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Emery Herbert v. Lakebrook Villas II Homeowners Association INC

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Case Summary

Case ID 22F-H2222047-REL
Agency —
Tribunal —
Decision Date 2022-08-18
Administrative Law Judge —
Outcome Dismissed
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Emery Herbert Counsel Pro Se
Respondent Lakebrook Villas II Homeowners Association Inc. Counsel Maria G. McKee and Josh Bolen (Carpenter Hazelwood Delgado & Bolen LLP)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2222047-REL Decision – 979855.pdf

Uploaded 2026-04-24T11:52:17 (46.3 KB)

22F-H2222047-REL Decision – 981946.pdf

Uploaded 2026-04-24T11:52:23 (49.0 KB)

22F-H2222047-REL Decision – 993566.pdf

Uploaded 2026-04-24T11:52:27 (207.3 KB)

Briefing Document: Herbert v. Lakebrook Villas II Homeowners Association

Executive Summary

This briefing document analyzes the consolidated administrative cases (No. 22F-H2222047-REL and No. 22F-H2222052-REL) heard on July 11, 2022, before the Arizona Office of Administrative Hearings. The dispute involved Emery Herbert (Petitioner) and the Lakebrook Villas II Homeowners Association Inc. (Respondent/Association) regarding two primary issues: the Association’s alleged failure to promptly repair a roof leak and the legality of a significant monthly dues increase to fund a community-wide roof replacement project.

Following a deep analysis of testimonies and evidence, the Administrative Law Judge (ALJ) issued a decision on August 18, 2022, dismissing both petitions. The ALJ concluded that the Association acted within its discretionary authority to manage common areas and that the Petitioner’s interpretation of "prompt repair" under Arizona law was contextually incorrect.

Case Overview and Participants

Role Entity Key Individuals
Petitioner Homeowner (Unit 212) Emery Herbert
Respondent HOA Lakebrook Villas II HOA
Management Property Management Peterson Company (Lindsay Sherwin)
Contractor Roofing Experts Desert Canyon Roofing (Edwin Escobardia Diaz)
Adjudicator Administrative Law Judge Kay A. Abramsohn

Analysis of Key Themes

1. Maintenance vs. Capital Improvement

A central conflict was whether the total "rip and replacement" of the community’s 44-year-old roofs constituted "maintenance" or a "capital improvement."

  • Petitioner’s Position: Based on IRS definitions and the scale of the $362,586 project, the Petitioner argued the work was a capital improvement. Under Section 9 of the Declaration, any capital expenditure exceeding $2,500 requires a 75% vote of the owners.
  • Respondent’s Position: The Association argued the roofs had reached the end of their shelf life and that "patching" was no longer a viable professional recommendation. They framed the project as necessary maintenance to restore the common elements to their original functional state.
  • Legal Outcome: The ALJ ruled that the Association exercised its authority under Section 13 of the Declaration. This section provides broad discretionary power to the Board to determine "cash requirements" necessary to manage and operate the condominium, including repairs and renovations to common areas.
2. Statutory Interpretation of "Prompt Repair"

The Petitioner alleged a violation of A.R.S. § 33-1247(A), claiming the Association failed to provide a "prompt repair" for a leak reported in March 2022.

  • The "Access" Proviso: The Association argued—and the ALJ agreed—that the "prompt repair" requirement in A.R.S. § 33-1247(A) applies specifically to damage caused by the Association when they are granted access to a unit to perform work.
  • General Upkeep: For general maintenance of common elements, the statute requires the Association to be responsible for upkeep, but the ALJ found that the timing and deliberation of a community-wide replacement project (begun in late 2021) constituted reasonable action by the Board.
3. Drainage vs. Foam Roofing Failure

There was significant technical disagreement regarding the cause of the leaks in Building M.

  • The Drain Theory: Petitioner provided evidence (including a 2019 report and a plumber's statement) suggesting that clogged internal cast-iron drains were the true cause of the leaks, meaning a roof surface replacement would not solve the problem.
  • The Foam Theory: The Association’s roofing contractor testified that the polyurethane foam was deteriorated and separating from the pipes, allowing water intrusion. He stated that while drains might be clogged, the roof surface failure was the primary issue. He committed to water-testing drains once the roof was "opened up" and involving a plumber if damage was found.

Significant Quotes with Context

On Statutory Obligations

"The association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit… If damage is inflicted on the common elements or any unit through which access is taken, the unit owner… or the association… is liable for the prompt repair of the damage."

  • Context: A.R.S. § 33-1247(A). This was the foundation of Petitioner's first claim. The ALJ eventually determined the "prompt" requirement was limited to damage occurring during unit access.
On HOA Funding Strategy

"This is NOT a special assessment; it is an increase to your regular monthly HOA fees."

  • Context: Association Notification Letter (April 20, 2022). The HOA raised monthly fees from $303 to $885 for seven months to fund the $362,586 project, intentionally avoiding the "special assessment" label to bypass a membership vote.
On Board Discretion

"The Management Committee shall have discretionary powers to prescribe the manner of maintaining and operating the Condominium Project and to determine the cash requirements… Every such reasonable determination… shall, as against the owner, be deemed necessary and properly made."

  • Context: Declaration Section 13. This language was cited by the ALJ as the legal basis for the Board's authority to raise dues for the roof project without a 75% vote.
On Necessary Maintenance

"At this time, repairs can't be done… you're still going to get leaks… they're going to spend a lot more money than what they are right now. So that’s why… we highly recommended repairs not to be done."

  • Context: Testimony of Edwin Escobardia Diaz (Desert Canyon Roofing). He justified the full replacement over patching, which helped the HOA argue that the project was "maintenance" rather than an "improvement."

Actionable Insights

For Homeowners
  • Context of "Promptness": Under Arizona condominium law (A.R.S. § 33-1247), an HOA’s duty to perform "prompt" repairs is specifically linked to damage they cause while accessing a unit. General maintenance of common elements is subject to the Board’s reasonable deliberation and timeline.
  • Evidence of Causation: In disputes involving leaks, having a written expert report (from a plumber or roofer) is critical. The Petitioner’s experts refused to provide written statements, which weakened her argument that the HOA's roof replacement would not fix the underlying drainage issue.
For HOA Governance
  • Regular vs. Special Assessments: The distinction between "maintenance" and "capital improvement" is vital. This case confirms that Boards have broad discretion to classify large-scale replacements (like roofs) as maintenance, allowing them to fund the project via regular assessment increases (Section 13) rather than special assessments (Section 10/9) that require community votes.
  • Master vs. Sub-Association Rules: The Association successfully argued that certain restrictive amendments (limiting fee increases to 5%) belonged to a Master Association (Lake Biltmore Village) and did not apply to the specific sub-association’s internal dues for its own roofs.
  • Deliberation Records: The HOA’s victory was supported by a paper trail showing they began discussing the roof condition and seeking bids as early as 2019, demonstrating "reasonable deliberation" rather than negligence.

Case Study Guide: Herbert v. Lakebrook Villas II Homeowners Association

This study guide provides a comprehensive analysis of the consolidated legal matters between Petitioner Emery Herbert and Respondent Lakebrook Villas II Homeowners Association Inc. (HOA), as heard before the Arizona Office of Administrative Hearings in July 2022.

1. Case Overview

  • Petitioner: Emery Herbert (Unit owner since February 2022).
  • Respondent: Lakebrook Villas II Homeowners Association Inc.
  • Administrative Law Judge: Kay A. Abramsohn.
  • Docket Numbers:
  • 22F-H2222047-REL (Petition1): Focused on roof leaks, maintenance of common elements, and the interpretation of "prompt repair."
  • 22F-H2222052-REL (Petition2): Focused on the categorization of a $362,586 roof replacement project and the legality of increasing monthly dues without a membership vote.

2. Key Legal Framework

The proceedings centered on the interpretation of Arizona statutes and the HOA’s governing documents:

Authority Specific Provision Content/Application
A.R.S. § 33-1247(A) Upkeep of the Condominium Establishes that the association is responsible for the maintenance, repair, and replacement of common elements.
HOA Declaration Section 1(e) Defines "common areas and facilities" to include roofs, exterior walls, and pipes.
HOA Declaration Section 1(g) Defines the "unit" as the space enclosed by the interior surfaces of the finished perimeter walls, floors, and ceilings.
HOA Declaration Section 9 Outlines assessments. Requires a 75% membership vote for "capital improvements" exceeding $2,500. Provides an exception for reconstruction due to fire or "other casualty."
HOA Declaration Section 13 Grants the Board discretionary power to determine the "cash requirement" needed to manage, operate, and maintain the project.

3. The Core Disputes

Issue A: Roof Leak and Maintenance (Petition1)

Petitioner Emery Herbert discovered a leak in her second bedroom on March 29, 2022, following a rainstorm. She argued the HOA violated A.R.S. § 33-1247(A) by failing to provide a "prompt repair."

  • Petitioner’s Position: The HOA neglected the drains for years (citing a 2019 report). The delay in repair caused the spread of black mold (Stachybotrys) behind the drywall and in the roof insulation.
  • HOA’s Position: The 40-year-old foam roofs had reached the end of their life and could no longer be patched effectively. The HOA was already implementing a comprehensive community-wide replacement plan.
  • Legal Finding: The Judge ruled that the "prompt repair" clause in A.R.S. § 33-1247(A) specifically applies to damage the HOA causes to a unit while accessing it to perform repairs. Because the HOA was acting on a broad plan for 40-year-old roofs, it did not violate the statute.
Issue B: Assessment Increase vs. Special Assessment (Petition2)

In April 2022, the HOA increased monthly dues from $303 to $885 for the remainder of the year to fund a $362,586 roof project ($4,074 per unit).

  • Petitioner’s Position: Ripping off and replacing a roof is a "capital improvement" under IRS and accounting standards. Per Section 9, any capital expenditure over $2,500 requires a 75% vote. The HOA called it "maintenance" simply to bypass the vote and gain the power to place liens for non-payment.
  • HOA’s Position: Replacing a roof to its original state to prevent water intrusion is "maintenance," not an improvement or upgrade. Section 13 grants the Board authority to increase regular assessments to cover necessary repairs and renovations.
  • Legal Finding: The Judge concluded the HOA properly exercised its authority under Section 13 to determine cash requirements for repairs and renovations. Petitioner failed to prove the project was a capital improvement requiring a vote under Section 9.

4. Short-Answer Practice Questions

  1. On what date did the Petitioner first report the roof leak, and how much time elapsed before the hearing?
  • The leak was reported on March 29, 2022. The hearing took place on July 11, 2022, approximately 104 days later.
  1. According to the HOA's roofer, Edwin Escobardia Diaz, why were patch repairs no longer recommended for the community?
  • He testified that the foam was deteriorated to the point where patches would still result in leaks, and a full tear-off was necessary to inspect for underlying rotten wood.
  1. What was the specific amount of the monthly HOA fee increase, and how many months was it scheduled to last?
  • The fee increased by $582 (from $303 to $885) for seven months.
  1. How did the Judge interpret the term "prompt repair" in A.R.S. § 33-1247(A)?
  • The Judge interpreted it as applying to damage caused by the association or a unit owner during the process of taking access through a unit to perform repairs.
  1. Which building was used as a comparison because its roof was already replaced by February 2022?
  • Building "C."
  1. What did witness Colton Hoover testify regarding the classification of the roof project?
  • As an audit associate and accountant, he testified that a total rip-and-replace project should be classified as a capital improvement rather than maintenance.

5. Essay Prompts for Deeper Exploration

  1. Maintenance vs. Capital Improvement: Evaluate the arguments presented by both the Petitioner and the Respondent regarding the classification of the roof replacement. Discuss how the IRS and Cornell Law definitions provided in the source context conflict with the HOA’s interpretation of "maintenance" under Section 13.
  2. Statutory Interpretation: Analyze the Judge’s decision to dismiss Petition1. Do you agree with the narrow interpretation of "prompt repair" in A.R.S. § 33-1247(A)? Consider the implications for homeowners if an HOA delays repairs for common elements that cause ongoing damage to private units.
  3. Fiduciary Discretion vs. Member Rights: Discuss the balance of power between an HOA Board and its members as evidenced in the Petition2 dispute. Examine the Board’s use of Section 13 (regular assessment) to fund a large-scale project versus the membership’s right to a vote under Section 9 (special assessment).

6. Glossary of Important Terms

Term Definition Based on Source Context
A.R.S. § 33-1247 The Arizona statute governing the upkeep of condominiums and the responsibilities of the association versus unit owners.
Capital Improvement Defined by the Petitioner (via Cornell/IRS) as an alteration or repair that increases a structure's useful life or value by at least $10,000.
Common Elements Parts of the condominium property (like roofs, exterior walls, and pipes) that are not part of individual units and are maintained by the HOA.
Declaration (CC&Rs) The legal document that establishes the rules, responsibilities, and assessment powers of the Homeowners Association.
Maintenance Defined by the HOA as actions taken to preserve property or restore it to its original condition to prevent failure, such as the roof replacement.
Petitioner The party who files a petition or complaint; in this case, Emery Herbert.
Respondent The party against whom a petition is filed; in this case, Lakebrook Villas II HOA.
Special Assessment A one-time or specific charge for a major project (like a capital improvement) which, under this HOA’s Section 9, may require a 75% membership vote.
Stachybotrys A genus of molds, referred to in the documents as "black mold," found in the Petitioner’s unit/roof cavity following the leak.

The $350,000 Roof Dispute: Key Lessons from a Recent HOA Legal Battle

1. Introduction: When Maintenance Meets the Law

In a high-stakes consolidated hearing before the Arizona Office of Administrative Hearings (Case Nos. 22F-H2222047-REL and 22F-H2222052-REL), a fundamental conflict erupted between homeowner Emery Herbert (Petitioner) and the Lakebrook Villas II Homeowners Association (Respondent). The dispute serves as a landmark case study in the tension between a homeowner's right to "prompt" repairs and an HOA board’s authority to manage aging infrastructure through community-wide capital projects.

The judicial inquiry hinged on the distinction between routine maintenance and capital improvements, the technical realities of 40-year-old infrastructure, and the expansive discretionary powers granted to boards under their governing documents. At the heart of the battle was a $362,586 roof replacement project that saw monthly assessments skyrocket from $303 to $885.

2. The "Prompt Repair" Paradox: Interpreting A.R.S. § 33-1247

The Petitioner’s first challenge (Petition1) alleged that the Association failed to provide a "prompt repair" for a leak discovered on March 29, 2022. The Petitioner argued that the leak—which caused significant interior damage and mold—was a maintenance failure related to clogged drainage systems. To support this, the Petitioner cited a 2019 roof inspection report that ranked her specific building (Building M) as being in the "Best Condition" in the community, with no blistering.

However, the Administrative Law Judge (ALJ) clarified that the statutory requirement for "promptness" is far more narrow than many homeowners realize.

Legal Nuance: A.R.S. § 33-1247(A) The term "prompt" in this statute specifically applies to damage inflicted on a unit or common element during the act of the Association accessing a unit to perform repairs. It is an access-based liability trigger. Because the Association did not damage the Petitioner’s unit while attempting to reach a common element, the "prompt repair" clock under this specific statute never legally started ticking.

While the Petitioner viewed the delay as negligence, the Association demonstrated that they had been deliberating on a community-wide solution since December 2021. The ALJ ruled that the timing of repairs and replacements remains within the Association’s discretionary authority.

