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Amy Hillburn v. Stetson Valley Owners Association

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Case Summary

Case ID 23F-H008-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-17
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Amy Hilburn Counsel —
Respondent Stetson Valley Owners Association Counsel Melissa Doolan, Esq.

Alleged Violations

A.R.S. § 33-1804 and Article 6.2 of the Bylaws

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.

Why this result: The ARC successfully argued that A.R.S. § 33-1804(A) only mandates open access for 'any regularly scheduled committee meetings.' Since they transitioned to using an online portal on an irregular schedule, they were no longer holding 'regularly scheduled meetings,' meaning the statute did not require them to be open.

Key Issues & Findings

Failure of Architectural Review Committee (ARC) to hold open meetings where members can comment prior to a vote.

Petitioner alleged the Architectural Review Committee (ARC) was violating A.R.S. § 33-1804 (open meetings statute) by failing to hold open meetings, particularly after the ARC began processing requests using an online portal which allows for discussion and voting among members outside of noticed meetings. Historically, the ARC held regularly scheduled meetings on the first Tuesday of every month until March 2022. The ALJ ultimately ruled that since March 2022, the ARC was not holding 'regularly scheduled committee meetings' as defined by the statute.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 32-2199
  • Article 6.2 of the Bylaws
  • 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. § 41-1092.09
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Analytics Highlights

Topics: HOA Open Meeting Law, Architectural Review Committee (ARC), Regularly Scheduled Meetings, Online Portal, Statutory Interpretation
Additional Citations:

  • A.R.S. § 33-1804(A)
  • Article 6.2 of the Bylaws

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Video Overview

Audio Overview

Decision Documents

23F-H008-REL Decision – 1005178.pdf

Uploaded 2026-04-27T09:47:07 (48.8 KB)

23F-H008-REL Decision – 1013302.pdf

Uploaded 2026-01-23T17:51:12 (110.8 KB)

The hearing in the matter of *Amy Hilburn v. Stetson Valley Owners Association* (No. 23F-H008-REL) was held before Administrative Law Judge (ALJ) Sondra J. Vanella at the Office of Administrative Hearings on November 9, 2022.

Key Facts and Main Issue

The Petitioner, Amy Hilburn, filed a dispute petition on or about August 19, 2022, alleging that the Stetson Valley Owners Association (HOA) violated Arizona Revised Statute (A.R.S.) § 33-1804 and Article 6.2 of its Bylaws. The sole issue determined at the hearing was whether the Association's Architectural Review Committee (ARC) was failing to hold open meetings where homeowner members could comment prior to a vote of the committee.

The core legal point centered on A.R.S. § 33-1804(A), which mandates that "all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings" must be open to all members, who are permitted to attend and speak.

Petitioner’s Arguments

Petitioner Hilburn argued that the ARC previously held regularly scheduled meetings on the first Tuesday of every month from 2011 until February 2022, often without proper notice. Petitioner provided evidence, including old Meeting Minutes (2017–2021) and the Respondent's Paint Architectural Change Request Form, which stated the ARC reviewed applications on the first Tuesday of every month, demonstrating the regularity of the meetings.

Petitioner acknowledged that the ARC ceased holding traditional open meetings after July 2022, choosing instead to process applications through an online portal. However, she argued that the ability for ARC members to exchange comments and make decisions via this portal constitutes "discussion" and a form of regularly occurring meeting that should be open to the community, consistent with the legislature's intent for transparency.

Respondent’s Arguments

The Respondent, represented by Melissa Doolan, Esq., contended that the Association was following state law because the ARC does not currently hold regularly scheduled meetings. Testimony from Community Manager Danielle Miglio and ARC Member Ann Renee Wilsey established that since March 2022, the ARC moved to processing requests solely through an online portal to provide faster homeowner turnaround.

Respondent witnesses testified that under the portal system, ARC members are notified via email, but they view the request documentation and vote on their own time; there is no regularly scheduled time for them to convene, comment, or vote. Because the meetings are not "regularly scheduled," the open meeting requirement of A.R.S. § 33-1804(A) does not apply. The Respondent noted that the few in-person or virtual meetings that occurred in 2022 (April, June, and July) were noticed to the members.

Final Decision and Outcome

The ALJ found that while the ARC had held regularly scheduled meetings prior to utilizing the online portal system, the credible evidence established that since March 2022, the ARC has not been holding regularly scheduled meetings.

The ALJ concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence to establish a violation of A.R.S. § 33-1804(A) or Article 6.2 of the Bylaws, noting that the statute does not require the ARC to hold regularly scheduled meetings.

The ALJ ORDERED that Petitioner’s Petition is dismissed.

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However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }

{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation 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”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }

Case Participants

Petitioner Side

  • Amy Hilburn (petitioner)
    Stetson Valley Owners Association member
    Appeared pro se; former Board President

Respondent Side

  • Melissa Doolan (HOA attorney)
    Travis Law Firm
  • Danielle Miglio (community manager, witness)
    Oasis Community Management
  • Ann Renee Wilsey (ARC member, witness)
    Stetson Valley Owners Association ARC
  • Nichollet Widner (board member, witness)
    Stetson Valley Owners Association Board President
  • Tom Young (board member, observer)
    Stetson Valley Owners Association Board
  • Pam Weller (ARC member, observer)
    Stetson Valley Owners Association ARC
  • Omar Chavez (board member, observer)
    Stetson Valley Owners Association Board
  • Miranda Alvarez (legal secretary)
    Travis Law Firm
    Transmitting staff
  • Elizabeth Franco (community manager staff)
    Oasis Community Management
    Referenced in Petitioner's Exhibit 6 testimony
  • Benjamin Butler (ARC chairperson)
    Stetson Valley Owners Association ARC
    Referenced in Petitioner's Exhibit 6 testimony

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Louis Dettorre (commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
  • vnunez (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • labril (ADRE staff)
    ADRE
  • c. serrano (OAH staff)
    OAH
    Transmitting staff

Other Participants

  • Amanda McGawan (observer)
  • Lisa Vargas (observer)
  • Nick Jackson (observer)

Keith Jackson v. Val Vista Lakes Community Association

Posted on by

Case Summary

Case ID 23F-H006-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-08
Administrative Law Judge Kay A. Abramsohn
Outcome The Administrative Law Judge dismissed the Petition, finding that the Association did not violate A.R.S. § 33-1813 by rejecting both the initial recall petition (due to insufficient signatures) and the subsequent amended petition (which was barred by the one-petition-per-term rule for the same members).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keith Jackson Counsel —
Respondent Val Vista Lakes Community Association Counsel Eric Cook

Alleged Violations

ARS 33-1813

Outcome Summary

The Administrative Law Judge dismissed the Petition, finding that the Association did not violate A.R.S. § 33-1813 by rejecting both the initial recall petition (due to insufficient signatures) and the subsequent amended petition (which was barred by the one-petition-per-term rule for the same members).

Why this result: Petitioner failed to meet the burden of proving that the Association violated ARS § 33-1813. The second petition was barred by statute (A.R.S. § 33-1813(A)(4)(g)).

Key Issues & Findings

Improper rejection of a recall petition to remove four Board members.

Petitioner alleged the HOA improperly rejected his recall petition by misinterpreting ARS 33-1813, specifically arguing that the initial incomplete petition should not have been considered valid, thus allowing the amended petition to proceed. Respondent argued that the statute only permits one petition submission per term for the same board members (A.R.S. § 33-1813(A)(4)(g)).

Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARS 33-1813
  • ARS 33-1813(A)(4)(g)
  • ARS 33-1813(A)(4)(b)
  • ARS 33-1804
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

23F-H006-REL Decision – 1011201.pdf

Uploaded 2026-04-29T11:11:58 (113.7 KB)

Briefing: Keith Jackson v. Val Vista Lakes Community Association (Case No. 23F-H006-REL)

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and subsequent legal decision in Case Number 23F-H006-REL, involving Petitioner Keith Jackson and Respondent Val Vista Lakes Community Association. The central conflict revolved around the proper interpretation of Arizona Revised Statutes (A.R.S.) § 33-1813, which governs the process for recalling members of a homeowner association’s board of directors.

The dispute was initiated after an initial recall petition, containing an insufficient number of signatures, was submitted to the Association’s board on July 12, 2022. A second, supplemented petition with a sufficient number of signatures was submitted on July 19, 2022. The Petitioner argued that the first submission was incomplete and therefore not a legally valid petition, meaning it should not have triggered the statute’s “one petition per term” limitation. The Respondent contended that the statute is unambiguous: once a petition is submitted, regardless of its numerical sufficiency, a second petition to recall the same board members is barred for the remainder of their terms.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the Respondent. The decision concluded that the Association did not violate the statute by rejecting the first petition for having insufficient signatures. Furthermore, the ALJ found that A.R.S. § 33-1813(A)(4)(g) clearly and unequivocally prohibits submitting more than one recall petition for the same board member during a single term of office. Consequently, the second petition was statutorily barred, and the Petitioner’s case was dismissed.

Case Overview

Parties and Key Individuals

Affiliation

Keith Jackson

Petitioner

Homeowner, Val Vista Lakes

Eric Cook

Attorney for Respondent

Lewis Brisbois Bisgaad & Smith LLP

Kay A. Abramsohn

Administrative Law Judge (ALJ)

Arizona Office of Administrative Hearings

Doug Keats

Witness for Respondent; Treasurer

Val Vista Lakes Board of Directors

K. Adams

Witness for Respondent; Secretary

Val Vista Lakes Board of Directors

Andy Ball

Individual who submitted the initial petition

Friend of Petitioner, Association Member

Kirk Kowieski

Vice President of Management Company

First Service Residential (FSR)

Bill Suttell

Board President; target of recall petition

Val Vista Lakes Board of Directors

Sharon Maiden

Board Vice President; target of recall petition

Val Vista Lakes Board of Directors

Steve Nielson

Board Member; target of recall petition

Val Vista Lakes Board of Directors

Core Legal Issue

The case centered on the interpretation of A.R.S. § 33-1813, specifically the relationship between two subsections:

1. Subsection (A)(4)(b): This section establishes the signature threshold required to compel a board to call a special meeting for a recall vote. For an association with over 1,000 members, this is “at least ten percent of the votes in the association or…at least one thousand votes…whichever is less.”

2. Subsection (A)(4)(g): This section states, “A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.”

The central question before the court was whether an initial petition that fails to meet the signature threshold of (4)(b) still constitutes a formal submission that triggers the “one petition per term” limitation of (4)(g).

Chronology of Events

July 12, 2022

At a board meeting, Andy Ball submits an initial recall petition targeting four board members. The petition contains approximately 211-214 signatures, below the required threshold.

July 15, 2022

Board President Bill Suttell notifies Association members via email that the petition has been turned over to the management company, First Service Residential (FSR), for signature vetting.

July 18, 2022

The Association officially notifies its members that the initial recall petition has been rejected “for not meeting the criteria of the law.”

July 19, 2022

Kirk Kowieski of FSR informs an Association member that “a ‘new’ (amended) petition” could be submitted.

July 19, 2022

Keith Jackson submits a second, supplemented petition containing the original signatures plus additional ones, totaling over 250 signatures.

July 25, 2022

The Board of Directors votes to reject the second petition. FSR sends an email to members stating it was rejected based on A.R.S. § 33-1813(A)(4)(g).

July 30, 2022 (approx.)

Keith Jackson files a single-issue petition with the Arizona Department of Real Estate, alleging the Board improperly rejected the recall petition.

October 24, 2022

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

November 8, 2022

The ALJ issues a final decision, ruling in favor of the Respondent and dismissing the Petitioner’s case.

Petitioner’s Position and Arguments (Keith Jackson)

Grievances Leading to Recall Effort

Mr. Jackson testified that the recall effort was initiated due to significant community dissatisfaction with the Board’s direction. The primary concerns articulated during the hearing included:

• Lack of Transparency and Accountability: A general sentiment among members that the Board was not operating openly.

• Financial Mismanagement: The Association’s financial reserves had allegedly plummeted from $3.4 million to a projected “well under a million dollars” within the year.

• Loss of Revenue: The Board terminated the Association’s largest non-dues revenue source in an executive session without member input. Members reportedly learned of this decision through the media after a wedding was cancelled.

• Toxic Workplace Environment: The community manager and several employees had reportedly quit due to micromanagement and a poor work environment created by the Board.

Legal Argument

The Petitioner’s legal argument was founded on the principle that a petition is not legally cognizable until it meets the statutory requirements for action.

• Concept of a “Valid” Petition: Jackson argued that the initial July 12 submission was an “incomplete petition” and therefore not a “valid petition” under A.R.S. § 33-1813(A)(4)(b) because it failed to meet the signature threshold.

• Triggering the Statute: He contended that an invalid, incomplete petition should not be officially “considered” and thus should not trigger the one-petition-per-term limit in subsection (g).

• The “Amended” Petition: The only legally valid petition, in his view, was the completed version submitted on July 19, which contained over 250 signatures. He argued this was the first and only valid submission that the Board was required to act upon.

• Statutory Loophole: Jackson warned that the Association’s interpretation creates a dangerous loophole: “anyone on the board could never get recalled with the way the stat was being interpreted…you could submit any incomplete petition for anyone on the board and they would never get…recalled during their term.”

• Reliance on Management Company: Jackson pointed to Exhibit C, an email from Kirk Kowieski of FSR, stating that an “amended petition” could be submitted. Since the Board had delegated the vetting process to FSR, Jackson argued this communication affirmed the legitimacy of his second submission.

Respondent’s Position and Arguments (Val Vista Lakes Community Association)

Legal Argument

The Respondent’s counsel, Eric Cook, argued for a plain-language reading of the statute, asserting that the law is clear and binding.

• Plain Meaning of the Statute: The core of the argument was that A.R.S. § 33-1813 says what it means. It refers to “a petition,” not a “valid petition” or a “complete petition,” when establishing the one-submission limit.

• Standalone Provision: A.R.S. § 33-1813(A)(4)(g) was presented as a standalone provision. It is not contingent on whether a petition meets the signature requirements of subsection (b). Its purpose is to prevent repeated recall efforts against the same board member.

• One Chance Rule: “Section G is a standalone provision that says if you file that petition, you get that one chance.”

