The Petition was dismissed because the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent Association violated the cited CC&R provisions by refusing to manage the disputed area, which the ALJ determined was a limited common element.
Why this result: The Petitioner lost because the area in dispute was determined to be a 'limited common element' (a balcony serving Unit 207) under Arizona statute (A.R.S. § 33-1212(A)), not a 'common area' the Association was required to manage under the referenced CC&Rs.
Key Issues & Findings
Refusal to manage, operate, maintain and administer common area
Petitioner alleged the HOA violated multiple CC&Rs by refusing to maintain an area between Unit 206 and Unit 207, which he claimed was a common area. The HOA argued the area was a limited common element. The ALJ concluded, relying on A.R.S. § 33-1212(A), that the disputed area was a limited common element (a balcony) allocated exclusively to Unit 207, thus Petitioner failed to establish a CC&R violation.
Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1212(A)
CC&Rs Article 1, Section 1.5
CC&Rs Article 1, Section 1.6
CC&Rs Article 3, Section 3.4
CC&Rs Article 4, Section 4.1
CC&Rs Article 8, Section 8.1
CC&Rs Article 12, Section 12.4
Analytics Highlights
Topics: condominium, common elements, limited common elements, balcony dispute, CC&R violation, A.R.S. 33-1212
The Administrative Law Judge issued an Order Vacating Hearing after the Petitioner voluntarily withdrew his request for rehearing.
Key Issues & Findings
Request for Rehearing Withdrawal
Petitioner requested a rehearing based on actions taken by the Respondent after the initial decision. When informed that a rehearing could only address matters occurring prior to the initial petition filing, Petitioner chose to withdraw the request for rehearing and stated intent to file a new petition challenging Respondent’s denial of his submission to build an addition to his house.
Orders: The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.
The Administrative Law Judge issued an Order Vacating Hearing after the Petitioner voluntarily withdrew his request for rehearing.
Key Issues & Findings
Request for Rehearing Withdrawal
Petitioner requested a rehearing based on actions taken by the Respondent after the initial decision. When informed that a rehearing could only address matters occurring prior to the initial petition filing, Petitioner chose to withdraw the request for rehearing and stated intent to file a new petition challenging Respondent’s denial of his submission to build an addition to his house.
Orders: The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.
Administrative Hearing Briefing: Archer v. PMPE Community Association, Inc.
Executive Summary
This briefing document outlines the key details and resolution of case number 20F-H2020063-REL-RHG, involving Petitioner Marc Archer and Respondent PMPE Community Association, Inc. On March 16, 2021, Administrative Law Judge Tammy L. Eigenheer issued an order vacating a scheduled rehearing. The core issue was procedural: the Petitioner’s request for rehearing was based on actions the Respondent took after the initial hearing’s decision, which falls outside the permissible scope of a rehearing. Upon being informed of this limitation, the Petitioner withdrew his request. He indicated his intent to file a new, separate petition to address the Respondent’s denial of his submission to build a house addition. The judge’s order is binding, with any appeal required to be filed in superior court within 35 days.
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Case Overview
I. Case Identification
Detail
Information
Case Name
Marc Archer, Petitioner, vs PMPE Community Association, Inc., Respondent
The scheduled hearing was a rehearing requested by the Petitioner, Marc Archer. The basis for his request centered on events that transpired after the conclusion of the initial hearing.
• Petitioner’s Grounds for Rehearing: The request was explicitly based on “actions taken by Respondent after the decision in the initial hearing had been issued.”
• Jurisdictional Limitation: The Petitioner was informed at the hearing that the scope of a rehearing is limited to matters that occurred before the original petition was filed. The document states: “When Petitioner was informed that the only issues that could be addressed in a rehearing on his petition were those matters that occurred prior to his petition being filed…”
• Subject of New Dispute: The specific post-decision action Archer sought to challenge was the “Respondent’s denial of his submission to build an addition to his house.”
B. Resolution and Outcome
Faced with the procedural limitations of a rehearing, the Petitioner altered his legal strategy, leading to the cancellation of the proceeding.
• Withdrawal of Request: The Petitioner “concluded that he wished to withdraw his request for a rehearing at that time.”
• Stated Intention: Archer “indicated that he would file a new petition to challenge Respondent’s denial of his submission to build an addition to his house.”
• Final Order: The judge issued a formal order vacating the hearing.
Legal Standing and Appeal Process
The order issued on March 16, 2021, carries legal weight and outlines specific requirements for any subsequent appeal.
• Binding Nature of the Order: The order is binding on the parties involved, as stipulated by Arizona Revised Statutes (A.R.S.) § 32-2199.02(B).
• Appeal Requirements: A party wishing to appeal the order must seek judicial review.
◦ Venue: The appeal must be filed with the superior court.
◦ Deadline: The filing must occur within thirty-five (35) days from the date the order was served upon the parties.
• Governing Statutes: The appeal process is prescribed by the following state statutes:
◦ A.R.S. § 41-1092.08(H)
◦ A.R.S. § 12-904(A)
◦ Title 12, Chapter 7, Article 6 of the Arizona Revised Statutes
Document Distribution
Copies of the “Order Vacating Hearing” were officially distributed via mail, email, or fax on March 16, 2021, to the following parties:
◦ Nicholas Nogami, Esq. (Carpenter Hazlewood Delgado & Bolen, LLP)
Study Guide – 20F-H2020063-REL
Study Guide: Case No. 20F-H2020063-REL-RHG
Short-Answer Quiz
Answer the following questions in two to three sentences each, based on the provided legal document.
1. Identify the primary parties involved in case No. 20F-H2020063-REL-RHG and state their respective roles.
2. What was the specific legal action taken by the Office of Administrative Hearings on March 16, 2021, and who was the presiding judge?
3. What was the original reason Marc Archer requested a rehearing?
4. Why was the Petitioner informed that his reason for a rehearing was invalid for the current proceedings?
5. What was the Petitioner’s final decision regarding his request for a rehearing, and what was the outcome for the scheduled hearing?
6. What future action did Marc Archer state he intended to take after withdrawing his request?
7. According to the document’s notice, what is the legal standing of the “Order Vacating Hearing” on the parties involved?
8. Describe the process and timeline an involved party must follow to appeal this order.
9. Who legally represented the Respondent, PMPE Community Association, Inc., in this matter?
10. To what primary state agency and specific official was a copy of this order distributed?
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Answer Key
1. The primary parties were Marc Archer, who served as the Petitioner, and the PMPE Community Association, Inc., which was the Respondent. The Petitioner is the party who filed the petition, and the Respondent is the party against whom the petition was filed.
