ca85-4f56-a906-014a511da37c.pdf
Doc 8OAH hearing vacated/dismissed order

OAH hearing vacated/dismissed order

OAH order after the peremptory-change dispute and September 26, 2025 hearing setting.

Download
1357165.pdf
Doc 11Special action ruling

Special action ruling

Judge Scott A. Blaney vacated ALJ orders issued on or after September 26, 2025 and ordered reassignment to a different ALJ.

Download
m11714084.pdf

Oversized source files restored as static downloads

Two PDFs were too large for the current WordPress media upload limit, so they are served as static downloads instead of disappearing from the public record.

Download oversized source PDFWordPress media upload rejected this file because it exceeds the current 10 MB media limit. Download Administrative Appeal Anatomy PDFWordPress media upload rejected this file because it exceeds the current 10 MB media limit. Download source-file roadmap CSVChronological source table from the uploaded project materials.

Complete uploaded document list

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Frequently asked questions

Did the OAH decision finally resolve the electronic-ballot records dispute?

No. The initial OAH decision denied the petition, but later Superior Court orders created a limited remand and a separate ALJ-reassignment issue.

Why is the March 25, 2026 special-action ruling included?

It changed the administrative posture by vacating ALJ orders issued on or after September 26, 2025 and requiring reassignment to a different ALJ.

Does this page replace the published AZNH executive-session voting page?

No. This page covers the OAH election-records case family. The separate Court of Appeals page covers executive-session voting and open-meeting agendas.

Why are oversized PDFs served as static downloads?

Two source PDFs exceeded the current WordPress media upload limit. They are linked from the static court-case downloads folder so the public record stays complete.

Participants

Petitioner side

AZNH Revocable Trust; John F. Sullivan; Susan Sullivan.

Respondent side

Sunland Springs Village Homeowners Association; counsel included Chad M. Gallacher and B. Austin Baillio.

Neutral/government actors

OAH, ADRE, ALJ Kay A. Abramsohn, Judge Joseph P. Mikitish, and Judge Scott A. Blaney.

Media note: This page includes the YouTube overview above and is otherwise presented as a source-document guide.

Justin R. Sheakley v. Arizona Hillcrest Community Association

Posted on by

Case Summary

Case ID 24F-H056-REL
Agency —
Tribunal —
Decision Date 10/21/2024
Administrative Law Judge SF
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Justin R. Sheakley Counsel —
Respondent Arizona Hillcrest Community Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H056-REL Decision – 1211424.pdf

Uploaded 2026-04-27T09:52:51 (55.5 KB)

24F-H056-REL Decision – 1235391.pdf

Uploaded 2026-04-27T09:52:55 (125.4 KB)

Briefing Document: Sheakley v. Arizona Hillcrest Community Association

Executive Summary

This document synthesizes the key facts, arguments, and legal outcome of the dispute between homeowner Justin R. Sheakley (Petitioner) and the Arizona Hillcrest Community Association (Respondent). The central conflict revolves around the required repairs for a common boundary wall at the Petitioner’s property and the associated cost-sharing obligations under the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner alleged the wall only required cosmetic repairs (stucco and paint) and that the Association’s demand for a complete rebuild, with costs split 50/50, constituted a violation of the CC&Rs and was an act of retaliation for his previous opposition to a larger community project. He supported his position with a structural engineer’s report stating there was “no structural reason for the wall to be replaced.”

The Respondent countered that the wall possessed genuine structural damage, including cracking, leaning, and deflection, which necessitated a rebuild rather than a surface-level patch. The Association argued its actions were consistent with CC&R Article 11, Section 11.2, which mandates a 50/50 cost split for repairs involving structural damage. They presented expert testimony from a construction defect specialist and maintained that the Board of Directors acted within its discretionary authority to determine the appropriate level of maintenance.

The matter was adjudicated by the Office of Administrative Hearings. On October 21, 2024, an Administrative Law Judge issued a decision finding that the Petitioner failed to demonstrate by a preponderance of the evidence that the Association had violated its Community Documents. The judge ruled that the Board’s determination of structural damage was not unreasonable and that it had the authority to order the repairs and require payment from the homeowner. The Respondent was deemed the prevailing party.

Case Overview

Details

Case Number

24F-H056-REL

Petitioner

Justin R. Sheakley (Owner of 3234 W. Bajada Dr., Lot 52)

Respondent

Arizona Hillcrest Community Association

Respondent’s Attorney

Quinten Cupps, Vial Fotheringham, LLP

Presiding Judge

Samuel Fox, Office of Administrative Hearings

Hearing Date

September 30, 2024

Decision Date

October 21, 2024

Core Legal Issue

Alleged violation of CC&Rs, Article 11, Section 11.2, concerning maintenance and repair responsibilities for a common wall.

The Central Dispute: The Common Wall at Lot 52

The conflict originated from the Arizona Hillcrest Community Association’s determination that a section of the common boundary wall adjacent to Justin Sheakley’s property (Lot 52) required a complete teardown and rebuild due to structural damage. The Association proposed to undertake the repair through its chosen contractor, Elite Construction and Painting, at a total cost of approximately 4,900,andinvoicedMr.Sheakleyfor502,450), citing cost-sharing provisions for structural damage in the CC&Rs.

Mr. Sheakley disputed the classification of the damage as “structural,” arguing the issues were cosmetic. This disagreement over the scope of necessary work and the interpretation of the CC&Rs formed the basis of his petition to the Arizona Department of Real Estate, leading to the hearing.

Petitioner’s Position and Arguments (Justin R. Sheakley)

Mr. Sheakley’s case was built on the following key arguments:

• Damage is Cosmetic, Not Structural: He contended that the wall’s issues were limited to “stucco delamination” and peeling paint on the bottom courses, which did not compromise its structural integrity. His position was that the wall simply needed to be “restuckled and repainted.”

• Contradictory Assessments: He highlighted that an initial 2020 assessment by a licensed structural engineering firm, Criterium-Kessler Engineers, recommended only “routine repair of sub repair and painting” for his specific wall. He argued the Association improperly shifted its reliance from this professional engineering opinion to the opinions of general contractors (Evolution Construction and Elite Construction) who advocated for a more drastic and expensive rebuild.

• Retaliation: Mr. Sheakley testified that he believed the Association’s actions were “a retaliation for me stopping the construction in 2020 to the sum of $100,000.” This refers to his successful effort to organize residents to pause a large-scale wall repair project at the beginning of the COVID-19 pandemic.

• Potential Conflict of Interest: He raised concerns about the relationship between the contractors, noting that the owner of Elite Construction, Peter Alesi, was a former employee of Evolution Construction. He stated, “I would suspect that evolution construction was looked over and had this grow report written by the same person that owns the Elite Construction of Painting.”

• Supporting Expert Evidence: Mr. Sheakley commissioned his own report from Bringham Engineering Consultants, dated July 27, 2024, which concluded: “It is our opinion that flaking paint and discoloration of the paint has not affected the structural integrity of the wall. There is no structural reason for the wall to be replace.”