• Chronology is Key: A petition was submitted on July 12. It was considered and rejected. The second petition, submitted on July 19, sought to remove the same four board members. This second submission was a clear violation of subsection (g).

• Function of Subsection (b): Respondent argued that the signature threshold in subsection (b) only determines whether the Board is obligated to call a special meeting. It does not define whether a document submitted as a petition constitutes “a petition” for the purposes of the one-per-term rule.

Witness Testimony

• Doug Keats (Treasurer) and K. Adams (Secretary) both testified that they were present at the July 12 meeting when Andy Ball submitted the initial petition directly to the Board President, Bill Suttell. They affirmed this petition was the one the Board officially considered and rejected for having an insufficient number of signatures.

Administrative Law Judge’s Decision and Rationale

On November 8, 2022, ALJ Kay A. Abramsohn issued a decision dismissing Mr. Jackson’s petition, finding no violation of A.R.S. § 33-1813 by the Association.

Key Findings of Fact

• The Association has more than 1,000 members.

• The initial petition submitted on July 12, 2022, contained an insufficient number of signatures to meet the statutory threshold for compelling a recall vote.

• The second petition submitted on July 19, 2022, petitioned for the removal of the same four board members named in the first petition.

Conclusions of Law

1. Rejection of the First Petition: The ALJ concluded that the Board did not violate the statute when it rejected the July 12 petition. Since the petition did not contain the required number of signatures, the Board was under no obligation to call a special meeting.

2. Rejection of the Second Petition: The central conclusion rested on a direct interpretation of A.R.S. § 33-1813(A)(4)(g). The decision states: “a petition which calls for the removal of the same member of the board of directors ‘shall not be submitted more than once during each term of office for that member.’ Therefore, in this case, the July 19, 2022 ‘second’ petition which petitioned for the removal of the same four Board members…was not permitted by statute.”

3. Final Ruling: Because the second petition was statutorily prohibited, the Board did not violate the law by rejecting it. The ALJ concluded that the Petitioner failed to establish any violation by the Association, and the petition was therefore dismissed.

Study Guide: Johnson v. Val Vista Lakes Community Association (Case No. 23F-H006-REL)

This study guide is designed to assess and deepen understanding of the administrative hearing held on October 24, 2022, and the subsequent decision regarding the dispute between Keith Jackson and the Val Vista Lakes Community Association. The materials cover the central arguments, key figures, procedural timeline, and legal interpretations at the heart of the case.

——————————————————————————–

Quiz: Short Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the provided source materials.

1. Who are the two primary parties in this case, and what is the nature of their dispute?

2. What specific Arizona Revised Statute (A.R.S.) is the central point of legal contention, and what is its general purpose?

3. Describe the timeline and key differences between the first and second recall petitions that were submitted to the Association.

4. What was petitioner Keith Jackson’s core argument for why the first petition submitted on July 12th should have been considered invalid by the Board?

5. What was the respondent Association’s legal justification, based on the statute, for rejecting the second, “amended” petition submitted on July 19th?

6. Identify Kirk Kowieski and First Service Residential (FSR). What role did their communications and actions play in Mr. Jackson’s argument?

7. What authority does the Arizona Office of Administrative Hearings (OAH) have in this matter, and how does it relate to the Department of Real Estate?

8. According to the Administrative Law Judge’s decision, what was the legal standard Mr. Jackson had to meet, and did he succeed?

9. Identify the four board members targeted for recall and their respective positions within the Association’s board of directors.

10. What was the final order of the Administrative Law Judge in this case?

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Answer Key

1. The primary parties are Keith Jackson (the Petitioner) and the Val Vista Lakes Community Association (the Respondent). The dispute centers on whether the Association’s Board of Directors improperly rejected a recall petition initiated by Mr. Jackson to remove four board members, based on their interpretation of state law.

2. The central statute is A.R.S. § 33-1813. Its purpose is to govern the process for removing a member of a community association’s board of directors, including the requirements for calling a special meeting based on a recall petition.

3. The first petition, containing approximately 211-214 signatures, was submitted by Andy Ball on July 12, 2022. The second, “amended” petition was submitted by Keith Jackson on July 19, 2022; it included the original signatures plus an additional 37, for a total of over 250, and was intended to be a complete version.

4. Mr. Jackson argued that the first petition was mistakenly turned in as an incomplete “first batch” and therefore was not a “valid” petition under the statute. He contended that the Board could only act upon a completed petition that met the statutory signature threshold, making the initial submission legally void.

5. The Association argued that A.R.S. § 33-1813(A)(4)(g) is clear in its language. This subsection states that a petition to remove the same board member shall not be submitted more than once during that member’s term of office, and therefore the second petition was barred by statute.

6. First Service Residential (FSR) is the property management company for the Association, and Kirk Kowieski is its Vice-President. Mr. Jackson argued that an email from Mr. Kowieski (Exhibit C) confirming that an “amended petition” would be accepted showed that FSR, acting with authority from the Board, had agreed the completed petition submitted on July 19th was the only valid one.

7. The Arizona Office of Administrative Hearings (OAH) is a separate state agency that conducts hearings and makes decisions on behalf of other agencies. It does not work for the Department of Real Estate but was tasked with conducting the hearing after Mr. Jackson filed his complaint with the Department.

8. The legal standard was the “preponderance of the evidence,” meaning Mr. Jackson had to prove that it was more probable than not that the Association had violated A.R.S. § 33-1813. The Judge concluded that Mr. Jackson did not meet this burden of proof.

9. The four board members targeted were: Bill Suttell (President), Sharon Maiden (Vice-President), Doug Keats (Treasurer), and Steve Nielson (General Board Member).

10. The final order, issued on November 8, 2022, was that the Petitioner’s Petition be dismissed. The Judge found that the Board did not violate the statute when it rejected either the July 12th or the July 19th petition.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis. Formulate a comprehensive response for each, citing specific facts, arguments, and evidence from the hearing and the final decision.

1. Analyze the competing interpretations of A.R.S. § 33-1813 as presented by the petitioner and the respondent. Explain how each party used subsections (A)(4)(b) and (A)(4)(g) to support their respective positions regarding the validity of the two petitions.

2. Discuss the role and actions of First Service Residential (FSR) and its representative, Kirk Kowieski. Evaluate the significance of FSR’s communications as evidence in the petitioner’s case and explain how the final legal decision implicitly addresses the limits of FSR’s authority.

3. Trace the complete procedural history of the recall effort, beginning with Mr. Jackson’s collection of signatures and culminating in the Administrative Law Judge’s final order. Identify key dates, actions taken by each party, and the rationale provided for each decision along the way.

4. Examine the evidence presented during the hearing, specifically Petitioner’s Exhibits A, C, D, and F, and Respondent’s Exhibit 1. Describe the content and purpose of each exhibit and analyze its effectiveness in supporting the arguments made by each side.

5. Explain the final ruling in Case No. 23F-H006-REL. Detail the Administrative Law Judge’s legal conclusions regarding both the July 12th and July 19th petitions and articulate the reasoning that led to the dismissal of Mr. Jackson’s petition.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An impartial judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, the ALJ was Kay A. Abramsohn.

A.R.S. § 33-1813

The specific Arizona Revised Statute that provides the legal framework for the removal of a board of directors member in a community association, forming the basis of the entire dispute.

Arizona Office of Administrative Hearings (OAH)

A separate state agency authorized to conduct administrative hearings and issue decisions for disputes referred by other state agencies, such as the Department of Real Estate.

Exhibit

A document or item of physical evidence introduced during a hearing to support a party’s claims. Examples include the initial petition (Respondent’s Exhibit 1) and email correspondence (Petitioner’s Exhibit C).

First Service Residential (FSR)

The property management company hired by the Val Vista Lakes Community Association to handle tasks such as maintaining records, sending community notices, and vetting petition signatures.

Homeowners Association. In this case, the Val Vista Lakes Community Association.

Petitioner

The party who initiates a legal action by filing a petition or complaint. In this case, Keith Jackson.

Preponderance of the Evidence

The burden of proof in this administrative hearing. It requires the petitioner to show that the facts they allege are more probable than not.

Recall Petition

A document signed by a required number of association members to call for a special meeting to vote on the removal of one or more members of the board of directors.

Respondent

The party against whom a petition or complaint is filed. In this case, the Val Vista Lakes Community Association.

Special Meeting

A meeting of the association members called for a specific purpose outside of regularly scheduled meetings, such as voting on a recall. The statute dictates the conditions under which the Board must call such a meeting.

Statute

A written law passed by a legislative body. The central statute in this case is A.R.S. § 33-1813.

Term of Office

The designated length of time a board member serves in their position. Under A.R.S. § 33-1813(A)(4)(g), a recall petition for the same member cannot be submitted more than once per term.

Vetting

The process of carefully examining and verifying the information presented, specifically the process FSR was tasked with to validate the signatures on the recall petition.

Their HOA Recall Had 250+ Signatures. It Was Voided by This One-Sentence Legal Booby Trap.

For many homeowners, a battle with their Homeowners Association (HOA) board is a familiar, frustrating story of feeling unheard. It was a reality that spurred homeowner Keith Jackson to action. Believing his board was failing the community, he channeled the widespread discontent of his neighbors, gathering significant support for a recall. Yet, despite his passionate efforts and clear community backing, the entire campaign was tragically derailed by a single, counter-intuitive rule, triggered by the simple, well-meaning mistake of a trusted friend.

Takeaway 1: The “One-Shot” Rule is Ironclad

The core legal issue that doomed the recall was a procedural trap hidden in plain sight. On July 12, 2022, a friend of Mr. Jackson, Andy Ball, submitted the recall petition to the board. The problem? It was incomplete and lacked the required number of signatures. According to Jackson’s testimony, his friend even tried to qualify the submission, telling the board, “here is the first batch of signatures more for coming.”

But that verbal clarification was powerless. The simple act of handing over the documents was legally considered a formal submission. This premature action triggered a critical and unforgiving clause in Arizona statute A.R.S. § 33-1813(A)(4)(g):

A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

Because the first petition was officially submitted and rejected for having insufficient signatures, the second, corrected petition—even with more than enough community support—was automatically barred. As the Administrative Law Judge’s final decision confirmed, the board was legally correct to reject the second attempt. The first try, flawed as it was, was the only one the law allowed.

Takeaway 2: Your Property Manager Isn’t Your Lawyer

This case exposes a common and dangerous misconception in community governance: the difference between operational guidance and binding legal counsel. After the first petition was rejected, Mr. Jackson and his supporters were led to believe they could simply submit a corrected version based on advice from Kirk Kowieski, a Vice President at the HOA’s management company, First Service Residential (FSI).

In a July 19, 2022 email, Kowieski seemed to give them a green light:

The group submitting the recall petition can submit a “new” (amended) petition that has the same names, addresses and signatures as the original as well as any additional signees. Because the first/original petition was “officially” submitted and became a record of the Association, the Association had to accept it and consider it as presented.

This advice, while seemingly authoritative, offered false hope and had no legal standing. Tellingly, while the judge noted the manager’s email in the factual summary of the case, it was given zero weight in the legal analysis. The advice wasn’t just wrong; in the final decision, it was legally nonexistent.

Takeaway 3: Passion and Signatures Don’t Beat Procedure

The recall effort was not born from minor disagreements; it was fueled by serious grievances that resonated deeply within the community. In his testimony, Keith Jackson outlined a compelling case against the board:

• A severe lack of transparency and accountability.

• The community’s reserve fund plummeting from $3.4 million to under $1 million in just one year.

• Cutting off the community’s biggest source of revenue without any member input.

• Creating a “toxic workplace” that led to the resignation of the community manager and other key employees.

These concerns prompted over 250 homeowners to sign the petition in just 10 days. Yet, the merits of their case were never heard. From the very first moments of the hearing, the Administrative Law Judge made the narrow scope of the proceeding clear, even stopping Mr. Jackson’s opening statement to clarify, “The only authority I have is to determine whether or not the statute was interpreted correctly.” The legal system, in this administrative context, was procedurally deaf to their valid concerns, illustrating a stark reminder that passion and popular support are secondary to the cold, hard rules of procedure.

Conclusion: A Cautionary Tale in Black and White

In the highly regulated world of HOA governance, understanding and adhering to the exact letter of the law is non-negotiable. Keith Jackson’s story is a powerful cautionary tale of how a community movement can be undone by a simple, irreversible mistake. A friend turning in a petition before it was ready wasn’t a minor stumble to be corrected—it was the single action that sealed the fate of the entire campaign.

This case forces us to confront the purpose of such a strict rule. Proponents argue this “one-shot” provision prevents boards from being paralyzed by serial, frivolous recall attempts, ensuring stable governance. Critics, however, contend that its unforgiving nature creates a procedural minefield that disempowers homeowners and shields inept or malicious boards from accountability. This leaves us with a crucial question: Does a strict, one-shot rule for recalls truly protect boards from harassment, or does it create an insurmountable barrier for homeowners seeking accountability?

Case Participants

Petitioner Side

  • Keith Jackson (petitioner)
    Self-represented
  • Andy Ball (member)
    Val Vista Lakes Community Association
    Submitted the initial incomplete petition

Respondent Side

  • Eric Cook (HOA attorney)
    Lewis Brisbois Bisgaad & Smith LLP
    Represented Val Vista Lakes Community Association
  • Doug Keats (board member)
    Val Vista Lakes Community Association
    Treasurer; Board member being recalled; Witness
  • K. Adams (board member)
    Val Vista Lakes Community Association
    Secretary; Witness; Assigned to work with HOA attorney
  • Bill Suttell (board member)
    Val Vista Lakes Community Association
    President; Board member being recalled
  • Sharon Maiden (board member)
    Val Vista Lakes Community Association
    Vice President; Board member being recalled
  • Steve Nielson (board member)
    Val Vista Lakes Community Association
    General Board Member; Board member being recalled
  • Kirk Kowieski (property manager)
    First Service Residential (FSR)
    Vice President/Interim Manager of the HOA management company
  • Melissa Scoville (board member)
    Val Vista Lakes Community Association
    Board member mentioned in context of Rob Act's petition
  • Joanie U (board member)
    Val Vista Lakes Community Association
  • Lenny KNik (HOA attorney)
    Consulted by Kirk regarding the petition process
  • Andreas Vas (HOA attorney)
    Consulted by Kirk regarding the petition process

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Transmitted decision electronically

Other Participants

  • Rob Act (member)
    Submitted a separate incomplete petition
  • Stephanie (intern manager)
    FSR
    Works with Kirk

R.L. Whitmer v. Hilton Casitas HOA

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Case Summary

Case ID 22F-H2222043-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-13
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas HOA Counsel Edith Rudder

Alleged Violations

Section 8.2

Outcome Summary

The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.

