The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.
Key Issues & Findings
Annual meeting
Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at the meeting.
Orders: Petitioner’s petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Decision Documents
23F-H031-REL Decision – 1035344.pdf
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23F-H031-REL Decision – 1049021.pdf
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These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
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Blog Post – 23F-H031-REL
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23F-H031-REL
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These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
Save to note
Today • 2:17 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Clifford S. Burnes(petitioner) Saguaro Crest Homeowners' Association Member Also referred to as Clifford (Norm) Burnes.
Respondent Side
John T. Crotty(HOA attorney) Saguaro Crest Homeowners' Association
Esmerina Martinez(board member) Saguaro Crest Homeowners' Association President; referred to as Serena Martinez or Esmerelda Martinez in sources.
Dave Madill(board member) Saguaro Crest Homeowners' Association Vice President; referred to as Dave Matt or Dave Mel in testimony.
Joseph Martinez(board member) Saguaro Crest Homeowners' Association
Neutral Parties
Adam D. Stone(ALJ) OAH
Susan Nicolson(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
djones(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
labril(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
Bylaws Article II Paragraph 2.3 Bylaws Article III Section A Paragraph 3.5, Section B Paragraph 3.7, and Article IV Paragraph 4.2 Bylaws Article III Section B, Article IV Section 6.7(b), Article I Paragraph 1.3 A.R.S. 33-1804(A) A.R.S. 33-1804
Outcome Summary
Petitioner succeeded on two issues regarding the HOA's failure to hold its annual meeting at the prescribed time and improperly prohibiting the recording of an open session meeting. Respondent prevailed on the remaining three issues, as the ALJ found the bylaws did not require a separate organizational meeting, the community manager acted as an authorized agent to call a meeting, and Petitioner was not denied the opportunity to speak despite being muted at times during a videoconference. Respondent was ordered to refund $1,000 for the two successful issues.
Why this result: Petitioner lost on three issues because the bylaws did not strictly require the organizational meeting to be held separately, the community manager had authority as an agent to organize a meeting, and evidence demonstrated Petitioner was afforded multiple opportunities to speak during the Zoom meeting.
Key Issues & Findings
Annual Meetings
Petitioner alleged the HOA failed to hold its annual meeting at the prescribed time in April 2022.
Orders: Petitioner deemed prevailing party. Respondent ordered to pay Petitioner filing fee of $500 for this issue.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Organizational Meetings
Petitioner alleged the HOA failed to hold a separate organizational meeting to elect officers.
Orders: Respondent deemed prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Authority to Call Board Meeting
Petitioner alleged the HOA manager was not authorized to organize or call a board meeting.
Orders: Respondent deemed prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Open Meeting Recording
Petitioner alleged the HOA illegally prohibited homeowners from recording an open board meeting.
Orders: Petitioner deemed prevailing party. Respondent ordered to pay Petitioner filing fee of $500 for this issue.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Open Meeting Opportunity to Speak
Petitioner alleged the HOA muted participants during a Zoom meeting, preventing them from speaking.
Orders: Respondent deemed prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Decision Documents
23F-H037-REL Decision – 1037672.pdf
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23F-H037-REL Decision – 1041383.pdf
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23F-H037-REL Decision – 1044671.pdf
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23F-H037-REL Decision – 1044839.pdf
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23F-H037-REL Decision – 1048179.pdf
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23F-H037-REL Decision – 1054714.pdf
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**Case Overview**
**Case Title:** Consolidated Docket Nos. 23F-H034-REL and 23F-H037-REL
**Parties:** Senol Pekin (Petitioner) vs. Artesian Ranch Community Association (Respondent)
**Hearing Date:** March 20, 2023
**Judge:** Administrative Law Judge Velva Moses-Thompson, Office of Administrative Hearings
**Main Issues**
The Petitioner brought five central allegations against the Respondent (the Homeowners' Association or HOA), claiming violations of the HOA's Bylaws and Arizona state law (A.R.S. § 33-1804):
1. The HOA failed to hold its 2022 annual meeting on the required date (the second Wednesday of April).
2. The HOA failed to hold an exclusively scheduled organizational meeting to elect officers.
3. The HOA held a board meeting on September 22, 2022, that was unlawfully organized by the HOA Manager rather than the Board.
4. The HOA prohibited the recording of an open board session on October 24, 2022, violating A.R.S. § 33-1804(A).
5. The HOA unfairly silenced opposing sides by muting attendees during the October 24 Zoom meeting.
**Key Facts and Legal Arguments**
* **Annual Meeting Timing:** The HOA admitted it held the 2022 annual meeting in May instead of April, arguing it was merely a technical violation without harm, relying on A.R.S. § 10-3701(e). The Judge ruled that while corporate actions may remain valid under that statute, the HOA still directly violated its own Bylaws which mandate a specific timeline.
* **Organizational and Manager-Called Meetings:** The Judge found no requirement in the Bylaws that an organizational meeting to elect officers must be separate from a regular board meeting. Regarding the September meeting, the Judge determined that the HOA Manager acted lawfully as an agent of the Board at the request of the Board President.
* **Recording Prohibition and Muting:** Evidence confirmed the HOA Manager instructed homeowners not to record the October open meeting and required advance notice to do so. The Judge ruled this was a clear violation of A.R.S. § 33-1804, which explicitly guarantees members the right to record open meetings without providing advance notice. However, the Judge dismissed the claim regarding muting; evidence showed the Manager muted the Petitioner due to aggressive behavior, but the Petitioner was still given ample opportunity to speak during the meeting.
**Outcome and Final Decision**
The Administrative Law Judge issued a split decision on April 10, 2023:
* **Petitioner Prevailed:** The Petitioner won on Issues 1 (failure to hold the annual meeting on time) and 4 (unlawfully prohibiting the recording of an open meeting) [
Case Participants
Petitioner Side
Senol Pekin(petitioner) Testified on his own behalf
Julie Willoughby(witness) Also spelled Julie Willowby in transcript
Shelley Nelson(witness) Also spelled Shelly Nelson in transcript
Sherry Swanson(witness)
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Law Group Represented the respondent
Daniel S. Francom(HOA attorney) Goodman Law Group
Mandy Rogers(property manager) AAM, LLC Community Manager; testified as a witness for respondent
Susanne Easterday Roskens(board member) Artesian Ranch Community Association Director/President of Respondent's Board; testified as a witness for respondent
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Assigned Administrative Law Judge
Susan Nicolson(commissioner) Arizona Department of Real Estate
Other Participants
Dennis Berger(subpoenaed individual) Subpoena for this individual was quashed
Brock O’Neal(subpoenaed individual) Motion to quash subpoena for this individual was denied
Rick Beaver(homeowner) Artesian Ranch Community Association Had an appeal reviewed during a board meeting; candidate for the board
Sandra Carlson(unknown) Copied on board packet email
Bylaws Article II Paragraph 2.3 Bylaws Article III Section A Paragraph 3.5, Section B Paragraph 3.7, and Article IV Paragraph 4.2 Bylaws Article III Section B, Article IV Section 6.7(b), Article I Paragraph 1.3 A.R.S. 33-1804(A) A.R.S. 33-1804
Outcome Summary
Petitioner succeeded on two issues regarding the HOA's failure to hold its annual meeting at the prescribed time and improperly prohibiting the recording of an open session meeting. Respondent prevailed on the remaining three issues, as the ALJ found the bylaws did not require a separate organizational meeting, the community manager acted as an authorized agent to call a meeting, and Petitioner was not denied the opportunity to speak despite being muted at times during a videoconference. Respondent was ordered to refund $1,000 for the two successful issues.
