Category Archives: HOA Cases

AZNH Revocable Trust V. Sunland Springs Village Homeowners

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 24F-H047-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-11-05
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner AZNH Revocable Trust Counsel John F. Sullivan
Respondent Sunland Springs Village Homeowners Association Counsel Chad M. Gallacher

Alleged Violations

A.R.S. § 33-1812(A)(7)

Outcome Summary

The ALJ denied the petition, concluding that the Association complied with A.R.S. § 33-1812(A)(7) by providing the electronic data lists from the voting software company, which met the requirement for retaining electronic records of votes.

Why this result: The tribunal ruled that A.R.S. § 10-3708(F) requires the storage of 'electronic votes', not exact visual images of electronic ballots. The voting data lists adequately documented each member's vote in compliance with the law.

Key Issues & Findings

Records Inspection

Petitioner alleged the Association failed to produce all voting materials from a February 2024 election, specifically arguing that images of the actual online ballots were not provided.

Orders: Petition denied. The Association was found to be in compliance by retaining and providing the electronic voting data lists.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1812(A)(7)
  • A.R.S. § 10-3708(F)
  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.05

Video Overview

Audio Overview

https://open.spotify.com/episode/4r23M0yylebjpOrTk2pJ4V

Decision Documents

24F-H047-REL-RHG Decision – 1330098.pdf

Uploaded 2026-03-10T22:32:06 (48.9 KB)

24F-H047-REL-RHG Decision – 1330115.pdf

Uploaded 2026-03-10T22:32:17 (6.2 KB)

24F-H047-REL-RHG Decision – 1338932.pdf

Uploaded 2026-03-10T22:32:21 (56.6 KB)

24F-H047-REL-RHG Decision – 1340272.pdf

Uploaded 2026-03-10T22:32:23 (53.7 KB)

24F-H047-REL-RHG Decision – 1357165.pdf

Uploaded 2026-03-10T22:32:26 (59.5 KB)

24F-H047-REL-RHG Decision – 1358023.pdf

Uploaded 2026-03-10T22:32:28 (12.1 KB)

24F-H047-REL-RHG Decision – _override/Complaint For Special Action.pdf

Uploaded 2026-03-10T22:32:31 (973.0 KB)

24F-H047-REL-RHG Decision – _override/Plaintiff’s+Motion+for+Judgment+on+the+Case+Filings+.pdf

Uploaded 2026-03-10T22:32:35 (212.7 KB)

24F-H047-REL-RHG Decision – ../24F-H047-REL/1240168.pdf

Uploaded 2026-03-10T22:32:39 (184.8 KB)

24F-H047-REL-RHG Decision – ../24F-H047-REL/2026-03-07_superior_court_complaint_special_action_cv2025-036466.pdf

Uploaded 2026-03-10T22:32:48 (973.0 KB)

24F-H047-REL-RHG Decision – ../24F-H047-REL/2026-03-07_superior_court_motion_for_judgment_cv2025-036466.pdf

Uploaded 2026-03-10T22:32:53 (212.7 KB)





Briefing Doc – 24F-H047-REL-RHG


Case Summary: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association

Explicit Notice: This summary covers both the original administrative decision (Case No. 24F-H047-REL) and the subsequent rehearing proceedings (Case No. 24F-H047-REL-RHG). The procedural history, issues, and outcomes of the two proceedings are distinct and outlined separately below to prevent conflation.

I. Original Proceeding (Case No. 24F-H047-REL)

Key Facts: The Petitioner, AZNH Revocable Trust, requested to inspect election documents from the Respondent, Sunland Springs Village Homeowners Association (HOA), concerning a February 2024 election. The HOA utilized a third-party vendor, “Vote HOA Now,” to conduct electronic voting. In response to the inspection request, the HOA provided paper ballots, absentee envelopes, and data tally lists verifying the electronic votes cast via the vendor.

Main Issue: The Petitioner argued that the HOA violated A.R.S. § 33-1812(A)(7) by failing to produce an actual image of each electronic ballot as seen and voted on by the members, asserting that data lists were insufficient for a valid recount or inspection.

Outcome: On November 5, 2024, the Administrative Law Judge (ALJ) denied the petition. The ALJ concluded that the HOA complied with statutory requirements, determining that retaining the data lists demonstrating the electronic votes satisfied the requirement to keep records “in electronic format”. The ALJ noted that A.R.S. § 10-3708(F)(4) mandates the storage of “electronic votes,” not necessarily visual images of electronic ballots.

II. Procedural History & Rehearing (Case No. 24F-H047-REL-RHG)

Procedural History: Following the original decision, the Petitioner appealed to the Maricopa County Superior Court. The Superior Court remanded the matter to the Arizona Department of Real Estate to conduct an evidentiary hearing to address “additional evidence” proposed by the Petitioner (specifically, an electronic ballot allegedly in the HOA’s custody). Consequently, the Department granted a rehearing, leading to the RHG docket.

Rehearing Proceedings & Key Arguments: The rehearing was scheduled for September 26, 2025. At 12:13 a.m. on the day of the hearing, the Petitioner electronically filed a “Peremptory Change of Administrative Law Judge” alongside a request for a continuance. The Petitioner invoked a newly revised statute (A.R.S. § 41-1092.07), effective that same day, which entitles a party to one peremptory change of judge.

Prior to going on the record, the ALJ and the OAH Interim Director determined that the Petitioner’s filing was a “motion” and was untimely under Arizona Administrative Code R2-19-106. Because the filing was deemed untimely, the ALJ retained the case. The Petitioner’s attorney argued that the peremptory change was an absolute statutory right—not a discretionary “motion”—and subsequently refused to participate, leaving the hearing room before the proceedings officially went on the record.

Rehearing Outcome: Because the Petitioner’s counsel left and failed to present evidence or argument, the HOA moved to dismiss the matter. On October 9, 2025, the ALJ formally granted the dismissal based on the Petitioner’s failure to proceed with the case.

Note: Following the dismissal of the rehearing, the Petitioner filed an Original Special Action Complaint in Superior Court (CV2025-036466) against the ALJ, OAH, and the HOA. The Petitioner is seeking a judgment declaring that the peremptory change of judge was immediate and incontrovertible by legislative fiat, and that the ALJ exceeded her legal authority by dismissing the rehearing






Study Guide – 24F-H047-REL-RHG


Case Summary: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association

Explicit Notice: This summary covers both the original administrative decision (Case No. 24F-H047-REL) and the subsequent rehearing proceedings (Case No. 24F-H047-REL-RHG). The procedural history, issues, and outcomes of the two proceedings are distinct and outlined separately below to prevent conflation.

I. Original Proceeding (Case No. 24F-H047-REL)

Key Facts: The Petitioner, AZNH Revocable Trust, requested to inspect election documents from the Respondent, Sunland Springs Village Homeowners Association (HOA), concerning a February 2024 election. The HOA utilized a third-party vendor, “Vote HOA Now,” to conduct electronic voting. In response to the inspection request, the HOA provided paper ballots, absentee envelopes, and data tally lists verifying the electronic votes cast via the vendor.

Main Issue: The Petitioner argued that the HOA violated A.R.S. § 33-1812(A)(7) by failing to produce an actual image of each electronic ballot as seen and voted on by the members, asserting that data lists were insufficient for a valid recount or inspection.

Outcome: On November 5, 2024, the Administrative Law Judge (ALJ) denied the petition. The ALJ concluded that the HOA complied with statutory requirements, determining that retaining the data lists demonstrating the electronic votes satisfied the requirement to keep records “in electronic format”. The ALJ noted that A.R.S. § 10-3708(F)(4) mandates the storage of “electronic votes,” not necessarily visual images of electronic ballots.

II. Procedural History & Rehearing (Case No. 24F-H047-REL-RHG)

Procedural History: Following the original decision, the Petitioner appealed to the Maricopa County Superior Court. The Superior Court remanded the matter to the Arizona Department of Real Estate to conduct an evidentiary hearing to address “additional evidence” proposed by the Petitioner (specifically, an electronic ballot allegedly in the HOA’s custody). Consequently, the Department granted a rehearing, leading to the RHG docket.

Rehearing Proceedings & Key Arguments: The rehearing was scheduled for September 26, 2025. At 12:13 a.m. on the day of the hearing, the Petitioner electronically filed a “Peremptory Change of Administrative Law Judge” alongside a request for a continuance. The Petitioner invoked a newly revised statute (A.R.S. § 41-1092.07), effective that same day, which entitles a party to one peremptory change of judge.

Prior to going on the record, the ALJ and the OAH Interim Director determined that the Petitioner’s filing was a “motion” and was untimely under Arizona Administrative Code R2-19-106. Because the filing was deemed untimely, the ALJ retained the case. The Petitioner’s attorney argued that the peremptory change was an absolute statutory right—not a discretionary “motion”—and subsequently refused to participate, leaving the hearing room before the proceedings officially went on the record.

Rehearing Outcome: Because the Petitioner’s counsel left and failed to present evidence or argument, the HOA moved to dismiss the matter. On October 9, 2025, the ALJ formally granted the dismissal based on the Petitioner’s failure to proceed with the case.

Note: Following the dismissal of the rehearing, the Petitioner filed an Original Special Action Complaint in Superior Court (CV2025-036466) against the ALJ, OAH, and the HOA. The Petitioner is seeking a judgment declaring that the peremptory change of judge was immediate and incontrovertible by legislative fiat, and that the ALJ exceeded her legal authority by dismissing the rehearing






Blog Post – 24F-H047-REL-RHG


Case Summary: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association

Explicit Notice: This summary covers both the original administrative decision (Case No. 24F-H047-REL) and the subsequent rehearing proceedings (Case No. 24F-H047-REL-RHG). The procedural history, issues, and outcomes of the two proceedings are distinct and outlined separately below to prevent conflation.

I. Original Proceeding (Case No. 24F-H047-REL)

Key Facts: The Petitioner, AZNH Revocable Trust, requested to inspect election documents from the Respondent, Sunland Springs Village Homeowners Association (HOA), concerning a February 2024 election. The HOA utilized a third-party vendor, “Vote HOA Now,” to conduct electronic voting. In response to the inspection request, the HOA provided paper ballots, absentee envelopes, and data tally lists verifying the electronic votes cast via the vendor.

Main Issue: The Petitioner argued that the HOA violated A.R.S. § 33-1812(A)(7) by failing to produce an actual image of each electronic ballot as seen and voted on by the members, asserting that data lists were insufficient for a valid recount or inspection.

Outcome: On November 5, 2024, the Administrative Law Judge (ALJ) denied the petition. The ALJ concluded that the HOA complied with statutory requirements, determining that retaining the data lists demonstrating the electronic votes satisfied the requirement to keep records “in electronic format”. The ALJ noted that A.R.S. § 10-3708(F)(4) mandates the storage of “electronic votes,” not necessarily visual images of electronic ballots.

II. Procedural History & Rehearing (Case No. 24F-H047-REL-RHG)

Procedural History: Following the original decision, the Petitioner appealed to the Maricopa County Superior Court. The Superior Court remanded the matter to the Arizona Department of Real Estate to conduct an evidentiary hearing to address “additional evidence” proposed by the Petitioner (specifically, an electronic ballot allegedly in the HOA’s custody). Consequently, the Department granted a rehearing, leading to the RHG docket.

Rehearing Proceedings & Key Arguments: The rehearing was scheduled for September 26, 2025. At 12:13 a.m. on the day of the hearing, the Petitioner electronically filed a “Peremptory Change of Administrative Law Judge” alongside a request for a continuance. The Petitioner invoked a newly revised statute (A.R.S. § 41-1092.07), effective that same day, which entitles a party to one peremptory change of judge.

Prior to going on the record, the ALJ and the OAH Interim Director determined that the Petitioner’s filing was a “motion” and was untimely under Arizona Administrative Code R2-19-106. Because the filing was deemed untimely, the ALJ retained the case. The Petitioner’s attorney argued that the peremptory change was an absolute statutory right—not a discretionary “motion”—and subsequently refused to participate, leaving the hearing room before the proceedings officially went on the record.

Rehearing Outcome: Because the Petitioner’s counsel left and failed to present evidence or argument, the HOA moved to dismiss the matter. On October 9, 2025, the ALJ formally granted the dismissal based on the Petitioner’s failure to proceed with the case.

Note: Following the dismissal of the rehearing, the Petitioner filed an Original Special Action Complaint in Superior Court (CV2025-036466) against the ALJ, OAH, and the HOA. The Petitioner is seeking a judgment declaring that the peremptory change of judge was immediate and incontrovertible by legislative fiat, and that the ALJ exceeded her legal authority by dismissing the rehearing


Case Participants

Petitioner Side

  • John F. Sullivan (attorney)
    AZNH Revocable Trust
    Attorney and Trustee for AZNH Revocable Trust.
  • Susan Sullivan (petitioner)
    AZNH Revocable Trust
    Trustee of AZNH Revocable Trust.

Respondent Side

  • Chad M. Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
    Represented Sunland Springs Village Homeowners Association.
  • Cathy Braun (board member)
    Sunland Springs Village Homeowners Association
    Association Secretary/Treasurer.
  • Kathy Fowers (property manager)
    Sunland Springs Village Homeowners Association
    General Manager and Custodian of Records.
  • Paul Minda (board member)
    Sunland Springs Village Homeowners Association
    Board President.
  • B Austin Baillio (HOA attorney)
    Sunland Springs Village Homeowners Association
    Listed on the minute entry and notice of hearing.

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    OAH
    Administrative Law Judge who initially decided the case and was later the subject of a peremptory change request.
  • Susan Nicolson (commissioner)
    ADRE
  • Tammy Eigenheer (director)
    OAH
    Interim Director of the Arizona Office of Administrative Hearings.
  • Joseph P. Mikitish (judge)
    Maricopa County Superior Court
    Judge who handled the appeal LC2025-000025-001 DT.
  • Scott Blaney (judge)
    Maricopa County Superior Court
    Judge assigned to the Original Special Action CV2025-036466.
  • Deanie Reh (attorney)
    Attorney General's Office
    Counsel for Arizona Department of Real Estate.
  • Raya Gardner (attorney)
    Attorney General's Office
    Counsel for Arizona Department of Real Estate.
  • Kara Karlson (attorney)
    Attorney General's Office
    Counsel for Defendants Eigenheer & Abramsohn.
  • Mandy Neat (deputy commissioner)
    ADRE
    Signed the Department's Order and Notice of Hearing.
  • Lynette Evans (attorney)
    Listed on the minute entry for the Maricopa County Superior Court.
  • N. Johnson (clerk)
    Maricopa County Superior Court
    Deputy clerk.
  • J. Thampy (clerk)
    Maricopa County Superior Court
    Deputy clerk.
  • V. Nunez (staff)
    ADRE
  • D. Jones (staff)
    ADRE
  • L. Abril (staff)
    ADRE
  • L. Recchia (staff)
    ADRE
  • G. Osborn (staff)
    ADRE

AZNH Revocable Trust V. Sunland Springs Village Homeowners Association

Posted on by

Case Summary

Case ID 24F-H047-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-11-05
Administrative Law Judge Kay A. Abramsohn
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner AZNH Revocable Trust Counsel John F. Sullivan
Respondent Sunland Springs Village Homeowners Association Counsel Chad M. Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1812(A)(7)

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).

Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).

Key Issues & Findings

Failure to provide voting records (electronic ballots) for inspection

Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1812(A)(7)
  • ARIZ. REV. STAT. § 10-3708(F)
  • ARIZ. REV. STAT. § 33-1812
  • ARIZ. REV. STAT. § 33-1258
  • 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.

Analytics Highlights

Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
Additional Citations:

  • ARIZ. REV. STAT. § 33-1812(A)(7)
  • ARIZ. REV. STAT. § 10-3708(F)
  • ARIZ. REV. STAT. § 33-1812
  • ARIZ. REV. STAT. § 33-1258
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.04

Video Overview

Audio Overview

Decision Documents

24F-H047-REL-RMD Decision – 1240168.pdf

Uploaded 2026-01-23T18:10:22 (184.8 KB)

24F-H047-REL-RMD Decision – 1330098.pdf

Uploaded 2026-01-23T18:10:26 (48.9 KB)

24F-H047-REL-RMD Decision – 1330115.pdf

Uploaded 2026-01-23T18:10:30 (6.2 KB)

24F-H047-REL-RMD Decision – 1338932.pdf

Uploaded 2026-01-23T18:10:35 (56.6 KB)

24F-H047-REL-RMD Decision – 1340272.pdf

Uploaded 2026-01-23T18:10:38 (53.7 KB)

24F-H047-REL-RMD Decision – 1357165.pdf

Uploaded 2026-01-23T18:10:42 (59.5 KB)

24F-H047-REL-RMD Decision – 1358023.pdf

Uploaded 2026-01-23T18:10:50 (12.1 KB)

Questions

Question

If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?

Short Answer

The burden of proof falls on the homeowner (Petitioner) to prove the violation.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).

Legal Basis

A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119

Topic Tags

  • Burden of Proof
  • Legal Procedure

Question

Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?

Short Answer

No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.

Detailed Answer

The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.

Alj Quote

ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.

Legal Basis

A.R.S. § 10-3708(F)(4)

Topic Tags

  • Electronic Voting
  • Records Inspection

Question

Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?

Short Answer

Yes. Data lists generated by voting software are considered compliant records of electronic ballots.

Detailed Answer

When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.

Alj Quote

Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'

Legal Basis

A.R.S. § 33-1812(7)

Topic Tags

  • Records Inspection
  • Electronic Voting

Question

How long must an HOA keep election materials like ballots and sign-in sheets?

Short Answer

The HOA must retain these materials for at least one year.

Detailed Answer

State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.

Alj Quote

Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.

Legal Basis

A.R.S. § 33-1812(A)(7)

Topic Tags

  • Record Retention
  • Elections

Question

What specific features must an online voting system have to be legal?

Short Answer

It must authenticate identity, ensure validity, send a receipt, and store votes.

Detailed Answer

An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.

Alj Quote

online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.

Legal Basis

A.R.S. § 10-3708(F)

Topic Tags

  • Electronic Voting
  • HOA Obligations

Question

Can I use 'secret ballots' if I am voting by mail or absentee?

Short Answer

Yes, but your name/address must still appear on the envelope.

Detailed Answer

If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.

Alj Quote

The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.

Legal Basis

A.R.S. § 33-1812(A)(6)

Topic Tags

  • Voting Rights
  • Privacy

Question

How does the law define 'preponderance of the evidence' in these hearings?

Short Answer

It means the claim is 'more probably true than not'.

Detailed Answer

The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.

Alj Quote

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

Legal Basis

Case Law (Morris K. Udall)

Topic Tags

  • Legal Standards
  • Definitions

Case

Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?

Short Answer

The burden of proof falls on the homeowner (Petitioner) to prove the violation.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).

Legal Basis

A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119

Topic Tags

  • Burden of Proof
  • Legal Procedure

Question

Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?

Short Answer

No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.

Detailed Answer

The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.

Alj Quote

ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.

Legal Basis

A.R.S. § 10-3708(F)(4)

Topic Tags

  • Electronic Voting
  • Records Inspection

Question

Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?

Short Answer

Yes. Data lists generated by voting software are considered compliant records of electronic ballots.

Detailed Answer

When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.

Alj Quote

Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'

Legal Basis

A.R.S. § 33-1812(7)

Topic Tags

  • Records Inspection
  • Electronic Voting

Question

How long must an HOA keep election materials like ballots and sign-in sheets?

Short Answer

The HOA must retain these materials for at least one year.

Detailed Answer

State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.

Alj Quote

Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.

Legal Basis

A.R.S. § 33-1812(A)(7)

Topic Tags

  • Record Retention
  • Elections

Question

What specific features must an online voting system have to be legal?

Short Answer

It must authenticate identity, ensure validity, send a receipt, and store votes.

Detailed Answer

An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.

Alj Quote

online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.

Legal Basis

A.R.S. § 10-3708(F)

Topic Tags

  • Electronic Voting
  • HOA Obligations

Question

Can I use 'secret ballots' if I am voting by mail or absentee?

Short Answer

Yes, but your name/address must still appear on the envelope.

Detailed Answer

If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.

Alj Quote

The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.

Legal Basis

A.R.S. § 33-1812(A)(6)

Topic Tags

  • Voting Rights
  • Privacy

Question

How does the law define 'preponderance of the evidence' in these hearings?

Short Answer

It means the claim is 'more probably true than not'.

Detailed Answer

The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.

Alj Quote

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

Legal Basis

Case Law (Morris K. Udall)

Topic Tags

  • Legal Standards
  • Definitions

Case

Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John F. Sullivan (Petitioner Attorney)
    AZNH Revocable Trust
    Counsel for Susan Sullivan/AZNH Trust
  • Susan Sullivan (Petitioner Trustee)
    AZNH Revocable Trust

Respondent Side

  • Chad M. Gallacher (Respondent Attorney)
    Sunland Springs Village Homeowners Association
    Affiliated with MAXWELL & MORGAN, P.C.
  • Kathy Fowers (General Manager/Witness)
    Sunland Springs Village Homeowners Association
    Custodian of Records
  • Cathy Braun (Association Secretary/Treasurer)
    Sunland Springs Village Homeowners Association
    Referenced in emails regarding documents inspection
  • Paul Minda (Board President/Board Member)
    Sunland Springs Village Homeowners Association
    Present at rehearing
  • Mar (Board Vice President/Board Member)
    Sunland Springs Village Homeowners Association
    Partial name only; present at rehearing
  • Mrs. Holden (Affiliate/Witness)
    Sunland Springs Village Homeowners Association
    Present at Superior Court argument

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    Office of Administrative Hearings
  • Judge McKish (Superior Court Judge)
    Maricopa County Superior Court
    Presided over appeal/remand process
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate

Other Participants

  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission; partial name
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission; partial name
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission; partial name
  • mneat (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission; partial name
  • lrecchia (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission; partial name
  • gosborn (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission; partial name

Justin R. Sheakley v. Arizona Hillcrest Community Association

Posted on by

Case Summary

Case ID 24F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-10-21
Administrative Law Judge Samuel Fox
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Justin R. Sheakley Counsel —
Respondent Arizona Hillcrest Community Association Counsel Quinten Cupps

Alleged Violations

CC&Rs Article 11, Section 11.2

Outcome Summary

Petitioner failed to meet the burden of proof showing Respondent violated its Community Documents concerning the determination of structural damage required for shared cost repair under CC&R 11.2.

Why this result: Petitioner failed to demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.

Key Issues & Findings

Dispute regarding cost sharing for common wall repair (structural damage determination)

Petitioner claimed the wall only required cosmetic repair (HOA responsibility per CC&R 11.2) rather than structural replacement (shared cost). The HOA relied on contractor assessment indicating structural damage. The ALJ found Petitioner failed to meet the burden of proof to show the HOA violated the CC&Rs or acted unreasonably in ordering the repair.

Orders: Respondent deemed the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02

Analytics Highlights

Topics: Structural Damage, HOA Maintenance, Cost Sharing, HOA Discretion
Additional Citations:

  • CC&Rs Article 11, Section 11.2
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02

Audio Overview

Decision Documents

24F-H056-REL Decision – 1211424.pdf

Uploaded 2026-01-23T18:12:24 (55.5 KB)

24F-H056-REL Decision – 1235391.pdf

Uploaded 2026-01-23T18:12:30 (125.4 KB)





Briefing Doc – 24F-H056-REL


Briefing Document: Sheakley v. Arizona Hillcrest Community Association

Executive Summary

This document synthesizes the key facts, arguments, and legal outcome of the dispute between homeowner Justin R. Sheakley (Petitioner) and the Arizona Hillcrest Community Association (Respondent). The central conflict revolves around the required repairs for a common boundary wall at the Petitioner’s property and the associated cost-sharing obligations under the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner alleged the wall only required cosmetic repairs (stucco and paint) and that the Association’s demand for a complete rebuild, with costs split 50/50, constituted a violation of the CC&Rs and was an act of retaliation for his previous opposition to a larger community project. He supported his position with a structural engineer’s report stating there was “no structural reason for the wall to be replaced.”

The Respondent countered that the wall possessed genuine structural damage, including cracking, leaning, and deflection, which necessitated a rebuild rather than a surface-level patch. The Association argued its actions were consistent with CC&R Article 11, Section 11.2, which mandates a 50/50 cost split for repairs involving structural damage. They presented expert testimony from a construction defect specialist and maintained that the Board of Directors acted within its discretionary authority to determine the appropriate level of maintenance.

The matter was adjudicated by the Office of Administrative Hearings. On October 21, 2024, an Administrative Law Judge issued a decision finding that the Petitioner failed to demonstrate by a preponderance of the evidence that the Association had violated its Community Documents. The judge ruled that the Board’s determination of structural damage was not unreasonable and that it had the authority to order the repairs and require payment from the homeowner. The Respondent was deemed the prevailing party.

Case Overview

Details

Case Number

24F-H056-REL

Petitioner

Justin R. Sheakley (Owner of 3234 W. Bajada Dr., Lot 52)

Respondent

Arizona Hillcrest Community Association

Respondent’s Attorney

Quinten Cupps, Vial Fotheringham, LLP

Presiding Judge

Samuel Fox, Office of Administrative Hearings

Hearing Date

September 30, 2024

Decision Date

October 21, 2024

Core Legal Issue

Alleged violation of CC&Rs, Article 11, Section 11.2, concerning maintenance and repair responsibilities for a common wall.

The Central Dispute: The Common Wall at Lot 52

The conflict originated from the Arizona Hillcrest Community Association’s determination that a section of the common boundary wall adjacent to Justin Sheakley’s property (Lot 52) required a complete teardown and rebuild due to structural damage. The Association proposed to undertake the repair through its chosen contractor, Elite Construction and Painting, at a total cost of approximately 4,900,andinvoicedMr.Sheakleyfor502,450), citing cost-sharing provisions for structural damage in the CC&Rs.

Mr. Sheakley disputed the classification of the damage as “structural,” arguing the issues were cosmetic. This disagreement over the scope of necessary work and the interpretation of the CC&Rs formed the basis of his petition to the Arizona Department of Real Estate, leading to the hearing.

Petitioner’s Position and Arguments (Justin R. Sheakley)

Mr. Sheakley’s case was built on the following key arguments:

• Damage is Cosmetic, Not Structural: He contended that the wall’s issues were limited to “stucco delamination” and peeling paint on the bottom courses, which did not compromise its structural integrity. His position was that the wall simply needed to be “restuckled and repainted.”

• Contradictory Assessments: He highlighted that an initial 2020 assessment by a licensed structural engineering firm, Criterium-Kessler Engineers, recommended only “routine repair of sub repair and painting” for his specific wall. He argued the Association improperly shifted its reliance from this professional engineering opinion to the opinions of general contractors (Evolution Construction and Elite Construction) who advocated for a more drastic and expensive rebuild.

• Retaliation: Mr. Sheakley testified that he believed the Association’s actions were “a retaliation for me stopping the construction in 2020 to the sum of $100,000.” This refers to his successful effort to organize residents to pause a large-scale wall repair project at the beginning of the COVID-19 pandemic.

• Potential Conflict of Interest: He raised concerns about the relationship between the contractors, noting that the owner of Elite Construction, Peter Alesi, was a former employee of Evolution Construction. He stated, “I would suspect that evolution construction was looked over and had this grow report written by the same person that owns the Elite Construction of Painting.”

• Supporting Expert Evidence: Mr. Sheakley commissioned his own report from Bringham Engineering Consultants, dated July 27, 2024, which concluded: “It is our opinion that flaking paint and discoloration of the paint has not affected the structural integrity of the wall. There is no structural reason for the wall to be replace.”

Respondent’s Position and Arguments (Arizona Hillcrest Community Association)

The Association, represented by Quinten Cupps, presented the following defense:

• Presence of Structural Damage: The Association maintained the wall suffered from significant structural issues beyond surface cosmetics. Their expert witness, Peter Alesi, testified to observing a lean towards the homeowner’s property, “deflection” (side-to-side movement), and a linear crack at the bottom course of blocks. He asserted that any simple stucco patch would “just pop right back off due to the deflection of that panel.”

• Authority Under CC&Rs: Their central legal argument rested on Article 11, Section 11.2 of the CC&Rs, which states: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”

• Board Discretion and Due Process: Community Manager Melanie Page testified that the Board followed a deliberate process. They obtained reports, bids, reviewed a “matrix” from Evolution mapping the damage, personally walked the community to inspect the walls, and held a vote during a board meeting to approve the repairs. The CC&Rs grant the Board sole discretion in determining the appropriate level of maintenance.

• Jurisdictional Challenge: The Association’s counsel argued that the OAH was not the proper forum for the dispute, stating, “it’s not about not a violation of 11.2, it’s an issue of whether or not we should be repairing the wall. And that’s not what for this court to decide in our opinion.” They claimed the Association was actively trying to comply with its maintenance obligations under the CC&Rs.

• Homeowner Contribution to Damage: During cross-examination, it was established that Mr. Sheakley had planted Ficus trees in January 2022 and anchored them to the wall with cables drilled into the structure. Their expert noted that Ficus trees have “very aggressive roots” that can compromise walls, and photos showed the trees touching the wall and support columns.