Key Issues & Findings

Failure to Obtain Owner Approval for Annual Assessment

Respondent adopted the 2022 annual budget and assessment without obtaining the affirmative approval of a majority of a quorum of homeowners.

Orders: Petitioner's petition is affirmed. Respondent ordered to reimburse Petitioner's $500.00 filing fee and directed to comply with Section 8.2 of the Declaration going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1201
  • ARIZ. REV. STAT. § 33-1202
  • ARIZ. REV. STAT. § 33-1241
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 38-551(5)

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Decision Documents

22F-H2222043-REL Decision – 1005717.pdf

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22F-H2222043-REL Decision – 1014946.pdf

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22F-H2222043-REL Decision – 976124.pdf

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22F-H2222043-REL Decision – 976252.pdf

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22F-H2222043-REL Decision – 979285.pdf

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Briefing Document: R.L. Whitmer v. Hilton Casitas HOA (Case No. 22F-H2222043-REL)

Executive Summary

This briefing document analyzes the administrative legal dispute between R.L. Whitmer (Petitioner) and Hilton Casitas HOA (Respondent), a 29-unit condominium association in Scottsdale, Arizona. The central conflict concerned the interpretation of the association's 1972 Declaration, specifically whether the "Council" authorized to set annual assessments refers to the Board of Directors or the collective body of Owners.

On October 13, 2022, the Administrative Law Judge (ALJ) ruled in favor of the Petitioner, determining that the plain language of the governing documents requires a majority of a quorum of all Owners to approve annual assessments. Because the Respondent failed to achieve a quorum during its 2022 budget ratification attempt, the assessment was deemed invalid. The Respondent was ordered to reimburse the Petitioner’s filing fee and comply with Owner-approval requirements moving forward.

Detailed Analysis of Key Themes

1. Linguistic Interpretation of "Council"

The crux of the legal dispute was the definition of the word "Council" as used in Section 8.2 of the Declaration.

  • Respondent’s Position: The HOA argued that "Council" is synonymous with the "Board of Directors" or the "Association" as a corporate entity. They contended that under modern Arizona statutes (the Condominium Act), the Board has the power to act on behalf of the association in all instances not explicitly reserved for members.
  • Petitioner’s Position: The Petitioner argued that the Declaration explicitly defines the Council as the entire membership of owners.
  • ALJ Finding: The ALJ upheld the Petitioner’s view, noting that Section 1.4 of the Declaration specifically states the Council "consists of all of the Owners of the Casitas."
2. Statutory Evolution vs. Contractual Fidelity

The case highlights the tension between historical governing documents and evolving state law.

  • The Horizontal Property Regime Act: This was the law in effect when the Hilton Casitas Declaration was recorded in 1972. It defined "Council of co-owners" as "all of the co-owners of the building."
  • The Condominium Act: Adopted in 1986, this Act replaced the previous regime. The Respondent argued that the modern Act allows Boards to adopt budgets and set assessments unless the documents state otherwise.
  • The Ruling: The ALJ concluded that because the association's governing documents constitute a contract, the intent of the parties at the time of the contract (1972) is paramount. The ALJ noted that despite the repeal of the old Act in 1985, the HOA had 36 years to amend its documents to clarify Board authority but failed to do so.
3. Procedural Failure and Quorum Requirements

The HOA attempted a "ratification" process for the 2022 budget that failed to meet the standards set by its own Bylaws.

  • Participation Numbers: Hilton Casitas consists of 29 Owners. A quorum (majority) requires 15 members.
  • The February 9, 2022 Meeting: Only 14 Owners participated (in person or by absentee ballot). Even though 11 of those 14 voted to approve the budget, the lack of a 15-person quorum rendered the vote legally ineffective.
  • The Difference in Standards: While the Declaration requires higher vote percentages for major changes (e.g., 51% to amend the Declaration or 75% for new construction), the ALJ clarified that for standard "Council" acts, a majority of a quorum is the minimum requirement.

Important Quotes with Context

Governing Document Definitions

"“Council” shall mean the Council of Co-owners as defined in the Horizontal Property Regime Act, and consists of all of the Owners of the Casitas."

— Declaration, Section 1.4

  • Context: This quote was the primary evidence used to defeat the Respondent’s claim that "Council" referred to the Board.
Assessment Authority

"The Owner of each Casita… agrees that each Casita shall be subject to an annual assessment in an amount to be determined by the Council…"

— Declaration, Section 8.2

  • Context: This provision establishes that the power to set the specific dollar amount of assessments resides with the "Council" (all Owners), not just the Board.
Conflict of Documents

"In case any of the provisions of these Bylaws conflict with the provisions of said Declaration, the provisions of said Declaration shall control."

— Bylaws, Article XI, Section 1

  • Context: This established the hierarchy of authority, ensuring that the Declaration's definition of "Council" overrode any broader powers the Board might claim under the Bylaws or general corporate law.
The ALJ's Conclusion

"The Administrative Law Judge concludes that, the plain language of the Declaration requires a majority of a quorum of all owners vote to set the annual assessments for Respondent."

— ALJ Decision, Conclusions of Law ¶ 22

  • Context: This was the final legal determination that invalidated the HOA's unilateral budgeting process.

Procedural History and Timeline

Date Event
Nov 5, 2021 Board notices meeting for "discussion and approval" of 2022 budget.
Jan 13–19, 2022 Petitioner repeatedly warns Board via email regarding non-compliance with Section 8.2.
Feb 9, 2022 Budget meeting held; 14 Owners participate (less than quorum).
May 27, 2022 Respondent requests additional time to respond to Summary Judgment motion.
June 8, 2022 ALJ denies Respondent’s Motion to Strike and sets a response deadline of June 20.
June 22, 2022 ALJ denies Petitioner’s Motion for Default Judgment but grants a continuance of the hearing.
Oct 13, 2022 Final Decision issued: Petitioner's motion affirmed; Respondent ordered to comply.
Nov 14, 2022 Respondent files Motion for Rehearing/Reconsideration.
Nov 28, 2022 ALJ issues Minute Entry refusing to consider the motion, stating the OAH can take no further action.

Actionable Insights

For Governance Compliance
  • Mandatory Owner Voting: The Board cannot unilaterally set annual assessments. A formal meeting must be called where at least 15 of the 29 owners (a quorum) are present in person or by proxy.
  • Approval Threshold: Once a quorum of 15 is met, at least 8 votes (a majority of that quorum) are required to legally set the assessment.
  • Document Amendments: If the association wishes to grant the Board the power to set assessments without a full membership vote, they must formally amend the Declaration. Per Section 23.3, this requires the signed concurrence of 51% of the Owners.
Legal and Financial Consequences
  • Reimbursement: The association is legally obligated to reimburse the Petitioner $500.00 for the filing fee.
  • Standard of Conduct: The ALJ emphasized that the HOA had decades to modernize its language regarding the "Council" and the "Board." Failure to align historical documents with current practices results in the historical contract language remaining binding.
  • Finality of Administrative Decisions: The OAH has limited jurisdiction for reconsiderations. Once a final order is issued and the timeframe for standard motions passes, the Office may refuse to hear further arguments, as seen in the November 28 Minute Entry.

Legal Analysis Study Guide: Whitmer v. Hilton Casitas HOA

This study guide provides a comprehensive overview of the administrative law case R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL). It explores the intersection of homeowner association (HOA) governing documents, Arizona statutory law, and the principles of contractual interpretation.

Key Case Concepts

1. The Central Dispute

The primary legal question was whether the Hilton Casitas HOA Board had the authority to determine annual assessments unilaterally or if such assessments required an affirmative vote by a quorum of the homeowners. The dispute centered on the interpretation of the term "Council" as used in the association's 1972 Declaration.

2. Hierarchy of Governing Documents

The case underscores the priority of governing documents:

  • The Declaration: The foundational document (recorded in 1972). Section 8.2 states that annual assessments are "determined by the Council."
  • Bylaws: Article XI, Section 1 explicitly states that in the event of a conflict between the Bylaws and the Declaration, the Declaration shall control.
  • Statutory Law: While the Arizona Condominium Act provides general management powers to boards, it also allows for specific restrictions within a community's own Declaration.
3. Definitions and Interpretations
  • Council: Section 1.4 of the Declaration defines "Council" as the "Council of Co-owners… and consists of all of the Owners of the Casitas."
  • Quorum Requirements: According to Article III, Section 6 of the Bylaws, a quorum is a majority of members. For this association of 29 owners, a quorum is 15. The "acts of the Council" are defined as the acts of a majority of those present at a meeting where a quorum is established.
4. Statutory Transitions

The community was originally governed by the Horizontal Property Regime Act. Although this was replaced by the Condominium Act in 1986 (and applied retroactively in 2008), the Administrative Law Judge (ALJ) determined that the specific definitions and voting requirements established in the original 1972 Declaration remained binding.

Short-Answer Practice Questions

1. How does Section 1.4 of the Declaration define the "Council"?

Answer: It defines the "Council" as the Council of Co-owners, consisting of all the Owners of the Casitas.

2. Why was the February 9, 2022, "Budget Ratification" vote deemed invalid by the Administrative Law Judge?

Answer: Only 14 Owners participated (in person or by absentee ballot), which was one less than the 15 required to constitute a quorum of the 29-member association.

3. According to Section 6.5 of the Declaration, under what circumstances is an Owner’s right to vote suspended?

Answer: Voting rights are suspended if an Owner is in arrears on payments or in default of the Declaration terms for a period of fifteen (15) days.

4. What was the Respondent’s primary argument regarding the Board's authority to set the budget?

Answer: The Respondent argued that the term "Council" in Section 8.2 referred to the Board of Directors, and that under the Condominium Act (A.R.S. § 33-1243), the board has the power to act in all instances on behalf of the association unless specifically prohibited.

5. How did the ALJ address the fact that the Declaration used the term "Owners" for some actions (like amendments) and "Council" for others?

Answer: The ALJ noted that actions requiring a specific percentage of "Owners" (like terminating the Declaration) are inherently different from day-to-day operations and did not prove that "Council" was intended to mean only the Board of Directors.

Essay Prompts for Deeper Exploration

1. Contractual Interpretation in HOA Governance

Analyze the ALJ's application of the "plain language" rule in this case. How does the requirement to examine the "plain meaning of the words in the context of the contract as a whole" impact the interpretation of the term "Council"? Discuss why the ALJ found the 1972 definition of "Council" more compelling than the general management powers granted to boards under modern statutes.

2. The Impact of Statutory Evolution on Older Declarations

Hilton Casitas was formed under the Horizontal Property Regime Act, which was later repealed and replaced by the Condominium Act. Explore the challenges faced by HOAs when their founding documents (recorded under old statutes) conflict with or use different terminology than current state laws. Should an association be required to amend its documents to match modern statutory language, or should the original intent of the developers and early owners take precedence?

3. Quorum and Collective Decision-Making

Discuss the significance of the quorum in this case. The Respondent argued that 11 out of 14 votes were in favor of the budget, representing a clear majority of those who chose to participate. Evaluate the legal and ethical implications of requiring a strict quorum for financial decisions, particularly in small associations where owner apathy or absence can stall administrative functions.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who serves as the trier of fact in administrative hearings, such as those held by the Office of Administrative Hearings.
Bylaws The rules adopted by the Council for the administration of the affairs of the association, subordinate to the Declaration.
Condominium Act The Arizona statutes (A.R.S. § 33-1201 et seq.) governing condominiums, effective January 1, 1986, and applicable to all condominiums regardless of their creation date.
Council of Co-owners Defined in the Horizontal Property Regime Act and the Hilton Casitas Declaration as all the owners of the casitas/units.
Declaration The Declaration of Horizontal Property Regime; the master contract recorded in the county recorder's office that governs the property and its members.
Horizontal Property Regime Act The precursor to the Condominium Act in Arizona, in effect when the Hilton Casitas Declaration was recorded in 1972.
Motion for Summary Judgment A request for the judge to rule in favor of one party without a full hearing because there are no genuine issues of material fact.
Owner The record owner of a Casita (unit) within the Hilton Casitas development.
Pro Rata Share The proportionate share of common expenses assigned to each Casita, as determined by the Declaration.
Quorum The minimum number of members required to be present (in person or by proxy) at a meeting to make the proceedings of that meeting valid.
Summary Judgment A legal decision made by a court without a full trial, based on the principle that no factual disputes exist and the law is clearly on one side.

When Homeowners Hold the Gavel: Lessons from Whitmer v. Hilton Casitas HOA

1. Introduction: The Power of the Purse in HOA Governance

In the world of community associations, there is often a simmering tension between the Board of Directors and the homeowners they serve, particularly when it involves the "power of the purse." Many Boards operate under the assumption that they possess the unilateral authority to dictate financial assessments and annual budgets. However, a recent legal victory for a vigilant homeowner serves as a stark reminder: the Board’s power is not absolute. It is strictly bounded by the community’s founding documents.

The case of R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL) provides a masterclass in why the specific, recorded language of a community’s Declaration—rather than general state law—is the final word on budget matters. In this dispute, a failure to respect the precise definitions within a 50-year-old document led to an invalidated budget and a clear message from the court: when homeowners are given the gavel by their governing documents, the Board cannot simply take it away.

2. The Dispute: A Question of Authority

This case didn't reach a hearing because of a factual "he-said, she-said" argument. Instead, it was decided on a Motion for Summary Judgment, meaning the facts were undisputed, and the outcome rested entirely on the legal interpretation of the HOA's governing documents.

The Petitioner, a homeowner at Hilton Casitas, challenged the HOA’s 2022 annual assessment. He argued that the Board failed to obtain the mandatory affirmative approval from the homeowners as required by the community's Declaration. While the Board attempted a modern "budget ratification" process common in many newer associations, the Petitioner insisted that the association’s specific 1972 rules required a much higher level of homeowner participation.