Why this result: Petitioner lost on three issues because the bylaws did not strictly require the organizational meeting to be held separately, the community manager had authority as an agent to organize a meeting, and evidence demonstrated Petitioner was afforded multiple opportunities to speak during the Zoom meeting.
Key Issues & Findings
Annual Meetings
Petitioner alleged the HOA failed to hold its annual meeting at the prescribed time in April 2022.
Orders: Petitioner deemed prevailing party. Respondent ordered to pay Petitioner filing fee of $500 for this issue.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Organizational Meetings
Petitioner alleged the HOA failed to hold a separate organizational meeting to elect officers.
Orders: Respondent deemed prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Authority to Call Board Meeting
Petitioner alleged the HOA manager was not authorized to organize or call a board meeting.
Orders: Respondent deemed prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Open Meeting Recording
Petitioner alleged the HOA illegally prohibited homeowners from recording an open board meeting.
Orders: Petitioner deemed prevailing party. Respondent ordered to pay Petitioner filing fee of $500 for this issue.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Open Meeting Opportunity to Speak
Petitioner alleged the HOA muted participants during a Zoom meeting, preventing them from speaking.
Orders: Respondent deemed prevailing party.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Audio Overview
Decision Documents
23F-H034-REL Decision – 1044665.pdf
Uploaded 2026-03-14T16:46:54 (166.9 KB)
23F-H034-REL Decision – 1048179.pdf
Uploaded 2026-03-14T16:47:02 (105.1 KB)
Briefing Doc – 23F-H034-REL
Briefing on the Dispute Between Senol Pekin and the Artesian Ranch Community Association
Executive Summary
This document synthesizes the key arguments, evidence, and outcomes from a consolidated administrative hearing concerning five allegations brought by homeowner and board member Senol Pekin against the Artesian Ranch Community Association (HOA). The dispute centers on alleged violations of the association’s bylaws and Arizona state statutes regarding the scheduling and conduct of board meetings.
The Administrative Law Judge (ALJ) found the HOA in violation on two of the five issues: failing to hold its 2022 annual meeting on the date prescribed by the bylaws and improperly prohibiting the recording of an open board meeting in October 2022. The HOA was ordered to reimburse the petitioner’s filing fees of $1,000 for these violations.
The ALJ found in favor of the HOA on the remaining three issues. It concluded that the organizational meeting process was compliant with the bylaws, that a September 2022 board meeting was properly called by the HOA manager acting as an agent of the board, and that the petitioner failed to prove he was denied the opportunity to speak during the October 2022 meeting despite being muted at times. No civil penalties were deemed appropriate.
——————————————————————————–
I. Allegation 1: Improper Annual Meeting Date
Outcome: Violation Found
The petitioner prevailed on the allegation that the HOA violated its bylaws by holding the 2022 annual meeting in May, rather than on the mandated date.
Aspect
Details
Petitioner’s Allegation
The HOA violated Bylaws Article II, Paragraph 2.3, which requires the annual meeting to be held on the second Wednesday of April each year.
Respondent’s Defense
The Community Manager, Mandy Rogers, testified that upon taking over the account in January 2022, she presented a draft calendar to the prior board. The board chose the May date, following a “cadence” established in previous years. She noted the 2021 meeting was moved to August due to COVID-19, and the 2019 meeting was also not in April.
Supporting Testimony
– Mandy Rogers: Acknowledged awareness that the annual meeting is supposed to be in April. She stated, “Your annual meeting for the past 3 years was on the wrong date per the bylaw.” She confirmed the 2023 meeting was correctly scheduled for April. – Mandy Rogers: Explained her process for the 2022 calendar: “I looked at when their last annual meeting was and it was in August of 2021. So on that draft calendar, I said, ‘Do you want your meeting in August of 2022?’ And they said, ‘No, we traditionally have it in May.’ And I said, ‘Okay, you guys choose a date and a time that works for you.'”
ALJ Conclusion
The evidence showed the HOA failed to hold its meeting on the required date. The ALJ noted that while A.R.S. § 10-3701(e) states that failure to hold a timely meeting does not invalidate corporate action, it “does not provide an exception to the adherence to Bylaws that require a set time for an annual meeting.”
II. Allegation 2: Improper Organizational Meeting
Outcome: Violation Not Found
The petitioner failed to prove that the HOA violated bylaws regarding the scheduling and format of the organizational meeting.
Aspect
Details
Petitioner’s Allegation
The HOA did not elect officers in an “exclusively and timely scheduled Organizational Meeting” as required by its bylaws (Article III, Section 3.5 and 3.7). The petitioner argued the meeting should be a standalone event held shortly after directors take office on January 1st.
Respondent’s Defense
The organizational meeting was held during the August 2022 board meeting, which was the next scheduled open session after the May election. This delay was to allow for new board member training to be completed, as required by the bylaws. The bylaws mandate a meeting “within a reasonable time” and do not require it to be “exclusive.”
Supporting Testimony
– Mandy Rogers: “Your organizational meeting was specifically scheduled for the next open session board meeting which was in August. That was also to satisfy that your bylaws say that all board training should be done prior to that meeting.” She confirmed that the new director (Pekin) received training via Zoom and was provided a board book and access to the online platform. – Susanne Roskens (Board President): Confirmed that officer positions were discussed and voted on by the three present directors during the August meeting.
ALJ Conclusion
The bylaws do not require the organizational meeting to be held separately from a regular board meeting. The ALJ also noted that the Community Manager may act as an agent of the board.
Sub-Issue: Director Term Start Date
A significant point of contention was a bylaw provision (Section 3.5) stating that elected directors take office on January 1st of the following year.
• Mandy Rogers’ Testimony: She described this provision as highly unusual and professionally unheard of. “I’ve never seen governing documents that call out that you have an election in April and don’t take office until January. That’s unheard of.” She stated the association attorney was reviewing the provision.
• Association Practice: Board President Susanne Roskens testified that the association has never had directors wait until January to take office.
III. Allegation 3: Improperly Called September 2022 Board Meeting
Outcome: Violation Not Found
The petitioner failed to prove that the September 22, 2022 board meeting was improperly called by the HOA Manager.
Aspect
Details
Petitioner’s Allegation
The HOA Manager, Mandy Rogers, who is not a board member, was not authorized to call a board meeting. An email from her stated, “I’m scheduling a board meeting.”
Respondent’s Defense
The meeting was necessary to approve a time-sensitive landscaping and overseeding contract, as unanimous email approval could not be achieved. Board President Susanne Roskens verbally directed Mandy Rogers to schedule the meeting. The petitioner himself had requested a meeting on the topic in prior emails, and the third director, Dennis Burger, confirmed his support for the meeting in writing.
Supporting Testimony
– Mandy Rogers: “I spoke to your board president and at your request to schedule a meeting… I was given the directive to schedule it.” – Susanne Roskens: “I discussed it with Mandy via a phone call and asked if we could have a meeting to get clarification so that we could move forward.” – Exhibit I (Email Chain): This exhibit shows the petitioner requesting a meeting to discuss the topic, Mandy Rogers subsequently scheduling the meeting, the petitioner objecting to her authority, and Dennis Burger responding, “I’m confused meaning [Susanne] wants the meeting and ask her to set it up.”
ALJ Conclusion
The meeting was properly initiated. Ms. Rogers, as an employee of the Community Manager, may act as an agent of the Board.
IV. Allegation 4: Prohibition of Recording (October 24, 2022)
Outcome: Violation Found
The petitioner prevailed on the allegation that the HOA violated Arizona statute by prohibiting the recording of an open session meeting.
