Category Archives: HOA Cases

R.L. Whitmer v. Hilton Casitas Council of Homeowners

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Case Summary

Case ID 25F-H001-REL
Agency —
Tribunal —
Decision Date 11/12/2024
Administrative Law Judge SF
Outcome —
Filing Fees Refunded —
Civil Penalties $7.00

Parties & Counsel

Petitioner R.L. Whitmer [1]. Counsel —
Respondent Hilton Casitas Council of Homeowners [1]. Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H001-REL Decision – 1235116.pdf

Uploaded 2026-04-24T12:26:29 (44.0 KB)

25F-H001-REL Decision – 1241814.pdf

Uploaded 2026-04-24T12:26:32 (115.8 KB)

Briefing on Administrative Hearing Case No. 25F-H001-REL

Executive Summary

This briefing document synthesizes the proceedings and outcome of the administrative hearing case R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 25F-H001-REL). The central issue was whether the Respondent Homeowners Association’s (HOA) governing Declaration complied with Arizona Revised Statutes (A.R.S.) § 33-1215(A)(1), which mandates that the Declaration contain both the name of the condominium (with the word “condominium”) and the specific name of the association.

In a decision issued on November 12, 2024, Administrative Law Judge (ALJ) Samuel Fox ruled in favor of the Petitioner, R.L. Whitmer. The ALJ found that while the Declaration’s associated plat satisfied the requirement for the condominium’s name, the Declaration failed to contain the association’s actual, current legal name, “Hilton Casitas Council of Homeowners.”

The Respondent HOA advanced three primary defenses, all of which were rejected by the tribunal:

1. Constructive Compliance: The HOA argued that the Declaration’s reference to its predecessor entity (“Council of Co-owners”), combined with numerous court rulings affirming the current HOA as its legal successor, constituted compliance. The ALJ dismissed this, stating the statute requires the actual name to be present and that “constructive compliance” is not sufficient.

2. Statute of Limitations: The HOA claimed the petition was barred by a four-year statute of limitations (A.R.S. § 12-550), as the Petitioner had notice of the Declaration’s contents since 2014. The ALJ ruled that this statute applies only to “actions” in a “court,” and that proceedings before the Office of Administrative Hearings (OAH), an executive branch agency, do not qualify.

3. Impossibility of Unilateral Action: The HOA contended that it could not be ordered to amend the Declaration because such an action requires a membership vote and is not unilaterally achievable. The ALJ found this was not a valid legal defense, as the procedural requirements for achieving statutory compliance do not excuse non-compliance.

The final order declared the Petitioner the prevailing party, ordered the Respondent to pay the Petitioner’s $500 filing fee, and mandated that the Respondent comply with A.R.S. § 33-1215(A)(1). No civil penalty was imposed.

Case Overview

• Case Number: 25F-H001-REL

• Forum: Office of Administrative Hearings (OAH), State of Arizona

• Petitioner: R.L. Whitmer

• Respondent: Hilton Casitas Council of Homeowners

• Presiding Judge: Administrative Law Judge Samuel Fox

• Respondent’s Counsel: Emily H. Mann

• Core Legal Issue: Whether the Respondent’s Declaration of Horizontal Property Regime for Hilton Casitas violates A.R.S. § 33-1215(A)(1), which states:

Procedural History

• Petition Filed: On or about June 27, 2024, R.L. Whitmer filed a petition with the Arizona Department of Real Estate alleging the violation.

• Motion to Dismiss: On October 1, 2024, the Respondent filed a motion for summary judgment (or to dismiss), which was denied by the OAH on October 18, 2024.

• Evidentiary Hearing: A hearing was held on October 25, 2024, though the hearing transcript is dated October 26, 2024.

• ALJ Decision Issued: The final Administrative Law Judge Decision was issued on November 12, 2024.

Analysis of Key Arguments and Rulings

The case centered on three distinct legal arguments presented by the Respondent HOA and the subsequent rulings by the ALJ.

1. Statutory Compliance of the Declaration

The fundamental dispute was whether the Declaration, as written, satisfied the plain language of A.R.S. § 33-1215(A)(1).

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The Declaration is non-compliant because the legal name “Hilton Casitas Council of Homeowners” is not present anywhere in the document.

The Declaration refers to the “Council of Co-owners,” an unincorporated association created in 1972. The current non-profit corporation, formed in 1994, is not named. The Petitioner argued, “It’s just not there.”

Respondent (HOA)

The Declaration is compliant when its constituent parts are read together with established case law.

1. Condominium Name: The plat, which is legally part of the Declaration per A.R.S. § 33-1219(A), contains the phrase “HILTON CASITAS A CONDOMINIUM DEVELOPMENT.”
2. Association Name: Section 1.4 of the Declaration defines “Council” as the “Council of Co-owners.” Multiple Arizona Court of Appeals decisions have held that the “Hilton Casitas Council of Homeowners” is the legal successor entity to the “Council of Co-owners.” Therefore, a reference to the old name legally constitutes a reference to the current name.

ALJ Ruling

Violation Established. The Declaration does not contain the name of the association as required.

The ALJ agreed with the Respondent that the plat satisfied the condominium name requirement. However, the judge rejected the “successor entity” argument for the association’s name, concluding: > “The statute requires ‘the name of the association,’ not merely a reference to it. Even if the current association was the entity with standing, its name was not present in the Declaration. Assuming that there is some purpose for the statutory requirement, a reader should be able to identify the association from the declaration. Accordingly, the Tribunal is not willing to accept constructive compliance.”

2. The Statute of Limitations Defense

The Respondent argued that even if a violation existed, the Petitioner’s claim was filed too late.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The statute of limitations does not apply because the violation is a continuous act.

The Petitioner framed the non-compliant Declaration as a “cloud on the title,” a type of defect to which a statute of limitations is never a bar.

Respondent (HOA)

The claim is time-barred by the four-year default statute of limitations under A.R.S. § 12-550.

The Petitioner acquired his property in August 2014 and thus had constructive notice of the Declaration’s contents. The four-year period to file a claim expired in August 2018, making the 2024 petition six years too late.

ALJ Ruling

Defense Rejected. The statute of limitations does not apply to OAH proceedings.

The ALJ performed a statutory analysis, noting that A.R.S. § 12-550 applies to an “action” which is defined as “any matter or proceeding in a court.” Because the OAH is an agency of the executive branch and not a court, its proceedings are not “actions” under the statute. Therefore, the general statute of limitations is inapplicable.

3. The “Impossibility” of Unilateral Compliance

The Respondent argued that the relief sought by the Petitioner—an order to amend the Declaration—was not something the tribunal could grant because the HOA Board could not comply on its own.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The HOA has a clear path to compliance.

The Petitioner stated that the HOA simply needs to “call the election, amend the… or propose an amendment that cures this problem and ask the membership to approve it.” He offered to stipulate that he would not seek a contempt order if the HOA made a good-faith effort.

Respondent (HOA)

An order to amend would be inappropriate because the HOA cannot unilaterally amend the Declaration.

Amending the Declaration requires a vote of the membership (either 51% or 67%) and consent from an entity referred to as “the corporation.” If a vote failed, the HOA could not comply with the order, exposing it to further litigation from the Petitioner seeking to hold it in contempt.

ALJ Ruling

Defense Rejected. Procedural requirements for compliance do not constitute a legal defense against non-compliance.

The ALJ noted that it is ordinary for an HOA board or membership to have to vote to enact compliance with a statute. The ruling states: > “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.” The tribunal’s role is to determine compliance and order it where it is lacking.

Final Order

The Administrative Law Judge Decision concluded with the following orders:

1. Prevailing Party: The Petitioner, R.L. Whitmer, is deemed the prevailing party.

2. Filing Fee: The Respondent must pay the Petitioner the filing fee of $500.00 within thirty days of the order.

3. Compliance: The Respondent shall comply with A.R.S. § 33-1215(A)(1) going forward.

4. Civil Penalty: No civil penalty was found to be appropriate in the matter.

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days.

Questions

Question

Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?

Short Answer

No. The general statute of limitations applies to court 'actions,' and administrative hearings are not considered court actions.

Detailed Answer

The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as 'actions' by the legislature.

Alj Quote

Accordingly, proceedings before OAH are not 'actions' as defined by the legislature, and the general statute of limitations does not apply.

Legal Basis

A.R.S. § 12-550; A.R.S. § 1-215

Topic Tags

  • statute of limitations
  • jurisdiction
  • filing deadlines

Question

Must the HOA's Declaration explicitly state the full legal name of the Association?

Short Answer

Yes. The Declaration must contain the actual name of the association, not just a definition or reference like 'The Council'.

Detailed Answer

State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like 'Council' to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.

Alj Quote

The statute requires 'the name of the association,' not merely a reference to it. The name of the association as stated in the defined term 'Council' is not the name of the association.

Legal Basis

A.R.S. § 33-1215(A)(1)

Topic Tags

  • CC&Rs
  • governing documents
  • HOA name

Question

Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?

Short Answer

No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.

Detailed Answer

An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.

Alj Quote

Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.

Legal Basis

Administrative Authority

Topic Tags

  • amendments
  • voting
  • defenses

Question

If I win my case against the HOA, will I be reimbursed for the filing fee?

Short Answer

Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.

Detailed Answer

When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.

Alj Quote

IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • remedies
  • costs

Question

Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?

Short Answer

No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.

Detailed Answer

Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • fines
  • civil penalties
  • enforcement

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is 'more probably true than not.'

Alj Quote

Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
25F-H001-REL
Case Title
R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date
2024-11-12
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?

Short Answer

No. The general statute of limitations applies to court 'actions,' and administrative hearings are not considered court actions.

