Category Archives: HOA Cases

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

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Case Summary

Case ID 23F-H033-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-14
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge dismissed the Petition, finding that the Respondent HOA did not violate Article XV of the Articles of Incorporation during the dissolution vote. The required 2/3 majority was achieved with 11 votes in favor, and the requirement for signed assent was met by the signatures provided on the ballot envelopes.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S. Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty, Esq.

Alleged Violations

Articles of Incorporation, Section XV

Outcome Summary

The Administrative Law Judge dismissed the Petition, finding that the Respondent HOA did not violate Article XV of the Articles of Incorporation during the dissolution vote. The required 2/3 majority was achieved with 11 votes in favor, and the requirement for signed assent was met by the signatures provided on the ballot envelopes.

Why this result: Petitioner failed to meet the burden of proof to establish the alleged violation by a preponderance of the evidence.

Key Issues & Findings

Violation of voting requirements for dissolution of the Homeowners Association

Petitioner alleged that the dissolution vote was invalid because the ballots were not signed, and Respondent failed to achieve the 2/3 authorized votes needed, noting only 9 ballots were cast for dissolution. Respondent argued that 11 votes were cast, meeting the 2/3 requirement (10 votes needed), and that signatures on the ballot envelopes satisfied the Article XV requirement for assent given in writing and signed by Owners.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • ARIZ. REV. STAT. section 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA, Articles of Incorporation, Voting Rights, Dissolution, Burden of Proof, Planned Community
Additional Citations:

  • A.R.S. § 32-2199
  • ARIZ. REV. STAT. section 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

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Video Overview

Audio Overview

Decision Documents

23F-H033-REL Decision – 1035350.pdf

Uploaded 2026-04-24T12:02:34 (55.1 KB)

23F-H033-REL Decision – 1049512.pdf

Uploaded 2026-04-24T12:02:39 (100.5 KB)

23F-H033-REL Decision – 1035350.pdf

Uploaded 2026-01-23T17:54:11 (55.1 KB)

23F-H033-REL Decision – 1049512.pdf

Uploaded 2026-01-23T17:54:15 (100.5 KB)

This summary details the administrative hearing held before Administrative Law Judge (ALJ) Sondra J. Vanella in the matter of *Clifford S. Burnes v. Saguaro Crest Homeowners' Association* (HOA), Docket No. 23F-H033-REL, on March 30, 2023.

Key Facts and Issue

The Petitioner, Clifford S. Burnes, alleged that the Saguaro Crest Homeowners’ Association violated its governing documents. The single, central issue set for hearing was whether the HOA's vote on December 11, 2021, regarding the dissolution of the HOA, “did not satisfy the voting requirement of Section XV (15) of the Articles of Incorporation”.

Section XV of the Articles of Incorporation requires that the Association may be dissolved with "assent given in writing and signed by Owners representing not less than two-thirds (2/3) of the authorized votes". The parties stipulated that 10 or more votes constituted 2/3 of the authorized votes (out of 15 authorized votes). Petitioner bore the burden of proof by a preponderance of the evidence.

Hearing Proceedings and Key Arguments

  1. Petitioner's Argument: Petitioner Burnes argued the vote failed on two main legal points:
  • Insufficient Votes: Petitioner contended that only nine (9) ballots were cast in favor of dissolution, which did not meet the 2/3 requirement. He further asserted that the board improperly declared the motion passed and changed the vote count from nine (announced at the meeting) to eleven (reported in the meeting minutes).
  • Unsigned Ballots: Petitioner argued that the dissolution vote failed because the ballots themselves were not signed, violating Article XV’s requirement for assent "signed by Owners". He also argued that owners of multiple lots should have been issued separate ballots for each vote.
  1. Respondent's Argument: The Respondent (HOA), represented by John T. Crotty, Esq., and through the testimony of HOA President Sarina Martinez, countered that the requirements were satisfied.
  • Vote Count Justified: Ms. Martinez testified that while nine ballots were received for dissolution, two of those ballots belonged to owners who owned two lots each, meaning those two ballots accounted for four votes. Citing the CCNRs (Article 2, Section 2.2 C1), Ms. Martinez confirmed that each owner is entitled to "one vote for each lot owned". This meant the total votes for dissolution were eleven (11), which exceeded the necessary 2/3 threshold (10 votes).
  • Signature Requirement Satisfied: Respondent argued that Article XV does not require the *ballot* itself to be signed. The ballots were distributed as a package with envelopes. Ms. Martinez confirmed that the required signatures, lot number(s), and date were obtained on the envelopes that contained the ballots, thereby satisfying the "assent given in writing and signed" provision.

Final Decision and Outcome

The Administrative Law Judge issued a decision on April 14, 2023, ruling in favor of the Respondent.

The ALJ found that 11 votes were cast on 9 ballots, which represented at least 2/3 of the authorized votes. The ALJ concluded that Article XV "does not specify that the ballot itself must signed," and because the signatures were contained on the envelopes corresponding to the ballots, the requirement for "assent given in writing and signed by Owners" was satisfied.

Petitioner failed to prove by a preponderance of the evidence that the Respondent violated Article XV of the Articles of Incorporation. Accordingly, the Petitioner’s Petition was dismissed.

Questions

Question

If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?

Short Answer

Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.

Detailed Answer

The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.

Alj Quote

Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • ballots
  • signatures
  • governing documents

Question

If I own multiple lots, do I need to submit a separate physical ballot for each lot?

Short Answer

No, unless you can cite specific legal authority or governing documents that require separate physical ballots.

Detailed Answer

The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.

Alj Quote

Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.

Legal Basis

Lack of citation to authority

Topic Tags

  • voting
  • multiple lots
  • ballots

Question

How are votes counted if some homeowners own more than one property?

Short Answer

Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.

Detailed Answer

The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.

Alj Quote

In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • vote counting
  • authorized votes

Question

Who is responsible for proving that the HOA violated the rules?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • burden of proof
  • legal standards
  • administrative hearing

Question

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

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.

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

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Case

Docket No
23F-H033-REL
Case Title
Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-14
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?

Short Answer

Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.

Detailed Answer

The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.

Alj Quote

Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • ballots
  • signatures
  • governing documents

Question

If I own multiple lots, do I need to submit a separate physical ballot for each lot?

Short Answer

No, unless you can cite specific legal authority or governing documents that require separate physical ballots.

Detailed Answer

The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.

Alj Quote

Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.

Legal Basis

Lack of citation to authority

Topic Tags

  • voting
  • multiple lots
  • ballots

Question

How are votes counted if some homeowners own more than one property?

Short Answer

Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.

Detailed Answer

The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.

Alj Quote

In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.

Legal Basis

Articles of Incorporation, Article XV

Topic Tags

  • voting
  • vote counting
  • authorized votes

Question

Who is responsible for proving that the HOA violated the rules?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • burden of proof
  • legal standards
  • administrative hearing

Question

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

Short Answer

It means the claim is more likely true than not.

Detailed Answer

The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.

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

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Case

Docket No
23F-H033-REL
Case Title
Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-14
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Also referred to as Clifford (Norm) S. Burnes

Respondent Side

  • John T. Crotty (HOA attorney)
    LAW OFFICES OF COLLIN T. WELCH
  • Esmeralda Sarina Ayala-Martinez (HOA President, witness)
    Saguaro Crest Homeowners' Association
    Also referred to as Sarina Martinez or Serena Martinez

Neutral Parties

  • Sondra J. Vanella (ALJ)
  • Susan Nicolson (Commissioner)
    ADRE
  • Tammy I (ALJ)
    Mentioned as presiding over related case

Other Participants

  • AHansen (ADRE staff)
    ADRE
  • vnunez (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • labril (ADRE staff)
    ADRE

Carl-Mitchell Smoot v. Los Reyes Homeowners Association Inc.

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Case Summary

Case ID 22F-H2222063-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Sondra J. Vanella
Outcome The ALJ affirmed the Petitioner's position that the HOA's denial of artificial turf violated CC&Rs Section 8.8. The ALJ found that because maintenance was shared and the HOA's CC&Rs cannot contradict the superior McCormick Ranch rules (which allow artificial turf), the denial was improper and the HOA failed to meet the exemption requirements under A.R.S. § 33-1819(B).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Smoot Carl-Mitchell Counsel Stewart F. Gross, Esq.
Respondent Los Reyes Homeowners Association Inc. Counsel Michael S. McLeran, Esq.

Alleged Violations

A.R.S. § 33-1819; CC&Rs Article VIII, Section 8.8

Outcome Summary

The ALJ affirmed the Petitioner's position that the HOA's denial of artificial turf violated CC&Rs Section 8.8. The ALJ found that because maintenance was shared and the HOA's CC&Rs cannot contradict the superior McCormick Ranch rules (which allow artificial turf), the denial was improper and the HOA failed to meet the exemption requirements under A.R.S. § 33-1819(B).

Key Issues & Findings

Architectural disapproval of landscaping plans to install artificial turf

Petitioner alleged Respondent's disapproval of his landscaping plans to install artificial turf violated the CC&Rs and was unreasonable under Arizona law. The ALJ concluded the disapproval violated CC&Rs Section 8.8 because the maintenance responsibility was shared, not exclusive to the HOA, and the HOA's CC&Rs must not contradict McCormick Ranch's Rules, which permit artificial turf.

Orders: Petitioner’s petition is affirmed. Respondent must reimburse Petitioner the $500.00 filing fee. Respondent is directed to comply with the requirements of CC&Rs Section 8.8 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1819
  • CC&Rs Article VIII, Section 8.8
  • CC&Rs Article 9.4
  • CC&Rs Article 6.2

Analytics Highlights

Topics: artificial turf, landscaping, CC&Rs, shared maintenance, architectural control, McCormick Ranch
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 33-1819
  • A.A.C. R2-19-119
  • CC&Rs Article VIII, Section 8.8
  • CC&Rs Article 9.4
  • CC&Rs Article 6.2

Video Overview

Audio Overview

Decision Documents

22F-H2222063-REL Decision – 1005074.pdf

Uploaded 2026-05-01T22:04:27 (54.0 KB)

22F-H2222063-REL Decision – 1005155.pdf

Uploaded 2026-05-01T22:04:30 (6.9 KB)

22F-H2222063-REL Decision – 1023283.pdf

Uploaded 2026-05-01T22:04:36 (54.3 KB)

22F-H2222063-REL Decision – 1029871.pdf

Uploaded 2026-05-01T22:04:42 (52.1 KB)

22F-H2222063-REL Decision – 1049042.pdf

Uploaded 2026-05-01T22:04:45 (175.7 KB)

22F-H2222063-REL Decision – 992691.pdf

Uploaded 2026-05-01T22:04:50 (48.6 KB)

22F-H2222063-REL Decision – 992789.pdf

Uploaded 2026-05-01T22:04:54 (5.9 KB)

22F-H2222063-REL Decision – 1005074.pdf

Uploaded 2026-01-23T17:49:14 (54.0 KB)

22F-H2222063-REL Decision – 1005155.pdf

Uploaded 2026-01-23T17:49:19 (6.9 KB)

22F-H2222063-REL Decision – 1023283.pdf

Uploaded 2026-01-23T17:49:22 (54.3 KB)

22F-H2222063-REL Decision – 1029871.pdf

Uploaded 2026-01-23T17:49:25 (52.1 KB)

22F-H2222063-REL Decision – 1049042.pdf

Uploaded 2026-01-23T17:49:29 (175.7 KB)

22F-H2222063-REL Decision – 992691.pdf

Uploaded 2026-01-23T17:49:30 (48.6 KB)

22F-H2222063-REL Decision – 992789.pdf

Uploaded 2026-01-23T17:49:32 (5.9 KB)

The hearing concerned the matter of Carl-Mitchell Smoot (Petitioner) versus Los Reyes Homeowners Association, Inc. (Respondent), conducted before the Office of Administrative Hearings (OAH). The proceedings took place over two dates: January 25, 2023, and a further hearing on March 29, 2023.

Key Facts and Main Issue

The main issue was whether the Respondent HOA’s architectural disapproval of Petitioner’s plans to install artificial turf in his front yard violated Los Reyes CC&Rs Article VIII, Section 8.8, and was unreasonable under Arizona law. Los Reyes is a sub-association of the McCormick Ranch Property Owners Association ("McCormick Ranch"). Petitioner sought the redesign for water conservation and aesthetic improvement.

Key Arguments

  1. Respondent's Position: The HOA justified the denial primarily based on A.R.S. § 33-1819(B), which allows an association to prohibit artificial turf if it is installed in an area the association is "required to maintain or irrigate". Respondent cited its CC&Rs Section 6.2, which states the HOA "shall maintain the landscaping in the front yards of the Lots". Respondent also argued that its CC&Rs referenced the "growth of turf" (Section 8.8), anticipating only natural grass, and that artificial turf would disrupt the harmony and uniformity of the community, where all front yards consist of natural grass. Additionally, early denials cited the plans as being "conceptual" and lacking vital information.
  1. Petitioner's Position: Petitioner argued that the Los Reyes CC&Rs are silent regarding the prohibition of artificial turf. Petitioner emphasized that the Los Reyes CC&Rs Article 9.4 incorporates the superior McCormick Ranch Restrictions and Architectural Control Criteria, stipulating that Los Reyes’ rules "shall not contradict them". McCormick Ranch criteria explicitly permit artificial turf subject to quality standards and limits (e.g., typically not more than 30% of the front yard area), a condition Petitioner claimed his plan met. Petitioner further argued that the A.R.S. § 33-1819(B) exemption did not apply because maintenance responsibility is shared: while the HOA handles mowing and trimming (Section 6.2), the owner pays for and controls the irrigation water (Section 8.8).

Outcome and Legal Points

The Administrative Law Judge (ALJ) Sondra J. Vanella issued a decision on April 13, 2023, affirming Petitioner’s petition.

