Tag Archives: CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Yin Macatabas

Posted on by

Case Summary

Case ID 25F-H089-REL
Agency Arizona Department of Real Estate
Tribunal Arizona Office of Administrative Hearings
Decision Date 2026-04-27
Administrative Law Judge NR
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Yin Macatabas Counsel Pro Se
Respondent Tapestry on Central Condominium Association Counsel Monya Cohen, Allison Preston

Alleged Violations

No violations listed

Video Overview

Audio Overview

Briefing: Macatabas v. Tapestry on Central Condominium Association

Executive Summary

The case of Yin Macatabas v. Tapestry on Central Condominium Association (No. 25F-H089-REL) centers on a dispute over access to association records following a $3.5 million special assessment. The Petitioner, Yin Macatabas, alleged that the Association violated Arizona Revised Statute (A.R.S.) § 33-1258 by failing to provide requested documents—including competitive bids for elevators, lobbies, and HVAC projects—within the mandatory ten-business-day window.

Following evidentiary hearings held on April 2 and April 7, 2026, Administrative Law Judge (ALJ) Nicole Robinson ruled in favor of the Respondent. The decision concluded that the Association had fulfilled its statutory obligations by making the records "reasonably available" through an online owner portal and via physical hand-delivery to the Petitioner's doorstep. Crucially, the tribunal found that certain records requested by the Petitioner, such as lobby and HVAC bids, did not exist at the time of the request and therefore could not be produced. The petition was denied in its entirety on April 27, 2026.

Case Overview and Procedural History

Case Information
Category Details
Case Number 25F-H089-REL
Petitioner Yin Macatabas (Unit A123)
Respondent Tapestry on Central Condominium Association
Management First Service Residential
Governing Statute A.R.S. § 33-1258 (Records Disclosure)
Presiding Judge Nicole Robinson (Administrative Law Judge)
Timeline of Events
  • Summer 2023: Petitioner purchases unit A123 at Tapestry on Central.
  • January – July 2025: The Association holds bi-monthly board meetings and town halls to discuss a $3.5 million special assessment necessitated by depleted reserves and critical infrastructure needs.
  • July 30, 2025: Petitioner submits a formal records request for CC&Rs, bylaws, and all contractor bids/proposals supporting the assessment. A special assessment meeting is held the same evening.
  • August 8, 2025: Association staff prepares a physical packet. After the Petitioner fails to pick it up, the General Manager hand-delivers it to the Petitioner’s unit.
  • September 3, 2025: Petitioner files a formal petition with the Arizona Department of Real Estate (ADRE).
  • April 2 & 7, 2026: Evidentiary hearings conducted via Google Meet and in-person.
  • April 27, 2026: Final Administrative Law Judge Decision issued, denying the petition.

Detailed Analysis of Key Themes

1. The Definition of "Reasonably Available"

The central legal tension was whether the Association was required to ensure the Petitioner received the documents or merely made them available. Under A.R.S. § 33-1258, records must be "reasonably available for examination."

  • The Portal: The Association argued that uploading documents to the homeowner portal constituted availability. Witness testimony established that elevator bids were on the portal, though the Petitioner claimed she could not find them.
  • Physical Delivery: The Association went beyond the statute's requirements by preparing a physical packet and hand-delivering it to the Petitioner's unit on August 8, 2025, when she failed to pick it up.
2. The Scope and Existence of Records

A significant portion of the dispute involved the Petitioner’s request for documents that did not yet exist.

  • The Elevator Bids: Two bids for $477,000 each existed for the elevators and were provided.
  • Non-Existent Records: Board President Candess Hunter testified that because the Association was in the "design phase" for the lobby and hallway projects, no formal competitive bids had been obtained or approved by the board at the time of the July request.
  • HVAC: The HVAC amount in the assessment was based on a reserve study, not a specific contractor bid. The ALJ ruled that the Association cannot be held in violation for failing to produce records that are not in its possession.
3. Financial Instability as Context for Assessment

Testimony from the Board President highlighted the dire financial situation that led to the $3.5 million assessment:

  • The Association's reserves had been depleted to approximately $250,000 against a projected $4.5 million in needs.
  • A "catastrophe" with the fire system cost over $1 million.
  • Insurance providers were threatening cancellation due to the poor condition of the elevators, which would have forced the board to resign and placed the community into receivership.
4. Credibility and Burden of Proof

The Petitioner bore the burden of proving the violation by a "preponderance of the evidence." The ALJ found the Association’s witnesses (the General Manager and Board President) to be credible. Their testimony regarding the preparation and delivery of the documents on August 8, 2025, outweighed the Petitioner’s claim of non-receipt. The Petitioner’s lack of participation in the seven months of preparatory town halls and meetings prior to the vote was also noted as a factor in her misunderstanding of which bids actually existed.

Important Quotes and Context

Regarding the Delivery of Documents

"I did that because um it was going to be a weekend. We were coming up on a deadline. I I felt like it was a courtesy. I felt it would be faster and I went to the door and I delivered the documents." — Kara Tretbar, Former General Manager, explaining the August 8, 2025, delivery to the Petitioner’s condo.

Regarding the Financial State of the Association

"Our reserves were down to almost nothing. We had had a huge catastrophe with our fire system and that it cost depleted our reserves… We were on the brink of receivership." — Candess Hunter, Board President, providing context on why the $3.5 million special assessment was critical.

Regarding the Existence of Requested Bids

"To think that we could possibly even have bids for the C lobby and the A hallways when we didn't have a design for them yet, I it just was beyond me to think that it was possible for anybody to be that confused." — Candess Hunter, Board President, addressing the Petitioner’s request for lobby and hallway bids.

Regarding the Legal Standard

"Description is not proof… Respondent did not establish that the requested records were made available to me in the way they claim." — Yin Macatabas, Petitioner, in her closing argument, emphasizing the lack of an "audit trail" or photo evidence of delivery.

The Tribunal’s Conclusion

"In this case, the credible weight of the evidence established that Respondent made the requested documents reasonably available to Petitioner for examination. Petitioner had access to the owner portal whereby all of the requested documents resided." — Nicole Robinson, Administrative Law Judge, in the Final Decision.

Actionable Insights

For Homeowners’ Associations (HOAs)
  • Utilize Portals for Compliance: Maintaining a robust, searchable online portal for CC&Rs, meeting minutes, and bids is a primary defense against claims of withholding records.
  • Document Pick-ups and Deliveries: While not strictly required by statute, keeping a delivery log or obtaining a signature when providing physical records can prevent "he-said, she-said" disputes in administrative hearings.
  • Clarify Record Non-Existence: When a member requests records that do not exist (e.g., bids for a project still in the design phase), the Association should explicitly state in writing that no such records currently exist.
For Association Members
  • Engage Early: The ALJ noted the Petitioner did not attend town halls where the project details were discussed. Early participation can clarify the timeline for when bids and contracts are actually generated.
  • Request Portal Assistance: If unable to find documents on a portal, members should formally request assistance or a direct link to the specific folder to demonstrate a good-faith effort to access "reasonably available" records.
  • Understand the "Reasonably Available" Standard: Arizona law does not require associations to ensure a member "received" a record, only that the member was given a reasonable opportunity to examine or purchase it.

Contact Information for Related Parties

Entity Role Contact Info
Arizona Dept. of Real Estate Commissioner [email protected]
Carpenter Hazlewood Delgado & Bolen Respondent Counsel [email protected]
Yin Macatabas Petitioner [email protected]
First Service Residential Management [email protected]

Study Guide: Yin Macatabas v. Tapestry on Central Condominium Association

This study guide provides a comprehensive overview of the administrative hearing case Yin Macatabas v. Tapestry on Central Condominium Association (Case No. 25F-H089-REL). It covers the legal framework, the core dispute regarding records access, and the final judicial determination.

Case Overview and Core Themes

The case centers on a dispute between a condominium owner (Petitioner) and her homeowner association (Respondent) regarding the transparency of a $3.5 million special assessment. The primary legal question was whether the Association violated state law by failing to provide requested records within the statutory timeframe.

Key Legal Framework: A.R.S. § 33-1258

The governing authority in this matter is Arizona Revised Statute § 33-1258, which outlines the requirements for condominium associations regarding record keeping and member access:

  • Availability: All financial and other records must be made "reasonably available" for examination by a member or their representative.
  • Timeframe: The association has ten business days to fulfill a request for examination or to provide copies of requested records.
  • Fees: While associations cannot charge for the review of records, they may charge up to fifteen cents per page for physical copies.
  • Exceptions: Certain records may be withheld, such as privileged attorney-client communications, pending litigation, or personal/financial records of specific members or employees.
The Dispute Timeline (2025–2026)
  • July 30, 2025: Petitioner submits a formal records request for documents supporting a $3.5 million special assessment.
  • August 13, 2025: The statutory 10-business-day deadline for providing the records.
  • September 3, 2025: Petitioner files a petition with the Arizona Department of Real Estate (ADRE) alleging a violation.
  • April 2 & April 7, 2026: Evidentiary hearings are conducted by the Office of Administrative Hearings (OAH).
  • April 27, 2026: Administrative Law Judge (ALJ) Nicole Robinson issues the final decision.

Short-Answer Practice Questions

1. What specific documents did the Petitioner request on July 30, 2025? The Petitioner requested the full CC&Rs and Bylaws, the special assessment justification packet, all contractor bids/proposals for elevator, lobby, hallway, and HVAC projects, detailed financial breakdowns for the $3.5 million assessment, and relevant meeting minutes/voting records.

2. What was the Association’s primary defense regarding the availability of records? The Association argued that the records were "reasonably available" through an online owner portal and that a physical packet of documents was hand-delivered to the Petitioner's unit on August 8, 2025.

3. Why were HVAC and lobby bids not provided to the Petitioner? The Association testified that at the time of the request, these bids did not exist. The Board was still in the process of gathering information or determining designs, and therefore no "association records" for these specific projects had been created yet.

4. What is the "Burden of Proof" in this administrative hearing, and who holds it? The Petitioner holds the burden of proof. She was required to prove by a "preponderance of the evidence" (that the claim is more probable than not) that the Association violated A.R.S. § 33-1258.

5. How did the Administrative Law Judge rule on the hand-delivery of documents? The ALJ found the testimony of the Association’s witnesses credible. Even though the Petitioner claimed she never received the packet, the judge determined the Association fulfilled its duty by making the records available on the portal and attempting hand-delivery.