2. On March 16, 2021, an “Order Vacating Hearing” was issued, removing the matter from the calendar of the Office of Administrative Hearings. The presiding judge who signed the order was Administrative Law Judge Tammy L. Eigenheer.
3. Marc Archer’s basis for requesting a rehearing was to address actions that the Respondent, PMPE Community Association, Inc., had taken after the decision in the initial hearing had already been issued.
4. The Petitioner was informed that his basis was invalid because a rehearing can only address matters that occurred prior to the filing of his original petition. The new actions he wished to contest would require a new, separate petition.
5. After being informed about the limitations of a rehearing, the Petitioner concluded that he wished to withdraw his request. As a result, the judge ordered that the hearing be vacated from the Office of Administrative Hearings’ calendar.
6. After withdrawing his request, Marc Archer indicated that he would file a new petition. This new petition would specifically challenge the Respondent’s denial of his submission to build an addition to his house.
7. The order is legally binding on the parties, as stated in the notice section referencing Arizona Revised Statute (A.R.S.) § 32-2199.02(B). This means both the Petitioner and the Respondent must legally comply with the order.
8. To appeal the order, a party must seek judicial review in the superior court. This appeal must be filed within thirty-five days from the date the order was served upon the parties, as prescribed by A.R.S. § 41-1092.08(H), title 12, chapter 7, article 6, and A.R.S. § 12-904(A).
9. The Respondent was represented by Nicholas Nogami, Esq. of the law firm Carpenter Hazlewood Delgado & Bolen, LLP.
10. A copy of the order was mailed or e-mailed to Judy Lowe, the Commissioner of the Arizona Department of Real Estate. Copies were also sent to several other email addresses associated with that department.
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Essay Questions
Develop a detailed essay answer for each of the following prompts, using only information found within the source document to support your analysis.
1. Analyze the procedural error made by the Petitioner that led to the hearing being vacated. Explain the critical distinction between the scope of a “rehearing” and a “new petition” as implied by the events in the order.
2. Based on the provided document, reconstruct the timeline of events. Begin with the implied initial hearing, describe the basis for the requested rehearing, detail the procedural clarification provided to the Petitioner, and outline the subsequent actions taken by both the Petitioner and the Administrative Law Judge.
3. Discuss the legal framework governing appeals for this type of administrative order. Cite the specific Arizona Revised Statutes (A.R.S.) mentioned in the document and explain the jurisdiction, requirements, and timeline for seeking judicial review.
4. Evaluate the communication process documented in the order. Identify all named recipients of the order, their titles or affiliations, and hypothesize why each party or entity would need to be formally notified of this decision.
5. Examine the role and authority of the Administrative Law Judge and the Office of Administrative Hearings in this specific dispute. How does the order demonstrate the limits of their jurisdiction and the procedural rules they enforce?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and has the authority to issue legally binding orders.
Appeal
The process by which a party requests that a higher court (in this case, the superior court) review the decision of a lower body (the Office of Administrative Hearings).
A.R.S. (Arizona Revised Statutes)
The collection of laws enacted by the Arizona state legislature. The document references A.R.S. § 32-2199.02(B), § 41-1092.08(H), and § 12-904(A) to establish the legal basis for the order’s finality and the appeal process.
Judicial Review
A type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body, such as the Office of Administrative Hearings.
Office of Administrative Hearings (OAH)
A state agency that conducts hearings for other state agencies, providing a neutral forum for disputes. In this case, it presided over the matter between Marc Archer and the PMPE Community Association, Inc.
Order Vacating Hearing
A formal directive from a judge that cancels a previously scheduled hearing and removes it from the court’s or agency’s calendar.
Petition
A formal written request submitted to a court or administrative body, initiating a legal case or making a specific application.
Petitioner
The party who files a petition with a court or administrative body. In this case, Marc Archer.
Rehearing
A second hearing of a case to consider issues that were part of the original petition. As clarified in the order, it cannot be used to address new matters that arose after the initial decision.
Respondent
The party against whom a petition is filed and who is required to respond to it. In this case, PMPE Community Association, Inc.
Superior Court
A state-level trial court of general jurisdiction. The document specifies that any appeal of the administrative order must be filed with the superior court.
Blog Post – 20F-H2020063-REL
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20F-H2020063-REL
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The provided sources are two copies of an Order Vacating Hearing issued by the Office of Administrative Hearings in the matter of Marc Archer vs PMPE Community Association, Inc. The order, signed by Administrative Law Judge Tammy L. Eigenheer on March 16, 2021, indicates that Petitioner Marc Archer requested a rehearing based on actions taken by the Respondent after the initial decision was issued. Because the rehearing was limited to matters that occurred before the original petition was filed, Mr. Archer chose to withdraw his request for a rehearing and announced his intention to file a new petition to challenge the community association’s denial of his proposal to build a house addition. Consequently, the hearing was vacated from the administrative calendar, and the order includes a notice regarding the process for judicial review if a party wished to appeal.
Why did Marc Archer withdraw his request for a rehearing on case 20F-H2020063-REL?
What were the specific procedural limitations governing the scope of the administrative rehearing?
How does this order relate to the Petitioner’s future challenge regarding his house addition?
Audio Overview
Video Overview Video Overview
Mind Map Mind Map
Reports Reports
Flashcards Flashcards
Quiz Quiz
00:00 / 00:00
Case Participants
Petitioner Side
Marc Archer(petitioner) Appeared on his own behalf; Homeowner and member of PMPE
Respondent Side
Nicholas Nogami(HOA attorney) Carpenter, Hazelwood, Delgado & Bolen Represented Respondent PMPE Community Association, Inc.
Keith Kauffman(board member) PMPE Community Association, Inc. President, Treasurer, and AC member; testified at hearing
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Presided over the main hearing and issued the order vacating rehearing
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Ruled in a prior related evidentiary hearing
Judy Lowe(Commissioner) Arizona Department of Real Estate Addressee for transmission of orders
DGardner(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
f. del sol(Staff) Signed transmittal of ALJ decision
c. serrano(Staff) Signed transmittal of Order Vacating Hearing
LDettorre(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
AHansen(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
djones(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
ncano(ADRE Staff) Arizona Department of Real Estate Recipient of order via email
Other Participants
Carlotta L Turman(unknown) Carpenter, Hazelwood, Delgado & Bolen Listed in transmission details associated with PMPE counsel
The petition was affirmed in part (Complaint #1) and denied in part (Complaint #2). The Respondent HOA was found to have improperly conducted non-privileged business via email/unanimous written consent in violation of A.R.S. § 33-1804. The HOA was ordered to reimburse the $500 filing fee and comply with the statute, but no civil penalty was imposed.