Respondent’s Position and Arguments (Arizona Hillcrest Community Association)

The Association, represented by Quinten Cupps, presented the following defense:

• Presence of Structural Damage: The Association maintained the wall suffered from significant structural issues beyond surface cosmetics. Their expert witness, Peter Alesi, testified to observing a lean towards the homeowner’s property, “deflection” (side-to-side movement), and a linear crack at the bottom course of blocks. He asserted that any simple stucco patch would “just pop right back off due to the deflection of that panel.”

• Authority Under CC&Rs: Their central legal argument rested on Article 11, Section 11.2 of the CC&Rs, which states: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”

• Board Discretion and Due Process: Community Manager Melanie Page testified that the Board followed a deliberate process. They obtained reports, bids, reviewed a “matrix” from Evolution mapping the damage, personally walked the community to inspect the walls, and held a vote during a board meeting to approve the repairs. The CC&Rs grant the Board sole discretion in determining the appropriate level of maintenance.

• Jurisdictional Challenge: The Association’s counsel argued that the OAH was not the proper forum for the dispute, stating, “it’s not about not a violation of 11.2, it’s an issue of whether or not we should be repairing the wall. And that’s not what for this court to decide in our opinion.” They claimed the Association was actively trying to comply with its maintenance obligations under the CC&Rs.

• Homeowner Contribution to Damage: During cross-examination, it was established that Mr. Sheakley had planted Ficus trees in January 2022 and anchored them to the wall with cables drilled into the structure. Their expert noted that Ficus trees have “very aggressive roots” that can compromise walls, and photos showed the trees touching the wall and support columns.

Key Evidence and Testimony

Witness Testimony

• Justin R. Sheakley (Petitioner): Testified about the history of the wall issue, the 2020 Criterium-Kessler report, his opposition to the initial project, his belief that the current action is retaliatory, and presented his own engineering report from Bringham Engineering.

• Melanie Page (Community Manager for AAM): Described the HOA’s multi-year process of assessing the walls, obtaining bids, and the Board’s review and approval process. She confirmed that multiple notices were sent to Mr. Sheakley regarding the planned repairs and his financial obligation.

• Peter Alesi (Owner, Elite Construction and Painting): Provided expert testimony as a general contractor with 24 years of experience, including 18 years as a certified construction defect expert. He detailed the specific structural failings of the wall, including movement, cracking, and a lean of up to 3/4 of an inch. He stated that a simple stucco repair would not fix the underlying problem.

Documentary and Physical Evidence

• CC&Rs, Article 11, Section 11.2: The foundational document governing the dispute, outlining cost-sharing responsibilities for walls with structural damage.

• Criterium-Kessler Engineers Report (2020): A structural engineering report that identified various wall issues in the community but recommended only “routine repair” for Mr. Sheakley’s lot.

• Evolution Construction Report/Matrix (2022): A report by a general contractor that mapped wall damage lot-by-lot, identifying “moderate damage” and “block cracks” at Lot 52. Mr. Sheakley used this document to point out inconsistencies, such as Elite Construction rebuilding a wall at Lot 111 that Evolution had deemed in “good condition.”

• Bringham Engineering Consultants Report (2024): Commissioned by Mr. Sheakley, this report concluded there was no structural reason to replace the wall, focusing on paint and discoloration. The judge later noted this report did not address the visible cracking.

• Photographs: Both parties submitted photographs showing stucco delamination, peeling paint, a linear crack at the base of the wall, Ficus trees anchored to the wall, and measurements demonstrating the wall’s lean.

• Google Earth Images: Mr. Sheakley presented images from 2011 and 2019 to show the wall had long-standing issues, predating his planting of the Ficus trees.

Legal Proceedings and Final Decision

The hearing was held on September 30, 2024, before Administrative Law Judge Samuel Fox. After hearing testimony and reviewing all evidence, the judge issued a decision on October 21, 2024.

Conclusions of Law

1. Burden of Proof: The Petitioner, Mr. Sheakley, bore the burden to prove by a preponderance of the evidence that the Association violated its Community Documents.

2. Definition of “Structural Damage”: As the term was not defined in the CC&Rs, the judge assigned it its ordinary meaning: “damage to the integrity of a structure that is more serious than mere cosmetic damage… damaged beyond the surface.” The judge noted that the documents do not require a specific severity of damage to trigger the repair clauses.

3. Board Authority: The Community Documents grant the Board “significant discretion and authority over walls” and other common areas.

4. Failure to Meet Burden: The judge concluded, “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”

5. No Violation Found: The final conclusion was that “the preponderance of the evidence established that Petitioner failed to meet his burden that Respondent failed to abide by its Community Documents.”

Based on these conclusions, the judge issued the following order:

“IT IS ORDERED that Respondent be deemed the prevailing party in this matter.”

Questions

Question

Who is responsible for paying to repair a shared wall between my home and the common area?

Short Answer

Costs are split 50/50 if the damage is structural, but surface maintenance is individual.

Detailed Answer

According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is 'structural damage' or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.

Alj Quote

In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.

Legal Basis

CC&Rs Article 11, Section 11.2

Topic Tags

  • maintenance
  • shared walls
  • assessments

Question

What is the legal definition of 'structural damage' if it isn't defined in the CC&Rs?

Short Answer

It means damage to the integrity of the structure that goes beyond mere cosmetic issues.

Detailed Answer

The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be 'fatally flawed' or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.

Alj Quote

Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.

Legal Basis

Ordinary Meaning / Judicial Interpretation

Topic Tags

  • definitions
  • maintenance
  • legal interpretation

Question

Who has the burden of proof when a homeowner sues their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation occurred.

Detailed Answer

The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

Can the Administrative Law Judge order the HOA to pay for other damages or remediation?

Short Answer

No, the ALJ's authority is limited to ordering compliance with documents and levying civil penalties.

Detailed Answer

The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.

Alj Quote

This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • jurisdiction
  • remedies
  • penalties

Question

Does the HOA Board have the authority to decide when a repair is necessary?

Short Answer

Yes, Boards typically have significant discretion to determine maintenance needs.

Detailed Answer

Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.

Alj Quote

The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.

Legal Basis

Community Documents / Board Discretion

Topic Tags

  • board authority
  • governance
  • maintenance

Question

If I hire an engineer who says repairs aren't needed, will that override the HOA's decision?

Short Answer

Not necessarily, if the HOA's decision was reasonable and supported by evidence.

Detailed Answer

Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner's report focused on cosmetic issues (paint), while the HOA's decision was based on evidence of structural damage. The homeowner failed to prove the Board's determination was unreasonable.

Alj Quote

Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.

Legal Basis

Preponderance of Evidence

Topic Tags

  • expert testimony
  • disputes
  • evidence

Case

Docket No
24F-H056-REL
Case Title
Justin R. Sheakley v. Arizona Hillcrest Community Association
Decision Date
2024-10-21
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for paying to repair a shared wall between my home and the common area?

Short Answer

Costs are split 50/50 if the damage is structural, but surface maintenance is individual.

Detailed Answer

According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is 'structural damage' or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.

Alj Quote

In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.

Legal Basis

CC&Rs Article 11, Section 11.2

Topic Tags

  • maintenance
  • shared walls
  • assessments

Question

What is the legal definition of 'structural damage' if it isn't defined in the CC&Rs?