Key Evidence and Testimony

Witness Testimony

• Justin R. Sheakley (Petitioner): Testified about the history of the wall issue, the 2020 Criterium-Kessler report, his opposition to the initial project, his belief that the current action is retaliatory, and presented his own engineering report from Bringham Engineering.

• Melanie Page (Community Manager for AAM): Described the HOA’s multi-year process of assessing the walls, obtaining bids, and the Board’s review and approval process. She confirmed that multiple notices were sent to Mr. Sheakley regarding the planned repairs and his financial obligation.

• Peter Alesi (Owner, Elite Construction and Painting): Provided expert testimony as a general contractor with 24 years of experience, including 18 years as a certified construction defect expert. He detailed the specific structural failings of the wall, including movement, cracking, and a lean of up to 3/4 of an inch. He stated that a simple stucco repair would not fix the underlying problem.

Documentary and Physical Evidence

• CC&Rs, Article 11, Section 11.2: The foundational document governing the dispute, outlining cost-sharing responsibilities for walls with structural damage.

• Criterium-Kessler Engineers Report (2020): A structural engineering report that identified various wall issues in the community but recommended only “routine repair” for Mr. Sheakley’s lot.

• Evolution Construction Report/Matrix (2022): A report by a general contractor that mapped wall damage lot-by-lot, identifying “moderate damage” and “block cracks” at Lot 52. Mr. Sheakley used this document to point out inconsistencies, such as Elite Construction rebuilding a wall at Lot 111 that Evolution had deemed in “good condition.”

• Bringham Engineering Consultants Report (2024): Commissioned by Mr. Sheakley, this report concluded there was no structural reason to replace the wall, focusing on paint and discoloration. The judge later noted this report did not address the visible cracking.

• Photographs: Both parties submitted photographs showing stucco delamination, peeling paint, a linear crack at the base of the wall, Ficus trees anchored to the wall, and measurements demonstrating the wall’s lean.

• Google Earth Images: Mr. Sheakley presented images from 2011 and 2019 to show the wall had long-standing issues, predating his planting of the Ficus trees.

Legal Proceedings and Final Decision

The hearing was held on September 30, 2024, before Administrative Law Judge Samuel Fox. After hearing testimony and reviewing all evidence, the judge issued a decision on October 21, 2024.

Conclusions of Law

1. Burden of Proof: The Petitioner, Mr. Sheakley, bore the burden to prove by a preponderance of the evidence that the Association violated its Community Documents.

2. Definition of “Structural Damage”: As the term was not defined in the CC&Rs, the judge assigned it its ordinary meaning: “damage to the integrity of a structure that is more serious than mere cosmetic damage… damaged beyond the surface.” The judge noted that the documents do not require a specific severity of damage to trigger the repair clauses.

3. Board Authority: The Community Documents grant the Board “significant discretion and authority over walls” and other common areas.

4. Failure to Meet Burden: The judge concluded, “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”

5. No Violation Found: The final conclusion was that “the preponderance of the evidence established that Petitioner failed to meet his burden that Respondent failed to abide by its Community Documents.”

Based on these conclusions, the judge issued the following order:

“IT IS ORDERED that Respondent be deemed the prevailing party in this matter.”






Study Guide – 24F-H056-REL


{
“case”: {
“docket_no”: “24F-H056-REL”,
“case_title”: “Justin R. Sheakley v. Arizona Hillcrest Community Association”,
“decision_date”: “2024-10-21”,
“alj_name”: “Samuel Fox”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Who is responsible for paying to repair a shared wall between my home and the common area?”,
“short_answer”: “Costs are split 50/50 if the damage is structural, but surface maintenance is individual.”,
“detailed_answer”: “According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is ‘structural damage’ or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.”,
“alj_quote”: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”,
“legal_basis”: “CC&Rs Article 11, Section 11.2”,
“topic_tags”: [
“maintenance”,
“shared walls”,
“assessments”
]
},
{
“question”: “What is the legal definition of ‘structural damage’ if it isn’t defined in the CC&Rs?”,
“short_answer”: “It means damage to the integrity of the structure that goes beyond mere cosmetic issues.”,
“detailed_answer”: “The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be ‘fatally flawed’ or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.”,
“alj_quote”: “Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.”,
“legal_basis”: “Ordinary Meaning / Judicial Interpretation”,
“topic_tags”: [
“definitions”,
“maintenance”,
“legal interpretation”
]
},
{
“question”: “Who has the burden of proof when a homeowner sues their HOA?”,
“short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”,
“detailed_answer”: “The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(A) and (B)(1)”,
“topic_tags”: [
“procedural”,
“burden of proof”,
“evidence”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to pay for other damages or remediation?”,
“short_answer”: “No, the ALJ’s authority is limited to ordering compliance with documents and levying civil penalties.”,
“detailed_answer”: “The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.”,
“alj_quote”: “This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.”,
“legal_basis”: “A.R.S. § 32-2199.02”,
“topic_tags”: [
“jurisdiction”,
“remedies”,
“penalties”
]
},
{
“question”: “Does the HOA Board have the authority to decide when a repair is necessary?”,
“short_answer”: “Yes, Boards typically have significant discretion to determine maintenance needs.”,
“detailed_answer”: “Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.”,
“alj_quote”: “The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.”,
“legal_basis”: “Community Documents / Board Discretion”,
“topic_tags”: [
“board authority”,
“governance”,
“maintenance”
]
},
{
“question”: “If I hire an engineer who says repairs aren’t needed, will that override the HOA’s decision?”,
“short_answer”: “Not necessarily, if the HOA’s decision was reasonable and supported by evidence.”,
“detailed_answer”: “Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner’s report focused on cosmetic issues (paint), while the HOA’s decision was based on evidence of structural damage. The homeowner failed to prove the Board’s determination was unreasonable.”,
“alj_quote”: “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”,
“legal_basis”: “Preponderance of Evidence”,
“topic_tags”: [
“expert testimony”,
“disputes”,
“evidence”
]
}
]
}






Blog Post – 24F-H056-REL


{
“case”: {
“docket_no”: “24F-H056-REL”,
“case_title”: “Justin R. Sheakley v. Arizona Hillcrest Community Association”,
“decision_date”: “2024-10-21”,
“alj_name”: “Samuel Fox”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “Who is responsible for paying to repair a shared wall between my home and the common area?”,
“short_answer”: “Costs are split 50/50 if the damage is structural, but surface maintenance is individual.”,
“detailed_answer”: “According to the decision, standard surface maintenance (like painting) is the responsibility of the party facing that side of the wall. However, if there is ‘structural damage’ or destruction of the wall, the cost of repair or replacement is shared equally between the homeowner and the HOA.”,
“alj_quote”: “In the case of destruction of both sides of such wall or structural damage, the Owner(s) owning Lots adjacent to the wall shall be responsible for one half of the cost of replacement or repair of the wall and the Association shall be responsible for the other one-half.”,
“legal_basis”: “CC&Rs Article 11, Section 11.2”,
“topic_tags”: [
“maintenance”,
“shared walls”,
“assessments”
]
},
{
“question”: “What is the legal definition of ‘structural damage’ if it isn’t defined in the CC&Rs?”,
“short_answer”: “It means damage to the integrity of the structure that goes beyond mere cosmetic issues.”,
“detailed_answer”: “The ALJ determined that undefined terms should be given their ordinary meaning. Structural damage does not require the structure to be ‘fatally flawed’ or about to collapse; it simply means the damage affects the integrity of the structure and is more serious than surface-level cosmetic issues.”,
“alj_quote”: “Structural damage means damage to the integrity of a structure that is more serious than mere cosmetic damage. … Structural damage does not mean that the structure is fatally flawed; it means that the structure is damaged beyond the surface.”,
“legal_basis”: “Ordinary Meaning / Judicial Interpretation”,
“topic_tags”: [
“definitions”,
“maintenance”,
“legal interpretation”
]
},
{
“question”: “Who has the burden of proof when a homeowner sues their HOA?”,
“short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”,
“detailed_answer”: “The homeowner filing the petition bears the burden of proving that the HOA violated the statutes, CC&Rs, or Bylaws. They must prove this by a ‘preponderance of the evidence,’ meaning it is more likely than not that the violation occurred.”,
“alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”,
“legal_basis”: “A.A.C. R2-19-119(A) and (B)(1)”,
“topic_tags”: [
“procedural”,
“burden of proof”,
“evidence”
]
},
{
“question”: “Can the Administrative Law Judge order the HOA to pay for other damages or remediation?”,
“short_answer”: “No, the ALJ’s authority is limited to ordering compliance with documents and levying civil penalties.”,
“detailed_answer”: “The tribunal has limited jurisdiction. It can order a party to abide by the statute or community documents and can levy civil penalties for those specific violations, but it cannot order other types of remediation or penalties for conduct outside that scope.”,
“alj_quote”: “This Tribunal is not authorized to order other remediation or order civil penalties for other conduct.”,
“legal_basis”: “A.R.S. § 32-2199.02”,
“topic_tags”: [
“jurisdiction”,
“remedies”,
“penalties”
]
},
{
“question”: “Does the HOA Board have the authority to decide when a repair is necessary?”,
“short_answer”: “Yes, Boards typically have significant discretion to determine maintenance needs.”,
“detailed_answer”: “Unless the governing documents state otherwise, the Board has significant discretion and authority to determine the appropriate level of maintenance and when repairs or replacements are necessary for areas the Association is responsible for.”,
“alj_quote”: “The Community Documents in the record … grant the Board significant discretion and authority over walls and other areas that Respondent is responsible for maintaining.”,
“legal_basis”: “Community Documents / Board Discretion”,
“topic_tags”: [
“board authority”,
“governance”,
“maintenance”
]
},
{
“question”: “If I hire an engineer who says repairs aren’t needed, will that override the HOA’s decision?”,
“short_answer”: “Not necessarily, if the HOA’s decision was reasonable and supported by evidence.”,
“detailed_answer”: “Even if a homeowner provides a conflicting report, they must prove the Board acted unreasonably. In this case, the homeowner’s report focused on cosmetic issues (paint), while the HOA’s decision was based on evidence of structural damage. The homeowner failed to prove the Board’s determination was unreasonable.”,
“alj_quote”: “Petitioner did not demonstrate by a preponderance of the evidence that the Board was unreasonable when determining the wall at issue was structurally damaged.”,
“legal_basis”: “Preponderance of Evidence”,
“topic_tags”: [
“expert testimony”,
“disputes”,
“evidence”
]
}
]
}


Case Participants

Petitioner Side

  • Justin R. Sheakley (petitioner)
    Homeowner at 3234 W. Bajada Dr.

Respondent Side

  • Quinten Cupps (attorney)
    VIal Fotheringham, LLP
  • Melanie Veach (community manager, witness)
    Half management (AAM)
    Testified for Respondent. Identified herself as Melanie Page during testimony.
  • Peter Alesi (witness)
    Elite Construction and Painting
    Owner of Elite Construction and Painting, testified regarding structural issues.

Neutral Parties

  • Samuel Fox (ALJ)
    Office of Administrative Hearings
    ALJ for the September 30, 2024 hearing and decision.
  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
    Signed the Order Granting Continuance on August 14, 2024.
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Lisa Marx v. Tara Condominium Association

Posted on by

Case Summary

Case ID 24F-H054-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-09-20
Administrative Law Judge Kay A. Abramsohn
Outcome partial
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lisa Marx Counsel —
Respondent Tara Condominium Association Counsel —

Alleged Violations

A.R.S. § 33-1258(A)
A.R.S. § 33-1248 (A), (D), (E), and (F); and Tara CC&Rs Section 9(E)

Outcome Summary

Petitioner prevailed on the 'Records' issue (A.R.S. § 33-1258), resulting in a $500.00 filing fee reimbursement. Respondent prevailed on the 'Example 13' issue (A.R.S. § 33-1248 and CC&Rs § 9(E)).

Why this result: The Administrative Law Judge concluded that Petitioner failed to sustain her burden regarding the Open Meeting Law allegations, finding that TARA conducted meetings in compliance and the specific volunteer work referenced was not statutorily or contractually required to be placed on an agenda for formal action.

Key Issues & Findings

Records Access Violation

TARA failed to timely provide access to TARA HOA records it possessed, violating the ten business day fulfillment requirement for examination requests.

Orders: TARA was ordered to reimburse Petitioner $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1258(A)

Open Meeting Law Violation (Example 13)

Petitioner alleged open meeting violations concerning volunteer work and projects not placed on agendas or formally voted upon by the board (Example 13).

Orders: Petitioner's Petition was dismissed as to alleged violations of A.R.S. § 33-1248(A), (D), (E), and (F) and/or Tara CC&Rs Section 9(E).

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1248(A)
  • A.R.S. § 33-1248(D)
  • A.R.S. § 33-1248(E)
  • A.R.S. § 33-1248(F)
  • Tara CC&Rs Section 9(E)

Analytics Highlights

Topics: HOA Records, Open Meeting Law, Partial Victory, Filing Fee Reimbursement, Condominium Association
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02
  • A.R.S. § 32-2199.04
  • A.R.S. § 32-2199.05
  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.R.S. § 33-1801 et seq.
  • A.R.S. § 41-1092.09
  • Tara CC&Rs Section 9(E)

Audio Overview

Decision Documents

24F-H054-REL Decision – 1212274.pdf

Uploaded 2026-01-23T18:11:34 (70.4 KB)

24F-H054-REL Decision – 1212281.pdf

Uploaded 2026-01-23T18:11:41 (12.4 KB)

24F-H054-REL Decision – 1216809.pdf

Uploaded 2026-01-23T18:11:49 (50.9 KB)

24F-H054-REL Decision – 1225818.pdf

Uploaded 2026-01-23T18:11:58 (168.1 KB)

24F-H054-REL Decision – 1226250.pdf

Uploaded 2026-01-23T18:12:08 (41.9 KB)





Briefing Doc – 24F-H054-REL


Briefing Document: Marx v. Tara Condominium Association

Executive Summary

This document provides a comprehensive analysis of the administrative case Lisa Marx v. Tara Condominium Association (No. 24F-H054-REL), adjudicated by the Arizona Office of Administrative Hearings. The dispute centers on two primary allegations brought by homeowner and former board member Lisa Marx against the Tara Condominium Association (TARA): (1) violations of Arizona state law regarding access to association records, and (2) violations of the state’s Open Meeting Law.

The case culminated in a split decision by the Administrative Law Judge (ALJ). TARA was found to have violated A.R.S. § 33-1258 by failing to provide timely access to its financial and other records as requested by the petitioner. However, the petitioner failed to prove her second claim that TARA violated the open meeting provisions of A.R.S. § 33-1248 when board members and volunteers performed maintenance and repair projects on common areas without formal agenda items and board votes.