The ALJ concluded that Petitioner established by a preponderance of the evidence that the disapproval violated the CC&Rs. Key legal findings included:

  • The maintenance of the front yards is shared between the homeowners (who pay for and control irrigation) and the Respondent HOA.
  • Respondent’s CC&Rs are silent as to artificial turf and do not prohibit it.
  • Los Reyes cannot contradict the McCormick Ranch Rules and Regulations, which permit artificial turf, as mandated by Los Reyes CC&Rs Article 9.4.
  • The ALJ found that the installation of artificial turf, under the circumstances, would not be contrary to the "overall goal of harmony of external design".

The Order required Respondent to comply with the CC&Rs Section 8.8 going forward and to reimburse Petitioner the $500.00 filing fee.

Questions

Question

Can my HOA prohibit artificial turf if the CC&Rs don't specifically ban it?

Short Answer

Likely not. If the CC&Rs are silent regarding artificial turf and do not explicitly prohibit it, the HOA may not be able to enforce a ban, especially if a master association permits it.

Detailed Answer

The Administrative Law Judge ruled that because the HOA's CC&Rs were silent regarding artificial turf and did not explicitly prohibit it, they could not ban it. This was further reinforced because the master association's rules, which the sub-association could not contradict, explicitly permitted artificial turf.

Alj Quote

Although Respondent’s CC&Rs are silent as to artificial turf, they do not prohibit artificial turf and they shall not contradict McCormick Ranch’s Rules and Regulations.

Legal Basis

CC&Rs Construction; A.R.S. § 33-1819

Topic Tags

  • artificial turf
  • CC&Rs interpretation
  • architectural requests

Question

Can a sub-association ban artificial turf if the master association allows it?

Short Answer

No, generally a sub-association cannot contradict the master association's rules if its own governing documents prohibit such contradictions.

Detailed Answer

In this case, the sub-association's CC&Rs incorporated the master association's rules and stated they could not contradict them. Since the master association allowed artificial turf, the sub-association could not prohibit it.

Alj Quote

McCormick Ranch allows artificial turf, and Respondent cannot contradict McCormick Ranch’s Rules and Regulations according to Respondent’s CC&Rs Section 9.4.

Legal Basis

CC&Rs Section 9.4; Governing Documents Hierarchy

Topic Tags

  • master association
  • sub-association
  • conflicting rules

Question

Does the HOA mowing my front lawn give them the exclusive right to ban artificial turf under state law?

Short Answer

Not necessarily, if the maintenance is shared. If the homeowner is responsible for irrigation and replacing plants, the HOA does not have exclusive maintenance rights to prohibit turf under A.R.S. § 33-1819(B).

Detailed Answer

The HOA argued that because they mowed the lawn, they could prohibit artificial turf under A.R.S. § 33-1819(B). However, the judge found that because the homeowner paid for water and was responsible for keeping plants healthy (shared maintenance), the HOA could not use the maintenance statute to completely ban turf.

Alj Quote

In this case, it is undisputed that Petitioner pays for and can control the irrigation of his property. It is also undisputed that the maintenance of the front yards of the homes within Respondent is shared between the individual homeowners and Respondent.

Legal Basis

A.R.S. § 33-1819(B); CC&Rs Section 8.8

Topic Tags

  • maintenance responsibility
  • artificial turf
  • state statute

Question

Can an HOA deny an architectural request claiming it disrupts the 'harmony' of the neighborhood?

Short Answer

They can claim it, but a judge may overrule them if the evidence shows the improvement (like artificial turf) wouldn't actually violate the goal of harmony.

Detailed Answer

The HOA denied the request based on the 'overall goal of harmony,' arguing that artificial turf would look different from the natural grass in the neighborhood. The judge reviewed the evidence and concluded that installing artificial turf would not actually be contrary to the goal of harmony.

Alj Quote

The Administrative Law Judge further concludes based on the evidence presented at hearing, that the installation of artificial turf would not be contrary to the “overall goal of harmony of external design” as asserted by Respondent.

Legal Basis

Subjective Standards; Harmony Provisions

Topic Tags

  • architectural control
  • harmony
  • aesthetics

Question

Who has the burden of proof when a homeowner challenges an HOA decision?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation by a preponderance of the evidence.

Detailed Answer

The decision explicitly states that in these administrative hearings, the Petitioner (the homeowner filing the complaint) bears the burden of proving that the HOA violated its governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated its CC&Rs Article VIII, Section 8.8.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to reimburse the $500.00 filing fee the homeowner paid to bring the case.

Alj Quote

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

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Can the HOA deny my plans for being 'conceptual' if I provided specific details?

Short Answer

No. If the plans include specific information like plant types, numbers, and dimensions, the HOA cannot validly deny them as merely 'conceptual'.

Detailed Answer

The HOA denied the application claiming plans were 'conceptual.' The judge noted the plans contained specific types and numbers of plants, dimensions, and detailed renderings, and ultimately ruled the disapproval was a violation.

Alj Quote

Those plans contain the types and number of plants proposed, and the dimensions and shape of the area of artificial turf, and detailed renderings.

Legal Basis

Reasonableness of Approval Process

Topic Tags

  • architectural plans
  • application denial
  • reasonableness

Case

Docket No
22F-H2222063-REL
Case Title
Smoot Carl-Mitchell v. Los Reyes Homeowners Association, Inc.
Decision Date
2023-04-13
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA prohibit artificial turf if the CC&Rs don't specifically ban it?

Short Answer

Likely not. If the CC&Rs are silent regarding artificial turf and do not explicitly prohibit it, the HOA may not be able to enforce a ban, especially if a master association permits it.

Detailed Answer

The Administrative Law Judge ruled that because the HOA's CC&Rs were silent regarding artificial turf and did not explicitly prohibit it, they could not ban it. This was further reinforced because the master association's rules, which the sub-association could not contradict, explicitly permitted artificial turf.

Alj Quote

Although Respondent’s CC&Rs are silent as to artificial turf, they do not prohibit artificial turf and they shall not contradict McCormick Ranch’s Rules and Regulations.

Legal Basis

CC&Rs Construction; A.R.S. § 33-1819

Topic Tags

  • artificial turf
  • CC&Rs interpretation
  • architectural requests

Question

Can a sub-association ban artificial turf if the master association allows it?

Short Answer

No, generally a sub-association cannot contradict the master association's rules if its own governing documents prohibit such contradictions.

Detailed Answer

In this case, the sub-association's CC&Rs incorporated the master association's rules and stated they could not contradict them. Since the master association allowed artificial turf, the sub-association could not prohibit it.

Alj Quote

McCormick Ranch allows artificial turf, and Respondent cannot contradict McCormick Ranch’s Rules and Regulations according to Respondent’s CC&Rs Section 9.4.

Legal Basis

CC&Rs Section 9.4; Governing Documents Hierarchy

Topic Tags

  • master association
  • sub-association
  • conflicting rules

Question

Does the HOA mowing my front lawn give them the exclusive right to ban artificial turf under state law?

Short Answer

Not necessarily, if the maintenance is shared. If the homeowner is responsible for irrigation and replacing plants, the HOA does not have exclusive maintenance rights to prohibit turf under A.R.S. § 33-1819(B).

Detailed Answer

The HOA argued that because they mowed the lawn, they could prohibit artificial turf under A.R.S. § 33-1819(B). However, the judge found that because the homeowner paid for water and was responsible for keeping plants healthy (shared maintenance), the HOA could not use the maintenance statute to completely ban turf.

Alj Quote

In this case, it is undisputed that Petitioner pays for and can control the irrigation of his property. It is also undisputed that the maintenance of the front yards of the homes within Respondent is shared between the individual homeowners and Respondent.

Legal Basis

A.R.S. § 33-1819(B); CC&Rs Section 8.8

Topic Tags

  • maintenance responsibility
  • artificial turf
  • state statute

Question

Can an HOA deny an architectural request claiming it disrupts the 'harmony' of the neighborhood?

Short Answer

They can claim it, but a judge may overrule them if the evidence shows the improvement (like artificial turf) wouldn't actually violate the goal of harmony.

Detailed Answer

The HOA denied the request based on the 'overall goal of harmony,' arguing that artificial turf would look different from the natural grass in the neighborhood. The judge reviewed the evidence and concluded that installing artificial turf would not actually be contrary to the goal of harmony.

Alj Quote

The Administrative Law Judge further concludes based on the evidence presented at hearing, that the installation of artificial turf would not be contrary to the “overall goal of harmony of external design” as asserted by Respondent.

Legal Basis

Subjective Standards; Harmony Provisions

Topic Tags

  • architectural control
  • harmony
  • aesthetics

Question

Who has the burden of proof when a homeowner challenges an HOA decision?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation by a preponderance of the evidence.

Detailed Answer

The decision explicitly states that in these administrative hearings, the Petitioner (the homeowner filing the complaint) bears the burden of proving that the HOA violated its governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated its CC&Rs Article VIII, Section 8.8.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal procedure

Question

If I win my case against the HOA, can I get my filing fee back?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to reimburse the $500.00 filing fee the homeowner paid to bring the case.

Alj Quote

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

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Can the HOA deny my plans for being 'conceptual' if I provided specific details?

Short Answer

No. If the plans include specific information like plant types, numbers, and dimensions, the HOA cannot validly deny them as merely 'conceptual'.

Detailed Answer

The HOA denied the application claiming plans were 'conceptual.' The judge noted the plans contained specific types and numbers of plants, dimensions, and detailed renderings, and ultimately ruled the disapproval was a violation.

Alj Quote

Those plans contain the types and number of plants proposed, and the dimensions and shape of the area of artificial turf, and detailed renderings.

Legal Basis

Reasonableness of Approval Process

Topic Tags

  • architectural plans
  • application denial
  • reasonableness

Case

Docket No
22F-H2222063-REL
Case Title
Smoot Carl-Mitchell v. Los Reyes Homeowners Association, Inc.
Decision Date
2023-04-13
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carl-Mitchell Smoot (petitioner)
    Los Reyes Homeowners Association, Inc. (Member)
    Former HOA President/Treasurer
  • Stewart F. Gross (petitioner attorney)
    Law Offices of Stewart F. Gross, PLLC

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
  • Denise Mueller (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA Vice President; ALC Member
  • Dawn Feigert (property manager/witness)
    Trestle Management Group
    Senior Manager at HOA management company
  • Timothy Fischer (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA Treasurer; ALC Member
  • Kirk Nelson (board member/witness)
    Los Reyes Homeowners Association, Inc.
    HOA President; ALC Member
  • Jan Greenfield (board member)
    Los Reyes Homeowners Association, Inc.
    Former ARC Chair

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Presided over hearings and issued final decision
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
    Listed in transmission records prior to final decision
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
    Listed in final decision transmission
  • Tammy L. Eigenheer (ALJ)
    OAH
    Presided over initial continuances
  • c. serrano (OAH Staff)
    OAH
    Document processor

Other Participants

  • Valerie (McCormick Ranch Staff)
    McCormick Ranch Property Owners Association
    Contact regarding compliance

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

Posted on by

Case Summary

Case ID 23F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Adam D. Stone
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty

Alleged Violations

SCHA Bylaws Article 2.1

Outcome Summary

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)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Analytics Highlights

Topics: HOA, Bylaws, Election Dispute, Dissolution, Annual Meeting, Burden of Proof, Waiver
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. 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)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Decision Documents

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-04-24T12:01:26 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-04-24T12:01:32 (114.7 KB)

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-01-23T17:53:49 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-01-23T17:53:51 (114.7 KB)

This summary concerns the hearing held before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings (OAH) on March 29, 2023, in the matter of *Clifford S Burnes v. Saguaro Crest Homeowners' Association* (SCHA), Docket No. 23F-H031-REL.

Key Facts and Main Issues

The central issue was whether the Saguaro Crest Homeowners' Association (Respondent) violated its Bylaws, specifically Article 2.1, by failing to hold Board of Directors elections at the annual meeting on December 11, 2021.

Article 2.1 mandates that an annual meeting "shall be held at least every twelve (12) months… for the purpose of electing or announcing the results of the election of Directors and transacting such other business as may properly come before the meeting".

Key facts established during the hearing include:

  1. The annual meeting was held on December 11, 2021.
  2. At that meeting, the voting members properly approved a vote to dissolve the SCHA.
  3. The Board President and Vice President, whose terms were ending, volunteered to remain in their positions to oversee the dissolution process.
  4. No elections were held for the subsequent 2022 calendar year.
  5. Petitioner Clifford S. Burnes was present at the meeting but did not voice an objection to the board members remaining or to the lack of elections at that time.

Key Arguments

Petitioner's Argument: Petitioner Burnes argued that the use of the word "shall" and the phrase "for the purpose of electing" in Article 2.1 constituted a requirement for elections to be held annually, and the SCHA violated this bylaw. Mr. Burnes requested that the ALJ find in his favor, require the SCHA to comply, reimburse his filing fee, and impose a civil fine on the HOA.

Respondent's Argument: The SCHA, represented by John T. Crotty, denied the claim. The Respondent argued that Article 2.1 provided options: either holding elections *or* announcing the results of elections, and also permitted transacting "such other business," which included the majority-approved dissolution. The SCHA argued that had the dissolution vote failed, an election would have been held. Crucially, the SCHA argued that Mr. Burnes waived his claim of violation by failing to object at the meeting, despite his familiarity with the governing documents.

Legal Outcome and Final Decision

The ALJ determined that the Petitioner bore the burden of proving the violation of Article 2.1 by a preponderance of the evidence.

The ALJ concluded that the Petitioner failed to meet his burden of proof. The legal analysis found that Article 2.1, as written, did not strictly require elections to be held at the meeting itself, as it allowed for results to be announced. Furthermore, the ALJ noted that the clear approval of the dissolution vote meant there would be no need for a new board once the process was complete. The ALJ deemed the Petitioner’s failure to raise an objection at the meeting to be "most harmful" to his claim.