Short Answer

It means damage to the integrity of the structure that goes beyond mere cosmetic issues.

Detailed Answer

The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be 'fatally flawed' or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.

Alj Quote

Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.

Legal Basis

Ordinary Meaning / Judicial Interpretation

Topic Tags

  • definitions
  • maintenance
  • legal interpretation

Question

Who has the burden of proof when a homeowner sues their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation occurred.

Detailed Answer

The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

Can the Administrative Law Judge order the HOA to pay for other damages or remediation?

Short Answer

No, the ALJ's authority is limited to ordering compliance with documents and levying civil penalties.

Detailed Answer

The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.

Alj Quote

This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • jurisdiction
  • remedies
  • penalties

Question

Does the HOA Board have the authority to decide when a repair is necessary?

Short Answer

Yes, Boards typically have significant discretion to determine maintenance needs.

Detailed Answer

Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.

Alj Quote

The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.

Legal Basis

Community Documents / Board Discretion

Topic Tags

  • board authority
  • governance
  • maintenance

Question

If I hire an engineer who says repairs aren't needed, will that override the HOA's decision?

Short Answer

Not necessarily, if the HOA's decision was reasonable and supported by evidence.

Detailed Answer

Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner's report focused on cosmetic issues (paint), while the HOA's decision was based on evidence of structural damage. The homeowner failed to prove the Board's determination was unreasonable.

Alj Quote

Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.

Legal Basis

Preponderance of Evidence

Topic Tags

  • expert testimony
  • disputes
  • evidence

Case

Docket No
24F-H056-REL
Case Title
Justin R. Sheakley v. Arizona Hillcrest Community Association
Decision Date
2024-10-21
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Justin R. Sheakley (Petitioner)
    Homeowner appearing on his own behalf.

Respondent Side

  • Quinten Cupps (Attorney)
    Vial Fotheringham, LLP
    Attorney representing Respondent Arizona Hillcrest Community Association.
  • Melanie Veach (Community Manager)
    Habitat Management / AAM
    Testified for the Respondent. Identified as Melanie Page in the oral transcript but listed as Melanie Veach in the ALJ decision.
  • Peter Alesi (Owner / Witness)
    Elite Construction and Painting
    Testified for the Respondent; previously employed at Evolution Construction Services.

Neutral Parties

  • Samuel Fox (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the September 30, 2024 hearing and issued the final decision.
  • Sondra J. Vanella (Administrative Law Judge)
    Office of Administrative Hearings
    Signed the Order Granting Continuance on August 14, 2024.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmitted orders and decisions.

Lisa Marx v. Tara Condominium Association

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Case Summary

Case ID 24F-H054-REL
Agency —
Tribunal —
Decision Date 2024-09-20
Administrative Law Judge KAA
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Lisa Marx Counsel —
Respondent Tara Condominium Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H054-REL Decision – 1212274.pdf

Uploaded 2026-04-24T12:25:18 (70.4 KB)

24F-H054-REL Decision – 1212281.pdf

Uploaded 2026-04-24T12:25:23 (12.4 KB)

24F-H054-REL Decision – 1216809.pdf

Uploaded 2026-04-24T12:25:27 (50.9 KB)

24F-H054-REL Decision – 1225818.pdf

Uploaded 2026-04-24T12:25:31 (168.1 KB)

24F-H054-REL Decision – 1226250.pdf

Uploaded 2026-04-24T12:25:34 (41.9 KB)

Briefing Document: Marx v. Tara Condominium Association

Executive Summary

This document provides a comprehensive analysis of the administrative case Lisa Marx v. Tara Condominium Association (No. 24F-H054-REL), adjudicated by the Arizona Office of Administrative Hearings. The dispute centers on two primary allegations brought by homeowner and former board member Lisa Marx against the Tara Condominium Association (TARA): (1) violations of Arizona state law regarding access to association records, and (2) violations of the state’s Open Meeting Law.

The case culminated in a split decision by the Administrative Law Judge (ALJ). TARA was found to have violated A.R.S. § 33-1258 by failing to provide timely access to its financial and other records as requested by the petitioner. However, the petitioner failed to prove her second claim that TARA violated the open meeting provisions of A.R.S. § 33-1248 when board members and volunteers performed maintenance and repair projects on common areas without formal agenda items and board votes.

Consequently, the ALJ sustained the petition on the records violation and dismissed it on the open meeting violation. TARA was ordered to reimburse Ms. Marx $500, representing the filing fee for the single issue on which she prevailed. A subsequent request for rehearing filed by Ms. Marx was procedurally rejected for being submitted to the incorrect agency.

Case Background and Procedural History

Parties and Context

• Petitioner: Lisa Marx, a homeowner in the Tara Condominium Association and a former board member who served in various capacities, including Secretary, Chairperson, and Vice-Chairperson, from 2021 until her resignation in January 2024.

• Respondent: Tara Condominium Association (TARA), a 50-unit nonprofit management association, represented at the hearing by its Chairman, Mark Gottmann.

The dispute arose following a change in board leadership in early 2024, with Ms. Marx alleging the new board was operating without transparency and in violation of state statutes and the association’s governing documents.

Chronology of Key Events

Jan 2024

Lisa Marx resigns from the TARA board two weeks after being elected for a fourth term.

Feb 1, 2024

Mark Gottmann assumes the role of Chairman of the Board.

Feb–Apr 2024

Marx makes a series of five requests for association records, which are either partially or fully denied by the TARA board.

May 29, 2024

Marx files an HOA Dispute Process Petition with the Arizona Department of Real Estate, alleging two categories of violations and paying a 1,000filingfee(500 per issue).

Aug 8, 2024

TARA files an Amended Response, admitting to several of the alleged violations, offering to reimburse Marx’s $1,000 filing fee, and requesting that the hearing be vacated.

Aug 8, 2024

Marx files a reply rejecting the offer, stating that the “numerous” issues required “a ruling that is binding and definite” to “hopefully prevent further violations.”

Aug 16, 2024

The ALJ issues an order requiring Marx to narrow her petition to two specific issues, categorizing the five records-request instances as one “records” issue and requiring her to select one of the thirteen alleged open-meeting violations.

Aug 19, 2024

Marx selects “Example 13” from her petition as her second issue.

Aug 29, 2024

An administrative hearing is held before ALJ Kay A. Abramsohn.

Sep 20, 2024

The ALJ issues a final decision.

Sep 23, 2024

The ALJ issues a Minute Entry rejecting a request for rehearing filed by Marx, as it was sent to the Office of Administrative Hearings instead of the Commissioner of the Arizona Department of Real Estate.

Analysis of Disputed Issues and Testimony

The hearing focused on two central issues as narrowed by the ALJ’s order.

Issue 1: Access to Association Records (A.R.S. § 33-1258)

This issue consolidated five instances across multiple dates where Marx alleged she was improperly denied access to or provision of TARA’s records.

Petitioner’s Position (Lisa Marx):

• Marx testified that she made multiple written requests for documents including vouchers, contracts, financial reports (General Ledger, AP Distribution), architectural change forms, and violation letters.

• The board’s responses were statutorily invalid. For example, a February 22, 2024 response stated: “A member of the Association is entitled to see reasonable financial information only. A member does not have a right to see contracts entered into by the Board nor information concerning specific members. We respectfully refuse your request…” Another denial was based on her being “no longer a board member.”