Why this result: Petitioner failed to establish by a preponderance of the evidence the alleged violation concerning the improper use of emergency executive sessions (Complaint #2).
Key Issues & Findings
Non-privileged Association Business Conducted in Closed Session
The HOA improperly conducted association business, which should have been open to members, through unanimous written consent solicited via individual emails during the COVID-19 shutdown, violating the open meeting requirements of A.R.S. § 33-1804.
Orders: Respondent was ordered to comply with the requirements of A.R.S. § 33-1804 going forward and to reimburse Petitioner her $500.00 filing fee for the issue on which she prevailed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. 33-1804
A.R.S. 10-3821
Analytics Highlights
Topics: Open Meetings, HOA Governance, Unanimous Written Consent, COVID-19, Executive Session
Additional Citations:
A.R.S. 33-1804
A.R.S. 10-3821
A.R.S. 32-2199 et seq.
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
21F-H2120001-REL Decision – 838004.pdf
Uploaded 2026-01-23T17:34:04 (125.4 KB)
Briefing Doc – 21F-H2120001-REL
Administrative Law Decision Briefing: Morin vs. Solera Chandler Homeowners’ Association
Executive Summary
This briefing synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin, and the Solera Chandler Homeowners’ Association, Inc. (HOA). The central issue was whether the HOA Board of Directors violated Arizona’s open meeting law (A.R.S. § 33-1804) by conducting association business and making decisions without open meetings accessible to its members.
The Administrative Law Judge (ALJ) ultimately ruled in favor of the petitioner on her primary complaint. The investigation and subsequent hearings revealed that the HOA Board, citing the challenges of the COVID-19 pandemic, utilized a process of “unanimous written consent” to approve numerous actions. This process, facilitated through individual emails to board members, was found to be an improper substitute for the open meetings required by law. The ALJ concluded that the specific transparency requirements for homeowners’ associations in A.R.S. § 33-1804 supersede the more general provisions for non-profit corporations in A.R.S. § 10-3821, which the HOA had cited as justification.
While the violation was established, no civil penalty was assessed due to the “unprecedented global pandemic.” The HOA was ordered to comply with the open meeting law moving forward and to reimburse the petitioner’s $500 filing fee. A second complaint from the petitioner, alleging the improper use of emergency executive sessions, was not proven and was therefore denied. A rehearing clarified the precise method of the violation—email voting rather than conference calls—but did not alter the final judgment.
Case Background and Allegations
This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed on July 10, 2020. The case centered on the actions of the Solera Chandler HOA’s Board of Directors between March and August 2020.
• Petitioner: Debra K. Morin
• Respondent: Solera Chandler Homeowners’ Association, Inc.
• Case Number: 21F-H2120001-REL
• Key Dates:
◦ Initial Hearing: October 29, 2020
◦ Initial Decision: November 18, 2020
◦ Rehearing: February 25, 2021
◦ Final Decision After Rehearing: March 17, 2021
Petitioner’s Formal Complaints
After being ordered to clarify her initial filing, the petitioner proceeded with two specific alleged violations of A.R.S. § 33-1804:
1. Complaint #1: Non-Privileged Business in Closed Sessions: The petitioner alleged that the HOA Board conducted non-privileged association business in closed sessions by using unanimous written consent. This practice circumvented statutory requirements for providing members with agendas, giving 48-hour notice, and allowing them an opportunity to speak on key issues before the Board took action.
2. Complaint #2: Improper Emergency Executive Sessions: The petitioner alleged that the HOA Board conducted privileged business under the guise of “emergency executive sessions.” This was done without properly identifying the legal exception to the open meeting law, providing an agenda or 48-hour notice, or submitting minutes at the next board meeting that stated the reason for the emergency.
Key Evidence and Factual Findings
The evidence presented centered on the HOA’s governance practices during the initial months of the COVID-19 pandemic.
Respondent’s Justification
The HOA’s defense rested on two main arguments:
• The COVID-19 pandemic made it impossible for the Board to meet in person, necessitating alternative methods to conduct business while protecting the health of directors and members.
• The use of unanimous written consents was authorized under A.R.S. § 10-3821, a statute that permits non-profit corporations to take action without a formal meeting if all directors consent in writing. The HOA acknowledged it had not used this method before the pandemic and did not intend to continue its use.
Unanimous Written Consents
At an open Board of Directors meeting on August 5, 2020, the Board formally ratified a series of actions taken via unanimous written consent during the “Covid 19 Shutdown.” A rehearing clarified the precise mechanism: a community management company would email each board member individually to solicit a “yes” or “no” vote on a proposal. If all votes were “yes,” the Board President would sign the written consent on behalf of the Board.
The actions taken through this process included:
Action Taken by Unanimous Written Consent
March 30, 2020
Approve repair and replacement of the sidewalk and community center entrance.
March 30, 2020
Approve repair and replacement of cool decking surrounding both pools.
April 30, 2020
Approve Kirk Sandquist as a member of the Architectural Review Committee.
April 30, 2020
Approve Tom Dusbabek as a member of the Architectural Review Committee.
May 5, 2020
Approve the Gilbert Road retention basin project, related irrigation replacement, and the addition of 420 tons of granite.
May 8, 2020
Approve replacement of a Carrier 6-ton heat pump.
May 8, 2020
Approve replacement of two Carrier 5-ton heat pumps.
May 27, 2020
Approve hiring Ken Eller to draft architectural drawings.
June 4, 2020
Approve a change to the Design Guidelines at the request of the Architectural Review Committee.
July 1, 2020
Approve the 2020 summer hardwood pruning and removal of trees.
Executive Sessions
The Board held numerous executive (closed) sessions during this period, including on March 13, March 16, March 19, March 24, April 6, April 10, May 4, May 15, May 27, June 24, and August 5, 2020. An “emergency executive session” was held on May 12, 2020. The agendas for these meetings cited specific legal exceptions under A.R.S. § 33-1804(A) as justification for the closure.
Legal Analysis and Rulings
The Administrative Law Judge’s decision hinged on the interpretation and primacy of two competing Arizona statutes.
The Core Statutory Conflict
• A.R.S. § 33-1804 (HOA Open Meeting Law): This statute establishes a strong state policy that all HOA board and member meetings “be conducted openly.” It mandates that members receive at least 48-hours’ notice, be provided with agendas, and be permitted to “attend and speak at an appropriate time.” The statute explicitly directs that any interpretation of its provisions must be construed “in favor of open meetings.”