The ALJ issued an Order denying the Petitioner’s petition.

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23F-H031-REL

3 sources

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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23F-H031-REL

3 sources

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

3 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • 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.

Senol Pekin v. Artesian Ranch Community Association (ROOT)

Posted on by

Case Summary

Case ID 23F-H034-REL
Agency Arizona Department of Real Estate
Tribunal Arizona Office of Administrative Hearings
Decision Date 2023-04-10
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Senol Pekin Counsel Pro Se
Respondent Artesian Ranch Community Association Counsel Ashley Moscarello, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H034-REL Decision – 1044665.pdf

Uploaded 2026-04-28T11:14:03 (166.9 KB)

23F-H034-REL Decision – 1048179.pdf

Uploaded 2026-04-28T11:14:24 (106.9 KB)

Briefing Document: Pekin vs. Artesian Ranch Community Association (Consolidated Matters 23F-H034-REL and 23F-H037-REL)

Executive Summary

This briefing document synthesizes the testimony, evidentiary records, and final judicial decision regarding the consolidated legal matters between Petitioner Senol Pekin and Respondent Artesian Ranch Community Association. The dispute centers on allegations of governance failures, bylaw violations, and the infringement of member rights by the Association and its management firm, Associated Asset Management (AAM).

Following a hearing on March 20, 2023, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision on April 10, 2023. The ALJ found that the Association committed two specific violations: failing to hold its annual meeting in accordance with its bylaws and unlawfully prohibiting the recording of an open board meeting. While several other allegations regarding meeting organization and the muting of board members were dismissed, the Respondent was ordered to reimburse the Petitioner’s $1,000 filing fee for the established violations.

Key Case Entities and Witnesses

Entity/Individual Role Description
Senol Pekin Petitioner A homeowner and elected board member who filed the petitions.
Artesian Ranch Community Association Respondent The homeowners' association governing the community.
AAM, LLC Management Agent Associated Asset Management; provides portfolio management for the Association.
Mandy Rogers Witness Community Manager at AAM; manages 10 communities including Artesian Ranch.
Susanne Easterday Roskens Witness Board President of the Association.
Velva Moses-Thompson Presiding ALJ Administrative Law Judge who rendered the final decision.

Detailed Analysis of Key Themes

1. Bylaw Adherence vs. Operational Cadence

A central conflict in the testimony was the discrepancy between the Association's written bylaws and its actual practices. Article II, Section 2.3 of the Bylaws explicitly requires subsequent regular annual meetings to be held on the second Wednesday of April each year.

  • Evidence of Violation: The 2022 annual meeting was held in May.
  • Management Defense: Mandy Rogers testified that the meeting date was set based on a "cadence" established by previous management and board decisions influenced by COVID-19 delays. She argued that the provision requiring an April election for a January 1st term commencement was "unheard of" and that she had never seen such a requirement in her 17 years of experience.
  • Judicial Ruling: The ALJ rejected the Association’s defense that this was a "technical violation" with no harm. The ruling stated that A.R.S. § 10-3701(e) does not provide an exception for adhering to bylaws that require a set time for an annual meeting.
2. The Scope of Management Authority

Petitioner Pekin argued that the HOA Manager overstepped her authority by scheduling a board meeting on September 22, 2022, asserting that only board members possess such power under the bylaws.

  • Conflict of Testimony: Pekin claimed he never authorized the meeting. Conversely, Susanne Roskens testified that she requested the meeting via a phone call with Mandy Rogers to resolve a time-sensitive landscaping issue regarding "overseeding" that required a prompt decision.
  • Judicial Ruling: The ALJ ruled in favor of the Association on this issue, noting that Rogers, as an employee of the Community Manager, may act as an agent of the Board.
3. Transparency and Statutory Recording Rights

The October 24, 2022, board meeting featured a directive from management prohibiting attendees from recording the session.

  • Statutory Context: A.R.S. § 33-1804(A) explicitly permits persons attending open board meetings to audiotape or videotape the proceedings. It forbids the board from requiring advance notice for such recording.
  • Management Justification: Rogers claimed the prohibition was based on advice from the Association’s attorney to protect the privacy of executive session items being discussed in an open forum.
  • Judicial Ruling: The ALJ found this to be a clear violation of state law, confirming that the Association cannot preclude members from recording open portions of meetings.
4. Digital Governance and Board Member Participation

The Petitioner alleged he was silenced during Zoom meetings through the "mute" function, preventing him from voicing opposition to financial decisions, specifically regarding a $60,000 tree trimming budget.

  • The "Combative" Label: Rogers testified that the mute function was used because Pekin was "combative," "aggressive," and brought up "executive session material in an open session."
  • Witness Observations: Witness Shelly Nelson testified that Pekin was muted several times and that the tone of the meeting felt "antagonistic" and "not friendly."
  • Judicial Ruling: Despite the muting, the ALJ found that Pekin failed to prove he was not allowed to speak. The evidence showed he had several opportunities to speak during the meeting and even suggested follow-up discussions on agenda items.

Important Quotes with Context

"Your annual meeting for the past 3 years was on the wrong date per the bylaw. That's my answer." — Mandy Rogers, Community Manager Context: This admission followed a line of questioning by Pekin regarding the consistent failure to hold April meetings as mandated by the governing documents.

"I have never seen governing documents that call that out ever. Nor has anybody in my company or at the attorney's firm… it's unheard of." — Mandy Rogers, Community Manager Context: Rogers was defending the decision to ignore the bylaw requiring a January 1st start date for directors elected in April, arguing the document was an anomaly she was not initially aware of.

"By muting me they are inhibiting my effective participation functioning in the board… I am representing [homeowners] who have been severely molested by the mosquitoes in our community." — Senol Pekin, Petitioner Context: Pekin explaining his frustration during closing arguments, linking the procedural silencing to his inability to address urgent health and safety issues like vector control.

"The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings… the board… shall not require advance notice." — ALJ Velva Moses-Thompson (citing A.R.S. § 33-1804) Context: The legal foundation for the ruling that the Association violated statutory member rights by banning recording.

Actionable Insights

For Homeowners' Associations
  • Strict Bylaw Compliance: Technical violations regarding meeting dates are not excused by "practicality" or "unprecedented issues" like COVID-19. Associations must formally amend bylaws if the mandated timelines are no longer feasible.
  • Adherence to A.R.S. § 33-1804: Boards cannot prohibit the recording of open meetings or require prior notice. Any such rule is a violation of Arizona law.
  • Management as Agent: Management firms may lawfully organize meetings at the verbal or written direction of the Board President or a majority of the board, provided they act as authorized agents.
For Board Members and Management
  • Documentation of Directives: To avoid disputes over who "called" a meeting, board presidents should provide written confirmation of their request to management.
  • Judicious Use of Muting: While managing "combative" members is a legitimate function of meeting moderation, it must be balanced against the statutory right of members to speak at appropriate times during deliberations.
  • Director Training Requirements: Per Bylaws Section 3.1A, all directors should complete training before commencing service. The evidence indicated that failure to synchronize training with election dates can lead to delays in organizational meetings.

Final Judicial Disposition

Issue Finding Ruling
1. Annual Meeting Date Violated Bylaw 2.3 Prevailing Party: Petitioner
2. Organizational Meeting Bylaws do not require separate meeting Prevailing Party: Respondent
3. Authority to Call Meeting Manager acted as agent of the Board Prevailing Party: Respondent
4. Prohibition of Recording Violated A.R.S. § 33-1804 Prevailing Party: Petitioner
5. Muting/Opposing Views Petitioner had opportunities to speak Prevailing Party: Respondent

Remedy: Respondent ordered to pay Petitioner $1,000 (filing fee reimbursement). Civil penalties were deemed inappropriate.

Artesian Ranch Community Association vs. Senol Pekin: A Study Guide on HOA Governance and Legal Disputes

This study guide provides a comprehensive overview of the consolidated legal matters (23F-H034-REL and 23F-H037-REL) involving the Artesian Ranch Community Association and Petitioner Senol Pekin. It explores key concepts of HOA governance, the interpretation of bylaws versus state statutes, and the final rulings of the Administrative Law Judge (ALJ).

1. Core Themes and Key Concepts

Governing Documents and Statutes

The case centers on the hierarchy and interpretation of specific legal documents:

  • HOA Bylaws: Specifically Article II (Annual Meetings), Article III (Organizational Meetings), and Article IV (Officers).
  • A.R.S. § 33-1804 (Arizona Revised Statutes): Part of the Planned Communities Act, which mandates that meetings must be open to all members and allows for the recording of such meetings.
  • A.R.S. § 10-3701(e): A provision of the Nonprofit Corporation Act regarding the validity of corporate actions even if an annual meeting is delayed.
Types of Meetings and Requirements
  • Annual Meeting: Per Bylaw 2.3, this must be held on the second Wednesday of April each year.
  • Organizational Meeting: Per Bylaw 3.7, this must be held within a "reasonable time" after new directors take office to elect officers.
  • Open Session vs. Executive Session: Open sessions allow homeowners to observe and speak; executive sessions are closed for sensitive matters (e.g., legal advice, personnel issues).
Roles and Authority
  • The Board of Directors: Responsible for the affairs of the association. Actions generally require a quorum (a majority of directors).
  • The Community Manager (AAM, LLC): Acts as an agent for the Board. The manager (Mandy Rogers) handles day-to-day operations, including noticing meetings and drafting budgets.
  • Officer Duties: The Secretary/Treasurer (a role assigned to Senol Pekin in 2022) is responsible for minutes and overseeing budget preparation, though the management agent often performs the actual drafting.

2. Summary of Legal Issues and Final Rulings

The following table outlines the five specific issues adjudicated by Administrative Law Judge Velva Moses-Thompson on April 10, 2023.

Issue Number Allegation Final Ruling
1 Violation of Bylaw 2.3 for not holding the 2022 Annual Meeting in April. Violation Found. Respondent failed to follow the specific date required by Bylaws.
2 Failure to hold an "exclusive and timely" Organizational Meeting. No Violation. Bylaws do not require the meeting to be exclusive from other board business.
3 Unauthorized calling of a Board Meeting (Sept 22, 2022) by the HOA Manager. No Violation. The meeting was requested by the Board President; the manager acted as an agent.
4 Violation of A.R.S. § 33-1804(A) by prohibiting the recording of an open session. Violation Found. Statute explicitly prohibits requiring advance notice for recording.
5 Violation of A.R.S. § 33-1804 by muting the Petitioner during a Zoom meeting. No Violation. Evidence showed Petitioner had opportunities to speak; muting was deemed a management tool for conduct.

3. Short-Answer Practice Questions

Q1: According to the Artesian Ranch Bylaws, specifically Section 2.3, when exactly must the regular annual meeting take place?

  • Answer: The second Wednesday of April each year.

Q2: What is the significance of A.R.S. § 33-1804 regarding the recording of board meetings?

  • Answer: It states that persons attending may audiotape or videotape open portions of meetings and that the board shall not require advance notice for such recording.

Q3: Why did the Association claim the 2021 and 2022 meetings were held outside of the required April timeframe?

  • Answer: The Association argued that COVID-19 pushed the calendar off course, leading to an August meeting in 2021 and a May meeting in 2022.

Q4: How does the Administrative Law Judge define a "preponderance of the evidence"?

  • Answer: Proof that convinces the trier of fact that a contention is "more probably true than not," or the "greater weight of the evidence."

Q5: What was the Board’s justification for muting Senol Pekin during the October 24, 2022, Zoom meeting?

  • Answer: The Community Manager testified that he was being combative/aggressive and was attempting to bring up closed Executive Session items during an Open Session.

4. Essay Prompts for Deeper Exploration

  1. The Conflict Between Bylaws and State Statutes: Analyze the ALJ's decision regarding Issue 1 and Issue 4. In Issue 1, the Association argued that a state statute (A.R.S. § 10-3701(e)) excused their failure to follow their own bylaws. In Issue 4, the state statute overrode the Association's internal rules about recording. Discuss the hierarchy of authority in HOA governance based on these rulings.
  2. The Role of Professional Management: Evaluate the testimony of Mandy Rogers (AAM, LLC). To what extent does a management company act as a neutral administrator versus a decision-making entity? Reference the dispute over who "called" the September 2022 meeting in your answer.
  3. Defining "Reasonable Time" and "Organizational Meeting": The Petitioner argued that an organizational meeting should be a standalone event held immediately after directors take office on January 1st. The Board argued that holding it during the first scheduled meeting in August was "reasonable." Critique these opposing views using the Source Context.
  4. Due Process in Virtual Meetings: Discuss the challenges of maintaining a "parliamentary process" in digital formats (e.g., Zoom). How did the ability to "mute" participants impact the legal determination of whether the Petitioner was allowed to voice an opposing side?

5. Glossary of Important Terms

  • A.R.S. § 33-1804: The Arizona statute governing open meetings for homeowners' associations in planned communities.
  • Adjudicated: To make a formal judgment or decision about a problem or disputed matter.
  • Agent: A person or entity (like AAM, LLC) authorized to act on behalf of another (the Board).
  • Combative: A term used by the Respondent to describe the Petitioner's behavior, defined in testimony as being argumentative or conflict-oriented.
  • Consolidated Matter: When multiple separate legal petitions (in this case, two filed by the same Petitioner) are joined into a single hearing.
  • Executive Session: A portion of a board meeting closed to homeowners, restricted to specific topics like legal advice, pending litigation, or personal/financial info of members.
  • Notwithstanding: A legal term meaning "in spite of" or "regardless of." Used in A.R.S. § 33-1804 to show that state law overrides any contrary HOA bylaws.
  • Organizational Meeting: A meeting specifically intended for the board to elect officers (President, Secretary, etc.) among themselves.
  • Prevailing Party: The participant in a lawsuit or hearing who wins on the specific issues presented.
  • Quorum: The minimum number of members (usually a majority) of an assembly that must be present to make the proceedings of that meeting valid.
  • Ultra Vires: A legal term (alluded to by the Petitioner) meaning "beyond the powers." It refers to an act which requires legal authority but is done without it.