• Marx argued this refusal to provide records blocks transparency, creates distrust, and prevents homeowners from ensuring the governing documents are being enforced impartially. She asserted that all requested documents, such as financial records and contracts related to common areas, are records homeowners are entitled to examine.

Respondent’s Position (Tara Condominium Association):

• Mark Gottmann testified that the board was new and that any mistakes were made out of “enthusiasm” and a desire to better the community, not malicious intent.

• He stated the board acted on advice from outside sources, including a trade association, which led them to believe they were “over-providing” documents compared to their CC&Rs, which only mandate semi-annual financial statements.

• TARA experienced delays in receiving financial reports from its management company, Colby, after it was acquired by another entity, which in turn delayed distribution to homeowners.

• Gottmann argued that some requested documents did not exist (e.g., contracts for volunteer work), while others were justifiably withheld because they contained private information about individual homeowners (e.g., violation letters, architectural change forms).

Issue 2: Open Meeting Law Violations (A.R.S. § 33-1248)

This issue centered on “Example 13” of the petition, which alleged the board undertook several projects without adhering to open meeting requirements.

Petitioner’s Position (Lisa Marx):

• Marx alleged that several projects were performed on common property without being included on a meeting agenda and without a formal vote by the board in an open meeting. These projects included:

◦ Board members spraying weeds.

◦ Board members digging up grass around trees and laying mulch.

◦ A board member refinishing wood shutters.

• She argued these actions violated A.R.S. § 33-1248 and TARA’s own CC&Rs (Section 9(E)), which states, “A majority vote of the Managers shall entitle the Board to carry out action on behalf of the owners of the units.”

• The failure to discuss these items in an open meeting denied members the right to provide input before the board took action on community property.

Respondent’s Position (Tara Condominium Association):

• Gottmann characterized the projects as ongoing operational responsibilities and good-faith efforts by volunteers to save the association money.

• The weed spraying was described as an “experiment” at no cost to TARA. The mulching was done with donated materials in response to a homeowner’s suggestion. The shutter repair was done by volunteers for a nominal cost of less than $150 for materials, which was within the monthly maintenance budget.

• He argued these were not formal actions requiring a board vote but were undertaken with an “enthusiasm and desire to make our community a better place.” TARA’s CC&Rs (Section 12, Part D) grant the board the power “to use and expend the assessments collected to maintain, care for, and preserve the common elements.”

Administrative Law Judge’s Decision and Order

The ALJ’s decision, issued on September 20, 2024, delivered a split verdict, finding for each party on one of the two core issues.

Finding on Records Violation (A.R.S. § 33-1258):

• Verdict: TARA violated the statute.

• Reasoning: The ALJ concluded that TARA failed to provide access to records it possessed within the statutorily required ten-day timeframe. While TARA had a potential defense for delays related to its management company and a valid reason to withhold records containing personal information of other members, the overall evidence demonstrated a failure to comply with the law.

• Outcome: The petitioner was deemed the prevailing party on this issue.

Finding on Open Meeting Violation (A.R.S. § 33-1248):

• Verdict: TARA did not violate the statute.

• Reasoning: The ALJ found that the petitioner failed to sustain her burden of proof. The evidence showed that TARA conducted its formal meetings in compliance with open meeting laws, providing notice and agendas. The ALJ concluded there was “no evidence in the hearing record that… those work circumstances… were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board.”

• Outcome: The respondent was deemed the prevailing party on this issue.

Final Order

Based on the findings, the ALJ issued the following orders:

1. Petitioner’s Petition is sustained as to the TARA violation of A.R.S. § 33-1258 (Records).

2. Petitioner’s Petition is dismissed as to the alleged violations by TARA of A.R.S. § 33-1248 (Open Meetings).

3. TARA is ordered to reimburse Petitioner in the amount of $500.00, representing the filing fee for the single successful claim.

Questions

Question

Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?

Short Answer

No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.

Detailed Answer

The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.

Alj Quote

TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • records request
  • financial records
  • management company

Question

Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?

Short Answer

Not necessarily. If the work is volunteer-based and doesn't require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.

Detailed Answer

The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute 'formal action' that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.

Alj Quote

There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for 'formal action' by the Board at the TARA monthly meetings.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • open meetings
  • volunteer work
  • board authority

Question

Can the HOA withhold violation letters or architectural change forms concerning other homeowners?

Short Answer

Yes, if those documents contain personal information about specific members.

Detailed Answer

The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.

Alj Quote

A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for 'personal, health or financial records of an individual member' … In this case, because some of the requested 'repair' contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.

Legal Basis

A.R.S. § 33-1258(B)(4)

Topic Tags

  • privacy
  • violation letters
  • records request

Question

Can the board deny my records request because I am no longer a board member?

Short Answer

No. The right to examine records belongs to all members of the association.

Detailed Answer

The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was 'no longer a Board member.' The statute requires records be made available to 'any member.'

Alj Quote

TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • homeowner rights
  • records access
  • board membership

Question

If I file a petition with two issues and only win one, do I get my filing fee back?

Short Answer

You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.

Detailed Answer

In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.

Alj Quote

IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the 'Example 13' issue and Petitioner bears the filing fee on this issue.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • filing fees
  • dispute resolution
  • penalties

Question

Does being a 'new board' or 'learning the ropes' excuse the HOA from following state laws?

Short Answer

No. Ignorance of the law or being a new board is not a valid defense for violating statutes.

Detailed Answer

The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.

Alj Quote

TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • board duties
  • legal compliance
  • defenses

Case

Docket No
24F-H054-REL
Case Title
Lisa Marx v. Tara Condominium Association
Decision Date
2024-09-20
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?

Short Answer

No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.

Detailed Answer

The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.

Alj Quote

TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • records request
  • financial records
  • management company

Question

Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?

Short Answer

Not necessarily. If the work is volunteer-based and doesn't require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.

Detailed Answer

The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute 'formal action' that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.

Alj Quote

There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for 'formal action' by the Board at the TARA monthly meetings.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • open meetings
  • volunteer work
  • board authority

Question

Can the HOA withhold violation letters or architectural change forms concerning other homeowners?

Short Answer

Yes, if those documents contain personal information about specific members.

Detailed Answer

The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.

Alj Quote

A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for 'personal, health or financial records of an individual member' … In this case, because some of the requested 'repair' contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.

Legal Basis

A.R.S. § 33-1258(B)(4)

Topic Tags

  • privacy
  • violation letters
  • records request

Question

Can the board deny my records request because I am no longer a board member?

Short Answer

No. The right to examine records belongs to all members of the association.

Detailed Answer

The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was 'no longer a Board member.' The statute requires records be made available to 'any member.'

Alj Quote

TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • homeowner rights
  • records access
  • board membership

Question

If I file a petition with two issues and only win one, do I get my filing fee back?

Short Answer

You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.

Detailed Answer

In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.

Alj Quote

IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the 'Example 13' issue and Petitioner bears the filing fee on this issue.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • filing fees
  • dispute resolution
  • penalties

Question

Does being a 'new board' or 'learning the ropes' excuse the HOA from following state laws?