3. Maintenance or Capital Improvement? The $2,500 Trigger

The second petition (Petition2) challenged the funding of the $362,586 project. The Petitioner argued that a total roof replacement constituted a "capital improvement" under Section 9 of the Declaration. This section contains a critical "trigger": no single improvement in the nature of a capital expenditure exceeding $2,500 shall be made without a 75% vote of the owners.

Additionally, the Petitioner argued that an amendment to the Lake Biltmore Village master declarations capped fee increases at 5% without a vote.

Feature Petitioner’s Claim Board’s Legal Stance
Classification Capital Improvement (New Asset) Necessary Maintenance (Restoring Asset)
Voting Trigger Section 9: 75% vote for costs over $2,500 Section 13: Discretionary Board Power
Fee Cap 5% Cap (Master Association Amendment) No Cap (Specific Lakebrook II Declaration)
Technical View "Best Condition" building needs patch only 40-year roofs are beyond their functional life

The ALJ found that the project was not a "new" improvement but a necessary restoration of the common elements to their original functional state. Crucially, the judge determined that the Board's authority under Section 13 superseded the Petitioner’s arguments regarding the $2,500 threshold and the 5% cap.

4. The Power of the Board: Understanding Section 13 Discretion

The Association’s victory rested on the broad language of Section 13 of the Lakebrook Villas II Declaration. This section acts as a "wild card" for Board authority, granting the Management Committee the power to:

  • Determine Cash Requirements: Decide the aggregate sum necessary to manage and operate the project.
  • Adjust Assessments: Increase or diminish assessment amounts throughout the year as needed to meet estimated expenses.
  • Prescribe Maintenance Standards: Determine the manner in which the buildings and common areas are maintained.

The ruling highlighted a powerful blockquote from the Declaration:

"Every such reasonable determination by the Management Committee within the bounds of the Act and this Declaration shall, as against the owner, be deemed necessary and properly made."

This "reasonableness" standard allows boards to bypass membership votes for massive expenditures if the work is deemed essential for the continued operation and maintenance of the community.

5. Reality Check: 40-Year-Old Roofs and Technical Necessity

Expert testimony from Edwin Escobardia of Desert Canyon Roofing provided the technical justification for the Board’s "maintenance" classification. Escobardia testified that the 40-year-old foam roofs had reached the end of their functional life, making professional patching impossible.

Key technical findings included:

  • The Patching Failure: On aged, deteriorated foam, new patch material will not bond. Attempting patches would be a waste of Association funds as they would not stop the leaks.
  • Sub-Surface Inspection: Full removal is necessary to inspect the underlying wood structure for rot and damage—a critical step that surface-level patches cannot accomplish.
  • Mitigation Limits: The Association’s "inaction" regarding tarps was explained as a technical limitation; in the Petitioner's case, the leak was near a plumbing pipe where the foam was too deteriorated to support a tarp or a "band-aid" fix.
6. Conclusion: Takeaways for Homeowners and Boards

In the Final Administrative Law Judge Decision ordered on August 18, 2022, the ALJ dismissed both petitions. The ruling confirmed that the Association did not violate the law or its governing documents by implementing the $362,586 project via a massive assessment increase without a vote.

Lessons Learned:

  • Statutory Limits: A.R.S. § 33-1247(A) is not a general "speed of repair" law. It is specifically tied to damage caused by the Association during unit access.
  • Governing Docs Override Definitions: While the IRS or a dictionary might define "replacement" as a capital improvement, the specific wording of a Declaration (like Section 13) can legally reclassify it as "necessary maintenance."
  • The Discretionary Power Clause: Homeowners must look for "Discretionary Power" clauses in their CC&Rs. These clauses often nullify voting requirements (like the $2,500 Section 9 cap) if the Board can show the expense is for the "operation and management" of the community.
  • Technical Evidence Matters: Expert testimony regarding the "functional life" of infrastructure can override even a recent inspection report (like the 2019 "Best Condition" ranking for Building M) if the expert proves a community-wide emergency exists.

Homeowners are strongly advised to review the specific "Discretionary Power" and "Common Expense" sections of their CC&Rs before initiating legal action against a board's financial decisions.

Case Participants

Petitioner Side

  • Emery Herbert (Petitioner)
    Represented herself
  • Colton Hoover (Witness)
    Walker and Armstrong CPAs
    Homeowner and Audit Associate
  • Hildelu Sandoval (Witness)
    Homeowner at Lakebrook Villas II
  • Luv Brito (Witness)
    Homeowner at Lakebrook Villas II

Respondent Side

  • Maria G. McKee (Attorney)
    Carpenter Hazelwood Delgado & Bolen LLP
    Represented Respondent Lakebrook Villas II Homeowners Association Inc.
  • Josh Bolen (Attorney)
    Carpenter Hazelwood Delgado & Bolen LLP
    Represented Respondent Lakebrook Villas II Homeowners Association Inc.
  • Lindsay Sherwin (Witness)
    Peterson Company
    Community manager for Lakebrook Villas II
  • Edwin Escobar Diaz (Witness)
    Desert Canyon Roofing
    Half owner of Desert Canyon Roofing

Neutral Parties

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

Dennis Anderson v. Tara Condominiums Association

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Case Summary

Case ID 22F-H2222062-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-10
Administrative Law Judge Sondra J. Vanella
Outcome The Petition was dismissed because the Petitioners failed to meet the burden of proof that the Respondent HOA violated CC&R Section 11. The ALJ concluded that the Petitioners themselves violated Section 11 by constructing the shed without prior written approval.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dennis Anderson and Mary Scheller Counsel —
Respondent Tara Condominiums Association Counsel —

Alleged Violations

CC&Rs Section 11

Outcome Summary

The Petition was dismissed because the Petitioners failed to meet the burden of proof that the Respondent HOA violated CC&R Section 11. The ALJ concluded that the Petitioners themselves violated Section 11 by constructing the shed without prior written approval.

Why this result: Petitioner failed to prove the HOA violated CC&R Section 11; the construction of the shed occurred prior to seeking or obtaining architectural approval, violating Section 11.

Key Issues & Findings

Alleged unfair, arbitrary, and capricious rejection of Architectural Change Form based on a non-existent rule (shed must not be higher than patio wall).

Petitioners claimed the HOA violated CC&Rs Section 11 by arbitrarily denying their request to construct a shed based on an unwritten rule regarding shed height (must be 3 inches below the wall). Petitioners acknowledged they constructed the shed prior to obtaining approval.

Orders: Petition dismissed; no action required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • A.R.S. § 33-1221
  • CC&Rs Section 11

Analytics Highlights

Topics: HOA, Architectural Change, CC&R Violation, Prior Approval, Shed
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.R.S. § 33-1221
  • CC&Rs Section 11

Video Overview

Audio Overview

Decision Documents

22F-H2222062-REL Decision – 986010.pdf

Uploaded 2026-04-24T11:54:09 (48.4 KB)

22F-H2222062-REL Decision – 991586.pdf

Uploaded 2026-04-24T11:54:17 (114.3 KB)

22F-H2222062-REL Decision – 991600.pdf

Uploaded 2026-04-24T11:54:21 (6.5 KB)

22F-H2222062-REL Decision – 996350.pdf

Uploaded 2026-04-24T11:54:25 (47.3 KB)

This summary details the administrative hearing proceedings, key arguments, and final decision in the matter of *Dennis Anderson and Mary Scheller v. Tara Condominiums Association*. The hearing was held before Administrative Law Judge Sondra J. Vanella of the Office of Administrative Hearings on August 4, 2022.

Key Facts and Issues

Petitioners' Claim: Dennis Anderson and Mary Scheller (Petitioners) filed a Petition alleging that the Tara Condominiums Association (Respondent) violated Section 11 of the Covenants, Conditions and Restrictions (CC&Rs) by "unfairly, arbitrarily, and capriciously" rejecting their Architectural Change Form (ACF) for the construction of a storage shed. The Petitioners asserted the rejection was based on a "non-existent rule" that the shed must not be higher than the patio wall.

Construction Timeline: Mr. Anderson constructed the shed on January 3, 2022. He subsequently submitted the ACF for approval on or about February 2, 2022, after the Respondent became aware of the structure during a walk-through and issued a violation letter on January 29, 2022. The Board denied the request on February 6, 2022.

CC&R Section 11: Section 11 of the CC&Rs explicitly states that no exterior additions or alterations "shall be commenced, erected or maintained until the plans and specifications…shall have been submitted to and approved in writing" by the architectural committee.

Key Arguments

Petitioners' Argument: Petitioners argued that the Board's denial was arbitrary because the rule requiring the shed to be unattached and three inches below the wall height was not contained within the written CC&Rs. They presented photographs showing other structures, including sheds and sun shades, that were built above the wall height in the community, suggesting unequal application of standards. Mr. Anderson admitted, however, that constructing the shed prior to obtaining approval was his mistake and a violation of CC&R Section 11.

Respondent's Argument: The Respondent's Board members maintained that their authority is limited to complying with the governing documents. They argued that the fundamental violation was the Petitioners' failure to obtain prior written approval as required by CC&R Section 11 before commencing construction. While acknowledging the "three inches below the wall" requirement was not in writing, the Board asserted it was an unwritten "standard in Sun City" that had been communicated by the previous Board President (Ms. Scheller).

Legal Outcome and Decision

The Administrative Law Judge (ALJ) noted that the Petitioners bore the burden of proof to establish by a preponderance of the evidence that the Respondent violated the CC&Rs.

The ALJ found that while Petitioners have the right to enforce the CC&Rs, they were also required to abide by the same provisions. Since Mr. Anderson constructed the shed prior to submitting an Architectural Change Form and obtaining approval, the Petitioners were held to have violated Section 11 themselves.

The ALJ decision concluded that Petitioners failed to establish by a preponderance of the evidence that the Respondent violated the provisions of Section 11 of the CC&Rs.

Final Order: The Petition was dismissed, and no action was required of the Respondent in this matter.

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22F-H2222062-REL

5 sources

These sources document a legal dispute between homeowners Dennis Anderson and Mary Scheller and the Tara Condominiums Association regarding the unauthorized installation of a backyard storage shed. The conflict began when the association denied a retrospective architectural application, citing that the structure was too high and improperly attached to the building. During an evidentiary hearing held in August 2022, the petitioners argued that the board was enforcing non-existent rules, while the association maintained that the homeowners failed to seek the mandatory prior approval required by their governing documents. The Administrative Law Judge ultimately ruled in favor of the association, determining that the petitioners had violated the community’s CC&Rs by building the shed before obtaining written consent. Consequently, the petition was dismissed, and a subsequent attempt by the homeowners to submit further evidence via email was rejected.

How did the lack of written rules influence the case?
Why did the judge ultimately dismiss the petitioners’ claim?
How does CC&R Section 11 impact homeowner architectural changes?

Thursday, February 12

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22F-H2222062-REL

5 sources

These sources document a legal dispute between homeowners Dennis Anderson and Mary Scheller and the Tara Condominiums Association regarding the unauthorized installation of a backyard storage shed. The conflict began when the association denied a retrospective architectural application, citing that the structure was too high and improperly attached to the building. During an evidentiary hearing held in August 2022, the petitioners argued that the board was enforcing non-existent rules, while the association maintained that the homeowners failed to seek the mandatory prior approval required by their governing documents. The Administrative Law Judge ultimately ruled in favor of the association, determining that the petitioners had violated the community’s CC&Rs by building the shed before obtaining written consent. Consequently, the petition was dismissed, and a subsequent attempt by the homeowners to submit further evidence via email was rejected.

How did the lack of written rules influence the case?
Why did the judge ultimately dismiss the petitioners’ claim?
How does CC&R Section 11 impact homeowner architectural changes?

Thursday, February 12

Save to note

Today • 1:37 PM

5 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Dennis Anderson (petitioner)
  • Mary Scheller (petitioner)
    Tara Condominiums Association (former board)
    Former President of the HOA Board; also referred to as Mary Shell
  • Kiara (Owner)
    Daughter and co-owner who received violation letter

Respondent Side

  • Lisa Marks (board member)
    Tara Condominiums Association
    Chairperson and Secretary of the Board; testified for Respondent
  • Renee Snow (board member)
    Tara Condominiums Association
    Treasurer and President of the Board; testified for Respondent

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of official transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of official transmission
  • djones (ADRE staff)
    ADRE
    Recipient of official transmission
  • labril (ADRE staff)
    ADRE
    Recipient of official transmission
  • c. serrano (Clerk/Staff)
    OAH/ADRE
    Transmitting staff member
  • Miranda Alvarez (Legal Secretary)
    OAH/ADRE
    Transmitting staff member

Terry Marvin & Lori J Lefferts v. The Stone Canyon Community

Posted on by

Case Summary

Case ID 22F-H2221018-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-05
Administrative Law Judge Kay A. Abramsohn
Outcome The Petition alleging that the Stone Canyon Community Association violated its Design Guidelines by granting a variance for secondary improvements within the side-yard setback to Lot 19 owners was dismissed. The ALJ found that the DRC exercised reasonable discretion in granting a deviation (variance) under Guidelines Section 5, Item 12, and the Petitioners failed to meet their burden of proof.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Terry Marvin & Lori J. Lefferts Counsel —
Respondent The Stone Canyon Community Association, Inc. Counsel Nicholas C.S. Nogami

Alleged Violations

CC&R § 11.3; Guidelines § 1, Items 1 & 32; Guidelines § 5, Item 12

Outcome Summary

The Petition alleging that the Stone Canyon Community Association violated its Design Guidelines by granting a variance for secondary improvements within the side-yard setback to Lot 19 owners was dismissed. The ALJ found that the DRC exercised reasonable discretion in granting a deviation (variance) under Guidelines Section 5, Item 12, and the Petitioners failed to meet their burden of proof.

Why this result: The Administrative Law Judge determined that the Design Review Committee acted reasonably within its authority to grant a deviation (variance) to the Guidelines to allow the proposed secondary improvements (grading, driveway, enclosure) within the 15’ side-yard setback in extenuating circumstances, consistent with the requirements outlined in Guideline Section 5, Item 12.

Key Issues & Findings

Alleged violation by DRC when granting a variance for side-yard setback requirements for secondary improvements.

Petitioners (Lot 20 owners) alleged the DRC violated guidelines by granting a variance to Lot 19 owners for placing secondary improvements (driveway, grading, site walls, enclosure) within the 15-foot side-yard setback. Petitioners sought rescission of the variance, arguing the DRC failed to establish an unreasonable hardship or burden as required by Guideline Section 5, Item 12, thereby acting unreasonably and causing diminution in Lot 20 value.

Orders: Petitioners' Petition is dismissed. Petitioners bear their $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Guidelines Section 1, Item 1
  • Guidelines Section 1, Item 32
  • Guidelines Section 5, Item 12
  • A.A.C. R2-19-119
  • A.R.S. Title 33, Chapter 16

Analytics Highlights

Topics: HOA dispute, Design Review Committee, variance, setback, secondary improvements, reasonable discretion
Additional Citations:

  • CC&R Section 11.3
  • Guidelines Section 1, Item 1
  • Guidelines Section 1, Item 32
  • Guidelines Section 5, Item 12
  • A.R.S. Title 33, Chapter 16
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2221018-REL Decision – 940674.pdf

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22F-H2221018-REL Decision – 953784.pdf

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22F-H2221018-REL Decision – 954492.pdf

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22F-H2221018-REL Decision – 958478.pdf

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22F-H2221018-REL Decision – 958503.pdf

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22F-H2221018-REL Decision – 990387.pdf

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The administrative hearing concerned a dispute between Terry Marvin and Lori J. Lefferts (Petitioners, owners of Lot 20) and The Stone Canyon Community Association, Inc. (Respondent/Association) regarding the approval of construction plans for Lot 19.