Aspect
Details
Petitioner’s Allegation
The HOA violated A.R.S. § 33-1804(A) by prohibiting the recording of the open session meeting on October 24, 2022.
Respondent’s Defense
Mandy Rogers stated she made the announcement based on advice from the association attorney following a contentious executive session that preceded the open meeting. She also testified that the board requires advance notice of recording. The defense also argued the issue was moot because the petitioner recorded the meeting regardless.
Supporting Testimony
– Mandy Rogers: “A statement was made at the beginning of the session so the board could handle board business.” When asked who gave the direction to prohibit recording, she stated it was the attorney. – Shelly Nelson (Witness): Confirmed she remembered the association prohibiting recording of the open meeting. – Sherry Swanson (Witness): Confirmed, “The meeting started that way that she said you should not record.”
ALJ Conclusion
The preponderance of evidence shows that the HOA violated A.R.S. § 33-1804 when it informed homeowners they were not allowed to record the board meeting.
V. Allegation 5: Muting and Silencing Opposition (October 24, 2022)
Outcome: Violation Not Found
The petitioner failed to prove that he was prevented from speaking for the opposing side during the October 24, 2022 meeting.
Aspect
Details
Petitioner’s Allegation
During the Zoom meeting, the HOA muted the petitioner, preventing him from voicing opposition on issues, in violation of A.R.S. § 33-1804.
Respondent’s Defense
Mandy Rogers admitted to muting the petitioner but justified it on several grounds: he was being “combative,” speaking over others, and bringing up confidential executive session topics in an open forum. His camera was off and he was self-muted at times, creating confusion about his presence and participation.
Witness Testimony
– Shelly Nelson: Did not perceive the petitioner’s behavior as combative. She described the overall tone of the meeting as “antagonistic” and felt “decisions were foregone conclusions.” – Sherry Swanson: Perceived both the petitioner and Mandy Rogers as “very argumentative.” She stated the petitioner “did come across very argumented from the beginning of the meeting” and came in “hotheaded.”
ALJ Conclusion
Petitioner failed to establish a violation by a preponderance of the evidence. The ALJ noted, “the evidence shows that Petitioner had several times to speak during the board meeting.”
Case Participants
Petitioner Side
Senol Pekin(petitioner/board member) Director of Artesian Ranch Community Association Board
Julie Willowby(witness) Testified for Petitioner; Former Board President
Shelley Nelson(witness) Testified for Petitioner; Resident, daughter of homeowners John and Muriel Nelson
Sherry Swanson(witness) Testified for Petitioner; Homeowner
Respondent Side
Ashley N. Moscarello(HOA attorney) goodlaw.legal
Mandy Rogers(property manager) AAM, LLC Community Manager for Artesian Ranch
Susanne Easterday Roskens(board member) Director/Board President of Artesian Ranch Community Association Board
Dennis Burger(board member) Director of Artesian Ranch Community Association Board
The Administrative Law Judge dismissed the petition, finding that the Respondent, Citation Gardens Cooperative #1, does not meet the statutory definition of a planned community, and therefore, the statute prohibiting the denial of solar panels (A.R.S. § 33-1816) does not apply.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1816, as the ALJ determined a cooperative's purposes and functions are separate and distinct from those of a planned community, excluding it from the planned community definition.
Key Issues & Findings
Denial of request to install solar panels
Petitioner alleged Respondent violated A.R.S. § 33-1816(A) by prohibiting the installation of a solar energy device, arguing the Cooperative qualifies as a planned community. Respondent argued it was a Cooperative Corporation, not a planned community, and the statute did not apply.
Orders: No action is required of Respondent in this matter, and the petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1816
A.R.S. § 33-1802
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
Analytics Highlights
Topics: Solar Energy Device, Planned Community Definition, Cooperative Housing, Statutory Applicability, Burden of Proof
Does the Arizona law protecting a homeowner's right to install solar panels apply to housing cooperatives?
Short Answer
No. The ALJ ruled that housing cooperatives do not fit the legal definition of a 'planned community,' so the solar protection statute (A.R.S. § 33-1816) does not apply to them.
Detailed Answer
In this case, a member of a cooperative sought to install solar panels, citing A.R.S. § 33-1816, which prevents planned communities from prohibiting solar devices. The judge determined that while the definition of a planned community does not explicitly list cooperatives as an exclusion, the nature and purpose of a cooperative are distinct enough that they do not fall under the planned community statutes. Therefore, the cooperative was not legally required to permit the installation.
Alj Quote
Although the definition of a planned community does not expressly exclude a cooperative, the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community, as their purposes and functions are separate and distinct.
Legal Basis
A.R.S. § 33-1802; A.R.S. § 33-1816
Topic Tags
solar panels
cooperatives
planned community definition
Question
What happens if the HOA or respondent fails to attend the administrative hearing?
Short Answer
The hearing proceeds without them.
Detailed Answer
If the respondent (the HOA or Cooperative) has been properly notified of the hearing time and date but fails to appear or request a continuance, the Administrative Law Judge will conduct the hearing in their absence. The petitioner will still present their case, but the respondent loses the opportunity to defend themselves in person.
Alj Quote
Consequently, given that Respondent was properly noticed of the hearing, the hearing proceeded in Respondent’s absence.
Legal Basis
Procedural Due Process
Topic Tags
hearing procedure
attendance
default
Question
Who is responsible for proving that a violation occurred in an HOA dispute?
Short Answer
The petitioner (typically the homeowner) bears the burden of proof.
Detailed Answer
The person bringing the complaint must provide sufficient evidence to prove their claims. It is not up to the HOA to disprove the claims initially; the homeowner must affirmatively establish that the HOA violated the governing documents or statutes.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
burden of proof
legal standards
Question
Is a housing cooperative considered a 'planned community' under Arizona law?
Short Answer
No, a cooperative is legally distinct from a planned community.
Detailed Answer
The decision clarifies that a planned community generally involves real estate owned/operated by a nonprofit where owners are mandatory members. A cooperative, however, is formed to acquire, own, and operate a housing project where members hold shares. The judge ruled that these are separate legal concepts with different purposes, meaning statutes specific to 'planned communities' do not automatically apply to cooperatives.
Alj Quote
Respondent is a nonprofit corporation that was formed for the purpose of acquiring, owning and operating a cooperative housing project… the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community…
Legal Basis
A.R.S. § 33-1802
Topic Tags
definitions
cooperatives
planned community
Question
What is the standard of evidence required to win a hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
To win, the evidence must show that the claim is 'more probably true than not.' This is a lower standard than 'beyond a reasonable doubt' used in criminal cases. It means the evidence must incline a fair mind to one side even slightly more than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Common Law / A.A.C. R2-19-119
Topic Tags
evidence
legal standards
Case
Docket No
23F-H026-REL
Case Title
Elizabeth Flint v. Citation Gardens Cooperative #1
Decision Date
2023-04-04
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Arizona law protecting a homeowner's right to install solar panels apply to housing cooperatives?
Short Answer
No. The ALJ ruled that housing cooperatives do not fit the legal definition of a 'planned community,' so the solar protection statute (A.R.S. § 33-1816) does not apply to them.
Detailed Answer
In this case, a member of a cooperative sought to install solar panels, citing A.R.S. § 33-1816, which prevents planned communities from prohibiting solar devices. The judge determined that while the definition of a planned community does not explicitly list cooperatives as an exclusion, the nature and purpose of a cooperative are distinct enough that they do not fall under the planned community statutes. Therefore, the cooperative was not legally required to permit the installation.