Essay Prompts for Deeper Exploration

1. Defining "Reasonable Availability" in the Digital Age Analyze the Association’s use of an online owner portal to satisfy A.R.S. § 33-1258. Does the existence of a digital repository satisfy the legal requirement for records to be "reasonably available," even if a member experiences technical difficulties or claims they were not properly instructed on how to navigate the system? Use the testimony of Candess Hunter and Kara Tretbar to support your argument.

2. The Conflict Between Petitioner Testimony and Corporate Records The Petitioner argued that Respondent failed to provide an "audit trail" or physical proof (such as a delivery log or photograph) of the August 8th document delivery. Contrast this with the ALJ’s conclusion that "testimony is evidence." Discuss the weight given to witness credibility versus physical documentation in administrative hearings.

3. Statutory Compliance and Non-Existent Records The Petitioner requested bids for several projects that the Association claimed were not yet finalized or bid out. Explore the legal obligations of an HOA when a member requests documents that do not yet exist. Does a "status update" or "reserve study" suffice when specific competitive bids have not been obtained?

Glossary of Important Terms

Term Definition
A.R.S. § 33-1258 The Arizona statute governing the disclosure and availability of condominium association records to its members.
Administrative Law Judge (ALJ) A judicial officer who presides over administrative hearings, such as those conducted by the Office of Administrative Hearings (OAH).
Burden of Proof The obligation of a party (in this case, the Petitioner) to provide enough evidence to support their claim.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and operations of the community.
Owner Portal An online digital platform provided by the Association where members can access documents, pay dues, and view community information.
Preponderance of the Evidence The standard of proof used in civil and administrative cases, meaning the evidence shows the fact is more likely true than not.
Reserve Study A financial document used by HOAs to plan for long-term maintenance and replacement of common area components (e.g., HVAC units).
Special Assessment A one-time fee levied on homeowners by an association to fund specific projects or financial shortfalls not covered by regular dues.
Tribunal A body established to settle a certain type of dispute; in this context, the Office of Administrative Hearings.

The $3.5 Million Question: Lessons in Transparency from the Macatabas v. Tapestry Case

1. Introduction: The High Stakes of HOA Assessments

In the summer of 2025, the homeowners of Tapestry on Central—a 292-unit complex in Midtown Phoenix—found themselves standing at a financial precipice. The Association was on the brink of receivership, reeling from a "fire system catastrophe" that had gutted its reserves. With nearly $4.5 million in looming expenses and only $250,000 in the bank, the Board proposed a staggering $3.5 million special assessment to stabilize the community's future.

For residents, a levy of this magnitude is not merely a line item; it is a significant personal financial blow. In such high-stakes environments, the "right to know" becomes the primary battleground. At the heart of Macatabas v. Tapestry on Central Condominium Association was a fundamental question of transparency: Did the Association violate state law by failing to provide the documentation justifying this massive levy? This case serves as a masterclass in the legal nuances of records disclosure and the practical limits of an HOA’s duty to produce information.

2. The Paper Trail: What Was Requested and Why

On July 30, 2025, Petitioner Yin Macatabas submitted a formal records request following a contentious meeting regarding the assessment. Seeking to verify the "evidence" behind the $3.5 million figure, she requested five specific categories of documents:

  • Governing Documents: Full CC&Rs and Bylaws.
  • Special Assessment Justification Packet: The information sent to owners explaining the necessity of the levy.
  • Competitive Bids: Specific vendor proposals for elevators, lobbies, hallways, and HVAC systems.
  • Financial Breakdowns: The data used to calculate the $3.5 million total, specifically distinguishing between "ballparked" provisional estimates based on preliminary reserve studies and actual fixed contracts.
  • Board Records: Meeting minutes and voting records related to the assessment’s approval.

3. The "Reasonable Availability" Debate

When the dispute reached the Arizona Office of Administrative Hearings in April 2026, the testimony revealed a classic "he-said/she-said" scenario, further complicated by internal contradictions within the Association’s own management.

Points of Contention
Point of Contention Petitioner’s Claims Respondent’s Testimony
Document Delivery Macatabas (Unit A123) testified she never received a physical packet, email, or portal upload of the bids. GM Kara Tretbar testified she hand-delivered a packet to the door of Unit A123 in the "A Building" at 4:30 PM on August 8, 2025—five days before the legal deadline.
Conflicting Accounts Petitioner highlighted that Tretbar initially testified bids existed by Aug 8, only for the Board President to "correct" her later. Board President Candess Hunter clarified Tretbar "misspoke"; lobby and HVAC bids did not exist yet as projects were only in the design phase.
Audit & Verification Petitioner argued there was no photo, receipt, or "audit trail" to prove the delivery occurred. President Hunter retorted: "We’re an HOA; we’re not the police department." The Association argued the law requires "reasonable availability," not a forensic chain of custody.
Portal Access Macatabas claimed she checked the portal and found it empty of the requested bids. The Association maintained all existing records, including the $477k elevator bids, were uploaded and available to any owner who looked.

4. Legal Deep Dive: Understanding ARS § 33-1258

The pivot point of this case is ARS § 33-1258, which mandates that association records be made "reasonably available" within 10 business days.

In this instance, Macatabas calculated her deadline as August 13. The Association’s attempted delivery on August 8 was well within that window. However, the more complex legal issue involved the requested HVAC and lobby bids. The Petitioner demanded these records to justify the $3.5 million total, but the Board revealed those figures were "ballparked" from reserve studies—actual vendor bids had not yet been solicited or received.

As a Senior Analyst, I must be clear: The Law does not require the production of ghosts; if a document has not been drafted, it cannot be "reasonably available" for inspection. Administrative Law Judge Nicole Robinson affirmed that provisional estimates or "ballpark" figures used for planning are not corporate records subject to production until a formal, written bid is actually received by the Association.

5. The Verdict: Why the Judge Denied the Petition

On April 27, 2026, Judge Robinson rendered her decision in favor of the Association. The ruling focused on the "Reasonably Available" standard rather than the disputed physical delivery.

The Judge found that the Association met its burden by maintaining the documents on the online owner portal. Even though the hand-delivery to the "A Building" was contested, the portal provided a "secondary layer of compliance" that satisfied the statute. Because the records were accessible digitally, the Association was not in violation of the 10-day rule. Consequently, the petition was denied, and the Association was not required to reimburse the Petitioner’s filing fee.

6. Essential Takeaways for Homeowners and HOA Boards

The Macatabas case provides a roadmap for navigating transparency in a digital age:

  1. Digital Portals as the Gold Standard: For HOA Boards, a well-maintained owner portal is your best legal shield. If a document is uploaded, it is generally considered "reasonably available," mooting disputes over lost mail or unrecorded hand-deliveries.
  2. The Limits of Disclosure: Boards are not required to produce documents that don't exist. Preliminary figures from a reserve study are planning tools, not "corporate records." Until a vendor puts pen to paper, there is no "bid" to disclose.
  3. The "Reasonably Available" Two-Way Street: This standard implies a duty of inquiry for the homeowner. While the Board must provide access, the owner has a responsibility to check the provided resources (like the portal) before alleging a statutory violation.
  4. Communication is Key: The friction in the "A Building" might have been avoided if the Association had sent a simple follow-up email confirming the August 8 delivery. Clear instructions on exactly where to find documents on the portal can prevent costly litigation.

7. Conclusion: The Path Forward

The $3.5 million question at Tapestry on Central highlights the inevitable tension between a Board’s emergency duty to save a community from receivership and a homeowner's right to verify the costs. This case sets a clear precedent: while associations must be transparent, "reasonable availability" is a functional standard, not a requirement for obsessive bookkeeping. When both sides embrace proactive communication over a "police department" mentality, the spirit of the community can survive even the most catastrophic financial challenges.

Case Participants

Petitioner Side

  • Yin Macatabas (Petitioner)
    Tapestry on Central Condominium Association
    Condominium owner

Respondent Side

  • Monya Cohen (Attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Counsel for Respondent
  • Allison Preston (Attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Co-counsel for Respondent
  • Kara Tretbar (Witness)
    First Service Residential
    Former General Manager at Tapestry on Central
  • Candess Hunter (Witness)
    Tapestry on Central Condominium Association
    President of the Association's Board of Directors

Neutral Parties

  • Samuel Fox (Administrative Law Judge)
    Office of Administrative Hearings
    Issued preliminary continuances and orders
  • Nicole Robinson (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearings and issued the final decision
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Keith W. Cunningham v. The Residences at 2211 Camelback Condominium

Posted on by

Case Summary

Case ID 24F-H008-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-11
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keith W. Cunningham Counsel —
Respondent The Residences at 2211 Camelback Condominium Association, INC Counsel Allison Preston

Alleged Violations

A.R.S. § 33-1258
CC&Rs Section 8.1.1

Outcome Summary

Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward.

Key Issues & Findings

Records Request

Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.

Orders: Respondent shall comply with A.R.S. § 33-1258 going forward.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258

Insurance Coverage

Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent's property insurance coverage ($59M) was below the appraised replacement cost ($73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.

Orders: Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • CC&Rs Section 8.1.1

Analytics Highlights

Topics: Records Request, Insurance Coverage, Condominium, Contracts, Vendor Contracts, Replacement Cost
Additional Citations:

  • A.R.S. § 33-1258
  • CC&Rs Section 8.1.1

Video Overview

Audio Overview

Decision Documents

24F-H008-REL Decision – 1099767.pdf

Uploaded 2026-04-24T12:14:44 (46.1 KB)

24F-H008-REL Decision – 1101587.pdf

Uploaded 2026-04-24T12:14:47 (49.0 KB)

24F-H008-REL Decision – 1119643.pdf

Uploaded 2026-04-24T12:14:51 (47.5 KB)

24F-H008-REL Decision – 1121917.pdf

Uploaded 2026-04-24T12:14:55 (39.3 KB)

24F-H008-REL Decision – 1132963.pdf

Uploaded 2026-04-24T12:14:58 (188.5 KB)

24F-H008-REL Decision – 1149691.pdf

Uploaded 2026-04-24T12:15:04 (39.1 KB)

24F-H008-REL Decision – 1099767.pdf

Uploaded 2026-02-12T19:18:01 (46.1 KB)

24F-H008-REL Decision – 1101587.pdf

Uploaded 2026-02-12T19:18:03 (49.0 KB)

24F-H008-REL Decision – 1119643.pdf

Uploaded 2026-02-12T19:18:04 (47.5 KB)

24F-H008-REL Decision – 1121917.pdf

Uploaded 2026-02-12T19:18:06 (39.3 KB)

24F-H008-REL Decision – 1132963.pdf

Uploaded 2026-02-12T19:18:07 (188.5 KB)