Short Answer

No. Ignorance of the law or being a new board is not a valid defense for violating statutes.

Detailed Answer

The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.

Alj Quote

TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • board duties
  • legal compliance
  • defenses

Case

Docket No
24F-H054-REL
Case Title
Lisa Marx v. Tara Condominium Association
Decision Date
2024-09-20
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lisa Marx (Petitioner)
    Tara Condominium Association
    Homeowner and former board member who represented herself

Respondent Side

  • Mark Gottmann (Chairman of the Board)
    Tara Condominium Association
    Represented the respondent at the hearing
  • Chandler W. Travis (Attorney)
    Travis Law Firm PLC
    Withdrew as counsel for the respondent prior to the hearing
  • Tina Marie Shepherd (Former Chairperson)
    Tara Condominium Association
    Resigned from the board on January 31, 2024
  • Dennis Anderson (Board Member)
    Tara Condominium Association
    Participated in volunteer maintenance work
  • Judy Rice (Treasurer)
    Tara Condominium Association
  • Stephanie Bushart (Board Member)
    Tara Condominium Association

Neutral Parties

  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Brenda Spielder (Observer)
    Tara Condominium Association
    Association member who attended the hearing
  • Cynthia Poland (Observer)
    Tara Condominium Association
    Association member who attended the hearing
  • Renee Snow (Volunteer)
    Tara Condominium Association
    Volunteered for the landscaping committee

Arroyo Mountain Estate Homeowners Association v. Goebel, Rick Jr. & Elizabeth

Posted on by

Case Summary

Case ID 24F-H050-REL
Agency —
Tribunal —
Decision Date 2024-09-11
Administrative Law Judge ADS
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Arroyo Mountain Estate Homeowners Association Counsel Daniel S. Francom, Esq.
Respondent Rick Goebel Jr. & Elizabeth Goebel Counsel Pro se

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H050-REL Decision – 1222437.pdf

Uploaded 2026-04-24T12:25:07 (132.2 KB)

Arroyo Mountain Estate HOA vs. Goebel: A Dispute Over Architectural Approval

Executive Summary

This document provides a comprehensive overview of the dispute between the Arroyo Mountain Estate Homeowners Association (HOA) and homeowners Rick and Elizabeth Goebel, culminating in an administrative law hearing on August 28, 2024. The central conflict revolves around the construction of a courtyard wall at the Goebels’ property, which the HOA alleged was unapproved and in violation of community guidelines.

The Goebels maintained that they followed all required procedures, submitting multiple revised applications at the HOA’s request, and ultimately received explicit, unconditional approval from the Architectural Review Committee (ARC) before commencing work. They argued that they built a “courtyard wall” in conformance with section 2.9 of the guidelines, which does not specify a height limit, and not a “pony wall,” which is restricted to 42 inches under section 2.24.

The HOA contended that the Goebels’ application was misleading due to a lack of critical details, specifically the wall’s 8-foot 8-inch height and a three-foot overhead hood. Key members of the ARC testified they understood the application to be for landscaping only and would have denied it had the full scope been clear. The HOA argued the constructed wall violates the spirit and letter of the guidelines intended to maintain community aesthetic uniformity.

The case concluded with a definitive ruling by an Administrative Law Judge on September 11, 2024. The judge denied the HOA’s petition, finding that they had not met their burden of proof. The decision highlighted that the Goebels had followed the prescribed process, justifiably relied on the ARC’s formal approval, and that the HOA’s month-long delay in issuing a stop-construction notice was unreasonable. The ruling deemed the ARC’s approval “tantamount to an exception to the Guidelines.”

The Core Dispute: The Courtyard Wall

The conflict centers on improvements made at the Goebels’ property, located at 5408 North Prescott Court (incorrectly listed multiple times in HOA documents as 5408 North Carson Court). The primary structure in question is a wall enclosing a front courtyard area, which the Goebels’ plans identified as a “courtyard wall.”

Alleged Violations by the HOA

The HOA’s petition alleged that the Goebels were in violation of two primary governing documents:

1. CC&Rs Article V, Section 5.22: This section requires homeowners to receive ARC approval before beginning any construction that alters the exterior appearance of a property, demanding that requests “Specify in detail the nature and extent of construction.”

2. Architectural and Landscape Design Guidelines, Section 2.24: This section governs “Pony Walls and Courtyards,” stating that pony walls constructed in a front yard to form a courtyard “should be no higher than 42 inches.”

The HOA argued that the wall built by the Goebels, which reaches a height of approximately 8 feet 8 inches, is functionally a pony wall and therefore violates the 42-inch height restriction.

The Homeowner’s (Goebel) Position and Timeline

The Goebels’ defense was anchored in their assertion of procedural compliance, reliance on a formal approval, and a belief that they were being unfairly targeted.

Application and Approval Process

The timeline of the application process was a key element of the Goebels’ case:

Dec 30, 2022

Initial consolidated application for all improvements submitted via email.

Jan 3, 2023

Initial application denied with the instruction to “please resubmit separate applications for the different projects.”

Jan 3, 2023

Revised, separate applications submitted to the community manager, Katie Sand.

Jan 3, 2023

Additional comments received from Katie Sand requesting further changes.

Jan 3, 2023

Final revised applications submitted at 4:14 p.m. and notice of acceptance received at 4:26 p.m.

Jan 5, 2023

The ARC formally approved the applications, within 48 hours of submission, without requesting additional information.

Argument of Good Faith and Procedural Adherence

Mr. Goebel argued that he diligently followed the HOA’s process and could not have done more to ensure compliance.

“I follow the requirement of the architectural community prepared the application submitted the application via the appropriate application approval process and received approval. It’s unclear what I’m being violated for. It is unclear as to how I violated any part of the approval or constructed improvements not identified on the plan.” – Rick Goebel

He emphasized that the ARC, under its own guidelines, had the power to request more information if the application was deemed incomplete but chose not to, instead granting full approval. Elizabeth Goebel further stated, “they approved the application and we move forward with our approval… We still got the approval. We moved forward in good faith and constructed what we had done.”

Construction Timeline and HOA Response

• March 21, 2023: Engineering drawings submitted to Maricopa County.

• March 24, 2023: Technical approvals and permits issued by the county.

• April 7, 2023: Construction commenced.

• April 19, 2023: The wall reached its full height.

• May 12, 2023: Nearly one month after the wall was completed, the Goebels received a stop-construction notice from the HOA.

Claims of Targeted Harassment

Mr. Goebel testified that he felt his family and home were being targeted by board members, leading to significant distress and financial cost.

“Over the past 12 months, I’ve had to deal with continued harassment from our board… People drive past my home, take pictures of my home. John Conalo has driven past my home multiple times taking pictures of my home… I have people to drive by my home, take photos and post these photos online and generally disrupt the reasonable enjoyment of my property. I am of the opinion that me and my home are being targeted for these improvements by members of the board who are utilizing funds to support the basic attack.” – Rick Goebel

The Homeowners Association’s (HOA) Position

The HOA’s case, presented by attorney Daniel Francom, focused on the argument that the Goebels’ application was deficient and that any approval granted was therefore invalid for the wall as constructed.