Consequently, the ALJ sustained the petition on the records violation and dismissed it on the open meeting violation. TARA was ordered to reimburse Ms. Marx $500, representing the filing fee for the single issue on which she prevailed. A subsequent request for rehearing filed by Ms. Marx was procedurally rejected for being submitted to the incorrect agency.

Case Background and Procedural History

Parties and Context

• Petitioner: Lisa Marx, a homeowner in the Tara Condominium Association and a former board member who served in various capacities, including Secretary, Chairperson, and Vice-Chairperson, from 2021 until her resignation in January 2024.

• Respondent: Tara Condominium Association (TARA), a 50-unit nonprofit management association, represented at the hearing by its Chairman, Mark Gottmann.

The dispute arose following a change in board leadership in early 2024, with Ms. Marx alleging the new board was operating without transparency and in violation of state statutes and the association’s governing documents.

Chronology of Key Events

Jan 2024

Lisa Marx resigns from the TARA board two weeks after being elected for a fourth term.

Feb 1, 2024

Mark Gottmann assumes the role of Chairman of the Board.

Feb–Apr 2024

Marx makes a series of five requests for association records, which are either partially or fully denied by the TARA board.

May 29, 2024

Marx files an HOA Dispute Process Petition with the Arizona Department of Real Estate, alleging two categories of violations and paying a 1,000filingfee(500 per issue).

Aug 8, 2024

TARA files an Amended Response, admitting to several of the alleged violations, offering to reimburse Marx’s $1,000 filing fee, and requesting that the hearing be vacated.

Aug 8, 2024

Marx files a reply rejecting the offer, stating that the “numerous” issues required “a ruling that is binding and definite” to “hopefully prevent further violations.”

Aug 16, 2024

The ALJ issues an order requiring Marx to narrow her petition to two specific issues, categorizing the five records-request instances as one “records” issue and requiring her to select one of the thirteen alleged open-meeting violations.

Aug 19, 2024

Marx selects “Example 13” from her petition as her second issue.

Aug 29, 2024

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

Sep 20, 2024

The ALJ issues a final decision.

Sep 23, 2024

The ALJ issues a Minute Entry rejecting a request for rehearing filed by Marx, as it was sent to the Office of Administrative Hearings instead of the Commissioner of the Arizona Department of Real Estate.

Analysis of Disputed Issues and Testimony

The hearing focused on two central issues as narrowed by the ALJ’s order.

Issue 1: Access to Association Records (A.R.S. § 33-1258)

This issue consolidated five instances across multiple dates where Marx alleged she was improperly denied access to or provision of TARA’s records.

Petitioner’s Position (Lisa Marx):

• Marx testified that she made multiple written requests for documents including vouchers, contracts, financial reports (General Ledger, AP Distribution), architectural change forms, and violation letters.

• The board’s responses were statutorily invalid. For example, a February 22, 2024 response stated: “A member of the Association is entitled to see reasonable financial information only. A member does not have a right to see contracts entered into by the Board nor information concerning specific members. We respectfully refuse your request…” Another denial was based on her being “no longer a board member.”

• Marx argued this refusal to provide records blocks transparency, creates distrust, and prevents homeowners from ensuring the governing documents are being enforced impartially. She asserted that all requested documents, such as financial records and contracts related to common areas, are records homeowners are entitled to examine.

Respondent’s Position (Tara Condominium Association):

• Mark Gottmann testified that the board was new and that any mistakes were made out of “enthusiasm” and a desire to better the community, not malicious intent.

• He stated the board acted on advice from outside sources, including a trade association, which led them to believe they were “over-providing” documents compared to their CC&Rs, which only mandate semi-annual financial statements.

• TARA experienced delays in receiving financial reports from its management company, Colby, after it was acquired by another entity, which in turn delayed distribution to homeowners.

• Gottmann argued that some requested documents did not exist (e.g., contracts for volunteer work), while others were justifiably withheld because they contained private information about individual homeowners (e.g., violation letters, architectural change forms).

Issue 2: Open Meeting Law Violations (A.R.S. § 33-1248)

This issue centered on “Example 13” of the petition, which alleged the board undertook several projects without adhering to open meeting requirements.

Petitioner’s Position (Lisa Marx):

• Marx alleged that several projects were performed on common property without being included on a meeting agenda and without a formal vote by the board in an open meeting. These projects included:

◦ Board members spraying weeds.

◦ Board members digging up grass around trees and laying mulch.

◦ A board member refinishing wood shutters.

• She argued these actions violated A.R.S. § 33-1248 and TARA’s own CC&Rs (Section 9(E)), which states, “A majority vote of the Managers shall entitle the Board to carry out action on behalf of the owners of the units.”

• The failure to discuss these items in an open meeting denied members the right to provide input before the board took action on community property.

Respondent’s Position (Tara Condominium Association):

• Gottmann characterized the projects as ongoing operational responsibilities and good-faith efforts by volunteers to save the association money.

• The weed spraying was described as an “experiment” at no cost to TARA. The mulching was done with donated materials in response to a homeowner’s suggestion. The shutter repair was done by volunteers for a nominal cost of less than $150 for materials, which was within the monthly maintenance budget.

• He argued these were not formal actions requiring a board vote but were undertaken with an “enthusiasm and desire to make our community a better place.” TARA’s CC&Rs (Section 12, Part D) grant the board the power “to use and expend the assessments collected to maintain, care for, and preserve the common elements.”

Administrative Law Judge’s Decision and Order

The ALJ’s decision, issued on September 20, 2024, delivered a split verdict, finding for each party on one of the two core issues.

Finding on Records Violation (A.R.S. § 33-1258):

• Verdict: TARA violated the statute.

• Reasoning: The ALJ concluded that TARA failed to provide access to records it possessed within the statutorily required ten-day timeframe. While TARA had a potential defense for delays related to its management company and a valid reason to withhold records containing personal information of other members, the overall evidence demonstrated a failure to comply with the law.

• Outcome: The petitioner was deemed the prevailing party on this issue.

Finding on Open Meeting Violation (A.R.S. § 33-1248):

• Verdict: TARA did not violate the statute.

• Reasoning: The ALJ found that the petitioner failed to sustain her burden of proof. The evidence showed that TARA conducted its formal meetings in compliance with open meeting laws, providing notice and agendas. The ALJ concluded there was “no evidence in the hearing record that… those work circumstances… were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board.”

• Outcome: The respondent was deemed the prevailing party on this issue.

Final Order

Based on the findings, the ALJ issued the following orders:

1. Petitioner’s Petition is sustained as to the TARA violation of A.R.S. § 33-1258 (Records).

2. Petitioner’s Petition is dismissed as to the alleged violations by TARA of A.R.S. § 33-1248 (Open Meetings).

3. TARA is ordered to reimburse Petitioner in the amount of $500.00, representing the filing fee for the single successful claim.






Study Guide – 24F-H054-REL


{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }






Blog Post – 24F-H054-REL


{ “case”: { “docket_no”: “24F-H054-REL”, “case_title”: “Lisa Marx v. Tara Condominium Association”, “decision_date”: “2024-09-20”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?”, “short_answer”: “No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.”, “detailed_answer”: “The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.”, “alj_quote”: “TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “financial records”, “management company” ] }, { “question”: “Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?”, “short_answer”: “Not necessarily. If the work is volunteer-based and doesn’t require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.”, “detailed_answer”: “The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute ‘formal action’ that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.”, “alj_quote”: “There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board at the TARA monthly meetings.”, “legal_basis”: “A.R.S. § 33-1248”, “topic_tags”: [ “open meetings”, “volunteer work”, “board authority” ] }, { “question”: “Can the HOA withhold violation letters or architectural change forms concerning other homeowners?”, “short_answer”: “Yes, if those documents contain personal information about specific members.”, “detailed_answer”: “The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.”, “alj_quote”: “A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for ‘personal, health or financial records of an individual member’ … In this case, because some of the requested ‘repair’ contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.”, “legal_basis”: “A.R.S. § 33-1258(B)(4)”, “topic_tags”: [ “privacy”, “violation letters”, “records request” ] }, { “question”: “Can the board deny my records request because I am no longer a board member?”, “short_answer”: “No. The right to examine records belongs to all members of the association.”, “detailed_answer”: “The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was ‘no longer a Board member.’ The statute requires records be made available to ‘any member.'”, “alj_quote”: “TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “homeowner rights”, “records access”, “board membership” ] }, { “question”: “If I file a petition with two issues and only win one, do I get my filing fee back?”, “short_answer”: “You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.”, “detailed_answer”: “In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.”, “alj_quote”: “IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the ‘Example 13’ issue and Petitioner bears the filing fee on this issue.”, “legal_basis”: “A.R.S. § 32-2199.01”, “topic_tags”: [ “filing fees”, “dispute resolution”, “penalties” ] }, { “question”: “Does being a ‘new board’ or ‘learning the ropes’ excuse the HOA from following state laws?”, “short_answer”: “No. Ignorance of the law or being a new board is not a valid defense for violating statutes.”, “detailed_answer”: “The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.”, “alj_quote”: “TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “board duties”, “legal compliance”, “defenses” ] } ] }


Case Participants

Petitioner Side

  • Lisa Marx (petitioner)
    Tara Condominium Association (Homeowner)
    Also former HOA Secretary, Vice-Chairperson, and Chairperson.
  • Brenda Spielder (observer)
    Tara Condominium Association (Member)
    Attended hearing with Petitioner.
  • Cynthia Poland (observer)
    Tara Condominium Association (Member)
    Attended hearing with Petitioner.

Respondent Side

  • Mark Gottmann (board member)
    Tara Condominium Association
    Chairman of the Board; represented Tara at the hearing.
  • Chandler W. Travis (HOA attorney)
    Travis Law Firm PLC
    Counsel for Tara Condominium Association until August 27, 2024.
  • Stephanie Bushart (board member)
    Tara Condominium Association
  • Tina Marie Shepherd (board member)
    Tara Condominium Association
    Resigned as Chairperson on January 31, 2024.
  • Dennis Anderson (board member)
    Tara Condominium Association
    Involved in volunteer work (weed spraying, trench digging, shutter refinishing).
  • Judy Rice (board member)
    Tara Condominium Association
    Treasurer and CPA.
  • Ted (board member)
    Tara Condominium Association
    Involved in volunteer trench work.
  • Nikki (volunteer)
    Tara Condominium Association
    Involved in volunteer shutter repair.

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Renee Snow (volunteer)
    Tara Condominium Association
    Volunteered for landscaping committee.

Arroyo Mountain Estate Homeowners Association v. Goebel, Rick Jr. & Elizabeth

Posted on by

Case Summary

Case ID 24F-H050-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-09-11
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Arroyo Mountain Estate Homeowners Association Counsel Daniel S. Francom
Respondent Rick Jr. & Elizabeth Goebel Counsel —

Alleged Violations

CC&R Article V, Section 5.22; Guidelines Section 2.24

Outcome Summary

The Administrative Law Judge denied the HOA's petition, finding the HOA failed to meet its burden of proving a violation. The homeowner justifiably relied on the ARC's approval, which was granted rapidly and without clarification requests, despite the lack of detail on the wall height, effectively granting an exception to the Guidelines.

Why this result: The HOA (Petitioner) failed to prove the violation by a preponderance of the evidence, primarily because the Architectural Review Committee (ARC) approved the plans after multiple rounds of review, and the homeowner relied on that approval. The delay in the stop construction notice was also deemed unreasonable.

Key Issues & Findings

Construction of unapproved structures/patio walls in excess of permitted height

Petitioner (HOA) alleged Respondent (homeowner) violated community documents by constructing walls around a courtyard in excess of the 42-inch height limit set by the Guidelines Section 2.24, and without sufficient prior approval (CC&R Section 5.22). The constructed wall was approximately 8 feet high.

Orders: Petitioner’s petition in this matter is denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA, Architectural Review, Wall Height, Pony Wall, Approval Reliance, Burden of Proof, Unreasonable Delay
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. ADMIN. CODE R2-19-119
  • CC&R Article V, Section 5.22
  • Guidelines Section 2.24




Briefing Doc – 24F-H050-REL


Arroyo Mountain Estate HOA vs. Goebel: A Dispute Over Architectural Approval

Executive Summary

This document provides a comprehensive overview of the dispute between the Arroyo Mountain Estate Homeowners Association (HOA) and homeowners Rick and Elizabeth Goebel, culminating in an administrative law hearing on August 28, 2024. The central conflict revolves around the construction of a courtyard wall at the Goebels’ property, which the HOA alleged was unapproved and in violation of community guidelines.

The Goebels maintained that they followed all required procedures, submitting multiple revised applications at the HOA’s request, and ultimately received explicit, unconditional approval from the Architectural Review Committee (ARC) before commencing work. They argued that they built a “courtyard wall” in conformance with section 2.9 of the guidelines, which does not specify a height limit, and not a “pony wall,” which is restricted to 42 inches under section 2.24.

The HOA contended that the Goebels’ application was misleading due to a lack of critical details, specifically the wall’s 8-foot 8-inch height and a three-foot overhead hood. Key members of the ARC testified they understood the application to be for landscaping only and would have denied it had the full scope been clear. The HOA argued the constructed wall violates the spirit and letter of the guidelines intended to maintain community aesthetic uniformity.

The case concluded with a definitive ruling by an Administrative Law Judge on September 11, 2024. The judge denied the HOA’s petition, finding that they had not met their burden of proof. The decision highlighted that the Goebels had followed the prescribed process, justifiably relied on the ARC’s formal approval, and that the HOA’s month-long delay in issuing a stop-construction notice was unreasonable. The ruling deemed the ARC’s approval “tantamount to an exception to the Guidelines.”

The Core Dispute: The Courtyard Wall

The conflict centers on improvements made at the Goebels’ property, located at 5408 North Prescott Court (incorrectly listed multiple times in HOA documents as 5408 North Carson Court). The primary structure in question is a wall enclosing a front courtyard area, which the Goebels’ plans identified as a “courtyard wall.”

Alleged Violations by the HOA

The HOA’s petition alleged that the Goebels were in violation of two primary governing documents:

1. CC&Rs Article V, Section 5.22: This section requires homeowners to receive ARC approval before beginning any construction that alters the exterior appearance of a property, demanding that requests “Specify in detail the nature and extent of construction.”

2. Architectural and Landscape Design Guidelines, Section 2.24: This section governs “Pony Walls and Courtyards,” stating that pony walls constructed in a front yard to form a courtyard “should be no higher than 42 inches.”

The HOA argued that the wall built by the Goebels, which reaches a height of approximately 8 feet 8 inches, is functionally a pony wall and therefore violates the 42-inch height restriction.