24F-H008-REL Decision – 1149691.pdf

Uploaded 2026-02-12T19:18:08 (39.1 KB)

{
“case”: {
“docket_no”: “24F-H008-REL”,
“case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”,
“decision_date”: “2024-01-11”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Keith W. Cunningham”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Allison Preston”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Carpenter Hazlewood Delgado & Bolen LLP”,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Kyle von Johnson”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Mark Teman”,
“role”: “board member”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Association President, witness”
},
{
“name”: “Allison Renow”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “General Manager (GM) on site”
},
{
“name”: “Frank Durso”,
“role”: “regional manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: null
},
{
“name”: “Jamie George”,
“role”: “VP of Insurance”,
“side”: “respondent”,
“affiliation”: “First Service Financial”,
“notes”: “Assists with association insurance policies”
},
{
“name”: “Holly McNelte”,
“role”: “management staff”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “FSR team member who managed documents/files”
},
{
“name”: “Jonathan Henley”,
“role”: “insurance broker”,
“side”: “neutral”,
“affiliation”: “Gallagher”,
“notes”: null
},
{
“name”: “Brian Del Vecchio”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who conducted the hearing (12/8/23)”
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who wrote the decision”
},
{
“name”: “Susan Nicolson”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “AHansen”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “vnunez”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “djones”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “labril”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “mneat”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “akowaleski”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “gosborn”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
}
]
}

{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “24F-H008-REL”, “case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Keith W. Cunningham”, “party_type”: “homeowner”, “email”: “[email protected]”, “phone”: null, “attorney_name”: null, “attorney_firm”: null, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “The Residences at 2211 Camelback Condominium Association, INC”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Allison Preston”, “attorney_firm”: “Carpenter Hazlewood Delgado & Bolen LLP”, “attorney_email”: “[email protected]”, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute”, “citation”: “A.R.S. § 33-1258”, “caption”: “Records Request”, “violation(s)”: “Failure to provide requested financial records and contracts within 10 business days”, “summary”: “Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 1000.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with A.R.S. § 33-1258 going forward.”, “why_the_loss”: null, “cited”: [“A.R.S. § 33-1258”] }, { “issue_id”: “ISS-002”, “type”: “governing_documents”, “citation”: “CC&Rs Section 8.1.1”, “caption”: “Insurance Coverage”, “violation(s)”: “Failure to maintain property insurance equal to 100% of replacement cost and general liability insurance limits as required”, “summary”: “Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent’s property insurance coverage (59M)wasbelowtheappraisedreplacementcost(73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 0.0, “filing_fee_refunded”: false, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.”, “why_the_loss”: null, “cited”: [“CC&Rs Section 8.1.1”] } ], “money_summary”: { “issues_count”: 2, “total_filing_fees_paid”: 1000.0, “total_filing_fees_refunded”: 1000.0, “total_civil_penalties”: 0.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “yes”, “summarize_judgement”: “Petitioner’s petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner’s $1,000.00 filing fee and comply with the statute and CC&Rs going forward.”, “why_the_loss”: null }, “analytics”: { “cited”: [“A.R.S. § 33-1258”, “CC&Rs Section 8.1.1”], “tags”: [“Records Request”, “Insurance Coverage”, “Condominium”, “Contracts”, “Vendor Contracts”, “Replacement Cost”] } }

{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }

{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }

Case Participants

Petitioner Side

  • Keith W. Cunningham (petitioner)

Respondent Side

  • Allison Preston (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Represented The Residences at 2211 Camelback Condominium Association, INC
  • Kyle von Johnson (HOA attorney)
    Represented The Residences at 2211 Camelback Condominium Association, INC
  • Mark Teman (board member)
    Association President, witness
  • Allison Renow (property manager)
    First Service Residential
    General Manager (GM) on site
  • Frank Durso (regional manager)
    First Service Residential
  • Jamie George (VP of Insurance)
    First Service Financial
    Assists with association insurance policies
  • Holly McNelte (management staff)
    First Service Residential
    FSR team member who managed documents/files

Neutral Parties

  • Jonathan Henley (insurance broker)
    Gallagher
  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge who conducted the hearing (12/8/23)
  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge who wrote the decision
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • akowaleski (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient

Virginia Guest v Bella Tierra Community Association

Posted on by

Case Summary

Case ID 24F-H007-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-11-08
Administrative Law Judge Brian Del Vecchio
Outcome The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable).
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Virginia Guest Counsel —
Respondent Bella Tierra Community Association Counsel Nicholas C. S. Nogami, Esq.

Alleged Violations

CC&Rs § 5.1, ARIZ. REV. STAT. § 33-1803

Outcome Summary

The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable).

Why this result: Petitioner failed to prove violations of CC&Rs § 9.1.1 and CC&Rs § 9.15. Chickens are banned as birds/fowl under CC&Rs § 3.3, and the mediation clause only applies to disputes involving Declarant Parties, not general homeowner disputes.

Key Issues & Findings

Wrongfully charging costs of certified letters/appeal response as a balance forward

Petitioner alleged Respondent wrongfully forwarded the cost of sending certified letters (categorized as a 'balance forward') onto her account without authority in the CC&Rs, violating rules for imposing fines.

Orders: Respondent ordered to pay Petitioner $500.00 of her filing fee and remove the balance forward associated with certified letter costs from her assessment.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs § 5.1
  • ARIZ. REV. STAT. § 33-1803

Analytics Highlights

Topics: animal restriction, HOA enforcement, certified mail fee, dispute resolution, fines
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1803
  • CC&Rs § 9.1.1
  • CC&Rs § 3.3
  • CC&Rs § 9.15
  • CC&Rs § 5.1

Video Overview

Audio Overview

Decision Documents

24F-H007-REL Decision – 1095892.pdf

Uploaded 2026-04-24T12:14:29 (55.6 KB)

24F-H007-REL Decision – 1111192.pdf

Uploaded 2026-04-24T12:14:34 (104.5 KB)

24F-H007-REL Decision – 1095892.pdf

Uploaded 2026-01-23T18:01:15 (55.6 KB)

24F-H007-REL Decision – 1111192.pdf

Uploaded 2026-01-23T18:01:18 (104.5 KB)

This summary addresses the hearing proceedings, key arguments, and final decision in the matter of *Virginia Guest v. Bella Tierra Community Association* (No. 24F-H007-REL), held before Administrative Law Judge Brian Del Vecchio on October 19, 2023.

Key Facts and Main Issues

Virginia Guest (Petitioner), an owner in the Bella Tierra Community Association (Respondent), filed a petition alleging three main violations by the Homeowners Association (HOA):

  1. Enforcement Authority: Whether the HOA wrongfully issued violation notices for owning chickens, thereby violating CC&Rs § 9.1.1 (enforcement rights). This centered on CC&Rs § 3.3, which bans "animal, bird, fowl, poultry, reptile or livestock," except for a "reasonable number of dogs, cats, parakeets or similar household birds".
  2. Dispute Resolution: Whether the HOA violated CC&Rs § 9.15 by failing to engage in mediation regarding the dispute over animal use.
  3. Improper Fines/Fees: Whether the HOA violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803 by charging the Petitioner a "balance forward" (totaling $16.20 at the time of the hearing) to cover the cost of certified letters sent in response to her appeal.

Key Legal Arguments

Petitioner's Arguments:

Petitioner Guest argued that the chickens were permitted because they are domestic pets similar to parakeets and therefore qualify under the exception clause of CC&Rs § 3.3. She contended that the HOA was enforcing a rule that does not exist and acting arbitrarily, violating the enforcement provision (CC&Rs § 9.1.1). Guest insisted that mediation under CC&Rs § 9.15 was required because the Declarant Party (KB Home) still controls the HOA, making the dispute a claim regarding project use against the Declarant or its agents. Finally, she argued that the $16.20 charge for certified letters was an unauthorized fine, as CC&Rs § 5.1 only permits fines for document violations *after* notice and opportunity to be heard, not for administrative costs.

Respondent's Arguments:

The HOA (represented by Nicholas Nogami, Esq.) argued that chickens are plainly classified as "birds" and "fowl" and are thus explicitly banned by CC&Rs § 3.3. The HOA's authority to enforce its governing documents was deemed legitimate under CC&Rs § 9.1.1. Regarding mediation (CC&Rs § 9.15), the HOA asserted that the section only applies to disputes involving Declarant Parties (e.g., construction defects) and not standard homeowner enforcement claims, therefore mediation was not required. The HOA maintained that the $16.20 charge was a certified letter fee, not a fine, imposed to offset costs incurred for correspondence that state law required to be certified.

Final Decision and Outcome

The Administrative Law Judge (ALJ) issued a decision on November 8, 2023, denying the petition in part and granting it in part.

  1. Enforcement (Chickens): DENIED. The ALJ concluded that Petitioner failed to meet the burden of proof that the HOA violated CC&Rs § 9.1.1. The CC&Rs plainly ban birds and fowl. The ALJ ruled that chickens are both birds and fowl, and while the Petitioner subjectively believes they are pets similar to parakeets, the plain language objectively bans them. The HOA thus had the authority to issue violation notices.
  2. Mediation (Dispute Resolution): DENIED. The ALJ found that CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those related to construction defects or project conditions, and does not apply to homeowner disputes. Since the Petitioner is not a Declarant Party, mediation was not required.
  3. Improper Fees/Fines: GRANTED. The ALJ found that the HOA failed to establish that the CC&Rs empowered them to forward the cost of certified letters (the "balance forward") directly to the Petitioner prior to the completion of the hearing. The HOA violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803 by assessing this unauthorized charg

Questions

Question

Can my HOA ban chickens even if I consider them household pets?

Short Answer

Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.

Detailed Answer

The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.

Alj Quote

Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • chickens
  • CC&Rs interpretation
  • violations

Question

Can my HOA charge me for the cost of sending certified letters regarding a violation?

Short Answer

Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.

Detailed Answer

The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.

Alj Quote

Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803

Legal Basis

CC&Rs § 5.1; A.R.S. § 33-1803

Topic Tags

  • fines
  • fees
  • administrative costs
  • certified mail

Question

Is my HOA required to go to mediation before enforcing a rule violation?

Short Answer

It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.

Detailed Answer

The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.

Alj Quote

The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.

Legal Basis

CC&Rs § 9.15

Topic Tags

  • mediation
  • dispute resolution
  • procedure
  • declarant

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.

Detailed Answer

In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.

