Category Archives: HOA Cases

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

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Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

Residential Use/Leasing Restrictions

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

Orders: Petitioner’s petition denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222039-REL Decision – 1003618.pdf

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

22F-H2222039-REL Decision – 972982.pdf

Uploaded 2026-04-24T11:49:22 (47.8 KB)

22F-H2222039-REL Decision – 973826.pdf

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

22F-H2222039-REL Decision – 974120.pdf

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

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

Key Facts and Main Issue

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

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

Legal Arguments and Proceedings

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

Outcome and Final Decision

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • dispute resolution

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles

Topic Tags

  • disclosure statements
  • enforceability
  • governing documents

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Interpretation

Topic Tags

  • rentals
  • roommates
  • leasing restrictions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Definitions

Topic Tags

  • single family definition
  • occupancy limits
  • common household

Question

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

Short Answer

Undefined terms are open to different reasonable interpretations.

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Interpretation

Topic Tags

  • ambiguity
  • definitions
  • legal interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Compliance

Topic Tags

  • rental restrictions
  • lease terms
  • minimum stay

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • dispute resolution

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles

Topic Tags

  • disclosure statements
  • enforceability
  • governing documents

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Interpretation

Topic Tags

  • rentals
  • roommates
  • leasing restrictions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Definitions

Topic Tags

  • single family definition
  • occupancy limits
  • common household

Question

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

Short Answer

Undefined terms are open to different reasonable interpretations.

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Interpretation

Topic Tags

  • ambiguity
  • definitions
  • legal interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Compliance

Topic Tags

  • rental restrictions
  • lease terms
  • minimum stay

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Robert C. Ochs v. The Camelview Greens Homeowners Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

ARIZ. REV. STAT. § 33-1805 A

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222048-REL Decision – 1003691.pdf

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

22F-H2222048-REL Decision – 979940.pdf

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

22F-H2222048-REL Decision – 979959.pdf

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

22F-H2222048-REL Decision – 985762.pdf

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

22F-H2222048-REL Decision – 986375.pdf

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

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

Key Facts and Underlying Dispute

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

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

Main Issues and Legal Arguments

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

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

Legal Points and Findings

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

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

Outcome

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Kathy J Green v. Cross Creek Ranch Community Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

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

Key Issues & Findings

Alleged violation of open meetings requirements regarding closed executive session.

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222064-REL Decision – 1003060.pdf

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

22F-H2222064-REL Decision – 989940.pdf

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

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

Key Facts and Legal Issue

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

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

Key Arguments

Petitioner's Position:

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

Respondent's Position:

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

Final Decision and Outcome

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

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

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

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

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

Key Issues & Findings

Professional Management

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222060-REL Decision – 997254.pdf

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

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

Key Facts and Parties

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

Main Legal Issue

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

Hearing Proceedings and Key Arguments

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

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

Outcome and Final Decision

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Admission of violation at time of filing

Topic Tags

  • procedure
  • mootness
  • remedies

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Scope of hearing

Topic Tags

  • procedure
  • due process
  • hearing scope

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Strict liability for CC&R compliance

Topic Tags

  • board defenses
  • compliance
  • fiduciary duty

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • fees
  • reimbursement
  • costs

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Judicial discretion on penalties

Topic Tags

  • penalties
  • fines
  • enforcement

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Admission of violation at time of filing

Topic Tags

  • procedure
  • mootness
  • remedies

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Scope of hearing

Topic Tags

  • procedure
  • due process
  • hearing scope

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Strict liability for CC&R compliance

Topic Tags

  • board defenses
  • compliance
  • fiduciary duty

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • fees
  • reimbursement
  • costs

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Judicial discretion on penalties

Topic Tags

  • penalties
  • fines
  • enforcement

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Evin Abromowitz v. The Meadows Homeowners Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&Rs, Section 3.5 and 3.6

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222038-REL Decision – 966844.pdf

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

22F-H2222038-REL Decision – 969590.pdf

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

22F-H2222038-REL Decision – 994145.pdf

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

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

Key Facts and Procedural History

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

Main Legal Issues

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

Key Arguments

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

Outcome and Final Decision

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

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

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

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

Alj Quote

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

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

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

Alj Quote

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

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

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

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

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

Alj Quote

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

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

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

Alj Quote

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

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R Section 2.16

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222044-REL Decision – 973802.pdf

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22F-H2222044-REL Decision – 974694.pdf

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22F-H2222044-REL Decision – 975118.pdf

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22F-H2222044-REL Decision – 977059.pdf

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22F-H2222044-REL Decision – 977202.pdf

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22F-H2222044-REL Decision – 977294.pdf

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22F-H2222044-REL Decision – 978417.pdf

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22F-H2222044-REL Decision – 978990.pdf

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22F-H2222044-REL Decision – 978991.pdf

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22F-H2222044-REL Decision – 979005.pdf

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22F-H2222044-REL Decision – 982403.pdf

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22F-H2222044-REL Decision – 993469.pdf

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

Summary of Hearing Proceedings

Key Facts & Procedural History

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

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

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

Key Arguments and Legal Points

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

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

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

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&R Violations
  • HOA Obligations
  • Legal Standards