Timeline of Events:

  • November 10, 2021: The Board met to discuss and approve a proposed 2022 budget.
  • Dec 30, 2021 – Jan 19, 2022: The Petitioner sent four separate, written reminders (Dec 30, Jan 13, Jan 16, and Jan 19) to the Board president and treasurer, warning them that they were not complying with Section 8.2 of the Declaration regarding the budget approval process.
  • January 25, 2022: The Board officially cancelled a previously scheduled (but improperly noticed) budget meeting and issued a new notice for a "Budget Ratification" meeting.
  • February 9, 2022: The HOA held the meeting to seek owner "ratification" of the assessment.
3. The Definition of "Council": Words That Cost $500

The entire legal dispute revolved around the interpretation of the word "Council." The HOA Board argued that "Council" was simply another term for the Board of Directors. The Petitioner argued it meant the entire body of owners. This single word was so central to the case that the Board’s misinterpretation ultimately led to the Administrative Law Judge (ALJ) ordering the HOA to reimburse the Petitioner’s $500 filing fee.

To find the truth, the ALJ went back to the source. The 1972 Declaration was written under the Horizontal Property Regime Act, which specifically defined the "Council of co-owners" as "all of the co-owners of the building." This historical context was the "smoking gun"—the term "Council" had a fixed legal meaning from the day the community was born.

Key Document Definitions

Term Source Context Definition
Council Consists of all of the Owners of the Casitas; defined by the Horizontal Property Regime Act as "all of the co-owners" (Section 1.4).
Owner The record owner of a Casita (Section 1.8).
Common Expenses Costs for which each Casita is subject to an annual assessment in an amount to be determined by the Council (Section 8.2).

Because Section 8.2 requires assessments to be "determined by the Council," the Board never had the unilateral authority to set the budget. That power belonged to the owners.

4. The Quorum Quagmire: Why 14 Ballots Weren’t Enough

Even when the Board finally attempted to involve the owners in the February 9, 2022, meeting, they failed to clear the procedural hurdles set by their own Bylaws.

Hilton Casitas consists of 29 condominium units. Article III, Section 6 of the Bylaws defines a quorum as a "majority of members."

  • The Math: To have a valid meeting of the Council, the HOA needed a quorum of 15 members (a majority of 29).
  • The Reality: Only 14 owners participated (in person or via absentee ballot).

Because they were one person short of a quorum, the meeting was legally a non-event. Even though 11 of those 14 owners voted in favor of the budget, the vote was invalid. The ALJ clarified that for an act of the "Council" to be valid, 15 members must be present, and at least 8 (a majority of the quorum) must vote in favor.

5. Legal Nuance: Governing Documents vs. The Condominium Act

The HOA’s primary defense was a reliance on modern statute. They argued that the Arizona Condominium Act (A.R.S. § 33-1243) grants Boards broad power to act on behalf of the association unless a power is specifically reserved for the members. Since the Act doesn't explicitly reserve "budget adoption" for members, the Board claimed they could act alone.

The ALJ rejected this, noting that the Condominium Act itself states that a Board may act "except as provided in the declaration." Essentially, the private contract of the Declaration overrides the general permissions of the statute.

Perhaps the most stinging part of the ruling was the ALJ's observation that the Board’s predicament was entirely avoidable. Since the Horizontal Property Regime Act was repealed in 1985, the Board had over 36 years to amend their Declaration to shift budget power from the owners to the Board. They chose not to do so, leaving the 1972 "Council" requirement in full effect.

"An association’s governing documents constitute a contract between the association and the owners. When interpreting contractual provisions, the Office of Administrative Hearings should not construe or interpret a contract if the intent of the parties is clear and unambiguous from its plain language." — Administrative Law Judge Decision

6. The Verdict and Its Implications

On October 13, 2022, the ALJ issued a Final Order that served as a total victory for homeowner vigilance:

  • Affirmation of the Petition: The judge ruled that the HOA violated Section 8.2 of the Declaration.
  • Financial Penalty: The HOA was ordered to reimburse the Petitioner’s $500 filing fee.
  • Future Compliance: The HOA was directed to strictly comply with Section 8.2 for all future assessments, ensuring the "Council" (the owners) determines the amounts.
7. Key Takeaways for HOA Members and Boards

The Whitmer case provides three essential lessons for community governance:

  1. Definitions are Decisive: Words like "Council," "Board," and "Association" are not interchangeable. Boards must look at their community’s specific definitions, particularly in older "legacy" documents, to understand where authority truly lies.
  2. Quorum is Non-Negotiable: A vote—even a unanimous one—is legally worthless if the minimum quorum requirement is not met. Boards must be meticulous in tracking attendance and proxies to ensure their actions are binding.
  3. Modern Statutes Don't Always Erase Old Declarations: While state laws provide a general framework, they often defer to the community’s Declaration. If your documents are outdated or restrictive, "standard practice" will not save you in court.
8. Conclusion

The Whitmer v. Hilton Casitas HOA case underscores a fundamental truth: the Declaration is the supreme law of the association. This was a "clean" legal victory achieved through a Motion for Summary Judgment because the governing documents were clear and unambiguous.

For homeowners, this case is a testament to the fact that vigilance and a thorough understanding of your documents can check a Board’s overreach. For Boards, it is a cautionary tale. Proactivity is key—if your 50-year-old documents no longer serve the practical needs of the community, you must amend them. Until then, you are bound by every word, every definition, and every procedural hurdle your predecessors put in writing.

Case Participants

Petitioner Side

  • R.L. Whitmer (petitioner)

Respondent Side

  • Edith Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Office of Administrative Hearings
  • c. serrano (Legal Secretary)
    Office of Administrative Hearings

Deborah Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 22F-H2222057-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-05
Administrative Law Judge Velva Moses-Thompson
Outcome The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah Mesear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1243(J)

Outcome Summary

The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.

Why this result: The Petitioner failed to establish that the Association violated the applicable statute by a preponderance of the evidence, resulting in the dismissal of the petition.

Key Issues & Findings

Violation of HOA statutory duty to provide annual financial reports (audit, review, or compilation)

Petitioner alleged the HOA failed to share an annual audit/compilation for 2017-2021. The ALJ found the HOA provided financial compilations for 2017-2020 after the petition was filed. The claim regarding 2021 was found to be premature because the financial compilation was not yet due when the petition was filed on May 29, 2022.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810

Analytics Highlights

Topics: Condominium Act, Financial Records, Compilation, Statutory Compliance, HOA Management
Additional Citations:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810
  • A.R.S. § 32-2199(1)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222057-REL Decision – 1003891.pdf

Uploaded 2026-04-24T11:53:40 (95.1 KB)

22F-H2222057-REL Decision – 988206.pdf

Uploaded 2026-04-24T11:53:44 (57.1 KB)

22F-H2222057-REL Decision – 989133.pdf

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22F-H2222057-REL Decision – 994978.pdf

Uploaded 2026-04-24T11:53:51 (50.8 KB)

This decision, issued by Administrative Law Judge Velva Moses-Thompson on October 5, 2022, dismissed the petition brought by Deborah Mesear, a condominium unit owner, against the Paradise Park Condominiums Phase II Homeowners Association (the Association).

Key Facts and Legal Issue:

The dispute centered on the Association's compliance with Arizona financial reporting laws for condominiums. The core issue set for determination was whether the Association violated Arizona Revised Statutes (A.R.S.) § 33-1243(J) (the applicable statute for condominiums) by failing to share annual financial reports for the years 2017 through 2021.

Petitioner Deborah Mesear filed her petition on May 29, 2022, alleging the Association failed to provide annual audits despite multiple requests, stating she could find no evidence that audits had been completed.

Legal Framework and Arguments:

  1. Statutory Requirement: A.R.S. § 33-1243(J) mandates that the board provide for an annual financial audit, review or compilation of the association. This report must be completed no later than 180 days after the fiscal year ends and made available to unit owners within 30 days of completion.
  2. Association's Defense (Compilations vs. Audits): The Association confirmed through the testimony of its community manager, Carl Westlund, that it did not prepare full audits for the relevant years, but rather financial compilations, which are substantially more limited in scope and less expensive than an audit. The Association argued that choosing a compilation complies fully with A.R.S. § 33-1243(J), as the statute permits any one of the three report types.
  3. Sharing of Reports (2017–2020): After the petition was filed, the Association provided Mesear with the financial compilations for 2017 through 2020. Mesear received these reports but argued that compilations were incomplete financial reports.
  4. 2021 Report Issue: Mesear emphasized that the 2021 report had not been provided. The Association testified that a compilation for 2021 had been ordered from a new accountant but was not yet completed as of the September 15, 2022, hearing date. The Association argued that Mesear's petition, filed May 29, 2022, regarding the 2021 compilation was not yet ripe because the 180-day deadline for its completion had likely not yet passed.

Outcome and Legal Decision:

The Administrative Law Judge determined that the Petitioner bore the burden of proving a violation by a preponderance of the evidence.

The ALJ concluded that:

  • The Association was not required to prepare annual audits; selecting annual financial compilations satisfies A.R.S. § 33-1243(J).
  • The Association shared the compilations for 2017 through 2020 with Mesear.
  • The issue concerning the 2021 compilation was not ripe when the May 29, 2022, petition was filed.

Ms. Mesear failed to establish that the Association violated A.R.S. § 33-1243. The petition was ordered dismissed.

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

Alj Quote

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

Legal Basis

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

Alj Quote

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

Legal Basis

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deborah Mesear (petitioner, witness)
    Also appears as Deborah Masear and Deborah Mesier in the sources.

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren Law Group
    Also appears as Ashley Moscarello, Esq. and Ashley Carillo.
  • Carl Westlund (property manager, witness)
    The Management Trust
    Community manager for Paradise Park Condominiums Phase II Homeowners Association.
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren Law Group

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).

Other Participants

  • Miranda Alvarez (legal secretary)
    Signed transmission notice.
  • c. serrano (legal secretary)
    Signed transmission notice.

Oak Creek Knolls Property Owners Association, Inc. v. Kim. M. Grill

Posted on by

Case Summary

Case ID 22F-H2222039-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-03
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the petition, finding that the HOA failed to prove the homeowner violated the CC&Rs regarding leasing/occupancy rules, as the homeowner and her roommate's arrangement met the undefined term 'common household' required for a 'Single Family' occupancy.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Oak Creek Knolls Property Owners Association, Inc. Counsel Augustus H. Shaw, IV
Respondent Kim M. Grill Counsel Lawrence J. Felder

Alleged Violations

Article 2, Section 2.11 of the Restatement of Declaration of Covenants, Conditions and Restrictions (CC&Rs)

Outcome Summary

The Administrative Law Judge denied the petition, finding that the HOA failed to prove the homeowner violated the CC&Rs regarding leasing/occupancy rules, as the homeowner and her roommate's arrangement met the undefined term 'common household' required for a 'Single Family' occupancy.

Why this result: The HOA failed to meet the burden of proving that the homeowner's temporary roommate agreement constituted a violation of CC&R Article 2, Section 2.11.

Key Issues & Findings

Residential Use/Leasing Restrictions

Petitioner HOA alleged Respondent homeowner violated CC&R Article 2, Section 2.11 by entering into a roommate agreement while residing in the home, interpreting this as leasing less than the entire unit and arguing the parties did not constitute a 'Single Family' maintaining a 'common household.'

Orders: Petitioner’s petition denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • 32-2199 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA, Rental Restriction, Common Household, Single Family, Roommate, CC&R Enforcement, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • 32-2199 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • CC&Rs Article 2, Section 2.11

Video Overview

Audio Overview

Decision Documents

22F-H2222039-REL Decision – 1003618.pdf

Uploaded 2026-04-24T11:49:13 (125.6 KB)

22F-H2222039-REL Decision – 972982.pdf

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22F-H2222039-REL Decision – 973826.pdf

Uploaded 2026-04-24T11:49:27 (50.2 KB)

22F-H2222039-REL Decision – 974120.pdf

Uploaded 2026-04-24T11:49:30 (50.6 KB)

This case was heard by Administrative Law Judge Tammy L. Eigenheer at the Office of Administrative Hearings on August 4, 2022, concerning a dispute referred by the Arizona Department of Real Estate. The Petitioner, Oak Creek Knolls Property Owners Association, Inc., sought enforcement against the Respondent, property owner Kim M. Grill.

Key Facts and Main Issue

The Petitioner alleged that Respondent Grill violated Article 2, Section 2.11 of the Restatement of Declaration of Covenants, Conditions and Restrictions (CC&Rs). This section requires that residential units be used exclusively by a "Single Family" and prohibits an owner from leasing "less than the entire unit" or using the unit for transient purposes, mandating a minimum 30-day lease term.

The dispute focused on a "Temporary roommate agreement" between Respondent Grill and Ken Snyder, a semi-retired attorney, for a period exceeding 30 days, where Mr. Snyder was afforded "full access to all living spaces" of the home. Although the Association's Disclosure Statement, signed by Grill, stated an owner "may NOT occupy a home at the same time as renting out the home," this statement was determined by the ALJ not to constitute a binding agreement, but merely the Association's interpretation.

Legal Arguments and Proceedings

  1. Jurisdiction: Initially, the question of whether the Association met the statutory definition of a planned community, vesting jurisdiction in the OAH, was raised. After receiving additional briefing, the ALJ concluded that the Petitioner did meet the statutory definition, confirming jurisdiction.
  2. Petitioner’s Argument: The Association argued that Grill's co-occupancy while receiving rent constituted a violation, primarily because she was leasing less than the entire unit to a non-family member while residing there. Witnesses argued that the owner's presence simultaneously with renters "is what causes the damage or detriment," asserting that failure to comply with the letter of the law harms the community scheme.
  3. Respondent’s Argument: Respondent argued the arrangement complied because the CC&Rs define "Single Family" to include a "group of not more than three (3) persons not all so related, who maintain a common household". Since the agreement was long-term and provided Mr. Snyder full access, the key legal question was whether Grill and Snyder maintained a "common household". Respondent emphasized that there was no evidence of noise, disturbance, or actual detriment caused by Mr. Snyder.

Outcome and Final Decision

The Petitioner bore the burden of proving the CC&R violation by a preponderance of the evidence.