Legal Basis

Standard of Proof

Topic Tags

  • legal standards
  • burden of proof
  • hearings

Question

If I win part of my case against the HOA, can I get my filing fees reimbursed?

Short Answer

The ALJ may order partial reimbursement of filing fees if the petition is granted in part.

Detailed Answer

In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.

Alj Quote

IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.

Legal Basis

ALJ Order

Topic Tags

  • remedies
  • filing fees
  • penalties

Question

Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?

Short Answer

Likely not, if chickens are also defined as 'fowl' which are otherwise banned.

Detailed Answer

The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'

Alj Quote

Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • CC&Rs interpretation
  • exceptions

Case

Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA ban chickens even if I consider them household pets?

Short Answer

Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.

Detailed Answer

The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.

Alj Quote

Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • chickens
  • CC&Rs interpretation
  • violations

Question

Can my HOA charge me for the cost of sending certified letters regarding a violation?

Short Answer

Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.

Detailed Answer

The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.

Alj Quote

Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803

Legal Basis

CC&Rs § 5.1; A.R.S. § 33-1803

Topic Tags

  • fines
  • fees
  • administrative costs
  • certified mail

Question

Is my HOA required to go to mediation before enforcing a rule violation?

Short Answer

It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.

Detailed Answer

The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.

Alj Quote

The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.

Legal Basis

CC&Rs § 9.15

Topic Tags

  • mediation
  • dispute resolution
  • procedure
  • declarant

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.

Detailed Answer

In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.

Legal Basis

Standard of Proof

Topic Tags

  • legal standards
  • burden of proof
  • hearings

Question

If I win part of my case against the HOA, can I get my filing fees reimbursed?

Short Answer

The ALJ may order partial reimbursement of filing fees if the petition is granted in part.

Detailed Answer

In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.

Alj Quote

IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.

Legal Basis

ALJ Order

Topic Tags

  • remedies
  • filing fees
  • penalties

Question

Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?

Short Answer

Likely not, if chickens are also defined as 'fowl' which are otherwise banned.

Detailed Answer

The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'

Alj Quote

Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • CC&Rs interpretation
  • exceptions

Case

Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Virginia Guest (petitioner)
    Appeared on her own behalf

Respondent Side

  • Nicholas C. S. Nogami (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Marcus R. Martinez (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Jamie Petty (association manager / witness)
    Platinum Management
    Association manager for Bella Tierra Community Association; also referenced as Jamie Teddy/Miss Teddy
  • Sean Moynihan (HOA attorney)
    Senology
    General counsel for Respondent; referenced in Petitioner's claims; also referred to as John Moahan

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge for the hearing and decision
  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge who issued the September 22, 2023 Order
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders

Kathy J Green v. Cross Creek Ranch Community Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

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

Key Issues & Findings

Alleged violation of open meetings requirements regarding closed executive session.

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222064-REL Decision – 1003060.pdf

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

22F-H2222064-REL Decision – 989940.pdf

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

22F-H2222064-REL Decision – 1003060.pdf

Uploaded 2026-01-23T17:49:38 (149.0 KB)

22F-H2222064-REL Decision – 989940.pdf

Uploaded 2026-01-23T17:49:41 (49.8 KB)

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

Key Facts and Legal Issue

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

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

Key Arguments

Petitioner's Position:

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

Respondent's Position:

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

Final Decision and Outcome

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

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

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

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

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • open meetings
  • design guidelines
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • litigation
  • definitions
  • executive session

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(2)

Topic Tags

  • procedure
  • litigation
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • legal advice
  • attorney
  • executive session

Question

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

Short Answer

They must interpret the laws in favor of open meetings.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1804(F)

Topic Tags

  • statutory interpretation
  • policy
  • open meetings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • hearing procedure
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order

Topic Tags

  • remedies
  • fees
  • penalties

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Findings of Fact

Topic Tags

  • penalties
  • enforcement
  • fines

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Evin Abromowitz v. The Meadows Homeowners Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&Rs, Section 3.5 and 3.6

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2222038-REL Decision – 966844.pdf

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

22F-H2222038-REL Decision – 969590.pdf

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

22F-H2222038-REL Decision – 994145.pdf

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

22F-H2222038-REL Decision – 966844.pdf

Uploaded 2026-01-23T17:45:56 (48.2 KB)

22F-H2222038-REL Decision – 969590.pdf

Uploaded 2026-01-23T17:46:01 (44.1 KB)

22F-H2222038-REL Decision – 994145.pdf

Uploaded 2026-01-23T17:46:05 (145.3 KB)

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

Key Facts and Procedural History

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

Main Legal Issues

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

Key Arguments

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

Outcome and Final Decision

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

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

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

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

Alj Quote

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

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

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

Alj Quote

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

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

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

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

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

Alj Quote

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

Legal Basis

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

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

Alj Quote

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

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2221018-REL Decision – 940674.pdf

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

22F-H2221018-REL Decision – 953784.pdf

Uploaded 2026-04-24T11:40:58 (64.2 KB)

22F-H2221018-REL Decision – 954492.pdf

Uploaded 2026-04-24T11:41:04 (46.5 KB)

22F-H2221018-REL Decision – 958478.pdf

Uploaded 2026-04-24T11:41:09 (48.5 KB)

22F-H2221018-REL Decision – 958503.pdf

Uploaded 2026-04-24T11:41:18 (7.4 KB)

22F-H2221018-REL Decision – 990387.pdf

Uploaded 2026-04-24T11:41:21 (167.8 KB)

22F-H2221018-REL Decision – 940674.pdf

Uploaded 2026-01-23T17:42:06 (56.7 KB)

22F-H2221018-REL Decision – 953784.pdf

Uploaded 2026-01-23T17:42:09 (64.2 KB)

22F-H2221018-REL Decision – 954492.pdf

Uploaded 2026-01-23T17:42:13 (46.5 KB)

22F-H2221018-REL Decision – 958478.pdf

Uploaded 2026-01-23T17:42:16 (48.5 KB)

22F-H2221018-REL Decision – 958503.pdf

Uploaded 2026-01-23T17:42:19 (7.4 KB)

22F-H2221018-REL Decision – 990387.pdf

Uploaded 2026-01-23T17:42:22 (167.8 KB)

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

Key Facts and Issues

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

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

Key Arguments

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

Legal Points Focused On

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

Outcome and Decision

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal definitions
  • standards of evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • legal definitions
  • standards of evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • variances
  • setbacks
  • HOA discretion
  • architectural review

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 1, Item 32

Topic Tags

  • setbacks
  • driveways
  • landscaping
  • architectural guidelines

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Design Guidelines Section 5, Item 12

Topic Tags

  • hardship
  • variances
  • construction

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • penalties
  • costs

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Marc Archer v. PMPE Community Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2121040-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-30
Administrative Law Judge Thomas Shedden
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc Archer Counsel —
Respondent PMPE Community Association, Inc. Counsel Nicholas C. S. Nogami

Alleged Violations

ARIZ. REV. STAT. section 33-1817(B)(3)

Outcome Summary

The Association unreasonably withheld approval for Marc Archer's two-story garage addition, thereby violating ARIZ. REV. STAT. § 33-1817(B)(3). The Association was ordered to grant preliminary approval for the design and refund the $500 filing fee.

Key Issues & Findings

Unreasonable withholding of architectural approval

The Association unreasonably withheld preliminary approval for the Petitioner's January 2020 two-story garage addition request. The ALJ determined that none of the three reasons provided by the Association for the denial were reasonable.

Orders: The Association must grant preliminary approval for the proposed design and must pay the Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2

Analytics Highlights

Topics: HOA architectural approval, unreasonable denial, two-story garage addition, filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. ADMIN. CODE § R2-19-119
  • AR Section 1.1
  • AR Section 4.4
  • AR Section 4.2

Video Overview

Audio Overview

Decision Documents

21F-H2121040-REL Decision – 980535.pdf

Uploaded 2026-04-24T11:34:24 (46.7 KB)

21F-H2121040-REL Decision – 983516.pdf

Uploaded 2026-04-24T11:34:27 (38.4 KB)

21F-H2121040-REL Decision – 928659.pdf

Uploaded 2026-04-24T11:34:30 (39.6 KB)

21F-H2121040-REL Decision – 943581.pdf

Uploaded 2026-04-24T11:34:33 (37.9 KB)

21F-H2121040-REL Decision – 953334.pdf

Uploaded 2026-04-24T11:34:37 (45.2 KB)

21F-H2121040-REL Decision – 958716.pdf

Uploaded 2026-04-24T11:34:40 (124.7 KB)

21F-H2121040-REL Decision – 928659.pdf

Uploaded 2026-01-23T17:37:06 (39.6 KB)

21F-H2121040-REL Decision – 943581.pdf

Uploaded 2026-01-23T17:37:10 (37.9 KB)

21F-H2121040-REL Decision – 953334.pdf

Uploaded 2026-01-23T17:37:13 (45.2 KB)

21F-H2121040-REL Decision – 958716.pdf

Uploaded 2026-01-23T17:37:16 (124.7 KB)

This summary focuses on the administrative hearing concerning the reasonableness of the Respondent's denial of the Petitioner's architectural request.

Key Facts and Procedural History

The Petitioner, Marc Archer, sought approval from the Respondent, PMPE Community Association, Inc., for a two-story garage addition to his home. This was the third hearing alleging that the Association violated ARIZ. REV. STAT. § 33-1817(B)(3), which mandates that the approval of construction plans shall not unreasonably be withheld.

In December 2020, following a previous Administrative Law Judge (ALJ) decision which found the Association violated its rules by not providing a written basis for denial, the Association issued a written response outlining its reasons. A key issue during the hearing was the confusion and vagueness of this response, as two of the three reasons for denial were also listed in a subsequent section that the Association testified was merely advisory.

Main Issues and Arguments

The core issue before ALJ Thomas Shedden was whether the Association’s denial of preliminary approval for Archer’s two-story design was unreasonable. The burden of proof lay with the Petitioner.

The Association’s three reasons for denial (based on the December 30, 2020, letter) were:

  1. Lack of Harmony/Incorporation: The addition was deemed a "large two-story 'box'" that did not harmonize with the existing structure or enhance the community (AR § 1.1). The Association argued the proposed roof did not blend into the existing roof.
  • *Legal Point:* The ALJ noted that evidence showed the proposed roof matched the existing pitch, and other houses had multiple roof lines. Therefore, there was no substantial evidence that the addition would "dominate and/or sharply contrast" with the community.
  1. Painted Roof Tiles: The Association deemed painted roof tiles unacceptable (AR § 4.4).
  • *Legal Point:* The ALJ found that the Association acted outside its scope of authority, as the Architectural Rules (ARs) did not explicitly prohibit painting tiles, though they specified required tile types and approved colors. Archer also presented evidence that he had since located sufficient matching tile.
  1. Insufficient Architectural Expression: A need to add more architectural elements (pop-outs, windows, etc.) to break up expanses (AR § 4.2).
  • *Legal Point:* Archer provided credible evidence that his plans already included stucco pop-outs, inset windows, and soffit details that matched the existing structure, thus satisfying the requirement for architectural expression.