Alj Quote
Although the definition of a planned community does not expressly exclude a cooperative, the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community, as their purposes and functions are separate and distinct.
Legal Basis
A.R.S. § 33-1802; A.R.S. § 33-1816
Topic Tags
solar panels
cooperatives
planned community definition
Question
What happens if the HOA or respondent fails to attend the administrative hearing?
Short Answer
The hearing proceeds without them.
Detailed Answer
If the respondent (the HOA or Cooperative) has been properly notified of the hearing time and date but fails to appear or request a continuance, the Administrative Law Judge will conduct the hearing in their absence. The petitioner will still present their case, but the respondent loses the opportunity to defend themselves in person.
Alj Quote
Consequently, given that Respondent was properly noticed of the hearing, the hearing proceeded in Respondent’s absence.
Legal Basis
Procedural Due Process
Topic Tags
hearing procedure
attendance
default
Question
Who is responsible for proving that a violation occurred in an HOA dispute?
Short Answer
The petitioner (typically the homeowner) bears the burden of proof.
Detailed Answer
The person bringing the complaint must provide sufficient evidence to prove their claims. It is not up to the HOA to disprove the claims initially; the homeowner must affirmatively establish that the HOA violated the governing documents or statutes.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
burden of proof
legal standards
Question
Is a housing cooperative considered a 'planned community' under Arizona law?
Short Answer
No, a cooperative is legally distinct from a planned community.
Detailed Answer
The decision clarifies that a planned community generally involves real estate owned/operated by a nonprofit where owners are mandatory members. A cooperative, however, is formed to acquire, own, and operate a housing project where members hold shares. The judge ruled that these are separate legal concepts with different purposes, meaning statutes specific to 'planned communities' do not automatically apply to cooperatives.
Alj Quote
Respondent is a nonprofit corporation that was formed for the purpose of acquiring, owning and operating a cooperative housing project… the Administrative Law Judge concludes that a cooperative does not fall within the definition of a planned community…
Legal Basis
A.R.S. § 33-1802
Topic Tags
definitions
cooperatives
planned community
Question
What is the standard of evidence required to win a hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
To win, the evidence must show that the claim is 'more probably true than not.' This is a lower standard than 'beyond a reasonable doubt' used in criminal cases. It means the evidence must incline a fair mind to one side even slightly more than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Common Law / A.A.C. R2-19-119
Topic Tags
evidence
legal standards
Case
Docket No
23F-H026-REL
Case Title
Elizabeth Flint v. Citation Gardens Cooperative #1
Decision Date
2023-04-04
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Elizabeth Flint(petitioner) Appeared on her own behalf and testified.
Respondent Side
Andrew Vizcarra(respondent representative) Tucson Realty & Trust Co. Management Services, L.L.C. Did not appear at the hearing; also referenced verbally as 'Andrew Biscara'.
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Other Participants
James Knupp(Acting Commissioner) Arizona Department of Real Estate Listed on the service list for the Order Setting Hearing dated Feb 2, 2023.
Susan Nicolson(Commissioner) Arizona Department of Real Estate Listed on the service list for the Decision dated April 4, 2023.
AHansen(ADRE Staff) Arizona Department of Real Estate Recipient of case documents via email address.
vnunez(ADRE Staff) Arizona Department of Real Estate Recipient of case documents via email address.
djones(ADRE Staff) Arizona Department of Real Estate Recipient of case documents via email address.
labril(ADRE Staff) Arizona Department of Real Estate Recipient of case documents via email address.
The Administrative Law Judge denied Petitioner Michael H. Jahr's petition, concluding that he failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1816, because a clothesline is not a 'solar energy device' under ARS § 44-1761, and ARS § 33-439(a) was inapplicable.
Why this result: Petitioner failed to sustain his burden of proof that the Association violated ARS § 33-1816. The Tribunal determined that a clothesline does not meet the statutory definition of a solar energy device.
Key Issues & Findings
Alleged violation of ARS § 33-1816 regarding denial of utilizing solar means to reduce energy consumption.
Petitioner alleged the Association violated ARS § 33-1816 by refusing him the ability to utilize solar means (a clothesline) to reduce energy consumption, arguing the clothesline met the definition of a 'solar energy device' under ARS § 44-1761, which the HOA cannot prohibit.
Orders: Petitioner's petition was denied. Respondent was ordered not to owe Petitioner any reimbursement for fees incurred.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1816(a-b)
ARIZ. REV. STAT. § 44-1761
ARIZ. REV. STAT. § 33-439(a)
Association Rules & Regulations 2-304(D)
Analytics Highlights
Topics: HOA Dispute, Solar Energy Device, Clothesline, Planned Community, Statutory Interpretation, Burden of Proof
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 33-439(a)
ARIZ. REV. STAT. § 33-1808(a)
ARIZ. REV. STAT. § 33-1816(a-b)
ARIZ. REV. STAT. § 44-1761
ARIZ. ADMIN. CODE R2-19-111(4)
Association Rules & Regulations 2-304(D)
Video Overview
Audio Overview
Decision Documents
23F-H032-REL Decision – 1041743.pdf
Uploaded 2026-01-23T17:53:59 (161.1 KB)
23F-H032-REL Decision – 1057366.pdf
Uploaded 2026-01-23T17:54:04 (55.7 KB)
Questions
Question
Can my HOA prohibit me from using a clothesline in my backyard?
Short Answer
Yes, if the community rules prohibit them.
Detailed Answer
The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.
Alj Quote
Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).
Legal Basis
Rules & Regulations 2-304(D); ARS 33-1816
Topic Tags
architectural_control
prohibited_items
solar_energy
Question
Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?
Short Answer
No, a clothesline does not meet the statutory definition of a solar energy device.
Detailed Answer
The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.
Alj Quote
Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.
Legal Basis
ARS 44-1761(8); ARS 33-439(a)
Topic Tags
solar_energy
definitions
statutory_interpretation
Question
What is the burden of proof for a homeowner challenging an HOA decision?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden_of_proof
legal_standards
hearing_procedure
Question
Can I be reimbursed for my filing fees if I lose the hearing?
Short Answer
No, reimbursement is generally not awarded if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.
Alj Quote
IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.
Legal Basis
Order
Topic Tags
fees
reimbursement
penalties
Question
Are CC&Rs considered a binding contract?
Short Answer
Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.
Detailed Answer
The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner.
Legal Basis
Common Law
Topic Tags
cc&rs
contract_law
governing_documents
Question
Can I use a flag pole sleeve for something other than a flag, like a clothesline?
Short Answer
No, if the permit was granted specifically for a flag pole.
Detailed Answer
In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.
Alj Quote
Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.
Legal Basis
ARS 33-1808(a)
Topic Tags
architectural_requests
permits
flag_poles
Question
How do courts interpret words in statutes that aren't explicitly defined?
Short Answer
They use the ordinary meaning of the words, often consulting dictionaries.
Detailed Answer
The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.
Alj Quote
Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole
Legal Basis
Statutory Construction Principles
Topic Tags
legal_standards
definitions
interpretation
Question
What is the deadline for filing a request for a rehearing?
Short Answer
30 days from the service of the order.
Detailed Answer
If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.
Legal Basis
ARS 41-1092.09
Topic Tags
appeals
deadlines
procedural_requirements
Case
Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA prohibit me from using a clothesline in my backyard?
Short Answer
Yes, if the community rules prohibit them.
Detailed Answer
The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.
Alj Quote
Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).