• A.R.S. § 10-3821 (Action Without Meeting for Non-Profits): This statute, which applies more broadly to non-profit corporations, allows a board of directors to take action without a meeting if the action is approved by one or more written consents signed by all directors.
Ruling on Complaint #1 (Violation Established)
The ALJ concluded that the petitioner had proven by a preponderance of the evidence that the HOA violated the open meeting law. The core of the ruling is that the specific requirements of A.R.S. § 33-1804 for homeowners’ associations must be followed, even if A.R.S. § 10-3821 provides a different mechanism for general non-profits.
The final decision states: “Respondent improperly conducted association business in closed sessions via email rather than in meetings open to the members.” The use of email voting to achieve unanimous consent was deemed a violation because it denied members the notice, agenda, and opportunity to speak that are guaranteed by the HOA open meeting law.
However, the ALJ gave “consideration to the fact that Respondent was faced with an unprecedented global pandemic” and found that “no civil penalty is appropriate given the circumstances.”
Ruling on Complaint #2 (Violation Not Established)
The ALJ found that the petitioner failed to prove by a preponderance of the evidence that the Board conducted improper emergency executive sessions. The decision notes that there was “nothing in the record” to suggest the Board discussed topics outside the legally permitted exceptions for closed sessions, nor was there evidence to suggest the May 12, 2020, meeting was not a genuine emergency.
Final Order and Disposition
The final judgment, issued after the rehearing, is binding on both parties.
• Outcome: The petitioner’s petition was affirmed in part (regarding Complaint #1) and denied in part (regarding Complaint #2).
• Directives to Respondent (HOA):
1. The HOA is ordered to reimburse the petitioner’s $500.00 filing fee.
2. The HOA is directed to comply with the requirements of A.R.S. § 33-1804 going forward.
• Appeal: Any appeal of the final order must be filed for judicial review with the superior court within 35 days from the date of service.
Study Guide – 21F-H2120001-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a detailed review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in Administrative Law Judge Decisions No. 21F-H2120001-REL and No. 21F-H2120001-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, legal arguments, and outcomes.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based only on the information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What was the central accusation in the Petitioner’s first complaint against the Respondent?
3. What two primary justifications did the Respondent provide for its actions during the COVID-19 pandemic?
4. According to the findings of the rehearing, what specific procedure did the Respondent use to obtain “unanimous written consents”?
5. Identify the two main Arizona Revised Statutes (A.R.S.) that were central to the legal dispute and briefly describe the function of each.
6. What was the final ruling on Complaint #1, and what was the judge’s reasoning?
7. Why did the Petitioner fail to prove the allegations in Complaint #2?
8. What specific factual error in the first Administrative Law Judge Decision prompted the Respondent to request a rehearing?
9. What two orders were issued against the Respondent in the final decision?
10. What specific circumstance did the Administrative Law Judge cite as a reason for not imposing a civil penalty on the Respondent?
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Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and homeowner, and the Solera Chandler Homeowners’ Association, Inc., the Respondent. The Petitioner filed a petition with the Arizona Department of Real Estate alleging the Respondent violated state law, while the Respondent defended its actions before an Administrative Law Judge.
2. The Petitioner’s first complaint accused the Solera Homeowners’ Association Board of Directors of conducting non-privileged association business in closed sessions. Specifically, she alleged they used unanimous written consent to take action without providing agendas, giving 48-hour notice, or allowing members an opportunity to speak on key issues.
3. The Respondent argued that the COVID-19 pandemic prevented the Board of Directors from meeting in person to protect the health of members and directors. The Respondent also asserted that its use of unanimous written consents was legally authorized for non-profit corporations under A.R.S. § 10-3821.
4. The rehearing established that an individual from the community management company would email each Board member individually to request a “yes” or “no” vote on a proposal. If all members replied “yes,” the item was considered passed by unanimous consent, and the Board President would sign the formal consent document.
5. The central statutes were A.R.S. § 33-1804 and A.R.S. § 10-3821. A.R.S. § 33-1804 is the state’s open meeting law for homeowners’ associations, requiring meetings to be open to members with proper notice, while A.R.S. § 10-3821 allows the board of a non-profit corporation to take action without a meeting if all directors provide written consent.
6. The judge ruled in favor of the Petitioner on Complaint #1, affirming the violation. The judge reasoned that while A.R.S. § 10-3821 allows for action without a meeting, the more specific requirements of A.R.S. § 33-1804 mandate that all HOA board meetings be open to members, a requirement the Respondent violated by conducting business via email.
7. The Petitioner failed to prove Complaint #2 because she did not establish by a preponderance of the evidence that the Respondent’s executive sessions were improper. The judge found nothing in the record to suggest the Board discussed issues outside the legal exceptions listed in A.R.S. § 33-1804(A) or that the May 12, 2020, session was not a genuine emergency.
8. The Respondent requested a rehearing to correct a finding in Conclusion of Law 8 of the initial decision, which incorrectly stated that the association business at issue was conducted in closed sessions via “conference calls.” The Respondent acknowledged using conference calls for executive sessions but denied using them for the actions taken by unanimous written consent.
9. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee for the issue on which she prevailed. Additionally, the Respondent was directed to comply with all requirements of A.R.S. § 33-1804 in the future.
10. The Administrative Law Judge gave consideration to the fact that the Respondent was “faced with an unprecedented global pandemic while balancing the need to comply with the applicable statutes and conduct association business.” Because of these unique circumstances, the judge found that no civil penalty was appropriate.
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Suggested Essay Questions
1. Discuss the conflict between A.R.S. § 33-1804 and A.R.S. § 10-3821 as it relates to the actions of the Solera Chandler Homeowners’ Association. How did the Administrative Law Judge resolve this conflict, and what does this imply about the hierarchy of state laws governing specific entities versus general corporations?
2. Analyze the Respondent’s argument that the COVID-19 pandemic justified their actions. To what extent did the Administrative Law Judge accept this argument, and how did it influence the final order?
3. Explain the legal standard of “preponderance of the evidence” and detail how it was applied to both Complaint #1 and Complaint #2. Why did the Petitioner meet this burden for the first complaint but not the second?
4. Trace the evolution of the case from the initial hearing to the rehearing. What specific finding of fact was corrected, and why was this correction significant for the legal record, even though it did not change the ultimate outcome for either complaint?
5. Based on the text of A.R.S. § 33-1804(F), discuss the stated policy of the state of Arizona regarding homeowner association meetings. How did the Respondent’s actions, specifically the use of email for unanimous consents, contravene this policy?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Tammy L. Eigenheer served as the ALJ.