Outcome and Legal Decision

The Administrative Law Judge issued a Decision on March 30, 2022, concluding that the Petitioner prevailed.

The ALJ concluded that the Association’s reasons for denial were arguably unclear due to the mixed advisory/required language but found that Mr. Archer presented sufficient evidence to show that none of the three reasons was reasonable.

The Order required that:

  1. The Association should approve Marc Archer's preliminary design.
  2. The Association must pay Archer his $500 filing fee within thirty days.

{ “case”: { “docket_no”: “21F-H2121040-REL”, “case_title”: “Marc Archer v. PMPE Community Association, Inc.”, “decision_date”: “2022-03-30”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA unreasonably refuse to approve my architectural plans?”, “short_answer”: “No, state law prohibits the unreasonable withholding of approval for construction projects.”, “detailed_answer”: “Arizona law explicitly states that an HOA cannot unreasonably withhold approval for architectural designs, plans, or amendments. If an HOA denies a request, the denial must be based on reasonable grounds supported by the community documents.”, “alj_quote”: “ARIZ. REV. STAT. section 33-1817(B)(3) provides that “Approval of a construction project’s architectural designs, plans and amendments shall not unreasonably be withheld.””, “legal_basis”: “A.R.S. § 33-1817(B)(3)”, “topic_tags”: [ “architectural review”, “homeowner rights”, “statutory compliance” ] }, { “question”: “Is the HOA required to give me a written reason if they deny my project?”, “short_answer”: “Yes, failing to provide a written reason for denial can be considered a violation of the statute.”, “detailed_answer”: “In this dispute, a prior decision established that the HOA violated the law by failing to provide the homeowner with a written explanation for denying preliminary approval. The homeowner must be informed of the specific basis for the decision.”, “alj_quote”: “In a Decision dated December 3, 2020, the ALJ in that matter determined that the Association had violated its CC&Rs and section 33-1817(B)(3) because it did not provide Mr. Archer with a written reason for denying preliminary approval.”, “legal_basis”: “A.R.S. § 33-1817(B)(3)”, “topic_tags”: [ “procedural requirements”, “due process”, “denial notices” ] }, { “question”: “Can the HOA deny my request based on a rule that isn’t written down?”, “short_answer”: “Generally no. If the architectural rules do not explicitly prohibit a specific material or method, the HOA may be acting outside its authority to deny it.”, “detailed_answer”: “The ALJ found that the HOA acted outside its authority by denying a request to paint roof tiles because the architectural rules (ARs) did not explicitly prohibit painting tiles, whereas other sections of the rules explicitly prohibited other specific materials (like vinyl siding).”, “alj_quote”: “Regarding the second basis for denial, the preponderance of the evidence shows that the Association acted outside its scope of authority because the ARs do not include a prohibition on painting tiles.”, “legal_basis”: “Scope of Authority”, “topic_tags”: [ “enforcement authority”, “architectural rules”, “unwritten rules” ] }, { “question”: “Who has to prove the case if I file a petition against my HOA?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner alleging the violation is responsible for providing evidence that supports their claim by a preponderance of the evidence.”, “alj_quote”: “Mr. Archer bears the burden of proof to show that the alleged violation occurred. The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] }, { “question”: “Can the HOA deny my project because they think it doesn’t ‘harmonize’ with the neighborhood?”, “short_answer”: “Only if they can prove it will ‘dominate or sharply contrast’ with the community.”, “detailed_answer”: “While rules often require harmony, this is interpreted to mean the project should not dominate or contrast sharply. If the evidence shows the project shares features (like roof pitch) with other homes, a denial based on lack of harmony may be unreasonable.”, “alj_quote”: “AR section 1.1 shows that improvements are to harmonize with the community, “rather than to dominate and/or contrast sharply with it.” … There was no substantial evidence adduced showing that Mr. Archer’s proposed addition will dominate or sharply contrast with the community.”, “legal_basis”: “Community Documents (AR Section 1.1)”, “topic_tags”: [ “aesthetics”, “harmony”, “architectural standards” ] }, { “question”: “Can I get my filing fee back if I win against the HOA?”, “short_answer”: “Yes, if the homeowner prevails, the HOA can be ordered to reimburse the filing fee.”, “detailed_answer”: “State law allows the prevailing party in an HOA dispute to recover the filing fee. In this case, because the ALJ ordered the HOA to approve the design, the HOA was also ordered to pay the petitioner’s $500 fee.”, “alj_quote”: “The Association also must pay to Mr. Archer his $500 filing fee. ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “penalties”, “reimbursement”, “filing fees” ] }, { “question”: “Does hiring an architect to review my plans help my case?”, “short_answer”: “Yes, professional opinions stating your plans comply with the rules can be strong evidence.”, “detailed_answer”: “The homeowner presented an affidavit from a registered architect who reviewed the plans and rules, concluding the design was compliant. This evidence helped refute the HOA’s claims that the design lacked architectural elements.”, “alj_quote”: “Mr. Bragg concluded that the proposal was in compliance with the ARs. He noted that the proposed second floor matched the existing architecture and that the “lowered roof height is stepped below the existing second floor roof line….””, “legal_basis”: “Evidence Weight”, “topic_tags”: [ “expert testimony”, “evidence”, “architectural review” ] }, { “question”: “What if the HOA’s denial letter is confusing or lists reasons as just ‘advisory’?”, “short_answer”: “The judge will look at the actual reasons for denial, even if the HOA categorizes them poorly.”, “detailed_answer”: “In this case, the HOA listed some reasons for denial under a section labeled ‘advisory.’ The ALJ noted this was confusing but still analyzed whether those reasons were valid grounds for denial. The confusion did not prevent the judge from ruling the denial was unreasonable.”, “alj_quote”: “The Association’s reasons for denial are arguably not clear because it included two of its three reasons in a portion of the denial notice that was advisory only. Nevertheless, Mr. Archer presented sufficient evidence to show that none of the three reasons is reasonable.”, “legal_basis”: “Reasonableness Standard”, “topic_tags”: [ “denial notices”, “administrative review”, “confusion” ] } ] }

{ “case”: { “docket_no”: “21F-H2121040-REL”, “case_title”: “Marc Archer v. PMPE Community Association, Inc.”, “decision_date”: “2022-03-30”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA unreasonably refuse to approve my architectural plans?”, “short_answer”: “No, state law prohibits the unreasonable withholding of approval for construction projects.”, “detailed_answer”: “Arizona law explicitly states that an HOA cannot unreasonably withhold approval for architectural designs, plans, or amendments. If an HOA denies a request, the denial must be based on reasonable grounds supported by the community documents.”, “alj_quote”: “ARIZ. REV. STAT. section 33-1817(B)(3) provides that “Approval of a construction project’s architectural designs, plans and amendments shall not unreasonably be withheld.””, “legal_basis”: “A.R.S. § 33-1817(B)(3)”, “topic_tags”: [ “architectural review”, “homeowner rights”, “statutory compliance” ] }, { “question”: “Is the HOA required to give me a written reason if they deny my project?”, “short_answer”: “Yes, failing to provide a written reason for denial can be considered a violation of the statute.”, “detailed_answer”: “In this dispute, a prior decision established that the HOA violated the law by failing to provide the homeowner with a written explanation for denying preliminary approval. The homeowner must be informed of the specific basis for the decision.”, “alj_quote”: “In a Decision dated December 3, 2020, the ALJ in that matter determined that the Association had violated its CC&Rs and section 33-1817(B)(3) because it did not provide Mr. Archer with a written reason for denying preliminary approval.”, “legal_basis”: “A.R.S. § 33-1817(B)(3)”, “topic_tags”: [ “procedural requirements”, “due process”, “denial notices” ] }, { “question”: “Can the HOA deny my request based on a rule that isn’t written down?”, “short_answer”: “Generally no. If the architectural rules do not explicitly prohibit a specific material or method, the HOA may be acting outside its authority to deny it.”, “detailed_answer”: “The ALJ found that the HOA acted outside its authority by denying a request to paint roof tiles because the architectural rules (ARs) did not explicitly prohibit painting tiles, whereas other sections of the rules explicitly prohibited other specific materials (like vinyl siding).”, “alj_quote”: “Regarding the second basis for denial, the preponderance of the evidence shows that the Association acted outside its scope of authority because the ARs do not include a prohibition on painting tiles.”, “legal_basis”: “Scope of Authority”, “topic_tags”: [ “enforcement authority”, “architectural rules”, “unwritten rules” ] }, { “question”: “Who has to prove the case if I file a petition against my HOA?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner alleging the violation is responsible for providing evidence that supports their claim by a preponderance of the evidence.”, “alj_quote”: “Mr. Archer bears the burden of proof to show that the alleged violation occurred. The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] }, { “question”: “Can the HOA deny my project because they think it doesn’t ‘harmonize’ with the neighborhood?”, “short_answer”: “Only if they can prove it will ‘dominate or sharply contrast’ with the community.”, “detailed_answer”: “While rules often require harmony, this is interpreted to mean the project should not dominate or contrast sharply. If the evidence shows the project shares features (like roof pitch) with other homes, a denial based on lack of harmony may be unreasonable.”, “alj_quote”: “AR section 1.1 shows that improvements are to harmonize with the community, “rather than to dominate and/or contrast sharply with it.” … There was no substantial evidence adduced showing that Mr. Archer’s proposed addition will dominate or sharply contrast with the community.”, “legal_basis”: “Community Documents (AR Section 1.1)”, “topic_tags”: [ “aesthetics”, “harmony”, “architectural standards” ] }, { “question”: “Can I get my filing fee back if I win against the HOA?”, “short_answer”: “Yes, if the homeowner prevails, the HOA can be ordered to reimburse the filing fee.”, “detailed_answer”: “State law allows the prevailing party in an HOA dispute to recover the filing fee. In this case, because the ALJ ordered the HOA to approve the design, the HOA was also ordered to pay the petitioner’s $500 fee.”, “alj_quote”: “The Association also must pay to Mr. Archer his $500 filing fee. ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “penalties”, “reimbursement”, “filing fees” ] }, { “question”: “Does hiring an architect to review my plans help my case?”, “short_answer”: “Yes, professional opinions stating your plans comply with the rules can be strong evidence.”, “detailed_answer”: “The homeowner presented an affidavit from a registered architect who reviewed the plans and rules, concluding the design was compliant. This evidence helped refute the HOA’s claims that the design lacked architectural elements.”, “alj_quote”: “Mr. Bragg concluded that the proposal was in compliance with the ARs. He noted that the proposed second floor matched the existing architecture and that the “lowered roof height is stepped below the existing second floor roof line….””, “legal_basis”: “Evidence Weight”, “topic_tags”: [ “expert testimony”, “evidence”, “architectural review” ] }, { “question”: “What if the HOA’s denial letter is confusing or lists reasons as just ‘advisory’?”, “short_answer”: “The judge will look at the actual reasons for denial, even if the HOA categorizes them poorly.”, “detailed_answer”: “In this case, the HOA listed some reasons for denial under a section labeled ‘advisory.’ The ALJ noted this was confusing but still analyzed whether those reasons were valid grounds for denial. The confusion did not prevent the judge from ruling the denial was unreasonable.”, “alj_quote”: “The Association’s reasons for denial are arguably not clear because it included two of its three reasons in a portion of the denial notice that was advisory only. Nevertheless, Mr. Archer presented sufficient evidence to show that none of the three reasons is reasonable.”, “legal_basis”: “Reasonableness Standard”, “topic_tags”: [ “denial notices”, “administrative review”, “confusion” ] } ] }