Legal Basis
Rules & Regulations 2-304(D); ARS 33-1816
Topic Tags
architectural_control
prohibited_items
solar_energy
Question
Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?
Short Answer
No, a clothesline does not meet the statutory definition of a solar energy device.
Detailed Answer
The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.
Alj Quote
Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.
Legal Basis
ARS 44-1761(8); ARS 33-439(a)
Topic Tags
solar_energy
definitions
statutory_interpretation
Question
What is the burden of proof for a homeowner challenging an HOA decision?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden_of_proof
legal_standards
hearing_procedure
Question
Can I be reimbursed for my filing fees if I lose the hearing?
Short Answer
No, reimbursement is generally not awarded if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.
Alj Quote
IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.
Legal Basis
Order
Topic Tags
fees
reimbursement
penalties
Question
Are CC&Rs considered a binding contract?
Short Answer
Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.
Detailed Answer
The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner.
Legal Basis
Common Law
Topic Tags
cc&rs
contract_law
governing_documents
Question
Can I use a flag pole sleeve for something other than a flag, like a clothesline?
Short Answer
No, if the permit was granted specifically for a flag pole.
Detailed Answer
In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.
Alj Quote
Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.
Legal Basis
ARS 33-1808(a)
Topic Tags
architectural_requests
permits
flag_poles
Question
How do courts interpret words in statutes that aren't explicitly defined?
Short Answer
They use the ordinary meaning of the words, often consulting dictionaries.
Detailed Answer
The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.
Alj Quote
Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole
Legal Basis
Statutory Construction Principles
Topic Tags
legal_standards
definitions
interpretation
Question
What is the deadline for filing a request for a rehearing?
Short Answer
30 days from the service of the order.
Detailed Answer
If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.
Legal Basis
ARS 41-1092.09
Topic Tags
appeals
deadlines
procedural_requirements
Case
Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael H. Jahr(petitioner)
Respondent Side
Daniel Clark Collier(assistant community manager) Leisure World Community Association Appeared on behalf of Respondent and testified as a witness
Regis Salazar(witness) Testified for Respondent
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(commissioner) ADRE Recipient of recommended decision
Other Participants
AHansen(ADRE staff) ADRE Recipient of electronic transmission
vnunez(ADRE staff) ADRE Recipient of electronic transmission
djones(ADRE staff) ADRE Recipient of electronic transmission
labril(ADRE staff) ADRE Recipient of electronic transmission
A.R.S. § 33-1812(A)(6) Bylaws, Article IV, Sections 1 and 2 A.R.S. § 33-1805(A)
Outcome Summary
Petitioner was deemed the prevailing party on Petition Issues 1 and 3, establishing violations of A.R.S. § 33-1812(A)(6) and A.R.S. § 33-1805(A). Respondent was deemed the prevailing party on Issue 2. Respondent was ordered to pay Petitioner $1,000.00 of the filing fee and directed to comply with the violated statutes going forward. No Civil Penalty was imposed.
Why this result: Petitioner failed to prove the violation related to the appointed board positions (Issue 2) by a preponderance of the evidence.
Key Issues & Findings
The ballot for the annual election of Board members did not have the proper resident identifiers, lot number or physical address; and the process for write-in candidates was not provided or outlined.
The ballots utilized by Respondent did not contain the address of the person voting, violating the requirement that completed ballots shall contain the name, address, and signature of the person voting.
Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1812(A)(6) going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1812(A)(6)
Bylaws, Article III, Section 3
At the Annual Meeting the Board President announced 2 new Board positions, but did not follow the electoral process for filling the 2 positions, instead appointed 2 residents to the new positions.
Petitioner failed to establish by a preponderance of the evidence that Respondent violated its Bylaws regarding the appointment of two board positions (RV Lot Manager and Architectural Review Manager), as the Board was within its limits to increase membership and fill vacancies until the next election.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
Bylaws, Article IV, Section 1
Bylaws, Article IV, Section 2
The Board Secretary refused to comply to Petitioner's request, per ARS 33-1805(A), of supplying copies of HOA records, either electronically or by purchase of hard copies.
Petitioner requested copies in writing and offered to pay, but Respondent refused to provide copies, contrary to the statutory obligation that the association must provide copies of requested records upon request for purchase within ten business days.
Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1805(A) going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
Bylaws, Article VII, Section 3
Analytics Highlights
Topics: HOA Election, Ballot Requirements, HOA Records Request, Board Appointments, Filing Fee Refund
Must HOA election ballots include the voter's address?
Short Answer
Yes, unless the community documents explicitly permit secret ballots.
Detailed Answer
According to Arizona law, completed ballots must contain the name, address, and signature of the voter. The only exception is if community documents allow for secret ballots, in which case this information must be on the envelope.
Alj Quote
The ballots utilized by Respondent did not contain the address of the person voting. Therefore, Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1812(A)(6).
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Elections
Ballots
Voting
Question
Can an HOA refuse to provide copies of records and force me to view them in person instead?
Short Answer
No. If a member requests to purchase copies, the HOA must provide them.
Detailed Answer
While an HOA can make records available for viewing, if a homeowner explicitly requests to purchase copies, the HOA is statutorily obligated to provide those copies within ten business days. Simply offering a viewing does not satisfy a request for copies.
Alj Quote
Respondent refused to provide copies of the requested documents and would only allow Petitioner to view the documents, contrary to its statutory obligation. … Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805(A).
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
Records Request
Transparency
HOA Obligations
Question
Can the HOA Board appoint people to fill vacancies or new positions without holding an election?
Short Answer
Yes, if the bylaws permit the Board to fill vacancies until the next election.
Detailed Answer
If the community bylaws allow the Board to increase its membership within certain limits and fill vacancies, the Board can appoint members to these positions. These appointees generally serve until the next scheduled election.
Alj Quote
The credible evidence of record established that Respondent appropriately appointed these positions and that the positions will appear on the ballot of the next election.
Legal Basis
Bylaws Article IV, Section 1
Topic Tags
Board Vacancies
Appointments
Bylaws
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The homeowner (Petitioner) must prove the violation.
Detailed Answer
The homeowner filing the petition is responsible for providing sufficient evidence to prove that the HOA violated statutes or community documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
Legal Standards
Burden of Proof
Hearing Procedures
Question
How much can an HOA charge for copies of records?
Short Answer
The HOA may charge a fee of no more than 15 cents per page.
Detailed Answer
Arizona statute limits the fee an association can charge for making copies of records requested by a member to a maximum of 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
Records Request
Fees
HOA Obligations
Question
If I win my case, will the HOA have to pay a civil penalty?
Short Answer
Not necessarily; civil penalties are discretionary.
Detailed Answer
Even if the HOA is found to have violated the law, the Administrative Law Judge is not required to impose a civil penalty. In this case, despite finding violations regarding ballots and records, the judge decided no penalty was appropriate.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Discretionary
Topic Tags
Penalties
Enforcement
Civil Penalty
Question
Can I get my filing fee reimbursed if the ALJ rules in my favor?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
If the homeowner prevails on the issues presented in the petition, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee back to the Petitioner.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner the filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
Remedies
Filing Fees
Reimbursement
Case
Docket No
23F-H027-REL
Case Title
Kimberly Martinez v. Pineglen Owner's Association
Decision Date
2023-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
Must HOA election ballots include the voter's address?
Short Answer
Yes, unless the community documents explicitly permit secret ballots.
Detailed Answer
According to Arizona law, completed ballots must contain the name, address, and signature of the voter. The only exception is if community documents allow for secret ballots, in which case this information must be on the envelope.