Insufficient Detail and Misleading Application

The HOA argued the Goebels “failed to provide sufficient details” in their application.

• Wall Height: The plans did not specify the wall would be 8 feet 8 inches high.

• Overhead Hood: The plans did not clearly indicate a three-foot deep overhead structure above the gate.

• County Plans: The detailed plans submitted to Maricopa County, which included engineering reports and the exact wall height, were never provided to the HOA.

Board President John Consalvo testified that the application “showed nothing about a construction wall showing landscape application turned in.”

Architectural Committee’s Interpretation

ARC member Judy Oliver provided crucial testimony for the HOA, stating that the committee was misled by the application’s presentation.

• She testified that since the application was titled “revamping of landscaping,” she and other members “assumed that this was regarding landscaping only.”

• Regarding the wall itself, she stated, “I felt that that wall wasn’t even up for discussion at the time.”

• Crucially, she asserted that had the Goebels provided specifics for an 8-foot wall, the committee would have denied the project as it “counters the architectural guidelines.”

Violation of Guideline 2.24 (“Pony Walls”)

The HOA’s legal argument rested on classifying the Goebels’ structure under section 2.24. They argued that because the wall creates a courtyard, it should be considered a “pony wall” and is therefore subject to the 42-inch height limit, regardless of what the Goebels labeled it in their plans. They argued the wall “sticks out like a sore thumb” and that there are no other similar walls in the community.

Key Witness Testimony

Ms. Rozzo’s testimony significantly undermined the HOA’s position.

• Admission of Error: When asked if she noted the courtyard wall, she stated, “No, I absolutely missed it. I am completely honest about that. I have missed it just like we’ve missed other ones and nothing’s done about it.”

• Precedent of Inaction: She testified that the ARC had mistakenly approved “at least 15 to 20 homes” with non-compliant improvements and that “the HOA has never pursued them.” She cited unapproved walls, pavers, and concrete pads at other properties.

• Challenge to HOA’s Pursuit: She expressed surprise that the HOA was pursuing this case, stating that when she told John Consalvo that pursuing the Goebels meant they should pursue all other erroneous approvals, he “chuckled and said, ‘Mike, my neighbor,'” implying a neighbor of the board president also had unapproved improvements.

• Board Vote: Ms. Rozzo, who was also a board member for a short time, revealed that the decision to take action against the Goebels was not unanimous, with two of the five board members voting “no.”

Mr. Consalvo testified that the board’s function is to maintain the community and enforce HOA rules. He stated that the Goebels’ application did not provide the required detail for the courtyard wall, its height, or the overhead gate structure. He confirmed he took photos of the property and that, in his view, the wall as built did not conform to any approved application and should have been limited to 42 inches.

Ms. Oliver testified she had been on the ARC since 2017. She stated that the application was understood to be for landscaping and that the wall was not considered for approval due to the lack of detail. She testified that had the 8-foot height been specified, the application would have been denied.

The Final Decision: Administrative Law Judge Ruling

On September 11, 2024, Administrative Law Judge Adam D. Stone issued a final, binding decision in the case (No. 24F-H050-REL).

Ruling

The Petitioner’s (HOA’s) petition was denied. The judge found that the HOA failed to prove its case by a preponderance of the evidence.

Reasoning for the Decision

The judge provided a clear, multi-point rationale for siding with the Goebels:

1. Procedural Compliance: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC.”

2. Justifiable Reliance on Approval: The ARC had multiple opportunities to question the plans and did so on other matters. The judge concluded that Ms. Rozzo’s approval, even if she “missed it,” was a formal action on which the “Respondent justifiably relied… and moved ahead with construction.”

3. Approval as an Exception: The judge stated the formal approval “was tantamount to an exception to the Guidelines as the project was approved.”

4. Unreasonable Delay by HOA: The judge found that for the HOA “to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”

5. Inconsistent Enforcement: The judge noted that “this was not the first time the ARC had approved projects that were not within the Guidelines,” referencing the testimony about other unpursued violations in the community.

Final Order

• The HOA’s petition was formally denied.

• The Respondent (Goebels) was not required to reimburse the HOA’s $500 filing fee.

Questions

Question

If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?

Short Answer

No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.

Detailed Answer

The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.

Alj Quote

Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.

Legal Basis

Justifiable Reliance

Topic Tags

  • architectural approval
  • committee oversight
  • homeowner reliance

Question

Can an approved application serve as a valid exception to written architectural guidelines?

Short Answer

Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.

Detailed Answer

In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.

Alj Quote

This was tantamount to an exception to the Guidelines as the project was approved.

Legal Basis

Exception to Guidelines

Topic Tags

  • guidelines
  • exceptions
  • compliance

Question

Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?

Short Answer

No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.

Detailed Answer

The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.

Alj Quote

Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.

Legal Basis

Reasonableness / Laches

Topic Tags

  • enforcement timing
  • stop work order
  • construction

Question

Who has to prove that a violation occurred during an HOA hearing?

Short Answer

The HOA (the Petitioner) bears the burden of proof.

Detailed Answer

When an HOA petitions for a hearing regarding a violation, they 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. If they fail to meet this burden, the homeowner prevails.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.

Legal Basis

Burden of Proof

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?

Short Answer

Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.

Detailed Answer

The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.

Alj Quote

Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.

Legal Basis

Arbitrary Enforcement / Precedent

Topic Tags

  • selective enforcement
  • consistency
  • precedent

Question

If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?

Short Answer

No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.

Detailed Answer

The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.

Alj Quote

Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project

Legal Basis

Due Process / Procedural Compliance

Topic Tags

  • application process
  • due diligence
  • homeowner obligations

Question

Do I have to pay the HOA's filing fees if they sue me and lose?

Short Answer

No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.

Detailed Answer

The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
24F-H050-REL
Case Title
Arroyo Mountain Estate Homeowners Association v. Goebel
Decision Date
2024-09-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?

Short Answer

No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.

Detailed Answer

The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.

Alj Quote

Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.

Legal Basis

Justifiable Reliance

Topic Tags

  • architectural approval
  • committee oversight
  • homeowner reliance

Question

Can an approved application serve as a valid exception to written architectural guidelines?

Short Answer

Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.

Detailed Answer

In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.

Alj Quote

This was tantamount to an exception to the Guidelines as the project was approved.

Legal Basis

Exception to Guidelines

Topic Tags

  • guidelines
  • exceptions
  • compliance

Question

Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?

Short Answer

No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.

Detailed Answer

The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.

Alj Quote

Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.

Legal Basis

Reasonableness / Laches

Topic Tags

  • enforcement timing
  • stop work order
  • construction

Question

Who has to prove that a violation occurred during an HOA hearing?

Short Answer

The HOA (the Petitioner) bears the burden of proof.

Detailed Answer

When an HOA petitions for a hearing regarding a violation, they 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. If they fail to meet this burden, the homeowner prevails.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.

Legal Basis

Burden of Proof

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?

Short Answer

Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.

Detailed Answer

The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.

Alj Quote

Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.

Legal Basis

Arbitrary Enforcement / Precedent

Topic Tags

  • selective enforcement
  • consistency
  • precedent

Question

If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?

Short Answer

No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.

Detailed Answer

The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.