HOA Law in Action: Lessons from the Artesian Ranch Legal Battle

In a legal landscape where "technical violations" are often dismissed by boards as trivial inconveniences, the recent ruling in the Artesian Ranch legal battle serves as a $1,000 reminder that governing documents are not mere suggestions. The consolidated cases of Senol Pekin v. Artesian Ranch Community Association (Nos. 23F-H034-REL and 23F-H037-REL) offer a masterclass in the friction between homeowner rights and board authority.

Adjudicated by the Arizona Office of Administrative Hearings (OAH) on behalf of the Arizona Department of Real Estate, this dispute underscores a critical reality for community leaders: administrative oversight exists to ensure that the "business" of an HOA is conducted with the transparency and procedural integrity required by law. For homeowners and board members alike, the findings regarding meeting conduct, the right to record, and strict bylaw adherence provide a definitive roadmap for modern HOA governance.

The Five Charges: A Summary of the Dispute

The litigation involved five specific charges brought by Petitioner Senol Pekin against the Association. The proceedings featured testimony from Mr. Pekin, Board President Susanne Roskens, and Community Manager Mandy Rogers of AAM, LLC.

Petitioner’s Allegations vs. Legal Basis
Allegation Specific Bylaw or Arizona Revised Statute (A.R.S.)
1. Annual Meeting Timing: Failure to hold the 2022 Annual Meeting on the date required by the governing documents. Bylaws Art. II, § 2.3
2. Organizational Meeting: Failure to elect officers in an exclusively scheduled and timely manner. Bylaws Art. III, § 3.5 & 3.7; Art. IV, § 4.2
3. Unauthorized Meeting Call: A September 2022 meeting called by the Manager without Board authority. Bylaws Art. III, § B; Art. IV, § 6.7(b); Agency Law
4. Recording Prohibition: Prohibiting residents from recording the open session of the October 2022 meeting. A.R.S. § 33-1804
5. Unfair Muting: Silencing the Petitioner during a Zoom meeting, preventing the "opposing side" from being heard. A.R.S. § 33-1804

Victory for Transparency: The Right to Record

A primary flashpoint of the dispute occurred during the October 24, 2022, board meeting. Testimony revealed that Mandy Rogers, acting for the Association, prohibited residents from recording the session. The Association argued that they required advance notice for recording and cited concerns regarding privacy.

Administrative Law Judge (ALJ) Velva Moses-Thompson found this to be a clear violation of A.R.S. § 33-1804. The statute is unambiguous: homeowners have a statutory right to record any portion of a meeting that is open to the membership. Boards cannot use "privacy concerns" or "proprietary technology" as a pretext to bypass the Arizona Planned Communities Act.

Pro-Tips for Homeowners and Boards:

  • No Advance Notice Needed: Associations are legally barred from requiring homeowners to provide notice before recording an open session.
  • Open vs. Closed: Recording rights apply strictly to open sessions. Boards maintain the right to prohibit recording during executive (closed) sessions where sensitive legal or personnel matters are discussed.
  • Rule Limitations: While boards may adopt "reasonable rules" for recording (such as tripod placement), they cannot preclude it unless the board provides its own unedited recording to members upon request.

The Letter of the Law: Why Meeting Dates Matter

The dispute over the 2022 Annual Meeting date highlights a common pitfall for HOAs: the "lack of harm" defense. The Artesian Ranch Bylaws require the annual meeting to be held on the second Wednesday of April; however, the Association held it in May.

The Association’s defense—that the violation was "technical," driven by a schedule push from the COVID-19 pandemic, and resulted in no harm—was flatly rejected. While A.R.S. § 10-3701(e) ensures that corporate actions remain valid even if a meeting is late, the ALJ clarified that this statute does not grant boards a "free pass" to ignore specific timing requirements.

The Expert Insight: Compliance is not optional based on the perceived scale of the error. When governing documents dictate a date, the board is legally bound to it. Deviating because of "convenience" or "past practice" invites litigation and erodes the community's trust in the rule of law.

Where the Board Prevailed: Authority and "Combative" Conduct

The Association was deemed the prevailing party on Issues 2, 3, and 5, largely due to the Petitioner’s failure to meet the burden of proof.

The Meeting Call and the Agency Lesson

The Petitioner argued that Mandy Rogers (AAM) called the September 22 meeting without authority. However, the court found the call legitimate because the manager acted as an agent for Board President Susanne Roskens. For boards, the lesson is clear: a manager can legally call a meeting on the President’s behalf, but the agency relationship must be clear. Documentation of such authorizations is the ultimate shield against claims of "ultra vires" (unauthorized) actions.

The "Mute Button" and the Human Cost

The debate over Zoom conduct provided a window into the breakdown of community trust. Manager Mandy Rogers defended the use of the mute button by stating:

"Mute is an option that is utilized when we have combative board members and members of the association in attendance."

While the ALJ found that the Petitioner failed to prove he was silenced unfairly—noting he had multiple opportunities to speak—the testimony of witness Shelly Nelson provided a sobering contrast. Nelson described the muting as "antagonistic," noting it felt particularly egregious when the board prioritized "aesthetics" (overseeding) while residents were trying to address "health and safety" (a mosquito and dry well crisis). This illustrates that even when a board’s use of technology is legally defensible, its use to stifle dissent can make a community feel silenced.

Bylaw Ambiguity

Regarding Issue 2, the Respondent’s counsel argued that the Petitioner's interpretation of a January 1st start date for directors failed the "common sense test." These bylaws, drafted by a developer who later went bankrupt, were poorly constructed. The takeaway for boards is that when governing documents are ambiguous or outdated, legal interpretation should be sought before a dispute arises, rather than as a defense during a hearing.

The Final Verdict: Financial and Governance Outcomes

ALJ Velva Moses-Thompson issued a balanced final order:

  • Petitioner Prevails: On Issue 1 (Annual Meeting timing) and Issue 4 (Recording rights).
  • Respondent Prevails: On Issue 2 (Organizational meetings), Issue 3 (Meeting calls), and Issue 5 (Muting/Conduct).
  • Financial Reimbursement: The Association was ordered to reimburse the Petitioner $1,000 for his filing fees.
  • No Civil Penalty: The Judge determined that an additional civil penalty was not appropriate, as the reimbursement of fees served as a sufficient remedy.

Conclusion: Three Pillars of Better HOA Governance

The Artesian Ranch case provides a definitive set of guidelines for associations moving forward:

  1. Bylaws are Not Suggestions: Procedural rules regarding timing and elections must be followed strictly. A "technical violation" is a legal liability, regardless of whether a homeowner can prove "harm."
  2. Technology as a Tool, Not a Shield: Zoom features like the "mute" button should facilitate order, not serve as a weapon to shut down unpopular dialogue. Prioritizing aesthetics over safety concerns in a public forum is a recipe for toxic community relations.
  3. Transparency is a Statutory Right: The right to record is a cornerstone of Arizona law. Managers and boards must be educated on A.R.S. § 33-1804 to ensure they do not inadvertently infringe upon homeowner rights.

Boards and residents are encouraged to review their own governing documents and meeting protocols immediately to ensure alignment with Arizona law and prevent similar, costly litigation.

Case Participants

Petitioner Side

  • Senol Pekin (Petitioner)
    Appeared on behalf of himself
  • Shelley Nelson (Witness)
    Resident, testified on behalf of Petitioner
  • Sherry Swanson (Witness)
    Homeowner, testified on behalf of Petitioner
  • Julie Willowby (Witness)
    Testified on behalf of Petitioner

Respondent Side

  • Ashley N. Moscarello (Attorney)
    goodlaw.legal
    Appeared on behalf of Respondent Artesian Ranch Community Association
  • Mandy Rogers (Witness / Community Manager)
    AAM, LLC
    Employee of Respondent's Community Manager
  • Susanne Easterday Roskens (Witness / Board Director)
    Artesian Ranch Community Association
    Board President
  • Dennis Berger (Board Director)
    Artesian Ranch Community Association

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Senol Pekin v. Artesian Ranch Community Association

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Case Summary

Case ID 23F-H037-REL
Agency —
Tribunal —
Decision Date 2023-04-10
Administrative Law Judge VMT
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Senol Pekin Counsel Pro Se
Respondent Artesian Ranch Community Association Counsel Ashley N. Moscarello, Esq., Daniel S. Francom, Esq., Goodman Law Group

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H037-REL Decision – 1037672.pdf

Uploaded 2026-04-24T12:04:22 (49.3 KB)

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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Briefing: Dispute and Resolution – Pekin vs. Artesian Ranch Community Association

Executive Summary

This briefing document summarizes the legal proceedings and administrative decisions regarding the dispute between Petitioner Senol Pekin and Respondent Artesian Ranch Community Association. The matter, involving consolidated dockets No. 23F-H034-REL and No. 23F-H037-REL, was heard before the Office of Administrative Hearings (OAH) on March 20, 2023, under the jurisdiction of Administrative Law Judge Velva Moses-Thompson.

The Petitioner alleged five distinct violations of the Association’s Bylaws and the Arizona Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818). The Administrative Law Judge (ALJ) concluded that the Association violated its Bylaws by failing to hold its 2022 annual meeting on the prescribed date and violated state law by prohibiting members from recording open board sessions. Consequently, the Petitioner was deemed the prevailing party on these issues, and the Association was ordered to reimburse the $1,000 filing fee. Claims regarding the timing of organizational meetings, the authority of the HOA manager to schedule meetings, and the muting of members during Zoom calls were dismissed.

Detailed Analysis of Key Themes

1. Adherence to Governing Documents and Bylaws

A central theme of the dispute was the Association's failure to strictly follow its own Bylaws regarding meeting schedules.

  • Annual Meeting Requirement: Bylaws Article II, Section 2.3 requires the regular annual meeting to be held on the second Wednesday of April. In 2022, the Association held this meeting in May instead.
  • The "Technical Violation" Defense: The Association argued this was a "technical violation" with no harm to the Petitioner, citing A.R.S. § 10-3701(e). However, the ALJ ruled that while state statute may protect the validity of corporate actions taken during late meetings, it does not provide an exception for failing to adhere to the specific timing requirements set forth in the Bylaws.
2. Member Rights and Open Meeting Statutes

The case highlighted the tension between HOA management and member rights under A.R.S. § 33-1804.

  • Recording of Meetings: During an October 24, 2022, meeting, the Community Manager informed homeowners they could not record the session. The ALJ found this to be a direct violation of A.R.S. § 33-1804(A), which explicitly permits attendees to audiotape or videotape open portions of meetings.
  • Notice and Restrictions: The Association attempted to require advanced notice for recording, but the ALJ noted that the law prohibits boards from requiring such notice.
  • Participation and "Muting": The Petitioner alleged that the Association muted opposing viewpoints during Zoom meetings. The ALJ ruled in favor of the Association on this point, finding that the Petitioner was given several opportunities to speak and that the muting was a response to "generally aggressive" behavior rather than a systematic effort to silence dissent.
3. Governance and Administrative Authority

The proceedings clarified the roles of the Board versus the Community Manager (AAM, LLC).

  • Organizational Meetings: The Petitioner argued that officers must be elected in a separate, exclusively scheduled organizational meeting. The ALJ disagreed, noting that Bylaws do not require these meetings to be held separately from regular board meetings.
  • Managerial Agency: The Petitioner challenged the HOA Manager's authority to schedule board meetings. The ALJ ruled that a Community Manager, as an employee of the management firm (AAM, LLC), may act as an agent of the Board.
4. Evidentiary and Procedural Rulings
  • Subpoenas: The court managed multiple subpoenas for witnesses including Mandy Rogers, Susanne Roskens, and others. Notably, a subpoena for Dennis Berger was quashed, and the subpoena for Mandy Rogers was limited to her attendance, exempting her from producing documents.
  • Closure of Record: Following the March 20, 2023, hearing, the Petitioner attempted to file additional allegations and the Respondent filed a response. These were rejected by the ALJ as the record had officially closed at the conclusion of the hearing.

Important Quotes with Context

Quote Context
"Subsequent regular annual meetings shall be held on the second Wednesday of April of each year." Found in the Respondent’s Bylaws (Article II, Section 2.3), this served as the basis for the finding that the Association was in violation by holding its meeting in May.
"The board of directors of the association shall not require advance notice of the audiotaping or videotaping…" A critical excerpt from A.R.S. § 33-1804(A) used by the ALJ to determine that the Association's prohibition on recording was unlawful.
"The section does not provide an exception to the adherence to Bylaws that require a set time for an annual meeting." The ALJ’s rebuttal to the Association’s defense that their late annual meeting was merely a "technical violation."
"Ms. Rogers explained that she placed Petitioner on mute because he was generally aggressive." Testimony regarding the Association's conduct during the October 24, 2022, Zoom meeting, which the ALJ accepted as a reasonable management of the meeting.
"Petitioner be deemed the prevailing party regarding issues 1 and 4… Respondent pay Petitioner his filing fee of $1,000." The final order regarding the financial consequences of the Association's violations.