Detailed Answer

The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as 'actions' by the legislature.

Alj Quote

Accordingly, proceedings before OAH are not 'actions' as defined by the legislature, and the general statute of limitations does not apply.

Legal Basis

A.R.S. § 12-550; A.R.S. § 1-215

Topic Tags

  • statute of limitations
  • jurisdiction
  • filing deadlines

Question

Must the HOA's Declaration explicitly state the full legal name of the Association?

Short Answer

Yes. The Declaration must contain the actual name of the association, not just a definition or reference like 'The Council'.

Detailed Answer

State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like 'Council' to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.

Alj Quote

The statute requires 'the name of the association,' not merely a reference to it. The name of the association as stated in the defined term 'Council' is not the name of the association.

Legal Basis

A.R.S. § 33-1215(A)(1)

Topic Tags

  • CC&Rs
  • governing documents
  • HOA name

Question

Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?

Short Answer

No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.

Detailed Answer

An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.

Alj Quote

Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.

Legal Basis

Administrative Authority

Topic Tags

  • amendments
  • voting
  • defenses

Question

If I win my case against the HOA, will I be reimbursed for the filing fee?

Short Answer

Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.

Detailed Answer

When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.

Alj Quote

IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Remedy

Topic Tags

  • fees
  • remedies
  • costs

Question

Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?

Short Answer

No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.

Detailed Answer

Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • fines
  • civil penalties
  • enforcement

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is 'more probably true than not.'

Alj Quote

Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • evidence
  • burden of proof
  • legal standards

Case

Docket No
25F-H001-REL
Case Title
R.L. Whitmer v. Hilton Casitas Council of Homeowners
Decision Date
2024-11-12
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • R.L. Whitmer (Petitioner)

Respondent Side

  • Emily H. Mann (Attorney)
    Phillips, Maceyko & Battock, PLLC
  • Robert Westbrook (President)
    Hilton Casitas Council of Homeowners

Neutral Parties

  • Samuel Fox (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

AZNH Revocable Trust v. Sunland Springs Village HOA: Electronic Ballots, Remand, and ALJ Reassignment

Posted on by

Arizona HOA Election Records • OAH 24F-H047-REL • Superior Court Remand

This page reorganizes the OAH case record into a readable guide. The dispute began as an Arizona planned-community election-records case over electronic ballots, then turned into a procedural fight over remand scope and a new statutory right to a peremptory change of administrative law judge.

Last updated June 3, 2026. Case family: AZNH Revocable Trust v. Sunland Springs Village Homeowners Association, OAH No. 24F-H047-REL; rehearing dockets 24F-H047-REL-RMD and 24F-H047-REL-RHG; Maricopa County Superior Court Nos. LC2025-000025-001 and CV2025-036466.

Download initial OAH decision Download limited remand order Download special action ruling Watch video overview Homeowner guide Procedure checklist Timeline Source documents Related AZNH pages FAQ

Scope note: This page covers the administrative/OAH election-records case and the later Superior Court remand and special-action proceedings. It is separate from the published Court of Appeals executive-session voting page. NotebookLM briefing and study-guide material was reviewed only as orientation; the page relies on court and agency documents for the procedural record.

The posture in one sentence

The HOA initially won the OAH electronic-ballot dispute, the Superior Court later ordered a limited evidentiary remand, and a separate special-action ruling vacated later ALJ orders after the Trust invoked a new peremptory-change statute.

Case snapshot

Original issue

Whether electronic voting records and ballot-related materials had to be retained and made available under A.R.S. § 33-1812(A)(7).

Initial OAH result

ALJ Kay A. Abramsohn denied the petition on November 5, 2024, finding the association in compliance.

Superior Court remand

Judge Joseph P. Mikitish dismissed the broader appeal but remanded for a limited evidentiary hearing on two proposed pieces of evidence.

Special action result

Judge Scott A. Blaney ordered reassignment to a different ALJ and vacated ALJ orders entered on or after September 26, 2025.

Case Dossier

This section mirrors the structured data blocks used on the regular OAH/ADRE case pages, then points readers back to the custom source-document roadmap below.

Case Summary

Case ID24F-H047-REL; related rehearing/remand dockets 24F-H047-REL-RMD and 24F-H047-REL-RHG
Agency / tribunalArizona Department of Real Estate / Office of Administrative Hearings
Decision dateNovember 5, 2024 initial OAH decision; later Superior Court orders on April 17, 2025 and March 25, 2026 changed the posture
Administrative Law Judge / court judgesALJ Kay A. Abramsohn; Hon. Joseph P. Mikitish; Hon. Scott A. Blaney
Petitioner sideAZNH Revocable Trust; John F. Sullivan; Susan Sullivan
Respondent / agency sideSunland Springs Village Homeowners Association; Arizona Department of Real Estate; Office of Administrative Hearings; related agency officials
Counsel and representatives extractedJohn F. Sullivan for the Trust; Chad M. Gallacher and B. Austin Baillio for Sunland Springs; additional Attorney General/agency counsel appear in the later Superior Court record
Outcome summaryThe ALJ initially denied the petition, ADRE denied rehearing, the Superior Court later ordered a limited evidentiary remand, and the special-action court ruled the Trust was entitled to a peremptory ALJ change and reassignment.

Alleged Violations and Issues

Primary alleged violationA.R.S. § 33-1812(A)(7): whether electronic ballots and related materials had to be retained and made available for owner inspection after the February 2024 election.
Related authorities cited in extracted legal dataA.R.S. § 10-3708(F), A.R.S. § 41-1092.07(A), A.R.S. § 12-910, A.R.S. § 12-911, and A.R.S. § 32-2199.
Money / fees notedThe extracted legal data notes requests for reimbursement of a $500 filing fee and attorney-fee/cost requests. This custom page does not treat those requests as a final monetary award unless a linked order says so.

Key Issues & Findings

Electronic voting records

The initial dispute asks whether VoteHOANow electronic voting data lists satisfied the ballot-retention and inspection requirements, or whether additional ballot-level materials had to be preserved and produced.

Limited remand scope

After judicial review, the remand focused on specified additional evidence. That narrow remand scope drove the later subpoena and evidentiary-hearing disputes.

Peremptory ALJ change

The March 25, 2026 special-action ruling found the Trust was entitled to a peremptory change of ALJ under the amended A.R.S. § 41-1092.07(A), vacated later ALJ orders, and required reassignment.

Analytics and Research Coverage

Key entity extractedVoteHOANow
TopicHOA election records, ballot retention, administrative remand, OAH procedure, ALJ reassignment
MediaYouTube overview embedded on this page; no Spotify embed is currently used on the custom page.
Decision and source documents11 curated key documents, 31 linked source files in the complete uploaded list, and 3 static/raw fallback downloads for oversized PDFs and the source-file roadmap.
NotebookLM-style artifacts retainedBriefing document, study guide, legal JSON, participants JSON, and summary files are present in the source corpus and used for orientation, with court/agency documents controlling the public analysis.

How to read this record

The source record is useful, but it is not a single-document story. The key materials are spread across OAH filings, Superior Court administrative-review filings, and a later special-action case. This guide puts the case posture, dates, issues, participants, and key documents first.

The case is not a clean single-ruling page. It is a procedural chain: initial OAH decision, ADRE rehearing denial, administrative appeal, limited remand, remand-scope dispute, peremptory ALJ-change dispute, and a later special-action judgment. The layout reflects that sequence.

What the record shows

Electronic ballot retention remains the underlying dispute

The Trust challenged whether the HOA retained and produced the actual electronic ballots or only data outputs from VoteHOANow.

The remand was narrow

The Superior Court remanded for an evidentiary hearing on specified additional evidence, not a complete restart of discovery.

The subpoena dispute flowed from that narrow remand

OAH treated additional subpoenas as outside the limited remand scope; the Superior Court later denied a motion to enforce judgment and order to show cause.

The ALJ-change issue changed the posture

In CV2025-036466, the Superior Court held the Trust was entitled to a peremptory change of ALJ under A.R.S. § 41-1092.07(A), vacated later ALJ orders, and required reassignment.

Video overview: Arizona HOA election records fight

Watch this overview for the procedural path behind 24F-H047-REL: the electronic-ballot records dispute, the limited Superior Court remand, the fight over remand scope, and the later peremptory ALJ-change ruling.

For homeowners: how to use this OAH record

This record is most useful as a procedure map. It shows how a homeowner petition can move from ADRE to OAH, then to judicial review, then back to OAH on a limited remand, and finally into a separate special-action fight when a procedural right is denied.

If you are tracking an HOA records dispute, separate the underlying records question from the procedural questions. The electronic-ballot issue, the limited-remand scope, the subpoena dispute, and the peremptory ALJ-change issue each need their own timeline and source documents.

Suggested ADRE/OAH records workflow

  1. Identify the exact record category. For election disputes, distinguish actual ballots, voter lists, tabulation data, vendor exports, board minutes, and correspondence.
  2. Preserve the agency timeline. Keep the ADRE petition, hearing notices, OAH orders, rehearing requests, and final agency action together.
  3. Track the judicial-review scope. If Superior Court remands only for specific evidence or a specific hearing, do not treat the remand as a complete restart unless the order says so.
  4. Keep procedural rights separate. A subpoena dispute, remand-scope issue, and ALJ-change request may have different deadlines and remedies.
  5. Use the source PDFs. This page links the key orders and the full uploaded document list so readers can check the sequence directly.