A.R.S. § 10-3821
An Arizona Revised Statute that allows the board of directors of a non-profit corporation to take action without a formal meeting, provided the action is taken by all directors and evidenced by one or more written consents.
A.R.S. § 33-1804
An Arizona Revised Statute, also known as the open meeting law for planned communities, which mandates that all meetings of an HOA board of directors must be open to all members. It requires 48-hour notice and allows for closed “executive sessions” only for specific, limited purposes.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving her claims.
Executive Session
A portion of a meeting that is closed to association members. Under A.R.S. § 33-1804(A), executive sessions are only permitted for specific reasons, such as receiving legal advice, discussing pending litigation, or addressing confidential personal or financial information.
Open Meeting
A meeting of an HOA’s board of directors that, according to A.R.S. § 33-1804, must be open to all members of the association, who must be permitted to attend and speak.
Petitioner
The party who initiates a legal action or petition. In this case, the Petitioner was homeowner Debra K. Morin.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is of greater weight or more convincing than opposing evidence, showing that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing of a case to re-examine specific issues or correct errors from an initial decision. A rehearing was granted in this case to clarify how the unanimous written consents were executed.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Solera Chandler Homeowners’ Association, Inc.
Statutory Construction
The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain the legislature’s intent, first by looking at the statute’s plain language.
Unanimous Written Consent
A procedure, authorized by A.R.S. § 10-3821, where a board takes action without a meeting through written consents signed by all directors. The HOA used this method via individual emails to approve business, which was found to be a violation of HOA open meeting laws.
Blog Post – 21F-H2120001-REL
She Sued Her HOA Over Secret Pandemic Votes—And Won. Here’s What Every Homeowner Needs to Know.
Introduction: The Closed Doors of Your HOA
For many homeowners, it can feel like their Homeowners’ Association (HOA) board makes its most important decisions behind closed doors. You see the results—a new rule, a major repair project, a change in vendors—but the discussion and the vote happen out of sight. While the COVID-19 pandemic forced many organizations to find new ways to operate, for one Arizona HOA, their adaptation to remote work crossed a legal line, sparking a legal challenge from a resident.
The central conflict was straightforward: a homeowner, Debra K. Morin, filed a petition against the Solera Chandler Homeowners’ Association. She alleged they were making official decisions in secret through email, violating state law that guarantees homeowners the right to open meetings. While not all of her claims were affirmed, her primary complaint—that the board was conducting business in secret—led to a landmark decision for homeowner rights. The outcome of her case reveals several surprising and crucial lessons for every person living in an HOA community.
Takeaway 1: An HOA’s Open Meeting Law Trumps General Non-Profit Rules
1. Even a Pandemic Doesn’t Suspend a Homeowner’s Right to an Open Meeting
The Solera Chandler HOA board believed it was acting within the law. They argued that because they were a non-profit corporation, they could make decisions using “unanimous written consents” without a formal meeting. This practice is allowed for many non-profits under a general Arizona statute (A.R.S. § 10-3821). During the pandemic, this seemed like a practical way to conduct business without meeting in person.
However, the Administrative Law Judge ruled against the HOA. The judge’s key finding was that a more specific law takes precedence. The statute governing planned communities, A.R.S. § 33-1804, explicitly requires that all meetings of the board must be open to all members of the association. This is a critical legal lesson: when a specific law exists to govern a specific entity (like the Open Meeting Law for HOAs), it almost always overrides a more general law (like the one for all non-profits).
While the judge acknowledged the challenges of the “unprecedented global pandemic,” this did not excuse the violation, though it was cited as a reason not to issue a civil penalty.
Takeaway 2: “Meeting” by Email Is Still a Secret Meeting
2. A String of Individual Emails Can Constitute an Illegal Meeting
In the initial ruling, the judge found the board conducted business improperly, believing it was done via conference calls. Seizing on this factual error, the HOA challenged the decision and requested a rehearing, arguing their method was different and therefore permissible. In the rehearing, they clarified their actual process: the community management company would email each board member individually to request a ‘yes’ or ‘no’ vote. The HOA argued that because there was no simultaneous group discussion, this process wasn’t technically a “meeting.”
The challenge backfired. The judge’s final decision made it clear that this distinction didn’t matter. Whether by conference call or a series of individual emails, the result was the same: an illegal secret meeting. The method effectively prevented homeowners from observing the board’s process and speaking on agenda items before a vote was taken, as required by law. The HOA won their technical correction but lost the war, as the judge affirmed that the principle of transparency is more important than the specific technology used to circumvent it.
These weren’t minor housekeeping issues. The board was making substantial financial and operational decisions entirely out of public view, including:
• Repair and replacement of the sidewalk and community center entrance.
• Repair and replacement of the cool decking around both pools.
• Appointing new members to the Architectural Review Committee.
• Approving a retention basin project and the purchase of 420 tons of granite.
• Approving the 2020 summer hardwood pruning and removal of trees.
Takeaway 3: The Law Is Built to Favor Transparency
3. The Law Itself Has a Built-in Bias for Openness
The judge’s decision wasn’t just a narrow interpretation; it was guided by a powerful policy statement built directly into the Arizona statute for planned communities. The law itself tells judges, board members, and community managers exactly how it should be interpreted.
The text of A.R.S. § 33-1804(F) leaves no room for doubt:
It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions…shall construe any provision of this section in favor of open meetings.
This is a critical point. The law explicitly directs anyone interpreting it—including an HOA board—to resolve any ambiguity in favor of transparency and homeowner access. The default position is openness.
Takeaway 4: A Single Homeowner Can Force a Change
4. One Determined Homeowner Can Win
This case serves as an empowering lesson for homeowners who feel their board is operating in the shadows. Morin’s persistence paid off, proving that a single homeowner can successfully force a board to follow the law.
Her victory was clear and decisive. The court orders resulted in three key outcomes:
• The judge affirmed her petition, officially recognizing that the HOA had violated the law.
• The HOA was formally ordered to comply with the open meeting requirements of A.R.S. § 33-1804 going forward.
• The HOA was ordered to reimburse Ms. Morin her $500.00 filing fee.
This outcome demonstrates that the system can work. An individual homeowner with a valid complaint can navigate the process and achieve a binding legal victory that forces their HOA board to operate correctly.
Conclusion: Is Your Board Operating in the Open?
The lesson from the Solera Chandler HOA case is simple: transparency in HOA governance is not optional. It is a legal requirement designed to protect the rights of every homeowner to observe and participate in the governance of their community. The convenience of an email vote cannot replace the legal mandate for an open meeting.