Key Facts and Issues

On October 11, 2021, Petitioners filed a Petition alleging that the Association’s Design Review Committee (DRC) violated adopted Development Design Guidelines (Guidelines). The core allegation was that the DRC improperly granted a variance to Lot 19 Owners regarding side-yard setback requirements. The approval allowed secondary improvements—specifically a driveway extension, grading, site walls, and mechanical enclosure—to encroach into the required 15-foot side setback area.

The issue before the Administrative Law Judge (ALJ) was whether the Association, through the DRC, violated Guidelines Section 1 (Items 1 and 32) and Section 5 (Item 12) when granting this variance.

Key Arguments

  1. Petitioners' Position: Petitioners argued that documentary evidence, including DRC minutes from June 29, 2021, and subsequent legal correspondence, proved the DRC granted a variance. Petitioners asserted this variance was invalid because the DRC members failed to make a required finding of "unreasonable hardship or burden" for the Lot 19 Owners, as mandated by Guideline Section 5, Item 12. Petitioners contended the DRC acted unreasonably, resulting in a diminution of Lot 20’s property value and aesthetic detriment.
  2. Respondent's Position: The Association admitted that the term "variance" was used but argued this was a semantic error or "misnomer". The Association maintained that no variance was necessary or granted. Instead, the approval was properly granted as a "modification" for secondary improvements (grading, driveways, site walls, etc.) under Guideline Section 1, Item 32, which allows such approvals on a "case-by-case basis". The Association's Consulting Architect testified that the modification provisions were added to accommodate development constraints on unique lots, and the DRC meticulously reviewed the Lot 19 merits.

Legal Points Focused On

The hearing focused heavily on the distinction between a variance (which requires a finding of unreasonable hardship/burden per Guidelines Section 5, Item 12) and a modification (which is considered on a case-by-case basis for secondary improvements per Guidelines Section 1, Item 32). DRC members testified that they did not believe they were granting a variance. Petitioners argued that approving encroachments without applying clear standards, whether classified as a variance or modification, was an unreasonable breach of duty.

Outcome and Decision

The ALJ found that "semantics are at play" in the matter. The ALJ ultimately concluded that the hearing record demonstrated the DRC "exercised reasonable discretion" under its authority to grant a Section 5, Item 12 deviation, characterized by the ALJ as "i.e., a variance," to allow the proposed secondary improvements within the setback. The ALJ found that Petitioners did not establish, by a preponderance of the evidence, that the Association had violated the alleged Guideline provisions. Therefore, the Petition was dismissed.

Questions

Question

What is the burden of proof for a homeowner challenging an HOA's architectural decision?

Short Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated its governing documents.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the petitioner (homeowner) bears the burden of proof. They must demonstrate that it is more probable than not that the Association or its Committee violated specific provisions of the governing documents (such as Design Guidelines).

Alj Quote

Petitioners bear the burden of proving by a preponderance of the evidence that, as alleged, Association through actions of Committee had violated Guidelines Section 1, Items 1 and 32 requirements and Section 5, Item 12 requirements when Committee granted a variance…1

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

It means evidence that is more convincing than the opposing evidence, showing the fact is 'more probable than not.'

Detailed Answer

The ALJ defines this legal standard as evidence that carries greater weight than the evidence offered in opposition. It does not require absolute certainty, but rather that the fact sought to be proved is more probable than not.

Alj Quote

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”2

Legal Basis

Black's Law Dictionary (6th ed. 1990)

Topic Tags

  • legal definitions
  • standards of evidence

Question

Can my HOA grant a neighbor a variance for construction setbacks?

Short Answer

Yes, if the governing documents grant the Design Review Committee discretion to deviate from requirements in extenuating circumstances.

Detailed Answer

If the Design Guidelines provide the Committee with discretion to deviate from requirements when following them would create an unreasonable hardship or burden, the HOA can validly grant a variance. The ALJ looks for whether the Committee exercised 'reasonable discretion' under this authority.

Alj Quote

The Administrative Law Judge concludes that the hearing record demonstrates that Committee exercised reasonable discretion under its authority to grant… a Section 5, Item 12 deviation, i.e., a variance… to allow the proposed/approved secondary improvements to be placed within the 15’ side-yard setback.3

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

Can the HOA treat driveways and landscaping differently than main house structures regarding setbacks?

Short Answer

Yes, governing documents may allow 'modifications' for secondary improvements even if structures have strict setbacks.

Detailed Answer

Governing documents may distinguish between 'building structures' (which must strictly comply with setbacks) and 'secondary improvements' like driveways, grading, or site walls. The documents may allow modifications to setbacks for these secondary items on a case-by-case basis.

Alj Quote

All building Structures shall comply with the above outlined setback distances. Modifications to the above outlined setback distances will be considered on a case-by-case basis for secondary improvements such as grading, landscaping, driveways, site walls, etc.4

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

What qualifies as an 'unreasonable hardship' that justifies a variance?

Short Answer

Practical necessities, such as needing access to a garage that otherwise complies with setbacks, can be considered an extenuating circumstance.

Detailed Answer

In this case, the Committee determined that needing driveway access to a new garage (which itself was built within the allowable building envelope) constituted an 'extenuating circumstance.' This practical necessity justified granting a variance for the driveway and grading to encroach into the setback area.

Alj Quote

The hearing record demonstrates that… Association supported the Committee’s determination that needing access to the new RV garage which itself was being built within the building envelope… met the criteria of “extenuating” circumstances… for purposes of granting a “variance” for the new driveway to be placed and necessary grading to occur within the 15’ side-yard setback.5

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

If I lose my case against the HOA, do I get my filing fee back?

Short Answer

No, if the petition is dismissed, the homeowner is typically ordered to bear the cost of the filing fee.

Detailed Answer

The ALJ has the authority to order who pays the costs. In this decision, after dismissing the petition because the homeowners failed to prove a violation, the ALJ ordered the homeowners to pay their own filing fee.

Alj Quote

IT IS FURTHER ORDERED that Petitioners bears their $500.00 filing fee.6

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
22F-H2221018-REL
Case Title
Terry Marvin & Lori J. Lefferts v. The Stone Canyon Community Association, Inc.
Decision Date
2022-08-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner challenging an HOA's architectural decision?

Short Answer

The homeowner must prove by a 'preponderance of the evidence' that the HOA violated its governing documents.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the petitioner (homeowner) bears the burden of proof. They must demonstrate that it is more probable than not that the Association or its Committee violated specific provisions of the governing documents (such as Design Guidelines).

Alj Quote

Petitioners bear the burden of proving by a preponderance of the evidence that, as alleged, Association through actions of Committee had violated Guidelines Section 1, Items 1 and 32 requirements and Section 5, Item 12 requirements when Committee granted a variance…1

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

It means evidence that is more convincing than the opposing evidence, showing the fact is 'more probable than not.'

Detailed Answer

The ALJ defines this legal standard as evidence that carries greater weight than the evidence offered in opposition. It does not require absolute certainty, but rather that the fact sought to be proved is more probable than not.

Alj Quote

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”2

Legal Basis

Black's Law Dictionary (6th ed. 1990)

Topic Tags

  • legal definitions
  • standards of evidence

Question

Can my HOA grant a neighbor a variance for construction setbacks?

Short Answer

Yes, if the governing documents grant the Design Review Committee discretion to deviate from requirements in extenuating circumstances.

Detailed Answer

If the Design Guidelines provide the Committee with discretion to deviate from requirements when following them would create an unreasonable hardship or burden, the HOA can validly grant a variance. The ALJ looks for whether the Committee exercised 'reasonable discretion' under this authority.

Alj Quote

The Administrative Law Judge concludes that the hearing record demonstrates that Committee exercised reasonable discretion under its authority to grant… a Section 5, Item 12 deviation, i.e., a variance… to allow the proposed/approved secondary improvements to be placed within the 15’ side-yard setback.3

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

Can the HOA treat driveways and landscaping differently than main house structures regarding setbacks?

Short Answer

Yes, governing documents may allow 'modifications' for secondary improvements even if structures have strict setbacks.

Detailed Answer

Governing documents may distinguish between 'building structures' (which must strictly comply with setbacks) and 'secondary improvements' like driveways, grading, or site walls. The documents may allow modifications to setbacks for these secondary items on a case-by-case basis.

Alj Quote

All building Structures shall comply with the above outlined setback distances. Modifications to the above outlined setback distances will be considered on a case-by-case basis for secondary improvements such as grading, landscaping, driveways, site walls, etc.4

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

What qualifies as an 'unreasonable hardship' that justifies a variance?

Short Answer

Practical necessities, such as needing access to a garage that otherwise complies with setbacks, can be considered an extenuating circumstance.

Detailed Answer

In this case, the Committee determined that needing driveway access to a new garage (which itself was built within the allowable building envelope) constituted an 'extenuating circumstance.' This practical necessity justified granting a variance for the driveway and grading to encroach into the setback area.

Alj Quote

The hearing record demonstrates that… Association supported the Committee’s determination that needing access to the new RV garage which itself was being built within the building envelope… met the criteria of “extenuating” circumstances… for purposes of granting a “variance” for the new driveway to be placed and necessary grading to occur within the 15’ side-yard setback.5

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

If I lose my case against the HOA, do I get my filing fee back?

Short Answer

No, if the petition is dismissed, the homeowner is typically ordered to bear the cost of the filing fee.

Detailed Answer

The ALJ has the authority to order who pays the costs. In this decision, after dismissing the petition because the homeowners failed to prove a violation, the ALJ ordered the homeowners to pay their own filing fee.

Alj Quote

IT IS FURTHER ORDERED that Petitioners bears their $500.00 filing fee.6

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
22F-H2221018-REL
Case Title
Terry Marvin & Lori J. Lefferts v. The Stone Canyon Community Association, Inc.
Decision Date
2022-08-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Terry Marvin (petitioner)
  • Lori J. Lefferts (petitioner)
    Also referred to as Lori Lebert/Leopards

Respondent Side

  • Nicholas C.S. Nogami (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
  • Parker C. Fox (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
  • Sami M. Farhat (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
  • Mark Saul (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN, LLP
    Partner of Mr. Nogami and counsel to the HOA
  • Jerry Young (Consulting Architect)
    Association representative and Consulting Architect for the Design Review Committee
  • Theodore Riggs (DRC member)
    Also referred to as Ted Riggs; witness called by Petitioners
  • Richard Reese (DRC member)
    Also referred to as Dick Reif/Rice/Reef; former DRC member; witness called by Petitioners
  • Kevin Given (DRC member)
    Head of the DRC; voted against Lot 19 approval
  • Steve Hall (DRC member)
    Absent from July 27, 2021 Committee meeting
  • Andrew Deni (Architect)
    Architect for Lot 19 Owners (also referred to as Andy Deni/Denah/Dencki)
  • Martin Coe (Lot owner)
    Lot 19 Owner
  • Lydia Roos (Lot owner)
    Lot 19 Owner
  • Tim Stampson (General Contractor)
    General Contractor for Lot 19 Project (also referred to as Ken Samson)
  • Divine Homes (observer)
    Summer associate observing proceedings with HOA attorneys
  • Edward GA (observer)
    Summer associate observing proceedings with HOA attorneys

Neutral Parties

  • Kay Abramsohn (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
  • D. Gardner (ADRE staff)
    Arizona Department of Real Estate
  • d. jones (ADRE staff)
    Arizona Department of Real Estate
  • v. nunez (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
    Signed transmittal
  • Miranda Alvarez (Legal Secretary)
    Signed transmittal (also referred to as M Alvarez)
  • Gina Marcus (Design Review Coordinator)
    Association staff/minutes taker
  • Cindy Nichols (unknown)
    Possible minutes taker

Other Participants

  • Nicholas Dana (Lot owner)
    Owner of Lot 24 and resident of Lot 25
  • Steven Schmidt (observer)
    Petitioner in a different matter, observing the hearing

Arleen D Jouxson v. The Villages at Aviano Condominium Association

Posted on by

Case Summary

Case ID 22F-H2222030-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-04
Administrative Law Judge Thomas Shedden
Outcome The ALJ dismissed the petition. Petitioner withdrew the issue regarding the lack of quorum. Regarding the remaining issue, the ALJ found that the Association did not violate governing documents or statutes by seating board members pursuant to a settlement agreement that certified the results of the 2021 election.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Arleen D. Jouxson Counsel Ellen B. Davis
Respondent The Villages at Aviano Condominium Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1243(B); Bylaws Article 3 §3.1; Declaration Article 6 §6.2
Bylaws Article 3 §3.9

Outcome Summary

The ALJ dismissed the petition. Petitioner withdrew the issue regarding the lack of quorum. Regarding the remaining issue, the ALJ found that the Association did not violate governing documents or statutes by seating board members pursuant to a settlement agreement that certified the results of the 2021 election.

Why this result: Petitioner withdrew one issue and failed to meet the burden of proof on the other, as the ALJ found the settlement agreement valid and the evidence of election irregularities insufficient.

Key Issues & Findings

Board Appointment via Settlement Agreement

Petitioner alleged the Association violated state statutes and governing documents by seating two board members pursuant to a settlement agreement from a prior lawsuit, rather than through a membership election.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1243(B)
  • Bylaws Article 3 §3.1
  • Declaration Article 6 §6.2

Quorum at Special Board Meeting

Petitioner alleged it was impermissible for the Board to conduct and transact business at a Special Board Meeting on June 25, 2021, without the required quorum.

Orders: Issue withdrawn by Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Bylaws Article 3 §3.9

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Video Overview

Audio Overview

Decision Documents

22F-H2222030-REL Decision – 959436.pdf

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22F-H2222030-REL Decision – 964645.pdf

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22F-H2222030-REL Decision – 964646.pdf

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22F-H2222030-REL Decision – 964678.pdf

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22F-H2222030-REL Decision – 973808.pdf

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22F-H2222030-REL Decision – 975982.pdf

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22F-H2222030-REL Decision – 978159.pdf

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22F-H2222030-REL Decision – 989914.pdf

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22F-H2222030-REL Decision – HO22-22030_ElectronicNotice_Petition.pdf

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22F-H2222030-REL Decision – HO22-22030_HearingScheduled.pdf

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22F-H2222030-REL Decision – HO22-22030_Motion_Dismiss.pdf

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22F-H2222030-REL Decision – HO22-22030_Notice_Appearance_Resp..pdf

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22F-H2222030-REL Decision – HO22-22030_Notice_Hearing.pdf

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22F-H2222030-REL Decision – HO22-22030_Notice_Petition.pdf

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22F-H2222030-REL Decision – HO22-22030_Payment.pdf

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22F-H2222030-REL Decision – HO22-22030_PetRequest_RespondToRespondent’s Response.pdf

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22F-H2222030-REL Decision – HO22-22030_Petition&Narrative.pdf

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22F-H2222030-REL Decision – HO22-22030_Response&CompletedForm.pdf

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22F-H2222030-REL Decision – HO22-22030_Response_NoForm.pdf

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22F-H2222030-REL Decision – HO22-22033_ Expedited Request for Waiver of Conflict to Represent The Villages at Aviano Condominium Association.pdf

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The legal case, *Arleen D Jouxson vs. The Villages at Aviano Condominium Association* (No. 22F-H2222030-REL), centered on whether the Association violated its governing documents and state statutes when seating two new board members following a disputed election and a subsequent settlement agreement.