Procedure checklist for boards, managers, and ADRE/OAH litigants

Do this
  • Preserve election-vendor records, ballot exports, tabulation records, and retention-policy materials before a dispute starts.
  • Document what was produced, what was withheld, and why.
  • Read remand orders narrowly and calendar every deadline attached to the remand.
  • Keep written proof of any procedural request, including ALJ-change requests and subpoena applications.
Avoid this
  • Do not assume a data export is the same thing as every ballot-related record a homeowner may request.
  • Do not blur the merits dispute with remand-scope or procedural-right disputes.
  • Do not rely on oral understandings when the OAH/Superior Court record needs a written order.
  • Do not let oversized or rejected PDFs disappear from the public source record.

What this administrative record does not decide

This page does not convert the initial OAH loss into a final homeowner merits win. It explains why the case did not remain a simple OAH decision page after the Superior Court remand and the later ALJ-reassignment ruling.

It also does not replace the separate published Court of Appeals executive-session voting case. That page interprets A.R.S. § 33-1804. This page is about the election-records administrative case and related procedural litigation.

Procedural timeline

DateEventWhy it matters
February 2024Sunland Springs Village HOA election used paper and electronic voting.The later records dispute focused on what counts as retained electronic ballots and related materials.
April 2024AZNH filed the HOA dispute through ADRE.ADRE referred the matter to OAH for hearing.
November 5, 2024OAH issued the initial decision denying the petition.The ALJ found the HOA had complied with the records-retention requirements.
January 8, 2025ADRE denied rehearing.The administrative case moved into judicial review.
April 17, 2025Superior Court dismissed the broader appeal and remanded for a limited evidentiary hearing.The remand focused on specific additional evidence, not open-ended discovery.
August 15, 2025OAH denied expanded subpoena relief.The ALJ applied the limited-remand framing.
September 17, 2025Superior Court denied the motion to enforce judgment and order to show cause.The court did not grant relief against OAH/ADRE over the remand-scope dispute.
September 26, 2025Revised A.R.S. § 41-1092.07(A) became effective; the Trust sought a peremptory ALJ change.This became the central issue in the later special action.
March 25, 2026Superior Court ruled for the Trust in CV2025-036466.Orders entered on or after September 26, 2025 were vacated and the case had to be reassigned to a different ALJ.

Key source documents

These are the documents a reader should start with. The full uploaded source list is below this curated set.

Doc 1Initial OAH decision

Initial OAH decision

ALJ decision denying the original electronic-ballot records claim; final agency action unless appealed.

Download
1240168.pdf
Doc 3Limited remand order

Limited remand order

Superior Court dismissed the broader appeal but remanded for a limited evidentiary hearing on specified additional evidence.

Download
a6f03d3e-db86-4778-9926-14e8cba0a583.pdf
Doc 4OAH subpoena/remand order

OAH subpoena/remand order

OAH order addressing the subpoena request after the limited remand.

Download
1338932.pdf
Doc 5OAH order denying subpoena

OAH order denying subpoena

OAH order limiting the remand hearing and denying the expanded subpoena request.

Download
1340272.pdf
Doc 7Motion to enforce denied

Motion to enforce denied

Superior Court denied relief on the post-remand motion to enforce judgment and order to show cause.

Download
a07f5717-ca85-4f56-a906-014a511da37c.pdf
Doc 8OAH hearing vacated/dismissed order

OAH hearing vacated/dismissed order

OAH order after the peremptory-change dispute and September 26, 2025 hearing setting.

Download
1357165.pdf
Doc 11Special action ruling

Special action ruling

Judge Scott A. Blaney vacated ALJ orders issued on or after September 26, 2025 and ordered reassignment to a different ALJ.

Download
m11714084.pdf

Oversized source files restored as static downloads

Two PDFs were too large for the current WordPress media upload limit, so they are served as static downloads instead of disappearing from the public record.

Download oversized source PDFWordPress media upload rejected this file because it exceeds the current 10 MB media limit. Download Administrative Appeal Anatomy PDFWordPress media upload rejected this file because it exceeds the current 10 MB media limit. Download source-file roadmap CSVChronological source table from the uploaded project materials.

Complete uploaded document list

Show all linked source files
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Frequently asked questions

Did the OAH decision finally resolve the electronic-ballot records dispute?

No. The initial OAH decision denied the petition, but later Superior Court orders created a limited remand and a separate ALJ-reassignment issue.

Why is the March 25, 2026 special-action ruling included?

It changed the administrative posture by vacating ALJ orders issued on or after September 26, 2025 and requiring reassignment to a different ALJ.

Does this page replace the published AZNH executive-session voting page?

No. This page covers the OAH election-records case family. The separate Court of Appeals page covers executive-session voting and open-meeting agendas.

Why are oversized PDFs served as static downloads?

Two source PDFs exceeded the current WordPress media upload limit. They are linked from the static court-case downloads folder so the public record stays complete.

Participants

Petitioner side

AZNH Revocable Trust; John F. Sullivan; Susan Sullivan.

Respondent side

Sunland Springs Village Homeowners Association; counsel included Chad M. Gallacher and B. Austin Baillio.

Neutral/government actors

OAH, ADRE, ALJ Kay A. Abramsohn, Judge Joseph P. Mikitish, and Judge Scott A. Blaney.

Media note: This page includes the YouTube overview above and is otherwise presented as a source-document guide.

Justin R. Sheakley v. Arizona Hillcrest Community Association

Posted on by

Case Summary

Case ID 24F-H056-REL
Agency —
Tribunal —
Decision Date 10/21/2024
Administrative Law Judge SF
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

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

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H056-REL Decision – 1211424.pdf

Uploaded 2026-04-27T09:52:51 (55.5 KB)

24F-H056-REL Decision – 1235391.pdf

Uploaded 2026-04-27T09:52:55 (125.4 KB)

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.”

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

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

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

Case Participants

Petitioner Side

  • Justin R. Sheakley (Petitioner)
    Homeowner appearing on his own behalf.

Respondent Side

  • Quinten Cupps (Attorney)
    Vial Fotheringham, LLP
    Attorney representing Respondent Arizona Hillcrest Community Association.
  • Melanie Veach (Community Manager)
    Habitat Management / AAM
    Testified for the Respondent. Identified as Melanie Page in the oral transcript but listed as Melanie Veach in the ALJ decision.
  • Peter Alesi (Owner / Witness)
    Elite Construction and Painting
    Testified for the Respondent; previously employed at Evolution Construction Services.

Neutral Parties

  • Samuel Fox (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the September 30, 2024 hearing and issued the final decision.
  • Sondra J. Vanella (Administrative Law Judge)
    Office of Administrative Hearings
    Signed the Order Granting Continuance on August 14, 2024.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmitted orders and decisions.

Lisa Marx v. Tara Condominium Association

Posted on by

Case Summary

Case ID 24F-H054-REL
Agency —
Tribunal —
Decision Date 2024-09-20
Administrative Law Judge KAA
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Lisa Marx Counsel —
Respondent Tara Condominium Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H054-REL Decision – 1212274.pdf

Uploaded 2026-04-24T12:25:18 (70.4 KB)

24F-H054-REL Decision – 1212281.pdf

Uploaded 2026-04-24T12:25:23 (12.4 KB)

24F-H054-REL Decision – 1216809.pdf

Uploaded 2026-04-24T12:25:27 (50.9 KB)

24F-H054-REL Decision – 1225818.pdf

Uploaded 2026-04-24T12:25:31 (168.1 KB)

24F-H054-REL Decision – 1226250.pdf

Uploaded 2026-04-24T12:25:34 (41.9 KB)

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.

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

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

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

Case Participants

Petitioner Side

  • Lisa Marx (Petitioner)
    Tara Condominium Association
    Homeowner and former board member who represented herself

Respondent Side

  • Mark Gottmann (Chairman of the Board)
    Tara Condominium Association
    Represented the respondent at the hearing
  • Chandler W. Travis (Attorney)
    Travis Law Firm PLC
    Withdrew as counsel for the respondent prior to the hearing
  • Tina Marie Shepherd (Former Chairperson)
    Tara Condominium Association
    Resigned from the board on January 31, 2024
  • Dennis Anderson (Board Member)
    Tara Condominium Association
    Participated in volunteer maintenance work
  • Judy Rice (Treasurer)
    Tara Condominium Association
  • Stephanie Bushart (Board Member)
    Tara Condominium Association

Neutral Parties

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

Other Participants

  • Brenda Spielder (Observer)
    Tara Condominium Association
    Association member who attended the hearing
  • Cynthia Poland (Observer)
    Tara Condominium Association
    Association member who attended the hearing
  • Renee Snow (Volunteer)
    Tara Condominium Association
    Volunteered for the landscaping committee

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

Posted on by

Case Summary

Case ID 24F-H050-REL
Agency —
Tribunal —
Decision Date 2024-09-11
Administrative Law Judge ADS
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Arroyo Mountain Estate Homeowners Association Counsel Daniel S. Francom, Esq.
Respondent Rick Goebel Jr. & Elizabeth Goebel Counsel Pro se

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H050-REL Decision – 1222437.pdf

Uploaded 2026-04-24T12:25:07 (132.2 KB)

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

Case Participants

Petitioner Side

  • Daniel S. Francom (Attorney)
    Arroyo Mountain Estate Homeowners Association
  • John Consalvo (Witness)
    Arroyo Mountain Estate Homeowners Association
    Board President
  • Judy Oliver (Witness)
    Arroyo Mountain Estate Homeowners Association
    Architectural Committee Member

Respondent Side

  • Rick Goebel Jr. (Respondent)
  • Elizabeth Goebel (Respondent)
  • Nancy Rozzo (Witness)
    Architectural Committee Member who approved the application

Neutral Parties

  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

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 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.
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

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Video Overview

Audio Overview

Decision Documents

24F-H037-REL Decision – 1182719.pdf

Uploaded 2026-04-24T12:22:43 (62.8 KB)

24F-H037-REL Decision – 1182767.pdf

Uploaded 2026-04-24T12:22:48 (13.4 KB)

24F-H037-REL Decision – 1182769.pdf

Uploaded 2026-04-24T12:22:51 (50.0 KB)

24F-H037-REL Decision – 1203525.pdf

Uploaded 2026-04-24T12:22:55 (49.3 KB)

24F-H037-REL Decision – 1215299.pdf

Uploaded 2026-04-24T12:22:58 (123.4 KB)

24F-H037-REL Decision – 1226570.pdf

Uploaded 2026-04-24T12:23:01 (39.7 KB)

This summary details the proceedings, key arguments, and final decision in the consolidated matters of *Taylor Kidd and Jerome L. Glazer vs. Heritage Village III Homeowners Association* (Nos. 24F-H037-REL and 24F-H039-REL).