Don’t assume your board is operating correctly. Review your meeting minutes. Ask questions about decisions that seem to appear without public discussion. Remember, the law explicitly favors openness, and as Debra Morin proved, it’s an enforceable right.
This case was about secret votes via email, but it highlights a larger principle of transparency. Does your HOA board make it easy for you to know what is being decided and to have your voice heard?
Case Participants
Petitioner Side
Debra K. Morin(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Also cited as Lydia Linsmeier
Joshua M. Bolen(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Gail Ryan(board member) Solera Chandler Homeowners' Association, Inc. President of Board, resigned August 5, 2020
Kirk Sandquist(ARC member) Solera Chandler Homeowners' Association, Inc. Appointment approved April 30, 2020
Tom Dusbabek(ARC member) Solera Chandler Homeowners' Association, Inc. Appointment approved April 30, 2020
Ken Eller(contractor) Approved to be hired to draft architectural drawings
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Granted Request for Rehearing
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:
A.R.S. § 33-1258
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
20F-H2020064-REL Decision – 823263.pdf
Uploaded 2025-10-09T03:35:33 (108.6 KB)
Briefing Doc – 20F-H2020064-REL
Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation
Executive Summary
This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.
The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.
The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.
As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.
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1. Case Overview
• Case Number: 20F-H2020064-REL
• Petitioner: Nancy L. Babington
• Respondent: Park Scottsdale II Townhouse Corporation
• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.
• Hearings Conducted:
◦ Initial Hearing: August 28, 2020
◦ Rehearing: March 4, 2021
• Presiding Administrative Law Judge: Tammy L. Eigenheer
2. Chronology of the Dispute
The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.
• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.
• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.
• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:
• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.
• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:
1. All bank statements with copies of cancelled checks since Sept 1, 2019.
2. Any and all financial statements since Sept 1, 2019.
3. Any and all 1099s issued for 2019.
4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).
5. Any and all contracts signed in 2020.
6. Any and all outstanding invoices with a due date over 45 days.
7. Any documentation regarding the legality of the $204.75 maintenance fee.
8. Any proof of Stephen Silberschlag’s liability insurance.
9. Any landscaping plans.
• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.
• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.
• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.
3. The Initial Hearing and Decision (August – September 2020)
The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.
• The Respondent argued that it was unable to provide documents that were not in its possession.
• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.
• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.
• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.
• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.
• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.
4. The Rehearing and Reversal (March 2021)
Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.
• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.
• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.
• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.
The rehearing revealed crucial details about the location and accessibility of the requested records.
Record Type
Petitioner’s Evidence
Respondent’s Testimony/Explanation
Bank Statements
The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.
Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.
Contracts
Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.
Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.
1099 Forms
Petitioner noted a document indicating four vendors were eligible for 1099s.
Ms. Shanley denied that any 1099s had been issued.
• The documents were not in the “immediate possession” of the local Associa office.
• The matter was now moot because the Petitioner had received all requested documents.
• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.
• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.
• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.
• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”
5. Final Order and Penalties
The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.
IT IS ORDERED that:
1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.
2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.
Study Guide – 20F-H2020064-REL
Study Guide: Babington v. Park Scottsdale II Townhouse Corporation
This study guide provides a review of the administrative case involving Petitioner Nancy L. Babington and Respondent Park Scottsdale II Townhouse Corporation. It includes a short-answer quiz to test factual recall, a separate answer key, a set of essay questions for deeper analysis, and a glossary of key terms and entities involved in the proceedings.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the Petitioner’s central allegation?
2. What specific Arizona statute was the Respondent accused of violating, and what does this law generally require?
3. What was the Respondent’s main defense during the initial hearing on August 28, 2020, for not providing the requested records?
4. What was the conclusion of the Administrative Law Judge in the first decision, issued on September 17, 2020?
5. On what legal grounds did the Petitioner successfully file for a rehearing of her case?
6. What new evidence regarding bank statements was presented by the Petitioner at the March 4, 2021, rehearing?
7. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the bank statements and signed contracts in response to the initial request?
8. What was the final outcome of the rehearing, and how did it contradict the initial decision?
9. What two financial penalties were imposed upon the Respondent in the final order of March 24, 2021?
10. What was the Respondent’s argument against the imposition of a civil penalty, and why did the Administrative Law Judge reject it?
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Answer Key
1. The primary parties were Petitioner Nancy L. Babington, a property owner, and Respondent Park Scottsdale II Townhouse Corporation, a condominium owners association. The Petitioner alleged that the Respondent failed to provide association records she formally requested, in violation of Arizona law.
2. The Respondent was accused of violating A.R.S. § 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by a member and to provide copies of requested records within ten business days.
3. During the initial hearing, the Respondent’s main defense was that it was unable to provide the documents because they were not in its possession. The Respondent claimed its former management company, CMC, was withholding records and that without starting balances, it could not create new financial documents.
4. The Administrative Law Judge denied the Petitioner’s petition in the first decision. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the statute because the Respondent did not possess the documents and was not required to create them.
5. The Petitioner was granted a rehearing based on the discovery of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the first decision, the Respondent provided documents that proved it had, in fact, been in possession of some of the requested records prior to her request.
6. At the rehearing, the Petitioner testified that after receiving the documents, she realized bank statements had been sent to Associa’s central office in Richardson, Texas, starting in August 2019. This demonstrated that the records were in the management company’s possession when she made her request.
7. Associa’s representative testified that bank statements went to a central office in Texas and were not forwarded to the local office because financial packets could not be prepared without starting balances from the previous management company. Regarding the contracts, Associa claimed that the Board of Directors members who signed them had not provided the contracts to Associa.
8. The final outcome of the rehearing was a ruling in favor of the Petitioner. The judge found that evidence presented at the rehearing directly contradicted the Respondent’s earlier claims, establishing that the Respondent did possess bank statements and contracts and had violated A.R.S. § 33-1258(A).
9. In the final order, the Respondent was ordered to pay the Petitioner’s filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.
10. The Respondent argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the box on the petition form. The judge rejected this, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a civil penalty for established violations, and this authority is not limited by the remedies requested by a petitioner.
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Essay Questions
The following questions are designed for analytical and in-depth responses. Answers are not provided.
1. Analyze the concept of “possession” of records as it evolved from the first hearing to the second. How did the Respondent’s initial interpretation of “immediate possession” differ from the Administrative Law Judge’s final conclusion regarding the records held by Associa’s Texas office?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain specifically how the Petitioner failed to meet this standard in the first hearing but succeeded in the second, citing the key pieces of evidence that shifted the outcome.