Case Participants

Petitioner Side

  • Marc Archer (petitioner)
  • Greg Hancock (witness)
    Witness for Petitioner, works in building industry
  • Dr. Victor Zach (witness)
    Witness for Petitioner, lives across the street from Petitioner
  • Dan Earlie (witness)
    Witness for Petitioner, experienced in homebuilding and HOA boards
  • Thomas Bragg (architect/witness)
    Registered architect hired by Petitioner

Respondent Side

  • Nicholas C. S. Nogami (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
  • Keith Kauffman (board member/witness)
    PMPE Community Association, Inc.
    President and long-time board member of the Association
  • Gail Zigler (property manager/witness)
    Community manager for the Association
  • Mr. Sasser (committee member/neighbor)
    Mentioned as an opponent to the addition
  • Carlotta L. Turman (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • Tammy L. Ikenberg (ALJ/Hearing Officer)
    Office of Administrative Hearings
    ALJ in prior related proceedings (19F-H1919063-REL, 20F-H2020063-REL)
  • Claire Miller (Preserve Park Supervisor)
    City Parks and Recreation

Other Participants

  • AHansen (unknown)
    Arizona Department of Real Estate
  • vnunez (unknown)
    Arizona Department of Real Estate
  • djones (unknown)
    Arizona Department of Real Estate
  • DGardner (unknown)
    Arizona Department of Real Estate
  • tandert (unknown)
    Arizona Department of Real Estate
  • Miranda Alvarez (unknown)
    Clerical staff noted on transmission records (also Miranda A)
  • c. serrano (unknown)
    Clerical staff noted on transmission records
  • Dr. Smith (unknown)
    House used for a meeting location

Judy Clapp v. Forest Trails Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221026-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-29
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Judy Clapp Counsel Kevin Harper
Respondent Forest Trails Homeowners Association Counsel Edward D. O'Brien; Edith I. Rudder

Alleged Violations

Declaration § 2.2; Declaration § 2.21; Architectural Guidelines

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area.

Why this result: The Petitioner failed to meet the evidentiary burden that the HOA violated the Declaration or related statutes. The ALJ found that the Declaration permits landscaping in the common area (Section 2.2) and the petitioner presented no legal authority mandating the disputed area remain solely available for parking.

Key Issues & Findings

Alleged violation concerning landscaping in common area preventing parking.

Petitioner Judy Clapp alleged the HOA improperly approved the adjacent homeowner's (Normans) landscaping project in the common area next to Lot 1473 Trailhead. She claimed this blocked a historical parking area used by multiple homeowners, violating Declaration Section 2.2 (common area use for benefit of all members, including parking as a permitted use) and Architectural Guidelines (prohibiting exclusive use of common area).

Orders: The petition was dismissed. The ALJ found that the Petitioner failed to meet the burden of proof to establish that the Respondent violated the Declaration or any statute.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Declaration § 2.2
  • Declaration § 2.21
  • Architectural Guidelines
  • A.R.S. § 32-2199(B)
  • Declaration § 3.4
  • Declaration § 4.1

Analytics Highlights

Topics: Common Area, Landscaping, Parking, Architectural Control Committee, Exclusive Use, HOA Governance
Additional Citations:

  • Declaration § 2.2
  • Declaration § 2.21
  • Architectural Guidelines
  • A.R.S. § 32-2199(B)
  • Declaration § 3.4
  • Declaration § 4.1

Video Overview

Audio Overview

Decision Documents

22F-H2221026-REL Decision – 958497.pdf

Uploaded 2026-04-24T11:42:22 (122.6 KB)

22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Hearing.pdf

Uploaded 2026-04-24T11:42:26 (92.4 KB)

22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Petition.pdf

Uploaded 2026-04-24T11:42:32 (125.2 KB)

22F-H2221026-REL Decision – HO22-21026_Hearing_Scheduled.pdf

Uploaded 2026-04-24T11:42:38 (194.1 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_AppearanceRespondent.pdf

Uploaded 2026-04-24T11:42:43 (218.4 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_Hearing.pdf

Uploaded 2026-04-24T11:42:47 (1111.9 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_Petition.pdf

Uploaded 2026-04-24T11:42:54 (1303.7 KB)

22F-H2221026-REL Decision – HO22-21026_Payment.pdf

Uploaded 2026-04-24T11:43:00 (223.9 KB)

22F-H2221026-REL Decision – HO22-21026_Petition.pdf

Uploaded 2026-04-24T11:43:09 (1183.8 KB)

22F-H2221026-REL Decision – HO22-21026_Response_Petition_Form.pdf

Uploaded 2026-04-24T11:43:21 (72.2 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Hearing.pdf

Uploaded 2026-01-27T21:20:57 (92.4 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Petition.pdf

Uploaded 2026-01-27T21:20:59 (125.2 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Hearing_Scheduled.pdf

Uploaded 2026-01-27T21:21:01 (194.1 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Notice_AppearanceRespondent.pdf

Uploaded 2026-01-27T21:21:03 (218.4 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Hearing.pdf

Uploaded 2026-01-27T21:21:06 (1111.9 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Petition.pdf

Uploaded 2026-01-27T21:21:08 (1303.7 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Payment.pdf

Uploaded 2026-01-27T21:21:10 (223.9 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Petition.pdf

Uploaded 2026-01-27T21:21:12 (1183.8 KB)

22F-H2221026-REL Decision – 944374/HO22-21026_Response_Petition_Form.pdf

Uploaded 2026-01-27T21:21:15 (72.2 KB)

22F-H2221026-REL Decision – 958497.pdf

Uploaded 2026-01-27T21:21:16 (122.6 KB)

22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Hearing.pdf

Uploaded 2026-01-27T21:21:18 (92.4 KB)

22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Petition.pdf

Uploaded 2026-01-27T21:21:19 (125.2 KB)

22F-H2221026-REL Decision – HO22-21026_Hearing_Scheduled.pdf

Uploaded 2026-01-27T21:21:20 (194.1 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_AppearanceRespondent.pdf

Uploaded 2026-01-27T21:21:22 (218.4 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_Hearing.pdf

Uploaded 2026-01-27T21:21:23 (1111.9 KB)

22F-H2221026-REL Decision – HO22-21026_Notice_Petition.pdf

Uploaded 2026-01-27T21:21:25 (1303.7 KB)

22F-H2221026-REL Decision – HO22-21026_Payment.pdf

Uploaded 2026-01-27T21:21:26 (223.9 KB)

22F-H2221026-REL Decision – HO22-21026_Petition.pdf

Uploaded 2026-01-27T21:21:28 (1183.8 KB)

22F-H2221026-REL Decision – HO22-21026_Response_Petition_Form.pdf

Uploaded 2026-01-27T21:21:30 (72.2 KB)

Case Briefing: Judy Clapp v. Forest Trails Homeowners Association

Executive Summary

This document synthesizes the proceedings of the administrative hearing held on March 9, 2022, regarding Docket Number 22F-H2221026-l. The dispute involves a challenge by petitioner Judy Clapp against the Forest Trails Homeowners Association (HOA) concerning the landscaping of an eight-foot unpaved common area adjacent to 1473 Trail Head (the “Norman lot”).

The central conflict involves the Board’s decision to allow a homeowner to install a rock berm on association-owned land that had historically functioned as a parking lane for residents accessing a nearby trail head. The petitioner alleges this action violates the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by granting exclusive use of common area to one homeowner and eliminating a long-standing community benefit. The association contends that the Board acted within its authority to approve architectural requests, maintained consistency with community-wide landscaping standards, and addressed legitimate nuisance and erosion concerns.

——————————————————————————–

Case Overview and Hearing Details

• Date of Hearing: March 9, 2022

• Administrative Law Judge: Alvin Moses Thompson

• Petitioner: Judy Clapp (Represented by Kevin Harper)

• Respondent: Forest Trails Homeowners Association (Represented by Ed O’Brien)

• Key Witnesses: Judy Clapp (Petitioner); Dean Meyers (Board Member/Witness for Respondent)

• Subject Property: Common area adjacent to 1473 Trail Head, Prescott, Arizona.

——————————————————————————–

Primary Legal and Regulatory Framework

The dispute centers on the interpretation of specific governing documents produced as evidence:

Amended Declaration of Covenants, Conditions, and Restrictions (CC&Rs)

• Section 2.2 (Common Areas and Open Space): States that common areas “shall be for the use and benefit of all members” and should be left in their natural state unless used for specific purposes, including “trails, walkways, driveways, parking areas, appropriate signs, recreational amenities, [and] landscaping.”

• Section 3.4: Grants the association the authority to “own, repair, manage, operate, and maintain” common areas according to the plat.

• Section 3.4.9: Designates the Architectural Control Committee (ACC) as the “judge of all aesthetic matters” on the common area.

• Section 4.1: Provides the Board with flexibility in its decision-making regarding association property.

Architectural Guidelines

• Landscaping Provisions: Permitted on the unpaved association-owned area (approx. 8 feet) between the lot line and the street only with ACC approval.