Alj Quote
The ballots utilized by Respondent did not contain the address of the person voting. Therefore, Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1812(A)(6).
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Elections
Ballots
Voting
Question
Can an HOA refuse to provide copies of records and force me to view them in person instead?
Short Answer
No. If a member requests to purchase copies, the HOA must provide them.
Detailed Answer
While an HOA can make records available for viewing, if a homeowner explicitly requests to purchase copies, the HOA is statutorily obligated to provide those copies within ten business days. Simply offering a viewing does not satisfy a request for copies.
Alj Quote
Respondent refused to provide copies of the requested documents and would only allow Petitioner to view the documents, contrary to its statutory obligation. … Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805(A).
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
Records Request
Transparency
HOA Obligations
Question
Can the HOA Board appoint people to fill vacancies or new positions without holding an election?
Short Answer
Yes, if the bylaws permit the Board to fill vacancies until the next election.
Detailed Answer
If the community bylaws allow the Board to increase its membership within certain limits and fill vacancies, the Board can appoint members to these positions. These appointees generally serve until the next scheduled election.
Alj Quote
The credible evidence of record established that Respondent appropriately appointed these positions and that the positions will appear on the ballot of the next election.
Legal Basis
Bylaws Article IV, Section 1
Topic Tags
Board Vacancies
Appointments
Bylaws
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The homeowner (Petitioner) must prove the violation.
Detailed Answer
The homeowner filing the petition is responsible for providing sufficient evidence to prove that the HOA violated statutes or community documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
Legal Standards
Burden of Proof
Hearing Procedures
Question
How much can an HOA charge for copies of records?
Short Answer
The HOA may charge a fee of no more than 15 cents per page.
Detailed Answer
Arizona statute limits the fee an association can charge for making copies of records requested by a member to a maximum of 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
Records Request
Fees
HOA Obligations
Question
If I win my case, will the HOA have to pay a civil penalty?
Short Answer
Not necessarily; civil penalties are discretionary.
Detailed Answer
Even if the HOA is found to have violated the law, the Administrative Law Judge is not required to impose a civil penalty. In this case, despite finding violations regarding ballots and records, the judge decided no penalty was appropriate.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Discretionary
Topic Tags
Penalties
Enforcement
Civil Penalty
Question
Can I get my filing fee reimbursed if the ALJ rules in my favor?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
If the homeowner prevails on the issues presented in the petition, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee back to the Petitioner.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner the filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
Remedies
Filing Fees
Reimbursement
Case
Docket No
23F-H027-REL
Case Title
Kimberly Martinez v. Pineglen Owner's Association
Decision Date
2023-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Kimberly Martinez(petitioner) Appeared on her own behalf
Christine McCabe(assistant/observer) Friend assisting Petitioner due to hearing deficit
Respondent Side
Susan Goeldner(HOA secretary/board member/representative) Pineglen Owner's Association Testified and acted as primary representative for Respondent
Warren Doty(HOA VP/board member/representative/witness) Pineglen Owner's Association Testified on Complaint Number 1
Tim Mahoney(HOA treasurer/board member/witness) Pineglen Owner's Association Observed proceedings; testified briefly on Complaint Number 3
Mark McElvain(former HOA president/observer) Pineglen Owner's Association Observed proceedings
Fred Bates(former board member/observer) Pineglen Owner's Association Observed proceedings
Addie Bassoon(HOA president) Pineglen Owner's Association Did not attend hearing due to personal issues; referenced in testimony/documents
Neutral Parties
Sondra J. Vanella(ALJ) OAH
Louis Dettorre(Commissioner) ADRE Recipient of initial correspondence/minute entries
Susan Nicolson(Commissioner) ADRE Recipient of final decision copies
AHansen(ADRE staff) ADRE Recipient of correspondence/decision copies (listed by email attn)
vnunez(ADRE staff) ADRE Recipient of correspondence/decision copies (listed by email attn)
djones(ADRE staff) ADRE Recipient of correspondence/decision copies (listed by email attn)
labril(ADRE staff) ADRE Recipient of correspondence/decision copies (listed by email attn)
The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).
Key Issues & Findings
Alleged failure to follow due process concerning violation enforcement
Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.
Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
jurisdiction
scope of hearing
violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
certified mail
procedural requirements
contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
due process
notice
board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
maintenance
limited common elements
carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
tenant liability
rental property
damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
evidence
legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
filing fees
costs
reimbursement
Case
Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
jurisdiction
scope of hearing
violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
certified mail
procedural requirements
contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
due process
notice
board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
maintenance
limited common elements
carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
tenant liability
rental property
damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
evidence
legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
filing fees
costs
reimbursement
Case
Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Victoria Whitaker(petitioner) Appeared on her own behalf without counsel
Kimball Whitaker(observer) Observed hearing; potential witness for petitioner
Realtor(realtor) Petitioner's realtor (name not provided)
The ALJ granted Petitions 1 and 4 in part, finding the Association violated A.R.S. § 33-1805 by failing to provide records where a Board Member was acting in official capacity (survey requests and City communications), even if the management company did not possess them. Petitions 2 (recordings) and 3 (roster) were denied in their entirety. No civil penalties were assessed due to the tumultuous relationship of the parties. The Tribunal ordered that the Association shall not reimburse the Petitioner's filing fees.
Why this result: Petitioner failed to prove recording violations or entitlement to the roster given privacy concerns. Filing fees were not reimbursed despite partial success.
Key Issues & Findings
Failure to provide records (April 2021, Nov 2021, Feb 2022 requests)
Petitioner alleged the HOA failed to provide various records including survey bids and cleanup volunteer responses. The ALJ found the Association was required to provide the survey request records as the Secretary/Treasurer was acting in his capacity as a Board Member, regardless of whether the management company possessed them.
Orders: Petition 1 granted in relevant parts regarding survey requests; remaining portions denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_win
Meeting recording violations
Petitioner alleged the HOA forbade video/audio recording and provided altered recordings. The ALJ found the Petitioner did not sustain his burden of proof regarding this violation.
Orders: Petition 2 denied in its entirety.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Failure to provide membership roster
Petitioner requested a membership roster. The ALJ denied this petition in its entirety, noting evidence that the Association stopped disseminating rosters due to complaints about Petitioner's unsolicited emails.
Orders: Petition 3 denied in its entirety.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Failure to provide records (Oct 2021-Mar 2022 requests)
Petitioner requested various records including emails regarding a Netflix filming event. The ALJ found the Association violated the statute by failing to provide Board Member communications regarding the event, as the member was acting in his capacity as a Board Member.
Orders: Petition 4 granted in relevant parts regarding Board Member communications; remaining portions denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_win
Audio Overview
Decision Documents
22F-H2222050-REL Decision – 1000763.pdf
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22F-H2222050-REL Decision – 1002291.pdf
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22F-H2222050-REL Decision – 1035796.pdf
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22F-H2222050-REL Decision – 980693.pdf
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22F-H2222050-REL Decision – 981784.pdf
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22F-H2222050-REL Decision – 982383.pdf
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22F-H2222050-REL Decision – 987368.pdf
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22F-H2222050-REL Decision – 987371.pdf
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22F-H2222050-REL Decision – 998623.pdf
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Briefing Doc – 22F-H2222050-REL
Briefing Document: Legal Proceedings and Testimony Regarding Desert Ranch HOA vs. Tom Bars
Executive Summary
This document synthesizes the testimony and legal findings from the consolidated matters of Case Nos. 22 FH222050 REL and 22 SH22254 REL, presided over by Administrative Law Judge (ALJ) Jenna Clark. The proceedings center on a dispute between homeowner Tom Bars (Petitioner) and the Desert Ranch Homeowners’ Association (Respondent), managed by Associated Asset Management (AAM).