Key Facts and Procedural History

The Petitioners, Taylor Kidd and Jerome L. Glazer, who are members of the Heritage Village III Homeowners Association (Association), filed separate petitions objecting to the Association's approval of a Landscape Improvement Project (LIP). The Association requested, and the Administrative Law Judge (ALJ) granted, consolidation of the two matters due to them involving substantially similar factual or legal issues and for purposes of administrative efficiency. The hearings were continued several times and ultimately held on August 9, 2024.

The LIP involved an estimated cost of $1,557,950.00 (potentially up to $2 million) for the replacement of a 40-year-old irrigation system, grass removal, and replacement with decomposed granite and native plants. The Association communicated in December 2023 that this cost would result in a special assessment of $9,385.24 per homeowner. A request by Petitioner Glazer for a Cease and Desist Order to prevent the expenditure of funds related to the LIP was denied by the ALJ due to a lack of authority in that venue.

Main Issues and Key Arguments

The central legal dispute was whether the Association could approve the LIP and levy the special assessment solely through a Board vote, or if a membership vote was required under the governing documents.

Petitioners' Argument:

Petitioners argued that the LIP was a capital improvement project. They contended that the Association's CC&Rs (Article VII, Section 1) required it to follow the McCormick Ranch CC&Rs (Master Association). The McCormick Ranch CC&Rs (Article III, Section 4) mandate that a special assessment for a capital improvement requires the assent of two-thirds (2/3) of the votes cast by Voting Owners. Petitioners asserted the Board refused to hold this vote.

Respondent's Argument:

The Association argued the Board has the duty and authority to maintain the common area (which included addressing dead/dying grass and a damaged irrigation system), and that the LIP fell under this authority. They claimed the special assessment had not yet been levied. Legally, the Association argued that the requirement for a 2/3 membership vote in the McCormick Ranch documents applied only to the Master Association itself (referenced by the capitalized word "Association") and did not govern subsidiary associations like Heritage Village III, whose own documents were silent on requiring a member vote for such projects.

Final Decision and Outcome

The ALJ, Adam D. Stone, issued a decision on August 23, 2024.

Legal Conclusion: The ALJ found that the Petitioners met their burden of proof. The decision hinged on the interpretation of Article VII, Section 1 of the Association’s CC&Rs, which states that McCormick Ranch provisions apply, "including but not limited to" the assessment, lien, and collection of dues.

The ALJ ruled it would be inconsistent to assume that the section requiring a 2/3 vote for capital improvements (McCormick Ranch CC&R Article III, Section 4) would be excluded.

Outcome:

IT IS ORDERED that Petitioners’ petitions in these matters are granted. The Association was found to have violated McCormick Ranch CC&R’s Article III, Section 4, and its own CC&R’s Article VII, Section 1, by failing to take the required vote. The Respondent was ordered to reimburse both Petitioners’ filing fees.

A Motion for Rehearing filed by a party was later noted by the ALJ as not being considered, directing that such requests must be made directly to the Arizona Department of Real Estate.

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-H039-REL
Agency —
Tribunal Arizona Office of Administrative Hearings
Decision Date 2024-08-23
Administrative Law Judge ADS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Taylor Kidd Counsel Patrick T. Nackley, Brandon P. Bodea
Respondent Heritage Village III Homeowners Association Counsel Tessa Knueppel, Mark K. Sahl, Charles H. Oldham, Josh Bolen

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H039-REL Decision – 1182719.pdf

Uploaded 2026-04-24T12:23:10 (62.8 KB)

24F-H039-REL Decision – 1182767.pdf

Uploaded 2026-04-24T12:23:18 (13.4 KB)

24F-H039-REL Decision – 1182769.pdf

Uploaded 2026-04-24T12:23:21 (50.0 KB)

24F-H039-REL Decision – 1203525.pdf

Uploaded 2026-04-24T12:23:25 (49.3 KB)

24F-H039-REL Decision – 1215299.pdf

Uploaded 2026-04-24T12:23:28 (123.4 KB)

24F-H039-REL Decision – 1226570.pdf

Uploaded 2026-04-24T12:23:31 (39.7 KB)

Briefing Document: Kidd and Glazer v. Heritage Village III Homeowners Association

Executive Summary

This briefing document details the legal proceedings and final decision in the consolidated matters of Taylor Kidd and Jerome L. Glazer vs. Heritage Village III Homeowners Association (Case Nos. 24F-H037-REL and 24F-H039-REL). The dispute centered on the Respondent’s approval of a $1.55 million "Landscape Improvement Project" and a subsequent $9,385.24 special assessment per homeowner, conducted without a membership vote.

The Office of Administrative Hearings (OAH) ultimately ruled in favor of the Petitioners, Taylor Kidd and Jerome L. Glazer. The Administrative Law Judge (ALJ) determined that the Association’s governing documents explicitly incorporated the "McCormick Ranch CC&Rs," which require a two-thirds majority vote for capital improvement assessments. Because no such vote was held, the Association was found in violation of its Covenants, Conditions, and Restrictions (CC&Rs). The Association was ordered to reimburse the Petitioners' filing fees.

Procedural History and Case Background

The following table outlines the timeline and administrative milestones of the case:

Date Event Details
February 27, 2024 Petition Filed (Kidd) Taylor Kidd filed a single-issue petition regarding the landscape project and paid a $500 fee.
February 29, 2024 Petition Filed (Glazer) Jerome L. Glazer filed a similar single-issue petition and paid a $500 fee.
May 28, 2024 Consolidation Order ALJ Tammy L. Eigenheer ordered the cases consolidated for administrative efficiency.
May 28, 2024 Cease & Desist Denied The ALJ denied Glazer's request to halt project expenditures, citing a lack of authority to issue such orders.
May 30, 2024 Original Hearing Date Postponed due to a medical emergency involving Petitioner Glazer’s domestic partner.
July 19, 2024 Rescheduled Hearing Continued again due to a widespread computer outage.
August 9, 2024 Evidentiary Hearing Held before ALJ Adam D. Stone.
August 23, 2024 Final Decision ALJ Stone ruled in favor of Petitioners, granting their petitions.
September 23, 2024 Minute Entry ALJ Stone declined to consider a Motion for Rehearing, stating such requests must go to the Arizona Department of Real Estate.

Detailed Analysis of Key Themes

1. Incorporation of External Governing Documents

The central legal conflict involved which CC&Rs governed the Association's actions. While the Association’s own CC&Rs were silent on the requirement for a membership vote for capital improvements, Article VII, Section 1 of their documents stated that the McCormick Ranch CC&Rs "are made part hereof and are hereby referenced as to the provisions required for this entire property."

The McCormick Ranch CC&Rs (Article III, Section 4) explicitly require the "assent of two-thirds (2/3) of the votes cast by Voting Owners" for special assessments related to capital improvements. The ALJ concluded that the Association could not cherry-pick which parts of the McCormick Ranch CC&Rs applied; the incorporation was total.

2. Board Authority vs. Member Consent

The Association, through Board member Jennifer Hutsko, argued that the Board had a fiduciary duty to maintain the property, which was suffering from a 40-year-old failing irrigation system and diseased trees. They contended that since the Association’s specific CC&Rs were silent on voting for maintenance, the Board could act unilaterally.

The Petitioners successfully argued that the "Landscape Improvement Project" constituted a capital improvement rather than routine maintenance. Consequently, the procedural requirement for a membership vote took precedence over the Board's unilateral decision-making authority.

3. Administrative Economy and Efficiency

The Respondent successfully moved to consolidate the Kidd and Glazer cases under ARIZ. ADMIN. CODE R2-19-109(A). The consolidation was granted to avoid "potentially inconsistent rulings" and to promote administrative efficiency, as both matters involved objections from different homeowners to the same Board action. Despite objections from Taylor Kidd regarding potential delays, the ALJ found that the substantially similar factual and legal issues justified a single hearing.

4. Jurisdictional Limits of the OAH

A significant procedural theme was the ALJ's limited authority. When Petitioner Glazer requested a Cease and Desist Order to stop the Association from spending funds on the project, the ALJ denied the request, stating, "The Administrative Law Judge is without the authority to issue such an order in this matter." This highlights that while the OAH can adjudicate violations of community documents, its power to grant injunctive-style relief is restricted.

Important Quotes with Context

"Respondent violated McCormick Ranch CC&R’s Article III, Section 4, as it did not take the required vote, as well as and the Association CC&R’s Article VII, Section 1, by failing to follow the McCormick Ranch CC&R’s in regards to the same."

— ALJ Adam D. Stone, Final Decision (August 23, 2024). This quote summarizes the legal basis for the ruling, confirming that the Association is bound by the voting requirements of the incorporated documents.