• Exclusive Use Restriction: Mandates that any such approval “will not give the property owner exclusive use of this association property.”

——————————————————————————–

Main Themes and Arguments

1. Historical Use vs. New Architectural Approval

The petitioner argues that the area in question served as a de facto parking lane for approximately 15–20 years, accommodating up to three vehicles.

• Petitioner Position: The removal of this parking area harms residents who now must walk an additional mile or more to access trail heads. Clapp asserts the association consistently denied similar requests in the past to protect common area access.

• Respondent Position: The HOA argues that parking was never a “guaranteed right” or a “written amenity” in the declaration. They contend the Board could not “say no” to the Normans’ request because hundreds of other homeowners have similar roadside landscaping.

2. Allegations of “Exclusive Use”

A major point of contention is whether the rock berm constitutes a violation of the rule against “exclusive use.”

• Petitioner’s Argument: The installation of large boulders and a rock berm makes it impossible for vehicles to park and “unsafe” or “risky” for pedestrians to walk over, effectively gifting the land to the adjacent homeowner.

• Respondent’s Argument: The area is not fenced or walled. Members of the public or homeowners can still theoretically walk on it, meaning use is not exclusive. Dean Meyers testified that the area is “less accessible” but still accessible at the ends.

3. Nuisance Mitigation and Safety

The HOA justifies the landscaping as a solution to long-standing issues.

• Respondent’s Evidence: Dean Meyers testified that the parking area created nuisances including noise (dogs, yelling), trash, and public intrusion 40 feet from the Normans’ kitchen. Furthermore, Meyers cited an erosion issue where water was undermining the cement curb, a problem he claims the landscaping resolved.

• Petitioner’s Rebuttal: Clapp, a former board member of 10 years, testified she never heard of safety, noise, or trash complaints regarding this site until February 2021, four months after the rocks were installed. She suggested the “safety” argument was an after-the-fact justification.

4. Conflict of Interest and Procedure

The petitioner raised concerns regarding the motivations behind the approval.

• Self-Serving Motivation: Witness Dean Meyers is a permanent board member and also the owner of the landscaping company hired by the Normans to perform the work.

• Lack of Formal Vote: Clapp testified that the work appeared to be allowed without a formal board vote, though respondent minutes from October 27, 2020, show the board requested gravel samples for the project.

——————————————————————————–

Critical Evidence and Testimony

Photographic Evidence (Exhibit 6)

The hearing reviewed nine photographs showing the evolution of the site:

• Before: A dirt “parking lane” capable of holding cars.

• After: A “rock berm” consisting of large boulders and smaller rocks that completely prohibit vehicle access.

Comparison to Other Amenities

Clapp pointed to the community tennis courts as evidence of unfair treatment.

• Tennis Court Parking: The HOA recently expanded and paved parking for tennis players (Exhibits 17, 18).

• Trail Head Parking: Conversely, the HOA eliminated parking for hikers at the trail head, which Clapp described as the community’s only other amenity.

Legal Opinion of Jim Atkinson

An email exchange (Exhibit 7) involving former Board President and attorney Jim Atkinson was introduced. Atkinson’s noted opinion stated:

• The 8-foot area is common area property, “no different than its ownership of the paved areas.”

• Parking is a permitted use under Section 2.2.

• The Board “never agreed to allow a lot owner to block access to the shoulder area.”

——————————————————————————–

Conclusions and Sought Relief

The Petitioner seeks an order confirming that the CC&Rs prohibit these specific landscaping changes and requiring the association to restore the common area to its original condition.

The Respondent maintains that the Board acted within its discretionary authority to manage common areas and treat all members fairly by approving a standard landscaping request. They argue the Petitioner is seeking a “prescriptive easement” to park in a specific spot, a right they claim does not exist under the governing documents or Arizona law.

Summary Table of Arguments

Petitioner’s View

Respondent’s View

Land Use

Reserved for the benefit of all members (parking/trails).

Subject to Board management and aesthetic discretion.

Accessibility

Rock berm creates “exclusive use” by blocking access.

No fence exists; property remains technically accessible.

Safety/Nuisance

No evidence of prior complaints; “punitive” decision.

Resolved erosion, trash, and noise nuisances.

Consistency

Association has historically denied such requests.

Hundreds of other lots have identical landscaping.

Board Ethics

Decision was self-serving (witness was the contractor).

Business was private between the contractor and homeowner.

Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)

This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.

1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?

2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?

3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?

4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?

5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?

6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?

7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?

8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?

9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?

10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?

——————————————————————————–

Part II: Answer Key

1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.

2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.

3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.

4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.

5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.

6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.

7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.

8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.

9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”

10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?

2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.

3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?

4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?

5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Architectural Control Committee (ACC)

The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.

Common Area

Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.

Declaration (CC&Rs)

The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.

Developer Position

A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).

Easement

A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.

Exclusive Use

The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.

GIS (Geographic Information System)

Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.

Natural State

The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.

Petitioner

The party initiating the legal grievance or “petition” (Judy Clapp).

Plat / Plat Map

An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.

Respondent

The party responding to the legal grievance (Forest Trails Homeowners Association).

Rock Berm

A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.

Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)

This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.

1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?

2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?

3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?

4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?

5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?

6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?

7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?

8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?

9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?

10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?

——————————————————————————–

Part II: Answer Key

1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.

2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.

3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.

4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.

5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.

6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.

7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.

8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.

9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”

10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.

——————————————————————————–

Part III: Essay Questions

Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?

2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.

3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?

4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?

5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Architectural Control Committee (ACC)

The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.

Common Area

Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.

Declaration (CC&Rs)

The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.

Developer Position

A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).

Easement

A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.

Exclusive Use

The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.

GIS (Geographic Information System)

Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.

Natural State

The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.

Petitioner

The party initiating the legal grievance or “petition” (Judy Clapp).

Plat / Plat Map

An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.

Respondent

The party responding to the legal grievance (Forest Trails Homeowners Association).

Rock Berm

A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.

Case Participants

Petitioner Side

  • Judy Clapp (Petitioner)
    Homeowner
    Also referred to as Judith Ellen Black
  • Kevin Harper (Petitioner Attorney)
    Harper Law PLC
  • Rick Ohanesian (Petitioner)
    Homeowner
    Listed in Respondent's Amended Notice of Appearance
  • Lucy McMillan (Former Board Member)
    Forest Trails HOA
    Listed as witness but not present

Respondent Side

  • Edward D. O'Brien (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Edith I. Rudder (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Dean Meyers (Board Member)
    Forest Trails HOA Board
    Developer position on board; Professional landscaper hired by the Normans; Witness
  • James Norman (Homeowner)
    Forest Trails HOA
    Owner of lot 30; requested landscaping
  • Cynthia Norman (Homeowner)
    Forest Trails HOA
    Owner of lot 30
  • Jim Atkinson (HOA Attorney)
    Former Board President; identified as Association attorney in testimony
  • Nancy Char (Board President)
    Forest Trails HOA
    Current president mentioned in testimony
  • Marissa (Property Manager)
    Community Asset Management LLC
    Mentioned in meeting minutes regarding sample handling

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Transcribed as 'Alvin Moses Thompson' in audio transcript
  • Dan Gardner (HOA Coordinator)
    ADRE
  • Louis Dettorre (Commissioner)
    ADRE

Other Participants

  • Lenor Hemphill (Former Board Member)
    Forest Trails HOA
    Sent email regarding landscaping issue

John J Balaco v. Sun City Oro Valley Community Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2221011-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-21
Administrative Law Judge Jenna Clark
Outcome The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John J Balaco Counsel —
Respondent Sun City Oro Valley Community Association, Inc. Counsel Nicholas Nogami, Esq. & Sami Farhat, Esq.

Alleged Violations

5th Amended Master Declaration Article 6.7

Outcome Summary

The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.

Why this result: Petitioner failed to meet the burden of proof; the argument was not ripe and predicated on actions that have yet to occur.

Key Issues & Findings

Change in Use of Common Area

Petitioner alleged that the Association violated Article 6.7 by modifying renovation plans for the Activity Center's coffee bar to include the sale of alcoholic beverages (cafe wine bar) without the requisite 60% membership vote, arguing this converted common area into a restricted commercial bar.

Orders: Petitioners' petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • 5th Amended Master Declaration Article 6.7

Analytics Highlights

Topics: HOA, Master Declaration, Change of Use, Common Area, Liquor License, Renovation, Ripeness, Cafe Wine Bar
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

22F-H2221011-REL Decision – 935334.pdf

Uploaded 2026-04-24T11:39:39 (49.3 KB)

22F-H2221011-REL Decision – 956246.pdf

Uploaded 2026-04-24T11:39:42 (138.2 KB)

22F-H2221011-REL Decision – 935334.pdf

Uploaded 2026-01-23T17:40:43 (49.3 KB)

22F-H2221011-REL Decision – 956246.pdf

Uploaded 2026-01-23T17:40:48 (138.2 KB)

The legal case involved Petitioner John J Balaco challenging the Sun City Oro Valley Community Association, Inc. (Respondent). The hearing took place over two sessions, on December 29, 2021, and a further hearing on March 1, 2022, presided over by Administrative Law Judge Jenna Clark.

Key Facts and Main Issues

The central legal issue was whether the Association violated Article 6.7 of the 5th Amended Master Declaration for substantially changing the use of a portion of the Common Area without approval of at least 60% of Members voting on the matter.

The specific action challenged was the modification of plans to renovate the 34-year-old Activity Center's coffee bar (approximately 1,400 square feet) to include the sale of alcoholic beverages, creating a café wine bar component.

Hearing Proceedings and Key Arguments

  1. Association's (Respondent's) Position:
  • The Association argued that offering wine sales was a minor component of the overall renovation of the approximately 22,000 square foot Activity Center and did not constitute a substantial change in use.
  • Association witnesses (including General Manager Mark Wade and Controller/Liquor License Agent Randy Trenary) testified that information regarding the renovation, including the wine bar component, was presented to members via multiple forums, presentations, and weekly newsletters.
  • Crucially, the membership voted on the renovation project, including the wine bar, on March 23, 2021. The vote passed with 1,121 votes (65%) in favor (only 859 votes were required to pass), thereby satisfying and exceeding the 60% requirement stipulated in Article 6.7.
  1. Petitioner's Position:
  • Petitioner Balaco argued that adding an Arizona liquor license to any portion of the common area significantly changes the character and nature of its use.
  • He contended that the license imposes restrictions, such as prohibiting the consumption of personal alcohol (BYOB) in the designated area and restricting access for minors unless accompanied by an adult 21 or older, thus restricting use residents had previously enjoyed.
  • Petitioner also argued that the board made a mistake, asserting that the area was covered by an existing license when, in fact, the Department of Liquor License and Control later confirmed no part of the activity center was currently covered. Petitioner requested an order requiring a specific resident vote prior to the board applying for any liquor license extension.