The ALJ noted that the term "common household" was not defined in the CC&Rs and was "open to different interpretations". The arrangement, involving Mr. Snyder paying a share of living expenses (including utilities, internet, and cable TV) and having full access to the entire property, could "reasonably be interpreted to constitute evidence of a 'common household'".

The Administrative Law Judge Decision concluded that the Petitioner failed to establish by a preponderance of the evidence that the Agreement with Mr. Snyder violated Article 2, Section 2.11 of the CC&Rs. Therefore, the Petitioner's petition was denied. The decision was issued on October 3, 2022.

Questions

Question

Who has the burden of proof when an HOA alleges a violation of the CC&Rs?

Short Answer

The HOA (Petitioner) bears the burden of proof by a preponderance of the evidence.

Detailed Answer

In a dispute before the OAH between an owner and an association, the HOA must prove that the homeowner violated the specific provision of the CC&Rs. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 2, Section 2.11 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • dispute resolution

Question

Can an HOA enforce a rule interpretation found in a 'Disclosure Statement' that isn't explicitly in the CC&Rs?

Short Answer

No, a disclosure statement representing the HOA's interpretation is not necessarily a binding agreement.

Detailed Answer

Even if a homeowner acknowledges a disclosure statement during purchase, if that statement merely reflects the HOA's interpretation of the governing documents (e.g., claiming an owner cannot occupy the home while renting it), it does not constitute a binding contract separate from the CC&Rs themselves.

Alj Quote

Notably, Petitioners assertion on the Disclosure Statement that '[a]n owner may NOT occupy a home at the same time as renting out the home' did not constitute a binding agreement between Petitioner and Respondent, but was merely Respondent’s statement indicating its interpretation of the governing documents.

Legal Basis

Contract Law Principles

Topic Tags

  • disclosure statements
  • enforceability
  • governing documents

Question

If my CC&Rs prohibit leasing 'less than the entire unit,' can I still have a roommate?

Short Answer

Potentially yes, if the roommate has full access to the entire property and shares living expenses.

Detailed Answer

The ALJ found that a 'roommate agreement' granting the tenant full access to all living spaces and sharing expenses (utilities, internet, etc.) did not violate a ban on leasing less than the entire unit, as the tenant was not restricted to a specific portion of the home.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Interpretation

Topic Tags

  • rentals
  • roommates
  • leasing restrictions

Question

How does an HOA define a 'Single Family' if unrelated people live together?

Short Answer

It may depend on whether the group maintains a 'common household.'

Detailed Answer

If the CC&Rs define 'Single Family' to include a group of unrelated persons maintaining a 'common household,' acts like sharing utility costs, living expenses, and having full access to the property can serve as evidence of a common household.

Alj Quote

This arrangement, together with the fact that Mr. Snyder had full access to the entire property, could reasonably be interpreted to constitute evidence of a 'common household.'

Legal Basis

CC&R Definitions

Topic Tags

  • single family definition
  • occupancy limits
  • common household

Question

What happens if a key term like 'common household' is not defined in the CC&Rs?

Short Answer

Undefined terms are open to different reasonable interpretations.

Detailed Answer

When the governing documents fail to define a critical term, it creates ambiguity. In this case, the lack of a definition for 'common household' allowed for an interpretation that included a homeowner and a roommate sharing expenses.

Alj Quote

The term 'common household' was not defined in the CC&Rs and is open to different interpretations.

Legal Basis

Contract Interpretation

Topic Tags

  • ambiguity
  • definitions
  • legal interpretation

Question

Can I rent out a room if my CC&Rs require leases to be for a minimum of 30 days?

Short Answer

Yes, as long as the lease meets the time requirement and grants access to the whole unit (if partial leasing is banned).

Detailed Answer

The ALJ ruled in favor of the homeowner where the roommate agreement was for 12 months (satisfying the 30-day minimum) and granted access to the entire home, distinguishing it from short-term transient use or partial leasing.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Compliance

Topic Tags

  • rental restrictions
  • lease terms
  • minimum stay

Case

Docket No
22F-H2222039-REL
Case Title
Oak Creek Knolls Property Owners Association, Inc. vs Kim M. Grill
Decision Date
2022-10-03
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Who has the burden of proof when an HOA alleges a violation of the CC&Rs?

Short Answer

The HOA (Petitioner) bears the burden of proof by a preponderance of the evidence.

Detailed Answer

In a dispute before the OAH between an owner and an association, the HOA must prove that the homeowner violated the specific provision of the CC&Rs. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 2, Section 2.11 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • dispute resolution

Question

Can an HOA enforce a rule interpretation found in a 'Disclosure Statement' that isn't explicitly in the CC&Rs?

Short Answer

No, a disclosure statement representing the HOA's interpretation is not necessarily a binding agreement.

Detailed Answer

Even if a homeowner acknowledges a disclosure statement during purchase, if that statement merely reflects the HOA's interpretation of the governing documents (e.g., claiming an owner cannot occupy the home while renting it), it does not constitute a binding contract separate from the CC&Rs themselves.

Alj Quote

Notably, Petitioners assertion on the Disclosure Statement that '[a]n owner may NOT occupy a home at the same time as renting out the home' did not constitute a binding agreement between Petitioner and Respondent, but was merely Respondent’s statement indicating its interpretation of the governing documents.

Legal Basis

Contract Law Principles

Topic Tags

  • disclosure statements
  • enforceability
  • governing documents

Question

If my CC&Rs prohibit leasing 'less than the entire unit,' can I still have a roommate?

Short Answer

Potentially yes, if the roommate has full access to the entire property and shares living expenses.

Detailed Answer

The ALJ found that a 'roommate agreement' granting the tenant full access to all living spaces and sharing expenses (utilities, internet, etc.) did not violate a ban on leasing less than the entire unit, as the tenant was not restricted to a specific portion of the home.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Interpretation

Topic Tags

  • rentals
  • roommates
  • leasing restrictions

Question

How does an HOA define a 'Single Family' if unrelated people live together?

Short Answer

It may depend on whether the group maintains a 'common household.'

Detailed Answer

If the CC&Rs define 'Single Family' to include a group of unrelated persons maintaining a 'common household,' acts like sharing utility costs, living expenses, and having full access to the property can serve as evidence of a common household.

Alj Quote

This arrangement, together with the fact that Mr. Snyder had full access to the entire property, could reasonably be interpreted to constitute evidence of a 'common household.'

Legal Basis

CC&R Definitions

Topic Tags

  • single family definition
  • occupancy limits
  • common household

Question

What happens if a key term like 'common household' is not defined in the CC&Rs?

Short Answer

Undefined terms are open to different reasonable interpretations.

Detailed Answer

When the governing documents fail to define a critical term, it creates ambiguity. In this case, the lack of a definition for 'common household' allowed for an interpretation that included a homeowner and a roommate sharing expenses.

Alj Quote

The term 'common household' was not defined in the CC&Rs and is open to different interpretations.

Legal Basis

Contract Interpretation

Topic Tags

  • ambiguity
  • definitions
  • legal interpretation

Question

Can I rent out a room if my CC&Rs require leases to be for a minimum of 30 days?

Short Answer

Yes, as long as the lease meets the time requirement and grants access to the whole unit (if partial leasing is banned).

Detailed Answer

The ALJ ruled in favor of the homeowner where the roommate agreement was for 12 months (satisfying the 30-day minimum) and granted access to the entire home, distinguishing it from short-term transient use or partial leasing.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Compliance

Topic Tags

  • rental restrictions
  • lease terms
  • minimum stay

Case

Docket No
22F-H2222039-REL
Case Title
Oak Creek Knolls Property Owners Association, Inc. vs Kim M. Grill
Decision Date
2022-10-03
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Augustus H. Shaw, IV (HOA Attorney)
    SHAW & LINES LLC
    Represented Petitioner Oak Creek Knolls Property Owners Association, Inc.
  • Lisa Frost (Board Member/Witness)
    Oak Creek Knolls POA
    Association Secretary and testifying witness
  • Brenda Keller (Board Member/Witness)
    Oak Creek Knolls POA
    Alternate Director/Chair of the Architectural Committee and testifying witness
  • Dana Shel (Board Member)
    Oak Creek Knolls POA
    Association Board President
  • Denise Dotto (Neighbor/Complainant)
    Adjacent property owner whose concerns were noted by Petitioner's witnesses

Respondent Side

  • Kim M. Grill (Respondent)
    Property owner and Association member
  • Lawrence J. Felder (Respondent Attorney)
    Doncaster Law, PLLC
    Represented Respondent Kim M. Grill

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge
  • Louis Dettorre (ADRE Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • AHansen (ADRE Staff)
    ADRE
    Transmittal recipient
  • vnunez (ADRE Staff)
    ADRE
    Transmittal recipient
  • djones (ADRE Staff)
    ADRE
    Transmittal recipient
  • labril (ADRE Staff)
    ADRE
    Transmittal recipient
  • Miranda Alvarez (Legal Secretary)
    Transmitting administrative staff
  • c. serrano (Administrative Staff)
    Transmitting administrative staff

Other Participants

  • Ken Snyder (Housemate/Non-party)
    Individual renting under the temporary roommate agreement with Respondent
  • David Goldman (Housemate/Non-party)
    Another individual residing at Respondent's property
  • Bruce Eert (Neighbor)
  • Chris Green (Neighbor)

Robert C. Ochs v. The Camelview Greens Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2222048-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-04
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert C. Ochs Counsel —
Respondent The Camelview Greens Homeowners Association Counsel Ashley Moscarello, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805 A

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.

Why this result: Petitioner failed to sustain the burden of proof that the Respondent violated the records request statute.

Key Issues & Findings

Alleged violation of records request statute (failure to timely provide materials lists/specifications related to roof replacement/repairs).

Petitioner requested materials lists and specifications regarding recent (Sept 2021) and past (since 1986) roof work on February 27, 2022. The Association provided a scope of work document from the vendor on May 11, 2022, after the petition was filed. The ALJ determined the requested documents were not established to be 'financial and other records of the association' as contemplated by the statute, and TMT was not in possession of them at the time of the request.

Orders: Petitioner's petition and request for a civil penalty were denied. Respondent was not ordered to reimburse Petitioner's filing fee.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805 A
  • ARIZ. REV. STAT. § 32-2199.02 A
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: HOA records request, Planned Community Act, Roof Repair/Replacement, Condominium, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222048-REL Decision – 1003691.pdf

Uploaded 2026-01-23T17:48:15 (160.6 KB)

22F-H2222048-REL Decision – 979940.pdf

Uploaded 2026-01-23T17:48:17 (49.4 KB)

22F-H2222048-REL Decision – 979959.pdf

Uploaded 2026-01-23T17:48:18 (7.1 KB)

22F-H2222048-REL Decision – 985762.pdf

Uploaded 2026-01-23T17:48:20 (52.8 KB)

22F-H2222048-REL Decision – 986375.pdf

Uploaded 2026-01-23T17:48:22 (52.8 KB)

This summary focuses on the hearing held on September 19, 2022, before Administrative Law Judge Jenna Clark, regarding Petitioner Robert C. Ochs versus the Camel View Green Homeowners Association (HOA), concerning an alleged violation of Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 subsection A.

Key Facts and Underlying Dispute

The dispute arose after Petitioner Ochs' investment property sustained over $30,000 in interior damage following a severe storm in July 2021, necessitating roof replacement by the HOA's vendor around September/October 2021. When the roof leaked again in February 2022, Petitioner sought documentation regarding the repairs.

On February 27, 2022, Petitioner submitted a two-part records request to the HOA's management company (TMT), seeking: (1) materials lists and specifications for the most recent roof replacement, and (2) materials lists and specifications for all past replacements/repairs since 1986. The HOA manager replied on March 3, 2022, indicating she was "working on" the request. Petitioner filed a petition on or about April 24, 2022, after receiving no further documentation or substantive response. The HOA's legal counsel finally provided a "scope of work" document from the roofing vendor (dated September 7, 2021) on May 11, 2022, after the petition was filed.

Main Issues and Legal Arguments

The central issue was whether the HOA violated ARIZ. REV. STAT. § 33-1805A, which requires an association to make "all financial and other records of the association" reasonably available for examination within ten business days of a request.

  1. Petitioner's Argument: Petitioner argued the HOA violated the 10-day requirement. He contended that the materials lists and specifications related to the recent repair were "other records of the association" because the HOA (Camel View Greens) would have received and retained this documentation (like the "scope of work") to verify and pay the vendor's invoice by the end of 2021.
  2. Respondent's Argument: The HOA denied the violation. They argued that the materials lists and specifications requested are not "association records" contemplated by the statute, nor are they records the nonprofit corporation keeps in the ordinary course of business (unlike meeting minutes or financial records). These records belong to the vendor, who is not subject to the 10-day statutory requirement. Furthermore, the witness (Carl Westlund) testified that the management company (TMT, which started managing in 2018) did not possess the specific documents requested at the time of the request.

Legal Points and Findings

The Administrative Law Judge (ALJ) concluded that the Petitioner did not meet the burden of proof.

  • The ALJ found that the request for 35 years of prior records (since 1986) was unreasonable because the current management company (TMT) confirmed it did not obtain those records from its predecessor.
  • Regarding the records for the recent replacement, the request was not unreasonable, but the documents sought were not records kept in the ordinary course of business.
  • The record did not establish *when* the HOA or TMT received the "scope of work" from the vendor (Ideal Roofing), so it could not be proven that the document should have been supplied within the 10-day statutory window (March 11, 2022).
  • The Petitioner failed to establish that the documents were "financial" or constituted "other records of the association" as required by ARIZ. REV. STAT. § 33-1805.

Outcome

The Administrative Law Judge issued a decision on October 4, 2022, concluding that the Association's conduct was not in violation of ARIZ. REV. STAT. § 33-1805. Petitioner's petition and the request for a civil penalty were denied, and the Respondent was not required to reimburse the Petitioner's filing fee.