Actionable Insights

For Homeowners' Association Boards
  • Strict Bylaw Compliance: Boards must treat the specific dates and procedures outlined in their Bylaws as mandatory. "Technical violations" regarding meeting dates are still legally actionable and can result in the Association paying the Petitioner's filing fees.
  • Recording Policy Update: Associations should immediately cease any policy requiring advance notice for recording open meetings. While boards can adopt "reasonable rules" for recording, they cannot preclude the act of recording itself unless the Association provides its own unedited recording to members.
  • Managerial Conduct: Community managers should be trained to clearly distinguish between closed (executive) and open sessions when communicating rules about recording and participation to avoid inadvertently violating state statutes.
Regarding Dispute Resolution
  • Record Integrity: Once a hearing concludes, no further evidence or allegations can be introduced. Parties must ensure all relevant documentation and testimony are presented during the scheduled hearing.
  • Rehearing Procedures: If a party is dissatisfied with an ALJ decision, the request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate (ADRE) within 30 days, as the Office of Administrative Hearings (OAH) loses jurisdiction once a decision is rendered.
  • Conflict of Interest in Meetings: As noted in internal Association communications, if a Board member has filed a petition against the Association, they may be required to recuse themselves or log off during executive sessions where their specific legal matter is being discussed with the Association's attorney.

Study Guide: Pekin v. Artesian Ranch Community Association

This study guide provides a comprehensive overview of the administrative legal proceedings between Senol Pekin (Petitioner) and the Artesian Ranch Community Association (Respondent). It covers the legal framework, procedural history, specific allegations, and final rulings issued by the Office of Administrative Hearings (OAH).

I. Case Overview and Legal Framework

Jurisdiction and Authority

The matter was adjudicated by the Arizona Office of Administrative Hearings (OAH) under the authority of the Arizona Department of Real Estate (ADRE).

  • Governing Law: The proceedings are governed by Title 33, Chapter 16 of the Arizona Revised Statutes, known as the Planned Communities Act (A.R.S. §§ 33-1801 to 33-1818).
  • Adjudicator: Administrative Law Judge (ALJ) Velva Moses-Thompson.
Case Identification
  • Petitioner: Senol Pekin.
  • Respondent: Artesian Ranch Community Association.
  • Docket Numbers: 23F-H034-REL and 23F-H037-REL (Consolidated).

II. Procedural History and Significant Events

Date Event Description
January 25, 2023 Notice of Hearing ADRE sets the initial hearing dates.
February 28, 2023 Consolidation Order The ALJ consolidates the two dockets and sets a single hearing for March 20, 2023.
February 28, 2023 Subpoena Issuance Subpoenas issued for Mandy Rogers, Susanne Roskens, Dennis Berger, Brock O’Neal, Julie Willoughby, Shelley Nelson, and Sherry Swanson.
March 13, 2023 Order on Subpoenas Dennis Berger's subpoena is quashed. Mandy Rogers' subpoena is limited to attendance (no document production). Other motions to quash are denied.
March 20, 2023 Administrative Hearing The hearing convenes at 9:00 AM.
March 28, 2023 Minute Entry The ALJ refuses to consider documents filed after March 20, 2023, as the record was closed.
April 10, 2023 Final Decision The ALJ issues the official Findings of Fact and Conclusions of Law.
May 8, 2023 Rehearing Request A request for rehearing is filed but forwarded to the ADRE as the OAH loses jurisdiction after a decision is rendered.

III. Summary of Allegations and Judgments

The Petitioner raised five specific issues regarding the Association's adherence to its Bylaws and Arizona law.

Issue 1: Annual Meeting Frequency
  • Allegation: The Association violated Bylaws Article II, Paragraph 2.3 by failing to hold its 2022 annual meeting on the second Wednesday of April.
  • Evidence: The Association held the meeting in May 2022 instead of April.
  • Ruling: Violation Found. While A.R.S. § 10-3701(e) protects the validity of corporate actions despite timing errors, it does not exempt the Association from adhering to its own Bylaws.
Issue 2: Organizational Meetings
  • Allegation: Officers were not elected in a timely or exclusively scheduled Organizational Meeting as required by Bylaws.
  • Evidence: The Board appointed officers during a regular board meeting in August 2022.
  • Ruling: No Violation. The Bylaws do not require the organizational meeting to be held separately from other board meetings.
Issue 3: Authority to Call Meetings
  • Allegation: A meeting on September 22, 2022, was organized by the HOA Manager, who Petitioner argued lacked the authority to call meetings.
  • Evidence: Board President Susanne Roskens requested Mandy Rogers (Community Manager) to organize the meeting to address a landscaping issue.
  • Ruling: No Violation. The Community Manager acts as an agent of the Board.
Issue 4: Recording Open Sessions
  • Allegation: The Association violated A.R.S. § 33-1804(A) by prohibiting the recording of the open session on October 24, 2022.
  • Evidence: Mandy Rogers informed homeowners they could not record without clarifying that the rule only applied to closed sessions and stated that the Board required advanced notice.
  • Ruling: Violation Found. State law explicitly allows audio and video recording of open meetings and forbids the Board from requiring advance notice.
Issue 5: Participant Participation (Muting)
  • Allegation: The Association muted opposing sides during a Zoom meeting on October 24, 2022, preventing them from speaking.
  • Evidence: The Petitioner was muted due to "aggressive" behavior, but evidence showed he still had multiple opportunities to speak.
  • Ruling: No Violation. Boards may place reasonable time and conduct restrictions on speakers.

IV. Short-Answer Practice Questions

  1. What is the "Preponderance of the Evidence" standard?
  • Answer: It is a standard of proof where the evidence must show that a contention is "more probably true than not," or has the "most convincing force."
  1. Which party bears the burden of proof in an OAH hearing regarding a planned community dispute?
  • Answer: The Petitioner (Senol Pekin) bears the burden of proof to establish violations.
  1. Why did the ALJ refuse to consider the documents filed on March 27 and March 28, 2023?
  • Answer: The evidentiary record was closed on the day of the hearing, March 20, 2023.
  1. According to A.R.S. § 33-1804, what are the rules regarding advanced notice for recording a meeting?
  • Answer: The board of directors shall not require advance notice of audiotaping or videotaping of open portions of meetings.
  1. What was the financial penalty imposed on the Respondent for the violations found?
  • Answer: The Association was ordered to pay the Petitioner's $1,000 filing fee. No other civil penalty was deemed appropriate.

V. Essay Prompts for Deeper Exploration

  1. The Intersection of Corporate Validity and Bylaw Adherence: Analyze the ALJ's reasoning in Issue 1. How does the decision balance A.R.S. § 10-3701(e) (which validates corporate actions despite timing errors) with the mandatory nature of Association Bylaws?
  2. Agency and Authority in HOA Management: Discuss the ruling on Issue 3 regarding the Community Manager's role. To what extent can a third-party management firm (like AAM, LLC) exercise the powers of the Board of Directors?
  3. Open Meeting Rights vs. Orderly Conduct: Using Issue 5 as a reference, explore the legal limits of a Board's power to "mute" or restrict participants in a digital meeting format. Where is the line between "reasonable time restrictions" and the suppression of "opposing sides"?

VI. Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing and serves as the trier of fact and law.
  • A.R.S. § 33-1804: The specific Arizona statute governing open meetings, the right to speak, and the right to record meetings within planned communities.
  • CAAM: Certified Arizona Association Manager (referencing the title of Mandy Rogers).
  • Consolidation: The legal process of joining two or more separate cases (dockets) into one when they involve common questions of law or fact.
  • Organizational Meeting: A meeting held within a reasonable time after directors take office to elect officers (e.g., President, Secretary).
  • Planned Communities Act: The section of Arizona law (Title 33, Chapter 16) that regulates the formation and management of HOAs.
  • Quash: A legal term meaning to nullify or void, specifically used here regarding a subpoena for Dennis Berger.
  • Respondent: The party against whom a petition is filed (in this case, the Artesian Ranch Community Association).

HOA Accountability in Action: Key Lessons from the Pekin vs. Artesian Ranch Ruling

In the complex ecosystem of Arizona planned communities, the relationship between homeowners and their Board of Directors often fractures when governance becomes opaque or rules are applied inconsistently. While many disputes are settled through internal grievance processes, some reach a boiling point where legal intervention is the only path to clarity.

The case of Senol Pekin vs. Artesian Ranch Community Association (No. 23F-H034-REL) stands as a significant real-world example of a homeowner successfully seeking recourse through the Arizona Office of Administrative Hearings (OAH). This ruling stands as a cautionary tale for Boards who treat Bylaws as optional and a roadmap for homeowners seeking to enforce statutory transparency.

The Core Allegations: A Five-Point Dispute

The Petitioner’s challenge centered on five specific allegations, asserting that the Association repeatedly failed to adhere to its own governing documents and Arizona law. According to the Findings of Fact, the dispute involved:

  • Failure to Hold Annual Meetings: Violation of Bylaws Article II, Paragraph 2.3 by failing to hold the 2022 annual meeting on the required date.
  • Improper Election Procedures: Failure to elect officers during an exclusively and timely scheduled Organizational Meeting.
  • Unauthorized Meeting Organization: Alleging a September 2022 board meeting was invalid because it was organized by the Community Manager rather than the Board.
  • Prohibition of Recording: Violation of A.R.S. § 33-1804 by prohibiting a member from recording an open session on October 24, 2022.
  • Muting of Participants: Alleging that muting the Petitioner during a Zoom-based meeting prevented "the opposing side" from being heard, in violation of state law.

Victory for Transparency: The Ruling on Recording and Bylaws

The Administrative Law Judge (ALJ) ruled in favor of the Petitioner on two critical issues, delivering a stern reminder that internal governing documents carry the weight of law.

Annual Meeting Violations

The Association’s Bylaws (Article II, Paragraph 2.3) explicitly mandate that regular annual meetings be held on the second Wednesday of April. In 2022, the Association unilaterally moved this meeting to May. The Association defended this as a "technical violation" that resulted in no harm, citing A.R.S. § 10-3701(e).

However, the ALJ rejected this defense with a nuance every Board must understand: while A.R.S. § 10-3701(e) protects the validity of corporate actions taken despite timing errors, it does not provide immunity from suit or an exception for associations to ignore their own Bylaws. Adherence to mandated timeframes is a requirement, not a suggestion.

The Right to Record

The most significant win for transparency involved the Board’s attempt to restrict meeting recordings.

STATUTORY PROTECTIONS: A.R.S. § 33-1804 Arizona law is clear: persons attending open board meetings may audiotape or videotape the proceedings. The Board of Directors cannot require advance notice for recording and cannot preclude it unless the Board itself provides its own unedited recordings to members upon request. Rules may be adopted to govern recording, but they cannot be used to effectively prohibit the practice.

The ALJ found the Association in direct violation after the Community Manager informed homeowners they could not record and falsely claimed the Board required advance notice.

Financial and Reputational Outcome

While the ALJ determined a civil penalty was not warranted, the Association was ordered to reimburse the Petitioner’s $1,000 filing fee. Beyond the dollar amount, the reputational cost of being declared the non-compliant party in a public ruling is a heavy burden for any Board.

The Limits of Claims: Where the Association Prevailed

The ruling also clarified the boundaries of Board authority, finding in favor of the Association on three counts:

  1. Organizational Meetings: The ALJ ruled that Bylaws do not require "organizational meetings" (where officers are elected) to be a standalone event; they may occur within the context of a regular board meeting.
  2. Management Agency: The Petitioner’s claim that a meeting was invalid because the HOA Manager organized it was dismissed. The evidence showed Board President Susanne Roskens specifically requested Manager Mandy Rogers (of AAM, LLC) to schedule the meeting to address urgent landscaping issues. The ALJ affirmed that management companies act as authorized agents of the Board.
  3. The "Muting" Threshold: Under A.R.S. § 33-1804, a Board must allow a "reasonable number of persons to speak on each side." While the Petitioner was muted during a Zoom session due to "aggressive behavior," the ALJ found no violation because the evidence showed Pekin still had several other opportunities to speak. Muting is not an automatic violation if the "opposing side" is still given a reasonable chance to be heard.

Procedural Reality Check: The Life Cycle of an HOA Dispute

This case illustrates the complex procedural hurdles involved in OAH litigation. For homeowners and boards alike, the timeline is everything:

  • February 28, 2023: The ALJ consolidated two separate dockets (23F-H034-REL and 23F-H037-REL) to streamline the hearing.
  • March 13, 2023: A significant discovery ruling occurred. The ALJ quashed the subpoena for Dennis Berger but maintained subpoenas for Susanne Roskens, Brock O’Neal, and others, demonstrating the limits of who can be compelled to testify.
  • March 20, 2023: The official Record Closing date. This is the "point of no return" for evidence.
  • March 27 & 28, 2023: The Petitioner attempted to file additional allegations and evidence. The ALJ issued a Minute Entry refusing to consider these filings, as they were submitted after the record had closed.
  • Post-Decision: After the final order in April, the Petitioner sought a rehearing. The OAH issued a Minute Entry stating it lost jurisdiction the moment the decision was rendered. Any further requests for rehearing must be directed to the Arizona Department of Real Estate (ADRE).

Essential Takeaways for Homeowners and Boards

  1. Bylaws are Not Suggestions: Even "technical" timing shifts regarding annual meetings are actionable violations. Boards cannot use A.R.S. § 10-3701(e) as a shield to ignore their own governing documents.
  2. Recording is a Statutory Right: Boards cannot impose arbitrary hurdles, such as mandatory advance notice, on members wishing to record open meetings. Transparency is a protected right under A.R.S. § 33-1804.
  3. The Record is Final: In an administrative hearing, the window for evidence is narrow. As seen with the rejected March 27/28 filings, late submissions—no matter how relevant they seem—will be ignored once the record is closed.

Conclusion: Seeking Harmony Through Compliance

The Pekin vs. Artesian Ranch ruling serves as a vital reminder: transparency is not just a best practice; in Arizona, it is a legal mandate. While the Association prevailed on internal management issues, their failure to respect recording rights and bylaw-mandated schedules resulted in a $1,000 reimbursement order and a public record of non-compliance. To maintain community harmony and avoid the costs of litigation, both homeowners and board members must anchor their actions in a strict reading of A.R.S. § 33-1804.