Alj Quote

Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project

Legal Basis

Due Process / Procedural Compliance

Topic Tags

  • application process
  • due diligence
  • homeowner obligations

Question

Do I have to pay the HOA's filing fees if they sue me and lose?

Short Answer

No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.

Detailed Answer

The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
24F-H050-REL
Case Title
Arroyo Mountain Estate Homeowners Association v. Goebel
Decision Date
2024-09-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Daniel S. Francom (Attorney)
    Arroyo Mountain Estate Homeowners Association
  • John Consalvo (Witness)
    Arroyo Mountain Estate Homeowners Association
    Board President
  • Judy Oliver (Witness)
    Arroyo Mountain Estate Homeowners Association
    Architectural Committee Member

Respondent Side

  • Rick Goebel Jr. (Respondent)
  • Elizabeth Goebel (Respondent)
  • Nancy Rozzo (Witness)
    Architectural Committee Member who approved the application

Neutral Parties

  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Taylor Kidd vs Heritage Village III Homeowners Association (ROOT)

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Case Summary

Case ID 24F-H037-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-23
Administrative Law Judge Adam D. Stone
Outcome The ALJ found that the Association violated its own CC&Rs (Article VII, Section 1) by failing to incorporate and follow Article III, Section 4 of the McCormick Ranch CC&Rs, which required a two-thirds vote of voting owners for a special assessment for capital improvements. Both petitions were granted, and the Association was ordered to refund the total filing fees of $1,000.00.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Taylor Kidd and Jerome L. Glazer Counsel Patrick T. Nackley
Respondent Heritage Village III Homeowners Association Counsel Tessa Knueppel and Mark K. Sahl

Alleged Violations

McCormick Ranch CC&R Article III, Section 4 and Heritage Village III HO CC&R Article VII, Section 1

Outcome Summary

The ALJ found that the Association violated its own CC&Rs (Article VII, Section 1) by failing to incorporate and follow Article III, Section 4 of the McCormick Ranch CC&Rs, which required a two-thirds vote of voting owners for a special assessment for capital improvements. Both petitions were granted, and the Association was ordered to refund the total filing fees of $1,000.00.

Why this result: Respondent failed to take the required vote regarding the special assessment for the Landscape Improvement Project, in violation of the controlling CC&Rs.

Key Issues & Findings

Violation of CC&Rs by approving a Landscape Improvement Project and potential special assessment for a capital improvement without the required 2/3 membership vote.

The Association violated its CC&Rs by failing to follow the McCormick Ranch CC&R provision requiring the assent of two-thirds (2/3) of the votes cast by Voting Owners for a Special Assessment intended for construction, reconstruction, repair, or replacement of a capital improvement (the Landscape Improvement Project).

Orders: The petitions were granted. Respondent was ordered to reimburse both Petitioners' filing fees pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • McCormick Ranch CC&R Article III, Section 4
  • Association CC&R Article VII, Section 1

Analytics Highlights

Topics: Special Assessment, Capital Improvement, Membership Vote, CC&R Violation, Consolidation, Master Association
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 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
  • ARIZ. REV. STAT. § 33-1803.7
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Title 33, Chapter 16, Article 1 of the Arizona Revised Statutes

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Video Overview

Audio Overview

Decision Documents

24F-H037-REL Decision – 1182719.pdf

Uploaded 2026-04-24T12:22:43 (62.8 KB)

24F-H037-REL Decision – 1182767.pdf

Uploaded 2026-04-24T12:22:48 (13.4 KB)

24F-H037-REL Decision – 1182769.pdf

Uploaded 2026-04-24T12:22:51 (50.0 KB)

24F-H037-REL Decision – 1203525.pdf

Uploaded 2026-04-24T12:22:55 (49.3 KB)

24F-H037-REL Decision – 1215299.pdf

Uploaded 2026-04-24T12:22:58 (123.4 KB)

24F-H037-REL Decision – 1226570.pdf

Uploaded 2026-04-24T12:23:01 (39.7 KB)

This summary details the proceedings, key arguments, and final decision in the consolidated matters of *Taylor Kidd and Jerome L. Glazer vs. Heritage Village III Homeowners Association* (Nos. 24F-H037-REL and 24F-H039-REL).

Key Facts and Procedural History

The Petitioners, Taylor Kidd and Jerome L. Glazer, who are members of the Heritage Village III Homeowners Association (Association), filed separate petitions objecting to the Association's approval of a Landscape Improvement Project (LIP). The Association requested, and the Administrative Law Judge (ALJ) granted, consolidation of the two matters due to them involving substantially similar factual or legal issues and for purposes of administrative efficiency. The hearings were continued several times and ultimately held on August 9, 2024.

The LIP involved an estimated cost of $1,557,950.00 (potentially up to $2 million) for the replacement of a 40-year-old irrigation system, grass removal, and replacement with decomposed granite and native plants. The Association communicated in December 2023 that this cost would result in a special assessment of $9,385.24 per homeowner. A request by Petitioner Glazer for a Cease and Desist Order to prevent the expenditure of funds related to the LIP was denied by the ALJ due to a lack of authority in that venue.

Main Issues and Key Arguments

The central legal dispute was whether the Association could approve the LIP and levy the special assessment solely through a Board vote, or if a membership vote was required under the governing documents.

Petitioners' Argument:

Petitioners argued that the LIP was a capital improvement project. They contended that the Association's CC&Rs (Article VII, Section 1) required it to follow the McCormick Ranch CC&Rs (Master Association). The McCormick Ranch CC&Rs (Article III, Section 4) mandate that a special assessment for a capital improvement requires the assent of two-thirds (2/3) of the votes cast by Voting Owners. Petitioners asserted the Board refused to hold this vote.

Respondent's Argument:

The Association argued the Board has the duty and authority to maintain the common area (which included addressing dead/dying grass and a damaged irrigation system), and that the LIP fell under this authority. They claimed the special assessment had not yet been levied. Legally, the Association argued that the requirement for a 2/3 membership vote in the McCormick Ranch documents applied only to the Master Association itself (referenced by the capitalized word "Association") and did not govern subsidiary associations like Heritage Village III, whose own documents were silent on requiring a member vote for such projects.

Final Decision and Outcome

The ALJ, Adam D. Stone, issued a decision on August 23, 2024.

Legal Conclusion: The ALJ found that the Petitioners met their burden of proof. The decision hinged on the interpretation of Article VII, Section 1 of the Association’s CC&Rs, which states that McCormick Ranch provisions apply, "including but not limited to" the assessment, lien, and collection of dues.

The ALJ ruled it would be inconsistent to assume that the section requiring a 2/3 vote for capital improvements (McCormick Ranch CC&R Article III, Section 4) would be excluded.

Outcome:

IT IS ORDERED that Petitioners’ petitions in these matters are granted. The Association was found to have violated McCormick Ranch CC&R’s Article III, Section 4, and its own CC&R’s Article VII, Section 1, by failing to take the required vote. The Respondent was ordered to reimburse both Petitioners’ filing fees.

A Motion for Rehearing filed by a party was later noted by the ALJ as not being considered, directing that such requests must be made directly to the Arizona Department of Real Estate.