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

Case Participants

Petitioner Side

  • Robert C. Ochs (petitioner)
    Appeared on his own behalf

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren
    Appeared on behalf of respondent
  • Carl Westlund (witness)
    The Management Trust
    Division Vice President of Community Management at TMT
  • Shauna Carr (property manager)
    The Management Trust
    Former executive community manager for Camel View Greens
  • Dameon Cons (HOA attorney)
    Goodman Holmgren
    Sent response letter to Petitioner
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren
    Counsel for Respondent listed on transmittals

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    OAH
    Transmitted orders/minute entries
  • AHansen (ADRE Staff)
    ADRE
    Recipient of official documents
  • vnunez (ADRE Staff)
    ADRE
    Recipient of official documents
  • djones (ADRE Staff)
    ADRE
    Recipient of official documents
  • labril (ADRE Staff)
    ADRE
    Recipient of official documents

Other Participants

  • Jeff Centers (vendor/project manager)
    Vendor
    Contractor hired by the community

Kathy J Green v. Cross Creek Ranch Community Association

Posted on by

Case Summary

Case ID 22F-H2222064-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-09-29
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge affirmed the petition, finding that the HOA violated A.R.S. § 33-1804 by improperly holding a closed executive session primarily focused on reviewing homeowner comments on design guidelines that did not meet the statutory exceptions for closure. The ALJ ordered the HOA to reimburse the petitioner's filing fee and comply with the statute in the future.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kathy J. Green, MD Counsel —
Respondent Cross Creek Ranch Community Association Counsel Nick Eicher, Esq.

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge affirmed the petition, finding that the HOA violated A.R.S. § 33-1804 by improperly holding a closed executive session primarily focused on reviewing homeowner comments on design guidelines that did not meet the statutory exceptions for closure. The ALJ ordered the HOA to reimburse the petitioner's filing fee and comply with the statute in the future.

Key Issues & Findings

Alleged violation of open meetings requirements regarding closed executive session.

The Respondent HOA held a closed executive session on June 9, 2022, noticed under A.R.S. § 33-1804(A)(1) (legal advice), to discuss approximately 72 homeowner comments on proposed design guideline revisions. The ALJ found that the meeting did not qualify under exceptions (A)(1) or (A)(2) as no legal advice was given and the discussion of most comments did not constitute pending or contemplated litigation.

Orders: Petitioner's petition is affirmed. Respondent must reimburse the Petitioner the $500.00 filing fee and is directed to comply with the requirements of A.R.S. § 33-1804 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • 33-1804(A)(1)
  • 33-1804(A)(2)
  • 33-1804(B)
  • 33-1804(F)

Analytics Highlights

Topics: HOA, Open Meetings, Executive Session, Legal Advice, Contemplated Litigation, Design Guidelines
Additional Citations:

  • 33-1804
  • 33-1804(A)
  • 33-1804(A)(1)
  • 33-1804(A)(2)
  • 33-1804(F)

Video Overview

Audio Overview

Decision Documents

22F-H2222064-REL Decision – 1003060.pdf

Uploaded 2026-04-24T11:55:20 (149.0 KB)

22F-H2222064-REL Decision – 989940.pdf

Uploaded 2026-04-24T11:55:23 (49.8 KB)

This summary concerns the administrative hearing held on September 16, 2022, regarding the matter of Kathy J. Green (Petitioner) versus Cross Creek Ranch Community Association (Respondent), Docket No. 22F-H2222064-REL.

Key Facts and Legal Issue

The dispute centered on whether the Respondent Homeowners Association (HOA) violated Arizona Revised Statute (A.R.S.) § 33-1804 by holding a closed executive session on June 9, 2022. A.R.S. § 33-1804 establishes the state policy that all meetings of a planned community association's board of directors must be conducted openly and that any provisions of the statute must be construed in favor of open meetings. A meeting may only be closed if the portion is strictly limited to specific exceptions, such as legal advice (A.R.S. § 33-1804(A)(1)) or pending or contemplated litigation (A.R.S. § 33-1804(A)(2)).

The meeting was held to discuss 72 comments solicited from homeowners regarding proposed revisions to the Architectural Review Committee (ARC) Design Guidelines.

Key Arguments

Petitioner's Position:

The Petitioner, Kathy Green, alleged that the closed session was improper because it was noticed under A.R.S. § 33-1804(A)(1) (legal advice), yet the Board stipulated that no legal advice was given during the session. Evidence showed the Board President had emailed management prior to the meeting asking, "I don't want this to be an open meeting. Can we classify it under ARC Legal Review and keep it closed?". Petitioner argued that the meeting unlawfully conducted association business, noting that minutes showed a review of owner comments, non-board ARC members were present, and the minutes did not show discussion of legal advice or pending litigation. Furthermore, emails demonstrated that the Board later attempted to retroactively justify the meeting under A.R.S. § 33-1804(A)(2) (contemplated litigation).

Respondent's Position:

The Respondent, Cross Creek Ranch Community Association, argued that the closure was justified under A.R.S. § 33-1804(A)(2) because certain owner comments, including those from the Petitioner and her husband, were perceived as threats of litigation concerning the design guidelines. The Board testified that it met to holistically consider the risk of litigation, gauge membership sentiment, and conduct a cost-benefit analysis regarding the threatened lawsuits.

Final Decision and Outcome

Administrative Law Judge (ALJ) Sondra J. Vanella found that the Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804.

  1. Violation of A.R.S. § 33-1804(A)(1): The stipulation that no legal advice was given established that the meeting did not meet the requirement for closure under the section for which it was noticed.
  2. Violation of A.R.S. § 33-1804(A)(2): The ALJ found the argument for "pending or contemplated litigation" to be "tenuous at best". The discussion primarily involved 72 homeowner comments, and the ALJ concluded that none of the comments could be "reasonably construed as contemplating litigation".
  3. ALJ Finding: The ALJ noted that the Board acknowledged it could have held a separate executive session to discuss the one comment that copied an attorney while holding an open meeting for the majority of the solicited comments. The issue discussed did not fall under the statutory exceptions.

The ALJ affirmed the Petitioner's petition and ordered the Respondent to reimburse the Petitioner the $500.00 filing fee. The Respondent was also directed to comply with the requirements of A.R.S. § 33-1804 moving forward. No civil penalty was found appropriate.

Questions

Question

Can my HOA board hold a closed meeting to discuss homeowner feedback on design guidelines?

Short Answer

No, discussing general homeowner feedback does not qualify for a closed executive session unless it meets specific statutory exceptions like pending litigation.

Detailed Answer

The ALJ ruled that reviewing general comments from homeowners regarding proposed changes to design guidelines is not a valid reason to close a meeting. Even if some comments are critical, the board must discuss them in an open meeting unless they specifically relate to pending or contemplated litigation or legal advice.

Alj Quote

The Administrative Law Judge concludes… that the issue discussed at the June 9, 2022 executive session does not fall under the exceptions listed in A.R.S. §§ 33-1804(A)(1) or (A)(2), and Respondent did not properly consider the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

Does a homeowner saying they 'can and will challenge' a rule in court count as pending litigation?

Short Answer

No, vague statements about potential legal challenges do not necessarily constitute 'contemplated litigation' sufficient to close a meeting.

Detailed Answer

The ALJ found that comments stating changes 'can and will be challenged in court' did not put the Board on notice of imminent lawsuits. Therefore, such comments did not justify closing the meeting under the 'pending or contemplated litigation' exception.

Alj Quote

Further, the Administrative Law Judge concludes that none of the comments can be reasonably construed as contemplating litigation.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

Can the board close an entire meeting if they receive just one threat of litigation?

Short Answer

No, the board should only close the portion of the meeting dealing with the specific threat.

Detailed Answer

If an HOA receives many comments and only one contains a potential legal threat (e.g., copying an attorney), the board should hold an executive session for that specific item and discuss the remaining general business in an open meeting.

Alj Quote

As acknowledged by Mr. Chambers, the Board could have held an executive session to discuss only that one comment/letter in which an attorney was copied, and held an open meeting to discuss the other solicited comments.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

Can the HOA claim 'legal advice' as a reason to close a meeting if no attorney is present?

Short Answer

No, the 'legal advice' exception generally requires actual advice being given or discussed from an attorney.

Detailed Answer

The board cannot use the 'legal advice' exception to close a meeting if they are simply preparing questions for an attorney or reviewing documents before sending them to counsel. In this case, the attorney had not yet reviewed the documents, so no legal advice could be discussed.

Alj Quote

Prior to the June 9, 2022 executive session, an attorney had not yet reviewed the proposed revisions to the Guidelines and therefore, did not provide feedback for discussion at that meeting.

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

How should HOA board members and managers interpret open meeting laws?

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

Arizona statute explicitly states that the policy of the state is to conduct meetings openly. Any ambiguity in the law should be construed by board members and managers to support openness rather than secrecy.

Alj Quote

Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

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

Short Answer

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

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

Can I get my filing fee back if I win my case against the HOA?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner prevails in showing a violation occurred, the judge may order the association to pay back the cost of filing the petition.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

Will the HOA always be fined if they violate open meeting laws?

Short Answer

Not necessarily; the judge has discretion on whether to impose a civil penalty.

Detailed Answer

Even if a violation is found, the judge may decide not to issue a civil penalty based on the specific facts of the case.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

Docket No
22F-H2222064-REL
Case Title
Kathy J. Green v. Cross Creek Ranch Community Association
Decision Date
2022-09-29
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA board hold a closed meeting to discuss homeowner feedback on design guidelines?

Short Answer

No, discussing general homeowner feedback does not qualify for a closed executive session unless it meets specific statutory exceptions like pending litigation.

Detailed Answer

The ALJ ruled that reviewing general comments from homeowners regarding proposed changes to design guidelines is not a valid reason to close a meeting. Even if some comments are critical, the board must discuss them in an open meeting unless they specifically relate to pending or contemplated litigation or legal advice.

Alj Quote

The Administrative Law Judge concludes… that the issue discussed at the June 9, 2022 executive session does not fall under the exceptions listed in A.R.S. §§ 33-1804(A)(1) or (A)(2), and Respondent did not properly consider the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

Does a homeowner saying they 'can and will challenge' a rule in court count as pending litigation?

Short Answer

No, vague statements about potential legal challenges do not necessarily constitute 'contemplated litigation' sufficient to close a meeting.

Detailed Answer

The ALJ found that comments stating changes 'can and will be challenged in court' did not put the Board on notice of imminent lawsuits. Therefore, such comments did not justify closing the meeting under the 'pending or contemplated litigation' exception.

Alj Quote

Further, the Administrative Law Judge concludes that none of the comments can be reasonably construed as contemplating litigation.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

Can the board close an entire meeting if they receive just one threat of litigation?

Short Answer

No, the board should only close the portion of the meeting dealing with the specific threat.

Detailed Answer

If an HOA receives many comments and only one contains a potential legal threat (e.g., copying an attorney), the board should hold an executive session for that specific item and discuss the remaining general business in an open meeting.

Alj Quote

As acknowledged by Mr. Chambers, the Board could have held an executive session to discuss only that one comment/letter in which an attorney was copied, and held an open meeting to discuss the other solicited comments.

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

Can the HOA claim 'legal advice' as a reason to close a meeting if no attorney is present?

Short Answer

No, the 'legal advice' exception generally requires actual advice being given or discussed from an attorney.

Detailed Answer

The board cannot use the 'legal advice' exception to close a meeting if they are simply preparing questions for an attorney or reviewing documents before sending them to counsel. In this case, the attorney had not yet reviewed the documents, so no legal advice could be discussed.

Alj Quote

Prior to the June 9, 2022 executive session, an attorney had not yet reviewed the proposed revisions to the Guidelines and therefore, did not provide feedback for discussion at that meeting.

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

How should HOA board members and managers interpret open meeting laws?

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

Arizona statute explicitly states that the policy of the state is to conduct meetings openly. Any ambiguity in the law should be construed by board members and managers to support openness rather than secrecy.

Alj Quote

Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

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

Short Answer

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

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

Can I get my filing fee back if I win my case against the HOA?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner prevails in showing a violation occurred, the judge may order the association to pay back the cost of filing the petition.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner the $500.00 filing fee.

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

Will the HOA always be fined if they violate open meeting laws?

Short Answer

Not necessarily; the judge has discretion on whether to impose a civil penalty.

Detailed Answer

Even if a violation is found, the judge may decide not to issue a civil penalty based on the specific facts of the case.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

Docket No
22F-H2222064-REL
Case Title
Kathy J. Green v. Cross Creek Ranch Community Association
Decision Date
2022-09-29
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Kathy J. Green (petitioner)
    Cross Creek Ranch Owner
    Also referred to as Dr. Green, Colonel (retired),
  • Peter Calogero (witness)
    Spouse of Petitioner,

Respondent Side

  • Cross Creek Ranch Community Association (respondent)
  • Nick Eicher (HOA attorney)
    Cross Creek Ranch Community Association,
    Also referred to as Nick Iker
  • Greg Chambers (board president)
    Cross Creek Ranch Board
    Also appeared as a witness,
  • Charles Olden (HOA attorney)
    Carpenter Hazelwood
  • Steve Germaine (board member/ARC chair)
    Cross Creek Ranch Board/ARC,
    Subpoenaed individual,,
  • John Kinich (board member)
    Cross Creek Ranch Board
    Also referred to as John Halenich
  • Lynn Grigg (ARC member)
    Cross Creek Ranch ARC,
  • Dan Donahghue (board member)
    Cross Creek Ranch Board,
  • Lisa Henson (board member)
    Cross Creek Ranch Board
  • Laura Malone (property manager)
    Community association manager,,
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP,
    Recipient of final order
  • Edward D. O'Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP,
    Recipient of final order

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Presided over the matter,
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate (ADRE),

Other Participants

  • Brian (regional manager)
    Homeco/Property Management
    Provided guidance to Laura Malone
  • Miranda Alvarez (legal secretary)
    Carpenter, Hazlewood, Delgado & Bolen LLP

M&T Properties LLC v. Kivas Uno Homeowners’ Association

Posted on by

Case Summary

Case ID 22F-H2222060-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-09-06
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner prevailed on the singular issue raised: Respondent (HOA) was found to be in violation of Section 6.7 of the CC&Rs for failing to retain a duly licensed property management agent at the time the petition was filed. The HOA was ordered to reimburse the $500 filing fee and comply with the CC&Rs moving forward. No civil penalty was imposed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner M&T Properties LLC Counsel Lucas Thomas, Owner
Respondent Kivas Uno Homeowners’ Association Counsel David Rivandi, Director

Alleged Violations

Section 6.7 of the First Amendment to the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions for Kivas Uno Condominium

Outcome Summary

The Petitioner prevailed on the singular issue raised: Respondent (HOA) was found to be in violation of Section 6.7 of the CC&Rs for failing to retain a duly licensed property management agent at the time the petition was filed. The HOA was ordered to reimburse the $500 filing fee and comply with the CC&Rs moving forward. No civil penalty was imposed.

Key Issues & Findings

Professional Management

Respondent (HOA) acknowledged that as of the date the Petition was filed (June 6, 2022), it did not retain or maintain a Managing Agent who is duly licensed by the State of Arizona as a property manager, which violated Section 6.7 of the CC&Rs.

Orders: Respondent was ordered to reimburse Petitioner the $500.00 filing fee and was directed to comply with the requirements of Section 6.7 of the CC&Rs going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.A.C. R2-19-119

Analytics Highlights

Topics: CCNR violation, Property Management, Filing Fee Refund, No Civil Penalty
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222060-REL Decision – 997254.pdf

Uploaded 2026-04-25T10:12:09 (87.5 KB)

This summary outlines the proceedings, key arguments, and final decision in the matter of *M&T Properties LLC vs Kivas Uno Homeowners’ Association*, Docket No. 22F-H2222060-REL.

Key Facts and Parties

The hearing took place on August 17, 2022, before Administrative Law Judge Tammy L. Eigenheer (Idier). Petitioner, M&T Properties LLC, filed a petition with the Arizona Department of Real Estate (Department) on or about June 6, 2022, alleging that the Respondent, Kivas Uno Homeowners’ Association (a condominium owners’ association in Phoenix, Arizona), was in violation of its governing documents.

Main Legal Issue

The singular issue determined at the hearing was whether the Respondent was in violation of Section 6.7 of the 2003 amendments to the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions (CC&Rs). Section 6.7, titled "Professional Management," mandates that the Board "shall at all times retain and maintain a 'Managing Agent,' who is duly licensed by the State of Arizona as a property manager". Petitioner alleged that the HOA was required to have a professional management company but did not.

Hearing Proceedings and Key Arguments

At the outset of the hearing, the Respondent, represented by David Rivandi, Director, acknowledged that as of the date the petition was filed (June 6, 2022), they did not have a contract with a professional management company. By this admission, the Respondent acknowledged they were in violation of the CC&Rs at that specific time.

The Respondent attempted to assert that the Board did not know they were required to have a professional management company and noted that they had since contracted with one. However, the Administrative Law Judge (ALJ) strictly limited the scope of the hearing, stating that the singular issue raised in the petition had been addressed by the admission of violation. The ALJ specifically noted that the subsequent hiring of a management company did not negate the admitted violation present at the time the petition was filed. Attempts by the parties to raise and discuss numerous unrelated issues were disregarded.

Outcome and Final Decision

Based on the Respondent's admission that it failed to retain and maintain a licensed Managing Agent as required by Section 6.7 of the CC&Rs, the ALJ issued a finding against the Respondent.

The Administrative Law Judge's Order, dated September 6, 2022, provided the following binding conclusions:

  1. The Petitioner’s petition was affirmed.
  2. The Respondent was ordered to reimburse the Petitioner the $500.00 filing fee for the issue on which they prevailed.
  3. The Respondent was directed to comply with the requirements of Section 6.7 of the CC&Rs going forward.
  4. The ALJ found no civil penalty was appropriate in this matter.

Questions

Question

If my HOA fixes a violation after I file a formal complaint, do I still win the case?

Short Answer

Yes. If the violation existed at the time the petition was filed, the homeowner can still prevail.

Detailed Answer

Even if an HOA corrects the issue before the hearing date, the Administrative Law Judge (ALJ) looks at whether the violation existed at the time the legal action commenced. The homeowner is entitled to a finding in their favor and reimbursement of fees if the violation was active when filed.

Alj Quote

Respondent is asserting that they have since hired a management company. That's great. There's still a admitted violation at the time of the petition which results in the finding against respondent and the requirement to repay the filing fee.

Legal Basis

Admission of violation at time of filing

Topic Tags

  • procedure
  • mootness
  • remedies

Question

Can I bring up new issues during the hearing that I forgot to include in my written petition?

Short Answer

No. The hearing is strictly limited to the issues specifically raised in the original petition.

Detailed Answer

The ALJ will typically refuse to hear arguments regarding issues that were not included in the initial filing. If a homeowner has additional complaints, they must file a separate petition to address them.

Alj Quote

The parties attempted to raise and discuss numerous issues unrelated to the single issue raised in the Petition. … In the event there is a subsequent petition raising other issues that will be dealt dealt with in a separate proceeding.

Legal Basis

Scope of hearing

Topic Tags

  • procedure
  • due process
  • hearing scope

Question

Is the HOA Board allowed to use 'we didn't know' as a defense for violating the CC&Rs?

Short Answer

No. Ignorance of the CC&R requirements is not a valid defense against a violation finding.

Detailed Answer

In this case, the Board asserted they were unaware of the requirement to hire a professional manager. The ALJ noted this assertion but still found them in violation of the CC&Rs.

Alj Quote

Mr. Rivandi asserted the Board did not know they were required to have a professional management company… The failure to retain and maintain a Managing Agent was a violation of Section 6.7 of the CC&Rs.

Legal Basis

Strict liability for CC&R compliance

Topic Tags

  • board defenses
  • compliance
  • fiduciary duty

Question

Can I get my $500 filing fee back if the HOA admits they were wrong?

Short Answer

Yes. If the homeowner prevails on the issue, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

When a violation is found (or admitted to) regarding the issue raised in the petition, the standard remedy includes ordering the Respondent (HOA) to reimburse the Petitioner for the cost of filing the action.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Will the HOA always be fined a penalty if they are found guilty of a violation?

Short Answer

No. The ALJ has the discretion to decide whether a civil penalty is appropriate based on the facts.

Detailed Answer

Even if a violation is proven, the judge may choose not to impose a civil penalty (fine) against the HOA, potentially if the HOA has already taken steps to correct the issue.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Judicial discretion on penalties

Topic Tags

  • penalties
  • fines
  • enforcement

Question

What level of proof is required for a homeowner to win an HOA dispute?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must show that their claim is 'more probable than not' based on the evidence provided. This is the standard burden of proof in these administrative hearings.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
22F-H2222060-REL
Case Title
M&T Properties LLC vs Kivas Uno Homeowners’ Association
Decision Date
2022-09-06
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA fixes a violation after I file a formal complaint, do I still win the case?

Short Answer

Yes. If the violation existed at the time the petition was filed, the homeowner can still prevail.

Detailed Answer

Even if an HOA corrects the issue before the hearing date, the Administrative Law Judge (ALJ) looks at whether the violation existed at the time the legal action commenced. The homeowner is entitled to a finding in their favor and reimbursement of fees if the violation was active when filed.

Alj Quote

Respondent is asserting that they have since hired a management company. That's great. There's still a admitted violation at the time of the petition which results in the finding against respondent and the requirement to repay the filing fee.

Legal Basis

Admission of violation at time of filing

Topic Tags

  • procedure
  • mootness
  • remedies

Question

Can I bring up new issues during the hearing that I forgot to include in my written petition?

Short Answer

No. The hearing is strictly limited to the issues specifically raised in the original petition.

Detailed Answer

The ALJ will typically refuse to hear arguments regarding issues that were not included in the initial filing. If a homeowner has additional complaints, they must file a separate petition to address them.

Alj Quote

The parties attempted to raise and discuss numerous issues unrelated to the single issue raised in the Petition. … In the event there is a subsequent petition raising other issues that will be dealt dealt with in a separate proceeding.

Legal Basis

Scope of hearing

Topic Tags

  • procedure
  • due process
  • hearing scope

Question

Is the HOA Board allowed to use 'we didn't know' as a defense for violating the CC&Rs?

Short Answer

No. Ignorance of the CC&R requirements is not a valid defense against a violation finding.

Detailed Answer

In this case, the Board asserted they were unaware of the requirement to hire a professional manager. The ALJ noted this assertion but still found them in violation of the CC&Rs.

Alj Quote

Mr. Rivandi asserted the Board did not know they were required to have a professional management company… The failure to retain and maintain a Managing Agent was a violation of Section 6.7 of the CC&Rs.

Legal Basis

Strict liability for CC&R compliance

Topic Tags

  • board defenses
  • compliance
  • fiduciary duty

Question

Can I get my $500 filing fee back if the HOA admits they were wrong?

Short Answer

Yes. If the homeowner prevails on the issue, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

When a violation is found (or admitted to) regarding the issue raised in the petition, the standard remedy includes ordering the Respondent (HOA) to reimburse the Petitioner for the cost of filing the action.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Will the HOA always be fined a penalty if they are found guilty of a violation?

Short Answer

No. The ALJ has the discretion to decide whether a civil penalty is appropriate based on the facts.

Detailed Answer

Even if a violation is proven, the judge may choose not to impose a civil penalty (fine) against the HOA, potentially if the HOA has already taken steps to correct the issue.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Judicial discretion on penalties

Topic Tags

  • penalties
  • fines
  • enforcement

Question

What level of proof is required for a homeowner to win an HOA dispute?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must show that their claim is 'more probable than not' based on the evidence provided. This is the standard burden of proof in these administrative hearings.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
22F-H2222060-REL
Case Title
M&T Properties LLC vs Kivas Uno Homeowners’ Association
Decision Date
2022-09-06
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lucas Thomas (Petitioner Representative)
    M&T Properties LLC
    Owner, appeared on behalf of Petitioner.

Respondent Side

  • David Rivandi (Board Member/Respondent Representative)
    Kivas Uno Homeowners’ Association
    Director, appeared on behalf of Respondent. Confirmed being on the board of directors.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Also referred to as Tammy Idier, Administrative Law Judge.
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Transmitted the order.

Evin Abromowitz v. The Meadows Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2222038-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-22
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the homeowner failed to prove the HOA violated CC&Rs Sections 3.5 or 3.6 regarding its authority to enact or enforce the rules and regulations that were at issue.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Evin Abromowitz Counsel —
Respondent The Meadows Homeowners Association Counsel Nicholas Nogami, Esq.

Alleged Violations

CC&Rs, Section 3.5 and 3.6

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the homeowner failed to prove the HOA violated CC&Rs Sections 3.5 or 3.6 regarding its authority to enact or enforce the rules and regulations that were at issue.

Why this result: Petitioner failed to sustain her burden of proving by a preponderance of the evidence that the Respondent violated CC&Rs Section 3.5 or 3.6. The ALJ concluded that the HOA was authorized to enact rules relating to the operation of the association and to enforce them.

Key Issues & Findings

Petitioner claimed Respondent violated CC&Rs 3.5 and 3.6 regarding its power to adopt and enforce rules by applying rules allegedly unrelated to the operation of the association and/or failing to follow protocol.

Petitioner challenged the HOA's authority to enact (3.5) and enforce (3.6) specific rules, arguing they were not related to association operation (e.g., controlling off-site email communication or fining for vendor interaction) and that enforcement protocols were violated. The ALJ denied the petition, finding the HOA was authorized to enact and enforce rules related to the operation of the association, and Petitioner failed to meet her burden of proof.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA rules and regulations, CC&Rs, Enforcement authority, Burden of Proof, Planned community association dispute
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

22F-H2222038-REL Decision – 966844.pdf

Uploaded 2026-04-24T11:48:55 (48.2 KB)

22F-H2222038-REL Decision – 969590.pdf

Uploaded 2026-04-24T11:48:58 (44.1 KB)

22F-H2222038-REL Decision – 994145.pdf

Uploaded 2026-04-24T11:49:02 (145.3 KB)

This summary addresses the hearing proceedings, key arguments, and final decision in the matter of *Evin Abromowitz vs The Meadows Homeowners Association*, Docket No. 22F-H2222038-REL.

Key Facts and Procedural History

The Petitioner, Evin Abromowitz, is a property owner and member of the Respondent Homeowners Association (HOA). The case was heard by Administrative Law Judge (ALJ) Tammy L. Eigenheer at the Office of Administrative Hearings (OAH) on July 20, 2022. The Petitioner contested fines levied by the HOA, which stemmed from alleged conduct including sending derogatory emails to the HOA President/Manager and assistant community manager (carrying $500.00 fines each), and hindering a hired vendor ($100.00 fine). The Petitioner did not attend the scheduled HOA violation hearing, instead filing a petition with the Department of Real Estate.

Main Legal Issues

The core legal issue was whether the Respondent HOA violated specific sections of its Covenants, Conditions, and Restrictions (CC&Rs) through the enactment and enforcement of its rules. Specifically, the Petitioner alleged violations of CC&Rs Section 3.5 (Power to Adopt Rules and Regulations) and Section 3.6 (Power to Enforce Declaration and Rules & Regulations). The Petitioner bore the burden of proving these alleged violations by a preponderance of the evidence.

Key Arguments

  • Petitioner's Argument: Petitioner argued the rules regarding "derogatory language" were unrelated to the operation of the association or property, especially since the communication occurred via off-site email, thereby violating Section 3.5. Regarding Section 3.6, Petitioner argued the HOA failed to follow its own enforcement protocol by not providing violation notices or courtesy notifications, and by issuing one fine 47 days after the alleged event. Petitioner also characterized the enforcement measures as retaliation.
  • Respondent's Argument: The Respondent, represented by Nicholas Nogami, argued that the rules drafted and promulgated were certainly relevant to the association's business and well within its authority pursuant to the declaration. The HOA presented testimony from its manager/president, Lynn Mater, confirming the rules were duly approved by the Board in August 2021 and reviewed by legal counsel. The HOA maintained that the rules related to association operations and governance. The ALJ clarified throughout the hearing that the focus was strictly on the HOA's authority to adopt and enforce the rules (3.5 and 3.6), not on the individual facts of the alleged violations against the Petitioner.

Outcome and Final Decision

The ALJ issued the Administrative Law Judge Decision on August 22, 2022, ordering that the Petitioner’s petition be denied.

The ALJ concluded that the Petitioner failed to sustain her burden of proof. The decision held that the material facts were clear: the Respondent was authorized to enact rules and regulations relating to the operation of the association, and the rules at issue do relate to the operation of the association. Furthermore, the Respondent was authorized to enforce the rules it promulgated. Since the Petitioner failed to establish a violation of either Section 3.5 or 3.6 of the CC&Rs, the petition was denied.