Final Decision and Legal Points

The Administrative Law Judge (ALJ) concluded that the Petitioner did not sustain his burden of proving a violation of Article 6.7 by a preponderance of the evidence.

The ALJ emphasized the following legal points:

  • The Petitioner’s argument was not ripe.
  • As of the hearing date, no construction or structural modification of the coffee bar had taken place, and the Association had not submitted a new application to the DLLC to extend its liquor service area.
  • The ALJ found that the crux of the Petitioner’s grievance was "theoretical and predicated on action(s) that have yet to occur".
  • Therefore, the ALJ could not reasonably conclude that the Association had "substantially changed the use of a portion of a common area".

Outcome: The Petitioner’s petition was denied. The matter was taken under advisement on March 1, 2022, and the decision was issued on March 21, 2022.

Questions

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence is required to win a case against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.

Alj Quote

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

Legal Basis

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5

Topic Tags

  • evidence
  • legal standards

Question

Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?

Short Answer

Generally, no. The dispute must be 'ripe' and not theoretical.

Detailed Answer

Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.

Alj Quote

The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.

Legal Basis

Ripeness Doctrine

Topic Tags

  • ripeness
  • future violations
  • construction

Question

Can the Administrative Law Judge order an injunction to stop the HOA from doing something?

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.

Alj Quote

Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.

Legal Basis

Administrative Hearing Limits

Topic Tags

  • injunctions
  • remedies
  • legal relief

Question

Does a renovation of a common area facility automatically count as a 'substantial change in use'?

Short Answer

Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.

Detailed Answer

Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.

Alj Quote

Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

  • common areas
  • renovations
  • change of use

Question

Is the decision made by the Administrative Law Judge final and binding?

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

  • appeals
  • binding order
  • procedure

Case

Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that the HOA violated the community documents?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence is required to win a case against an HOA?

Short Answer

A preponderance of the evidence.

Detailed Answer

The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.

Alj Quote

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

Legal Basis

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5

Topic Tags

  • evidence
  • legal standards

Question

Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?

Short Answer

Generally, no. The dispute must be 'ripe' and not theoretical.

Detailed Answer

Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.

Alj Quote

The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.

Legal Basis

Ripeness Doctrine

Topic Tags

  • ripeness
  • future violations
  • construction

Question

Can the Administrative Law Judge order an injunction to stop the HOA from doing something?

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.

Alj Quote

Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.

Legal Basis

Administrative Hearing Limits

Topic Tags

  • injunctions
  • remedies
  • legal relief

Question

Does a renovation of a common area facility automatically count as a 'substantial change in use'?

Short Answer

Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.

Detailed Answer

Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.

Alj Quote

Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

  • common areas
  • renovations
  • change of use

Question

Is the decision made by the Administrative Law Judge final and binding?

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

  • appeals
  • binding order
  • procedure

Case

Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John J Balaco (petitioner)
  • Diane Paton (witness)
  • James Gearhart (helper / observer)
    Assisted Petitioner with documents; observed hearing

Respondent Side

  • Nicholas Nogami (attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Counsel for Respondent
  • Sami Farhat (attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Counsel for Respondent
  • Mark Wade (general manager / witness)
  • Randall Jean Trenary (controller / witness)
    Liquor license agent
  • James Henry Mitchell (witness)
    Also referred to as Jim Mitchell or Randall James Mitchell

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Contact for appeal procedure
  • c. serrano (OAH staff)
    OAH
    Transmitter of Minute Entry
  • Miranda Alvarez (OAH staff)
    OAH
    Transmitter of ALJ Decision

Other Participants

  • Marla Balaco (observer)
  • Janet Ambrosio (observer)
  • Sheila Helmuth (observer)
  • Sherokee Ilse (observer)
  • Edward Zwerling (observer)
  • Robin Coulter (observer)
  • Rocky Gedrose (observer)
  • Thelma LaFleur (observer)
  • Tim Kelley (observer)
  • Vicki McFadden (observer)
  • Allan Mashburn (observer)
  • Cathy Winje (observer)
  • Chris Ludwig (observer)
  • Dan Edward (observer)
  • Dibri Ruiz (observer)
  • Donna Harting (observer)
  • Eric Meyers (observer)
  • Anthony Denaro (observer)
  • Melanie Stenson (observer)
  • Bertha Medina (observer)
  • Carol Johnson (observer)
  • Rita Petterson (observer)
  • David Sullivan (observer)
  • Gary Lurch (observer)
  • Janet Keller (observer)
  • Joanne Keck (observer)
  • Kaaren Brent (observer)
  • Karen Roche (observer)
  • Ken Sandrick (observer)
  • Kristi Halverson (observer)
  • Lindsay Welbers (observer)
  • Marie Scarpulla (observer)
  • Maxine Yunker (observer)
  • Pamela Sarpalius (observer)
  • Phyliss Austin (observer)
  • Robert Watson (observer)
  • Sandra Fischer (observer)
  • Sharon Kennedy (observer)
  • Vicki McFadin (observer)
  • William Whitney (observer)

Dean A Yelenik v. Meridian Condominiums Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221021-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-02-18
Administrative Law Judge Jenna Clark
Outcome The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dean A Yelenik Counsel —
Respondent Meridian Condominiums Homeowners Association Counsel Nick Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1243(B) and Community Bylaws 3.1 and 3.6

Outcome Summary

The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6. The Tribunal found the Board’s action, though potentially questionable, was not unlawful.

Key Issues & Findings

Whether the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6 by appointing an existing board member to fill a vacancy, effectively extending her term.

The Board appointed existing Board member Joan Robley to fill the unexpired term of Board Member Gallu (expiring Jan 2023) immediately after she resigned her own seat (expiring Jan 2021), which Petitioner alleged violated governing documents by extending her term and not genuinely filling a vacancy.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: Board Vacancy, Term Extension, Bylaw Interpretation, Resignation and Reappointment, ARS 33-1243(B)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-04-24T11:41:34 (130.2 KB)

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-01-23T17:42:33 (130.2 KB)

This matter was an administrative hearing held on February 1, 2022, before Administrative Law Judge (ALJ) Jenna Clark, regarding a dispute between Petitioner Arthur Dean Yelenik and Respondent Meridian Condominiums Homeowners Association (the Association). Petitioner alleged the Association violated Arizona Revised Statute (ARS) § 33-1243(B) and Community Bylaws Sections 3.1 and 3.6.

Key Facts

The dispute centered on the Board of Directors' actions following the resignation of Board Member Chris Gallu in September 2020, whose term had approximately two years and three months remaining. At an October 2020 Board meeting, the Board filled this vacancy by appointing existing Board Member Joan Robley. To facilitate this, Ms. Robley resigned from her existing seat (which had only three months remaining before the January 2021 election) and was immediately appointed to Mr. Gallu’s unexpired term, effectively extending her service by two years and avoiding scheduled re-election by the homeowners. The Board operated with four members for approximately three months until the subsequent annual meeting.

Main Issues and Legal Arguments

The crux of the inquiry was whether a Board Member may resign and be immediately appointed to fill a Board vacancy on the same day, thereby elongating their term of service.

Petitioner's Argument:

The Petitioner argued that the Board's action was an illegitimate "board term swap," not a valid process for filling a vacancy.

  1. Bylaw 3.1 Violation: Bylaw 3.1 requires the Board to be an odd number (historically five members). Petitioner argued that since Ms. Robley was already a member, her reappointment did not increase the total number of board members, thus failing to “fill a vacancy in the board” and rendering Bylaw 3.1 meaningless.
  2. ARS § 33-1243(B) Violation: This statute prohibits the Board from electing members or "determin[ing] the terms of office of the board of director members". Petitioner argued the Board violated this by determining Ms. Robley's term of office (changing it from 3 months to over 2 years).

Respondent's Argument:

The Association argued it acted within its lawful authority, prioritizing the Association's best interest by retaining Ms. Robley's 15 years of continuous experience, particularly since three members were "freshmen".

  1. Bylaw 3.6 Authority: Bylaw 3.6 grants the board the authority to fill vacancies. Neither the Bylaws nor the statute explicitly prohibit appointing a former or existing board member to fill a vacancy. The sole requisite for service is unit ownership, which Ms. Robley met.
  2. Quorum Maintained: The Board maintained a quorum (three members out of five positions) at all relevant times.
  3. Statute Compliance: The Board did not violate ARS § 33-1243(B) because the terms of office (three-year staggered terms) were set by the membership in 2005, not by the Board as a matter of general policy. The statute allows the board to "fill vacancies in its membership for the unexpired portion of any term".

Outcome and Final Decision

The ALJ found that the Petitioner did not sustain his burden of proof by a preponderance of the evidence. The Tribunal concluded that the Board acted within its lawful authority. The decision stated that neither Bylaw Section 3.6 nor ARS § 33-1243(B) implicitly or explicitly prohibit the occurrence. The ALJ also rejected the argument that there is a presumption of "new blood" required for appointments. Petitioner's petition was therefore denied.

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

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 convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

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 convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Arthur Dean Yelenik (petitioner)
    Also goes by Dean Yelenik
  • Kristen Terry Beloo (homeowner/past board president)
    Part of petitioner's working group; Past president (6 years)
  • Kathleen Moles (homeowner/past board president)
    Part of petitioner's working group; Past president (3 years)
  • David Moles (homeowner)
    Part of petitioner's working group

Respondent Side

  • Eadie Rudder (respondent attorney)
  • Nick Eicher (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Margo McInnis (board president/witness)
    Meridian Condominiums Homeowners Association
    Testified for Respondent
  • Joan Robley (board member)
    Meridian Condominiums Homeowners Association
    Appointment subject of dispute
  • Annette (property manager)
    Century Management
    Referred to as Community Manager
  • Quinton Phillips (HOA attorney)
    Attorney for the Association

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardner (HOA Coordinator)
    Arizona Department of Real Estate

Other Participants

  • Chris Gallu (former board member)
    Meridian Condominiums Homeowners Association
    Resignation created the contested vacancy; referred to as Mr. Beloo/Blue in transcript
  • Fran McGovern (board member)
    Meridian Condominiums Homeowners Association
    Elected to Robley's former seat in Jan 2021