3. Evaluate the role and responsibilities of the management company, Associa Arizona, in this dispute. To what extent were its internal procedures and actions (or inactions) the primary cause of the Respondent’s violation of A.R.S. § 33-1258?
4. Trace the timeline of communication between Nancy Babington and Associa Arizona from April 29, 2020, to May 15, 2020. Analyze how the responses from Associa may have contributed to the perception that the Respondent was refusing to provide information, ultimately leading to the petition being filed.
5. The Administrative Law Judge has the statutory authority to levy a civil penalty for each violation found. Based on the facts of this case, including the Respondent’s representations at the first hearing and the contradictory evidence presented at the second, construct an argument justifying the imposition of the $2,500 civil penalty.
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Glossary of Key Terms
Term / Entity
Definition
A.R.S. § 32-2199 et seq.
The Arizona Revised Statute cited as giving the Arizona Department of Real Estate jurisdiction to hear disputes between a property owner and a condominium owners association.
A.R.S. § 33-1258
The Arizona Revised Statute at the core of the dispute. It requires that an association’s financial and other records be made “reasonably available” for examination and that the association has ten business days to fulfill a request for examination or to provide copies.
Administrative Law Judge (ALJ)
The official from the Office of Administrative Hearings (Tammy L. Eigenheer in this case) responsible for conducting the hearings, weighing evidence, and issuing a legally binding decision and order.
Associa Arizona
The management company hired by the Respondent to handle its operations after the termination of the previous management agreement. It was the primary point of contact for the Petitioner’s records request.
Civil Penalty
A monetary fine levied by the Administrative Law Judge for a violation of the law. In this case, a $2,500 penalty was ordered to be paid to the Department of Real Estate.
Community Management & Consulting, LLC (CMC)
The Respondent’s former management company. CMC terminated its agreement with the Respondent and was withholding association records due to a financial disagreement, which was a key part of the Respondent’s defense in the initial hearing.
Department of Real Estate (Department)
The Arizona state agency with which the Petitioner filed her petition and which has jurisdiction over such disputes.
A legal argument made by the Respondent’s counsel during the rehearing. Counsel asserted that the matter was moot (no longer relevant or in dispute) because, by the time of the rehearing, the Petitioner had received all the documents she requested.
Newly Discovered Material Evidence
The legal basis upon which the Petitioner was granted a rehearing. It refers to significant evidence that was not available at the time of the original hearing despite reasonable diligence.
Petitioner
The party who initiates a legal action or petition. In this case, Nancy L. Babington, a condominium owner.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win her case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing granted by the Commissioner of the Department of Real Estate to re-examine a case, which was held on March 4, 2021, after the Petitioner presented newly discovered evidence.
Respondent
The party against whom a petition is filed. In this case, Park Scottsdale II Townhouse Corporation, the condominium owners association.
Blog Post – 20F-H2020064-REL
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20F-H2020064-REL-RHG
2 sources
These two sources are Administrative Law Judge Decisions concerning a dispute between Nancy L. Babington, a homeowner, and the Park Scottsdale II Townhouse Corporation, her condominium owners association, regarding the provision of association records under Arizona statute A.R.S. § 33-1258. The first document details the initial hearing, held in August 2020, where the judge ruled in favor of the association, concluding that the association was not in violation because it lacked possession of the requested documents due to issues with its former management company. The second document outlines the rehearing, granted due to newly discovered evidence suggesting the association or its new management company, Associa Arizona, actually possessed some records, such as bank statements and contracts, despite earlier claims. Based on the rehearing’s findings, the judge determined the association violated the statute by not providing the records within the ten-day requirement and ordered the association to reimburse the petitioner’s filing fee and pay a civil penalty.
How did newly discovered evidence lead to reversal of the initial legal decision?
What were the specific consequences for the respondent following the administrative rehearing?
How did the interpretation of statutory record possession requirements change between hearings?
Based on 2 sources
Case Participants
Petitioner Side
Nancy L. Babington(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at initial hearing
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Scott B. Carpenter(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Debbie Schumacher(board member) Park Scottsdale II Townhouse Corporation
Marty Shuford(board member) Park Scottsdale II Townhouse Corporation
Joseph Silberschlag(board member) Park Scottsdale II Townhouse Corporation Secretary; testified
Angelina Rajenovich(board member) Park Scottsdale II Townhouse Corporation
Dermot Brown(board member) Park Scottsdale II Townhouse Corporation
Lori Nusbaum(board member) Park Scottsdale II Townhouse Corporation
Linda Parker(HOA staff) Associa Arizona Director of Client Services for property manager
Evelyn Shanley(HOA staff) Associa Arizona Community Director for property manager; testified at rehearing
Laura Smith(HOA staff) Associa Arizona
Neutral Parties
Tammy L. Eigenheer(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
c. serrano(staff) Signed order transmission
Other Participants
Stephen Silberschlag(unknown) Subject of Petitioner's record request
The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.
Key Issues & Findings
Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver
Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020043-REL Decision – 820839.pdf
Uploaded 2026-01-23T17:31:39 (95.4 KB)
Briefing Doc – 20F-H2020043-REL
Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)
Executive Summary
This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.
The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.
Case Background
• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.
• Respondent: Vincenz Homeowners’ Association (VHA).
• Tribunal: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.
• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.
• Hearing Date: An evidentiary hearing was held on August 19, 2020.
• Decision Date: The final decision was issued on September 8, 2020.
The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.
Central Dispute: CC&R Article 10, Section 10.11.1
The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.
Article 10 § 10.11.1 provides:
Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.
Positions of the Parties
Petitioner’s Position (Wendy Ellsworth)
Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.
• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.
• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”
• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.
Respondent’s Position (Vincenz Homeowners’ Association)
The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.
• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.
• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.
• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.
Administrative Law Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.
Legal Standards Applied
Standard
Description
Burden of Proof
The Petitioner bears the burden to prove a violation by a preponderance of the evidence.
Preponderance of the Evidence
Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”
Covenant Interpretation
In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.
Conclusion 1: Failure to Establish a Violation
The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:
• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.
Conclusion 2: Lack of Jurisdiction
The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.
• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.
Final Order and Implications
Based on the findings, the final order was unambiguous:
“IT IS ORDERED, the petition is dismissed.”
The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020043-REL
Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).
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Review Quiz
Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific rule, or covenant, was at the center of the dispute?
3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?
4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?
5. What change occurred in Ms. Ellsworth’s testimony during the hearing?
6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?
7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?
8. What two key reasons did the Administrative Law Judge give for dismissing the petition?
9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?
10. What action could the parties take after the order was issued, and within what timeframe?
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Answer Key
1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.
2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.