Key Facts and Procedural History

The dispute stemmed from the Association's Annual Member Meeting and election for two board seats, scheduled for April 13, 2021. The Association, a non-profit corporation comprising 392 units, distributed absentee ballots to its members. Forty ballots were required for a quorum, but 191 completed ballots were received by the time the Zoom meeting convened at 6:01 p.m., at which point quorum was announced.

Shortly after convening, the Board President, Tony Basuini, moved to postpone the election, a motion that passed 2-0 by the two sitting Board members (Basuini and Joe Orr). The ballots were not counted, and the meeting was terminated.

Candidate Eloise Figueroa, represented by attorney Jonathan Dessaules, filed a lawsuit in Maricopa County Superior Court seeking declaratory and injunctive relief to validate the election and seat herself and Linda Bahr (the other candidate). This led to a Settlement Agreement in which the Association counted the received ballots and certified that Figueroa and Bahr had received the highest number of votes, thus electing them to the Board. The lawsuit was subsequently dismissed with prejudice. Figueroa and Bahr were then seated as Board members.

Main Issues and Arguments

Petitioner Jouxson filed a petition with the Office of Administrative Hearings (OAH) raising two issues, ultimately pursuing only Issue 1: Whether the agreement to seat Figueroa and Bahr violated the Association’s Bylaws, Declaration, and state statutes (specifically ARS § 33-1243.B, which prohibits the Board from electing its own members) and should therefore be nullified. Jouxson argued the election was canceled and that the Board, through the contract, usurped the members’ authority to elect directors.

The Association argued that the election was valid, as a quorum was met and members acted by submitting their votes. They contended the Settlement Agreement merely enforced the members' act by counting and certifying the votes.

The Administrative Law Judge (ALJ) Thomas Shedden initially granted the Association's motion to dismiss Issue 1, but later granted Jouxson's motion for reconsideration, allowing the issue of the election’s validity to proceed to the full hearing on June 21, 2022. At the hearing, Jouxson relied primarily on calling Figueroa to testify and submitted her case, agreeing to submit written closing arguments.

Final Decision and Outcome

The ALJ issued an Order dismissing Arleen D. Jouxson’s petition.

The decision emphasized that the Petitioner bore the burden of proof to show, by a preponderance of the evidence, that a violation occurred.

The ALJ concluded that Jouxson did not meet this burden of proof because she failed to show that Figueroa and Bahr were seated without an election by the members. While the Board acted inappropriately by postponing the member meeting on April 13, 2021, the Association subsequently counted all valid ballots that had been cast by the members, which confirmed that Figueroa and Bahr had won the election. Therefore, the ALJ determined that Jouxson failed to prove that the Board, rather than the membership, had elected the new directors.

Study Guide: Case No. 22F-H2222030-REL — Jouxson vs. The Villages at Aviano Condominium Association

This study guide provides a comprehensive overview of the legal proceedings, core arguments, and regulatory frameworks involved in the dispute between Petitioner Arleen D. Jouxson and Respondent The Villages at Aviano Condominium Association.

Key Concepts and Case Overview

Central Dispute

The case centers on the governance of The Villages at Aviano Condominium Association ("the Association") following a disputed 2021 annual election. The primary conflict involves the seating of board members through a Superior Court settlement agreement rather than a standard membership election, and whether the Board of Directors exceeded its authority by bypasssing Association bylaws and state statutes.

The Parties
  • Petitioner: Arleen D. Jouxson, a homeowner and member of the Association.
  • Respondent: The Villages at Aviano Condominium Association, represented by the Board of Directors and legal counsel.
  • Key Figures:
  • Eloise Figueroa & Linda Bahr: Individuals seated on the Board via a settlement agreement.
  • Tony Basuni: Former President of the Association who signed the settlement agreement.
  • Administrative Law Judge (ALJ) Thomas Shedden: Presiding judge from the Office of Administrative Hearings (OAH).
Primary Legal Issues
  1. Validity of Board Seating: Whether the agreement to seat Figueroa and Bahr violated the Association's Bylaws, Declaration, and A.R.S. § 33-1243.B, which prohibits a board from electing its own members.
  2. Quorum Violations: Whether business conducted at a Special Board Meeting on June 25, 2021, was invalid due to the lack of a quorum as required by Bylaws Section 3.9. (Note: This issue was eventually withdrawn by the Petitioner).
Jurisdictional Boundaries

A critical theme in this case is the limit of the Department of Real Estate’s (ADRE) authority. The Respondent argued that because the seating of directors was the result of a Superior Court settlement, the OAH lacked jurisdiction to "void" or "nullify" a contract entered into in a higher court. Conversely, the Petitioner argued that the Board cannot use a contract to circumvent the fundamental rights of owners to elect their representatives.

Short-Answer Practice Questions

1. What specific Arizona Revised Statute (A.R.S.) did the Petitioner cite to argue that the Board cannot elect its own members?

  • Answer: A.R.S. § 33-1243.B, which states that the board of directors shall not act on behalf of the association to elect members of the board.

2. Why did the Respondent move to dismiss the first issue regarding the seating of Figueroa and Bahr?

  • Answer: The Respondent argued that the seating was mandated by a Superior Court Settlement Agreement to resolve a separate lawsuit (Figueroa vs. Villages at Aviano), and that such an agreement is not a "community document" within the tribunal's scope of authority under A.R.S. § 32-2199.

3. What was the Association’s justification for claiming Figueroa and Bahr were legitimately seated?

  • Answer: The Association certified in the settlement agreement that Figueroa and Bahr had received the highest number of votes in the April 2021 election, even though that election was allegedly canceled or continued by the previous board.

4. According to the "pay-as-you-go" system of the ADRE, how are petitions for hearing funded?

  • Answer: Petitioners must pay a fee (e.g., $500 per issue) to have the ADRE adjudicate complaints. If a petitioner prevails, the Association is required by statute to refund this filing fee.

5. What happened to the second issue regarding the June 25, 2021, Special Board Meeting?

  • Answer: During the June 21, 2022 hearing, the Petitioner’s counsel confirmed they were no longer pursuing the second issue regarding the lack of a quorum at that meeting.

6. What evidence did the Petitioner provide to suggest the 2021 "election" results were untrustworthy?

  • Answer: The Petitioner pointed to batches of absentee ballots delivered to the management company (BCMI) from a single OfficeMax location, miles from the condominium, including 19 ballots faxed within a 22-minute span.

Essay Prompts for Deeper Exploration

1. The Intersection of Contract Law and Community Governance

Evaluate the argument that a board-signed settlement agreement can supersede community bylaws and state statutes. If a board enters into a contract that violates the Association's Declaration (e.g., Article 6, Section 6.2 regarding the election of directors), does the "contract" status of that agreement protect it from administrative oversight by the OAH? Discuss the potential for a "slippery slope" if boards are permitted to contract away membership rights.

2. Statutory Interpretation and Tribal Authority

Analyze the limitations placed on an Administrative Law Judge under A.R.S. § 32-2199.02. To what extent can an ALJ order a party to "abide by the statutes" if those statutes conflict with a court-ordered settlement? Contrast the Respondent's view (that the ALJ cannot provide injunctive relief or void contracts) with the Petitioner’s view (that the ALJ has the duty to ensure compliance with Title 33, Chapter 9).

3. The Rights of Disenfranchised Homeowners

In the context of the Aviano dispute, discuss the "most fundamental right" of homeowners as described by the Petitioner’s counsel. How does the cancellation of an annual meeting and the subsequent seating of directors via litigation impact the transparency and democratic process within a Condominium Association? Use the facts regarding the April 13, 2021 meeting to support your analysis.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) An official who presides over administrative hearings, takes evidence, decides facts, and applies law to make a decision in HOA/Condo disputes.
Bylaws The governing rules of the Association that dictate operating procedures, such as how meetings are called and how many directors constitute a quorum.
Community Documents Collective term for the Declaration (CC&Rs), Articles of Incorporation, Bylaws, and Association Rules.
Declaration (CC&Rs) The "Covenants, Conditions, and Restrictions" that govern the use of the property and the rights of the owners; recorded with the county.
Notice of Hearing The official document issued by the Department of Real Estate setting the time, date, and specific legal issues to be adjudicated.
Quorum The minimum number of members or directors required to be present at a meeting to make the proceedings of that meeting valid (e.g., a majority of the prescribed number of directors per Bylaws 3.9).
Res Judicata A legal principle preventing a matter from being litigated again if it has already been judged on its merits by a competent court.
Settlement Agreement A legally binding contract between parties to resolve a dispute, often resulting in the dismissal of a lawsuit "with prejudice."
Title 33, Chapter 9 The section of the Arizona Revised Statutes specifically governing Condominiums.
Void/Nullify To declare a document or action legally invalid and of no binding force.
Procedural Timeline Summary
Date Event
April 13, 2021 Original date for the Annual Member Meeting; canceled/continued by the Board.
April 27, 2021 Eloise Figueroa files a lawsuit in Maricopa Superior Court against the Association.
June 22, 2021 Superior Court lawsuit dismissed with prejudice following a Settlement Agreement.
June 25, 2021 Special Board Meeting held where Figueroa and Bahr were seated.
January 26, 2022 ADRE notifies the Association of Arleen Jouxson's Petition.
April 1, 2022 ALJ Shedden grants partial dismissal of Issue #1, pending reconsideration.
April 12, 2022 Oral argument held regarding the Motion for Reconsideration.
June 21, 2022 Evidentiary hearing conducted on the remaining issues.

HOA Governance vs. Court Settlements: Lessons from The Villages at Aviano

1. The "Election That Never Was": A Community in Conflict

What happens when the most fundamental right of a homeowner—the right to elect the leadership that governs their community—is traded away in a private legal settlement? This central question fueled a protracted legal battle between homeowner Arleen D. Jouxson and The Villages at Aviano Condominium Association.

The dispute stems from an annual election scheduled for April 13, 2021. Despite the fact that 81 absentee ballots had been returned by the deadline—more than enough to satisfy the 10% quorum requirement—the Board abruptly canceled or "continued" the meeting, citing unspecified "unfairness" in the process. The voting was never completed. Instead, the Board eventually seated two directors through a private settlement agreement following a Superior Court lawsuit. This move bypassed the ballot box entirely, sparking a procedural tug-of-war at the Arizona Office of Administrative Hearings (OAH).

2. The Legal Flashpoint: Seating Directors via Settlement

The core of the OAH proceedings, designated as "Issue #1," was whether the Association violated its governing documents and state law by seating Eloise Figueroa and Linda Bahr via a court settlement rather than a traditional member election.

The Petitioner’s Argument

  • Prohibited Seating Method: Directors cannot be "elected" by a board contract or settlement agreement.
  • Breach of Governance Rights: The Association allegedly violated Bylaw 3.1 and Declaration 6.2, which reserve the right to elect the board exclusively to the unit owners.
  • Statutory Violation: The action ran afoul of ARS § 33-1243.B, which expressly prohibits a board from acting on behalf of the association to elect its own members.
  • The Quorum Reality: Petitioner noted that 81 absentee ballots were returned by the deadline, proving a quorum was met and the cancellation of the election was unnecessary and improper.

The Respondent’s Defense

  • Superior Court Resolution: The seating was the result of a settlement in a Superior Court lawsuit (CV 2021-006916) filed by Ms. Figueroa specifically to enforce her being seated on the board despite the election’s cancellation.
  • Vote Certification: The Association claimed it certified that Figueroa and Bahr had received the highest number of votes from the pre-election ballots that were submitted.
  • Jurisdictional Shield: The Association argued that a settlement agreement is a private contract, not a "community document" subject to the OAH tribunal’s authority under ARS § 32-2199.

3. Jurisdiction and the "Community Document" Dilemma

Administrative Law Judge (ALJ) Thomas Shedden initially struggled with the jurisdictional boundaries of this case. He first granted a Motion to Dismiss regarding the election issue, reasoning that a "Settlement Agreement" entered in Superior Court is a private contract, distinct from "Community Documents" like Bylaws or Declarations.

However, the Petitioner’s Motion for Reconsideration brought a "meteor" of a legal argument to the forefront: ARS § 33-1203. This statute explicitly states that provisions of the condominium chapter cannot be varied by agreement. Petitioner’s counsel, Ellen Davis, argued that if a board could use a private contract to bypass statutory election requirements, it would create a "slippery slope" or a "parade of horribles." Under such a theory, a board could theoretically use a contract to sell off common elements or even dissolve the association without member consent. This "silver bullet" argument forced the tribunal to take supplemental arguments on whether the Board had the power to contract away member rights.

4. The Quorum Question: A Secondary Dispute

A secondary issue ("Issue #2") concerned a Special Board Meeting held on June 25, 2021. The Petitioner alleged that Figueroa and Bahr, newly seated via the settlement, conducted business without a quorum in violation of Bylaw 3.9.

While this issue initially survived the Association's efforts to dismiss it, the narrative focus of the case eventually shifted. By the June 21, 2022, session, Petitioner’s counsel confirmed that this second issue was no longer being pursued as the community’s focus narrowed to the fundamental right of members to hold an actual election.

5. Behind the Scenes: Evidence and "Cumulative" Testimony

Modern HOA litigation carries significant logistical weight. The hearings were managed via Google Meet, which the ALJ used not just for remote participation but to record the official proceedings.

The ALJ was notably firm regarding judicial efficiency, issuing warnings against "unnecessary cumulative evidence" and limiting the number of witnesses who could testify to the same facts.

Call-Out: Judicial Efficiency & Record Integrity ALJ Shedden requested that any audio recordings intended for evidence be accompanied by written transcripts. He noted that playing raw audio during a hearing is time-consuming and makes it nearly impossible to clearly identify speakers for the official record. Reflecting on his approach to the complex jurisdictional questions, the Judge remarked, "I’d rather promise that I’ll do something thoroughly, which is more my style anyway."

6. Final Takeaways: What Every Homeowner Should Know

The conflict at The Villages at Aviano serves as a stark warning about the high stakes of community litigation and the limits of board power:

  1. The Power of the Ballot: Member voting is not a suggestion; it is a fundamental right. When boards cancel meetings where a quorum (like the 81 ballots here) is present, they invite severe legal scrutiny.
  2. The "Slippery Slope" of Settlements: Boards must be wary of using private court settlements to bypass bylaws. If a board can seat directors by contract, the integrity of the entire governing structure is at risk.
  3. The $500 Prevailing Insight: For homeowners, a vital practical takeaway is the filing fee. Under the pay-as-you-go system, if a petitioner prevails on an issue, the association must refund their $500 fee. As ALJ Shedden noted, even if a violation is "cured" before the hearing, a petitioner can still "prevail" simply to recover that cost.
  4. Administrative Limits: The OAH has specific, limited jurisdiction. While it can order compliance with community documents, it cannot always provide the same injunctive relief found in Superior Court.
  5. Document Integrity: Clear minutes are essential. The Board’s failure to maintain records for the "canceled" meeting on April 13 created a vacuum of transparency that fueled the ensuing litigation.

In the end, transparency in leadership is the only effective defense against the high costs of community division. When board seats are filled in a "private room" rather than at the ballot box, the entire community pays the price in both legal fees and lost trust.