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Arizona Administrative Code R2-19-116

Topic Tags

  • Hearing Procedures
  • Homeowner Rights
  • Closing Arguments

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Jurisdiction

Topic Tags

  • Jurisdiction
  • Amending Claims
  • Fairness

Question

Will my request for a subpoena automatically be granted?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Arizona Administrative Code R2-19-113

Topic Tags

  • Evidence
  • Subpoenas
  • Procedural Requirements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Filing Fees

Topic Tags

  • Filing Fees
  • Petition Process
  • Costs

Question

Can the hearing be conducted virtually instead of in person?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Hearing Procedures

Topic Tags

  • Virtual Hearing
  • Accessibility
  • Procedure

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

  • Rick Abbott (spectator)

Emery Herbert v. Lakebrook Villas II Homeowners Association INC

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2222047-REL Decision – 979855.pdf

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22F-H2222047-REL Decision – 981946.pdf

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22F-H2222047-REL Decision – 993566.pdf

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Briefing Document: Herbert v. Lakebrook Villas II Homeowners Association

Executive Summary

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

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

Case Overview and Participants

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

Analysis of Key Themes

1. Maintenance vs. Capital Improvement

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

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

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

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

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

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

Significant Quotes with Context

On Statutory Obligations

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

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

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

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

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

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

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

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

Actionable Insights

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

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

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

1. Case Overview

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

2. Key Legal Framework

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

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

3. The Core Disputes

Issue A: Roof Leak and Maintenance (Petition1)

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

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

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

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

4. Short-Answer Practice Questions

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

5. Essay Prompts for Deeper Exploration

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

6. Glossary of Important Terms

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

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

1. Introduction: When Maintenance Meets the Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The ruling highlighted a powerful blockquote from the Declaration:

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

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

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

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

Key technical findings included:

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

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

Lessons Learned:

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Dennis Anderson v. Tara Condominiums Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&Rs Section 11

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petition dismissed; no action required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222062-REL Decision – 986010.pdf

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22F-H2222062-REL Decision – 991586.pdf

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22F-H2222062-REL Decision – 991600.pdf

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22F-H2222062-REL Decision – 996350.pdf

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

Key Facts and Issues

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

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

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

Key Arguments

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

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

Legal Outcome and Decision

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

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

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

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

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22F-H2222062-REL

5 sources

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

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

Thursday, February 12

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22F-H2222062-REL

5 sources

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

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

Thursday, February 12

Save to note

Today • 1:37 PM

5 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2221018-REL Decision – 940674.pdf

Uploaded 2026-04-24T11:40:53 (56.7 KB)

22F-H2221018-REL Decision – 953784.pdf

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22F-H2221018-REL Decision – 954492.pdf

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22F-H2221018-REL Decision – 958478.pdf

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22F-H2221018-REL Decision – 958503.pdf

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22F-H2221018-REL Decision – 990387.pdf

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

Key Facts and Issues

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

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

Key Arguments

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

Legal Points Focused On

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

Outcome and Decision

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal definitions
  • standards of evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal definitions
  • standards of evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Arleen D Jouxson v. The Villages at Aviano Condominium Association

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Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

Board Appointment via Settlement Agreement

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

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Quorum at Special Board Meeting

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

Orders: Issue withdrawn by Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Bylaws Article 3 §3.9

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Video Overview

Audio Overview

Decision Documents

22F-H2222030-REL Decision – 959436.pdf

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22F-H2222030-REL Decision – 964645.pdf

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22F-H2222030-REL Decision – 964646.pdf

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22F-H2222030-REL Decision – 964678.pdf

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22F-H2222030-REL Decision – 973808.pdf

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22F-H2222030-REL Decision – 975982.pdf

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22F-H2222030-REL Decision – 978159.pdf

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22F-H2222030-REL Decision – 989914.pdf

Uploaded 2026-04-24T11:45:49 (118.3 KB)

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

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

Uploaded 2026-04-24T11:46:02 (194.3 KB)

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

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

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

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

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

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

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

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

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

Uploaded 2026-04-24T11:46:49 (203.6 KB)

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

Uploaded 2026-04-24T11:46:52 (197.0 KB)

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

Key Facts and Procedural History

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

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

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

Main Issues and Arguments

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

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

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

Final Decision and Outcome

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

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

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

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

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

Key Concepts and Case Overview

Central Dispute

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

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

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

Short-Answer Practice Questions

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

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

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

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

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

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

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

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

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

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

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

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

Essay Prompts for Deeper Exploration

1. The Intersection of Contract Law and Community Governance

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

2. Statutory Interpretation and Tribal Authority

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

3. The Rights of Disenfranchised Homeowners

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

Glossary of Important Terms

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

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

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

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

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

2. The Legal Flashpoint: Seating Directors via Settlement

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

The Petitioner’s Argument

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

The Respondent’s Defense

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

3. Jurisdiction and the "Community Document" Dilemma

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

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

4. The Quorum Question: A Secondary Dispute

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

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

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

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

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

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

6. Final Takeaways: What Every Homeowner Should Know

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

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

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

Source Reference Note

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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