Case Participants

Petitioner Side

  • Senol Pekin (Petitioner)
    Testified on his own behalf
  • Julie Willoughby (Witness)
    Testified for Petitioner; also spelled Julie Willowby in hearing decision
  • Shelley Nelson (Witness)
    Testified for Petitioner; also spelled Shelly Nelson in hearing decision
  • Sherry Swanson (Witness)
    Testified for Petitioner

Respondent Side

  • Ashley N. Moscarello (Attorney)
    Goodman Law Group
    Appeared on behalf of Respondent Artesian Ranch Community Association
  • Daniel S. Francom (Attorney)
    Goodman Law Group
    Listed in service records for Respondent
  • Susanne Easterday Roskens (Director of Board / Witness)
    Artesian Ranch Community Association
    Testified for Respondent; Board President
  • Mandy Rogers (Community Manager Employee / Witness)
    AAM, LLC
    Employee of Respondent's Community Manager; organized meetings and testified

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Assigned judge who issued the decision and orders
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Received administrative copies of orders and decisions

Other Participants

  • Dennis Berger (Subpoenaed Individual)
    Subpoena was quashed
  • Brock O'Neal (Subpoenaed Individual)
    Motion to quash his subpoena was denied

Elizabeth, Flint v. Citation Gardens Cooperative #1

Posted on by

Case Summary

Case ID 23F-H026-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-04
Administrative Law Judge Sondra J. Vanella
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Elizabeth Flint Counsel —
Respondent Citation Gardens Cooperative #1 Counsel Andrew Vizcarra

Alleged Violations

A.R.S. § 33-1816(A)

Outcome Summary

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
Additional Citations:

  • A.R.S. § 33-1816
  • A.R.S. § 33-1802
  • A.R.S. § 32-2199.01(A)

Video Overview

Audio Overview

Decision Documents

23F-H026-REL Decision – 1030738.pdf

Uploaded 2026-04-24T12:00:13 (53.2 KB)

23F-H026-REL Decision – 1046844.pdf

Uploaded 2026-04-24T12:00:22 (104.2 KB)

23F-H026-REL Decision – 1030738.pdf

Uploaded 2026-01-23T17:53:11 (53.2 KB)

23F-H026-REL Decision – 1046844.pdf

Uploaded 2026-01-23T17:53:15 (104.2 KB)

This summary outlines the proceedings, key arguments, and final decision in the matter of *Elizabeth Flint v. Citation Gardens Cooperative #1*, Docket No. 23F-H026-REL.

Key Facts and Hearing Proceedings

The hearing was held on March 21, 2023, before Administrative Law Judge (ALJ) Sondra J. Vanella of the Office of Administrative Hearings (OAH). Petitioner Elizabeth Flint appeared on her own behalf, but Respondent Citation Gardens Cooperative #1 did not appear. Respondent's representative, Andrew Vizcarra, informed the Petitioner via email prior to the hearing that he would miss the meeting due to his son's illness, did not wish to reschedule, and asked that the documents Respondent had submitted "stand in his place". The hearing proceeded in Respondent’s absence, with the Petitioner bearing the burden of proof to establish a violation by a preponderance of the evidence.

Main Issue and Legal Arguments

The single-issue petition alleged that Citation Gardens Cooperative #1 violated A.R.S. § 33-1816(A) by denying the Petitioner’s request to install solar panels on her townhouse without providing reasons. A.R.S. § 33-1816(A) mandates that a planned community association "shall not prohibit the installation or use of a solar energy device," notwithstanding any contrary provision in the community documents.

Respondent's Position (as submitted): The statute (A.R.S. § 33-1816(A)) did not apply because the Cooperative argued it is governed solely by the Arizona Non-Profit Corporation Act, is not a "planned community," and the Petitioner is a "Member," not a "homeowner".

Petitioner's Argument: The Petitioner maintained that the Cooperative meets the statutory definition of a planned community (A.R.S. § 33-1802). She argued that a planned community and a nonprofit corporation are not mutually exclusive classifications, noting that the statutory definition for a planned community specifically references a "nonprofit corporation". Furthermore, she asserted that she is both a member and an owner/shareholder (owning 1/44th of the corporation). Since the Respondent did not fall into any of the statutory exclusions for a planned community (timeshare, condominium, or real estate development not managed by an association), the Cooperative must comply with the solar panel statute.

Outcome and Legal Decision

The ALJ issued the Administrative Law Judge Decision on April 4, 2023.

The central legal point was whether the Cooperative qualified as a planned community under A.R.S. § 33-1802. The ALJ acknowledged that the definition of a planned community requires the existence of a nonprofit corporation to own and operate the real estate. However, the ALJ concluded that a cooperative does not fall within the definition of a planned community because their "purposes and functions are separate and distinct," despite the statutory definition not expressly excluding cooperatives.

As the Respondent was not found to be a planned community, the Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1816.

The final order was that the petition is dismissed, and no action is required of the Respondent.

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

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.

Michael H. Jahr v. Leisure World Community Association

Posted on by

Case Summary

Case ID 23F-H032-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-14
Administrative Law Judge Jenna Clark
Outcome 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.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael H. Jahr Counsel —
Respondent Leisure World Community Association Counsel —

Alleged Violations

ARIZ. REV. STAT. § 33-1816(a-b)

Outcome Summary

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 2026-05-01T22:11:14 (161.1 KB)

23F-H032-REL Decision – 1057366.pdf

Uploaded 2026-05-01T22:11:22 (55.7 KB)

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)

This is a concise summary of the hearing regarding Michael H. Jahr, Petitioner, versus Leisure World Community Association (LWCA), Respondent, conducted before Administrative Law Judge Jenna Clark on February 27, 2023. The matter concerned OA docket number 23 FH032L.

Key Facts and Issues

The central issue was an alleged violation of Arizona Revised Statute (ARS) § 33-1816, claiming that the Respondent denied the Petitioner the right to utilize solar means to reduce his energy consumption. This dispute revolved specifically around the Association’s denial of Petitioner’s request to use an installed in-ground sleeve for a clothesline.

The Petitioner, a homeowner in the Leisure World planned community, applied to install a sleeve in August 2022, initially listing uses including a clothesline. The request was denied for the clothesline use, but permission was later granted for a “flag pole installation sleeve”. Petitioner subsequently used the sleeve for a clothesline, resulting in an Architectural Control Courtesy Violation Notice dated October 31, 2022, which cited a violation of Association Rules & Regulations 2-304(D) prohibiting clotheslines visible from outside the residence.

Legal Arguments and Proceedings

  1. Jurisdiction and Applicable Statute: Initially, the ALJ noted that the Petitioner incorrectly filed under condominium statutes (ARS § 33-439). The hearing proceeded after confirming the accurate statutory basis for the complaint was the planned community statute, specifically ARS § 33-1816(a-b), which prohibits associations from banning the installation or use of a "solar energy device" as defined in ARS § 44-1761.
  2. Petitioner’s Argument: Petitioner argued that the clothesline qualified as a solar energy device because it uses the sun’s heat (solar means) to evaporate moisture (second law of thermodynamics), thereby reducing energy consumption and fitting the definition of a "system or series of mechanisms". He asserted that the legislative intent behind the statute was to allow homeowners to use solar energy to save financial resources and help with climate issues.
  3. Respondent’s Argument: The Respondent (LWCA), represented by Assistant Community Manager Daniel Clark Collier, argued that their legal counsel determined a clothesline does not meet the definition of a solar energy device found in ARS § 44-1761. LWCA noted that the rules prohibiting clotheslines were in place prior to Petitioner moving in. The Respondent argued that extending the definition to a clothesline would absurdly extend it to nearly any object heated by the sun.
  4. Burden of Proof: The Administrative Law Judge noted that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Association violated the relevant statute.
  5. Relief Requested: Petitioner requested relief, including reimbursement of his filing fee and injunctive action. The ALJ clarified that monetary relief (other than potential filing fee reimbursement) and injunctive relief (such as a temporary restraining order) were not permissible in this administrative tribunal; the tribunal's authority was limited primarily to ordering a party to abide by the specified statute or imposing a civil penalty.

Outcome and Final Decision

The Administrative Law Judge issued a decision finding that the clothesline is not a solar energy device. The Tribunal found that the Association acted within its lawful authority to deny permission to erect the clothesline.

The final order was that the Petitioner’s petition be denied. Consequently, the Respondent was not ordered to reimburse the Petitioner for any incurred filing fees. The ALJ concluded that the Petitioner failed to sustain his burden of proof that the Association violated ARS § 33-1816. The decision was binding unless a rehearing was granted by the Arizona Department of Real Estate Commissioner. (Note: A subsequent order addressed a poten

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

Kimberly Martinez v. Pineglen Owner’s Association

Posted on by

Case Summary

Case ID 23F-H027-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-09
Administrative Law Judge Sondra J. Vanella
Outcome 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.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kimberly Martinez Counsel —
Respondent Pineglen Owner's Association Counsel —

Alleged Violations

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
Additional Citations:

  • A.R.S. § 33-1812(A)(6)
  • A.R.S. § 33-1805(A)
  • Bylaws, Article IV, Section 1
  • Bylaws, Article IV, Section 2
  • Bylaws, Article III, Section 3
  • Bylaws, Article VII, Section 3

Related election workflow tool

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Video Overview

Audio Overview

Decision Documents

23F-H027-REL Decision – 1027053.pdf

Uploaded 2026-04-24T12:00:34 (50.0 KB)

23F-H027-REL Decision – 1028006.pdf

Uploaded 2026-04-24T12:00:38 (57.9 KB)

23F-H027-REL Decision – 1029880.pdf

Uploaded 2026-04-24T12:00:43 (60.6 KB)

23F-H027-REL Decision – 1040305.pdf

Uploaded 2026-04-24T12:00:50 (160.5 KB)

23F-H027-REL Decision – 1027053.pdf

Uploaded 2026-01-23T17:53:20 (50.0 KB)

23F-H027-REL Decision – 1028006.pdf

Uploaded 2026-01-23T17:53:24 (57.9 KB)

23F-H027-REL Decision – 1029880.pdf

Uploaded 2026-01-23T17:53:28 (60.6 KB)

23F-H027-REL Decision – 1040305.pdf

Uploaded 2026-01-23T17:53:33 (160.5 KB)

This concise summary details the proceedings, key arguments, and final decision in the matter of *Kimberly Martinez v. Pineglen Owner's Association*, case number 23F-H027-REL, heard before the Office of Administrative Hearings (OAH).

Key Facts and Issues

The Petitioner, Kimberly Martinez, a homeowner in the Pineglen planned community, filed a Petition with the Arizona Department of Real Estate (Department) alleging three specific violations by the Respondent, Pineglen Owner's Association (HOA). The hearing was held on February 17, 2023, before Administrative Law Judge (ALJ) Sondra J. Vanella.

The three issues were:

  1. Ballot Identifiers (A.R.S. § 33-1812(A)(6)): The annual election ballot lacked proper resident identifiers (address or lot number) for the person voting.
  2. Board Appointments (Bylaws Article IV, Section 1/2): The Board appointed two new voting members (RV Lot Manager and Architectural Review Manager) without following the proper electoral process.
  3. Records Request (A.R.S. § 33-1805(A)): The Board refused to provide copies of HOA records upon Petitioner’s written request and offer to purchase, instead insisting only on in-person viewing.

Key Arguments and Legal Points

Pre-Hearing Matters: The ALJ Denied the Respondent’s Motion to Continue the hearing.

Issue 1 (Ballots):

  • Petitioner's Argument: The ballot did not meet the statutory requirement of containing the name and address of the person voting, as mandated by A.R.S. § 33-1812(A)(6).
  • Respondent's Argument: The HOA utilized a door-to-door canvassing method and manually wrote the lot number on the ballot *after* it was received to ensure the voter was a member and to prevent duplication. They argued this process achieved compliance while protecting member privacy.

Issue 2 (Appointments):

  • Petitioner's Argument: Board members must be elected at the annual meeting, and the appointment of two new voting positions violated the electoral process outlined in the Bylaws.
  • Respondent's Argument: Citing Bylaws Article IV, Section 1, the HOA maintained they had the right to increase board membership (within the 3-to-7 member limit) and fill vacancies, with appointees serving until the next election. The positions were formalized from previously ambiguous roles to aid the Board, which is comprised of "elderly volunteers" who struggle to find recruits.

Issue 3 (Records Request):

  • Petitioner's Argument: A.R.S. § 33-1805(A) mandates that associations provide copies of records within ten business days upon written request for purchase, allowing a charge of up to fifteen cents per page. Petitioner specifically stated she fully expected an invoice to be delivered with the copies.
  • Respondent's Argument: The Board offered multiple opportunities for Petitioner to review the documents in person, believing they were making them "reasonably available" in compliance with A.R.S. § 33-1805(A) and their own bylaws. The Respondent admitted they initially failed to interpret the Petitioner's email as a request for *purchase* of copies.

Outcome and Final Decision

The ALJ issued a Decision on March 9, 2023, finding the Petitioner established violations on two of the three complaints by a preponderance of the evidence.

  • Complaint 1 (Ballots): Violation Found. Respondent violated A.R.S. § 33-1812(A)(6), as the ballots did not contain the address of the person voting.
  • Complaint 2 (Appointments): No Violation Found. The Board acted within its authority under Bylaws Article IV, Section 1, to increase membership and fill vacancies until the next election.
  • Complaint 3 (Records Request): Violation Found. Respondent violated A.R.S. § 33-1805(A) by refusing to provide copies of the requested records for purchase, contrary to its statutory obligation.