"The letter also informed homeowners that there was a project cost of $1,557,950.00, which would be divided amongst the 166 homeowners, resulting in a special assessment in the amount of $9,385.24 per homeowner."

— Findings of Fact regarding Taylor Kidd's testimony. This provides the financial context of the dispute and the scale of the financial burden placed on the homeowners without their consent.

"While the Administrative Law Judge acknowledges that the decision to consolidate these matters is not required by the applicable rule, it is certainly permitted in this instance as these matters involve substantially similar factual or legal issues."

— ALJ Tammy L. Eigenheer, Order Consolidating Matters (May 28, 2024). This clarifies the standard for consolidation in administrative hearings, prioritizing "administrative economy."

"The document, consisting of Motion for Rehearing, will not be considered as no further action can be taken on the matter. All requests for rehearing must be made directly to the Arizona Department of Real Estate."

— ALJ Adam D. Stone, Minute Entry (September 23, 2024). This illustrates the finality of the OAH's role and the transition of the case back to the Department of Real Estate for any further administrative appeals.

Actionable Insights

  • Review Incorporation Clauses: Homeowners' associations must carefully review their governing documents for "incorporation by reference" clauses. If an HOA's documents incorporate the rules of a master association (like McCormick Ranch), those rules are legally binding even if they are more restrictive than the HOA's own specific bylaws.
  • Definition of Capital Improvements: Boards should clearly distinguish between routine maintenance and "capital improvements." While maintenance may fall under Board authority, major projects—especially those requiring significant special assessments—often trigger mandatory voting requirements.
  • Special Assessment Procedures: Before levying a special assessment, Boards must ensure they have met all procedural prerequisites, such as membership votes and quorum requirements, as dictated by the hierarchy of their governing documents.
  • Reimbursement Risks: Under ARIZ. REV. STAT. § 32-2199.02(A), if an Association is found in violation, they are legally required to reimburse the Petitioner’s filing fees. In this case, the Association was ordered to pay $1,000 total ($500 to each Petitioner).
  • Appellate Path: Parties dissatisfied with an ALJ decision must file their request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the order, rather than filing with the Office of Administrative Hearings.

Study Guide: Kidd and Glazer vs. Heritage Village III Homeowners Association

This study guide provides a comprehensive overview of the administrative legal proceedings between Petitioners Taylor Kidd and Jerome L. Glazer and the Respondent, Heritage Village III Homeowners Association. It covers procedural motions, governing legal standards, the core conflict regarding CC&Rs, and the final administrative decision.

1. Case Overview and Background

The dispute centered on a proposed Landscape Improvement Project initiated by the Heritage Village III Homeowners Association Board of Directors.

  • The Project: A $1,557,950.00 landscaping initiative intended to address dead/dying vegetation and a failing 40-year-old irrigation system.
  • The Assessment: The project cost was to be divided among 166 homeowners, resulting in a special assessment of $9,385.24 per homeowner.
  • The Dispute: Petitioners Kidd and Glazer alleged the Board approved this capital improvement and special assessment without the 75% or two-thirds homeowner vote required by governing documents.
  • The Venue: The Arizona Office of Administrative Hearings (OAH), acting on behalf of the Arizona Department of Real Estate (ADRE).

2. Key Legal Concepts and Standards

Administrative Procedures
  • Consolidation (ARIZ. ADMIN. CODE R2-19-109(A)): An Administrative Law Judge (ALJ) may consolidate pending matters if there are "substantially similar factual or legal issues" or if "all parties are the same." In this case, the matters were consolidated for administrative economy because they involved the same Board action, despite the petitioners being different individuals.
  • Continuance: A delay in proceedings. This occurred twice: once due to Petitioner Glazer’s domestic partner's surgery and once due to a widespread computer outage on July 19, 2024.
  • Jurisdiction: Under ARIZ. REV. STAT. §§ 32-2102 and 32-2199, the ADRE and OAH have the authority to hear disputes between homeowners and planned community associations regarding violations of community documents.
  • Burden of Proof: The Petitioner bears the burden of proving their case by a preponderance of the evidence.
Governing Documents
  • CC&Rs (Covenants, Conditions, and Restrictions): The primary rules governing the homeowners' association.
  • Incorporation by Reference: A legal mechanism where one document makes another document part of itself. Here, the Heritage Village III CC&Rs (Article VII, Section 1) incorporated the McCormick Ranch CC&Rs.

3. Chronology of Proceedings (2024)

Date Event Details
Feb 27–29 Petitions Filed Kidd and Glazer filed separate petitions with the ADRE ($500 fee each).
May 28 Consolidation Order ALJ Eigenheer consolidated cases 24F-H037-REL and 24F-H039-REL.
May 28 Cease & Desist Denied ALJ Eigenheer ruled the OAH lacked authority to stop HOA spending before a decision.
July 19 Original Hearing Date Postponed due to a computer outage.
Aug 9 Evidentiary Hearing Held before ALJ Adam D. Stone; testimony provided by Kidd, Glazer, and Board member Hutsko.
Aug 23 Final Decision ALJ Stone ruled in favor of Petitioners, finding the HOA violated CC&Rs.
Sept 23 Minute Entry OAH declined to hear a Motion for Rehearing, as such motions must be filed with the ADRE.

4. Short-Answer Practice Quiz

  1. What was the specific financial assessment proposed for each homeowner for the landscaping project?
  2. **According to ARIZ. ADMIN. CODE R2-19-109(A), what are the two conditions under which an ALJ may consolidate cases?**
  3. Why did the Administrative Law Judge deny Petitioner Glazer’s request for a Cease and Desist Order?
  4. What was the primary reason the Association argued they did not need a homeowner vote for the project?
  5. Which specific section of the McCormick Ranch CC&Rs requires a two-thirds vote for special assessments related to capital improvements?
  6. What was the final ruling regarding the filing fees paid by the Petitioners?
  7. What reason was given for the hearing continuance from July 19 to August 9, 2024?
  8. To which entity must a party submit a Motion for Rehearing after a final OAH decision has been issued?

5. Essay Questions for Deeper Exploration

  1. The Interplay of Governing Documents: Analyze how the "incorporation by reference" in Article VII, Section 1 of the Heritage Village III CC&Rs determined the outcome of the case. Why did the ALJ reject the Association's argument that they were only bound by "part" of the McCormick Ranch CC&Rs?
  2. Administrative Efficiency vs. Individual Rights: Discuss the arguments made for and against the consolidation of the Kidd and Glazer matters. How does ARIZ. ADMIN. CODE R2-19-109(A) balance the need for "administrative economy" with the rights of individual petitioners to have their specific grievances heard without delay?
  3. The Scope of ALJ Authority: Examine the ALJ’s decision to deny the Cease and Desist Order. What does this reveal about the limitations of the Office of Administrative Hearings compared to other judicial venues?

6. Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who presides over hearings and adjudicates disputes involving government agencies.
  • Capital Improvement: Substantial permanent changes or additions to a property (e.g., the $1.5M landscaping and irrigation overhaul).
  • Cease and Desist Order: An order to stop a specific activity.
  • Consolidation: The joining of two or more separate legal cases into one because they involve similar issues.
  • Continuance: A postponement of a legal proceeding or hearing to a later date.
  • Minute Entry: A brief record of the court's actions or rulings on a specific motion or procedural matter.
  • Preponderance of the Evidence: The standard of proof in civil and administrative cases, meaning a fact is "more probably true than not."
  • Special Assessment: A one-time fee charged to HOA members for a specific project or expense outside the regular annual dues.
  • Tribunal: A person or institution (like the OAH) with the authority to judge or determine claims or disputes.

The $1.5 Million Landscape Lesson: How Two Homeowners Successfully Challenged Their HOA Board

1. Introduction: The High Cost of Silence

On December 19, 2023, the 166 homeowners of Heritage Village III in Hereford, Arizona, received a holiday "gift" they never requested: a formal notice announcing a massive landscaping overhaul and a mandatory special assessment of $9,385.24 per household. There had been no community vote, no formal presentation of costs, and no opportunity for homeowners to weigh in on a project totaling over $1.5 million.

While many might have simply grumbled at the mailbox, two residents decided to hold their Board accountable. Taylor Kidd, represented by counsel Patrick T. Nackley, and Jerome L. Glazer, appearing pro se (representing himself), filed petitions with the Arizona Department of Real Estate. Their challenge against the Heritage Village III Homeowners Association was more than a dispute over grass and trees; it was a fight for procedural transparency and the supremacy of governing documents. Their victory provides a masterclass in how homeowners can successfully check Board overreach.

2. The Project That Sparked the Protest

The "Landscape Improvement Project" approved by the Board in 2023 was not a minor facelift. It was a seven-figure overhaul funded entirely by a surprise levy on the residents. The project specifics included:

  • Total Estimated Cost: $1,557,950.00.
  • Individual Impact: A $9,385.24 special assessment for every homeowner.
  • The Board’s Justification: Directors argued the community was suffering from a 40-year-old irrigation system requiring constant patchwork repairs, alongside dozens of dead or diseased trees. They framed the project as a necessary move toward water conservation.

However, the human cost was significant. During her testimony, Ms. Kidd—who purchased her home in 2014 specifically for its lush green grass—noted the Board offered no concrete evidence of water savings to justify the loss of the community's aesthetic character. The Board had prioritized a massive capital replacement under the guise of simple maintenance.

3. Procedural Hurdles: Consolidation and Outages

The path to justice was marked by administrative delays and technical failures. The cases (24F-H037-REL and 24F-H039-REL) were eventually consolidated for "administrative economy" because they shared substantially similar legal questions.