Source Reference Note

The information in this article is derived from the official records of the Arizona Office of Administrative Hearings, Case No. 22F-H2222030-REL.

Case Participants

Petitioner Side

  • Arleen D. Jouxson (petitioner)
    The Villages at Aviano Condominium Association (Member)
    Unit owner of Unit 1369
  • Ellen B. Davis (petitioner attorney)
    Henze Cook Murphy, PLLC
  • Conrad Kampp (witness)
    Listed as witness by Petitioner; present at hearing
  • Diane Potter (witness)
    Listed as witness by Petitioner; present at hearing
  • Carol Lehan (witness)
    Listed as witness by Petitioner; present at hearing
  • Barbara Kampp (witness)
    Listed as witness by Petitioner; present at hearing
  • Dave Barren (witness)
    Listed as witness by Petitioner; appeared remotely
  • Lisa Le (witness)
    Listed as witness by Petitioner
  • Carrie Y (witness)
    Listed as witness by Petitioner; present at hearing

Respondent Side

  • The Villages at Aviano Condominium Association (respondent)
    Entity
  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Eloise Figueroa (board member)
    The Villages at Aviano Condominium Association
    Board President; called as witness by Petitioner; Plaintiff in underlying Superior Court case
  • Linda Bahr (board member)
    The Villages at Aviano Condominium Association
    Seated on board via settlement agreement
  • Tony Basuini (board member)
    The Villages at Aviano Condominium Association
    Former Board President; signed settlement agreement
  • Joseph Orr (board member)
    The Villages at Aviano Condominium Association
    Former board member
  • Tony Cancilla (board member)
    The Villages at Aviano Condominium Association
    Former board member
  • Jonathan A. Dessaules (witness)
    Dessaules Law Group
    Attorney for Eloise Figueroa in Superior Court case; testified at OAH hearing
  • Natasha DeCoto (property manager)
    PMG Services
    Current community manager
  • Michael Sgro (property manager)
    Brown Community Management
    Former community manager
  • Marshall Chess (property manager)
    Brown Community Management
    Former community manager
  • Tim Butterfield (HOA attorney)
    Carpenter Hazlewood
    Represented HOA in settlement negotiations
  • Curtis Ekmark (HOA attorney)
    Ekmark & Ekmark
    General Counsel for HOA at time of 2021 election

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Pamela Gates (judge)
    Maricopa County Superior Court
    Presided over CV2021-006916
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardner (agency staff)
    Arizona Department of Real Estate
    HOA Coordinator

John Zumph v. Sanalina Homeowners Association

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Case Summary

Case ID 22F-H2222049-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-01
Administrative Law Judge Adam D. Stone
Outcome The ALJ denied the petition, concluding that the Sanalina HOA did not violate its Bylaws when it removed Petitioner John Zumph from the Board of Directors. The tribunal held that a 'regular meeting' can occur even without the presence of a quorum necessary to conduct business, validating the HOA's decision to declare his office vacant after three consecutive absences.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John Zumph Counsel —
Respondent Sanalina Homeowners Association Counsel Nick Eicher

Alleged Violations

Bylaws Article VII Section 1(d)

Outcome Summary

The ALJ denied the petition, concluding that the Sanalina HOA did not violate its Bylaws when it removed Petitioner John Zumph from the Board of Directors. The tribunal held that a 'regular meeting' can occur even without the presence of a quorum necessary to conduct business, validating the HOA's decision to declare his office vacant after three consecutive absences.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the Bylaws. The ALJ determined that the meetings existed despite lack of quorum, and the Petitioner's intentional absences constituted an abuse of process and were not in the spirit of the bylaws.

Key Issues & Findings

Wrongful removal from the Board of Directors

Petitioner challenged his removal from the Board of Directors, arguing that his three consecutive absences from regularly scheduled meetings (July 8, 2021, September 9, 2021, and November 11, 2021) did not count because no quorum was met at those meetings, meaning the meetings did not exist.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Sanalina Bylaws Article VII Section 1(d)
  • Sanalina Bylaws Article VI Section 3

Analytics Highlights

Topics: HOA Board Removal, Quorum Dispute, Bylaw Interpretation, Director Absence, Regular Meeting Definition
Additional Citations:

  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092
  • A.R.S. § 41-1092.09
  • A.R.S. § 32-2199(B)
  • 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)
  • Sanalina Bylaws Article VII Section 1(d)
  • Sanalina Bylaws Article VI Section 3

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Video Overview

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Decision Documents

22F-H2222049-REL Decision – 988629.pdf

Uploaded 2026-04-24T11:52:44 (105.3 KB)

Summary of Hearing Proceedings and Decision

This matter, docket number 22F-H22249-REL, involved Petitioner John Zumph, a homeowner and former Board member, challenging his removal from the Sanalina Homeowners Association ("Sanalina") Board of Directors ("Board") by the Respondent, Sanalina. The hearing was held on July 19, 2022, before Administrative Law Judge Adam D. Stone.

Key Facts and Issues:

Mr. Zumph served on the six-person Board for approximately seven years and was removed on March 10, 2022. The Board declared his office vacant pursuant to Bylaws Article VII Section 1(d), which permits removal if a member is absent from three consecutive regular meetings. The three meetings in question were regularly scheduled for July 8, 2021, September 9, 2021, and November 11, 2021.

Zumph admitted sending an email prior to the July meeting stating that he, along with others, would not attend future meetings in 2021 unless certain conditions were met, specifically requiring the resignation of two specific directors (one from a household that had two members on the Board, and the current president).

Petitioner’s Argument (John Zumph):

The primary legal issue hinged on the definition and application of "quorum". Zumph argued that since the Board requires a majority (four out of six directors) to constitute a quorum for the transaction of business (Article VI Section 3), and a quorum was not met at the three meetings he missed, those gatherings were not officially recognized as "meetings" of the Board. Therefore, he asserted, he could not have missed three consecutive regular meetings as defined by the bylaws.

Respondent’s Argument (Sanalina HOA):

Sanalina argued that regularly scheduled meetings were held on the specified dates, even if quorum was lacking. Lack of quorum prevents the *transaction of business* (i.e., votes and legal actions), but does not invalidate the meeting itself. Testimony from Board Secretary Lisa Terror confirmed that directors, the community manager, and homeowners attended the meetings, discussed agenda topics, and received community updates, though no business could be transacted. Sanalina emphasized that Zumph intentionally refused to attend to prevent quorum, which led to significant delays in association business (e.g., eight months for appeals, $9,000 cost increase for painting due to delayed votes).

Final Decision and Outcome:

The Administrative Law Judge concluded that a meeting can exist without a quorum, but no business (votes) can occur. The tribunal found Zumph's argument that the meetings did not exist due to lack of quorum "unpersuasive". The ALJ further determined that Zumph intentionally missed the meetings to "hijack" the process, halting association business, which was unacceptable and not in the spirit of the bylaws.

The ALJ found that the Petitioner did not establish that the Respondent violated Bylaws Article VII Section 1(d).

The petition was denied in a decision issued on August 1, 2022.

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22F-H2222049-REL

2 sources

These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.

What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?

Thursday, February 12

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22F-H2222049-REL

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These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.

What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?

Thursday, February 12

Save to note

Today • 1:35 PM

2 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • John Zumph (petitioner)
    Sanalina Homeowners Association
    Also referred to as John Zump or John Edward Dump; Former Board member removed from his position
  • Pete Selei (board member)
    Sanalina Homeowners Association
    Aligned with petitioner's refusal to attend meetings; Board member removed/vacated position; Also referred to as Joe Pete or Pete
  • Joe (board member)
    Sanalina Homeowners Association
    Aligned with petitioner's refusal to attend meetings

Respondent Side

  • Nick Eicher (HOA attorney)
    Sanalina Homeowners Association
    Also referred to as Nick Aker
  • Lisa Jean Terror (board member)
    Sanalina Homeowners Association
    Board Secretary; witness for Respondent

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (legal secretary)

Other Participants

  • Thomas Campanella (property manager)
    Sanalina Homeowners Association
    Community Manager; Also referred to as Thomas Pampanella
  • Javier Gimenez (management representative)
    Sanalina Homeowners Association
    Handled minutes for March meeting

Katherine Belinsky v. Del Cerro Condos

Posted on by

Case Summary

Case ID 22F-H2222046-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-14
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, concluding that Petitioner failed to meet her burden of proving by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A), finding that the HOA and its property managers had made records reasonably available for examination.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Katherine Belinsky Counsel —
Respondent Del Cerro Condos Counsel —

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to meet her burden of proving by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A), finding that the HOA and its property managers had made records reasonably available for examination.

Why this result: Petitioner failed to meet the burden of proof required by A.A.C. R2-19-119. The evidence showed Respondent responded timely to requests, provided some documents, and offered Petitioner appointments to review other sensitive or older records in the office, which she failed to schedule.

Key Issues & Findings

Failure to provide books, records and accounts

Petitioner alleged Respondent failed to provide required HOA records, including bank statements, invoices, and contracts, following requests made primarily in March 2022, thereby violating statute A.R.S. § 33-1805(A).

Orders: Petitioner's petition denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805
  • A.A.C. R2-19-119

Analytics Highlights

Topics: HOA Records Access, Statutory Violation, Burden of Proof, Special Assessment Dispute
Additional Citations:

  • A.R.S. § 33-1805
  • A.A.C. R2-19-119
  • State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
  • Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Video Overview

Audio Overview

Decision Documents

22F-H2222046-REL Decision – 971256.pdf

Uploaded 2026-04-26T09:58:54 (46.4 KB)

22F-H2222046-REL Decision – 983785.pdf

Uploaded 2026-04-26T09:58:58 (114.6 KB)

This summary addresses the legal case hearing concerning the Petitioner, Katherine Belinsky, versus the Respondent, Del Cerro Condos, Case No. 22F-H2222046-REL, heard on July 1, 2022, before Administrative Law Judge Adam D. Stone.

Key Facts and Main Issue

The dispute centered on the Petitioner's claim that the Del Cerro Condos Homeowners Association (HOA), a 14-unit association, failed to provide requested books, records, and accounts, constituting a violation of A.R.S. § 33-1805(A). This petition followed a period of instability within the HOA, which was described as neglected and dating back to 1969, with only $1,000.00 in the reserve account. The conflict intensified after the Board issued a $5,000.00 special assessment per unit in January 2022 to fund necessary maintenance, primarily walkway repairs. The Petitioner testified that she had been requesting documents for three to four years, specifically mentioning invoices, contracts, bank statements, and corporation records, and claimed any disclosures were "doctored".

Hearing Proceedings and Key Arguments

  1. Petitioner's Position: Katherine Belinsky (Petitioner) argued that she had received "not one thing" regarding contracts, bids, invoices, or bank statements, and was unaware of how HOA money was being spent. She cited Arizona law, including HB2158 and case law (e.g., *Callaway*), to assert that the special assessment and changes to governing documents were illegal due to lack of transparency and proper member voting.
  1. Respondent's Defense: Alessandra Wisniewski (Vice President) and Amanda Butcher (President) maintained that they, along with their property managers (PMI, and later Community Financials), were prompt in responding to Petitioner's written requests. They testified that documents such as financial statements for recent months (starting September 2021) and governing documents (CCNRs/Bylaws) were sent to the Petitioner via email. For other sensitive or older records (such as receipts, vendor bids, and individual member ledgers), Ms. Wisniewski stated that Petitioner was repeatedly instructed—in writing—to schedule an appointment to review these documents at the management office, which the Petitioner failed to do. The Board asserted they made accommodations for the Petitioner regarding her HOA payments and confirmed they were protecting sensitive information.

Legal Points and Outcome

The Administrative Law Judge (ALJ) held that the Petitioner bore the burden of proving a violation of A.R.S. § 33-1805 by a preponderance of the evidence. A.R.S. § 33-1805 mandates that records "shall be made reasonably available for examination".

The ALJ's decision found that the Petitioner failed to establish that she was denied access to the financial records. The evidence demonstrated that the Board and property manager provided documents timely and offered the opportunity for the Petitioner to make an appointment to review other requested records, an opportunity she did not utilize. The statute does not grant a unit owner the right to peruse all documents at will, as some may properly be withheld.

Final Decision: The Petitioner’s petition was denied.

Questions

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, it is up to the homeowner filing the complaint to prove that the Association violated the statute. The HOA does not initially have to prove its innocence; the homeowner must present evidence that carries more weight.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The homeowner must provide evidence that is more convincing than the evidence offered by the HOA. It must show that the alleged violation is 'more probable than not' to have occurred.

Alj Quote

A preponderance of the evidence is '[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.'

Legal Basis

Black's Law Dictionary (cited in decision)

Topic Tags

  • evidence
  • legal standard

Question

Does a homeowner have the right to browse through every single document the HOA possesses?

Short Answer

No, the right to inspect records is not absolute or 'at will'.

Detailed Answer

While statutes require records to be reasonably available, this does not grant homeowners the right to peruse every document at will. The ALJ noted that certain documents may properly be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • privacy
  • limitations

Question

If I request records, does the HOA have to mail them to me, or can they require me to view them in person?

Short Answer

The HOA complies by making records available for examination, often by appointment.

Detailed Answer

The HOA meets its statutory obligation if it makes records reasonably available for examination. In this case, offering an appointment for the homeowner to visit the office and review the documents was considered sufficient compliance, even if the homeowner refused to attend.

Alj Quote

Further, the preponderance of the evidence demonstrates that Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • compliance
  • in-person review

Question

How quickly must the HOA respond to a request to examine records?

Short Answer

Within ten business days.

Detailed Answer

Under Arizona law, an association has ten business days to fulfill a request for examination of records or to provide copies if purchased.

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

Can the HOA charge me a fee for looking at the records?

Short Answer

No fee is allowed for the review process itself.

Detailed Answer

The association is prohibited from charging a member for making material available for review. However, they may charge a fee specifically for making copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • records access

Question

What is the maximum amount an HOA can charge for copies of records?

Short Answer

Fifteen cents per page.

Detailed Answer

If a homeowner requests to purchase copies of the records, the association is limited by statute to charging no more than fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • copies

Question

Can I dispute an HOA violation if I simply refuse to cooperate with their attempts to provide records?

Short Answer

Likely not; failure to utilize offered opportunities undermines the claim.

Detailed Answer

If the HOA offers opportunities to review records (such as setting an appointment) and the homeowner fails to do so, the homeowner may fail to prove that they were denied access.

Alj Quote

Petitioner failed to establish that she was denied access to the financial records. … Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

Determined by ALJ Findings

Topic Tags

  • dispute resolution
  • homeowner responsibility

Case

Docket No
22F-H2222046-REL
Case Title
Katherine Belinsky vs Del Cerro Condos
Decision Date
2022-07-14
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, it is up to the homeowner filing the complaint to prove that the Association violated the statute. The HOA does not initially have to prove its innocence; the homeowner must present evidence that carries more weight.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The homeowner must provide evidence that is more convincing than the evidence offered by the HOA. It must show that the alleged violation is 'more probable than not' to have occurred.

Alj Quote

A preponderance of the evidence is '[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.'

Legal Basis

Black's Law Dictionary (cited in decision)

Topic Tags

  • evidence
  • legal standard

Question

Does a homeowner have the right to browse through every single document the HOA possesses?

Short Answer

No, the right to inspect records is not absolute or 'at will'.

Detailed Answer

While statutes require records to be reasonably available, this does not grant homeowners the right to peruse every document at will. The ALJ noted that certain documents may properly be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • privacy
  • limitations

Question

If I request records, does the HOA have to mail them to me, or can they require me to view them in person?

Short Answer

The HOA complies by making records available for examination, often by appointment.

Detailed Answer

The HOA meets its statutory obligation if it makes records reasonably available for examination. In this case, offering an appointment for the homeowner to visit the office and review the documents was considered sufficient compliance, even if the homeowner refused to attend.

Alj Quote

Further, the preponderance of the evidence demonstrates that Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • compliance
  • in-person review

Question

How quickly must the HOA respond to a request to examine records?

Short Answer

Within ten business days.

Detailed Answer

Under Arizona law, an association has ten business days to fulfill a request for examination of records or to provide copies if purchased.

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

Can the HOA charge me a fee for looking at the records?

Short Answer

No fee is allowed for the review process itself.

Detailed Answer

The association is prohibited from charging a member for making material available for review. However, they may charge a fee specifically for making copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • records access

Question

What is the maximum amount an HOA can charge for copies of records?

Short Answer

Fifteen cents per page.

Detailed Answer

If a homeowner requests to purchase copies of the records, the association is limited by statute to charging no more than fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • fees
  • copies

Question

Can I dispute an HOA violation if I simply refuse to cooperate with their attempts to provide records?

Short Answer

Likely not; failure to utilize offered opportunities undermines the claim.

Detailed Answer

If the HOA offers opportunities to review records (such as setting an appointment) and the homeowner fails to do so, the homeowner may fail to prove that they were denied access.

Alj Quote

Petitioner failed to establish that she was denied access to the financial records. … Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so.

Legal Basis

Determined by ALJ Findings

Topic Tags

  • dispute resolution
  • homeowner responsibility

Case

Docket No
22F-H2222046-REL
Case Title
Katherine Belinsky vs Del Cerro Condos
Decision Date
2022-07-14
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Katherine Belinsky (petitioner)
    Also referred to as Catherine Valinski, Bolinsky, or Katya/Katcha; unit owner.

Respondent Side

  • Alessandra Wisniewski (VP)
    Del Cerro Condos Board
    Also referred to as Alexandra; testified on behalf of Respondent.
  • Amanda Butcher (President)
    Del Cerro Condos Board
    Testified on behalf of Respondent.
  • Eddie B (property manager)
    PMI Lake Havasu
    President of PMI Lake Havasu; also referred to as Eddie Being.
  • Lisa Modler (property manager assistant)
    PMI Lake Havasu
    Also referred to as Lisa Miam; secretary assistance for PMI.
  • Brady Bowen (property manager)
    PMI Lake Havasu
    Business partner of Eddie B.
  • Fiser (maintenance supervisor)
    PMI Lake Havasu
    No first name provided.
  • Kathy Ein (property manager)
    Community Financials
    Manager for new management company.
  • Moses (board member)
    Del Cerro Condos Board
    Former Treasurer/Secretary on the board.

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (legal secretary)
    OAH
    Transmitted Decision electronically.
  • 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

  • Eric Needles (former property manager)
    London Dairy
    Former property management/statutory agent.
  • Elizabeth (statutory agent)
    Former statutory agent; last name not provided.
  • Betty Sergeant (former property manager)
    Petitioner took her to court.
  • Todd Sullivan (association manager)
    Viking New Association
    New association manager effective June 1st.
  • c. serrano (unknown)
    Transmittal initial on Del Cerro Condo contact document.

Steven Schmidt v. Catalina Ridge Community Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2222040-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2022-07-13
Administrative Law Judge JC
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Steven J. Schmidt Counsel Pro Se
Respondent Catalina Ridge Community Association, Inc. Counsel Michael S. Shupe, Esq. (Goldschmidt Shupe, PLLC)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2222040-REL Decision – 2022 04 22 ADRE Response HO22-22040.pdf

Uploaded 2026-04-24T11:49:43 (95.9 KB)

22F-H2222040-REL Decision – 973190.pdf

Uploaded 2026-04-24T11:49:46 (45.6 KB)

22F-H2222040-REL Decision – 975956.pdf

Uploaded 2026-04-24T11:49:50 (54.8 KB)

22F-H2222040-REL Decision – 983362.pdf

Uploaded 2026-04-24T11:49:53 (165.5 KB)

22F-H2222040-REL Decision – Date of Hearing Recieved.pdf

Uploaded 2026-04-24T11:49:57 (169.0 KB)

22F-H2222040-REL Decision – HO22-22040_Notice_Petition.pdf

Uploaded 2026-04-24T11:50:03 (521.1 KB)

22F-H2222040-REL Decision – Notice of Hearing .pdf

Uploaded 2026-04-24T11:50:09 (1792.3 KB)

22F-H2222040-REL Decision – Response to Petition – 4.22.22.pdf

Uploaded 2026-04-24T11:50:22 (127.2 KB)

Briefing Document: Steven Schmidt v. Catalina Ridge Community Association, Inc.

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision regarding a dispute between Steven Schmidt (Petitioner) and the Catalina Ridge Community Association, Inc. (Respondent/Association). The central conflict involved the interpretation of the Association's Covenants, Conditions, and Restrictions (CC&Rs) specifically concerning the allowable square footage of a detached accessory structure.

The Petitioner sought to construct a 1,441-square-foot detached garage, arguing that the CC&Rs allowed for a size based on 40% of his "Dwelling Unit," which he interpreted as the total structure including his existing attached garage and porches. The Association denied the application, contending that "Dwelling Unit" refers only to the livable square footage of the home. Following a formal hearing on June 23, 2022, Administrative Law Judge (ALJ) Jenna Clark ruled in favor of the Association, concluding that the Petitioner failed to prove a violation of the CC&Rs.

Case Overview and Procedural History

Item Details
Case Number 22F-H2222040-REL (ADRE Case # HO22-22/040)
Petitioner Steven Schmidt (Homeowner, Lot 9)
Respondent Catalina Ridge Community Association, Inc.
Administrative Law Judge Jenna Clark
Primary Issue Interpretation of CC&Rs Article 7, Section 7 (Accessory Structure size)
Petition Date March 21, 2022
Hearing Date June 23, 2022
Decision Date July 13, 2022
Background

In May 2019, the Petitioner submitted plans to the Architectural Review Committee (ARC) for a detached garage project. The Association issued three separate denial letters between July 2019 and February 2020. The primary reason for denial was that the proposed 1,441-square-foot structure exceeded the allowable size limits dictated by the CC&Rs.

Analysis of Key Themes

1. The Definition of "Dwelling Unit"

The crux of the legal dispute was the definition of the term "Dwelling Unit" as used in CC&Rs Article 7, Section 7.

  • The Provision: "Accessory structures shall be limited to 5% of the lot area or forty percent (40%) of the main Dwelling Unit, whichever is less."
  • Petitioner's Interpretation: Argued that a "Dwelling Unit" is the entire physical structure. Under this view, his dwelling unit totaled 4,438 square feet (2,820 livable + 1,002 attached garage + 616 porches). This would allow an accessory structure of up to 1,775 square feet.
  • Respondent's Interpretation: Maintained that "Dwelling Unit" is a defined term separate from garages and porches. Under this view, the Petitioner’s dwelling unit was only the 2,820 square feet of livable space, limiting the accessory structure to 1,128 square feet.
2. Contractual Hierarchy and Internal Consistency

The Association’s counsel, Michael Shupe, argued that the CC&Rs must be read as a whole. He pointed to specific definitions in Article I:

  • Section 1.15: Defines "Dwelling Unit" as a building or portion of a building designed for use as a "Residence."
  • Section 1.29: Defines "Residence" as a lot together with the "residential Dwelling Unit, garage, patio and other Improvements."

By listing "Dwelling Unit" separately from "garage" and "patio" in the definition of "Residence," the Association argued the drafters intended these to be distinct categories.

3. Lay Interpretation vs. Legal Precision

The Petitioner, appearing on his own behalf, emphasized a "lay interpretation" of the documents. He argued that as a non-lawyer, he perceived the dwelling unit to be the total structure. He contended that if "Dwelling Unit" only meant livable space, other sections of the CC&Rs—such as those regarding solar panels or antennas being permitted on a "Dwelling Unit"—would imply those items could not be placed on garages or porches, which he deemed "nonsense."

Important Quotes with Context

From Petitioner Steven Schmidt

"The clear intent of the CC&Rs is to treat the dwelling unit as an entire structure, including the garage and porches… The Association has ignored the language of their own CC&Rs and design guidelines."

  • Context: Closing argument during the June 23 hearing, where Schmidt emphasized that the physical architecture of the home should dictate the calculation.

"I read the CC&Rs. I perceive them in good taste to mean what I have defined that they mean… The CC&Rs do not begin by [saying] 'you must get a contract expert to read and interpret for you, Mr. Owner.'"

  • Context: Rebuttal argument addressing the Association's reliance on technical legal definitions found in the "Definitions" section of the CC&Rs.
From Respondent’s Counsel (Michael Shupe)

"As a matter of contract interpretation, you look at the entire contract… one of the principal ideas is to look at the express language and find out if there's any ambiguity."

  • Context: Arguments made during the hearing to justify why the ARC looked at the "Definitions" section of the CC&Rs rather than just Section 7.7.
From Administrative Law Judge Jenna Clark

"It is clear from the record that a 'Dwelling Unit' can only consist of a portion of a building that is distinct from other structures and improvements like garages and patios."

  • Context: Found in the "Conclusions of Law" section of the final decision, explaining why the Petitioner’s calculation was rejected.

Data Points and Square Footage Calculations

The following table reflects the data used by the ALJ to reach the final decision:

Structure Component Square Footage
Livable Area (Home) 2,820
Attached Garage 1,002
Covered Front Porch 289
Covered Rear Porch 327
Petitioner's Claimed "Dwelling Unit" Total 4,438
Calculated "Dwelling Unit" per ALJ Decision 2,820 (Livable Only)
Petitioner's Proposed Detached Garage 1,441
Max Allowable Size (40% of 2,820) 1,128 (Approx.)

Note: The ALJ decision explicitly noted that with a livable area of 2,820, the maximum allowable square footage for an accessory structure is capped at 1,141.2 (though 40% of 2,820 is 1,128, the decision mentions 2,853 as a figure in one instance, leading to the 1,141.2 cap).

Actionable Insights

  • Definition Primacy: Homeowners and Associations must prioritize the "Definitions" section of their governing documents. Even if a specific section (like Article 7.7) seems clear in isolation, defined terms carry their specific meaning throughout the entire document.
  • Burden of Proof: In administrative hearings of this nature, the Petitioner bears the burden of proving a violation by a "preponderance of the evidence." Lay interpretations, however logical they may seem from a spatial or architectural perspective, often fail to overcome specific contractual definitions.
  • Consistency in Denials: The Association's success in this matter was supported by their consistent application of the 2,500-square-foot minimum livable space requirement (Section 7.6) and the consistent separation of "livable" space from "garages/patios" in both the CC&Rs and Design Guidelines.
  • Administrative Process: The case highlights the utility of prehearing conferences to identify stipulated facts, which streamlined this hearing by removing factual disputes and focusing solely on the legal interpretation of terms.

Case Analysis Study Guide: Schmidt v. Catalina Ridge Community Association

This study guide provides a comprehensive overview of the administrative hearing regarding the dispute between Steven Schmidt (Petitioner) and the Catalina Ridge Community Association, Inc. (Respondent). It is designed to assist in understanding the nuances of contract interpretation within the context of homeowners' association (HOA) governance.

I. Case Overview and Key Concepts

Central Legal Issue

The primary conflict in this case is the interpretation of Article 7, Section 7 of the Covenants, Conditions, and Restrictions (CC&Rs). Specifically, the parties disagreed on the method for calculating the allowable square footage of an "accessory structure" (in this instance, a detached garage).

The Mathematical Conflict

The CC&Rs state that an accessory structure is limited to 5% of the lot area or 40% of the main Dwelling Unit, whichever is less. While the lot area was not in dispute, the definition of "Dwelling Unit" was the crux of the case.

Component Petitioner’s Calculation Respondent’s Calculation
Livable Square Footage 2,820 2,820
Covered Front Porch 289 Excluded
Covered Rear Porch 327 Excluded
Attached Garage 1,002 Excluded
Total "Dwelling Unit" Base 4,438 sq. ft. 2,820 sq. ft.
Allowable Accessory Size (40%) 1,775 sq. ft. 1,128 sq. ft.
Key Legal Principles
  • Absolute Source Fidelity: The Administrative Law Judge (ALJ) must interpret terms based on the definitions provided within the governing documents (CC&Rs and Design Guidelines).
  • Contract as a Whole: Under legal principles of contract interpretation, a document must be read in its entirety to ensure no provision is rendered meaningless or contrary to another.
  • Burden of Proof: In these proceedings, the Petitioner bears the burden of proving by a preponderance of the evidence that the Association violated the community documents.

II. Short-Answer Practice Questions

1. On what date did the Association issue the initial denial letter for the Petitioner's detached garage project? Answer: July 25, 2019.

2. According to CC&R Article 7, Section 7, what is the maximum height allowed for an accessory structure? Answer: Twenty (20) feet.

3. What was the square footage of the detached garage proposed by Steven Schmidt? Answer: 1,441 square feet.

4. The Association’s Design Guidelines (Section 3.2.2) require a minimum livable square footage of 2,500. What specific areas are explicitly excluded from this minimum requirement? Answer: Garages, porches, Guest Houses, and patios.

5. Why did the ALJ strike "Stipulated Finding of Fact number 11" during the hearing? Answer: There was a point of contention regarding a typographical error in the date (noting February 5, 2022, instead of 2020), meaning it was no longer a stipulated (agreed-upon) fact.

6. What was the final decision rendered by Administrative Law Judge Jenna Clark on July 13, 2022? Answer: The petition was denied because the Petitioner failed to establish that the Respondent violated the CC&Rs.

7. How much was the filing fee paid by the Petitioner to the Department of Real Estate to initiate the dispute? Answer: $500.00.

III. Essay Prompts for Deeper Exploration

1. The Conflict of Definitions

Compare the Petitioner's "lay interpretation" of the term "Dwelling Unit" with the Respondent's "contractual interpretation." How did the inclusion of Section 1.15 and Section 1.29 of the CC&Rs influence the ALJ's final decision? In your answer, address why the ALJ concluded that a "Dwelling Unit" must be distinct from structures like garages and patios.

2. Procedural Requirements of Administrative Hearings

The pre-hearing conference established several strict deadlines for both parties. Discuss the importance of the Subpoena deadline, the Disclosure deadline, and the Pre-hearing memorandum. How do these procedural steps ensure a fair hearing, and what are the consequences of failing to adhere to them (e.g., the admission of exhibits or the calling of witnesses)?

3. Demonstrative Evidence vs. Formal Record

During the hearing, the Petitioner utilized "demonstrative evidence" (large-scale plans on easels). Explain the ALJ's ruling on why these large visual aids were not admitted into the formal evidentiary record. Discuss the practical challenges of "spatial arguments" in a recorded administrative setting and the alternative solutions suggested by the court.