The Homeowner’s (Goebel) Position and Timeline

The Goebels’ defense was anchored in their assertion of procedural compliance, reliance on a formal approval, and a belief that they were being unfairly targeted.

Application and Approval Process

The timeline of the application process was a key element of the Goebels’ case:

Dec 30, 2022

Initial consolidated application for all improvements submitted via email.

Jan 3, 2023

Initial application denied with the instruction to “please resubmit separate applications for the different projects.”

Jan 3, 2023

Revised, separate applications submitted to the community manager, Katie Sand.

Jan 3, 2023

Additional comments received from Katie Sand requesting further changes.

Jan 3, 2023

Final revised applications submitted at 4:14 p.m. and notice of acceptance received at 4:26 p.m.

Jan 5, 2023

The ARC formally approved the applications, within 48 hours of submission, without requesting additional information.

Argument of Good Faith and Procedural Adherence

Mr. Goebel argued that he diligently followed the HOA’s process and could not have done more to ensure compliance.

“I follow the requirement of the architectural community prepared the application submitted the application via the appropriate application approval process and received approval. It’s unclear what I’m being violated for. It is unclear as to how I violated any part of the approval or constructed improvements not identified on the plan.” – Rick Goebel

He emphasized that the ARC, under its own guidelines, had the power to request more information if the application was deemed incomplete but chose not to, instead granting full approval. Elizabeth Goebel further stated, “they approved the application and we move forward with our approval… We still got the approval. We moved forward in good faith and constructed what we had done.”

Construction Timeline and HOA Response

• March 21, 2023: Engineering drawings submitted to Maricopa County.

• March 24, 2023: Technical approvals and permits issued by the county.

• April 7, 2023: Construction commenced.

• April 19, 2023: The wall reached its full height.

• May 12, 2023: Nearly one month after the wall was completed, the Goebels received a stop-construction notice from the HOA.

Claims of Targeted Harassment

Mr. Goebel testified that he felt his family and home were being targeted by board members, leading to significant distress and financial cost.

“Over the past 12 months, I’ve had to deal with continued harassment from our board… People drive past my home, take pictures of my home. John Conalo has driven past my home multiple times taking pictures of my home… I have people to drive by my home, take photos and post these photos online and generally disrupt the reasonable enjoyment of my property. I am of the opinion that me and my home are being targeted for these improvements by members of the board who are utilizing funds to support the basic attack.” – Rick Goebel

The Homeowners Association’s (HOA) Position

The HOA’s case, presented by attorney Daniel Francom, focused on the argument that the Goebels’ application was deficient and that any approval granted was therefore invalid for the wall as constructed.

Insufficient Detail and Misleading Application

The HOA argued the Goebels “failed to provide sufficient details” in their application.

• Wall Height: The plans did not specify the wall would be 8 feet 8 inches high.

• Overhead Hood: The plans did not clearly indicate a three-foot deep overhead structure above the gate.

• County Plans: The detailed plans submitted to Maricopa County, which included engineering reports and the exact wall height, were never provided to the HOA.

Board President John Consalvo testified that the application “showed nothing about a construction wall showing landscape application turned in.”

Architectural Committee’s Interpretation

ARC member Judy Oliver provided crucial testimony for the HOA, stating that the committee was misled by the application’s presentation.

• She testified that since the application was titled “revamping of landscaping,” she and other members “assumed that this was regarding landscaping only.”

• Regarding the wall itself, she stated, “I felt that that wall wasn’t even up for discussion at the time.”

• Crucially, she asserted that had the Goebels provided specifics for an 8-foot wall, the committee would have denied the project as it “counters the architectural guidelines.”

Violation of Guideline 2.24 (“Pony Walls”)

The HOA’s legal argument rested on classifying the Goebels’ structure under section 2.24. They argued that because the wall creates a courtyard, it should be considered a “pony wall” and is therefore subject to the 42-inch height limit, regardless of what the Goebels labeled it in their plans. They argued the wall “sticks out like a sore thumb” and that there are no other similar walls in the community.

Key Witness Testimony

Ms. Rozzo’s testimony significantly undermined the HOA’s position.

• Admission of Error: When asked if she noted the courtyard wall, she stated, “No, I absolutely missed it. I am completely honest about that. I have missed it just like we’ve missed other ones and nothing’s done about it.”

• Precedent of Inaction: She testified that the ARC had mistakenly approved “at least 15 to 20 homes” with non-compliant improvements and that “the HOA has never pursued them.” She cited unapproved walls, pavers, and concrete pads at other properties.

• Challenge to HOA’s Pursuit: She expressed surprise that the HOA was pursuing this case, stating that when she told John Consalvo that pursuing the Goebels meant they should pursue all other erroneous approvals, he “chuckled and said, ‘Mike, my neighbor,'” implying a neighbor of the board president also had unapproved improvements.

• Board Vote: Ms. Rozzo, who was also a board member for a short time, revealed that the decision to take action against the Goebels was not unanimous, with two of the five board members voting “no.”

Mr. Consalvo testified that the board’s function is to maintain the community and enforce HOA rules. He stated that the Goebels’ application did not provide the required detail for the courtyard wall, its height, or the overhead gate structure. He confirmed he took photos of the property and that, in his view, the wall as built did not conform to any approved application and should have been limited to 42 inches.

Ms. Oliver testified she had been on the ARC since 2017. She stated that the application was understood to be for landscaping and that the wall was not considered for approval due to the lack of detail. She testified that had the 8-foot height been specified, the application would have been denied.

The Final Decision: Administrative Law Judge Ruling

On September 11, 2024, Administrative Law Judge Adam D. Stone issued a final, binding decision in the case (No. 24F-H050-REL).

Ruling

The Petitioner’s (HOA’s) petition was denied. The judge found that the HOA failed to prove its case by a preponderance of the evidence.

Reasoning for the Decision

The judge provided a clear, multi-point rationale for siding with the Goebels:

1. Procedural Compliance: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC.”

2. Justifiable Reliance on Approval: The ARC had multiple opportunities to question the plans and did so on other matters. The judge concluded that Ms. Rozzo’s approval, even if she “missed it,” was a formal action on which the “Respondent justifiably relied… and moved ahead with construction.”

3. Approval as an Exception: The judge stated the formal approval “was tantamount to an exception to the Guidelines as the project was approved.”

4. Unreasonable Delay by HOA: The judge found that for the HOA “to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”

5. Inconsistent Enforcement: The judge noted that “this was not the first time the ARC had approved projects that were not within the Guidelines,” referencing the testimony about other unpursued violations in the community.

Final Order

• The HOA’s petition was formally denied.

• The Respondent (Goebels) was not required to reimburse the HOA’s $500 filing fee.


Questions

Question

If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?

Short Answer

No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.

Detailed Answer

The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.

Alj Quote

Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.

Legal Basis

Justifiable Reliance

Topic Tags

  • architectural approval
  • committee oversight
  • homeowner reliance

Question

Can an approved application serve as a valid exception to written architectural guidelines?

Short Answer

Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.

Detailed Answer

In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.

Alj Quote

This was tantamount to an exception to the Guidelines as the project was approved.

Legal Basis

Exception to Guidelines

Topic Tags

  • guidelines
  • exceptions
  • compliance

Question

Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?

Short Answer

No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.

Detailed Answer

The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.

Alj Quote

Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.

Legal Basis

Reasonableness / Laches

Topic Tags

  • enforcement timing
  • stop work order
  • construction

Question

Who has to prove that a violation occurred during an HOA hearing?

Short Answer

The HOA (the Petitioner) bears the burden of proof.

Detailed Answer

When an HOA petitions for a hearing regarding a violation, they must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.

Legal Basis

Burden of Proof

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?

Short Answer

Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.

Detailed Answer

The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.

Alj Quote

Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.

Legal Basis

Arbitrary Enforcement / Precedent

Topic Tags

  • selective enforcement
  • consistency
  • precedent

Question

If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?

Short Answer

No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.

Detailed Answer

The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.

Alj Quote

Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project

Legal Basis

Due Process / Procedural Compliance

Topic Tags

  • application process
  • due diligence
  • homeowner obligations

Question

Do I have to pay the HOA's filing fees if they sue me and lose?

Short Answer

No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.

Detailed Answer

The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No

24F-H050-REL

Case Title

Arroyo Mountain Estate Homeowners Association v. Goebel

Decision Date

2024-09-11

Alj Name

Adam D. Stone

Tribunal

OAH

Agency

ADRE

Questions

Question

If the HOA approves my architectural application, can they later claim a violation because they 'missed' details in the plan?

Short Answer

No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.

Detailed Answer

The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they 'missed' a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee's oversight after approval has been granted.

Alj Quote

Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.

Legal Basis

Justifiable Reliance

Topic Tags

  • architectural approval
  • committee oversight
  • homeowner reliance

Question

Can an approved application serve as a valid exception to written architectural guidelines?

Short Answer

Yes. An approved application can be considered tantamount to an exception to the community's design guidelines.

Detailed Answer

In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.

Alj Quote

This was tantamount to an exception to the Guidelines as the project was approved.

Legal Basis

Exception to Guidelines

Topic Tags

  • guidelines
  • exceptions
  • compliance

Question

Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?

Short Answer

No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.

Detailed Answer

The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.

Alj Quote

Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.

Legal Basis

Reasonableness / Laches

Topic Tags

  • enforcement timing
  • stop work order
  • construction

Question

Who has to prove that a violation occurred during an HOA hearing?

Short Answer

The HOA (the Petitioner) bears the burden of proof.

Detailed Answer

When an HOA petitions for a hearing regarding a violation, they must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.

Legal Basis

Burden of Proof

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?

Short Answer

Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner's defense.

Detailed Answer

The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA's position in enforcing the rule against the current homeowner.

Alj Quote

Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.

Legal Basis

Arbitrary Enforcement / Precedent

Topic Tags

  • selective enforcement
  • consistency
  • precedent

Question

If I submit an application and answer the committee's questions, do I have to ensure they asked about every single detail?

Short Answer

No. If you follow the submission process and the committee has the opportunity to ask questions but doesn't, the responsibility lies with them.

Detailed Answer

The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.

Alj Quote

Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project

Legal Basis

Due Process / Procedural Compliance

Topic Tags

  • application process
  • due diligence
  • homeowner obligations

Question

Do I have to pay the HOA's filing fees if they sue me and lose?

Short Answer

No. If the HOA's petition is denied, the homeowner is not required to reimburse the filing fee.

Detailed Answer

The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No

24F-H050-REL

Case Title

Arroyo Mountain Estate Homeowners Association v. Goebel

Decision Date

2024-09-11

Alj Name

Adam D. Stone

Tribunal

OAH

Agency

ADRE

Arroyo Mountain Estate Homeowners Association v. Goebel, Rick Jr. &

Posted on by

Case Summary

Case ID 24F-H050-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-09-11
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Arroyo Mountain Estate Homeowners Association Counsel Daniel S. Francom
Respondent Rick Jr. & Elizabeth Goebel Counsel —

Alleged Violations

CC&R Article V, Section 5.22; Guidelines Section 2.24

Outcome Summary

The Administrative Law Judge denied the HOA's petition, finding the HOA failed to meet its burden of proving a violation. The homeowner justifiably relied on the ARC's approval, which was granted rapidly and without clarification requests, despite the lack of detail on the wall height, effectively granting an exception to the Guidelines.

Why this result: The HOA (Petitioner) failed to prove the violation by a preponderance of the evidence, primarily because the Architectural Review Committee (ARC) approved the plans after multiple rounds of review, and the homeowner relied on that approval. The delay in the stop construction notice was also deemed unreasonable.

Key Issues & Findings

Construction of unapproved structures/patio walls in excess of permitted height

Petitioner (HOA) alleged Respondent (homeowner) violated community documents by constructing walls around a courtyard in excess of the 42-inch height limit set by the Guidelines Section 2.24, and without sufficient prior approval (CC&R Section 5.22). The constructed wall was approximately 8 feet high.

Orders: Petitioner’s petition in this matter is denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA, Architectural Review, Wall Height, Pony Wall, Approval Reliance, Burden of Proof, Unreasonable Delay
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. ADMIN. CODE R2-19-119
  • CC&R Article V, Section 5.22
  • Guidelines Section 2.24

Audio Overview

Decision Documents

24F-H050-REL Decision – 1222437.pdf

Uploaded 2026-01-23T18:11:25 (132.2 KB)





Briefing Doc – 24F-H050-REL


Arroyo Mountain Estate HOA vs. Goebel: A Dispute Over Architectural Approval

Executive Summary

This document provides a comprehensive overview of the dispute between the Arroyo Mountain Estate Homeowners Association (HOA) and homeowners Rick and Elizabeth Goebel, culminating in an administrative law hearing on August 28, 2024. The central conflict revolves around the construction of a courtyard wall at the Goebels’ property, which the HOA alleged was unapproved and in violation of community guidelines.

The Goebels maintained that they followed all required procedures, submitting multiple revised applications at the HOA’s request, and ultimately received explicit, unconditional approval from the Architectural Review Committee (ARC) before commencing work. They argued that they built a “courtyard wall” in conformance with section 2.9 of the guidelines, which does not specify a height limit, and not a “pony wall,” which is restricted to 42 inches under section 2.24.

The HOA contended that the Goebels’ application was misleading due to a lack of critical details, specifically the wall’s 8-foot 8-inch height and a three-foot overhead hood. Key members of the ARC testified they understood the application to be for landscaping only and would have denied it had the full scope been clear. The HOA argued the constructed wall violates the spirit and letter of the guidelines intended to maintain community aesthetic uniformity.

The case concluded with a definitive ruling by an Administrative Law Judge on September 11, 2024. The judge denied the HOA’s petition, finding that they had not met their burden of proof. The decision highlighted that the Goebels had followed the prescribed process, justifiably relied on the ARC’s formal approval, and that the HOA’s month-long delay in issuing a stop-construction notice was unreasonable. The ruling deemed the ARC’s approval “tantamount to an exception to the Guidelines.”

The Core Dispute: The Courtyard Wall

The conflict centers on improvements made at the Goebels’ property, located at 5408 North Prescott Court (incorrectly listed multiple times in HOA documents as 5408 North Carson Court). The primary structure in question is a wall enclosing a front courtyard area, which the Goebels’ plans identified as a “courtyard wall.”

Alleged Violations by the HOA

The HOA’s petition alleged that the Goebels were in violation of two primary governing documents:

1. CC&Rs Article V, Section 5.22: This section requires homeowners to receive ARC approval before beginning any construction that alters the exterior appearance of a property, demanding that requests “Specify in detail the nature and extent of construction.”

