Donna M Bischoff v. Country Hills West Condominium Association, Inc.

Posted on March 30, 2020 by [email protected]

Case Summary

Case ID	20F-H2019033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-03-30
Administrative Law Judge	Antara Nath Rivera
Outcome	The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Filing Fees Refunded	$1,500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Donna M Bischoff	Counsel	—
Respondent	Country Hills West Condominium Association, Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1250(C)
A.R.S. § 33-1248(B)
Bylaws Article 3, Section 2

Outcome Summary

The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.

Key Issues & Findings

Voting; proxies; absentee ballots; applicability; definition

Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.

Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.

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

Disposition: petitioner_win

Cited:

A.R.S. § 33-1250(C)

Open meetings; exceptions

Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.

Orders: Petition upheld on this issue.

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

Disposition: petitioner_win

Cited:

A.R.S. § 33-1248(B)

Selection

Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.

Orders: Petition upheld on this issue.

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

Disposition: petitioner_win

Cited:

Article 3, Section 2 of the Bylaws

Analytics Highlights

Topics: HOA Dispute, Condominium Association, Election Procedures, Annual Meeting, Statutory Violation, Bylaw Interpretation

Additional Citations:

A.R.S. § 33-1250(C)
A.R.S. § 33-1248(B)
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Bylaws Article 3, Section 2
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-04-24T11:24:42 (108.5 KB)

Briefing Document: Bischoff v. Country Hills West Condominium Association

Executive Summary

This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.

The core violations upheld by the court are:

1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.

2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.

3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.

As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.

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I. Case Overview

The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.

Case Detail

Information

Case Name

Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent

Case Number

20F-H2019033-REL

Adjudicator

Administrative Law Judge Antara Nath Rivera

Hearing Date

March 10, 2020

Decision Date

March 30, 2020

Petitioner Representative

Donna M. Bischoff (on her own behalf)

Respondent Representative

Doug Meyer, President and Director

II. Petitioner’s Allegations

The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:

• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.

• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.

• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.

The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

III. Core Issues and Factual Findings

The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.

A. Failure to Hold the 2019 Annual Meeting

• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.

• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”

• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”

B. Denial of Access to Election Records

• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.

• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.

• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.

• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.

• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.

C. Improper Prohibition of Write-In Ballots

• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”

• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.

• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.

• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.

IV. Legal Conclusions and Final Order

The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.

Final Order:

Based on the foregoing conclusions, IT IS ORDERED that:

1. The Petition filed by Donna M. Bischoff is upheld on all issues.

2. The Petitioner is deemed the prevailing party in the matter.

3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.

4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.

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

The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.

1. Who were the primary parties in the legal dispute, and what were their roles?

2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?

3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?

4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?

5. What information did the Petitioner request from the October 2018 election, and what was the initial response?

6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?

7. What is the legal standard of proof the Petitioner was required to meet in this hearing?

8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?

9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?

10. What were the key components of the final Order issued by the Administrative Law Judge?

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Answer Key

1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.

2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.

3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.

4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.

5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.

6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.

7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.

9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.

10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.

1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.

2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?

3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.

4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.

5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.

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Glossary of Key Terms

Definition

Administrative Law Judge

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.

Arizona Department of Real Estate (Department)

The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.

Arizona Revised Statutes (A.R.S.)

The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).

Bylaws

The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.

Homeowners Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.

Office of Administrative Hearings

The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Quorum

The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.

Respondent

The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.

Select all sources

778923.pdf

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20F-H2019033-REL

1 source

This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.

What were the specific legal violations found against the Condominium Association regarding meetings and documents?

How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?

What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?

Case Participants

Petitioner Side

Donna M Bischoff (petitioner)
Appeared on her own behalf

Respondent Side

Doug Meyer (president, director, witness)
Country Hills West Condominium Association, Inc.
Appeared and testified on behalf of Respondent

Neutral Parties

Antara Nath Rivera (ALJ)
OAH
Judy Lowe (commissioner)
Arizona Department of Real Estate
Decision transmitted electronically to Commissioner

Kenneth W Zablotny v. Sycamore Hills Estates, Inc.

Posted on March 3, 2020 by [email protected]

Case Summary

Case ID	20F-H2019022-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-03-03
Administrative Law Judge	Antara Nath Rivera
Outcome	The Administrative Law Judge ruled in favor of the Petitioner, finding that the Respondent violated state statute and community bylaws by failing to allow inspection of books and records. The Respondent was ordered to provide the records and refund the filing fee.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Kenneth W Zablotny	Counsel	—
Respondent	Sycamore Hills Estates, Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge ruled in favor of the Petitioner, finding that the Respondent violated state statute and community bylaws by failing to allow inspection of books and records. The Respondent was ordered to provide the records and refund the filing fee.

Key Issues & Findings

Failure to make books and records reasonably available

Petitioner requested access to the Association's books and records multiple times between 2017 and 2019 to review financial information and other member dues status. The Respondent failed to respond or provide access to the records.

Orders: Respondent shall supply Petitioner with the relevant documents within ten (10) days; Respondent shall pay Petitioner his filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1805
Bylaws Article X

Video Overview

Audio Overview

Decision Documents

20F-H2019022-REL Decision – 773049.pdf

Uploaded 2026-04-24T11:24:18 (90.9 KB)

Briefing Document: Kenneth W. Zablotny v. Sycamore Hills Estates, Inc.

Executive Summary

This briefing document analyzes the administrative law judge (ALJ) decision in the matter of Kenneth W. Zablotny v. Sycamore Hills Estates, Inc. (Case No. 20F-H2019022-REL). The case centers on a homeowner’s petition alleging that his Homeowners Association (HOA) violated Arizona Revised Statutes (A.R.S.) and community bylaws by repeatedly denying access to financial books and records.

Following a hearing on February 13, 2020—which the Respondent (Sycamore Hills Estates, Inc.) failed to attend—the ALJ ruled in favor of the Petitioner. The decision establishes a clear violation of statutory requirements regarding transparency and mandates the Respondent to provide the requested records and reimburse the Petitioner’s filing fees.

Analysis of Key Themes

1. Statutory and Bylaw Compliance

The core of the dispute involves the interpretation and application of A.R.S. § 33-1805 and Article X of the Sycamore Hills Estates Bylaws.

Statutory Mandate: Arizona law requires that all financial and other records of an association be made "reasonably available" for examination by members or their designated representatives within ten business days of a request.
Bylaw Requirements: The community’s own bylaws reinforce this, stating that records shall be subject to inspection "at all times, during reasonable business hours."
The Violation: The ALJ found that the Respondent’s total failure to provide access, despite multiple formal requests, constituted a direct violation of both state law and internal governing documents.

2. Transparency and Accountability

The Petitioner’s request for records was prompted by concerns regarding the financial status of board members and other homeowners during foreclosure proceedings.

Conflicting Information: The Association’s manager, Char DuFresne, orally informed the Petitioner that certain homeowners' dues were "up to date." However, the Petitioner later discovered that one homeowner owed $1,600.00 in association fees.
Obfuscation Tactics: Even after legal and administrative pressure, the Respondent provided incomplete or unusable information. This included providing data on only one of four accounts and sending a financial statement that was "not legible."

3. Procedural Negligence by the Respondent

A significant theme in this case is the Respondent’s persistent non-responsiveness to both the Petitioner and the legal process.

Ignored Communications: Between December 2017 and December 2019, the Respondent ignored a letter from the Petitioner’s attorney, website requests, written requests for in-person viewing, and certified mail.
Failure to Appear: Despite receiving a Notice of Hearing from the Arizona Department of Real Estate, the Respondent did not appear, did not request a telephonic appearance, and did not seek a continuance. Consequently, the hearing proceeded in their absence, and the Petitioner’s testimony remained uncontested.

Important Quotes and Context

Quote	Context
"Except as provided in subsection B… all financial and other records of the association shall be made reasonably available for examination by any member."	A.R.S. § 33-1805(A): This defines the baseline legal requirement for HOA transparency in Arizona.
"The association shall have ten business days to fulfill a request for examination."	A.R.S. § 33-1805(A): Establishes the specific timeframe within which an HOA must act once a request is made.
"Respondent’s failure to respond and provide dates and times, within reasonable business hours, was in violation of Section X of the Bylaws."	ALJ Conclusion of Law #6: The judge explicitly links the Association's silence to a breach of its own governing documents.
"Ms. DuFresne responded that she did not have time to meet with Petitioner and that she would send him what she had. Ms. DuFresne never sent the books and records."	Hearing Evidence #12: Illustrates the dismissive nature of the Association's management regarding a member's legal rights.

Detailed Timeline of Requested Access

Date	Action taken by Petitioner	Result
Nov 20, 2017	Inquired about board member dues at a meeting.	Manager claimed finances were current.
Dec 14, 2017	Attorney sent a letter requesting information via A.R.S. § 33-1805.	No response from Respondent.
Mar 24, 2019	Requested expenditure statements via Association website.	No response from Respondent.
May 20, 2019	Submitted written request to view books in person.	No acknowledgment from Respondent.
Jun 10, 2019	Made a second request to view books and records.	No response from Respondent.
Aug 19, 2019	Sent a certified mail request.	No response from Respondent.
Sep 9, 2019	Sent a certified letter to the Board of Directors.	Board informed Petitioner he could not see documents.
Nov 2019	(Post-Petition) Received a financial statement.	Document was not legible.
Dec 3, 2019	Final request to meet in person to view records.	No response from Respondent.

Actionable Insights and Orders

The ALJ decision resulted in specific mandates that provide a framework for resolving the dispute:

Mandatory Document Disclosure: The Respondent is ordered to supply the Petitioner with all relevant documents within ten (10) days of the Order (dated March 3, 2020), specifically citing books and records from 2017 to 2019.
Financial Restitution: The Respondent is required to pay the Petitioner his $500.00 filing fee within thirty (30) days of the Order.
Prevailing Party Status: By being deemed the prevailing party, the Petitioner has a recorded legal victory that may influence future disputes or governance within the community.
Adherence to "Reasonable Availability": The ruling clarifies that "reasonable availability" is not satisfied by sending illegible documents or claiming a lack of time to meet; it requires proactive coordination of viewing times or delivery of clear copies.
Right to Appeal: The order is binding unless a rehearing is requested within 30 days of service. Both parties have the right to request a rehearing with the Commissioner of the Department of Real Estate.

Study Guide: Kenneth W. Zablotny v. Sycamore Hills Estates, Inc.

This study guide provides a comprehensive overview of the administrative hearing between Kenneth W. Zablotny (Petitioner) and Sycamore Hills Estates, Inc. (Respondent). It explores the legal obligations of homeowners associations (HOAs) regarding record transparency, the statutory frameworks governing these disputes, and the specific outcomes of Case No. 20F-H2019022-REL.

Core Themes and Key Concepts

1. Statutory Access to Records (A.R.S. § 33-1805)

Under Arizona law, all financial and other records of a planned community association must be made "reasonably available" for examination by any member or their designated representative.

Response Time: The association has ten business days to fulfill a request for examination or to provide copies.
Fees: An association cannot charge a member for the time spent making materials available for review, but they may charge a fee of up to fifteen cents per page for copies.
Jurisdiction: The Arizona Department of Real Estate has the authority to hear disputes between property owners and planned community associations under A.R.S. § 41-2198.01(B).

2. Legal Exceptions to Disclosure

While transparency is required, A.R.S. § 33-1805(B) identifies specific categories of records that may be withheld from disclosure:

Privileged communications between the association and its attorney.
Information regarding pending litigation.
Minutes of board meetings that are not required to be open to all members.
Personal, health, or financial records of individual members, association employees, or contractor employees.
Records relating to job performance, compensation, or specific complaints against employees.

3. Burden of Proof and Evidence

In administrative proceedings regarding HOA disputes, the Petitioner bears the burden of proving a violation by a preponderance of the evidence. This means the evidence must show that the fact sought to be proved is more probable than not.

4. Bylaw Obligations

Beyond state statutes, associations are governed by their own Bylaws. In this case, Article X of the Sycamore Hills Estates Bylaws stipulated that association books, records, and papers must be subject to inspection by any member at all times during reasonable business hours.

Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	The presiding official who conducts the hearing, evaluates evidence, and issues a decision in administrative disputes.
A.R.S. § 33-1805	The Arizona Revised Statute governing the accessibility of financial and other records of a planned community association.
Bylaws	The rules and regulations adopted by an organization (like an HOA) for its internal management and government.
Petitioner	The party who files the petition or claim; in this case, Kenneth W. Zablotny.
Preponderance of the Evidence	Evidence that is of greater weight or more convincing than the evidence offered in opposition.
Respondent	The party against whom a petition is filed; in this case, Sycamore Hills Estates, Inc.

Short-Answer Practice Questions

What initiated the Petitioner’s request to see the association’s books?

Answer: After receiving conflicting information from the manager regarding whether certain homeowners (including a board member) were current on their dues during foreclosures, the Petitioner sought to verify the financial records.

How many business days does an association have to fulfill a request for examination of records?

Answer: Ten business days.

What was the Respondent's response to the Petitioner's multiple requests via website, certified mail, and attorney letters?

Answer: The Respondent largely ignored the requests, failed to acknowledge the letters, and eventually provided a single financial statement that was illegible.

What happens if a Respondent fails to appear at the scheduled administrative hearing?

Answer: The hearing proceeds in the Respondent’s absence, as happened in this case when Sycamore Hills Estates, Inc. failed to send an authorized member or attorney.

What were the financial consequences ordered against the Respondent?

Answer: The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within 30 days.

Essay Prompts for Deeper Exploration

Statutory vs. Internal Governance: Analyze the interplay between A.R.S. § 33-1805 and Article X of the Sycamore Hills Estates Bylaws. How do state laws provide a "floor" for transparency, and how did the Respondent’s failure to respond to "reasonable business hour" requests violate both standards?
The Limits of Privacy in HOAs: Discuss the five categories of records exempt from disclosure under A.R.S. § 33-1805(B). Why is it legally necessary to balance member transparency with the privacy of individual employees and the confidentiality of legal counsel?
The Role of the Administrative Law Judge: Evaluate the process of the administrative hearing as described in the document. How does the ALJ determine "preponderance of the evidence" when one party fails to appear and present a defense?
Enforcement and Remedies: The ALJ ordered the Respondent to provide the records and pay a filing fee but did not find a civil penalty appropriate. Discuss the effectiveness of these remedies in ensuring future compliance with association transparency laws.

Knowledge is Power: How One Homeowner Held Their HOA Accountable for Financial Transparency

1. Introduction: The Right to Know

In the world of planned communities, the relationship between homeowners and their Board of Directors is built on a fundamental covenant: owners provide the capital, and the Board provides responsible stewardship. But far too often, this relationship is poisoned by a culture of opacity. When a Board treats financial records like state secrets rather than the "books and records" of the membership, they aren't just being difficult—they are violating the law.

Transparency is not a favor granted by a benevolent Board; it is a statutory right. The case of Kenneth W. Zablotny vs. Sycamore Hills Estates, Inc. (No. 20F-H2019022-REL) stands as a vital reminder that homeowners do not have to settle for bureaucratic stonewalling. This landmark decision from the Arizona Office of Administrative Hearings showcases how one persistent homeowner dismantled a wall of silence to reclaim his right to financial transparency.

2. The Spark of Suspicion: Why the Request Was Made

Suspicion rarely arises in a vacuum. For Mr. Zablotny, a real estate agent and dedicated attendee of community meetings, the red flags began waving in November 2017. During a board meeting, the association’s manager, Char DuFresne, claimed that a board member whose home was in public foreclosure was nevertheless "current" on their association dues.

When a second homeowner entered foreclosure, DuFresne doubled down on this narrative, insisting the account was up to date. However, the truth eventually leaked through the cracks of the Board's narrative, revealing a deep-seated discrepancy that demanded investigation.

The $1,600 Trigger: Despite the manager's repeated assurances that accounts were current, the Petitioner discovered evidence that a homeowner allegedly owed $1,600.00 in unpaid assessments. This revelation transformed a neighborly inquiry into a necessary legal pursuit for the community’s financial truth.

3. A Timeline of Persistence: Two Years of Ignored Requests

For over two years, Sycamore Hills Estates, Inc. met Mr. Zablotny’s inquiries with a masterclass in bureaucratic delay tactics. The Petitioner’s journey from "neighborly inquiry" to "legal demand" is a roadmap of persistence against a Board that simply refused to govern in the light.

December 14, 2017 (The Escalation): Realizing that verbal requests were being ignored, Mr. Zablotny’s attorney sent a formal demand for records pursuant to A.R.S. § 33-1805. The Association responded with total silence.
March 24, 2019: Moving to digital channels, the Petitioner requested expenditure statements via the association’s website. No reply.
May 20 & June 10, 2019: Two separate written requests were submitted, offering specific dates to view records in person. Both went unacknowledged.
August 19 & September 9, 2019: Escalating to certified mail, the Petitioner sent letters to the manager and the Board of Directors. This finally elicited a response—a flat denial stating he was "not permitted" to see the documents.
November 2019 (The Obfuscation): After the legal petition was filed, the manager sent partial information on only one of the association's four accounts. When pressed for the others, she claimed she "did not have time" to meet and eventually sent a financial statement that was entirely illegible.
December 3, 2019: A final attempt to meet in person was met with the same wall of silence that had characterized the previous 24 months.

4. Decoding the Law: A.R.S. § 33-1805 and Article X

In Arizona, the right to inspect records is protected by a statutory "floor" that no HOA can legally bypass. While a community's Bylaws (referenced by the Judge as Section X, though formally Article X) provide local rules, state law (A.R.S. § 33-1805) provides the teeth for enforcement.

Requirement	A.R.S. § 33-1805 (State Law)	Article X (Bylaws)
Authority	Supersedes all internal HOA rules.	Must align with state law.
Availability	All financial/other records must be reasonably available.	Books/records subject to inspection "at all times."
Timeframe	How Fast: Must fulfill request within 10 business days.	When: During "reasonable business hours."
Cost	No charge for review; max $0.15/page for copies.	Copies available at a "reasonable cost."

It is crucial to note that while the law allows an HOA to withhold records under narrow exceptions—such as attorney-client privilege, pending litigation, or personal health/financial records of other members—none of these applied to the general financial books and records Mr. Zablotny requested. The Association’s refusal was not a legal protection; it was a violation.

5. The Verdict: Accountability at the Office of Administrative Hearings

The conflict culminated on February 13, 2020. In a telling display of their attitude toward accountability, Sycamore Hills Estates, Inc. failed to appear at the hearing entirely. This "default" on their responsibilities to the legal system mirrored their two-year default on their responsibilities to their members.

Administrative Law Judge Antara Nath Rivera found that Mr. Zablotny proved his case by a preponderance of the evidence. The HOA's behavior—sending illegible documents, refusing meeting times, and ignoring the 10-day statutory clock—was found to be in clear violation of both state law and their own Bylaws.

The Court’s Order:

Mandatory Production: The HOA was ordered to supply all relevant documents within ten days.
Fee Reimbursement: The HOA was ordered to pay Mr. Zablotny $500.00 to reimburse his filing fee.

While the Judge noted that "No Civil Penalty is found to be appropriate," the victory was absolute in its primary goal: the restoration of transparency and the shifting of legal costs back onto the non-compliant Board.

6. Conclusion: Key Takeaways for Homeowners

The Zablotny victory is a blueprint for every homeowner living under an opaque Board. If your HOA is hiding the numbers, remember these lessons:

Document Everything: Verbal promises mean nothing. Use certified mail to create an undeniable paper trail of your requests and their silence.
State Law is Your Shield: A.R.S. § 33-1805 is the ultimate authority. No HOA manager can "out-rule" the 10-business-day statutory deadline.
Reject "Administrative" Excuses: Claims of being "too busy" or providing "illegible" records are not valid legal defenses. They are admissions of non-compliance.
The ADRE is Your Resource: You don't always need a high-priced Superior Court attorney. The Arizona Department of Real Estate (ADRE) provides a formal petition process to bring these disputes before an Administrative Law Judge.

A healthy community cannot survive in the dark. Board members are stewards, not rulers, and as Kenneth Zablotny proved, the law is the ultimate tool for bringing them back into the light.

Case Participants

Petitioner Side

Kenneth W Zablotny (petitioner)
Appeared on his own behalf; real estate agent

Respondent Side

Char DuFresne (property manager)
Sycamore Hills Estates, Inc.
Respondent's manager

Neutral Parties

Antara Nath Rivera (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of transmitted order

Olga Carnahan v. White Mountain Lake Vistas

Posted on January 13, 2020 by [email protected]

Case Summary

Case ID	20F-H2019021-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-13
Administrative Law Judge	Antara Nath Rivera
Outcome	The Administrative Law Judge dismissed the petition, finding that the Respondent did not violate the CC&Rs. The specific article cited by the Petitioner (Article 12.3) governed amendments to the Declaration and Plat, not the purchase of real property, and therefore did not require a membership vote.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Olga Carnahan	Counsel	—
Respondent	White Mountain Lake Vistas	Counsel	Edward O’Brien

Alleged Violations

Article 12.3

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Respondent did not violate the CC&Rs. The specific article cited by the Petitioner (Article 12.3) governed amendments to the Declaration and Plat, not the purchase of real property, and therefore did not require a membership vote.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the CC&Rs required a membership vote for the Board to purchase lots.

Key Issues & Findings

Purchase of lots without membership vote

Petitioner alleged the HOA Board violated CC&Rs by purchasing two lots without a membership vote. The Board argued Article 12.3 applies to amendments, not property purchases, and no vote was required.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

Article 12.3

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Video Overview

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Decision Documents

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Briefing: Carnahan vs. White Mountain Lake Vistas Administrative Decision

Executive Summary

On January 13, 2020, Administrative Law Judge Antara Nath Rivera issued a decision in the matter of Olga Carnahan vs. White Mountain Lake Vistas (No. 20F-H2019021-REL). The case centered on a dispute regarding the authority of a Homeowners Association (HOA) Board of Directors to purchase real property without a membership vote.

The Petitioner, Olga Carnahan, alleged that the Respondent, White Mountain Lake Vistas, violated Article 12.3 of the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by purchasing two lots (#54 and #65) without obtaining a two-thirds majority approval from the membership. The Respondent argued that the cited article applied specifically to amendments of the CC&Rs and Plats, not to the acquisition of property.

Following a hearing held on December 26, 2019, the Administrative Law Judge (ALJ) determined that the Petitioner failed to meet the burden of proof. The ALJ ruled that the CC&Rs did not require a membership vote for the purchase of the lots and that the Petitioner’s secondary concerns regarding financial impact were not ripe for adjudication. Consequently, the Petition was dismissed.

Case Overview

Key Information	Details
Case Name	Olga Carnahan vs. White Mountain Lake Vistas
Case Number	20F-H2019021-REL
Hearing Date	December 26, 2019
Decision Date	January 13, 2020
Presiding Judge	Antara Nath Rivera
Primary Issue	Alleged violation of CC&Rs Article 12.3 regarding property acquisition without a vote.
Verdict	Petition Dismissed

Detailed Analysis of Key Themes

1. Interpretation of CC&Rs vs. Board Authority

The central conflict of the case was the interpretation of Article 12.3 of the CC&Rs. The Petitioner interpreted the requirement for a two-thirds membership vote for "Amendments" as a requirement for any major board action, including the purchase of lots. However, the Respondent testified—and the ALJ confirmed—that Article 12.3 specifically governs the process for amending the Declaration or the Plat. The Board maintained that their authority to purchase property to address drainage issues did not trigger the amendment requirements of Article 12.3.

2. Burden of Proof and Evidentiary Standards

In administrative hearings under A.R.S. § 32-2199, the Petitioner carries the burden of proof by a "preponderance of the evidence." This means the Petitioner must prove that their contention is "more probably true than not." The ALJ found that the Petitioner failed to provide evidence that any provision in the CC&Rs specifically authorized or required a membership vote for the purchase of property. Without a specific provision linking property acquisition to a membership vote, the Petitioner could not sustain her burden.

3. Procedural Ripeness and Financial Speculation

During the hearing, the Petitioner introduced a second argument: that the purchase of the lots would cause a future financial loss to the Association due to the loss of HOA fees from those lots. The ALJ designated this issue as "not ripe." Because the Respondent had not yet made definitive plans for the lots (such as merging them or making Plat changes) and the financial impact was speculative, it did not constitute an immediate violation of the community documents.

4. Board Transparency and Member Consent

The evidence showed that while the Board was not legally required to hold a vote, they did discuss the purchase at a September 20, 2019, meeting. The Board testified that members present agreed with the idea of purchasing the lots to address drainage issues. The dispute arose because the Petitioner requested a formal vote, which the Board denied based on their interpretation of the CC&Rs. This highlights the distinction between a Board seeking member opinion and a Board being legally bound by a membership vote.

Important Quotes and Context

On Article 12.3 (Amendments)

"This Declaration may be amended by the written approval or affirmative vote, or any combination thereof, of two-thirds (2/3) of the Membership." — CC&Rs Article 12.3.1

Context: This is the specific clause the Petitioner relied upon to argue that a vote was necessary for the lot purchase. The ALJ ultimately ruled that this clause applies only to formal amendments of the Declaration text.

On Administrative Authority to Amend

"The Board may amend this Declaration or the Plat, without obtaining the approval or consent of any Owner… in order to conform this Declaration or the Plat to the requirements or guidelines of [federal, state, or local agencies]." — CC&Rs Article 12.3.2

Context: This section outlines specific instances where the Board can act even without the two-thirds vote mentioned in 12.3.1, demonstrating that the Board has broad powers regarding the Plat under certain conditions.

On the Burden of Proof

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." — Findings of Fact, quoting Morris K. Udall, Arizona Law of Evidence

Context: This legal standard was used to evaluate whether Olga Carnahan had provided enough evidence to show the HOA violated its rules. The ALJ concluded she had not.

On the Final Ruling

"Petitioner failed to establish by a preponderance of the evidence that Respondent lacked the authority to purchase the lots without a vote. Thus, Petitioner failed to sustain her burden to establish that Respondent violated Article 12.3 of the CC&Rs." — Conclusion of Law #8

Context: This is the ALJ's final determination, leading directly to the dismissal of the petition.

Actionable Insights

For Homeowners Association Boards

Clarify Governing Document Scope: Ensure that the distinction between "Board Actions" (e.g., purchasing property for maintenance/drainage) and "Amendments to Declarations" is clearly communicated to members to prevent litigation.
Documentation of Intent: The Respondent’s ability to point to specific reasons for the purchase (drainage issues) and the lack of any formal Plat changes helped demonstrate that they were not circumventing Article 12.3.
Meeting Minutes as Evidence: The Respondent successfully used meeting minutes (Exhibits #6 and #7) to show that they had consulted with members, even if a formal vote was not legally required.

For Members/Petitioners

Verify Specificity of Allegations: Before filing a petition under A.R.S. § 32-2199, a member should ensure the specific Article cited actually governs the action in question. In this case, citing an "Amendment" clause for a "Purchase" action led to dismissal.
Understand Ripeness: Legal challenges must be based on current violations rather than fears of future financial loss. Arguments regarding "future" adverse effects on finances are likely to be dismissed as not ripe.
Evidentiary Requirements: Petitioners must provide more than testimony; they must provide community documents that explicitly mandate the procedure they claim was bypassed.

Case Study Guide: Olga Carnahan vs. White Mountain Lake Vistas

This study guide provides a comprehensive overview of the administrative hearing between Olga Carnahan and the White Mountain Lake Vistas Homeowners Association. It explores the legal interpretations of community documents, the evidentiary standards in administrative hearings, and the specific application of Arizona Revised Statutes regarding planned community disputes.

1. Case Overview and Core Themes

The central conflict in this case involves a homeowner (Petitioner) alleging that the Board of Directors of White Mountain Lake Vistas (Respondent) violated the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by purchasing real property without a membership vote.

Key Themes:

Board Authority vs. Membership Approval: The distinction between actions requiring a supermajority vote and those within the Board's discretionary power.
Interpretation of CC&Rs: The legal necessity of applying specific articles to relevant actions (e.g., distinguishing between "amending a declaration" and "purchasing property").
Evidentiary Burdens: The requirement for a Petitioner to prove a violation by a preponderance of the evidence in an administrative setting.
Ripeness of Claims: Determining whether a violation has actually occurred or if the claim is based on future, speculative harm.

2. Fact Summary and Timeline

Date	Event
June 30, 2017	Petitioner purchases lot #43 within the community.
July 2, 2019	CC&Rs are amended by a 2/3 membership vote per Article 12.3.
Sept 20, 2019	Board meeting held; drainage issues regarding lots #54 and #65 are discussed. Board indicates intent to purchase the lots.
Oct 11, 2019	Petitioner learns of the sale of lots #54 and #65 to the Respondent.
Oct 14, 2019	Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
Nov 20, 2019	Department of Real Estate issues a Notice of Hearing.
Dec 26, 2019	Administrative hearing held before Judge Antara Nath Rivera.
Jan 13, 2020	Administrative Law Judge issues the decision to dismiss the Petition.

3. Analysis of Article 12.3 (Amendments)

The Petitioner’s case relied primarily on Article 12.3 of the CC&Rs. The following table breaks down the relevant subsections and their legal applications as determined during the hearing:

Subsection	Provision Details	Application in Case
12.3.1	The Declaration may be amended by written approval or affirmative vote of 2/3 of the Membership.	The Judge ruled this applies only to amendments to the CC&Rs, not the purchase of property.
12.3.2	The Board may amend the Declaration or the Plat without Owner consent to conform to federal/state/local guidelines (FHA, VA, etc.).	This grants the Board unilateral power to amend Plats in specific regulatory contexts.
12.3.3	Approved amendments must be signed by the President/VP and recorded with the County Recorder.	Procedural requirement for valid amendments; did not apply as no amendment occurred.

4. Short-Answer Practice Questions

Q1: What was the primary legal issue raised by the Petitioner?

Answer: The Petitioner alleged that the Respondent violated Article 12.3 of the CC&Rs by purchasing two lots (#54 and #65) without obtaining a 2/3 majority vote from the membership.

Q2: How did the Respondent justify the purchase of lots #54 and #65?

Answer: The Board testified that the lots were purchased to address drainage issues affecting the community. They further argued that the CC&Rs contained no provision requiring a membership vote for the purchase of property.

Q3: What standard of proof was required for the Petitioner to win the case?

Answer: The Petitioner was required to establish the violation by a "preponderance of the evidence," meaning she had to prove the contention was more probably true than not.

Q4: Why did the Administrative Law Judge deem the Petitioner's secondary argument regarding financial loss as "not ripe"?

Answer: The Petitioner argued the purchase would cause future financial loss due to missing HOA fees. The Judge found this did not establish an immediate violation and therefore was not yet a justiciable issue for the hearing.

Q5: Who bears the burden of proof regarding affirmative defenses in this administrative hearing?

Answer: The Respondent bears the burden to establish affirmative defenses by a preponderance of the evidence.

5. Essay Prompts for Deeper Exploration

The Limits of Homeowner Oversight: Analyze the tension between homeowner expectations and the Board's operational authority. In the context of Carnahan vs. White Mountain Lake Vistas, discuss why the Petitioner's expectation of a vote was legally unsupported despite her presence at the meeting where the idea was discussed.
Statutory Interpretation of CC&Rs: Critique the Petitioner’s application of Article 12.3. Explain the legal distinction between "amending a community document" and "executing a real estate transaction," and discuss how specific language in CC&Rs limits or expands Board power.
Administrative Law and the Preponderance of Evidence: Evaluate the role of the Office of Administrative Hearings in HOA disputes. How does the standard of "preponderance of the evidence" differ from "beyond a reasonable doubt," and why is this lower threshold appropriate for civil disputes involving planned communities?

6. Glossary of Important Terms

A.R.S. § 32-2199 et seq: The Arizona Revised Statutes that permit an owner or planned community organization to file a petition for a hearing concerning violations of community documents.
Affirmative Defense: A fact or 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.
CC&Rs (Covenants, Conditions, and Restrictions): The declaration that sets forth the rules, regulations, and requirements for a planned community.
Department (Arizona Department of Real Estate): The state agency responsible for overseeing HOA dispute petitions before they are sent to the Office of Administrative Hearings.
Plat: A map or plan of a piece of land showing how it has been subdivided into lots.
Preponderance of the Evidence: Evidence that has the most convincing force; proof that a contention is more probably true than not.
Ripeness: A legal doctrine used to determine if a case is ready for adjudication. A claim is not "ripe" if it is based on speculative future events rather than an actual, immediate violation.
Special Warranty Deed: A deed in which the seller warrants only against defects in the title that occurred during their period of ownership.

HOA Authority vs. Homeowner Rights: Lessons from the White Mountain Lake Vistas Dispute

1. Introduction: The Power Struggle in Planned Communities

In the realm of common-interest developments, a perpetual tension exists between the authority of the Board of Directors and the expectations of the membership. This friction often intensifies when a Board exercises its power to manage community assets or expend association funds. Homeowners frequently view significant acquisitions through the lens of a democratic vote, while Boards often operate under the mandate of their corporate powers.

The case of Olga Carnahan vs. White Mountain Lake Vistas (No. 20F-H2019021-REL) serves as a quintessential study in this jurisdictional tug-of-war. The dispute centers on a fundamental question of HOA governance: Does a Board of Directors possess the unilateral authority to purchase real property, or does such an acquisition constitute an amendment to the community’s governing documents requiring a membership vote?

2. The Dispute: The Purchase of Lots #54 and #65

The conflict arose when Olga Carnahan, an owner of lot #43 who was not a member of the Board during her tenure in the community, challenged the Association’s purchase of two vacant lots, specifically lots #54 and #65. In October 2019, Carnahan filed a petition with the Arizona Department of Real Estate, alleging that the Board had bypassed the procedural requirements set forth in Article 12.3 of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

Carnahan’s petition was built on two primary grievances:

Lack of Membership Consent: She asserted that the Board was legally obligated to obtain a majority or two-thirds vote from the homeowners before acquiring new land, arguing that such a significant action should be a community-wide decision.
Financial Erosion: Beyond the procedural challenge, the Petitioner raised concerns regarding the fiscal impact on the Association. She argued that the purchase resulted in an immediate loss of revenue, as the HOA would no longer collect assessments from these previously privately owned, fee-paying lots.

3. The Defense: Solving Drainage Issues

The Respondent Board, represented by Secretary/Treasurer Rose Thomas and President Joyce Dick, justified the purchase as an exercise of their duty to maintain the community's infrastructure. The acquisition was not intended as a speculative real estate venture but as a strategic solution to chronic drainage issues affecting those specific lots and the surrounding area.

The Board testified that the matter was discussed transparently during a meeting on September 20, 2019. While Petitioner Carnahan was present at this meeting and expressed support for the drainage solution, she insisted on a formal membership vote. The Board, however, maintained that the CC&Rs granted them the authority to act independently. After gauging the general support of the members in attendance, the Board voted unanimously to proceed with the purchase. Notably, while the Petitioner alleged that a vote was supposed to occur at a subsequent meeting on October 11, 2019, the evidence showed she was not present at that meeting, leaving her testimony regarding those specific proceedings without firsthand weight.

4. Legal Deep Dive: Decoding CC&Rs Article 12.3

The resolution of this dispute required a precise interpretation of Article 12.3. As a legal analyst, it is vital to distinguish between a Board's Business Power (the authority to manage assets) and the Contractual Framework (the CC&Rs and Plats that define the community).

Provision	Scope of Authority
Subsection 12.3.1	The Declaration may be amended only with the written approval or affirmative vote of two-thirds (2/3) of the Membership.
Subsection 12.3.2	The Board may amend the Declaration or the Plat without owner or First Mortgagee consent to conform to requirements of federal agencies (FNMA, FHLMC, FHA, VA) or any federal, state, or local government agencies.

Analysis of Authority Administrative Law Judge (ALJ) Antara Nath Rivera’s decision hinged on the fact that Article 12.3 governs "Amendments"—changes to the written text of the Declaration or the physical descriptions in the Plat. The act of purchasing property is a corporate transaction, not a textual amendment to the community's servitudes. Because the lots remained vacant and no changes had been recorded to the Plat, the 2/3 vote requirement for amendments was never triggered. In the world of community associations, Boards generally have the power to manage corporate assets without seeking "shareholder" approval for every transaction unless the governing documents explicitly state otherwise.

5. The Verdict: Why the Petition Failed

The ALJ dismissed the petition, citing several critical legal and procedural deficiencies:

Preponderance of the Evidence: The burden of proof lay with the Petitioner to show that a violation occurred. Carnahan failed to identify any provision in the CC&Rs that specifically required a membership vote for property acquisition. Furthermore, her absence from the October 11 meeting weakened her evidentiary standing regarding alleged Board commitments.
Ripeness and Injury: The judge found the petition was "not ripe." Because the Board had not yet filed a Plat change or amended the Declaration, there was no "action" to adjudicate. The lots remained vacant, and the Board was still merely researching options for conversion or merging.
Procedural Scope: During the hearing, the Petitioner attempted to introduce a second issue regarding future financial impacts. The ALJ noted that this was a "single issue petition" and that the financial argument did not establish an immediate violation of the governing documents.

The final order was definitive: "IT IS ORDERED that the Petition be dismissed."

6. Compelling Takeaways for Homeowners and Boards

The White Mountain Lake Vistas case offers three critical lessons for the governance of planned communities:

Know Your Definitions (Business Power vs. Contractual Framework): A property purchase is typically an exercise of Board Business Power—the authority to manage the association’s assets and common areas. An amendment, conversely, is a change to the community’s Contractual Framework. Unless the CC&Rs specifically restrict the Board’s power to acquire land, the amendment procedures do not apply to simple real estate transactions.
The Burden of Proof: In administrative disputes, the homeowner bears the responsibility to prove a violation by a preponderance of the evidence. Subjective feelings of unfairness or the belief that a vote "should" happen are insufficient to overcome the legal authority granted to the Board by the governing documents.
Read the Meeting Minutes and Attend: Documentation is the bedrock of HOA law. The September 20 meeting minutes proved that the Board had communicated its intent and gathered feedback. Owners who fail to attend meetings or review minutes may find themselves filing "premature" legal challenges based on a misunderstanding of Board actions and authority.

7. Conclusion: The Importance of Governing Documents

The Carnahan case reaffirms that the CC&Rs and Plats are the "constitution" of the HOA. They serve as the final authority in any dispute, defining the boundaries of Board power and owner rights. While homeowners may have valid concerns about community finances or transparency, those concerns must be anchored in the specific language of the Declaration to have legal standing. Clear, proactive communication between Boards and owners—particularly regarding complex issues like drainage and land acquisition—remains the best defense against costly and ultimately unsuccessful litigation.

Case Participants

Petitioner Side

Olga Carnahan (Petitioner)
Appeared on her own behalf

Respondent Side

Edward O’Brien (Respondent Attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP
Appeared on behalf of White Mountain Lake Vistas
Rose Thomas (Board Secretary/Treasurer)
White Mountain Lake Vistas Board
Witness
Joyce Dick (Board President)
White Mountain Lake Vistas Board
Witness

Neutral Parties

Antara Nath Rivera (Administrative Law Judge)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of transmitted order

David W Hopper v. Las Cumbres Townhouses Association

Posted on December 29, 2019 by [email protected]

Case Summary

Case ID	20F-H2019013-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-12-29
Administrative Law Judge	Antara Nath Rivera
Outcome	The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated CC&Rs or By-Laws. The dispute centered on a wall built on a neighbor's private property which blocked Petitioner's preferred access path; the judge found Petitioner had no legal right to use that private property.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	David W Hopper	Counsel	—
Respondent	Las Cumbres Townhouses Association	Counsel	Blake Johnson

Alleged Violations

CC&Rs Article VII Section 3; CC&Rs Article VIII Section 4; By-Laws Article II Section 1(b) and 1(c)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated CC&Rs or By-Laws. The dispute centered on a wall built on a neighbor's private property which blocked Petitioner's preferred access path; the judge found Petitioner had no legal right to use that private property.

Why this result: Petitioner failed to prove the HOA violated any governing documents; the wall was on private property (not common area) and Petitioner had no legal right to access it.

Key Issues & Findings

HOA Dispute Process Petition regarding wall construction

Petitioner alleged the HOA violated governing documents by approving a neighbor's wall construction that blocked a pathway Petitioner used for access, arguing it impaired maintenance, safety, and property value.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

CC&Rs Article VII Section 3
CC&Rs Article VIII Section 4
By-Laws Article II Section 1(b)
By-Laws Article II Section 1(c)

Video Overview

Audio Overview

Decision Documents

20F-H2019013-REL Decision – 761441.pdf

Uploaded 2026-04-24T11:23:25 (106.4 KB)

Administrative Law Judge Decision: Hopper vs. Las Cumbres Townhouses Association

Executive Summary

On December 29, 2019, Administrative Law Judge Antara Nath Rivera issued a decision in the matter of David W Hopper vs. Las Cumbres Townhouses Association (No. 20F-H2019013-REL). The dispute centered on the Petitioner’s allegation that the Homeowners Association (HOA) violated community governing documents by approving the construction of a wall on a neighbor’s private property. The Petitioner argued that this wall obstructed a pathway he and his wife used for home maintenance, safety access, and health-related movement, subsequently devaluing his property.

The Respondent, Las Cumbres Townhouses Association, maintained that the wall was constructed solely on private property for erosion mitigation, was approved unanimously by the Board, and conformed to the community’s design scheme. The Judge ruled in favor of the Respondent, dismissing the petition on the grounds that the Petitioner failed to establish any violation of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) or the Association By-Laws by a preponderance of the evidence.

Detailed Analysis of Key Themes

Property Rights vs. Customary Use

A central theme of the case is the distinction between a legal right of access and a neighborly accommodation. The Petitioner had grown accustomed to using a flat pathway through his neighbor’s patio to haul large items and provide access for workers. However, the evidence established that this area was not a "common area" but private property. The Judge concluded that while the Petitioner had enjoyed the use of the patio with the neighbor’s tacit consent, he was not entitled to "continued uninterrupted use" of property that did not belong to him.

Health, Safety, and Property Maintenance

The Petitioner raised several concerns regarding the adverse effects of the wall:

Maintenance: He argued that large windows for his renovation could no longer be brought through the back, and would not fit through the front door.
Safety: He claimed the wall removed a critical fire exit route.
Health: He noted that his wife suffered from a condition similar to vertigo, making the existing, steeper common area pathway behind the home unsafe for her.

The Respondent successfully countered that other townhomes with similar layouts had replaced large windows without using neighbors' yards. Furthermore, the Association testified that a common area walkway did exist behind the home, and although steep, it was the designated area for resident use.

HOA Board Authority and Governance

The Association demonstrated that its actions were consistent with its governing documents. The Board held a meeting on March 26, 2019, where they unanimously approved the neighbor's wall as a measure to mitigate erosion. The Judge found that the Association acted within its rights to approve plans that were in conformity with the community’s "common scheme and design."

Legal Standards of Proof

The case underscores the "preponderance of the evidence" standard required in administrative hearings. To prevail, the Petitioner needed to prove that his contentions were "more probably true than not." The Judge determined that the Petitioner did not provide sufficient evidence that the HOA’s approval of the wall violated specific provisions regarding health, safety, welfare, or property value protection.

Summary of Alleged Violations

The following table outlines the specific community documents cited by the Petitioner and the associated legal findings.

Document & Section	Provision Summary	Judicial Finding
CC&Rs Art. VII, Sec. 3	Owners are responsible for the maintenance and repair of their individual units.	Respondent did not violate this by approving a wall on a different private property.
CC&Rs Art. VIII, Sec. 4	Owners shall not impair structural soundness, easements, or adversely affect other units.	Petitioner failed to establish that the wall on the neighbor’s property legally impaired his property rights.
By-Laws Art. II, Sec. 1(b)	Purpose of the Association is to promote health, safety, and welfare of residents.	The Association’s approval of erosion mitigation on private property did not violate this purpose.
By-Laws Art. II, Sec. 1(c)	Purpose of the Association is to protect property values for each dwelling.	Petitioner failed to prove the wall legally decreased property value relative to HOA obligations.

Important Quotes with Context

On the Definition of Preponderance of the Evidence

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… evidence that has the most convincing force; superior evidentiary weight."

Context: This quote establishes the legal threshold the Petitioner failed to meet during the hearing.

On Private Property Rights

"Petitioner was not entitled to continued uninterrupted use of his neighbor’s private property… Petitioner failed to present evidence that he had a legal right of access to his neighbor’s patio as a pathway."

Context: The Judge used this to clarify that previous use of the neighbor's yard did not grant a permanent easement or right of way.

On Association Responsibility

"While Respondent may have affected Petitioner’s convenience when it approved plans to build the wall, it did not violate any rules and procedures."

Context: This distinguishes between an HOA action that causes an inconvenience and one that constitutes a legal violation of community documents.

On Notice of Construction

"Petitioner argued lack of notice of the construction of the wall. However, Petitioner did not cite to any CC&Rs or By-Laws violated by Respondent with respect to lack of notice."

Context: The Judge noted that while the Petitioner felt slighted by the lack of communication, there was no documented legal requirement for the HOA to provide such notice for construction on a neighbor's private lot.

Actionable Insights

Verification of Property Boundaries: Homeowners should not rely on the temporary use of neighboring land for maintenance or access. Legal access is strictly defined by property lines and recorded easements, not by historical practice or neighborly permission.
HOA Approval Discretion: HOA Boards have the authority to approve modifications on private lots—such as walls for erosion control—as long as they conform to the community’s design scheme and follow established procedural rules.
Burden of Proof in Disputes: In a petition against an HOA, the burden lies entirely with the Petitioner to link an action (like the approval of a wall) to a specific violation of the CC&Rs or By-Laws. General claims of "diminished property value" or "inconvenience" are insufficient without a direct link to a violated regulation.
Common Area vs. Private Property: Residents must distinguish between common areas maintained for community use and private property. In this case, the existence of a "steep" common area walkway satisfied the community's requirement for access, regardless of whether a flatter, private alternative was preferred.

Study Guide: Hopper v. Las Cumbres Townhouses Association (Case No. 20F-H2019013-REL)

This study guide provides a comprehensive overview of the administrative hearing between David W. Hopper and the Las Cumbres Townhouses Association. It examines the legal standards, the specific community documents at the center of the dispute, and the evidentiary findings that led to the dismissal of the petition.

Key Concepts and Case Overview

1. The Nature of the Dispute

The case involves a homeowner (Petitioner) who filed a dispute against his Homeowners Association (Respondent) following the construction of a wall on a neighbor’s property. The Petitioner alleged that the wall—approved by the Association Board—blocked a pathway he previously used for home maintenance, emergency egress, and general access to the front of the community.

2. Legal Standards and Burden of Proof

The hearing was conducted under Arizona Revised Statutes (A.R.S. § 32-2199 et seq.), which allows for the Office of Administrative Hearings to resolve disputes concerning planned community documents.

Burden of Proof: The Petitioner bears the burden of proving that the Association committed the alleged violations.
Preponderance of the Evidence: This is the evidentiary standard used. It is defined as proof that convinces the trier of fact that a contention is "more probably true than not." It represents the "greater weight of the evidence" or "superior evidentiary weight."

3. Governing Community Documents

The dispute centered on the interpretation of four specific sections of the community’s governing documents:

CC&R Article VII, Section 3 (Exterior Maintenance): Establishes that all maintenance and repair of individual units are the sole obligation and expense of the individual owners.
CC&R Article VIII, Section 4 (Interior and Other Maintenance): Prohibits owners from performing acts that impair the structural soundness of dwellings, impair easements, or adversely affect other units or owners.
Bylaws Article II, Section 1(b): States the Association’s purpose is to promote the health, safety, and welfare of residents.
Bylaws Article II, Section 1(c): States the Association’s purpose is to protect property values for each dwelling and the Association.

Short-Answer Practice Questions

1. What specific physical structure triggered the filing of the petition? The construction of an adobe wall on the Petitioner’s neighbor's yard, which blocked a flat pathway the Petitioner had been using to access his property and the guest parking lot.

2. Why did the Petitioner argue that the wall affected his wife’s safety and welfare? His wife suffers from a medical condition similar to vertigo. The wall blocked the flat pathway through the neighbor's patio, which was her only safe exit in the event of a fire, as the alternative common area path consisted of rough and steep terrain.

3. What reason did the Association Board provide for approving the neighbor's wall? The Board testified that the wall was part of a project intended to mitigate erosion on the neighbor’s property. They also noted the wall was in conformity with the community’s common scheme and design.

4. How did the Petitioner’s real estate agent contribute to his argument? The agent informed the Petitioner that the property had lost value because the lack of access to the west side of the home would now have to be disclosed to future buyers.

5. What was the critical finding regarding the ownership of the pathway at issue? The Administrative Law Judge determined that the pathway was located on the neighbor’s private property, not in a common area. Therefore, the Petitioner had no legal right of access to it.

6. Did the Association violate the notice requirements according to the judge? No. While the Petitioner argued he was not given notice of the construction, the judge found he failed to cite any specific CC&R or Bylaw provision that the Association violated regarding notice.

Essay Prompts for Deeper Exploration

1. Property Rights vs. Historical Use

Analyze the distinction between a "legal right of access" and "permissive use" as presented in this case. In your response, discuss how the Petitioner’s history of using the neighbor’s patio for home renovations and access influenced his expectations, and explain why the law prioritized the neighbor’s private property rights over the Petitioner’s established routine.

2. The Limits of HOA Responsibility

The Petitioner cited Bylaw provisions regarding the promotion of "health, safety, and welfare" and the protection of "property values" to argue that the Association should not have approved the wall. Evaluate the judge’s conclusion that these broad purpose statements did not obligate the Association to prevent the construction. To what extent should an HOA be held responsible for the indirect effects of one member’s private property improvements on another member?

3. Assessing Preponderance of the Evidence in HOA Disputes

Using the definitions provided in the case, discuss the "Preponderance of the Evidence" standard. Why did the Petitioner fail to meet this standard despite providing testimony regarding his wife’s medical condition, property value concerns, and maintenance difficulties? Focus your analysis on the relationship between the facts presented and the specific language of the CC&Rs and Bylaws.

Glossary of Important Terms

Administrative Law Judge (ALJ): An official who presides over hearings and adjudicates disputes involving government agencies or specific statutory processes (in this case, the Arizona Department of Real Estate).
Bylaws: The rules and regulations adopted by an organization (like an HOA) for its internal administration and management.
CC&Rs (Covenants, Conditions, Restrictions, and Easements): A legal document that outlines the rules for a planned community and the rights and obligations of the homeowners and the association.
Common Area: Land or amenities within a development that are owned or managed by the HOA for the use and enjoyment of all residents.
Egress: A way out or a point of exit.
Mitigation: The action of reducing the severity, seriousness, or painfulness of something (e.g., erosion mitigation).
Petitioner: The party who initiates a lawsuit or petition (David W. Hopper).
Preponderance of the Evidence: The standard of proof in most civil cases, requiring that the evidence be "more likely than not" to support the claim.
Respondent: The party against whom a petition is filed or an appeal is taken (Las Cumbres Townhouses Association).
Structural Soundness: The ability of a building or structure to withstand its design loads and remain stable without failure.

When Your Shortcut Ends: Navigating HOA Disputes and Property Rights

The Wall Between Neighbors

In the world of planned developments, there is a fine—and often invisible—line between neighborly convenience and absolute property rights. For years, many residents operate on informal licenses, such as a borrowed patch of lawn or a "shortcut" across a neighbor’s lot. However, as an HOA consultant, I often see these "understandings" crumble the moment a permanent structure is erected.

The case of David W. Hopper vs. Las Cumbres Townhouses Association serves as a stark reminder of this reality. The dispute involved a homeowner who lost a preferred backyard access route when his neighbor built a board-approved wall. This case illustrates a fundamental truth in community living: your personal convenience does not equate to a legal right, and the governing documents—the CC&Rs and By-Laws—are the final word on what you are actually entitled to.

The Dispute: A Tale of Two Properties

The conflict began shortly after David Hopper purchased his townhome in the 14-unit Las Cumbres community in September 2018. During an extensive renovation, Hopper and his contractors utilized what they described as a "shortcut"—a flat pathway used to haul large construction materials and access guest parking. Crucially, this "pathway" was not a common area; it was the neighbor’s private patio.

For months, the neighbor permitted this use by consent. However, in April 2019, the neighbor began construction on an adobe wall designed to mitigate erosion on their private lot. The wall, which had been formally approved by the Association, completely blocked Hopper’s access to the guest parking lot and the side of his home. Having relied on the neighbor's patio as a primary access point, Hopper filed a petition with the Arizona Department of Real Estate to have the wall addressed.

The Homeowner’s Case: Maintenance, Safety, and Value

The Petitioner (Hopper) alleged that the Association violated CC&Rs Article VII (Section 3), Article VIII (Section 4), and By-Laws Article II, Section 1(b) and Section 1(c). Note that a significant procedural hurdle existed: the official Notice of Hearing failed to reference Article VII, Section 3, despite Hopper including it in his initial petition—a common pitfall in administrative litigation.

Hopper’s arguments rested on three main pillars:

Maintenance Obstacles: Hopper claimed the wall prevented essential upkeep, specifically stating a window company could not transport large replacement windows to the back of the property because they would not fit through the home’s interior.
Health and Safety Concerns: Citing By-Laws Article II, Section 1(b), Hopper argued the wall created a safety hazard for his wife, who suffers from a vertigo-like condition. He contended that the steep, rough terrain of the designated common area was impassable for her, leaving them without a flat emergency exit.
Property Value Impact: Invoking By-Laws Article II, Section 1(c), Hopper presented a real estate agent’s opinion that the home’s value would decrease because future buyers would need a disclosure regarding the lack of side-access.

The Association’s Defense: Private Rights vs. Common Areas

The Association maintained that the Board acted within its authority to approve a functional improvement (erosion mitigation) on a private lot. Their defense centered on the fact that the Petitioner was claiming a right to land he did not own.

Petitioner Claims	Respondent Evidence
The wall prevents necessary maintenance (windows).	Evidence showed other townhomes in the community with identical layouts replaced large windows without using the neighbor’s patio.
The Association violated health and safety access.	A designated common area walkway exists behind the home. While steep, it is the community’s legal path for residents to navigate the area.
The wall adversely affects property value/integrity.	The wall was a necessary erosion mitigation project that was unanimously approved and conforms to the community's common design scheme.
The "shortcut" was a long-standing access point.	The area is private property (a patio), not a common area. Use was by neighborly consent, not by right or easement.

The Ruling: Why the Case Was Dismissed

Administrative Law Judge Antara Nath Rivera dismissed the petition, ruling that Hopper failed to meet the "Preponderance of the Evidence" standard. The decision hinged on a vital legal distinction: Consent vs. Right.

The judge found that while the neighbors were "nice enough" to allow Hopper access for a time, that permission constituted a revocable license, not a permanent easement. The court emphasized that the Petitioner was well aware of the property lines, the closeness of the units, and the common scheme of the 1972 development when he purchased the home.

Key findings included:

No Adverse Effect: Under CC&R Art. VIII, Sec. 4, an owner cannot "adversely affect" others. The judge ruled that building a wall on one’s own property at one’s own expense—following Board approval—does not constitute an "adverse effect" on a neighbor's property rights.
Maintenance Precedent: The maintenance argument failed because evidence proved that other residents successfully performed similar repairs without trespassing on neighboring patios.
Document Integrity: The judge ruled that the Association did not violate CC&Rs Art. VII or VIII, nor By-Laws Art. II, Section 1(b) and 1(c).

Key Takeaways for Homeowners and HOAs

This case serves as a masterclass in the principle of Caveat Emptor (Buyer Beware) within planned communities.

Verify Property Lines: Never assume that a convenient path is a legal right. If your ability to maintain your home depends on walking across a neighbor's patio, you are operating on borrowed time.
License is Not an Easement: Neighborly consent (a license) can be revoked at any time. Unless an access right is recorded as an easement in the CC&Rs or a deed, it is not legally enforceable.
The Burden of Proof is High: To win an HOA dispute, you must prove a specific violation of the governing documents. Personal hardship, medical conditions, or a loss of convenience do not empower a judge to override a neighbor’s private property rights.

Pro-Tip: Influence happens at the Board level, not after the concrete is poured. The wall in this case was discussed and unanimously approved at a board meeting on March 26, 2019. Active participation in Board meetings is your only opportunity to object to projects that may impact your "shortcut" before they become permanent fixtures.

Conclusion

The final decision, rendered on December 29, 2019, underscored the finality of the Board's authority and the sanctity of private property lines. While community harmony is the goal of every HOA, that harmony must be built on the foundation of the governing documents. As this case proves, when the "neighborly understanding" ends, the law will always side with the recorded property rights over personal convenience.

Case Participants

Petitioner Side

David W Hopper (Petitioner)
Appeared on his own behalf; owner of the townhome
Myra Hopper (Witness)
Petitioner's wife

Respondent Side

Blake Johnson (HOA attorney)
Appeared on behalf of Las Cumbres Townhouse Association
Robert Sorock (Board President)
Las Cumbres Townhouse Association Board
Testified at hearing
Kathleen Boyle (Board Secretary)
Las Cumbres Townhouse Association Board
Testified at hearing
Nathan Tennyson (attorney)
BROWN/OLCOTT, PLLC
Listed on the mailing distribution list for the law firm representing the Respondent

Neutral Parties

Antara Nath Rivera (ALJ)
Office of Administrative Hearings
Administrative Law Judge who presided over the hearing and signed the decision
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Received electronic transmission of the order

Dennis J Gregory v. Four Seasons at the Manor Homeowners Association

Posted on September 24, 2019 by [email protected]

Case Summary

Case ID	19F-H1919069-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-24
Administrative Law Judge	Antara Nath Rivera
Outcome	The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Dennis J Gregory	Counsel	—
Respondent	Four Seasons at the Manor Homeowners Association	Counsel	Marc Vasquez

Alleged Violations

8.1.7 of CC&Rs; A.R.S. § 33-1803

Outcome Summary

The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.

Why this result: Petitioner failed to establish that Respondent violated governing documents or statute when the Respondent had already resolved the underlying issue by apology and expungement, and no financial penalties were assessed.

Key Issues & Findings

Violation of Governing Documents and Planned Community Statute

Petitioner filed a two-issue petition alleging Respondent violated CC&Rs and A.R.S. § 33-1803 by fraudulently sending a courtesy notice regarding unapproved palm trees and subsequently deceiving Petitioner, despite the underlying tree issue being resolved and expunged.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 32-2199(B)
Title 33, Chapter 16.1
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA dispute, Planned Community Statute, CC&Rs violation, Expungement of record, Mootness

Additional Citations:

A.R.S. § 32-2199(B)
Title 33, Chapter 16.1
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)

Video Overview

Audio Overview

Decision Documents

19F-H1919069-REL Decision – 740332.pdf

Uploaded 2026-04-24T11:21:33 (85.6 KB)

Briefing Document: Gregory v. Four Seasons at the Manor HOA (Case No. 19F-H1919069-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in Case No. 19F-H1919069-REL, concerning a petition filed by homeowner Dennis Gregory against the Four Seasons at the Manor Homeowners Association (HOA). The petition was ultimately denied.

The dispute originated from an incorrect violation notice sent by the HOA on July 13, 2018, regarding palm trees on the Petitioner’s property. The HOA subsequently discovered its error, recognizing the trees were on its “Recommended Plant List.” Consequently, the HOA issued a formal apology to the Petitioner on August 16, 2018, and expunged the violation notice from all records. No fines or penalties were ever imposed.

Despite the resolution, the Petitioner filed a formal dispute petition with the Arizona Department of Real Estate on May 24, 2019. He alleged the initial notice was fraudulent and that an employee of the HOA’s management company had lied and threatened him. The Administrative Law Judge, Antara Nath Rivera, concluded that the Petitioner failed to meet the burden of proof. The Judge determined that the HOA’s prompt corrective actions—issuing an apology, retracting the notice, and imposing no fines—rendered the issue moot.

Case Overview

The hearing addressed a petition filed by Dennis Gregory alleging that the Four Seasons at the Manor Homeowners Association violated its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.

Case Detail

Information

Case Number

19F-H1919069-REL

Petitioner

Dennis J Gregory

Respondent

Four Seasons at the Manor Homeowners Association

Presiding Judge

Antara Nath Rivera, Administrative Law Judge

Hearing Date

September 4, 2019

Decision Date

September 24, 2019

Chronology of Events

• July 13, 2018: The HOA sends a courtesy notice to Dennis Gregory requesting the removal of palm trees, citing a violation of the CC&Rs.

• Post-July 13, 2018: Gregory disputes the violation. Upon review, the HOA discovers the palm trees are on its “Recommended Plant List” and therefore permissible.

• August 16, 2018: The HOA sends Gregory a letter of apology via both email and postal mail, deeming the violation notice invalid.

• May 24, 2019: Gregory files a two-issue Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate.

• June 28, 2019: The HOA files its formal answer to the petition.

• September 4, 2019: An administrative hearing is conducted, with testimony from Gregory and Marc Vasquez, Vice President of the HOA’s management company.

• September 24, 2019: The Administrative Law Judge issues a decision denying the petition.

Petitioner’s Allegations and Testimony

Dennis Gregory filed the petition after the palm tree issue was resolved because he was upset with the HOA’s handling of the matter. His testimony and allegations included:

• Primary Motivation: He believed the HOA “fraudulently sent the courtesy letter.”

• Allegations of Deception:

◦ The HOA lied about the Board members discussing the palm tree issue prior to sending the notice.

◦ Annette McCraw of Trestle Management Group lied to him about speaking with the board.

◦ The HOA deceptively changed the CC&Rs regarding the names of permitted trees.

◦ The HOA failed to disclose the identity of the individual who falsely claimed his palm trees were poisonous.

• Allegations of Misconduct: He stated that Annette McCraw had threatened him with a lawyer.

• Legal Claim: He opined that these actions constituted a violation of the community’s CC&Rs (specifically 8.1.7) and Arizona Revised Statutes § 33-1803.

• Acknowledged Facts: During his testimony, Gregory confirmed that the HOA never imposed any fines and that he received the apology letter issued on August 16, 2018.

Respondent’s Position and Actions

The HOA, represented by Marc Vasquez of Trestle Management Group, maintained that it had taken all necessary steps to rectify its initial error.

• Admission of Error: The Respondent acknowledged that the initial violation notice was sent in error.

• Corrective Measures:

◦ It issued a formal apology letter once the mistake was identified.

◦ The courtesy letter was “removed and expunged” from both the Respondent’s and Petitioner’s records to preserve the Petitioner’s good standing.

◦ Marc Vasquez personally apologized to Gregory at a board meeting.

• No Penalties: The Respondent confirmed that no fines or sanctions were ever imposed on the Petitioner.

• Personnel Status: Vasquez testified that Annette McCraw, the employee accused of misconduct by the Petitioner, was no longer employed by Trestle Management Group.

Administrative Law Judge’s Conclusions and Order

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove his case by a preponderance of the evidence.

Legal Reasoning

1. Burden of Proof: The decision established that the Petitioner bore the burden of proving that the HOA violated its CC&Rs and state statutes. The standard of proof required was a “preponderance of the evidence,” meaning evidence sufficient to convince a trier of fact that a contention is more probably true than not.

2. Failure to Meet Burden: The Judge concluded that the Petitioner failed to meet this standard. This conclusion was based on several key facts established during the hearing:

◦ The Petitioner himself acknowledged that he was never financially penalized.

◦ The Petitioner acknowledged receipt of the HOA’s apology letter.

◦ Evidence showed the palm trees were, in fact, compliant with HOA rules.

◦ The violation notice was officially “removed and expunged” from all records.

3. Mootness of the Issue: The decision states, “the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.” The HOA’s corrective actions effectively nullified the original dispute before it escalated to the point of requiring legal sanctions.

Final Order

“IT IS ORDERED that Petitioners’ petition is denied.”

The decision also included a notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 41-1092.09.

Study Guide: Gregory v. Four Seasons at the Manor HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 19F-H1919069-REL, concerning Dennis J Gregory and the Four Seasons at the Manor Homeowners Association. It includes short-answer questions with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal decision.

Quiz: Short-Answer Questions

Answer the following questions in two to three complete sentences, using only information found in the case decision.

1. Who were the primary parties involved in this administrative hearing, and what were their roles?

2. What was the initial action by the Homeowners Association that triggered the dispute with the Petitioner?

3. What specific violations did the Petitioner, Dennis Gregory, allege in his Homeowners Association Dispute Process Petition?

4. How did the Respondent discover its error regarding the Petitioner’s palm trees?

5. What two specific actions did the Respondent take to rectify its error before the hearing took place?

6. Why did the Petitioner proceed with the hearing even after the Respondent retracted the violation notice and apologized?

7. Who was Annette McCraw, and what specific actions did the Petitioner accuse her of taking?

8. What is the “preponderance of the evidence,” and what was its significance in the judge’s decision?

9. According to the judge’s findings, why was the central issue of the dispute considered moot?

10. What was the final Order issued by the Administrative Law Judge in this case?

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Answer Key

1. The primary parties were Dennis J Gregory, the homeowner, who served as the Petitioner, and the Four Seasons at the Manor Homeowners Association, which was the Respondent. Marc Vasquez, vice president of Trestle Management Group, appeared on behalf of the Respondent.

2. The dispute was triggered when the Respondent, on July 13, 2018, sent the Petitioner a courtesy notice requesting the removal of palm trees from his front yard. The notice claimed the trees were a violation of the association’s CC&Rs.

3. The Petitioner alleged that the Respondent violated section 8.1.7 of its Covenants, Conditions, and Restrictions (CC&Rs) and the Arizona Revised Statute (A.R.S.) § 33-1803.

4. After the Petitioner disputed the violation, the Respondent conducted a further review. Through this review, the Respondent discovered that the palm trees on the Petitioner’s property were actually listed on the “Recommended Plant List” and were therefore acceptable.

5. First, the Respondent issued a courtesy letter to the Petitioner on August 16, 2018, apologizing for the misunderstanding. Second, the Respondent deemed the original violation notice invalid and had it “removed and expunged” from both its own and the Petitioner’s records to preserve his good standing.

6. The Petitioner proceeded with the hearing because he was upset and believed the Respondent had acted fraudulently. He alleged the Respondent lied about discussing the issue with board members, deceptively changed the CC&Rs, and failed to disclose who made the initial complaint.

7. Annette McCraw was an employee of Trestle Management Group, the Respondent’s management company. The Petitioner accused her of lying about speaking with board members regarding the palm tree issue and threatening him with a lawyer.

8. “Preponderance of the evidence” is the standard of proof required, defined as evidence convincing the trier of fact that a contention is more probably true than not. Its significance is that the Petitioner bore this burden of proof and ultimately failed to meet it, leading to the denial of his petition.

9. The issue was considered moot because the Respondent had already issued an apology letter and rescinded the violation notice before the hearing occurred. Since the Petitioner was never fined, the palm trees were deemed acceptable, and the notice was expunged, there was no longer an active controversy for the court to resolve.

10. The final Order, issued on September 24, 2019, was that the Petitioner’s petition is denied. The Order was binding unless a rehearing was requested within 30 days.

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Essay Questions

Construct detailed responses to the following prompts, drawing evidence and arguments exclusively from the provided legal decision.

1. Analyze the concept of a “moot” issue as it applies to this case. How did the Respondent’s actions before the hearing render the Petitioner’s primary complaint moot in the eyes of the law, despite the Petitioner’s ongoing grievances?

2. Discuss the burden of proof in this administrative hearing. Explain the “preponderance of the evidence” standard as defined in the document and detail the specific reasons why the Administrative Law Judge concluded that Dennis Gregory failed to meet this burden.

3. Examine the roles and conduct of the management company, Trestle Management Group, and its employee, Annette McCraw. Based on the testimony presented, what specific actions escalated the conflict even after the initial landscaping error was identified and corrected?

4. Trace the timeline of events from the initial “courtesy notice” of July 13, 2018, to the final Order of September 24, 2019. Identify the key turning points and decisions made by both the Petitioner and the Respondent that influenced the outcome of the case.

5. Although the Petitioner lost the case, he raised several allegations beyond the palm trees, including fraud, deception, and threats. Using only the evidence presented in the decision, construct the argument that Dennis Gregory was attempting to make regarding why these subsequent actions constituted a violation of the planned community statute, even if the original tree issue was resolved.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over the administrative hearing and issues a decision. In this case, the ALJ was Antara Nath Rivera.

Answer

The Respondent’s formal written response to the Petition, filed in this case on June 28, 2019.

A.R.S. (Arizona Revised Statutes)

The collection of laws for the state of Arizona. The decision cites A.R.S. § 33-1803, which authorizes HOAs to enforce CC&Rs, and statutes governing the hearing and rehearing process.

Burden of Proof

The obligation of a party to establish its claims by a required degree of evidence. In this hearing, the Petitioner had the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that establish the rules for a planned community. The Petitioner alleged a violation of section 8.1.7 of the Respondent’s CC&Rs.

Department

The Arizona Department of Real Estate, the state agency with which the Petition was filed and which has jurisdiction over such disputes.

Homeowners Association Dispute Process Petition (Petition)

The formal document filed by a homeowner to initiate a hearing with the Department concerning alleged violations by their homeowners association.

A legal term for a situation where the underlying issue has been resolved, making any ruling on the matter unnecessary. The judge found the case moot because the Respondent had already issued an apology and rescinded the violation notice.

The final and binding decision issued by the Administrative Law Judge. In this case, the Order was to deny the Petitioner’s petition.

Petitioner

The party who initiates a legal action or hearing. In this case, the Petitioner was homeowner Dennis J Gregory.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed and who is required to respond. In this case, the Respondent was the Four Seasons at the Manor Homeowners Association.

Trestle Management Group, LLC

The management company employed by the Respondent HOA to handle its operations.

An HOA Admitted It Was Wrong. The Homeowner Sued Anyway—And Lost. Here Are the Surprising Reasons Why.

Introduction: The Familiar Dread of an HOA Letter

For many homeowners, few things cause a spike of anxiety quite like a formal notice from their Homeowners Association (HOA). That crisp envelope often contains a violation notice, sparking a frustrating process of proving compliance or making unwanted changes. But what happens when you prove the HOA was completely wrong, they admit their mistake, and issue a full apology? For most, that’s the end of the story—a clear victory.

This, however, is the story of a homeowner who achieved that victory and then decided to take the HOA to a formal hearing anyway. He had been proven right, the violation was erased, and no fines were ever issued. Yet, he pursued the case and ultimately lost.

How could someone who was proven right end up losing their case? The answer reveals a critical distinction between winning an argument and winning in a court of law.

1. You Can Win the Argument, But Still Lose the Case

The initial dispute was straightforward. The homeowner, Dennis Gregory, received a courtesy notice from his HOA requesting the removal of palm trees from his front yard, which were alleged to be in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Mr. Gregory disputed the violation. In response, the HOA conducted a further review and made a critical discovery: the palm trees on the property were, in fact, listed on the HOA’s own “Recommended Plant List” and were perfectly acceptable. The HOA had made a mistake. Here, however, the story takes a surprising turn. Mr. Gregory filed his formal petition for a hearing after the HOA had already admitted its error, apologized, and confirmed the issue was resolved.

This sequence of events is the crucial detail of the case. The legal dispute wasn’t about the palm trees—that argument was already won. The case was about the actions taken after the HOA’s error was acknowledged and corrected.

2. A Proactive Apology Can Be a Powerful Legal Shield

Once the HOA realized its mistake, it took several decisive steps to remedy the situation. According to the Administrative Law Judge’s findings, the HOA and its management company:

• Sent a formal apology letter to the homeowner.

• Confirmed the original courtesy notice was “deemed invalid.”

• “Removed and expunged” the violation from the homeowner’s records to preserve his good standing.

• Never issued any fines or financial penalties.

• Took action regarding personnel, as the employee who the homeowner accused of making threats was no longer with the management company by the time of the hearing.

These corrective actions had a profound legal impact. The judge found that because the HOA had already reversed its initial notice, apologized, cleared the homeowner’s record, and addressed the personnel issue, there was no longer an active dispute to rule on. The issue was considered “moot.”

This conclusion was emphasized in the judge’s final decision:

Furthermore, the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.

3. The Law Requires Proof, Not Just Principle

The homeowner’s petition wasn’t just about the palm trees. He testified that he proceeded with the case because he felt he had been wronged by an HOA management employee during the dispute. His petition alleged the HOA had “fraudulently sent the courtesy letter,” lied about discussing the issue with board members, and even “threatened him with a lawyer.” He wasn’t just seeking to correct the record on his landscaping; he was fighting on a matter of principle.

To win his case, however, the homeowner had to meet a specific legal standard: proving his claims by “a preponderance of the evidence.” In simple terms, this means showing that his version of events was more likely to be true than not.

Ultimately, the judge concluded that the homeowner “failed to establish, by a preponderance of the evidence, that Respondent violated the CC&Rs.” This outcome highlights a crucial legal reality: tangible, documented evidence—such as a formal apology letter and an expunged record—often carries more evidentiary weight than a homeowner’s testimony about verbal statements, which can be viewed as a ‘he said, she said’ dispute without additional proof. While the homeowner may have genuinely felt wronged, his feelings could not overcome the HOA’s documented resolution.

Conclusion: A Cautionary Tale for Homeowners and HOAs

The outcome of this dispute offers a powerful lesson for both homeowners and association boards. It demonstrates three core takeaways: a dispute isn’t over until it’s legally resolved, a swift and comprehensive apology can be an effective legal defense, and a deeply felt principle must still be backed by sufficient evidence to prevail in a formal hearing.

This case serves as a fascinating reminder of the complexities of community disputes, leaving us with a final question: At what point does the fight for principle risk overshadowing a practical victory?

Case Participants

Petitioner Side

Dennis J Gregory (petitioner)
Appeared and testified on own behalf

Respondent Side

Marc Vasquez (attorney)
Trestle Management Group
Appeared for Respondent; testified as vice president of Trestle
Annette McCraw (property manager)
Trestle Management Group, LLC
Issued letter on behalf of Respondent; no longer with Trestle
James A. Baska (management representative)
Trestle Management Group
Recipient of decision transmission

Neutral Parties

Antara Nath Rivera (ALJ)
Office of Administrative Hearings
Judy Lowe (commissioner)
Arizona Department of Real Estate
Addressed in transmission of decision

Sellers, John A. v. Rancho Madera Condominium Association

Posted on August 26, 2019 by [email protected]

Case Summary

Case ID	19F-H1919066-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-08-26
Administrative Law Judge	Antara Nath Rivera
Outcome	The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John A Sellers	Counsel	—
Respondent	Rancho Madera Condominium Association	Counsel	Edward D. O'Brien

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.

Why this result: Petitioner failed to establish that the requested documents existed or were improperly withheld. The Respondent successfully demonstrated that it had provided all non-privileged records in its possession and that specific meeting minutes and emails did not exist.

Key Issues & Findings

Failure to Provide Records

Petitioner alleged the Association failed to provide records requested on April 29, 2019, specifically emails regarding specific individuals, legal invoices, executive session minutes, and communications regarding a petition signing.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1258
A.R.S. § 33-1248

Video Overview

Audio Overview

Decision Documents

19F-H1919066-REL Decision – 733561.pdf

Uploaded 2026-04-24T11:21:15 (99.9 KB)

Administrative Law Judge Decision: Sellers v. Rancho Madera Condominium Association

Executive Summary

This briefing document summarizes the administrative law judge (ALJ) decision regarding a dispute between John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The case, presided over by ALJ Antara Nath Rivera, centered on allegations that the Association violated Arizona Revised Statutes (A.R.S.) § 33-1258 by failing to provide requested records in a timely and complete manner.

The Petitioner submitted a consolidated records request on April 29, 2019, seeking legal invoices, communications with specific third parties, executive session minutes, and records regarding a member petition. Following a hearing on August 5, 2019, the ALJ determined that the Petitioner failed to prove the Association withheld existing, non-exempt documents. Consequently, the Petition was dismissed on August 26, 2019.

Analysis of Key Themes

1. Statutory Obligations for Record Disclosure

Under A.R.S. § 33-1258, condominium associations are mandated to make financial and other records "reasonably available for examination" to members within ten business days of a written request. However, the statute provides specific exceptions where an association may withhold records, including:

Privileged Communications: Correspondence between the association and its attorney.
Pending Litigation: Documents specifically relating to active legal matters.
Executive Sessions: Meeting minutes or records of board sessions not required to be open to all members under A.R.S. § 33-1248.

The Respondent successfully argued that they had adhered to these standards by providing redacted documents where the information fell under attorney-client privilege or executive session exemptions.

2. The Burden of Proof and Evidence of Existence

A central theme of the decision is the Petitioner’s burden to prove by a "preponderance of the evidence" that a violation occurred. In administrative proceedings, this means the Petitioner must show that the facts sought to be proved are "more probable than not."

The ALJ found that the Petitioner failed to meet this burden regarding items for which the Association claimed no records existed. Specifically:

Item #1 (Third-party communications): The Petitioner believed these emails existed to prove communications about him, but the Association testified they were not in their possession.
Item #4 (Meeting records for a notarized petition): The Petitioner opined that 21 signatures could not have been collected without a meeting. The Association clarified that no such meetings occurred; rather, individual residents took actions regarding the Petitioner’s divorce proceedings independently.

3. Transparency vs. Legal Redaction

The Association sought to demonstrate a high degree of transparency to counter the Petitioner's claims. Evidence presented by Association President Jeff Kaplan indicated that:

The Association received over 400 emails from the Petitioner in three years, approximately 100 of which were records requests.
The Association provided documents beyond those requested to facilitate transparency.
Financial and bank records were kept accessible to all residents via the Association’s website.

The ALJ accepted that the Association’s use of redactions for legal invoices and executive session minutes was a lawful application of the exceptions provided in A.R.S. § 33-1258(B).

Key Petitioner Requests and Court Findings

Request Item	Description	Association Response	ALJ Conclusion
Item #1	Communications between the HOA/Agents and ROI/Mrs. Sellers.	Records do not exist/not in Association's possession.	Petitioner failed to prove documents existed at the time of request.
Item #2	Unredacted legal invoices for the current Petition.	Provided redacted versions citing attorney-client privilege.	Petitioner acknowledged compliance after receiving documents.
Item #3	Records/minutes for all Executive Sessions since the Petition filing.	Provided redacted minutes; cited A.R.S. § 33-1248 exemptions.	Petitioner did not dispute that records were exempt under the statute.
Item #4	Records regarding meetings held to sign a petition against the Petitioner.	No such meetings occurred; signatures were individual actions.	Petitioner failed to prove documents existed.

Important Quotes

Regarding the Records Request

"Please consider this email as one consolidated renewed records request… for the following: 1. Copies of all records and communications… with and between ROI, Mrs D Sellers, and or any of their Agents since Nov 1 2018."

Context: Petitioner John Sellers’ formal email to Association President Jeff Kaplan on April 29, 2019, which formed the basis of the dispute.

Regarding Statutory Exceptions

"Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association [and] Pending litigation."

Context: A citation of A.R.S. § 33-1258(B), used by the ALJ to define the legal boundaries of what an Association is permitted to keep confidential.

Regarding the Final Ruling

"Petitioner failed to establish by a preponderance of the evidence that these documents existed at the time of the April 29, 2019 request such that Respondent’s failure to provide the documents was a violation of A.R.S. § 33-1258."

Context: The ALJ’s legal justification for dismissing the Petition regarding items for which no physical records could be produced.

Actionable Insights

Verification of Record Existence: For members filing records requests, the belief that a document "should" exist is insufficient for a legal victory; there must be evidence that the record actually exists or was required to be maintained.
Understanding Redactions: Association members should be aware that "unredacted" requests for legal invoices are frequently denied based on attorney-client privilege and pending litigation exceptions established in state law.
Association Compliance Strategies: To defend against claims of non-compliance, associations should maintain a clear paper trail of all documents provided and ensure that all residents have standing access to basic financial records (e.g., via a community website).
Standard of Evidence: Parties in administrative hearings must prepare to meet the "preponderance of the evidence" standard. Mere opinion or speculation—such as the Petitioner’s opining that a meeting "must have happened" to collect signatures—is typically dismissed if countered by testimony of non-existence.

Case Analysis: Sellers v. Rancho Madera Condominium Association

This study guide examines the administrative law proceedings regarding a dispute between a condominium unit owner and a homeowners association (HOA). It focuses on the statutory requirements for records disclosure, the legal exceptions to such requests, and the burden of proof required in administrative hearings.

Key Legal Concepts and Statutory Framework

Arizona Revised Statutes (A.R.S.) § 33-1258: Records Disclosure

This statute governs the availability of association records to its members. The core requirements include:

Reasonable Availability: All financial and other records must be made available for examination by a member or their designated representative.
Timeline: The association has ten business days to fulfill a request for examination or provide copies of records.
Cost: Associations may not charge for the review of materials but may charge up to fifteen cents per page for copies.

Statutory Exceptions to Disclosure

Under A.R.S. § 33-1258(B), an association may withhold books and records if the portion relates to:

Attorney-Client Privilege: Communications between the association and its legal counsel.
Pending Litigation: Records specifically related to ongoing legal disputes.
Executive Session Minutes: Records of board meetings not required to be open to all members pursuant to A.R.S. § 33-1248.

Burden of Proof

In administrative hearings regarding HOA disputes (A.R.S. § 41-2198.01), the Petitioner bears the burden of proof. They must establish a violation by a preponderance of the evidence, meaning the evidence shows that the alleged fact is more probable than not.

Summary of the Dispute: Case No. 19F-H1919066-REL

The Petitioner, John A. Sellers, filed a petition against the Respondent, Rancho Madera Condominium Association, alleging a violation of A.R.S. § 33-1258 for failure to provide records requested on April 29, 2019.

The Four Record Requests

Item #	Petitioner's Request	Respondent's Position / ALJ Finding
1	Records/emails between Association agents and ROI, Mrs. D. Sellers, or their agents since Nov 2018.	Records do not exist; Petitioner failed to prove existence.
2	Unredacted legal invoices for the current Petition, including those paid by insurance.	Redacted versions provided; unredacted versions are protected by attorney-client privilege.
3	Notices, emails, and minutes for Executive Sessions since the AZDRE Petition was filed.	Redacted minutes provided; records are exempt under A.R.S. § 33-1248/33-1258(B).
4	Communications/notices regarding member meetings held to sign a notarized petition against the Petitioner.	No such meetings occurred; signatures were gathered by residents independently. Records do not exist.

Short-Answer Practice Questions

According to A.R.S. § 33-1258, how many business days does an association have to fulfill a request for records?

Answer: Ten business days.

What is the maximum fee per page an association can charge for making copies of records?

Answer: Fifteen cents ($0.15) per page.

Under what legal theory did the Respondent justify redacting legal invoices in Item #2?

Answer: Attorney-client privilege and the "pending litigation" exception.

Who bears the burden of proof in an HOA dispute process petition before the Arizona Department of Real Estate?

Answer: The Petitioner.

Why was the Petitioner's request for records of meetings on April 6 and April 8, 2019 (Item #4) denied?

Answer: The Respondent testified that no such meetings occurred, and therefore no minutes or records existed.

What does "preponderance of the evidence" mean in the context of this hearing?

Answer: Evidence that is of greater weight or more convincing than the opposition, showing a fact is more probable than not.

Is an association required to provide unredacted minutes of an Executive Session of the Board?

Answer: No; under A.R.S. § 33-1258(B)(3), these are exempt from disclosure if the session is not required to be open under A.R.S. § 33-1248.

Essay Prompts for Deeper Exploration

Statutory Boundaries of Transparency: Analyze the balance between a member’s right to transparency and an association’s right to privileged communication. Use the ALJ’s ruling on Item #2 and Item #3 to support your argument regarding why certain records remain protected even when a member claims there is "no litigation exception."
The "Non-Existent Document" Defense: In this case, several requests were dismissed because the Respondent claimed the documents did not exist. Discuss the Petitioner’s responsibility in proving the existence of documents versus the Respondent's duty to provide them. How does the ALJ’s ruling on Item #5 clarify the relevance of "record retention policies" in a disclosure dispute?
The Role of Administrative Jurisdiction: Explain the jurisdictional roles of the Arizona Department of Real Estate and the Office of Administrative Hearings in HOA disputes as outlined in A.R.S. § 41-2198.01. Why is this administrative process used instead of a standard civil court for these specific disputes?

Glossary of Important Terms

Administrative Law Judge (ALJ): An official who presides over an administrative hearing, hears evidence, and issues a decision or order.
A.R.S. § 33-1248: The Arizona statute governing open meeting requirements for condominium associations.
Attorney-Client Privilege: A legal principle that keeps communications between an attorney and their client confidential and protected from disclosure.
Executive Session: A portion of a board meeting that is closed to the general membership, typically used to discuss legal, personnel, or sensitive matters.
Notice of Hearing: A formal document issued to notify parties of the date, time, and location of a legal proceeding.
Petitioner: The party who initiates a lawsuit or petition; in this case, John A. Sellers.
Preponderance of the Evidence: The standard of proof in most civil and administrative cases, requiring that a claim be more likely true than not.
Respondent: The party against whom a petition is filed; in this case, Rancho Madera Condominium Association.
Statutory Exception: A specific condition or circumstance defined in law that exempts a party from a general legal requirement.

HOA Transparency vs. Legal Privacy: Lessons from Sellers v. Rancho Madera Condominium Association

1. Introduction: The Conflict Over Information

In the governed ecosystem of Arizona condominiums, the "right to know" is a frequent flashpoint between unit owners and their associations. While transparency is the bedrock of community trust, it often collides with an association’s statutory right to protect privileged legal strategies and executive deliberations. This tension is not merely academic; it frequently results in high-stakes administrative litigation.

The case of John A. Sellers vs. Rancho Madera Condominium Association (No. 19F-H1919066-REL) provides a masterclass in how these disputes are adjudicated. Decided by the Arizona Department of Real Estate (ADRE) in 2019, the ruling clarifies the boundaries of Arizona Revised Statute § 33-1258, illustrating exactly what records an association must produce—and where the law allows them to shut the door.

2. The Paper Trail: 400 Emails and a Consolidated Request

The dispute reached a boiling point when Petitioner John Sellers, joined by Margaret SwanTKO, issued a "consolidated renewed records request" on April 29, 2019. Alleging that previous requests had been ignored, Sellers demanded four specific categories of documentation under A.R.S. § 33-1258:

Third-Party Communications: All records and communications—including emails and conference call notes—between the Association, its agents, and legal counsel (Carpenter Hazelwood) regarding ROI and Mrs. D. Sellers since November 1, 2018.
Unredacted Legal Invoices: Complete, unredacted invoices related to the ADRE petition, with Sellers arguing that no litigation exception applied to these financial records.
Executive Session Records: All notices, emails, and minutes for every Executive Session of the Board since the filing of the petition, specifically including the meeting where counsel was retained.
The "Vendetta" Petition Records: All communications and notices regarding member meetings held to sign a notarized petition—a document that allegedly characterized Sellers as having a "vendetta."

3. The Association’s Defense: "Above and Beyond" Compliance

Represented by Board President Jeff Kaplan, the Rancho Madera Condominium Association countered that it was not the Association being opaque, but rather the Petitioner being overzealous. Kaplan testified to a staggering administrative burden: the Association had received over 400 emails from Sellers in the three years preceding the hearing, approximately 100 of which were formal records requests.

Kaplan argued that the Association had acted with extreme transparency, even going "above and beyond" by providing documents Sellers hadn't specifically requested. To further prove their commitment to disclosure, the Association maintained financial and bank records on a community website accessible to all residents at any time.

4. Legal Analysis: Understanding A.R.S. § 33-1258

The resolution of these disputes hinges on A.R.S. § 33-1258, which serves as the definitive guide for HOA record disclosure in Arizona. The statute establishes a clear "General Rule" for transparency while carving out narrow "Statutory Exceptions" to protect sensitive information.

HOA Records: Disclosure vs. Exclusion

General Rule (A.R.S. § 33-1258(A))	Statutory Exceptions (A.R.S. § 33-1258(B))
Availability: All financial and other records must be made available within ten business days of a written request.	Attorney-Client Privilege: Privileged communications between the association and its legal counsel are exempt.
Access: Records must be open for examination by a member or their designated representative.	Pending Litigation: Records specifically related to active or pending legal matters may be withheld.
Costs: Associations may charge up to $0.15 per page for copies but cannot charge for the time spent reviewing the materials.	Executive Sessions: Meeting minutes or records for board sessions not required to be open under A.R.S. § 33-1248 (e.g., personnel or legal matters).

5. The Judge’s Ruling: The Limits of Discovery

Administrative Law Judge Antara Nath Rivera dismissed the petition on August 26, 2019, after applying the "Preponderance of the Evidence" standard. This required the Petitioner to prove it was "more probable than not" that a violation occurred. The ruling turned on several key findings:

Items #1 and #4 (The Existence of Records): Sellers "strongly believed" emails and meeting minutes regarding a "vendetta petition" existed. However, Kaplan testified that no such meetings occurred on the dates Sellers alleged (April 6 or 8, 2019). The Judge ruled that Sellers failed to prove the records existed. Under the law, an association cannot be penalized for failing to produce non-existent documents.
Item #2 (The Admission of Satisfaction): While Sellers originally demanded unredacted legal invoices, he admitted during the hearing that he was satisfied with the redacted versions eventually provided. This admission effectively neutralized the claim.
Item #3 (Executive Sessions): The Association provided redacted minutes of executive sessions. Sellers did not dispute that these records fell under the statutory exceptions of A.R.S. § 33-1258(B).
The "Human Interest" Context: The testimony revealed that the "notarized petition" Sellers sought records for was actually an effort by neighbors who were unhappy with him. These residents had even attended Sellers’ divorce proceedings to influence the court against awarding him the house, as they no longer wished to have him as a neighbor.

6. Key Takeaways for HOA Members and Boards

The Sellers decision offers three critical lessons for community association stakeholders:

The Burden of Proof is on the Requester: It is not enough to suspect that an association is hiding documents. To prove a violation, a member must provide evidence that the records actually exist. Furthermore, a "record retention policy" does not change the outcome; if a record is not in the association's possession at the time of the request, there is no violation of § 33-1258.
Privilege and Redaction are Standard: While members have a right to see legal invoices, they do not have a right to see the legal strategy contained within them. Redacting privileged information regarding current litigation is the legally accepted middle ground.
Statutory Exceptions are Absolute: The protections for attorney-client privilege and executive sessions under A.R.S. § 33-1258(B) and § 33-1248 are robust. Boards that maintain organized records and apply these exceptions consistently are well-positioned to defeat "fishing expedition" style petitions.

7. Conclusion: Balancing Rights and Regulations

The dismissal of John Sellers' petition underscores a fundamental reality of community association law: the right to information is not an absolute right to every scrap of paper. By providing bank records via a website and complying with redacted requests, the Rancho Madera Condominium Association demonstrated the "above and beyond" transparency that judges look for.

For associations, the lesson is to remain organized and responsive. For members, the lesson is to understand that the law protects the board's ability to consult with counsel and deliberate in private. Without this balance, the administrative burden of endless requests can quickly overshadow the actual management of the community.

Case Participants

Petitioner Side

John A. Sellers (petitioner)
Appeared on his own behalf; member of the Association
Margaret SwanTKO (member)
Listed in consolidated records request with John Sellers

Respondent Side

Jeff Kaplan (board president)
Rancho Madera Condominium Association
Testified on behalf of Respondent
Ed O’Brien (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP
Appeared on behalf of Respondent
Edith I. Rudder (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP
Listed on distribution list

Neutral Parties

Antara Nath Rivera (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (commissioner)
Arizona Department of Real Estate
Listed on distribution list

Other Participants

Mrs. D. Sellers (unknown)
Mentioned in records request regarding communications