The core of the dispute involves allegations that the HOA and AAM violated Arizona Revised Statutes (A.R.S.) §§ 33-1804 and 33-1805 by failing to provide complete records, prohibiting homeowners from recording meetings, and producing edited or incomplete audio/video recordings. The testimony of Lori Loch-Lee, Vice President of Client Services at AAM, highlights a significant transition from a self-managed association to professional management, which coincided with the adoption of more restrictive data privacy and recording policies.
Critical Takeaways:
• Recording Irregularities: Multiple board meeting recordings were found to be incomplete or contained abrupt cuts. AAM staff attributed these to technical errors or personal oversight (forgetting to start the recorder) rather than intentional editing.
• Access to Records: While the ALJ found that the majority of records requests were fulfilled, specific violations were identified regarding the failure to provide survey proposals and certain board communications.
• Privacy vs. Precedent: A significant conflict exists regarding homeowner rosters. Historically, the HOA provided unredacted rosters; however, under current management, AAM maintains that email addresses and phone numbers are private information and has withheld them from the Petitioner.
• Homeowner Recording Restrictions: The HOA implemented a policy and board resolution asserting its own recording as the “official” version and used Zoom settings to block homeowners from recording meetings directly to their devices.
——————————————————————————–
Witness Profile: Lori Loch-Lee
Lori Loch-Lee serves as the Vice President of Client Services for Associated Asset Management (AAM). She has been employed in this capacity for over nine years and has acted as the community manager for Desert Ranch HOA since approximately April 1, 2018.
Key Responsibilities:
• Financial management and accounting coordination with CPAs.
• Production of financial statements.
• Record-keeping for the association (though she clarifies that AAM is primarily a financial management company for this specific client).
• Attending board meetings and recording them via Zoom.
——————————————————————————–
Analysis of Record-Keeping and Transparency Disputes
1. Incomplete and “Edited” Meeting Recordings
A primary point of contention is the integrity of meeting recordings provided to the Petitioner.
• April 27, 2021 Meeting: The recording provided was 36 minutes and 48 seconds long, whereas the meeting itself lasted approximately one hour and six minutes. Loch-Lee testified that she “forgot to start the recording at the very beginning” and denied any intentional editing.
• September 2020 Meeting: This meeting involved an incident where the Petitioner was removed from a board member’s home. Testimony and video evidence showed an “abrupt cut” in the recording at 17 minutes and 20 seconds and another at 30 minutes and 24 seconds.
• Witness Defense: Loch-Lee repeatedly stated, “I do not edit anything. I’m lucky I turned it on and turn it off. I don’t know how to edit.” She attributed cuts to the Zoom platform or the suspension of meetings when disruptions occurred.
2. Policies on Homeowner Recording
The Petitioner alleged that the HOA violated statutory rights by prohibiting homeowners from making their own recordings.
• Technological Prohibitions: Evidence (Exhibit P243) showed a Zoom notification stating: “This meeting is not allowed to be recorded to your device. Please stop recording to continue the meeting.” Loch-Lee claimed she had never seen this message from her end.
• Board Resolutions: The board adopted a resolution stating that the HOA’s recording is the “official” version. Loch-Lee interpreted this as a means to prevent “intimidating” behavior by homeowners who would bring equipment and “cameras on their hats” to the business office, causing distress to staff.
• Consistency of Enforcement: While Loch-Lee stated she could not stop a homeowner from recording on their own side of a phone line, the HOA maintained a policy (Exhibit P71) that “no audio or visual equipment can be used by individual members of the association.”
3. Homeowner Roster and Data Privacy
The dispute over the membership roster highlights a shift in HOA policy following the hiring of AAM.
• Historical Context: Prior to 2018, the association (then self-managed) voluntarily provided unredacted rosters, including emails and phone numbers, to all homeowners.
• Current Stance: Loch-Lee testified that she treats emails and phone numbers as “private and personal and confidential.” She stated, “I have not been providing homeowner rosters to homeowners when they ask for it because it’s not a directory.”
• The “Opt-In” vs. “Opt-Out” Conflict: The Petitioner argued the association historically used an “opt-out” provision for sharing info. Loch-Lee contended that AAM uses an “opt-in” system through their mobile app, where homeowners must choose to share contact information.
• Justification for Restriction: The HOA alleged that the Petitioner used previous rosters to “blast” unsolicited emails to members, leading the board to stop disseminating the information in 2018.
——————————————————————————–
4. Bids and Financial Records
The Petitioner sought copies of various bids, particularly for street work and common area surveys.
• Retention Policy: Loch-Lee testified that she only retains bids if they are “contracted.” If the board procures a bid but does not accept it, she claims she does not keep it in the official files.
• Holbrook Asphalt Bid: Despite claims of not having certain bids, a proposal for $10,738.60 from Holbrook Asphalt was identified with Loch-Lee’s name in the “attention” line. She stated she had “no idea” why she was listed and denied destroying any documents.
——————————————————————————–
Legal Findings (ALJ Order – Case No. HO22-22050/22054)
The ALJ’s final order, issued February 21, 2023, summarized the findings based on the evidence and testimony provided during the January 2023 hearings.
Statutory Requirements (A.R.S. Title 33)
Statute
Requirement
§ 33-1804(A)
Meetings must be open to all members; any person may tape record or use a video camera subject to reasonable board rules.
§ 33-1805(A)
All financial and other records shall be made reasonably available for examination within 10 business days.
§ 33-1805(B)
Certain records may be withheld (e.g., attorney-client privilege, pending litigation, personal/health/financial info of individual members).
Summary of Rulings
• Records Compliance: The ALJ found that the “overwhelming majority” of the Petitioner’s records requests were complied with fully and timely.
• Specific Violations: The Respondent failed to timely and completely fulfill requests regarding:
◦ Survey proposals (April 27, 2021).
◦ Specific board communications involving Brian Schoeffler (December 07, 2021).
• Recordings: The ALJ noted that the beginning of the April 27 meeting was missing and that the September 2020 recording was stopped twice, but did not find sufficient evidence of “purposeful” or “flagrant” editing.
• Outcome: The ALJ ordered the Respondent to provide the missing survey proposals and communications. However, the request to levy civil penalties against the HOA was denied, and the Respondent was not required to reimburse the Petitioner’s filing fees.
——————————————————————————–
Key Quotes from Testimony
On Recording Errors: “I provided the recording that I had and I forgot to start it at the very beginning. I believe this is the meeting that it happened in… I simply forgot.” — Lori Loch-Lee
On Historical Transparency: “That was then… I don’t know of any specific change, sir. What I do know is when I started managing, there’s never been any conversation about homeowner rosters.” — Lori Loch-Lee, responding to evidence that rosters were previously public.
On Data Privacy: “I’ve never sent a I don’t recall ever sending a redacted one. I have sent recently a roster with just the names on it, but homeowner addresses and email s are considered private information. I’ve always been trained that way.” — Lori Loch-Lee
On Recording Prohibitions: “I will remind you that no tape recording nor visual recording can or will be done in this business office… [the Petitioner’s family] were being very intimidating and causing a ruckus. So that’s when we stopped it.” — Lori Loch-Lee
Case Participants
Petitioner Side
Tom Barrs(Petitioner) Homeowner
Jonathan A. Dessaules(Legal Counsel for Petitioner) Dessaules Law Group
Respondent Side
Desert Ranch Homeowners Association(Respondent) HOA
B. Austin Baillio(Legal Counsel for Respondent) Maxwell & Morgan, P.C.
CC&R’s Article XI, Sections 1, 2, and 3; Summit View Community Plat Notes
Outcome Summary
The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the walls were located in a common area. No survey evidence was presented to determine whether the walls were on the individual lots (Owner responsibility) or the common area (HOA responsibility).