2. Architectural and Landscape Design Guidelines, Section 2.24: This section governs “Pony Walls and Courtyards,” stating that pony walls constructed in a front yard to form a courtyard “should be no higher than 42 inches.”

The HOA argued that the wall built by the Goebels, which reaches a height of approximately 8 feet 8 inches, is functionally a pony wall and therefore violates the 42-inch height restriction.

The Homeowner’s (Goebel) Position and Timeline

The Goebels’ defense was anchored in their assertion of procedural compliance, reliance on a formal approval, and a belief that they were being unfairly targeted.

Application and Approval Process

The timeline of the application process was a key element of the Goebels’ case:

Dec 30, 2022

Initial consolidated application for all improvements submitted via email.

Jan 3, 2023

Initial application denied with the instruction to “please resubmit separate applications for the different projects.”

Jan 3, 2023

Revised, separate applications submitted to the community manager, Katie Sand.

Jan 3, 2023

Additional comments received from Katie Sand requesting further changes.

Jan 3, 2023

Final revised applications submitted at 4:14 p.m. and notice of acceptance received at 4:26 p.m.

Jan 5, 2023

The ARC formally approved the applications, within 48 hours of submission, without requesting additional information.

Argument of Good Faith and Procedural Adherence

Mr. Goebel argued that he diligently followed the HOA’s process and could not have done more to ensure compliance.

“I follow the requirement of the architectural community prepared the application submitted the application via the appropriate application approval process and received approval. It’s unclear what I’m being violated for. It is unclear as to how I violated any part of the approval or constructed improvements not identified on the plan.” – Rick Goebel

He emphasized that the ARC, under its own guidelines, had the power to request more information if the application was deemed incomplete but chose not to, instead granting full approval. Elizabeth Goebel further stated, “they approved the application and we move forward with our approval… We still got the approval. We moved forward in good faith and constructed what we had done.”

Construction Timeline and HOA Response

• March 21, 2023: Engineering drawings submitted to Maricopa County.

• March 24, 2023: Technical approvals and permits issued by the county.

• April 7, 2023: Construction commenced.

• April 19, 2023: The wall reached its full height.

• May 12, 2023: Nearly one month after the wall was completed, the Goebels received a stop-construction notice from the HOA.

Claims of Targeted Harassment

Mr. Goebel testified that he felt his family and home were being targeted by board members, leading to significant distress and financial cost.

“Over the past 12 months, I’ve had to deal with continued harassment from our board… People drive past my home, take pictures of my home. John Conalo has driven past my home multiple times taking pictures of my home… I have people to drive by my home, take photos and post these photos online and generally disrupt the reasonable enjoyment of my property. I am of the opinion that me and my home are being targeted for these improvements by members of the board who are utilizing funds to support the basic attack.” – Rick Goebel

The Homeowners Association’s (HOA) Position

The HOA’s case, presented by attorney Daniel Francom, focused on the argument that the Goebels’ application was deficient and that any approval granted was therefore invalid for the wall as constructed.

Insufficient Detail and Misleading Application

The HOA argued the Goebels “failed to provide sufficient details” in their application.

• Wall Height: The plans did not specify the wall would be 8 feet 8 inches high.

• Overhead Hood: The plans did not clearly indicate a three-foot deep overhead structure above the gate.

• County Plans: The detailed plans submitted to Maricopa County, which included engineering reports and the exact wall height, were never provided to the HOA.

Board President John Consalvo testified that the application “showed nothing about a construction wall showing landscape application turned in.”

Architectural Committee’s Interpretation

ARC member Judy Oliver provided crucial testimony for the HOA, stating that the committee was misled by the application’s presentation.

• She testified that since the application was titled “revamping of landscaping,” she and other members “assumed that this was regarding landscaping only.”

• Regarding the wall itself, she stated, “I felt that that wall wasn’t even up for discussion at the time.”

• Crucially, she asserted that had the Goebels provided specifics for an 8-foot wall, the committee would have denied the project as it “counters the architectural guidelines.”

Violation of Guideline 2.24 (“Pony Walls”)

The HOA’s legal argument rested on classifying the Goebels’ structure under section 2.24. They argued that because the wall creates a courtyard, it should be considered a “pony wall” and is therefore subject to the 42-inch height limit, regardless of what the Goebels labeled it in their plans. They argued the wall “sticks out like a sore thumb” and that there are no other similar walls in the community.

Key Witness Testimony

Ms. Rozzo’s testimony significantly undermined the HOA’s position.

• Admission of Error: When asked if she noted the courtyard wall, she stated, “No, I absolutely missed it. I am completely honest about that. I have missed it just like we’ve missed other ones and nothing’s done about it.”

• Precedent of Inaction: She testified that the ARC had mistakenly approved “at least 15 to 20 homes” with non-compliant improvements and that “the HOA has never pursued them.” She cited unapproved walls, pavers, and concrete pads at other properties.

• Challenge to HOA’s Pursuit: She expressed surprise that the HOA was pursuing this case, stating that when she told John Consalvo that pursuing the Goebels meant they should pursue all other erroneous approvals, he “chuckled and said, ‘Mike, my neighbor,'” implying a neighbor of the board president also had unapproved improvements.

• Board Vote: Ms. Rozzo, who was also a board member for a short time, revealed that the decision to take action against the Goebels was not unanimous, with two of the five board members voting “no.”

Mr. Consalvo testified that the board’s function is to maintain the community and enforce HOA rules. He stated that the Goebels’ application did not provide the required detail for the courtyard wall, its height, or the overhead gate structure. He confirmed he took photos of the property and that, in his view, the wall as built did not conform to any approved application and should have been limited to 42 inches.

Ms. Oliver testified she had been on the ARC since 2017. She stated that the application was understood to be for landscaping and that the wall was not considered for approval due to the lack of detail. She testified that had the 8-foot height been specified, the application would have been denied.

The Final Decision: Administrative Law Judge Ruling

On September 11, 2024, Administrative Law Judge Adam D. Stone issued a final, binding decision in the case (No. 24F-H050-REL).

Ruling

The Petitioner’s (HOA’s) petition was denied. The judge found that the HOA failed to prove its case by a preponderance of the evidence.

Reasoning for the Decision

The judge provided a clear, multi-point rationale for siding with the Goebels:

1. Procedural Compliance: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC.”

2. Justifiable Reliance on Approval: The ARC had multiple opportunities to question the plans and did so on other matters. The judge concluded that Ms. Rozzo’s approval, even if she “missed it,” was a formal action on which the “Respondent justifiably relied… and moved ahead with construction.”

3. Approval as an Exception: The judge stated the formal approval “was tantamount to an exception to the Guidelines as the project was approved.”

4. Unreasonable Delay by HOA: The judge found that for the HOA “to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”

5. Inconsistent Enforcement: The judge noted that “this was not the first time the ARC had approved projects that were not within the Guidelines,” referencing the testimony about other unpursued violations in the community.

Final Order

• The HOA’s petition was formally denied.

• The Respondent (Goebels) was not required to reimburse the HOA’s $500 filing fee.






Study Guide – 24F-H050-REL


{
“case”: {
“docket_no”: “24F-H050-REL”,
“case_title”: “Arroyo Mountain Estate Homeowners Association v. Goebel”,
“decision_date”: “2024-09-11”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “If the HOA approves my architectural application, can they later claim a violation because they ‘missed’ details in the plan?”,
“short_answer”: “No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.”,
“detailed_answer”: “The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they ‘missed’ a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee’s oversight after approval has been granted.”,
“alj_quote”: “Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.”,
“legal_basis”: “Justifiable Reliance”,
“topic_tags”: [
“architectural approval”,
“committee oversight”,
“homeowner reliance”
]
},
{
“question”: “Can an approved application serve as a valid exception to written architectural guidelines?”,
“short_answer”: “Yes. An approved application can be considered tantamount to an exception to the community’s design guidelines.”,
“detailed_answer”: “In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.”,
“alj_quote”: “This was tantamount to an exception to the Guidelines as the project was approved.”,
“legal_basis”: “Exception to Guidelines”,
“topic_tags”: [
“guidelines”,
“exceptions”,
“compliance”
]
},
{
“question”: “Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?”,
“short_answer”: “No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.”,
“detailed_answer”: “The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.”,
“alj_quote”: “Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”,
“legal_basis”: “Reasonableness / Laches”,
“topic_tags”: [
“enforcement timing”,
“stop work order”,
“construction”
]
},
{
“question”: “Who has to prove that a violation occurred during an HOA hearing?”,
“short_answer”: “The HOA (the Petitioner) bears the burden of proof.”,
“detailed_answer”: “When an HOA petitions for a hearing regarding a violation, they must prove their case by a ‘preponderance of the evidence.’ This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.”,
“alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.”,
“legal_basis”: “Burden of Proof”,
“topic_tags”: [
“legal procedure”,
“evidence”,
“burden of proof”
]
},
{
“question”: “Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?”,
“short_answer”: “Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner’s defense.”,
“detailed_answer”: “The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA’s position in enforcing the rule against the current homeowner.”,
“alj_quote”: “Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.”,
“legal_basis”: “Arbitrary Enforcement / Precedent”,
“topic_tags”: [
“selective enforcement”,
“consistency”,
“precedent”
]
},
{
“question”: “If I submit an application and answer the committee’s questions, do I have to ensure they asked about every single detail?”,
“short_answer”: “No. If you follow the submission process and the committee has the opportunity to ask questions but doesn’t, the responsibility lies with them.”,
“detailed_answer”: “The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.”,
“alj_quote”: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project”,
“legal_basis”: “Due Process / Procedural Compliance”,
“topic_tags”: [
“application process”,
“due diligence”,
“homeowner obligations”
]
},
{
“question”: “Do I have to pay the HOA’s filing fees if they sue me and lose?”,
“short_answer”: “No. If the HOA’s petition is denied, the homeowner is not required to reimburse the filing fee.”,
“detailed_answer”: “The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.”,
“alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee”,
“legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“penalties”,
“costs”
]
}
]
}






Blog Post – 24F-H050-REL


{
“case”: {
“docket_no”: “24F-H050-REL”,
“case_title”: “Arroyo Mountain Estate Homeowners Association v. Goebel”,
“decision_date”: “2024-09-11”,
“alj_name”: “Adam D. Stone”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“questions”: [
{
“question”: “If the HOA approves my architectural application, can they later claim a violation because they ‘missed’ details in the plan?”,
“short_answer”: “No. If the HOA approves the application, the homeowner can justifiably rely on that approval to proceed, even if the committee claims they missed specific details during review.”,
“detailed_answer”: “The ALJ ruled that once an application is approved, the homeowner has the right to rely on that approval to begin construction. Even if an Architectural Committee member testifies later that they ‘missed’ a detail (like a wall height) during their review, the approval stands. The HOA cannot penalize the homeowner for the committee’s oversight after approval has been granted.”,
“alj_quote”: “Ms. Rozzo testified that while she may have “missed it”, the Application was nonetheless approved, and Respondent justifiably relied on the approval and moved ahead with construction.”,
“legal_basis”: “Justifiable Reliance”,
“topic_tags”: [
“architectural approval”,
“committee oversight”,
“homeowner reliance”
]
},
{
“question”: “Can an approved application serve as a valid exception to written architectural guidelines?”,
“short_answer”: “Yes. An approved application can be considered tantamount to an exception to the community’s design guidelines.”,
“detailed_answer”: “In this case, the HOA argued the construction violated height guidelines. However, because the specific project plans were submitted and approved by the committee, the ALJ determined that this approval effectively acted as an exception to the general guidelines, making the construction permissible.”,
“alj_quote”: “This was tantamount to an exception to the Guidelines as the project was approved.”,
“legal_basis”: “Exception to Guidelines”,
“topic_tags”: [
“guidelines”,
“exceptions”,
“compliance”
]
},
{
“question”: “Is it reasonable for an HOA to issue a stop work notice after I have already completed my project?”,
“short_answer”: “No. Waiting until a project is completed to issue a stop construction notice is considered unreasonable.”,
“detailed_answer”: “The ALJ found that the HOA failed to act in a timely manner. Issuing a stop construction notice nearly a month after the homeowner had already finished building the structure was deemed unreasonable behavior by the association.”,
“alj_quote”: “Moreover, for Petitioner to wait almost a month once the project was completed to provide a stop construction notice to Respondent was unreasonable.”,
“legal_basis”: “Reasonableness / Laches”,
“topic_tags”: [
“enforcement timing”,
“stop work order”,
“construction”
]
},
{
“question”: “Who has to prove that a violation occurred during an HOA hearing?”,
“short_answer”: “The HOA (the Petitioner) bears the burden of proof.”,
“detailed_answer”: “When an HOA petitions for a hearing regarding a violation, they must prove their case by a ‘preponderance of the evidence.’ This means they must convince the judge that their claim is more likely true than not. If they fail to meet this burden, the homeowner prevails.”,
“alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.”,
“legal_basis”: “Burden of Proof”,
“topic_tags”: [
“legal procedure”,
“evidence”,
“burden of proof”
]
},
{
“question”: “Does it matter if the HOA has allowed other non-compliant projects in the neighborhood?”,
“short_answer”: “Yes. Evidence that the HOA has previously approved other projects that did not meet guidelines can support the homeowner’s defense.”,
“detailed_answer”: “The ALJ noted that the evidence showed this was not an isolated incident; the Architectural Committee had previously approved other projects that were not compliant with the Guidelines. This pattern weakens the HOA’s position in enforcing the rule against the current homeowner.”,
“alj_quote”: “Further, as the evidence provided, this was not the first time the ARC had approved projects that were not within the Guidelines.”,
“legal_basis”: “Arbitrary Enforcement / Precedent”,
“topic_tags”: [
“selective enforcement”,
“consistency”,
“precedent”
]
},
{
“question”: “If I submit an application and answer the committee’s questions, do I have to ensure they asked about every single detail?”,
“short_answer”: “No. If you follow the submission process and the committee has the opportunity to ask questions but doesn’t, the responsibility lies with them.”,
“detailed_answer”: “The homeowner followed the CC&R process by submitting the application. The committee had multiple chances to ask for clarification or details (like height) but failed to do so before approving. The judge ruled the homeowner followed the proper process.”,
“alj_quote”: “Respondent followed the process as laid out in section 5.22 of the CC&Rs, by submitting its Application to the ARC. The ARC had many opportunities thereafter to question Respondent about the project”,
“legal_basis”: “Due Process / Procedural Compliance”,
“topic_tags”: [
“application process”,
“due diligence”,
“homeowner obligations”
]
},
{
“question”: “Do I have to pay the HOA’s filing fees if they sue me and lose?”,
“short_answer”: “No. If the HOA’s petition is denied, the homeowner is not required to reimburse the filing fee.”,
“detailed_answer”: “The ALJ explicitly ordered that because the petition was denied, the respondent (homeowner) was not required to pay back the $500 filing fee that the HOA paid to the Department.”,
“alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee”,
“legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”,
“topic_tags”: [
“fees”,
“penalties”,
“costs”
]
}
]
}


Case Participants

Petitioner Side

  • Daniel S. Francom (HOA attorney)
    Goodman Law
    Represented Arroyo Mountain Estate Homeowners Association.
  • John Consalvo (board president, witness)
    Arroyo Mountain Estate Homeowners Association Board
    President of the Association's Board; testified for Petitioner.
  • Judy Oliver (architectural committee member, witness)
    Arroyo Mountain Estate Homeowners Association Architectural Committee
    Testified for Petitioner; member of the ARC.