The timeline was stretched by two major events:

  • A Motion to Continue: Granted on May 28, 2024, after Petitioner Glazer’s domestic partner required major back surgery.
  • A Technical Outage: A scheduled hearing on July 19, 2024, was derailed by a widespread computer outage, pushing the final showdown to August 9, 2024, before Administrative Law Judge (ALJ) Adam D. Stone.
4. The Legal Battle: Maintenance Duty vs. Membership Votes

The Board’s defense relied on a common but fatal trap: the belief that their general fiduciary duty to maintain the property gave them a "blank check" to bypass membership approval. They argued that because their specific local CC&Rs were silent on voting for such projects, they could proceed based on a community survey showing 72% support.

The Petitioners countered that the Board was ignoring the community's "Master" documents. The following table highlights the clash:

The Board's Defense The Petitioners' Argument
Claim: The Board has a fiduciary duty to maintain property; the 40-year-old irrigation system was failing. Rebuttal: A $1.5M replacement of an entire system is a "capital improvement," not routine maintenance.
Claim: Local CC&Rs are silent on voting requirements for improvements. Rebuttal: McCormick Ranch CC&Rs (Article III, Section 4) require a 2/3 vote for capital improvement assessments.
Claim: A survey showed 72% of the community supported the project. Rebuttal: A survey is not a legal vote. The McCormick Ranch rules are incorporated by reference and take supremacy.

The "Hidden Link": The Petitioners correctly identified that Article VII, Section 1 of the Heritage Village III CC&Rs explicitly incorporated the McCormick Ranch CC&Rs, stating they were "made part hereof and are hereby referenced."

5. The Verdict: Why the "Fine Print" Mattered

On August 23, 2024, ALJ Adam D. Stone issued a definitive ruling in favor of the homeowners. The decision turned on the legal interpretation of the phrase "including but not limited to."

The Association argued this phrase limited the incorporation of McCormick Ranch rules to matters of dues and collections. Judge Stone disagreed, ruling that "including but not limited to" is an inclusive phrase that expands rather than restricts. By referencing the McCormick Ranch documents, the Association effectively imported the entire suite of homeowner protections, including the requirement for a two-thirds (2/3) membership vote for any Special Assessment for Capital Improvements.

The ALJ concluded that the Board committed a clear violation of its governing documents. They could not rebrand a massive construction project as "maintenance" to circumvent the democratic rights of the membership.

6. The Cease and Desist Side-Note

Earlier in the dispute, on May 28, 2024, Petitioner Glazer had sought a Cease and Desist order to stop the Board from spending any funds on the project until the hearing concluded. While the Judge eventually ruled that the Board's actions were unauthorized, the request for a Cease and Desist was denied at that time. The ALJ clarified that the Office of Administrative Hearings (OAH) lacks the statutory authority to issue injunctive orders, noting that such relief must be sought in Superior Court or another appropriate venue.

7. Final Takeaways and Community Impact

This ruling is a significant win for homeowner rights in Arizona. Key lessons include:

  • Know Your Governing Documents: Always investigate if your local CC&Rs incorporate a master association’s rules. These "hidden links" often provide the strongest protections against Board overreach.
  • Surveys are Not Votes: A Board cannot use a "72% approval" survey to bypass a legally required formal vote. Procedural shortcuts are a breach of fiduciary duty.
  • The Cost of Non-Compliance: The HOA was ordered to reimburse the $500 filing fees to both Ms. Kidd and Mr. Glazer.
  • Project Status: Because the homeowners acted swiftly, the project had not yet commenced and the assessment had not been officially levied at the time of the ruling.
8. Important Notice for Readers

Following the ALJ’s decision, a Minute Entry was issued on September 23, 2024, regarding a Motion for Rehearing. Homeowners and Boards must take note: The OAH loses jurisdiction the moment a decision is rendered. Any motions for rehearing must be filed directly with the Arizona Department of Real Estate (ADRE) Commissioner, not the OAH. Attempting to file with the OAH after a decision is a procedural dead end.

Case Participants

Petitioner Side

  • Jerome L. Glazer (Petitioner)
    Filed petition pro se.
  • Taylor Kidd (Petitioner)
  • Brandon P. Bodea (Attorney)
    MEDALIST LEGAL PLC
  • Patrick T. Nackley (Attorney)
    MEDALIST LEGAL PLC
    Appeared at hearing as representation for Taylor Kidd.

Respondent Side

  • Charles H. Oldham (Attorney)
    CHDB Law LLP
  • Josh Bolen (Attorney)
    CHDB Law LLP
  • Tessa Knueppel (Attorney)
    CHDB Law LLP
    Appeared at hearing as representation for Heritage Village III Homeowners Association.
  • Mark K. Sahl (Attorney)
    CHDB Law LLP
    Appeared at hearing as representation for Heritage Village III Homeowners Association.
  • Jennifer Hutsko (Witness)
    Heritage Village III Homeowners Association
    Board of Directors member and Community Planning Committee member; testified for the respondent.

Neutral Parties

  • Tammy L. Eigenheer (Administrative Law Judge)
    Office of Administrative Hearings
    Issued initial procedural orders.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearing and issued the decision.

Deborah Masear v. Paradise Park Condominiums Phase II Homeowners

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Case Summary

Case ID 24F-H041-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-14
Administrative Law Judge Kay A. Abramsohn
Outcome 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.
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 2026-04-24T12:23:39 (54.4 KB)

24F-H041-REL Decision – 1202883.pdf

Uploaded 2026-04-24T12:23:42 (42.7 KB)

24F-H041-REL Decision – 1211324.pdf

Uploaded 2026-04-24T12:23:46 (120.7 KB)

This summary details the proceedings, key arguments, and final decision in the matter of *Deborah Masear v. Paradise Park Condominiums Phase II Homeowners Association* (Park), Case No. 24F-H041-REL, before the Arizona Office of Administrative Hearings (OAH). The hearing convened on July 25, 2024.

Key Facts and Main Issues

The central legal issue was whether the Respondent, Paradise Park Condominiums Phase II Homeowners Association, violated its By-Laws Article III, Section 1 by allowing Frank Maiz to run for and serve on the Board of Directors in the 2024 election.

The relevant By-Law provision stipulates that each member of the Board of Directors must be "either an owner of a Unit or the spouse of an owner".

Petitioner Deborah Masear's position was that Frank Maiz was ineligible because his spouse, Mrs. Maiz, was not the owner of Unit 245. Petitioner alleged that the true owner of the property was the daughter, identified in public records as "Mercedes B.B. Maiz". Petitioner presented documents, including a Beneficiary Deed, which Petitioner claimed showed the daughter as the property owner and the "Seller".

The Petitioner bore the burden of proving the alleged violation by a preponderance of the evidence.

Key Arguments and Evidence

The Respondent, represented by Attorney Erica L. Mortenson, countered the allegations by presenting sworn testimony from Frank Maiz and his wife, Mercedes Bofill Benaches Maiz (also known as Mercedes B.B. Maiz).

Respondent’s evidence established:

  1. Ownership and Status: Mercedes B.B. Maiz testified that she married Frank Maiz in 1975 and has owned Unit 245 since 1990. Frank Maiz confirmed he has served as a director while married to the owner of Unit 245.
  2. Mistaken Identity: Mercedes B.B. Maiz clarified that she is the owner. The Petitioner's confusion arose from the fact that Mrs. Maiz shares a similar name with her daughter, Mercedes Bofill Maiz. The Administrative Law Judge (ALJ) concluded the Petitioner was mistaken regarding the current ownership and the owner's name.
  3. Beneficiary Deed: Mrs. Maiz explained that she executed the Beneficiary Deed (Transfer on Death Deed) in April 2023, listing her two children as beneficiaries, because she was anticipating heart surgery. She confirmed she is still alive, meaning the interest conveyed by the deed has not yet vested; therefore, she remains the current owner.

Outcome and Final Decision

The Administrative Law Judge (ALJ), Kay A. Abramsohn, concluded that the Petitioner failed to meet the burden of proof necessary to demonstrate a violation.

The ALJ found:

  • The hearing record clearly documented that Mercedes B.B. Maiz owns Unit 245.
  • The record clearly documented that Frank German Maiz is married to Mercedes B.B. Maiz.

Based on these findings, Frank German Maiz satisfies the requirement of being the "spouse of the owner" of Unit 245.

The Order resulted in:

  • The Petitioner’s Petition was dismissed.
  • Park was deemed the prevailing party, and the Petitioner was ordered to bear her filing fee.

This decision confirms that Park was in compliance with its By-Laws. This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of service.

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 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.
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)

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Decision Documents

24F-H035-REL Decision – 1163387.pdf

Uploaded 2026-04-24T12:21:35 (48.4 KB)

24F-H035-REL Decision – 1163395.pdf

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24F-H035-REL Decision – 1165696.pdf

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24F-H035-REL Decision – 1165699.pdf

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24F-H035-REL Decision – 1179128.pdf

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24F-H035-REL Decision – 1179136.pdf

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24F-H035-REL Decision – 1209016.pdf

Uploaded 2026-04-24T12:21:57 (146.3 KB)

This summary details the hearing held before the Office of Administrative Hearings (OAH) in the matter of *Jesse Freeman, Petitioner, vs. Millett Ranch Homeowners’ Association, Respondent*, Case No. 24F-H035-REL. The hearing was presided over by Administrative Law Judge (ALJ) Jenna Clark on July 24, 2024, concerning an HOA dispute.

Key Facts and Main Issue

The core issue was whether the Respondent, Millett Ranch Homeowners’ Association (the Association), failed to comply with Article II, Section 8 of its Bylaws, as purportedly amended on October 18, 2000, by refusing to hold a subsequent membership meeting with a diminished quorum.

The dispute arose after the Annual Meeting on January 16, 2024, failed to reach the required 25% quorum (only 89 votes were present, short of the 126 needed). Petitioner Jesse Freeman alleged that when quorum failed, the membership made and seconded a motion to adjourn and reconvene the meeting 60 days later with a reduced quorum requirement of 15% (76 votes), but the Association's Board President and attorney abruptly denied the motion and ended the meeting. Petitioner sought an Order compelling the Association to hold a meeting with the 15% diminished quorum requirement.

Key Arguments

Petitioner’s Case:

Petitioner Freeman, a property owner and former board member, argued that the amendment decreasing the quorum requirement for subsequent meetings to 15% was valid, asserting that its validity was established because it was dated October 18, 2000, and archived on the Association’s public website (Exhibit Y). Petitioner contended that the bylaw language was "compulsory" and mandated that the membership be allowed to adjourn and reconvene the meeting under the diminished quorum rule.

Respondent’s Case:

Respondent’s counsel and witnesses (Community Manager Brandon Moore and former Board President Chris Redden) presented two main arguments.

  1. Invalidity: The amendment was never formally adopted, ratified, or implemented by the Association. Witnesses testified that there were no ballots, meeting minutes, signatures, or stamps in the Association's records to substantiate the amendment’s validity. Furthermore, Petitioner conceded that during his two-year tenure on the Board (2017-2018), the Board never utilized the purported amendment, despite often failing to meet quorum, supporting the argument that the document was either a failed proposal or unknown.
  2. Non-Compulsory Language: Even if the amendment were valid, its language is not mandatory. The amendment states that the second meeting "shall require fifteen percent quorum". Respondent argued that this language simply sets the quorum requirement *if* a second meeting is held; it does not contain binding words (such as "shall" or "must" directed at the Association) that compel the Board to *call* a second meeting.

Outcome and Legal Conclusion

The ALJ found that Petitioner failed to sustain the burden of proof—that the contention was "more probably true than not".

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

The legal conclusions supporting the denial were:

  1. Lack of Corroboration: Petitioner failed to present sufficient credible evidence that the Association had voted on, ratified, or implemented the amendment to Bylaw Article II, Section 8. The document’s mere presence on the Association’s website was insufficient to establish validity.
  2. Non-Compulsory Language: The ALJ concluded that the language of the purported amendment was not compulsory. It does not contain verbiage inherently binding, such as "shall" or "must," that would require the Respondent to hold a second meeting.

The ALJ Decision was issued on August 09, 2024.

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.

Brian & Rosalie Gordon v. Tucson Estate No. Two Owner’s Association

Posted on by

Case Summary

Case ID 24F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-07-10
Administrative Law Judge Samuel Fox
Outcome Petitioners were deemed the prevailing party regarding Petition Issues 1 and 4, and Respondent was deemed the prevailing party regarding Issues 2 and 3. Respondent was ordered to pay Petitioners $1,000.00 of the filing fee. Respondent was also directed to comply with Community Documents and A.R.S. § 33-1805 going forward. No Civil Penalty was levied.
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian Gordon and Rosalie Gordon Counsel —
Respondent Tucson Estate No. Two Owner's Association Counsel Jason Smith

Alleged Violations

Bylaws Article 10; Finance Committee rules
A.R.S. § 33-1805; Bylaws Article 10
A.R.S. § 33-1805; Bylaws Article 10
A.R.S. § 33-1805; Bylaws Article 10

Outcome Summary

Petitioners were deemed the prevailing party regarding Petition Issues 1 and 4, and Respondent was deemed the prevailing party regarding Issues 2 and 3. Respondent was ordered to pay Petitioners $1,000.00 of the filing fee. Respondent was also directed to comply with Community Documents and A.R.S. § 33-1805 going forward. No Civil Penalty was levied.

Why this result: Petitioners failed to meet the burden of proof for Complaints 2 and 3, establishing that Respondent violated A.R.S. § 33-1805 or failed to abide by Community Documents, because Respondent provided all available records or offered additional reports.

Key Issues & Findings

Violation of Community Documents by not recording and making available the minutes of all Finance Committee Meetings held in 2023.

Petitioners requested minutes for five 2023 Finance Committee Meetings. The Committee rules required minutes of its meetings as a permanent record of its actions. The Respondent failed to record meeting minutes as required.

Orders: Respondent directed to comply with the requirements of its Community Documents going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (Budget Working Papers) available for review.

Petitioners requested copies of Budget Working Papers. Respondent provided all available documents (unapproved budget, general ledger, and draft), maintaining only one version of a proprietary spreadsheet. Petitioners failed to meet their burden to prove Respondent did not make records available.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (Accounts Payable journal with GL detail) available for review.

Petitioners requested Accounts Payable journal/reports multiple times. Respondent provided copies of available accounts payable reports (check receipts and general ledger). When Respondent later identified an additional detailed report available for purchase, Petitioners refused it.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Violation by not keeping and making financial and other HOA business documentation (IRS Tax filings and backup documentation) available for review.

Petitioners requested IRS Tax filings. Respondent initially provided only photocopies of two pages of the 1120-h form, missing schedules and backup documentation. Respondent failed to provide full tax returns or backup documentation in a timely manner (within ten business days).

Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1805 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10

Analytics Highlights

Topics: HOA records dispute, Finance Committee minutes, budget working papers, accounts payable journal, IRS tax filings, record retention, A.R.S. § 33-1805 violation
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601
  • Bylaws Article 10
  • A.R.S. § 32-2199.02

Video Overview

Audio Overview

Decision Documents

24F-H043-REL Decision – 1176916.pdf

Uploaded 2026-04-24T12:23:58 (53.5 KB)

24F-H043-REL Decision – 1198119.pdf

Uploaded 2026-04-24T12:24:02 (203.0 KB)

24F-H043-REL Decision – 1200350.pdf

Uploaded 2026-04-24T12:24:06 (37.2 KB)

This case involves a records dispute between Petitioners Brian and Rosalie Gordon (members) and the Tucson Estate No. Two Owner's Association (Respondent/HOA), heard by Administrative Law Judge (ALJ) Samuel Fox at the Office of Administrative Hearings (OAH) on June 21, 2024. The OAH's authority is limited to adjudicating alleged violations of the Arizona Planned Community Statutes (A.R.S. Title 33, Chapter 16) and the HOA's Community Documents.

Key Facts and Main Issues

The Petitioners filed a four-issue complaint alleging the Respondent violated A.R.S. § 33-1805 (requiring records to be made available for examination) and the HOA's Bylaws, primarily by failing to provide specific financial documentation requested in 2022 and 2023.

The four contested issues were:

  1. Finance Committee Minutes: Failure to record and make available minutes of 2023 Finance Committee Meetings.
  2. Budget Working Papers: Refusal to provide copies of draft budget working papers.
  3. Accounts Payable (AP) Journal: Failure to provide AP journals with General Ledger (GL) detail.
  4. Tax Filings Backup: Provision of incomplete IRS tax filings (just two pages of the 1120-h form) and lack of supporting backup documentation.

Key Arguments During the Hearing

Petitioners' Position: The Gordons argued that all financial and other records must be made reasonably available for examination by any member under A.R.S. § 33-1805. They contended that the HOA’s own Finance Committee policy required minutes of all its meetings as a permanent record of its "actions". They also claimed that essential documents (budget working papers, AP detail, and full tax backups) either existed and were being withheld, or should have been maintained by the HOA according to policy, even if created by its vendor, AAM.

Respondent's Position: The HOA, represented by Jason Smith, argued that the OAH’s jurisdiction is narrow. They maintained that they provided every document they possessed. For the minutes, they argued the Finance Committee is purely advisory, does not take corporate "action," and therefore minutes are not required. For the budget documents (Issue 2) and AP journal (Issue 3), the HOA claimed that the requested specific documents did not exist (as the budget utilized a single constantly updated spreadsheet, and the AP detail was handled by a third party not required to generate a specific report for the HOA). The HOA stressed that they are not required to create or reorganize information to satisfy a homeowner's request.

Final Decision and Outcome

The ALJ issued a decision on July 10, 2024, finding that the Petitioners prevailed on Issues 1 and 4, while the Respondent prevailed on Issues 2 and 3.

Legal Conclusions:

  • Issue 1 (Finance Minutes): VIOLATION FOUND. The HOA failed to abide by its Community Documents. Although the Finance Committee is advisory, its rules established that its activities (advising, reviewing, making recommendations) constituted "actions" for which minutes were required to be kept.
  • Issue 4 (Tax Filings Backup): VIOLATION FOUND. The HOA violated A.R.S. § 33-1805 because the preponderance of evidence showed Petitioners did not receive the complete tax returns or backup documentation in a timely manner (within the required ten business days of their October requests), even though the records were eventually available or accessible through the HOA’s agents.
  • Issues 2 & 3 (Working Papers & AP Journal): NO VIOLATION FOUND. The ALJ concluded that the Petitioners failed to meet their burden of proof, noting that A.R.S. § 33-1805 and the Bylaws do not require the HOA to create documents that it does not possess in response to a request. Respondent was found to have provided all available records related to these complaints.

Order:

The Respondent was ordered to comply with its Community Documents and the requirements of A.R.S. § 33-1805 going forward. The

Questions

Question

Is my HOA required to keep minutes for advisory committees?

Short Answer

Yes, if the community documents (like a committee charter or policy) state that minutes must be kept.

Detailed Answer

Even if an HOA argues a committee is only 'advisory' and doesn't take 'actions,' the ALJ ruled that activities like advising, reviewing, and recommending constitute 'actions' within the scope of the committee's duties. Therefore, if the committee's rules say minutes must be kept, failing to do so violates the community documents.

Alj Quote

When the Committee advised, assisted, reviewed, analyzed, recommended, or otherwise took action within the parameters of its Responsibilities and Duties, that was an 'action' by the Committee as established by the Board.

Legal Basis

Community Documents / Bylaws

Topic Tags

  • meeting minutes
  • committees
  • record keeping

Question

Can I demand that the HOA create a specific report to answer my financial questions?

Short Answer

No, the HOA is not required to create new documents that do not already exist.

Detailed Answer

The law requires the HOA to make existing records available for examination. It does not compel the HOA to generate new reports, compile data in a specific format, or create documents they do not currently possess to satisfy a homeowner's request.

Alj Quote

It does not require Respondent to provide documents that it does not have nor does it require Respondent to create documents in response to a request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • financial records
  • document creation
  • requests

Question

If the management company holds the records, can the HOA claim they don't have them?

Short Answer

No, records held by the management company are considered to be in the HOA's custody.

Detailed Answer

The ALJ explicitly ruled that documents in the custody of the management agent (e.g., AAM) are legally in the custody of the HOA. The HOA is obligated to provide them to members upon request.

Alj Quote

Documents in the custody of AAM are in the custody of Respondent, and Respondent is obligated to provide them to members under A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • management company
  • record custody
  • access to records

Question

Are personal notes taken by committee members considered official HOA records?

Short Answer

No, personal notes or drafts on personal devices are generally not HOA records.

Detailed Answer

The ALJ found that notes, drafts, edits, or comments made by committee members on their personal versions of documents were not records of the Association if the Association did not collect, track, or record them.

Alj Quote

Any notes, drafts, edits, or comments that committee members made on their personal versions were not records of Respondent, which did not collect, track, or record the committee members’ individual notes.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • personal notes
  • official records
  • committees

Question

Does the HOA have to provide previous drafts of a budget or 'working papers'?

Short Answer

Only if they actually kept them. If they overwrite the file, they don't have to produce previous versions.

Detailed Answer

In this case, the HOA used a single spreadsheet that was updated and overwritten as the budget process moved forward. The ALJ ruled that since the HOA did not maintain multiple versions, they were not required to produce previous drafts they no longer possessed.

Alj Quote

Respondent only maintained one version of the spreadsheet, and when changes were made, the spreadsheet was updated… Petitioners failed to meet their burden to support that Respondent did not make records available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • budget
  • draft documents
  • record retention

Question

Is providing the first two pages of a tax return sufficient to fulfill a records request?

Short Answer

No, the HOA must provide the complete tax return and backup documentation.

Detailed Answer

The ALJ found the HOA in violation for providing only the first two pages of Form 1120-H. The homeowner was entitled to the complete tax form and the backup documentation (which the management company or CPA had access to) within 10 days.

Alj Quote

The preponderance of the evidence establishes that Petitioners did not receive full copies of Respondent’s tax returns or backup documentation for the tax returns within ten days of their respective October requests.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • tax returns
  • financial records
  • transparency

Question

Can the ALJ enforce IRS regulations or the Nonprofit Corporation Act during this hearing?

Short Answer

No, the ALJ's jurisdiction is limited to Planned Community statutes and Community Documents.

Detailed Answer

The Administrative Law Judge explicitly stated that the tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act or IRS regulations, only Title 33 (Planned Communities) and the specific HOA documents.

Alj Quote

This Tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act, Internal Revenue Service regulations, or other laws or regulations.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • legal authority
  • IRS
  • nonprofit act

Question

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

Short Answer

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

Detailed Answer

In this case, because the homeowners prevailed on two of their four issues, the ALJ ordered the HOA to pay the homeowners $1,000.00 (half of the $2,000 filing fee).

Alj Quote

IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,000.00, to be paid directly to Petitioners within thirty (30) days of this Order.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • penalties
  • reimbursement

Case

Docket No
24F-H043-REL
Case Title
Brian Gordon and Rosalie Gordon v. Tucson Estate No. Two Owner's Association
Decision Date
2024-07-10
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my HOA required to keep minutes for advisory committees?

Short Answer

Yes, if the community documents (like a committee charter or policy) state that minutes must be kept.

Detailed Answer

Even if an HOA argues a committee is only 'advisory' and doesn't take 'actions,' the ALJ ruled that activities like advising, reviewing, and recommending constitute 'actions' within the scope of the committee's duties. Therefore, if the committee's rules say minutes must be kept, failing to do so violates the community documents.

Alj Quote

When the Committee advised, assisted, reviewed, analyzed, recommended, or otherwise took action within the parameters of its Responsibilities and Duties, that was an 'action' by the Committee as established by the Board.

Legal Basis

Community Documents / Bylaws

Topic Tags

  • meeting minutes
  • committees
  • record keeping

Question

Can I demand that the HOA create a specific report to answer my financial questions?

Short Answer

No, the HOA is not required to create new documents that do not already exist.

Detailed Answer

The law requires the HOA to make existing records available for examination. It does not compel the HOA to generate new reports, compile data in a specific format, or create documents they do not currently possess to satisfy a homeowner's request.

Alj Quote

It does not require Respondent to provide documents that it does not have nor does it require Respondent to create documents in response to a request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • financial records
  • document creation
  • requests

Question

If the management company holds the records, can the HOA claim they don't have them?

Short Answer

No, records held by the management company are considered to be in the HOA's custody.

Detailed Answer

The ALJ explicitly ruled that documents in the custody of the management agent (e.g., AAM) are legally in the custody of the HOA. The HOA is obligated to provide them to members upon request.

Alj Quote

Documents in the custody of AAM are in the custody of Respondent, and Respondent is obligated to provide them to members under A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • management company
  • record custody
  • access to records

Question

Are personal notes taken by committee members considered official HOA records?

Short Answer

No, personal notes or drafts on personal devices are generally not HOA records.

Detailed Answer

The ALJ found that notes, drafts, edits, or comments made by committee members on their personal versions of documents were not records of the Association if the Association did not collect, track, or record them.

Alj Quote

Any notes, drafts, edits, or comments that committee members made on their personal versions were not records of Respondent, which did not collect, track, or record the committee members’ individual notes.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • personal notes
  • official records
  • committees

Question

Does the HOA have to provide previous drafts of a budget or 'working papers'?

Short Answer

Only if they actually kept them. If they overwrite the file, they don't have to produce previous versions.

Detailed Answer

In this case, the HOA used a single spreadsheet that was updated and overwritten as the budget process moved forward. The ALJ ruled that since the HOA did not maintain multiple versions, they were not required to produce previous drafts they no longer possessed.

Alj Quote

Respondent only maintained one version of the spreadsheet, and when changes were made, the spreadsheet was updated… Petitioners failed to meet their burden to support that Respondent did not make records available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • budget
  • draft documents
  • record retention

Question

Is providing the first two pages of a tax return sufficient to fulfill a records request?

Short Answer

No, the HOA must provide the complete tax return and backup documentation.

Detailed Answer

The ALJ found the HOA in violation for providing only the first two pages of Form 1120-H. The homeowner was entitled to the complete tax form and the backup documentation (which the management company or CPA had access to) within 10 days.

Alj Quote

The preponderance of the evidence establishes that Petitioners did not receive full copies of Respondent’s tax returns or backup documentation for the tax returns within ten days of their respective October requests.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • tax returns
  • financial records
  • transparency

Question

Can the ALJ enforce IRS regulations or the Nonprofit Corporation Act during this hearing?

Short Answer

No, the ALJ's jurisdiction is limited to Planned Community statutes and Community Documents.

Detailed Answer

The Administrative Law Judge explicitly stated that the tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act or IRS regulations, only Title 33 (Planned Communities) and the specific HOA documents.

Alj Quote

This Tribunal is not authorized to adjudicate complaints arising from the Arizona Nonprofit Corporations Act, Internal Revenue Service regulations, or other laws or regulations.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • legal authority
  • IRS
  • nonprofit act

Question

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

Short Answer

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

Detailed Answer

In this case, because the homeowners prevailed on two of their four issues, the ALJ ordered the HOA to pay the homeowners $1,000.00 (half of the $2,000 filing fee).

Alj Quote

IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,000.00, to be paid directly to Petitioners within thirty (30) days of this Order.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • penalties
  • reimbursement

Case

Docket No
24F-H043-REL
Case Title
Brian Gordon and Rosalie Gordon v. Tucson Estate No. Two Owner's Association
Decision Date
2024-07-10
Alj Name
Samuel Fox
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian Gordon (petitioner)
  • Rosalie Gordon (petitioner)
  • James Tilly (witness)
    Member of Respondent who testified.
  • Leonard Vidovic (witness)
    Also referred to as Leonard Judbec.

Respondent Side

  • Jason E. Smith (HOA attorney)
    SMITH & WAMSLEY, PLLC
  • Sean K. Moynihan (attorney)
    Smith & Wamsley, PLLC
  • Mandy Bates (property manager)
    Associated Asset Management
    Community Manager for Tucson Estates No. Two Owner's Association.
  • Trudy Peterson (finance chair)
    Treasurer and Finance Chair.
  • Rose Spank (board member)
    HOA President in 2012.
  • Janelle Richmond (board member)
    HOA Secretary in 2012.
  • Sharon Matthews (AAM staff)
    AAM
    Referenced in emails regarding accounting procedures (also referred to as Karen Matthews).

Neutral Parties

  • Samuel Fox (ALJ)
    OAH
    Administrative Law Judge for the decision and hearing.
  • Sondra J. Vanella (ALJ)
    OAH
    Signed the initial Order Setting Hearing.
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Listed on transmission/service list.