3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.
4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.
5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.
6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.
7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.
8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.
9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).
10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.
1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?
2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.
3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.
4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?
5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.
Affirmative Defense
A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
ARIZ. REV. STAT. (A.R.S.)
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.
Jurisdiction
The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.
Office of Administrative Hearings (OAH)
The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.
Petitioner
The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.
Restrictive Covenant
A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.
Waiver
The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.
Blog Post – 20F-H2020043-REL
Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons
The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).
Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.
Lesson 1: You Must Accuse the Right Party of the Right Violation
Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.
This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:
“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.
Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase
In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”
The court defined this standard as:
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”
The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.
Lesson 3: You Have to Knock on the Right Legal Door
The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.
The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.
The Administrative Law Judge made this point unequivocally:
“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.
Conclusion: Thinking Like a Lawyer, Not Just a Homeowner
Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.
While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?
Case Participants
Petitioner Side
Wendy Ellsworth(petitioner) Testified at hearing
Brian Hatch(petitioner attorney) Brian A. Hatch PLLC
Respondent Side
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.
Key Issues & Findings
Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver
Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020043-REL Decision – 820839.pdf
Uploaded 2025-10-09T03:34:53 (95.4 KB)
Briefing Doc – 20F-H2020043-REL
Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)
Executive Summary
This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.
The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.
Case Background
• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.
• Respondent: Vincenz Homeowners’ Association (VHA).
• Tribunal: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.
• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.
• Hearing Date: An evidentiary hearing was held on August 19, 2020.
• Decision Date: The final decision was issued on September 8, 2020.
The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.
Central Dispute: CC&R Article 10, Section 10.11.1
The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.
Article 10 § 10.11.1 provides:
Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.
Positions of the Parties
Petitioner’s Position (Wendy Ellsworth)
Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.
• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.
• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”
• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.
Respondent’s Position (Vincenz Homeowners’ Association)
The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.
• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.
• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.
• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.
Administrative Law Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.
Legal Standards Applied
Standard
Description
Burden of Proof
The Petitioner bears the burden to prove a violation by a preponderance of the evidence.
Preponderance of the Evidence
Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”
Covenant Interpretation
In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.
Conclusion 1: Failure to Establish a Violation
The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:
• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.
Conclusion 2: Lack of Jurisdiction
The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.
• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.
Final Order and Implications
Based on the findings, the final order was unambiguous:
“IT IS ORDERED, the petition is dismissed.”
The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020043-REL
Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).
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Review Quiz
Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific rule, or covenant, was at the center of the dispute?
3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?
4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?
5. What change occurred in Ms. Ellsworth’s testimony during the hearing?
6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?
7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?
8. What two key reasons did the Administrative Law Judge give for dismissing the petition?
9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?
10. What action could the parties take after the order was issued, and within what timeframe?
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Answer Key
1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.
2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.
3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.
4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.
5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.
6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.
7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.
8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.
9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).
10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.
1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?
2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.
3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.
4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?
5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.
Affirmative Defense
A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
ARIZ. REV. STAT. (A.R.S.)
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.
Jurisdiction
The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.
Office of Administrative Hearings (OAH)
The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.
Petitioner
The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.
Restrictive Covenant
A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.
Waiver
The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.
Blog Post – 20F-H2020043-REL
Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons
The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).
Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.
Lesson 1: You Must Accuse the Right Party of the Right Violation
Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.
This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:
“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.
Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase
In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”
The court defined this standard as:
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”
The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.
Lesson 3: You Have to Knock on the Right Legal Door
The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.
The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.
The Administrative Law Judge made this point unequivocally:
“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.
Conclusion: Thinking Like a Lawyer, Not Just a Homeowner
Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.
While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?
Case Participants
Petitioner Side
Wendy Ellsworth(petitioner) Testified at hearing
Brian Hatch(petitioner attorney) Brian A. Hatch PLLC
Respondent Side
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Video Overview
Audio Overview
Decision Documents
20F-H2020051-REL Decision – 816310.pdf
Uploaded 2025-12-09T10:05:44 (199.6 KB)
20F-H2020051-REL Decision – 847175.pdf
Uploaded 2025-10-09T03:35:07 (246.5 KB)
Briefing Doc – 20F-H2020051-REL
Briefing Document: Morin v. Solera Chandler Homeowners’ Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.
The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.
Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.
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I. Case Background and Procedural History
The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).
A. Initial Petition
On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).
• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.
• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.
B. Procedural Developments
• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.
• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.
• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.
• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.
• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.
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II. Core Arguments of the Parties
The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.
A. Petitioner’s Position (Debra K. Morin)
Ms. Morin’s case was built on the principle of equal application of maintenance standards.
• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).
• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.
• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:
◦ Uncontrolled weeds in granite rock locations
◦ Poor exterior condition of the Community Center
◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing
◦ Water pooling and intrusion issues
◦ Exposed landscaping lights and irrigation lines
◦ Unremoved tree stumps
B. Respondent’s Position (Solera HOA)
Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.
• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.
• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.
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III. Analysis and Key Findings of the Administrative Law Judge
The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.
A. The “Sole Judge” Clause and Board Authority
The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.
• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.
• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”
• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.
B. Rejection of the “Equal Standard” Argument
The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.
• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”
• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.
C. Evaluation of Evidence and Burden of Proof
• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”
• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”
• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.
D. Jurisdictional Limitations
The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.
• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”
• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.
——————————————————————————–
IV. Final Order and Conclusion
Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.
• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.
• Order:
◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.
◦ The order was issued on January 8, 2021.
◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.
Study Guide – 20F-H2020051-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.
1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?
2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?
3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?
4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?
6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?
7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?
8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?
9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?
10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?
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Answer Key
1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.
2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.
3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.
4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.
5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.
6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.
7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.
8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.
9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.
10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.
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Suggested Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.
2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.
3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?
4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.
5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.
Areas of Association Responsibility (AREAS)
The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.
Articles of Incorporation
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.
By-Laws
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.
Petitioner
The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.
Preponderance of the Evidence
The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Premier Management Company (Premier)
The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.
Project Documents
Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.
Respondent
The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.
Tribunal
A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.
Blog Post – 20F-H2020051-REL
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20F-H2020051-REL-RHG
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This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.
Case Participants
Petitioner Side
Debra K. Morin(petitioner) Represented herself
Respondent Side
Lydia A. Perce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Solera Chandler Homeowners' Association
Denise Frazier(general manager/witness) Premier Management Company / Solera Chandler Homeowners' Association Solera's onsite general manager who testified
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge for both original and rehearing decisions
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative) Transmitted the original August 19, 2020 Decision