Respondent Side

  • Rick Goebel Jr. (respondent, homeowner)
    Testified on his own behalf; also referred to as Mr. Gobel/Goebel.
  • Elizabeth Goebel (respondent, homeowner)
    Testified on her own behalf; also referred to as Ms. Goebel.
  • Nancy Rozzo (architectural committee member, witness, former board member)
    Arroyo Mountain Estate Homeowners Association Architectural Committee
    Approved Respondent's plans; testified for Respondent. Referred to as Ms. Brazo/Rozo.

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
    Administrative Law Judge assigned to the hearing.
  • Susan Nicolson (Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate.
  • V. Nunez (ADRE staff)
    ADRE
    Recipient of the decision for transmission (derived from email [email protected]).
  • D. Jones (ADRE staff)
    ADRE
    Recipient of the decision for transmission (derived from email [email protected]).
  • L. Abril (ADRE staff)
    ADRE
    Recipient of the decision for transmission (derived from email [email protected]).
  • M. Neat (ADRE staff)
    ADRE
    Recipient of the decision for transmission (derived from email [email protected]).
  • L. Recchia (ADRE staff)
    ADRE
    Recipient of the decision for transmission (derived from email [email protected]).
  • G. Osborn (ADRE staff)
    ADRE
    Recipient of the decision for transmission (derived from email [email protected]).

Other Participants

  • Katie Sand (property manager)
    Vision Community Management
    Former employee/property manager involved in initial communications; also referred to as Katie Tam and Katie Pan.

Taylor Kidd vs Heritage Village III Homeowners Association (ROOT)

Posted on by

Case Summary

Case ID 24F-H037-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-23
Administrative Law Judge Adam D. Stone
Outcome full
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Taylor Kidd and Jerome L. Glazer Counsel Patrick T. Nackley
Respondent Heritage Village III Homeowners Association Counsel Tessa Knueppel and Mark K. Sahl

Alleged Violations

McCormick Ranch CC&R Article III, Section 4 and Heritage Village III HO CC&R Article VII, Section 1

Outcome Summary

The ALJ found that the Association violated its own CC&Rs (Article VII, Section 1) by failing to incorporate and follow Article III, Section 4 of the McCormick Ranch CC&Rs, which required a two-thirds vote of voting owners for a special assessment for capital improvements. Both petitions were granted, and the Association was ordered to refund the total filing fees of $1,000.00.

Why this result: Respondent failed to take the required vote regarding the special assessment for the Landscape Improvement Project, in violation of the controlling CC&Rs.

Key Issues & Findings

Violation of CC&Rs by approving a Landscape Improvement Project and potential special assessment for a capital improvement without the required 2/3 membership vote.

The Association violated its CC&Rs by failing to follow the McCormick Ranch CC&R provision requiring the assent of two-thirds (2/3) of the votes cast by Voting Owners for a Special Assessment intended for construction, reconstruction, repair, or replacement of a capital improvement (the Landscape Improvement Project).

Orders: The petitions were granted. Respondent was ordered to reimburse both Petitioners' filing fees pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • McCormick Ranch CC&R Article III, Section 4
  • Association CC&R Article VII, Section 1

Analytics Highlights

Topics: Special Assessment, Capital Improvement, Membership Vote, CC&R Violation, Consolidation, Master Association
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092
  • ARIZ. REV. STAT. § 33-1803.7
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Title 33, Chapter 16, Article 1 of the Arizona Revised Statutes

Video Overview

Audio Overview

Decision Documents

24F-H037-REL Decision – 1182719.pdf

Uploaded 2026-01-23T18:06:55 (62.8 KB)

24F-H037-REL Decision – 1182767.pdf

Uploaded 2026-01-23T18:07:03 (13.4 KB)

24F-H037-REL Decision – 1182769.pdf

Uploaded 2026-01-23T18:07:08 (50.0 KB)

24F-H037-REL Decision – 1203525.pdf

Uploaded 2026-01-23T18:07:12 (49.3 KB)

24F-H037-REL Decision – 1215299.pdf

Uploaded 2026-01-23T18:07:14 (123.4 KB)

24F-H037-REL Decision – 1226570.pdf

Uploaded 2026-01-23T18:07:16 (39.7 KB)

Questions

Question

Can I petition the Arizona Department of Real Estate for a hearing if my HOA violates the CC&Rs?

Short Answer

Yes, owners may petition the department for hearings regarding violations of community documents or statutes regulating planned communities.

Detailed Answer

The Department has jurisdiction over disputes between owners and associations. An owner can petition for a hearing concerning violations of the community's governing documents (CC&Rs) or state statutes, provided they file the petition and pay the required fee.

Alj Quote

regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199

Topic Tags

  • jurisdiction
  • homeowner rights
  • petition process

Question

What is the standard of proof I must meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probably true than not.

Detailed Answer

The burden of proof lies with the petitioner (the homeowner). They must demonstrate that the violation occurred by a preponderance of the evidence, which is defined as evidence that convinces the judge that the claim is more likely true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

If my specific subdivision's CC&Rs are silent on a rule, but the Master Association's CC&Rs address it, which rules apply?

Short Answer

The Master Association's rules likely apply if your subdivision's CC&Rs reference or incorporate the Master documents.

Detailed Answer

In this case, the sub-association's CC&Rs did not explicitly require a vote for capital improvements, but the Master Association's CC&Rs did. Because the sub-association's documents contained language incorporating the Master provisions ('including but not limited to'), the Master Association's requirement for a homeowner vote applied.

Alj Quote

Based upon the foregoing, Petitioners met their burdens of proof in demonstrating that the Association was in violation the CC&R’s as it would be inconsistent to assume that only part of Article III of the McCormick Ranch’s CC&R’s would apply to the Association while Section 4 would somehow be excluded.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&Rs
  • master association
  • governing documents

Question

Does the HOA need a homeowner vote to pass a special assessment for a capital improvement?

Short Answer

Yes, if the controlling CC&Rs require it. In this case, a 2/3 vote of voting owners was required.

Detailed Answer

The decision affirmed that the Association violated the governing documents by failing to hold a vote. The controlling Master CC&Rs specifically required approval by two-thirds of the voting owners for special assessments related to the construction, repair, or replacement of capital improvements.

Alj Quote

provided that any such assessment shall have the assent of two-thirds (2/3) of the votes cast by Voting Owners in person or by proxy at a meeting duly called for such purpose

Legal Basis

Master CC&R Article III, Section 4

Topic Tags

  • special assessments
  • voting rights
  • capital improvements

Question

If I successfully prove my HOA violated the rules, can I get my filing fees back?

Short Answer

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

Detailed Answer

Upon finding that the Association violated the CC&Rs, the judge ordered the Respondent (the HOA) to reimburse the filing fees paid by the Petitioners to the Department of Real Estate.

Alj Quote

Respondent shall reimburse both Petitioner’s filing fees as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • reimbursement
  • fees

Case

Docket No
24F-H037-REL, 24F-H039-REL
Case Title
Taylor Kidd and Jerome L. Glazer vs Heritage Village III Homeowners Association
Decision Date
2024-08-23
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I petition the Arizona Department of Real Estate for a hearing if my HOA violates the CC&Rs?

Short Answer

Yes, owners may petition the department for hearings regarding violations of community documents or statutes regulating planned communities.

Detailed Answer

The Department has jurisdiction over disputes between owners and associations. An owner can petition for a hearing concerning violations of the community's governing documents (CC&Rs) or state statutes, provided they file the petition and pay the required fee.

Alj Quote

regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199

Topic Tags

  • jurisdiction
  • homeowner rights
  • petition process

Question

What is the standard of proof I must meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probably true than not.

Detailed Answer

The burden of proof lies with the petitioner (the homeowner). They must demonstrate that the violation occurred by a preponderance of the evidence, which is defined as evidence that convinces the judge that the claim is more likely true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

If my specific subdivision's CC&Rs are silent on a rule, but the Master Association's CC&Rs address it, which rules apply?

Short Answer

The Master Association's rules likely apply if your subdivision's CC&Rs reference or incorporate the Master documents.

Detailed Answer

In this case, the sub-association's CC&Rs did not explicitly require a vote for capital improvements, but the Master Association's CC&Rs did. Because the sub-association's documents contained language incorporating the Master provisions ('including but not limited to'), the Master Association's requirement for a homeowner vote applied.

Alj Quote

Based upon the foregoing, Petitioners met their burdens of proof in demonstrating that the Association was in violation the CC&R’s as it would be inconsistent to assume that only part of Article III of the McCormick Ranch’s CC&R’s would apply to the Association while Section 4 would somehow be excluded.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&Rs
  • master association
  • governing documents

Question

Does the HOA need a homeowner vote to pass a special assessment for a capital improvement?

Short Answer

Yes, if the controlling CC&Rs require it. In this case, a 2/3 vote of voting owners was required.

Detailed Answer

The decision affirmed that the Association violated the governing documents by failing to hold a vote. The controlling Master CC&Rs specifically required approval by two-thirds of the voting owners for special assessments related to the construction, repair, or replacement of capital improvements.

Alj Quote

provided that any such assessment shall have the assent of two-thirds (2/3) of the votes cast by Voting Owners in person or by proxy at a meeting duly called for such purpose

Legal Basis

Master CC&R Article III, Section 4

Topic Tags

  • special assessments
  • voting rights
  • capital improvements

Question

If I successfully prove my HOA violated the rules, can I get my filing fees back?

Short Answer

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

Detailed Answer

Upon finding that the Association violated the CC&Rs, the judge ordered the Respondent (the HOA) to reimburse the filing fees paid by the Petitioners to the Department of Real Estate.

Alj Quote

Respondent shall reimburse both Petitioner’s filing fees as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • reimbursement
  • fees

Case

Docket No
24F-H037-REL, 24F-H039-REL
Case Title
Taylor Kidd and Jerome L. Glazer vs Heritage Village III Homeowners Association
Decision Date
2024-08-23
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Taylor Kidd (petitioner)
  • Jerome L. Glazer (petitioner)
    Appeared on his own behalf
  • Patrick T. Nackley (petitioner attorney)
    MEDALIST LEGAL PLC
    Represented Petitioner Taylor Kidd
  • Brandon P. Bodea (petitioner attorney)
    MEDALIST LEGAL PLC
  • Jack Sales (homeowner)
    Co-authored a letter to the Board with Petitioner Glazer

Respondent Side

  • Jennifer Hutsko (board member/witness)
    Heritage Village III Homeowners Association
    Director and member of the Community Planning Committee
  • Glenn Martyr (board member)
    Heritage Village III Homeowners Association
    Seconded motion in meeting minutes
  • Steve Wolf (board member)
    Heritage Village III Homeowners Association
    Seconded motion in meeting minutes
  • Tessa Knueppel (respondent attorney)
    CHDB Law LLP
    Represented Respondent at hearing
  • Mark K. Sahl (respondent attorney)
    CHDB Law LLP
    Represented Respondent at hearing
  • Charles H. Oldham (respondent attorney)
    CHDB Law LLP
  • Josh Bolen (respondent attorney)
    CHDB Law LLP

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
    Conducted hearing and issued Decision
  • Tammy L. Eigenheer (ALJ)
    OAH
    Signed consolidation order
  • Susan Nicolson (Commissioner)
    ADRE

Jerome L. Glazer vs Heritage Village III Homeowners Association

Posted on by

Case Summary

Case ID 24F-H037-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-23
Administrative Law Judge Adam D. Stone
Outcome total
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Taylor Kidd Counsel Patrick T. Nackley
Respondent Heritage Village III Homeowners Association Counsel Tessa Knueppel

Alleged Violations

Association CC&R's Article VII, Section 1; McCormick Ranch CC&R's Article III, Section 4
Association CC&R's Article VII, Section 1; McCormick Ranch CC&R's Article III, Section 4

Outcome Summary

The ALJ granted both consolidated petitions, finding the Association violated its own CC&Rs and the McCormick Ranch master CC&Rs by approving a $1.5 million landscape improvement project and corresponding special assessment without obtaining the required two-thirds vote of homeowners. The Association was ordered to reimburse the filing fees for both petitioners.

Key Issues & Findings

Capital Improvement Project Approval without Vote

Petitioner Kidd alleged the Association violated the CC&Rs by approving a landscape improvement project and special assessment without obtaining the required membership vote.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Capital Improvement Project Approval without Vote

Petitioner Glazer alleged the Association violated the CC&Rs by approving a landscape improvement project and special assessment without obtaining the required membership vote.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Decision Documents

24F-H039-REL Decision – 1182719.pdf

Uploaded 2026-02-28T18:28:21 (62.8 KB)

24F-H039-REL Decision – 1182767.pdf

Uploaded 2026-02-28T18:28:21 (13.4 KB)

24F-H039-REL Decision – 1182769.pdf

Uploaded 2026-02-28T18:28:21 (50.0 KB)

24F-H039-REL Decision – 1203525.pdf

Uploaded 2026-02-28T18:28:22 (49.3 KB)

24F-H039-REL Decision – 1215299.pdf

Uploaded 2026-02-28T18:28:22 (123.4 KB)

24F-H039-REL Decision – 1226570.pdf

Uploaded 2026-02-28T18:28:22 (39.7 KB)

**Case Title:** 24F-H039-REL (Consolidated with 24F-H037-REL)

**Hearing Proceedings**
The cases filed by Petitioners Jerome L. Glazer and Taylor Kidd against the Heritage Village III Homeowners Association (the "Association") were consolidated into a single proceeding because they involved substantially similar legal and factual objections to the same action taken by the Association. Following a continuance due to a computer outage and the denial of a pre-hearing Cease and Desist Order, the evidentiary hearing convened on August 9, 2024, before Administrative Law Judge (ALJ) Adam D. Stone.

**Key Facts**
On December 19, 2023, the Association's Board of Directors notified homeowners of an approved Landscape Improvement Project designed to replace a 40-year-old failing irrigation system and address dead or dying landscaping. The project was estimated to cost $1,557,950.00, which would require a special assessment of $9,385.24 for each of the 166 homeowners. While the Board claimed a community survey showed 72% homeowner approval for the project, they did not conduct a formal membership vote prior to approving the project and the resulting assessment.