Final Orders:

The Petitioner was deemed the prevailing party on Issues 1 and 3. The ALJ Ordered Res

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

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)

Victoria J Whitaker v. Villas at Sunland Condominium Association

Posted on by

Case Summary

Case ID 23F-H021-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-22
Administrative Law Judge Jenna Clark
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victoria J Whitaker Counsel —
Respondent Villas at Sunland Condominium Association Counsel Austin Baillio

Alleged Violations

ARIZ. REV. STAT. § 33-1242

Outcome Summary

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).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Condominium Association, Due Process, Violation Enforcement, Carport Damage, Statutory Compliance, Filing Fee Denial
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 33-1260(A)(3)(e)
  • ARIZ. REV. STAT. § 33-1243
  • Declaration Article 5.3
  • Declaration Article 5.1
  • Declaration Article 5.2

Video Overview

Audio Overview

Decision Documents

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-05-02T11:03:57 (224.9 KB)

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-01-23T17:53:06 (224.9 KB)

This summary details the hearing proceedings, key arguments, and final decision in the matter of Victoria Whitaker (Petitioner) versus Villas at Sunland Condominium Association (Respondent). The hearing took place on February 3, 2023, before Administrative Law Judge (ALJ) Jenna Clark.

Key Facts and Procedural History

The case centered on a dispute over damage to a semi-common element: a carport shared by Petitioner's unit (Unit 16) and an adjacent unit. The damage was observed prior to the Petitioner's purchase of the unit on June 13, 2022. Although the Petitioner received a $20,000 reduction in the purchase price due to the outstanding issue, she denied accepting responsibility for the repair.

On July 18, 2022, after the sale, the Association issued a Notice of Violation to the Petitioner, requiring her to repair the carport ceiling.

A key procedural point addressed at the start of the hearing was the deficient Notice of Hearing, which incorrectly cited the Planned Communities Act (ARS § 33-1803) instead of the correct statute for condominiums. All parties stipulated to amend the governing statute for the dispute to ARS § 33-1242(D), which regulates due process in condominium enforcement actions.

Main Issues and Arguments

Petitioner's Argument:

The Petitioner alleged that the Association failed to follow due process under ARS § 33-1242. She argued that the violation should not have been enforced against her, as the damage occurred before her purchase and the violation was not properly investigated by management. The Association's claim that the damage was caused by the prior owner's tenant relied solely on "hearsay" (a neighbor's phone call), and no further investigation or expert assessment was conducted. She also claimed that the subsequent hearing held by the Board on October 5, 2022, was unfair because the Board had already made its decision.

Respondent's Argument:

The Association contended that they fully complied with ARS § 33-1242, providing notice and affording the Petitioner a hearing before the Board prior to taking any enforcement action (such as imposing fines). The core legal argument focused on the Petitioner’s failure to adhere to statutory requirements: ARS § 33-1242(B) requires a unit owner to provide a written response to a violation notice by certified mail within 21 days to "trigger" the subsequent due process provisions. The Petitioner admitted sending her contestation via email, not certified mail. The Association argued that because the Petitioner did not follow the statutory procedure, they cannot be found in violation of the statute's subsequent timing requirements.

Final Decision and Outcome

The ALJ concluded that the Tribunal’s jurisdiction was narrowly limited to determining whether the Association violated ARS § 33-1242, not to decide who was responsible for the damage or whether the Board's determination was correct.

The ALJ found that Petitioner bore the burden of proving the statutory violation by a preponderance of the evidence. The record established that Petitioner did not follow the statutory requirements of ARS § 33-1242 (certified mail) necessary to "trigger" any protected due process rights. Despite this procedural failure, the Association still apprised her of her rights and afforded her a hearing.

Based on the evidence, the ALJ concluded that no violation of ARS § 33-1242 was established.

Outcome: Petitioner’s petition was denied. The Association was not required to reimburse the Petitioner’s filing fee.

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

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)

Respondent Side

  • Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Joseph Milin (board member)
    Villas at Sunland Condominium Association
    Board President; Witness
  • Steven Cheff (property manager)
    Haywood Community Management (HMC)
    Community Manager and Compliance Inspector; Witness
  • Carly Collins (property management admin)
    Haywood Community Management (HMC)
    Admin responsible for correspondence
  • Harvey Colin (property management admin)
    Haywood Community Management (HMC)
    Signed resale disclosure statement
  • Neighbor (Unit 15) (witness)
    Unit 15 resident
    Provided alleged eyewitness testimony regarding the damage

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Presiding Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)

Other Participants

  • Chad and Ida Carpenter (prior owners/sellers)
    Unit 16 (prior owners)
    The sellers of the property at issue
  • Kevin Finley (contractor)
    Signature
    Provided repair estimate

Tom Barrs V. Desert Ranch Homeowners Assocation (ROOT)

Posted on by
📋 Consolidated cases — This decision resolved 2 consolidated dockets: 22F-H2222050-REL, 22F-H2222054-REL.

Case Summary

Case ID 22F-H2222050-REL
Agency Arizona Department of Real Estate
Tribunal OAH and Maricopa County Superior Court judicial review
Decision Date 2024-08-02
Administrative Law Judge Jenna Clark; Superior Court Judge Joseph P. Mikitish
Outcome Superior Court reversed the ADRE decision in part and remanded; Barrs prevailed on disclosure of member names and physical property addresses, but not emails/phone numbers, and fees/costs were denied.
Filing Fees Refunded —
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Barrs Counsel —
Respondent Desert Ranch Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1805; A.R.S. § 10-11601(C)
A.R.S. § 33-1804(A); A.R.S. § 33-1805
A.R.S. § 10-11604(C)

Outcome Summary

The original OAH/ADRE result denied the membership-roster claim, but Maricopa County Superior Court case LC2023-000179-001 changed the result. Judge Joseph P. Mikitish held that HOA member names and physical property addresses are not exempt personal records under A.R.S. § 33-1805 and must be disclosed as standard association/corporate records. The court reaffirmed the reversal on August 2, 2024, denied attorneys fees and court costs, and remanded the matter to ADRE.

Why this result: The HOA position failed in Superior Court because the court distinguished public-facing names and property addresses from more private email addresses and phone numbers, and found the ALJ had treated the entire roster as personal information too broadly.

Key Issues & Findings

Membership roster and association records

Tom Barrs requested the HOA membership list and other association records. The HOA and its management company refused to provide the owner directory, and the ALJ initially treated the membership list as protected personal information.

Orders: The Maricopa County Superior Court reversed the ADRE final decision in part and remanded. It held that names and physical property addresses in a membership roster are standard corporate records and are not exempt personal records under A.R.S. § 33-1805, while email addresses and phone numbers may be withheld.

Disposition: Petitioner prevailed on the core membership-roster issue in Superior Court; emails and phone numbers remained protected.

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601(C)
  • LC2023-000179-001

Meeting recordings and other document requests

Barrs also challenged meeting-recording practices and sought additional EDC, contract, financial, and board-communication records.

Orders: The administrative decision granted some record-request issues in part and denied others. The later Superior Court appeal focused primarily on the membership-list ruling.

Disposition: Mixed administrative result; not the primary basis for the Superior Court reversal.

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1805

Attorney fees and court costs after appeal

After the Superior Court reversal, Barrs requested $9,309.57 in attorneys fees and costs, including limited-scope legal work, transcript costs, filing fees, and other expenses.

Orders: On August 2, 2024, the Superior Court reaffirmed the reversal and remand but denied attorneys fees and court costs, finding that the statutory fee provision did not apply to this ADRE administrative-review path.

Disposition: Fees and costs denied; final appealable order entered and the matter remanded to ADRE.

Cited:

  • A.R.S. § 10-11604(C)
  • Rule 31.2, Arizona Supreme Court Rules
  • Boydston v. Strole Development Co.

Analytics Highlights

Topics: records requests, membership roster, A.R.S. § 33-1805, superior court reversal, remand
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601(C)
  • A.R.S. § 10-11604(C)
  • LC2023-000179-001

Video Overview

Audio Overview

Decision Documents

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22F-H2222050-REL Decision – Briefing Document_ Tom Barrs v. Desert Ranch Homeowners Association.pdf

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Briefing Document: Barrs v. Desert Ranch Homeowners Association

Executive Summary

The litigation between Tom Barrs (Petitioner/Appellant) and the Desert Ranch Homeowners Association (Respondent/Appellee) involves a protracted dispute over Association records, meeting recording integrity, and the production of homeowner information. The matter, overseen by the Office of Administrative Hearings (OAH) and subsequently appealed to the Maricopa County Superior Court, centers on actions taken by a previous Board of Directors and their management company, AAM.

Following an Administrative Law Judge (ALJ) decision in February 2023, the Association underwent a significant leadership transition. A new Board was elected in April 2023, and the Association moved to a self-managed model after AAM declined to renew its contract. Despite extensive settlement negotiations between the new Board and Barrs, reaching a final resolution proved unsuccessful due to disagreements over the correction of the official record and the payment of attorney fees. The Association currently faces depleted cash reserves, having spent over $29,000 on this matter, and continues to manage ongoing record requests and legal challenges from the Petitioner.

Detailed Analysis of Key Themes

1. Integrity of Meeting Recordings and Documentation

A central point of contention is whether Association meeting recordings were intentionally edited or merely incomplete due to human error. Lori Loch-Lee, the community manager from AAM, testified that while recordings might have been stopped and restarted—specifically during an incident in September 2020 involving Mr. Barrs—she never edited any files.

  • Petitioner's Argument: Barrs contends that the recordings are "clearly cut" and that portions discussing him or potential police involvement were intentionally removed. He argues the missing segments (approximately 30 minutes of a one-hour meeting) violate A.R.S. 33-1804(A).
  • Respondent's Argument: The management company maintains that "forgetting to restart a recording is [not] the same thing as editing a recording." They attribute gaps to technical issues or the "human" element of management.
2. Information Access and Privacy Policies

The dispute highlights a conflict between a homeowner's right to access records and the Association's duty to protect private information.

  • Management Files vs. Board Records: Lori Loch-Lee testified that she maintains internal AAM files for "correspondence homeowners" to which the Board has no control or access. She asserted that these are "personal emails" used for day-to-day business and that no policy requires their production to the Board or homeowners.
  • Confidentiality Training: Management applied professional training to withhold homeowner phone numbers and emails, treating them as "private information" protected from production requests.
  • The Membership Roster: Barrs alleged AAM refused to provide the roster within the statutory 10-business-day deadline. While the new Board eventually provided access, Barrs continues to seek a formal acknowledgement that the refusal by the prior management was a violation of A.R.S. 33-1805.
3. Transition to Self-Management and Financial Impact

The Association has experienced a complete shift in its operational structure as a direct result of the ongoing litigation.

  • Management Termination: AAM chose not to renew the management contract due to the "time and hassle" and "continued legal escalations" associated with the Barrs case.
  • Financial Depletion: The Association is currently without cash reserves. To remain solvent, the Board had to borrow $8,000 from the "711 Road Reserves Fund" to cover the General Fund's obligations.
  • Volunteer Burden: The Board members (collectively 33 members in the HOA) have spent "hundreds of hours" managing the case without professional counsel, as they lack the resources to retain an attorney.
4. Settlement Impasse and Attorney Fee Disputes

Extensive negotiations occurred between June and December 2023, but ultimately failed over two primary issues: the correction of the ALJ's findings of fact and the reimbursement of legal costs.

  • Correction of Findings: Barrs insisted on a "line-by-line" correction of the ALJ's February 21, 2023, decision, claiming it was based on "false assertions" by previous counsel. The Board felt uncomfortable changing the ALJ's decision, particularly findings related to a prior Board they did not represent.
  • Attorney Fees: Barrs sought $9,309.57 in costs and fees. The Association argues that because they offered a $2,000 settlement on September 8, 2023, which Barrs rejected, he is barred from seeking fees under A.R.S. 12-341.01(a) as the final judgment (which awarded no damages) was less favorable to him than their offer.

Important Quotes with Context

Quote Context
"Do you believe that forgetting to restart a recording is the same thing as editing a recording? Absolutely not." Lori Loch-Lee (AAM) testifying about the gaps in the September 2020 meeting audio.
"Homer information of emails and phone numbers are considered private information and I've learned that from different seminars and conferences… my training said not to produce that information." Lori Loch-Lee explaining why homeowner contact details were withheld from Barrs' record requests.
"I am their community manager. I'm not an agent." Loch-Lee's response when questioned about her official capacity and duty to the Association regarding the retention of unedited recordings.
"The Board has been forced to do this, as this litigation has left us without cash reserves." From the Association’s response to the Superior Court, explaining why they are appearing pro se.
"I've said repeatedly that I want to be a part of that positive, forward motion… I'm wondering if it may be helpful… for you to join us during a portion of an Exec Session." Board President Nan Wickman in an email to Tom Barrs (July 6, 2023) attempting to find a settlement path.
"The Board would prefer that this legal action ends here, so that we can spend our volunteered time to get the HOA back to functioning and dealing with all its business properly." Final statement in the Association's legal response regarding the emotional and operational toll of the case.

Timeline of Key Events (2023-2024)

Date Event
January 9-10, 2023 OAH Hearing conducted by ALJ Jenna Clark.
February 21, 2023 ALJ Decision issued regarding the dockets.
April 29, 2023 Annual Member Meeting; new Board of Directors elected (Nan Wickman, Michael Olley, Cynthia Dryden, etc.).
May 23, 2023 Tom Barrs files Appeal for Judicial Review.
June 15, 2023 Court orders case stayed for 90 days pending settlement.
July 13, 2023 Board proposes settlement: $1,000 payment to Barrs, no fault admitted, release of claims.
August 22, 2023 Barrs counters with an agreement requiring a $2,000 payment and agreement to all his corrections of the ALJ decision.
September 8, 2023 Board offers $2,000 settlement; Barrs rejects the amended agreement.
September 15, 2023 Court lifts the stay; litigation resumes.
April 4, 2024 Court finds in favor of Appellant (Barrs) and allows for an affidavit to obtain fees.
May 24, 2024 Association files response questioning the validity and substantiation of Barrs' $9,309.57 fee request.