IV. Glossary of Important Terms

  • Accessory Structure: Structures including, but not limited to, detached garages and guest homes, which are subject to specific size and height limitations under the CC&Rs.
  • ARC (Architectural Review Committee): The body within the Association responsible for reviewing and approving or denying construction and modification applications on lots.
  • Bates Stamps: Numerical page labels used on exhibits to ensure that all parties and the court can easily reference specific pages during testimony and deliberation.
  • CC&Rs (Covenants, Conditions, and Restrictions): The enforceable contract between an HOA and its property owners that governs property use and community standards.
  • Dwelling Unit: As defined in CC&R Section 1.15, any building or portion of a building situated upon a lot designed and intended for use and occupancy as a residence by a single family.
  • In Limine (Motions in Limine): Housekeeping issues or motions raised at the onset of a hearing to limit or prevent certain evidence from being presented.
  • Livable Square Footage: The interior residential space of a home, which, according to the Association’s guidelines, excludes non-livable areas such as garages, porches, and patios.
  • Preponderance of the Evidence: The standard of proof in civil and administrative matters, meaning the evidence shows that a contention is "more probably true than not."
  • Stipulated Facts: Facts that both the Petitioner and Respondent agree are true before the hearing begins, allowing the court to focus only on the remaining points of legal or factual dispute.

Building by the Numbers: Lessons from a 1,441-Square-Foot Garage Dispute

Introduction: The High Stakes of Home Improvements

For many homeowners, the ultimate property goal is the addition of a sprawling detached workshop or a custom multi-car garage. However, in communities governed by Homeowners Associations (HOAs), these architectural dreams are often tethered to the cold, hard math of Covenants, Conditions, and Restrictions (CC&Rs). Navigating these rules requires more than just a set of blueprints; it requires a surgical understanding of how your community defines its building limits.

The case of Steven Schmidt v. Catalina Ridge Community Association, Inc., adjudicated before the Arizona Office of Administrative Hearings (OAH), serves as a cautionary tale for any homeowner. What began as a request for a 1,441-square-foot detached garage devolved into a multi-year legal battle over a single mathematical definition. The central conflict? The specific method used to determine the allowable size of an accessory structure.

The Core Conflict: The "40% Rule" Explained

The dispute originated when Petitioner Steven Schmidt proposed a 1,441-square-foot standalone garage. The Catalina Ridge Architectural Review Committee (ARC) denied the project, asserting it exceeded the size limitations set forth in CC&R Article 7.7.

To understand the denial, one must look at the community's "lesser of" formula for accessory structures. Under Article 7.7, a structure is limited to:

  • 5% of the total lot area; or
  • 40% of the "main Dwelling Unit," whichever is less.

In this case, the Petitioner's lot was approximately 46,300 square feet. A 5% calculation would have allowed for a massive 2,315-square-foot structure. Consequently, the "40% of the main Dwelling Unit" rule became the controlling—and far more restrictive—cap. The entire case hinged on two opposing interpretations of what "Dwelling Unit" actually means:

  • The Petitioner’s View: The "Dwelling Unit" should encompass the home's total physical footprint, including livable space, the attached garage, and porches.
  • The Association’s View: The "Dwelling Unit" is a legal term referring strictly to the livable, conditioned square footage of the home.

The Calculation Clash: Homeowner Math vs. HOA Math

The following table highlights the significant gap created by these two interpretations. While the Petitioner used a base of 4,438 square feet to justify his project, the ALJ ultimately adopted the Association's more conservative figures.

Component Petitioner’s Calculation (Total Footprint) Association’s Calculation (Livable Only)
Livable Area 2,820 sq. ft. 2,853 sq. ft.*
Front Porch 289 sq. ft. (Excluded)
Rear Porch 327 sq. ft. (Excluded)
Attached Garage 1,002 sq. ft. (Excluded)
Total Base Area 4,438 sq. ft. 2,853 sq. ft.
Allowable 40% Cap 1,775.2 sq. ft. 1,141.2 sq. ft.

\Note: While the Petitioner estimated his livable space at 2,820 sq. ft., the ALJ utilized the Association's calculated figure of 2,853 sq. ft. to determine the final legal cap. Under the HOA's math, the proposed 1,441 sq. ft. garage exceeded the limit by nearly 300 square feet.*

The Legal Deep Dive: Definitions Matter

In the courtroom, "common sense" interpretations of space often fail when compared to the specific language of a contract. To resolve the dispute, ALJ Jenna Clark performed a deep dive into the Article I definitions of the CC&Rs, specifically contrasting Section 1.15 (Dwelling Unit) with Section 1.29 (Residence).

The ruling relied on the legal principle of Expressio Unius est Exclusio Alterius—the idea that the express mention of one thing excludes others. The ALJ highlighted Section 1.29, which defines a "Residence" as:

“'Residence' means any subdivided Lot shown on the Plat, together with the residential Dwelling Unit, garage, patio and other Improvements thereon…"

By listing "Dwelling Unit," "garage," and "patio" as separate items in a series, the contract legally establishes them as distinct, mutually exclusive entities. If the "Dwelling Unit" already included the garage and patio, listing them separately would make those words redundant—a violation of standard contract interpretation rules. Furthermore, the Association pointed to Section 7.6, which explicitly excludes garages and porches when establishing minimum livable square footage requirements (2,500 sq. ft.).

The Petitioner argued that if you exclude garages and porches, the community's minimum size requirements become "nonsense" because a house cannot exist as livable space alone. The ALJ rejected this functionalist view, favoring a textualist approach: the document says what it says, regardless of the homeowner's personal logic.

The Final Verdict: Why the ALJ Ruled for the HOA

On July 13, 2022, the Arizona Office of Administrative Hearings (OAH) issued its final decision. ALJ Jenna Clark ruled in favor of the Catalina Ridge Community Association.

The ALJ concluded that under the governing documents, a "Dwelling Unit" is a specific portion of a building intended for residential occupancy and is legally distinct from improvements like garages and patios. Because the Petitioner bore the burden of proof to show the HOA had violated the CC&Rs, and failed to do so, the Association's denial was upheld. The 1,441-square-foot garage was officially denied for exceeding the 1,141.2-square-foot cap.

Key Takeaways for Homeowners

As a consultant, I see these disputes frequently. Here are the strategic lessons to take from the Schmidt case:

  1. Livable Area $\neq$ Physical Footprint: In the world of HOAs, your "house" may be 4,000 square feet of stucco and roof, but its "Dwelling Unit" size—the number used for regulatory caps—is likely limited to your conditioned, livable square footage.
  2. Definitions Overrule Reality: Do not rely on dictionary definitions or "common sense." Always check the "Definitions" section of your CC&Rs first. If a term like "Residence" or "Improvement" is defined there, that definition is the only one that matters in court.
  3. The Burden of Proof Bias: In an administrative hearing, the burden of proof rests on the homeowner. If the contract language is even slightly in favor of the Association’s interpretation, the "tie" effectively goes to the Board unless you can prove a clear, express violation of the rules.

Conclusion: Navigating Your Next Project

The Schmidt case is a sobering reminder that a difference of just 300 square feet can lead to a multi-year legal battle and thousands of dollars in wasted planning. Precise language in community documents exists to maintain neighborhood character and consistency, even when that language leads to difficult math for the individual homeowner.

Before you invest in professional plans or architectural renderings, consult with your Architectural Review Committee (ARC). Ask them specifically for their "base calculation" of your dwelling unit. Understanding the community’s "rules of the road" and their specific definitions is the only way to ensure your project moves from the drawing board to the backyard without a legal detour.

Case Participants

Petitioner Side

  • Steven J. Schmidt (Petitioner)
    Catalina Ridge Community Association
    Homeowner of Lot 9

Respondent Side

  • Michael S. Shupe (Counsel for Respondent)
    Goldschmidt Shupe, PLLC
  • Susan Workman (President)
    Catalina Ridge Community Association, Inc.
  • Phyllis Kapellen (Vice-President)
    Catalina Ridge Community Association, Inc.
  • Gina Batali (Secretary)
    Catalina Ridge Community Association, Inc.
  • Jason Boyd (Director)
    Catalina Ridge Community Association, Inc.

Neutral Parties

  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Daniel Y. Jones (Division Manager)
    Arizona Department of Real Estate
  • Abby Hansen (HOA Coordinator)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Office of Administrative Hearings

Gregory Ehle V. Fulton Ranch Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2222031-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-11
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition after finding that the Petitioner failed to meet his burden of proof to show that the Fulton Ranch Homeowners Association violated A.R.S. § 33-1804(E)(2) concerning an emergency board meeting. The evidence established that no such meeting took place, and the statute does not require the Board to hold one.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gregory Ehle Counsel —
Respondent Fulton Ranch Homeowners Association Counsel Emily H. Mann, Esq.

Alleged Violations

A.R.S. § 33-1804(E)(2)

Outcome Summary

The Administrative Law Judge dismissed the petition after finding that the Petitioner failed to meet his burden of proof to show that the Fulton Ranch Homeowners Association violated A.R.S. § 33-1804(E)(2) concerning an emergency board meeting. The evidence established that no such meeting took place, and the statute does not require the Board to hold one.

Why this result: Petitioner failed to establish the violation by a preponderance of the evidence, as he conceded he did not know if an emergency meeting was held and could not provide legal authority showing that one was required.

Key Issues & Findings

Alleged violation regarding an emergency meeting of the board members.

Petitioner alleged that the Respondent HOA violated A.R.S. § 33-1804(E)(2) concerning the procedures for an emergency board meeting, specifically regarding a message sent out by the HOA's managing agent. The case proceeded on this single issue after Petitioner failed to pay the required additional filing fees for four total issues claimed.

Orders: The Administrative Law Judge dismissed the petition, concluding that the Respondent HOA did not hold an emergency board meeting and was not required by A.R.S. § 33-1804(E)(2) to hold one.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(E)(2)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Analytics Highlights

Topics: emergency meeting, board of directors, failure to pay filing fee, burden of proof, dismissal, A.R.S. 33-1804
Additional Citations:

  • A.R.S. § 33-1804(E)(2)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

22F-H2222031-REL Decision – 964714.pdf

Uploaded 2026-04-24T11:47:06 (48.2 KB)

22F-H2222031-REL Decision – 964973.pdf

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22F-H2222031-REL Decision – 965150.pdf

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22F-H2222031-REL Decision – 965339.pdf

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22F-H2222031-REL Decision – 967084.pdf

Uploaded 2026-04-24T11:47:34 (55.7 KB)

22F-H2222031-REL Decision – 967089.pdf

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22F-H2222031-REL Decision – 967102.pdf

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22F-H2222031-REL Decision – 973304.pdf

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22F-H2222031-REL Decision – 977404.pdf

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22F-H2222031-REL Decision – 982867.pdf

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This summary details the proceedings, key arguments, and final decision in the administrative hearing case of *Gregory Ehle v. Fulton Ranch Homeowners Association* (No. 22F-H2222031-REL), held before Administrative Law Judge (ALJ) Velva Moses-Thompson.

Key Facts and Procedural History

Petitioner Gregory Ehle filed a petition with the Arizona Department of Real Estate (AZDRE) around February 2, 2022, alleging four separate violations by the Respondent, Fulton Ranch Homeowners Association (Fulton Ranch). Ehle paid a $500 filing fee, but the tribunal ordered him to remit an additional $1,500 for the four claims. Ehle failed to pay the outstanding fee by the deadline (May 6, 2022). Consequently, and because Ehle failed to notify the tribunal of his preferred single issue, the ALJ determined that the sole issue to be addressed at the June 21, 2022, hearing was an alleged violation of A.R.S. § 33-1804(E)(2) concerning an emergency meeting of the board members.

Hearing Proceedings and Main Arguments

The hearing took place on June 21, 2022. Petitioner Ehle, appearing on his own behalf, initially failed to appear, but the hearing proceeded after he connected virtually.

Petitioner's Argument: Ehle contended that a November 12, 2020, notice issued by Fulton Ranch regarding the cessation of responses to his emails constituted a matter of urgency that should have necessitated an emergency board meeting. Ehle alleged that if an emergency meeting had been conducted, the required minutes were not published at the next regular board meeting. However, under examination, Ehle conceded that he was unaware of whether an emergency board meeting was actually held.

Respondent's Argument: Fulton Ranch, represented by Emily Mann, Esq., argued for dismissal on multiple grounds, including a potential bar by the one-year statute of limitations. The primary argument, supported by testimony from Kevin Hearty (Division Vice President for the community manager, CCMC), was that no emergency board meeting occurred between September 2020 and November 12, 2020. Fulton Ranch asserted that A.R.S. § 33-1804(E)(2) governs the *procedure* for an emergency meeting, and since no meeting was held, no violation of the procedure could have occurred.

Outcome and Legal Decision

The ALJ issued the decision on July 11, 2022.

Key Legal Points and Findings:

  1. Petitioner bore the burden of proof to establish a violation by a preponderance of the evidence.
  2. The weight of the evidence showed that Fulton Ranch did not hold an emergency board meeting regarding the decision concerning Mr. Ehle's emails.
  3. The ALJ explicitly concluded that A.R.S. § 33-1804(E)(2) allows the Board to conduct an emergency meeting, but the statute does not require the Board to hold one. Ehle failed to provide legal authority supporting his contention that a meeting was mandatory.

Final Decision: Because Ehle failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2), the Administrative Law Judge dismissed the petition.

Questions

Question

Is my HOA board legally required to hold an emergency meeting for urgent matters?

Short Answer

No, the statute allows for emergency meetings but does not mandate them.

Detailed Answer

The ALJ determined that while state law permits a board to call an emergency meeting for issues that cannot wait 48 hours, the homeowner failed to prove there is any legal requirement forcing the board to hold one. The board has the discretion to call such meetings but is not obligated to do so.

Alj Quote

Mr. Ehle failed to provide any legal authority in his petition or at hearing to support his contention that the Board was required to hold an emergency board meeting.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • board obligations

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, the homeowner filing the complaint must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standards

Question

Can I be penalized if I don't pay the full filing fees for all my complaints?

Short Answer

Yes, the tribunal will limit the hearing to only the issues covered by the paid fees.

Detailed Answer

If a homeowner alleges multiple violations but only pays the filing fee for one, the tribunal may dismiss the unpaid claims and order the homeowner to choose a single issue to proceed with at the hearing.

Alj Quote

The tribunal ordered Petitioner to pay an additional $1,500 for the four issues claimed. However, Petitioner failed to do so… IT IS ORDERED that the single issue to be addressed at hearing is an alleged violation of A.R.S. § 33-1804(E)(2)…

Legal Basis

Procedural Order

Topic Tags

  • filing fees
  • procedure

Question

Can I punish my HOA for failing to produce minutes for a meeting they claim never happened?

Short Answer

No, if no meeting was held, there are no minutes to produce.

Detailed Answer

You cannot successfully claim a procedural violation (like missing minutes) for a meeting that did not take place. If the evidence shows no meeting occurred, the claim will be dismissed.

Alj Quote

The weight of the evidence shows that Fulton Ranch did not hold an emergency board meeting… Therefore, the Administrative Law Judge concludes that Mr. Ehle has failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2) and the petition should be dismissed.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • meeting minutes
  • evidence

Question

What qualifies as an 'emergency' for an HOA board meeting?

Short Answer

Matters that cannot be delayed for the standard 48-hour notice period.

Detailed Answer

State law defines an emergency meeting as one called to discuss business or take action that is too urgent to wait for the standard 48 hours required for notice of a regular meeting.

Alj Quote

An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • definitions

Question

Can I attend my HOA dispute hearing virtually?

Short Answer

Yes, hearings can be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings allows parties to appear either in person or virtually (e.g., via Google Meet) for the proceedings.

Alj Quote

Either party may appear virtually or in person for the hearing.

Legal Basis

Procedural Order

Topic Tags

  • hearings
  • procedure

Question

What does 'preponderance of the evidence' mean?

Short Answer

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

Detailed Answer

This is the standard of proof used in these hearings. It is not about the number of witnesses, but the convincing force of the evidence that inclines an impartial mind to one side.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence

Topic Tags

  • legal definitions
  • evidence

Case

Docket No
22F-H2222031-REL
Case Title
Gregory Ehle v. Fulton Ranch Homeowners Association
Decision Date
2022-07-11
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my HOA board legally required to hold an emergency meeting for urgent matters?

Short Answer

No, the statute allows for emergency meetings but does not mandate them.

Detailed Answer

The ALJ determined that while state law permits a board to call an emergency meeting for issues that cannot wait 48 hours, the homeowner failed to prove there is any legal requirement forcing the board to hold one. The board has the discretion to call such meetings but is not obligated to do so.

Alj Quote

Mr. Ehle failed to provide any legal authority in his petition or at hearing to support his contention that the Board was required to hold an emergency board meeting.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • board obligations

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, the homeowner filing the complaint must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • burden of proof
  • legal standards

Question

Can I be penalized if I don't pay the full filing fees for all my complaints?

Short Answer

Yes, the tribunal will limit the hearing to only the issues covered by the paid fees.

Detailed Answer

If a homeowner alleges multiple violations but only pays the filing fee for one, the tribunal may dismiss the unpaid claims and order the homeowner to choose a single issue to proceed with at the hearing.

Alj Quote

The tribunal ordered Petitioner to pay an additional $1,500 for the four issues claimed. However, Petitioner failed to do so… IT IS ORDERED that the single issue to be addressed at hearing is an alleged violation of A.R.S. § 33-1804(E)(2)…

Legal Basis

Procedural Order

Topic Tags

  • filing fees
  • procedure

Question

Can I punish my HOA for failing to produce minutes for a meeting they claim never happened?

Short Answer

No, if no meeting was held, there are no minutes to produce.

Detailed Answer

You cannot successfully claim a procedural violation (like missing minutes) for a meeting that did not take place. If the evidence shows no meeting occurred, the claim will be dismissed.

Alj Quote

The weight of the evidence shows that Fulton Ranch did not hold an emergency board meeting… Therefore, the Administrative Law Judge concludes that Mr. Ehle has failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2) and the petition should be dismissed.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • meeting minutes
  • evidence

Question

What qualifies as an 'emergency' for an HOA board meeting?

Short Answer

Matters that cannot be delayed for the standard 48-hour notice period.

Detailed Answer

State law defines an emergency meeting as one called to discuss business or take action that is too urgent to wait for the standard 48 hours required for notice of a regular meeting.

Alj Quote

An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

  • emergency meetings
  • definitions

Question

Can I attend my HOA dispute hearing virtually?

Short Answer

Yes, hearings can be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings allows parties to appear either in person or virtually (e.g., via Google Meet) for the proceedings.

Alj Quote

Either party may appear virtually or in person for the hearing.

Legal Basis

Procedural Order

Topic Tags

  • hearings
  • procedure

Question

What does 'preponderance of the evidence' mean?

Short Answer

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

Detailed Answer

This is the standard of proof used in these hearings. It is not about the number of witnesses, but the convincing force of the evidence that inclines an impartial mind to one side.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence

Topic Tags

  • legal definitions
  • evidence

Case

Docket No
22F-H2222031-REL
Case Title
Gregory Ehle v. Fulton Ranch Homeowners Association
Decision Date
2022-07-11
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Gregory Ehle (petitioner)
    Appeared on behalf of himself.

Respondent Side

  • Emily H. Mann (HOA attorney)
    Phillips, Maceyko & Battock, PLLC
    Appeared on behalf of Respondent Fulton Ranch Homeowners Association.
  • Kevin Hardy (witness)
    CCMC
    Division Vice President for Fulton Ranch's Community Manager (CCMC).

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (legal secretary)
    OAH
    Handled document transmission.
  • c. serrano (staff)
    OAH
    Handled document transmission.
  • A. Hansen (staff)
    ADRE
    Listed as contact for ADRE.
  • v. nunez (staff)
    ADRE
    Listed as contact for ADRE.
  • d. jones (staff)
    ADRE
    Listed as contact for ADRE.
  • l. abril (staff)
    ADRE
    Listed as contact for ADRE.

Other Participants

  • Natasha Bell (community manager)
    CCMC
    Former CCMC employee who served as the association's community manager in 2020.

Roberta J Stevenson-McDemott v. Four Palms Homeowners

Posted on by

Case Summary

Case ID 22F-H2222033-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-08
Administrative Law Judge Adam D. Stone
Outcome The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Roberta J Stevenson-McDermott Counsel —
Respondent Four Palms Homeowners Counsel Araceli Rodriguez

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.

Why this result: Petitioner failed to make a request for records in writing as required by A.R.S. § 33-1258.

Key Issues & Findings

Access to Association Financial and Other Records

Petitioner alleged the HOA violated A.R.S. § 33-1258 by denying her access and copies of various financial records dating back to 2016. The HOA argued they provided financial summaries and offered in-person review, noting Petitioner failed to make a proper written request.

Orders: Petition denied. Respondent is directed to comply with A.R.S. § 33-1258 going forward upon a proper written request from Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: Financial Records, Written Request Requirement, HOA Governance, Condominium Act
Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

22F-H2222033-REL Decision – 967350.pdf

Uploaded 2026-04-24T11:47:58 (46.5 KB)

22F-H2222033-REL Decision – 982397.pdf

Uploaded 2026-04-24T11:48:03 (99.3 KB)

The hearing for the case of Roberta J. Stevenson-McDermott vs. Four Palms Homeowners (No. 22F-H2222033-REL) took place on June 27, 2022, before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings.

Key Facts and Main Issues

The dispute arose from the Petitioner’s allegation that the Respondent, Four Palms Homeowners Association (HOA), violated A.R.S. § 33-1258 concerning the disclosure of association financial and other records. Petitioner, a condominium unit owner, sought various financial documents from 2016 to the present, including yearly audit reports, budgets, 1099s, and bank statements, alleging increasing lack of transparency. The Petitioner testified that she had been denied the ability to review official records and that the Treasurer frequently made excuses as to why she could not view them.

Hearing Proceedings and Key Arguments

Petitioner Roberta J. Stevenson-McDermott appeared on her own behalf. She argued that as an owner, she was entitled to copies of these documents, and bank statements should be provided unless HOA and personal funds were co-mingled.

Respondent Four Palms Homeowners, represented by Araceli Rodriguez, Esq., maintained that the HOA had complied with its statutory duties. The Treasurer, Mario Selinas, testified that financial summaries (such as cash flow and income statements generated by the HOA software "Buildium") were provided to Petitioner upon request. Respondent argued that the full bank statements were withheld from distribution due to privacy concerns, specifically the potential for harassment of delinquent unit owners or the accidental disclosure of personal financial records, which is an exception carved out in A.R.S. § 33-1258(B).

Most Important Legal Points

The most critical legal point revolved around the interpretation and application of A.R.S. § 33-1258, which requires that financial records be made available for examination upon a request made in writing. Respondent contended that although the Petitioner had made verbal requests during meetings, she had never submitted a request in writing for the bank statements to the Treasurer. Respondent further noted that the HOA had offered Petitioner the opportunity to *examine* the bank statements in person, as permitted by the statute, but she failed to follow through.

Final Decision and Outcome

The ALJ issued a decision on July 8, 2022, finding that the Petitioner bore the burden of proving a violation by a preponderance of the evidence. The ALJ concluded that the Petitioner failed to establish that she was denied access to the financial records because she had not made the proper written request required by A.R.S. § 33-1258.

The Petitioner’s petition was therefore denied. The ALJ, however, issued a directive that the Respondent is ordered to comply with the requirements of A.R.S. § 33-1258 going forward, contingent upon receiving a proper written request from the Petitioner.

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

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, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

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, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Roberta J Stevenson-McDermott (petitioner)
  • Sean Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Lenor Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Philip Smith (owner/witness)
    Provided letter of support (not admitted as evidence)
  • c. serrano (clerical staff)
    Transmitted document for Petitioner

Respondent Side

  • Araceli Rodriguez (HOA attorney)
    Yuma Law Firm (inferred)
    Represented Four Palms Homeowners Association
  • Faye Burson (board member)
    Four Palms Homeowners HOA
    Vice President and witness (also listed as FA Buren)
  • Mario Salinas (board member)
    Four Palms Homeowners HOA
    Treasurer and witness (also listed as Mario Selenus)
  • Gilbert Sto (board member)
    Four Palms Homeowners HOA
    President
  • Lesie Blessing (board member)
    Four Palms Homeowners HOA
    Vice President (2016 board) and Secretary (current board)
  • Gail Hall (board member)
    Four Palms Homeowners HOA
    Fifth member
  • Linia Ohn (former board member)
    Four Palms Homeowners HOA
    Received payments in 2018 (also listed as Lenia own)
  • Scott Hoser (former board member)
    Four Palms Homeowners HOA
    Fifth member (2016 board)

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (ADRE Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    ADRE
    Transmitted decision

Other Participants

  • Lisa Bon (former board member/owner)
    Secretary (2016 board); provided letter of support to Petitioner

Stephen and Elizabeth Tosh

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Case Summary

Case ID 22F-H2222035-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-06-24
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Stephen and Elizabeth Tosh Counsel —
Respondent Cimmarron Superstition HOA Counsel Christopher Hanlon

Alleged Violations

A.A.C. R2-19-119

Outcome Summary

The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.

Why this result: Petitioners failed to appear at the hearing on June 24, 2022, and consequently did not present evidence to satisfy the burden of proof required under A.A.C. R2-19-119.

Key Issues & Findings

Petition Dismissal for Failure to Appear

Petition was dismissed because Petitioners failed to appear at the scheduled hearing and therefore presented no evidence to meet their burden of proof.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.A.C. R2-19-119
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: dismissal, failure to appear, burden of proof
Additional Citations:

  • A.A.C. R2-19-119
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222035-REL Decision – 968715.pdf

Uploaded 2026-04-24T11:48:17 (33.0 KB)

22F-H2222035-REL Decision – 969556.pdf

Uploaded 2026-04-24T11:48:21 (48.5 KB)

22F-H2222035-REL Decision – 979812.pdf

Uploaded 2026-04-24T11:48:25 (72.2 KB)

22F-H2222035-REL Decision – 989050.pdf

Uploaded 2026-04-24T11:48:28 (39.3 KB)

This summary addresses the hearing proceedings, key facts, main legal points, and final administrative outcome of the matter involving Petitioners Stephen and Elizabeth Tosh versus Respondent Cimmarron Superstition HOA, identified as Case No. 22F-H2222035-REL, heard in the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The hearing in this matter was scheduled for June 24, 2022. The Petitioners, Stephen and Elizabeth Tosh, failed to appear at the scheduled hearing. Christopher Hanlon, Esq., appeared on behalf of the Respondent Cimmarron Superstition HOA.

During the proceeding, Mr. Hanlon informed the Administrative Law Judge (ALJ), Velva Moses-Thompson, that he had learned the previous night that his key witness had tested positive for COVID and could not physically attend. Although Mr. Hanlon suggested arguing his pending motion to dismiss, the ALJ waited approximately 15 minutes, allowing a grace period, as Petitioners were representing themselves in this specific OAH matter. The Petitioners did not contact the OAH to request a delay, appear in person, or file a request to appear telephonically.

Main Legal Issues and Rationale

The central legal point supporting the decision was the allocation of the burden of proof. Pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, the burden of proof rested solely upon the Petitioners.

By failing to appear at the hearing, the Petitioners did not present any evidence to support their claims. Consequently, the ALJ concluded that Petitioners failed to meet the required burden of proof.

Outcome and Final Decision

Based on the Petitioners' failure to appear and subsequent failure to meet the burden of proof, the Administrative Law Judge issued a Decision ordering that the petition is dismissed.

This Order was issued on June 24, 2022. The decision was declared binding on the parties unless a rehearing was granted pursuant to A.R.S. § 32-2199.04, requiring a request for rehearing to be filed with the Commissioner of the Department of Real Estate within 30 days.

The Petitioners subsequently filed a "Notice of action (appeal)" on July 21, 2022. However, the OAH determined on August 2, 2022, that these documents would not be considered because no further action could be taken on the matter by the Office of Administrative Hearings.

Questions

Question

Who is responsible for proving the claims in an HOA dispute hearing?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.

Alj Quote

The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Question

What happens if I fail to attend my scheduled administrative hearing?

Short Answer

The petition will likely be dismissed because you failed to meet the burden of proof.

Detailed Answer

Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.

Alj Quote

By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.

Legal Basis

Failure to Prosecute / Default

Topic Tags

  • attendance
  • procedural requirements
  • dismissal

Question

Is there a grace period if I am late to my hearing?

Short Answer

The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.

Detailed Answer

In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.

Alj Quote

Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.

Legal Basis

Procedural Discretion

Topic Tags

  • attendance
  • procedural requirements

Question

What is the deadline for requesting a rehearing after a decision is issued?

Short Answer

You must file a request for rehearing with the Commissioner within 30 days of service of the order.

Detailed Answer

If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • appeals
  • rehearing
  • deadlines

Question

Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?

Short Answer

No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.

Detailed Answer

Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.

Alj Quote

The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.

Legal Basis

Jurisdiction

Topic Tags

  • appeals
  • jurisdiction
  • procedural requirements

Question

Is the Administrative Law Judge's order automatically binding?

Short Answer

Yes, the order is binding on all parties unless a rehearing is officially granted.

Detailed Answer

The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • legal standards
  • enforcement

Case

Docket No
22F-H2222035-REL
Case Title
Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date
2022-06-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving the claims in an HOA dispute hearing?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.

Alj Quote

The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Question

What happens if I fail to attend my scheduled administrative hearing?

Short Answer

The petition will likely be dismissed because you failed to meet the burden of proof.

Detailed Answer

Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.

Alj Quote

By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.

Legal Basis

Failure to Prosecute / Default

Topic Tags

  • attendance
  • procedural requirements
  • dismissal

Question

Is there a grace period if I am late to my hearing?

Short Answer

The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.

Detailed Answer

In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.

Alj Quote

Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.

Legal Basis

Procedural Discretion

Topic Tags

  • attendance
  • procedural requirements

Question

What is the deadline for requesting a rehearing after a decision is issued?

Short Answer

You must file a request for rehearing with the Commissioner within 30 days of service of the order.

Detailed Answer

If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • appeals
  • rehearing
  • deadlines

Question

Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?

Short Answer

No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.

Detailed Answer

Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.

Alj Quote

The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.

Legal Basis

Jurisdiction

Topic Tags

  • appeals
  • jurisdiction
  • procedural requirements

Question

Is the Administrative Law Judge's order automatically binding?

Short Answer

Yes, the order is binding on all parties unless a rehearing is officially granted.

Detailed Answer

The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • legal standards
  • enforcement

Case

Docket No
22F-H2222035-REL
Case Title
Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date
2022-06-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Stephen Tosh (petitioner)
  • Elizabeth Tosh (petitioner)

Respondent Side

  • Christopher Hanlon (HOA attorney)
    Childers Hanlon & Hudson, PLC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Transmissions
  • c. serrano (staff)
    Transmitted documents
  • Miranda Alvarez (legal secretary)
    Transmitted Decision