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs are an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person purchases a property within an HOA, they agree to be bound by the terms of the CC&Rs. The decision explicitly states that this document constitutes a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between Respondent and each property owner.

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

Can an HOA create rules regarding behavior toward staff and board members?

Short Answer

Yes, rules prohibiting harassment or abuse of staff and board members are valid.

Detailed Answer

The ALJ determined that rules governing conduct towards the board and management relate to the operation of the association and are therefore within the HOA's authority to enact.

Alj Quote

Respondent was authorized to enact rules and regulations relating to the operation of the association. The rules at issue in this matter relate to the operation of the association.

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

Yes, due written notice and an opportunity for a hearing are generally required.

Detailed Answer

The decision cites the HOA's specific fine guidelines which mandate that a member must be given notice and a chance to be heard before a fine is assessed.

Alj Quote

No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

What is the burden of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their contention is more likely true than not. The burden is on the petitioner to prove the HOA violated its documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

The ALJ upheld the HOA's authority to enforce rules that include fines for hindering hired vendors, as these rules relate to the association's operations.

Alj Quote

Hindering a hired vendor from their work at another property in The Meadows. This violation carries a $100.00 fine.

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

If I challenge the validity of a rule, will the judge also decide if I am guilty of the specific violation?

Short Answer

Not necessarily; the judge only decides the issues raised in the petition.

Detailed Answer

If a homeowner's petition only challenges the HOA's authority to make a rule, the ALJ will not rule on the facts of the specific violation (e.g., whether the conduct actually happened) if that issue was not explicitly raised.

Alj Quote

While Petitioner may have wanted to argue that the alleged violations brought against her were not proper, she did not raise that issue in her Petition.

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

Does the HOA have the power to enforce rules that are not explicitly detailed in the original CC&Rs?

Short Answer

Yes, if the CC&Rs grant the power to adopt and enforce new rules.

Detailed Answer

The CC&Rs in this case allowed the Association to adopt new rules deemed necessary for the operation of the association, and gave them the same force as the Declaration.

Alj Quote

The Association shall have the power to enforce the provisions of this Declaration and of Rules & Regulations by any lawful remedy or means…

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

Docket No
22F-H2222038-REL
Case Title
Evin Abromowitz vs The Meadows Homeowners Association
Decision Date
2022-08-22
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs are an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person purchases a property within an HOA, they agree to be bound by the terms of the CC&Rs. The decision explicitly states that this document constitutes a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between Respondent and each property owner.

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

Can an HOA create rules regarding behavior toward staff and board members?

Short Answer

Yes, rules prohibiting harassment or abuse of staff and board members are valid.

Detailed Answer

The ALJ determined that rules governing conduct towards the board and management relate to the operation of the association and are therefore within the HOA's authority to enact.

Alj Quote

Respondent was authorized to enact rules and regulations relating to the operation of the association. The rules at issue in this matter relate to the operation of the association.

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

Yes, due written notice and an opportunity for a hearing are generally required.

Detailed Answer

The decision cites the HOA's specific fine guidelines which mandate that a member must be given notice and a chance to be heard before a fine is assessed.

Alj Quote

No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

What is the burden of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their contention is more likely true than not. The burden is on the petitioner to prove the HOA violated its documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

The ALJ upheld the HOA's authority to enforce rules that include fines for hindering hired vendors, as these rules relate to the association's operations.

Alj Quote

Hindering a hired vendor from their work at another property in The Meadows. This violation carries a $100.00 fine.

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

If I challenge the validity of a rule, will the judge also decide if I am guilty of the specific violation?

Short Answer

Not necessarily; the judge only decides the issues raised in the petition.

Detailed Answer

If a homeowner's petition only challenges the HOA's authority to make a rule, the ALJ will not rule on the facts of the specific violation (e.g., whether the conduct actually happened) if that issue was not explicitly raised.

Alj Quote

While Petitioner may have wanted to argue that the alleged violations brought against her were not proper, she did not raise that issue in her Petition.

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

Does the HOA have the power to enforce rules that are not explicitly detailed in the original CC&Rs?

Short Answer

Yes, if the CC&Rs grant the power to adopt and enforce new rules.

Detailed Answer

The CC&Rs in this case allowed the Association to adopt new rules deemed necessary for the operation of the association, and gave them the same force as the Declaration.

Alj Quote

The Association shall have the power to enforce the provisions of this Declaration and of Rules & Regulations by any lawful remedy or means…

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

Docket No
22F-H2222038-REL
Case Title
Evin Abromowitz vs The Meadows Homeowners Association
Decision Date
2022-08-22
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Evin Abromowitz (petitioner)
    Property owner and member of The Meadows Homeowners Association.
  • Carolyn C. E. Davis (witness)
    Known as Carrie Davis.
  • Shannon Kelsey (witness)
    Former employee of the association.
  • Patrick Scott (witness)
    Witness for Petitioner.

Respondent Side

  • Nicholas Nogami (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
    Represented The Meadows Homeowners Association.
  • Lynn Mater (HOA President/manager/witness)
    The Meadows Homeowners Association/ADAM LLC
    Testified for Respondent.
  • Jacqueline Conoy (assistant community manager)
    ADAM LLC/The Meadows Homeowners Association
    Recipient of emails from Petitioner.
  • Omid (board member)
    The Meadows Homeowners Association
    Mentioned in relation to drafting rules with Lynn.
  • Hiker (attorney associate)
    Carpenter Hazlewood Delgado & Bolen, LLP (implied)
    Appeared on the call with Nicholas Nogami.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge.
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH administrative staff)
    OAH
    Signed transmission.
  • Miranda Alvarez (legal secretary)
    Signed transmission.

David G. Iadevavia v. Ventana Shadows Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2222044-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-29
Administrative Law Judge Velva Moses-Thompson
Outcome The HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against Petitioner regarding his mobile observatory.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David G. Iadevavia Counsel —
Respondent Ventana Shadows Homeowners Association, Inc. Counsel Carolyn B. Goldschmidt, Esq.

Alleged Violations

CC&R Section 2.16

Outcome Summary

The HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against Petitioner regarding his mobile observatory.

Why this result: Petitioner failed to prove that the mobile observatory was not a trailer under the plain and obvious meaning of CC&R Section 2.16, or that the HOA's enforcement constituted illegal selective enforcement.

Key Issues & Findings

Selective enforcement of CC&R Section 2.16 regarding vehicles/trailers.

Petitioner alleged that the HOA selectively enforced CC&R Section 2.16 (regarding parking/vehicles/trailers) against him concerning his 'mobile observatory' while failing to enforce the rule or similar rules against other homeowners (sheds).

Orders: The Administrative Law Judge determined that the HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against the Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Arizona Biltmore Estates vs. TZAC, 868 T2 1030
  • Arizona Biltmore Estates vs. TZAC, 177 Arizona 47
  • Burke versus Voice Screen Wireless Corporation, 87P381
  • Burke versus Voice Screen Wireless Corporation, 207 Arizona 393
  • Restatement (Third) of Property: Servitudes § 6.13(1)(b),(c) (2000)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • A.R.S. 41-1092.07
  • A.A.C. R2-19-106(D)
  • A.A.C. R2-19-113(A)(3) and (4)
  • A.A.C. R2-19-116

Analytics Highlights

Topics: HOA, CC&Rs, Selective Enforcement, Trailer, Mobile Observatory, Parking
Additional Citations:

  • CC&R Section 2.16
  • Restatement (Third) of Property: Servitudes
  • Arizona Biltmore Estates vs. TZAC
  • Burke versus Voice Screen Wireless Corporation

Video Overview

Audio Overview

Decision Documents

22F-H2222044-REL Decision – 973802.pdf

Uploaded 2026-04-29T11:07:26 (46.0 KB)

22F-H2222044-REL Decision – 974694.pdf

Uploaded 2026-04-29T11:07:28 (48.1 KB)

22F-H2222044-REL Decision – 975118.pdf

Uploaded 2026-04-29T11:07:30 (40.9 KB)

22F-H2222044-REL Decision – 977059.pdf

Uploaded 2026-04-29T11:07:33 (52.0 KB)

22F-H2222044-REL Decision – 977202.pdf

Uploaded 2026-04-29T11:07:35 (48.2 KB)

22F-H2222044-REL Decision – 977294.pdf

Uploaded 2026-04-29T11:07:40 (6.1 KB)

22F-H2222044-REL Decision – 978417.pdf

Uploaded 2026-04-29T11:07:42 (50.1 KB)

22F-H2222044-REL Decision – 978990.pdf

Uploaded 2026-04-29T11:07:44 (44.1 KB)

22F-H2222044-REL Decision – 978991.pdf

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22F-H2222044-REL Decision – 979005.pdf

Uploaded 2026-04-29T11:07:49 (50.4 KB)

22F-H2222044-REL Decision – 982403.pdf

Uploaded 2026-04-29T11:07:51 (55.2 KB)

22F-H2222044-REL Decision – 993469.pdf

Uploaded 2026-04-29T11:07:53 (55.5 KB)

This summary addresses the hearing proceedings, key facts, main issues, and the status of the final decision in the matter of *David G. Iadevavia v. Ventana Shadows Homeowners Association, Inc.* (No. 22F-H2222044-REL) before the Office of Administrative Hearings.

Summary of Hearing Proceedings

Key Facts & Procedural History

The Petitioner, David G. Iadevavia, proceeded *pro se* following the grant of his prior counsel's withdrawal. The Respondent, Ventana Shadows Homeowners Association, Inc. (HOA), was represented by Carolyn Goldmith. The hearing was conducted virtually on June 27, 2022, before Administrative Law Judge (ALJ) Velva Moses-Thompson.

The ALJ initially identified three potential issues based on Iadevavia’s petition (CCNR 2.16, ARS 33-1803, ARS 33-1804), requiring $1,500 in fees, but since only $500 was paid, the matter was narrowed to a single issue. The final issue for determination, established after a pre-hearing conference and subsequent amendment, was: Whether the Respondent Ventana Shadows Homeowners Association, Inc. selectively enforced section 2.16 of the CC&Rs against Petitioner David G. Iadevavia while at the same time not enforcing it against other homeowners, including homeowners who currently serve on the board.

The ALJ denied Iadevavia's subsequent motion to amend the hearing issue further, citing lack of jurisdiction. The ALJ also denied Iadevavia's request for a subpoena because it did not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Key Arguments and Legal Points

Petitioner's Argument (Iadevavia): Selective Enforcement and Ambiguity

Iadevavia, a retired professor of astronomy and physics, argued that the HOA selectively enforced the restrictive covenant, specifically CCNR 2.16, against him.

  1. Object Identification: He contended that his "mobile observatory" was factually a storage shed on a trailer, not a trailer or recreational vehicle. He presented photos showing that the HOA had seemingly "grandfathered" numerous storage sheds owned by other residents, including board members, that were visible above walls. Since "storage shed" was not defined in the CCNRs, he argued the board failed to act reasonably by not grandfathering his structure.
  2. CCNR Ambiguity: Iadevavia emphasized that the CCNRs lacked clear definitions for key terms like "trailer," "storage shed," "garage," or "driveway". He asserted that without unambiguous definitions, the board relied on subjectivity, leading to selective enforcement.
  3. Inconsistent Application: He noted the board's delay of 270 days in denying his Architectural Review Committee (ARC) request to shield the object, despite a 30-day requirement, demonstrating that the board does not follow its own rules.

Respondent's Argument (HOA): Plain Meaning and Contract Law

The HOA focused on the plain meaning of the CCNRs and legal standards governing restrictive covenants.

  1. Plain Meaning of "Trailer": The HOA asserted that Iadevavia’s object was commonly understood to be a trailer (utility trailer or RV). Witnesses confirmed the structure had features like axles, wheels, and a license plate.
  2. Contractual Interpretation: The HOA argued that CCNRs are considered a contract under Arizona law, and a term is only ambiguous if it defeats the plain and obvious meaning of the restriction. They cited case law (*Arizona Builtmore Estates v. TZAK*; *Burke v. Voice Screen Wireless Corporation*) to support the reliance on commonly accepted meanings when terms are undefined.
  3. Applicability of 2.16: CCNR 2.16.2 requires that vehicles like trailers must be stored in an enclosed garage or screened from view. The HOA noted that the specific violation regarding visibility was resolved when Iadevavia erected a wooden structure in early 2021. The HOA distinguished Iadevavia’s mobile trailer from stationary, constructed sheds, arguing that equating the two makes "no sense" und

Questions

Question

Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?

Short Answer

No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.

Detailed Answer

The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.

Alj Quote

This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

Am I entitled to a rebuttal closing argument after the hearing record closes?

Short Answer

No. Rebuttal closing arguments are generally not permitted under OAH rules.

Detailed Answer

Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.

Alj Quote

Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?

Short Answer

The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.

Detailed Answer

In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.

Alj Quote

IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.

Detailed Answer

A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.

Alj Quote

IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

Does the filing fee cover multiple unrelated issues in my petition?

Short Answer

No. The filing fee is tied to the number of issues; additional issues require additional payment.

Detailed Answer

If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.

Alj Quote

With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.

Alj Quote

IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?

Short Answer

No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.

Detailed Answer

The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.

Alj Quote

This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

Am I entitled to a rebuttal closing argument after the hearing record closes?

Short Answer

No. Rebuttal closing arguments are generally not permitted under OAH rules.

Detailed Answer

Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.

Alj Quote

Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?

Short Answer

The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.

Detailed Answer

In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.

Alj Quote

IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.

Detailed Answer

A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.

Alj Quote

IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

Does the filing fee cover multiple unrelated issues in my petition?

Short Answer

No. The filing fee is tied to the number of issues; additional issues require additional payment.

Detailed Answer

If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.

Alj Quote

With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.

Alj Quote

IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • David G. Iadevavia (petitioner)
  • Jill H. Perrella (attorney)
    Snell & Wilmer LLP

Respondent Side

  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt | Shupe, PLLC
  • Bill Borg (witness/board member)
  • Jason Bader (witness/board member)

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
  • M Alvarez (OAH staff)
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • Rick Abbott (spectator)