Key Issues & Findings
HOA failure to maintain perimeter walls and improper charging of homeowners for repairs.
Petitioner alleged that the HOA (SVHA) violated CC&R Article XI, Sections 1, 2, and 3, and the Community Plat Notes by failing to maintain the subdivision perimeter walls and charging homeowners for repairs, arguing the walls abutted and were part of the Common Area (NAOS), making maintenance the HOA's responsibility.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
CC&R Article XI, Section 1
CC&R Article XI, Section 2
CC&R Article XI, Section 3
Summit View Community Plat Notes
Analytics Highlights
Topics: HOA, Maintenance, Perimeter Walls, CC&R, Common Area, Burden of Proof, NAOS, Lot Line Dispute
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standards
burden of proof
procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
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 § 5 (1960)
Topic Tags
legal standards
evidence
hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
maintenance
common areas
boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
evidence
surveys
property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
maintenance
construction
HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
cc&rs
plat maps
interpretation
Case
Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standards
burden of proof
procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
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 § 5 (1960)
Topic Tags
legal standards
evidence
hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
maintenance
common areas
boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
evidence
surveys
property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
maintenance
construction
HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
cc&rs
plat maps
interpretation
Case
Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Carolyn Wefsenmoe(petitioner) Appeared via Google Meet on her own behalf
Respondent Side
Chad M. Gallacher(HOA attorney) Maxwell & Morgan, P.C.
Bick Smith(witness/board president) Summit View Homeowner's Association Also referred to as Vic Smith; testified for Respondent
Henry(board member) Summit View Homeowner's Association Discussed erosion issues; toured walls with Bick Smith
Denise(board member) Summit View Homeowner's Association Participated in special board meeting
Larry Burns(property manager/GM) Summit View Homeowner's Association General Manager who wrote community painting update; participated in board meeting
Neutral Parties
Adam D. Stone(ALJ) OAH
Louis Dettorre(Commissioner) Arizona Department of Real Estate Transmitted minute entry to
James Knupp(Acting Commissioner) Arizona Department of Real Estate Transmitted order to
Susan Nicolson(Commissioner) Arizona Department of Real Estate Transmitted ALJ decision to
AHansen(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
vnunez(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
djones(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
labril(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
c. serrano(OAH Staff) OAH Signed minute entries for transmission
Helen Purcell(county recorder) Maricopa County Recorded Amended CC&R Declaration in 2004
Maria Rosana Pira(notary public) Maricopa County Notarized Amended CC&R and Bylaws in 2004
Other Participants
Elelliana(unknown) Correspondent in objected-to email exhibit
Beth Mulcahy(attorney) Mulcahy Law Firm, P.C. Firm filed the Amended CC&R Declaration in 2004
LizzieG(customer service rep) Brown Community Management Customer service contact listed on billing document
CC&Rs Section 4.3 Storage, Section 4.17 Motor Vehicles, Community Guidelines 2007
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that Petitioner failed to establish by a preponderance of the evidence that the North Canyon Ranch Owners Association violated its governing documents regarding the storage of a truck camper.
Why this result: Petitioner failed to meet the burden of proof. The ALJ concluded that the Petitioner's 'truck camper' falls within the scope of prohibited items, specifically as 'other similar equipment' under the CC&Rs and rules, making her argument one of semantics.
Key Issues & Findings
Whether the HOA violated its governing documents by issuing a fine for parking a mounted truck camper, based on the Petitioner's claimed 'legal loophole'.
Petitioner claimed a 'legal loophole' existed because the governing documents prohibited 'unmounted pickup camper units' or 'detached campers,' but not her currently mounted/attached truck camper. The ALJ found the truck camper was unequivocally prohibited as 'other similar equipment' under the CC&Rs and Rules, dismissing the petition.
Orders: Petition dismissed. No action is required of Respondent in this matter.
This legal transcript and subsequent judicial decision detail a dispute between homeowner Shawna Townsend and the North Canyon Ranch Owners Association regarding a fine for storing a truck camper in public view. Townsend argued that her equipment fell into a legal loophole because the association’s rules specifically prohibited “unmounted” or “detached” campers, while hers remained attached to her vehicle. In contrast, the Homeowners Association maintained that the camper violated multiple regulations prohibiting the storage of recreational type vehicles and similar equipment in driveways. During the administrative hearing, testimony was provided regarding the enforcement consistency of the community’s governing documents and the specific definitions of recreational vehicles under Arizona law. Ultimately, the Administrative Law Judge ruled in favor of the association, determining that the truck camper was clearly prohibited as “similar equipment” regardless of its attachment status. The petition was dismissed, confirming that the association acted within its authority when issuing the violation notices and fines.
What are the core legal arguments regarding the truck camper loophole?
How did the Administrative Law Judge rule on the association’s enforcement?
How do North Canyon Ranch guidelines define recreational vehicles and storage?
Thursday, February 12
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Today • 2:12 PM
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23F-H018-REL
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This legal transcript and subsequent judicial decision detail a dispute between homeowner Shawna Townsend and the North Canyon Ranch Owners Association regarding a fine for storing a truck camper in public view. Townsend argued that her equipment fell into a legal loophole because the association’s rules specifically prohibited “unmounted” or “detached” campers, while hers remained attached to her vehicle. In contrast, the Homeowners Association maintained that the camper violated multiple regulations prohibiting the storage of recreational type vehicles and similar equipment in driveways. During the administrative hearing, testimony was provided regarding the enforcement consistency of the community’s governing documents and the specific definitions of recreational vehicles under Arizona law. Ultimately, the Administrative Law Judge ruled in favor of the association, determining that the truck camper was clearly prohibited as “similar equipment” regardless of its attachment status. The petition was dismissed, confirming that the association acted within its authority when issuing the violation notices and fines.
What are the core legal arguments regarding the truck camper loophole?
How did the Administrative Law Judge rule on the association’s enforcement?
How do North Canyon Ranch guidelines define recreational vehicles and storage?
Thursday, February 12
Save to note
Today • 2:12 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Shawna Townsend(petitioner) Appeared on her own behalf; also referred to as Shauna Townsen or Miss Townsen
Michael Townsen(co-owner) Co-owner and recipient of violation notices with Petitioner
Respondent Side
Haidyn DiLorenzo(HOA attorney) Represented Respondent North Canyon Ranch Owners Association
Justin DeLuca(HOA attorney) Represented Respondent North Canyon Ranch Owners Association
Josey Perkins(community manager/witness) North Canyon Ranch Owners Association Community Manager for the association, testified as a witness (also referred to as Joy Perkins)
Riner(board member) North Canyon Ranch Owners Association Board of Directors Made motion to deny petitioner's appeal
Robera Holler(board member) North Canyon Ranch Owners Association Board of Directors Seconded motion to deny petitioner's appeal
Petra Paul(Executive VP of Management Services) Management Services Vice President of management services, communicated with Petitioner about the appeal
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Listed as contact for transmission of the decision
Neutral Parties
Sondra J. Vanella(ALJ) OAH Administrative Law Judge (also referred to as Sandra Vanella)
James Knupp(Acting Commissioner, ADRE) Arizona Department of Real Estate Recipient of the decision