Questions

Question

Can I petition the Arizona Department of Real Estate for a hearing if my HOA violates the CC&Rs?

Short Answer

Yes, owners may petition the department for hearings regarding violations of community documents or statutes regulating planned communities.

Detailed Answer

The Department has jurisdiction over disputes between owners and associations. An owner can petition for a hearing concerning violations of the community's governing documents (CC&Rs) or state statutes, provided they file the petition and pay the required fee.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199

Topic Tags

  • jurisdiction
  • homeowner rights
  • petition process

Question

What is the standard of proof I must meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probably true than not.

Detailed Answer

The burden of proof lies with the petitioner (the homeowner). They must demonstrate that the violation occurred by a preponderance of the evidence, which is defined as evidence that convinces the judge that the claim is more likely true than not.

Alj Quote

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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

If my specific subdivision's CC&Rs are silent on a rule, but the Master Association's CC&Rs address it, which rules apply?

Short Answer

The Master Association's rules likely apply if your subdivision's CC&Rs reference or incorporate the Master documents.

Detailed Answer

In this case, the sub-association's CC&Rs did not explicitly require a vote for capital improvements, but the Master Association's CC&Rs did. Because the sub-association's documents contained language incorporating the Master provisions ('including but not limited to'), the Master Association's requirement for a homeowner vote applied.

Alj Quote

Based upon the foregoing, Petitioners met their burdens of proof in demonstrating that the Association was in violation the CC&R’s as it would be inconsistent to assume that only part of Article III of the McCormick Ranch’s CC&R’s would apply to the Association while Section 4 would somehow be excluded.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&Rs
  • master association
  • governing documents

Question

Does the HOA need a homeowner vote to pass a special assessment for a capital improvement?

Short Answer

Yes, if the controlling CC&Rs require it. In this case, a 2/3 vote of voting owners was required.

Detailed Answer

The decision affirmed that the Association violated the governing documents by failing to hold a vote. The controlling Master CC&Rs specifically required approval by two-thirds of the voting owners for special assessments related to the construction, repair, or replacement of capital improvements.

Alj Quote

provided that any such assessment shall have the assent of two-thirds (2/3) of the votes cast by Voting Owners in person or by proxy at a meeting duly called for such purpose

Legal Basis

Master CC&R Article III, Section 4

Topic Tags

  • special assessments
  • voting rights
  • capital improvements

Question

If I successfully prove my HOA violated the rules, can I get my filing fees back?

Short Answer

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

Detailed Answer

Upon finding that the Association violated the CC&Rs, the judge ordered the Respondent (the HOA) to reimburse the filing fees paid by the Petitioners to the Department of Real Estate.

Alj Quote

Respondent shall reimburse both Petitioner’s filing fees as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • reimbursement
  • fees

Case

Docket No
24F-H037-REL, 24F-H039-REL
Case Title
Taylor Kidd and Jerome L. Glazer vs Heritage Village III Homeowners Association
Decision Date
2024-08-23
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I petition the Arizona Department of Real Estate for a hearing if my HOA violates the CC&Rs?

Short Answer

Yes, owners may petition the department for hearings regarding violations of community documents or statutes regulating planned communities.

Detailed Answer

The Department has jurisdiction over disputes between owners and associations. An owner can petition for a hearing concerning violations of the community's governing documents (CC&Rs) or state statutes, provided they file the petition and pay the required fee.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199

Topic Tags

  • jurisdiction
  • homeowner rights
  • petition process

Question

What is the standard of proof I must meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probably true than not.

Detailed Answer

The burden of proof lies with the petitioner (the homeowner). They must demonstrate that the violation occurred by a preponderance of the evidence, which is defined as evidence that convinces the judge that the claim is more likely true than not.

Alj Quote

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

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

If my specific subdivision's CC&Rs are silent on a rule, but the Master Association's CC&Rs address it, which rules apply?

Short Answer

The Master Association's rules likely apply if your subdivision's CC&Rs reference or incorporate the Master documents.

Detailed Answer

In this case, the sub-association's CC&Rs did not explicitly require a vote for capital improvements, but the Master Association's CC&Rs did. Because the sub-association's documents contained language incorporating the Master provisions ('including but not limited to'), the Master Association's requirement for a homeowner vote applied.

Alj Quote

Based upon the foregoing, Petitioners met their burdens of proof in demonstrating that the Association was in violation the CC&R’s as it would be inconsistent to assume that only part of Article III of the McCormick Ranch’s CC&R’s would apply to the Association while Section 4 would somehow be excluded.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&Rs
  • master association
  • governing documents

Question

Does the HOA need a homeowner vote to pass a special assessment for a capital improvement?

Short Answer

Yes, if the controlling CC&Rs require it. In this case, a 2/3 vote of voting owners was required.

Detailed Answer

The decision affirmed that the Association violated the governing documents by failing to hold a vote. The controlling Master CC&Rs specifically required approval by two-thirds of the voting owners for special assessments related to the construction, repair, or replacement of capital improvements.

Alj Quote

provided that any such assessment shall have the assent of two-thirds (2/3) of the votes cast by Voting Owners in person or by proxy at a meeting duly called for such purpose

Legal Basis

Master CC&R Article III, Section 4

Topic Tags

  • special assessments
  • voting rights
  • capital improvements

Question

If I successfully prove my HOA violated the rules, can I get my filing fees back?

Short Answer

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

Detailed Answer

Upon finding that the Association violated the CC&Rs, the judge ordered the Respondent (the HOA) to reimburse the filing fees paid by the Petitioners to the Department of Real Estate.

Alj Quote

Respondent shall reimburse both Petitioner’s filing fees as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • reimbursement
  • fees

Case

Docket No
24F-H037-REL, 24F-H039-REL
Case Title
Taylor Kidd and Jerome L. Glazer vs Heritage Village III Homeowners Association
Decision Date
2024-08-23
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Taylor Kidd (petitioner)
  • Jerome L. Glazer (petitioner)
    Appeared on his own behalf
  • Patrick T. Nackley (petitioner attorney)
    MEDALIST LEGAL PLC
    Represented Petitioner Taylor Kidd
  • Brandon P. Bodea (petitioner attorney)
    MEDALIST LEGAL PLC
  • Jack Sales (homeowner)
    Co-authored a letter to the Board with Petitioner Glazer

Respondent Side

  • Jennifer Hutsko (board member/witness)
    Heritage Village III Homeowners Association
    Director and member of the Community Planning Committee
  • Glenn Martyr (board member)
    Heritage Village III Homeowners Association
    Seconded motion in meeting minutes
  • Steve Wolf (board member)
    Heritage Village III Homeowners Association
    Seconded motion in meeting minutes
  • Tessa Knueppel (respondent attorney)
    CHDB Law LLP
    Represented Respondent at hearing
  • Mark K. Sahl (respondent attorney)
    CHDB Law LLP
    Represented Respondent at hearing
  • Charles H. Oldham (respondent attorney)
    CHDB Law LLP
  • Josh Bolen (respondent attorney)
    CHDB Law LLP

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
    Conducted hearing and issued Decision
  • Tammy L. Eigenheer (ALJ)
    OAH
    Signed consolidation order
  • Susan Nicolson (Commissioner)
    ADRE