**Key Arguments & Main Issues**
The central legal issue was whether the Association's Board violated governing documents by approving a capital improvement project and special assessment without a formal homeowner vote.

* **Petitioners' Argument:** The Petitioners argued that the Association was legally bound by the overarching McCormick Ranch Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Article III, Section 4 of the McCormick Ranch CC&Rs requires the assent of two-thirds (2/3) of voting owners for any special assessment related to capital improvements.
* **Respondent's Argument:** The Association argued that its own specific CC&Rs were silent on the requirement for a homeowner vote. Therefore, the Board asserted it was acting within its authority and its duty to maintain the community's property without needing a formal ballot.

**Final Decision and Outcome**
The Administrative Law Judge ruled in favor of the Petitioners, determining that they met their burden of proof. The ALJ

Case Participants

Petitioner Side

  • Taylor Kidd (petitioner)
    Homeowner who filed the petition regarding a landscaping project
  • Jerome L. Glazer (petitioner)
    Homeowner who filed the petition; appeared on his own behalf
  • Patrick T. Nackley (attorney)
    MEDALIST LEGAL PLC
    Represented Petitioner Taylor Kidd
  • Brandon P. Bodea (attorney)
    MEDALIST LEGAL PLC
    Listed on the docket for Medalist Legal PLC

Respondent Side

  • Tessa Knueppel (attorney)
    CHDB Law LLP
    Represented Respondent Heritage Village III Homeowners Association
  • Mark K. Sahl (attorney)
    CHDB Law LLP
    Represented Respondent Heritage Village III Homeowners Association
  • Charles H. Oldham (attorney)
    CHDB Law LLP
    Listed on the docket for CHDB Law LLP
  • Josh Bolen (attorney)
    CHDB Law LLP
    Listed on the docket for CHDB Law LLP
  • Jennifer Hutsko (board member)
    Heritage Village III Homeowners Association
    Testified as a witness; serves on the Community Planning Committee

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge who issued the final decision
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge who issued pre-hearing orders
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
    Commissioner receiving the order/decision

Deborah Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 24F-H041-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-14
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah Masear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Erica L. Mortenson

Alleged Violations

Park By-Laws Article III, Section 1

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's claim, finding that the HOA (Park) was in compliance with its By-Laws. Frank Maiz was found to be the spouse of the unit owner (Mercedes B.B. Maiz), making him eligible to serve on the Board of Directors.

Why this result: Petitioner was mistaken regarding the current ownership of the unit at issue and failed to prove the respondent violated the Park By-Laws.

Key Issues & Findings

Board of Directors Qualification (Owner/Spouse Requirement)

Petitioner alleged that Frank Maiz was ineligible for the Board because his wife, Mercedes B.B. Maiz, was not the true owner of the unit, arguing that their daughter (also Mercedes B.B. Maiz) was the owner based on a recorded Beneficiary Deed. The Respondent proved that the wife owned the property, making Frank Maiz eligible as her spouse.

Orders: Petitioner's Petition is dismissed. Park is deemed the prevailing party. Petitioner shall bear her filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1801 et seq.
  • A.R.S. § 32-2199.05
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

24F-H041-REL Decision – 1178740.pdf

Uploaded 2026-01-23T18:07:21 (54.4 KB)

24F-H041-REL Decision – 1202883.pdf

Uploaded 2026-01-23T18:07:25 (42.7 KB)

24F-H041-REL Decision – 1211324.pdf

Uploaded 2026-01-23T18:07:30 (120.7 KB)

Questions

Question

Who is responsible for proving a violation occurred in an HOA dispute hearing?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the person bringing the complaint must prove their case. The HOA does not automatically have to prove they are innocent; the accuser must prove the violation occurred.

Alj Quote

In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Can the spouse of a homeowner serve on the Board of Directors even if they are not listed on the deed?

Short Answer

Yes, if the community bylaws explicitly allow spouses of owners to serve.

Detailed Answer

If the specific HOA bylaws state that board members can be owners or the spouse of an owner, a spouse may run for and serve on the board even if they are not legally listed on the property deed.

Alj Quote

Park By-Laws Article III, Section 1 provides, in pertinent part: Each member of the Board of Directors shall be either an owner of a Unit or the spouse of an owner.

Legal Basis

Community Bylaws

Topic Tags

  • board eligibility
  • bylaws
  • elections

Question

Does a 'Beneficiary Deed' transfer ownership of a property immediately?

Short Answer

No, a Beneficiary Deed transfers title only upon the death of the owner.

Detailed Answer

The existence of a recorded Beneficiary Deed does not mean the current owner has given up their rights. The current owner remains the owner until they die, at which point the property transfers to the beneficiary.

Alj Quote

Mercedes B.B. Maiz testified that she executed the Beneficiary Deed… indicating that, upon her death, the subject property is deeded to her daughter… [and] The hearing record clearly documented that Mercedes B.B. Maiz owns Unit 245 at Park.

Legal Basis

Fact Finding / Property Law

Topic Tags

  • property ownership
  • deeds
  • evidence

Question

What is the standard of evidence required to win an administrative hearing against an HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

To win, the evidence must show that the claim is more likely true than not. It does not require removal of all doubt, just that the evidence carries more weight than the opposing side.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence

Question

Where can a homeowner file a petition regarding violations of condo statutes or documents?

Short Answer

The Arizona Department of Real Estate (ADRE).

Detailed Answer

Arizona law allows owners to petition the Department of Real Estate for a hearing if there is a dispute regarding violations of condominium documents or regulating statutes.

Alj Quote

Pursuant to A.R.S. §§ 32-2102 and 32-2199 et al., regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of condominium documents or violations of the statutes that regulate condominiums…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • filing a complaint

Question

If I lose my case against the HOA, who pays the filing fee?

Short Answer

The petitioner (homeowner) must pay their own filing fee if the petition is dismissed.

Detailed Answer

If the Administrative Law Judge rules in favor of the HOA and dismisses the petition, the homeowner is ordered to bear the cost of the filing fee.

Alj Quote

IT IS ORDERED Petitioner shall bear her filing fee.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties

Case

Docket No
24F-H041-REL
Case Title
Deborah Masear v. Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2024-08-14
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving a violation occurred in an HOA dispute hearing?

Short Answer

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

Detailed Answer

In an administrative hearing regarding an HOA dispute, the person bringing the complaint must prove their case. The HOA does not automatically have to prove they are innocent; the accuser must prove the violation occurred.

Alj Quote

In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Can the spouse of a homeowner serve on the Board of Directors even if they are not listed on the deed?

Short Answer

Yes, if the community bylaws explicitly allow spouses of owners to serve.

Detailed Answer

If the specific HOA bylaws state that board members can be owners or the spouse of an owner, a spouse may run for and serve on the board even if they are not legally listed on the property deed.

Alj Quote

Park By-Laws Article III, Section 1 provides, in pertinent part: Each member of the Board of Directors shall be either an owner of a Unit or the spouse of an owner.

Legal Basis

Community Bylaws

Topic Tags

  • board eligibility
  • bylaws
  • elections

Question

Does a 'Beneficiary Deed' transfer ownership of a property immediately?

Short Answer

No, a Beneficiary Deed transfers title only upon the death of the owner.

Detailed Answer

The existence of a recorded Beneficiary Deed does not mean the current owner has given up their rights. The current owner remains the owner until they die, at which point the property transfers to the beneficiary.

Alj Quote

Mercedes B.B. Maiz testified that she executed the Beneficiary Deed… indicating that, upon her death, the subject property is deeded to her daughter… [and] The hearing record clearly documented that Mercedes B.B. Maiz owns Unit 245 at Park.

Legal Basis

Fact Finding / Property Law

Topic Tags

  • property ownership
  • deeds
  • evidence

Question

What is the standard of evidence required to win an administrative hearing against an HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

To win, the evidence must show that the claim is more likely true than not. It does not require removal of all doubt, just that the evidence carries more weight than the opposing side.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence

Question

Where can a homeowner file a petition regarding violations of condo statutes or documents?

Short Answer

The Arizona Department of Real Estate (ADRE).

Detailed Answer

Arizona law allows owners to petition the Department of Real Estate for a hearing if there is a dispute regarding violations of condominium documents or regulating statutes.

Alj Quote

Pursuant to A.R.S. §§ 32-2102 and 32-2199 et al., regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of condominium documents or violations of the statutes that regulate condominiums…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • filing a complaint

Question

If I lose my case against the HOA, who pays the filing fee?

Short Answer

The petitioner (homeowner) must pay their own filing fee if the petition is dismissed.

Detailed Answer

If the Administrative Law Judge rules in favor of the HOA and dismisses the petition, the homeowner is ordered to bear the cost of the filing fee.

Alj Quote

IT IS ORDERED Petitioner shall bear her filing fee.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties

Case

Docket No
24F-H041-REL
Case Title
Deborah Masear v. Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2024-08-14
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Represented herself

Respondent Side

  • Erica L. Mortenson (HOA attorney)
    Goodman Law Group
    Represented Respondent at the hearing
  • Frank German Maiz (board member; witness)
    Paradise Park Condominiums Phase II Homeowners Association
    Spouse of owner; testified for Respondent
  • Mercedes Bofill Benaches Maiz (owner; witness)
    Paradise Park Condominiums Phase II Homeowners Association
    Owner of the unit at issue; testified for Respondent
  • Ashley N. Turner (attorney)
    Goodman Law Group
    Listed for transmission
  • GT (observer)
    Goodman Law Group
    Observing from Respondent's attorney's office

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    OAH
    Presided over the hearing and issued the decision
  • Sondra J. Vanella (ALJ)
    OAH
    Signed the minute entry granting continuance
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Other Participants

  • John Prieve (observer)
    Requested to observe the hearing
  • Mercedes Bofill Maiz (beneficiary; daughter)
    Daughter of owner Mercedes B.B. Maiz
  • Frank Bofill Maiz (beneficiary; son)
    Son of owner Mercedes B.B. Maiz

Jesse Freeman v. Millett Ranch Homeowners’ Association

Posted on by

Case Summary

Case ID 24F-H035-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-09
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jesse Freeman Counsel —
Respondent Millett Ranch Homeowners’ Association Counsel Augustus H. Shaw IV, Esq.

Alleged Violations

Bylaws Article II, Section 8, as amended October 18, 2000

Outcome Summary

The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.

Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.

Key Issues & Findings

Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.

Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 33-1802(1)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Analytics Highlights

Topics: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
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. § 33-1802(1)
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

24F-H035-REL Decision – 1163387.pdf

Uploaded 2026-01-23T18:06:04 (48.4 KB)

24F-H035-REL Decision – 1163395.pdf

Uploaded 2026-01-23T18:06:08 (7.2 KB)

24F-H035-REL Decision – 1165696.pdf

Uploaded 2026-01-23T18:06:11 (49.1 KB)

24F-H035-REL Decision – 1165699.pdf

Uploaded 2026-01-23T18:06:13 (7.3 KB)

24F-H035-REL Decision – 1179128.pdf

Uploaded 2026-01-23T18:06:15 (53.7 KB)

24F-H035-REL Decision – 1179136.pdf

Uploaded 2026-01-23T18:06:19 (7.6 KB)

24F-H035-REL Decision – 1209016.pdf

Uploaded 2026-01-23T18:06:23 (146.3 KB)

Questions

Question

If a document appears on the HOA's website, is it automatically considered a valid governing document?

Short Answer

No. The presence of a document on a website does not prove it was voted on or adopted.

Detailed Answer

The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.

Alj Quote

The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • website
  • validity

Question

What specific features does a bylaw amendment need to be considered valid and enforceable?

Short Answer

It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.

Detailed Answer

To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.

Alj Quote

Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • signatures
  • enforceability

Question

If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?

Short Answer

Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.

Detailed Answer

Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.

Alj Quote

There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.

Legal Basis

Findings of Fact No. 8

Topic Tags

  • meetings
  • quorum
  • bylaw interpretation

Question

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

Short Answer

The petitioner (homeowner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.

Legal Basis

Conclusions of Law No. 3

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Does it matter if the HOA hasn't followed a specific rule for many years?

Short Answer

Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.

Detailed Answer

The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.

Alj Quote

Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • past practice
  • board conduct
  • validity

Question

What standard of proof is used in these HOA hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Conclusions of Law No. 4

Topic Tags

  • legal standards
  • evidence

Case

Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If a document appears on the HOA's website, is it automatically considered a valid governing document?

Short Answer

No. The presence of a document on a website does not prove it was voted on or adopted.

Detailed Answer

The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.

Alj Quote

The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • website
  • validity

Question

What specific features does a bylaw amendment need to be considered valid and enforceable?

Short Answer

It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.

Detailed Answer

To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.

Alj Quote

Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • governing documents
  • signatures
  • enforceability

Question

If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?

Short Answer

Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.

Detailed Answer

Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.

Alj Quote

There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.

Legal Basis

Findings of Fact No. 8

Topic Tags

  • meetings
  • quorum
  • bylaw interpretation

Question

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

Short Answer

The petitioner (homeowner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.

Legal Basis

Conclusions of Law No. 3

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

Does it matter if the HOA hasn't followed a specific rule for many years?

Short Answer

Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.

Detailed Answer

The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.

Alj Quote

Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.

Legal Basis

Findings of Fact No. 7

Topic Tags

  • past practice
  • board conduct
  • validity

Question

What standard of proof is used in these HOA hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Conclusions of Law No. 4

Topic Tags

  • legal standards
  • evidence

Case

Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jesse Freeman (petitioner)
    Millett Ranch Homeowners’ Association Member
    Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
  • Nicholas Belisi (witness)
    Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.

Respondent Side

  • Augustus H. Shaw IV (HOA attorney)
    Shaw & Lines, LLC
    Counsel for Respondent Millett Ranch Homeowners’ Association.
  • Brandon David Moore (senior community manager/witness)
    Brown Property Management
    Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
  • Christopher Redden (Board President/witness)
    Millett Ranch Homeowners’ Association
    Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
  • Mark Saul (HOA attorney)
    Millett Ranch Homeowners’ Association
    Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE
  • vnunez (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • djones (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • labril (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • mneat (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • akowaleski (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • gosborn (ADRE staff (Recipient))
    ADRE
    Received transmission of ALJ Decision/Minute Entries.
  • OAH Staff (OAH Staff)
    OAH
    Transmitted documents/Final Order.

Other Participants

  • Rebecca Cook-Klaus (observer)
    Observed the hearing.
  • Millie Lton (unknown)
    Petitioner received a copy of the bylaws amendment from this person in May 2023.