Actionable Insights

  • Documentation Standards: The Association should implement formal policies for recording meetings, including a requirement that any pauses or technical restarts be explicitly noted in the official meeting minutes to prevent allegations of "editing."
  • Management Transition Audit: For self-managed HOAs, a comprehensive audit of all records formerly held by third-party management (like AAM) is necessary to ensure the Board has full custody of "statutory agent" files vs. "personal/internal" management files.
  • Financial Contingency Planning: The depletion of cash reserves for legal fees suggests a need for the Association to evaluate its D&O (Directors and Officers) insurance coverage and legal defense funds for future disputes.
  • Record Request Protocols: Given the Petitioner’s ongoing "frivolous requests" (as characterized by the Board), the Association must maintain a strict, standardized response log that tracks response times and costs incurred per A.R.S. 33-1805 to provide a defense against claims of non-compliance.

Study Guide: Tom Barrs vs. Desert Ranch Homeowners Association

This study guide provides a comprehensive overview of the legal proceedings and administrative matters between Tom Barrs (Petitioner/Appellant) and the Desert Ranch Homeowners Association (Respondent/Appellee). It synthesizes information from hearing transcripts, board meeting minutes, and court filings to outline the core conflicts regarding association management, record-keeping, and litigation.

I. Key Concepts and Themes

1. Management and Agency

A central point of contention in the proceedings is the role of the management company, Associated Asset Management (AAM), and its relationship with the Board.

  • Capacity of the Community Manager: Lori Loch-Lee, the community manager from AAM, testified that she acted in a limited capacity as defined by a management agreement. While she acknowledged AAM is a "statutory agent," she distinguished her role as a community manager from that of a general agent of the board.
  • Transition to Self-Management: Following the non-renewal of AAM’s contract (attributed by the Board to the ongoing litigation), the Desert Ranch Homeowners Association (DRHOA) transitioned to a self-managed model in early 2023.
2. Record-Keeping and Transparency

The dispute involves allegations of missing or edited evidence, specifically regarding meeting recordings and homeowner correspondence.

  • Editing vs. Omission: A primary legal argument involves whether "forgetting to restart" a recording constitutes "editing." Loch-Lee maintained that pausing a meeting (e.g., due to an interruption) is not the same as editing the record.
  • Access to Records: Tom Barrs sought access to membership rosters and homeowner information. The association initially resisted, citing training that homeowner emails and phone numbers are "private information."
  • Personal vs. Association Files: Loch-Lee testified that her day-to-day "correspondence homeowners" file was an internal AAM file, not accessible or controllable by the Board.
3. Litigation and Settlement Dynamics

The case moved from the Office of Administrative Hearings (OAH) to the Superior Court of Maricopa County.

  • The ALJ Decision: An Administrative Law Judge (ALJ) issued a decision on February 21, 2023, which Barrs subsequently sought to appeal or amend.
  • Settlement Negotiations: Numerous attempts were made to reach a "Joint Stipulation" to correct alleged errors in the ALJ’s findings of fact. Key issues in settlement included the payment of filing fees, the release of liability for current/former board members, and the accuracy of the membership roster.
  • Recovery of Fees (ARS 12-341.01): The Association argued that Barrs was ineligible for attorney fees because he rejected a settlement offer ($2,000) that was more favorable than the eventual court determination.

II. Short-Answer Practice Questions

  1. Who represented Tom Barrs at the January 2023 hearing?
  • Answer: Jonathan A. Dessaules, Esq.
  1. What was the specific AAM policy regarding recording at their business office?
  • Answer: No tape or visual recording was permitted at the AAM business office during record inspections or meetings.
  1. According to Lori Loch-Lee, what two categories of information are considered "private" and excluded from general homeowner requests?
  • Answer: Homeowner email addresses and phone numbers.
  1. What was the "711 Road Reserves Fund" loan used for?
  • Answer: An $8,000 loan was taken from the 711 Road Reserves Fund to the General Fund to maintain solvency and meet the 2023 budget.
  1. Why did the Board claim they had to become self-managed?
  • Answer: Their management company (AAM) chose not to renew the contract due to the continued legal escalations by Tom Barrs.
  1. What happened during the September 15, 2020, meeting recording?
  • Answer: The recording was stopped and restarted twice (at approximately 17:20 and 31:09) following interruptions or rucksacks involving Mr. Barrs.
  1. What was the total amount Tom Barrs claimed for "Limited Scope Representation" from Burch & Cracchiolo, P.A.?
  • Answer: $5,480.00.
  1. Who were the four new board members elected on April 29, 2023?
  • Answer: Nan Wickman (President), Michael Olley (Vice President), Cynthia Dryden (Secretary/Treasurer), and David Hughes (At-large). Susan Klinefelter was also elected as an at-large member.

III. Essay Prompts for Deeper Exploration

  1. The Ethics of Administrative Record-Keeping: Discuss the implications of a community manager "forgetting" to record portions of a board meeting. Does the distinction between "omission" and "editing" hold legal weight in the context of HOA transparency requirements under Arizona law?
  2. The Impact of Litigation on Small Communities: Using the Desert Ranch HOA as a case study, analyze how prolonged legal disputes between a single homeowner and an association can affect the financial health (e.g., depletion of cash reserves) and the volunteer spirit of the board (e.g., mass resignations).
  3. Privacy vs. Disclosure: Evaluate the conflict between a homeowner's right to access association records (ARS 33-1805) and the management’s duty to protect homeowner privacy (emails and phone numbers). Where should the line be drawn for an "unredacted" membership roster?
  4. Settlement and Good Faith: Analyze the timeline of settlement offers between Barrs and the Board. Did the insistence on correcting the "Findings of Fact" in the ALJ decision, rather than focusing on monetary or policy outcomes, indicate a lack of "good faith" in negotiations as alleged by the Association?

IV. Glossary of Important Terms

Term Definition
AAM Associated Asset Management; the professional management company previously contracted by the Desert Ranch HOA.
Administrative Law Judge (ALJ) A judge who presides over hearings and makes findings of fact in disputes involving state agencies (in this case, the Arizona Department of Real Estate).
ARS 12-341.01 An Arizona statute regarding the recovery of attorney fees in contested actions arising out of a contract.
Joint Stipulation A formal agreement between opposing parties to recognize certain facts as true or to follow a specific course of action in a legal case.
Limited Scope Representation A legal arrangement where an attorney handles only specific parts of a case rather than providing full representation.
Minute Entry A brief written record of the court's actions, orders, or findings during a specific proceeding.
Pro Se Representing oneself in a legal proceeding without the assistance of an attorney.
Statutory Agent An entity (like AAM) designated to receive legal service of process and official communications on behalf of a corporation or association.
Stay Pending Settlement A temporary suspension of court deadlines and proceedings to allow parties to finalize a settlement agreement.

Behind the Minutes: Lessons in Transparency and the Cost of HOA Litigation

1. Introduction: When Governance Becomes a Legal Battlefield

Thirty-three homes, four years of litigation, and a $29,000 legal bill—how did the Desert Ranchers Association find itself in a war over a Zoom recording?

In community governance, the distance between a minor administrative oversight and a catastrophic financial burden is often shorter than most boards realize. The matter of Tom Barrs vs. Desert Ranchers Association serves as a stark case study in the high price of protracted conflict. For an association of only 33 members, the $29,000 spent on this single legal matter (excluding the Petitioner’s personal costs) represents a staggering per-household burden of nearly $880. This dispute, which centered on records requests, membership rosters, and the integrity of meeting recordings from 2020 through early 2024, offers critical lessons for any board seeking to practice "preventative governance."

2. The "Recording" Debate: Human Error vs. Intentional Editing

A cornerstone of this litigation was a technical dispute regarding the September 2020 board meeting recording. The Petitioner, Tom Barrs, alleged that the recording was intentionally edited to omit sensitive discussions. Community Manager Lori Loch-Lee testified that while technical gaps existed, they were the result of "stops and starts" caused by human error or technical interruptions.

The technical timestamps are revealing: the recording stopped at the 17-minute and 31-minute marks. Critically, the transcript indicates that at these specific junctions, the board's conversation shifted to whether they should call the police on Mr. Barrs. This context fueled the Petitioner's allegations of intentional editing; it wasn't just any segment that was missed, but a highly sensitive discussion regarding the Petitioner himself. Loch-Lee maintained that as a "human," she simply forgot to restart the recording after interruptions.

Spotlight: Is It Editing or Forgetting? The Distinction: Management distinguished between editing (altering existing footage) and forgetting (failing to capture a segment). The Legal Risk: In the eyes of a governance expert, "selective recording"—even if unintentional—creates a "transparency gap" that is nearly impossible to defend in court once personal animosity is involved.

3. The Transparency Gap: Internal Files and Agent Boundaries

The case highlighted a significant point of confusion in the HOA industry: the legal status of the management company. During testimony, Lori Loch-Lee initially admitted, "AAM is a statutory agent. Yes." However, when pressed by counsel, she later asserted, "I am their community manager. I’m not an agent."

This contradiction illustrates the tension between a management firm acting as an agent of record and an individual manager acting as a representative of that firm. Loch-Lee argued that her "day-to-day" emails were personal business files kept in an internal AAM file, to which the Board had "absolutely no" control or access. This created a wall between the homeowners and the communications used to conduct association business—a wall that often triggers litigation when members feel that information is being shielded behind "limited capacity" management agreements.

4. The High Price of Standing on Principle

The dispute did more than deplete the association's bank account; it broke the community's leadership structure.

The Financial and Human Toll

Category Impact Details
Legal Spending Over $29,000 spent by the HOA (nearly $880 per household), excluding Tom Barrs' personal costs.
Administrative Burden Hundreds of hours of volunteer time lost to hearings, document preparation, and executive sessions.
Human Cost Resignations of Board members Cynthia Dryden and Nan Wickman due to "mental anguish"; other owners refused to join the "depleted Board" because of the litigation.
Management Impact AAM terminated the contract due to the "time and hassle" represented by the dispute, forcing the HOA into a high-risk self-managed model.
5. The Settlement Slog: A Timeline of Negotiation

Despite the Board’s eventual desire for "closure," the litigation continued long after the original Administrative Law Judge (ALJ) decision. A key governance failure identified here is that providing the requested records does not always end the conflict if the "integrity of the record" remains at issue.

  • April 29, 2023: New Secretary Cynthia Dryden provides Tom Barrs access to the membership roster. Despite this, Barrs files an appeal on May 23.
  • June 2023: Barrs provides a settlement outline requesting line-by-line corrections to the ALJ’s "findings of fact."
  • July 2023: The HOA offers a $1,000 reimbursement for filing fees with a "no fault" clause.
  • September 2023: The HOA increases the offer to $2,000. Barrs rejects it, insisting on correcting the ALJ record.
  • December 6, 2023: The parties reach a tentative "no-cost" agreement regarding the roster, yet they are unable to agree on the specific settlement language.
  • April 2024: Following a court ruling in Barrs' favor, he submits a final claim for $9,309.57 in costs and fees.
6. Conclusion: Moving Forward and Key Takeaways

Today, the Desert Ranchers Association is self-managed—a state of transition born of necessity rather than choice. When a community becomes a high-liability client, professional management firms often walk away, leaving volunteers to navigate complex legal and financial waters alone. The failure to reach a "no-cost resolution" earlier in the process underscores the danger of allowing a dispute over "findings of fact" to outweigh the pragmatic need for community stability.

Governance Gold Nuggets

  1. Maintain Unedited Recordings: To avoid allegations of tampering, ensure recordings are continuous. If a meeting is paused, the chair must announce the pause and the resumption on the record, with corresponding notes in the minutes.
  2. Adopt a Records Retention and Production Policy: Minimize the "transparency gap" by defining the scope of association records versus management business files before a dispute arises.
  3. Ensure Roster Transparency: Per ARS 33-1805, membership rosters are a fundamental record. Access should be proactive and standardized to prevent "withholding" claims.
  4. Prioritize Early Resolution: The escalation from a $1,000 offer to a $29,000 bill is a cautionary tale. Boards must identify when a dispute has shifted from "governance" to "animosity" and seek mediation before reserves are depleted.

Ultimately, the goal of a board is the preservation of the community. In Desert Ranchers, the cost of the "battle" was the very peace and professional oversight the board was elected to protect.

Case Participants

Petitioner Side

  • Tom Barrs (Petitioner)
    Desert Ranch Homeowners Association
    Homeowner and member of the association
  • Jonathan A. Dessaules (Counsel for Petitioner)
    Dessaules Law Group
  • Daryl Manhart (Limited Scope Counsel)
    Burch & Cracchiolo, P.A.
    Retained for the appeal brief
  • Aaron Duell (Limited Scope Counsel)
    Burch & Cracchiolo, P.A.
    Retained for the appeal brief

Respondent Side

  • B. Austin Baillio (Counsel for Respondent)
    Maxwell & Morgan, P.C.
  • Brian Schoeffler (Witness)
    Desert Ranch Homeowners Association
    Board Member, Secretary/Treasurer
  • Gerard Mangieri (Witness)
    Desert Ranch Homeowners Association
    Board Member, President
  • Lori Loch-Lee (Witness)
    Associated Asset Management
    Community Manager
  • Monte E. Matz (Witness)
    Desert Ranch Homeowners Association
    Board Member, Vice President
  • Michelle Aerni (Witness)
    Subpoenaed witness
  • Cynthia Dryden (Board Member)
    Desert Ranch Homeowners Association
    Elected as Secretary/Treasurer in 2023
  • Nan Wickman (Board Member)
    Desert Ranch Homeowners Association
    Elected as President in 2023
  • David Hughes (Board Member)
    Desert Ranch Homeowners Association
    Elected in 2023
  • Michael Olley (Board Member)
    Desert Ranch Homeowners Association
    Elected in 2023
  • Amanda Shaw (Statutory Agent)
    Associated Asset Management

Neutral Parties

  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
  • Joseph P. Mikitish (Judge)
    Superior Court of Arizona, Maricopa County
    Presiding judge for the subsequent appeal
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate