Wesley T Chadwick v. Entrada Mountainside Homeowners Association

Posted on June 14, 2022 by [email protected]

Case Summary

Case ID	22F-H2221022-REL
Agency	—
Tribunal	—
Decision Date	2022-06-14
Administrative Law Judge	JC
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Wesley T Chadwick	Counsel	Pro se / Appeared on his own behalf
Respondent	Entrada Mountainside Homeowners Association	Counsel	Nick Eicher, Esq., Eadie Rudder, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2221022-REL Decision – 946305.pdf

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22F-H2221022-REL Decision – 950368.pdf

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22F-H2221022-REL Decision – 957992.pdf

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22F-H2221022-REL Decision – 958039.pdf

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22F-H2221022-REL Decision – 960467.pdf

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22F-H2221022-REL Decision – 977411.pdf

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22F-H2221022-REL Decision – 946305.pdf

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22F-H2221022-REL Decision – 950368.pdf

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22F-H2221022-REL Decision – 957992.pdf

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22F-H2221022-REL Decision – 958039.pdf

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22F-H2221022-REL Decision – 960467.pdf

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22F-H2221022-REL Decision – 977411.pdf

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Legal Analysis and Case Briefing: Wesley T. Chadwick vs. Entrada Mountainside Homeowners Association (No. 22F-H2221022-REL)

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and subsequent decision regarding the dispute between homeowner Wesley T. Chadwick (Petitioner) and the Entrada Mountainside Homeowners Association (Respondent/Association). The case centered on six violation notices issued between January and June 2021 regarding landscaping maintenance.

The Petitioner alleged that the Association exceeded its authority, issued vague and arbitrary notices, and failed to follow the procedural requirements outlined in the community's Covenants, Conditions, and Restrictions (CC&Rs). The Association contended it acted within its broad discretion to maintain community aesthetics and that the Petitioner failed to achieve full compliance.

On June 14, 2022, Administrative Law Judge (ALJ) Jenna Clark issued a decision granting the petition in part. The ALJ found that the Association violated CC&R Article 10.9 by failing to provide specific steps to cure violations and by citing incorrect sections of the CC&Rs. Consequently, the Association was ordered to pay a $500 pro-rata portion of the filing fee to the Petitioner.

Detailed Analysis of Key Themes

1. Specificity and the "Person of Ordinary Prudence"

A central theme of the dispute was the lack of clarity in the Association’s violation notices. The Association frequently used broad directives such as "PLEASE REMOVE WEEDS" or "fix rock area." The ALJ determined that these instructions were "vague, overbroad, and nondescript." The ruling emphasized that a "person of ordinary prudence" would not necessarily understand that "fix rock area" specifically required covering irrigation lines or removing a particular plant that the manager deemed a vine.

2. Misapplication of Governing Documents

The analysis revealed a significant technical error in the Association’s enforcement process. All six violation letters cited Article 4.5, which the ALJ found pertains exclusively to "Construction Activities." The correct section for landscaping maintenance was Article 4.4. The ALJ concluded that issuing notices under the incorrect article failed to provide the Petitioner with proper legal notice of the violations.

3. The "Moving Goalposts" of Compliance

The Petitioner argued that the Association engaged in a pattern of "moving the goalposts." After reaching a settlement in March 2021 to pay a fine and resolve the initial weed issues, the Petitioner received a fourth notice (dated prior to the settlement) introducing the new "fix rock area" requirement. The Petitioner contended that this new issue was treated as a continuation of previous violations (carrying a $100 fine) rather than a new issue requiring a fresh warning, effectively depriving him of the opportunity to cure without penalty.

4. Subjective vs. Objective Enforcement

Testimony from the Community Manager, Danielle Miglio, highlighted the subjective nature of the Association's inspections. Miglio performed unannounced drive-throughs twice monthly from a vehicle. She admitted she did not measure how much irrigation line was exposed, stating only that if she could see a "black line" from the street with no plant attached, it constituted a violation. The Petitioner countered this by providing photographic evidence (Exhibit 15) of exposed irrigation lines at the residence of the Board Vice President, who testified she had never received a violation notice for such an issue.

Chronology of Violation Notices (2021)

Date	Notice Level	Stated Violation	Outcome/Action
Jan 21	Property Inspection	Remove Weeds	Petitioner hired contractors to remove dead cacti and weeds.
Feb 09	Second Notice	Remove Weeds	$50 fine assessed.
Feb 25	Third Notice	Remove Weeds	$100 fine assessed.
Mar 15	Fourth Notice	Remove Weeds, "fix rock area"	$100 fine; first mention of "rock area."
Mar 30	Fifth Notice	Remove Weeds, "fix rock area"	$100 fine; OPM later provided circled photos of concern.
Jun 16	Sixth Notice	Remove Weeds	$100 fine; related to a specific plant the HOA called a "vine."

Important Quotes with Context

On Notice Specificity

ALJ Jenna Clark: "The Association’s directive to 'PLEASE REMOVE WEEDS' or 'fix rock area' would not indicate to a person of ordinary prudence… to cover up exposed irrigation lines, remove a plant believed to be a vine, fill in holes, and/or make the lawn generally tidy and pleasing to the eye." * Context: Found in the Conclusions of Law, this explains why the ALJ ruled the Association violated the notice requirements of the CC&Rs.

On the Nature of Inspections

Danielle Miglio (Manager): "I stay in my vehicle… This is private property. It's trespassing… if I can see it from my vehicle, which is in the middle of the street, and I can see the black line… that is typically when I would say I'm going to give them a violation." * Context: Testimony explaining how OPM determines what constitutes an "unsightly" condition or "debris."

On Compliance Frustrations

Wesley T. Chadwick (Petitioner): "We feel that because of the lack of specificity of the notices, the lack of communication, exceeding the authority and arbitrarily forcing it… the gold posts were constantly being moved." * Context: From the Petitioner's closing argument, summarizing the claim that the HOA made it impossible to achieve full compliance.

On Board Policy

Cynthia Ecker (Board VP): "Typically the first thing [we] do is we'll ask property manager if there's been a waving of fines in the past. Like I said, it's a onetime courtesy." * Context: Explaining the Board's deliberation process for fine waiver requests.

Actionable Insights

For Homeowners' Associations (HOAs)

Precision in Documentation: Violation notices must include "specific steps" to cure. Using vague terms like "fix rock area" is insufficient. Providing circled photographs at the first notice rather than after several fines can prevent legal challenges.
CC&R Fidelity: Ensure enforcement letters cite the exact article and section relevant to the violation. Citing a "Construction" article for a "Landscaping" issue can render the notice moot in an administrative hearing.
Consistent Enforcement: Evidence of "arbitrary enforcement"—where board members have similar issues on their property but face no violations—weakens the Association's standing.
Settlement Transparency: When reaching a settlement for past fines, the Association should clearly disclose if there are pending notices currently in the mail to avoid "bad faith" allegations.

For Homeowners

Utilize Appeal Rights: The Petitioner's failure to appeal the early notices (Letters 1-3) was noted by the ALJ, though it did not ultimately defeat his claim regarding the later letters.
Document Remediation: Keeping receipts (e.g., the Petitioner’s $350 cactus removal and $100 weeding receipts) provides essential evidence of "good faith" attempts to comply.
Request Specificity: If a notice is vague, homeowners should immediately request written clarification or a meeting before fines escalate.
Comparative Evidence: Identifying similar conditions on other properties within the association can support a claim of arbitrary or capricious enforcement.

Final Decision Order

The Administrative Law Judge ordered the following:

Partial Grant: The petition was granted regarding the violation of Article 10.9 (Notice of Violation).
Partial Denial: The petition was denied regarding violations of Article 4.5, 10.1, and 10.10.
Restitution: The Association was ordered to pay $500.00 to the Petitioner within 30 days of the order (June 14, 2022).

Study Guide: Chadwick vs. Entrada Mountainside Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing case Wesley T. Chadwick vs. Entrada Mountainside Homeowners Association (No. 22F-H2221022-REL). It synthesizes the procedural history, core legal arguments, and the final judicial determination regarding the enforcement of community Covenants, Conditions, and Restrictions (CC&Rs).

I. Key Concepts and Case Overview

The Parties

Petitioner: Wesley T. Chadwick, a homeowner in the Entrada Mountainside subdivision since November 2016.
Respondent: Entrada Mountainside Homeowners Association (the Association), governed by a Board of Directors and managed by Oasis Community Management (OPM).

Core Legal Framework: The CC&Rs

The dispute centered on the interpretation and application of specific articles within the Association’s recorded CC&Rs:

Article 4.4 (Maintenance of Landscaping): Requires owners to keep lots "neatly trimmed, cultivated and free from trash, weeds and unsightly material."
Article 4.5 (Nuisances): Prohibits weeds, dead trees, rubbish, or debris that render a property "unsanitary, unsightly, offensive, or detrimental." The judge later determined this article specifically pertained to construction activities.
Article 10.1 (Enforcement): Grants the Association the right to enforce project documents.
Article 10.9 (Notice of Violation): Requires the Association to provide a brief description of the nature of the violation and a "statement of the specific steps" required to cure it.
Article 10.10 (Laws and Regulations): Declares that violations of state or local laws are also violations of the CC&Rs.

The Procedural Timeline (2021-2022)

January – February 2021: Petitioner receives three violation notices for weeds and dead plants. Petitioner pays $450 to remove cacti and weeds.
March 2021: Petitioner reaches a settlement with OPM to waive a $100 fine if compliant for 90 days. However, a fourth notice is issued citing a new issue: "fix rock area."
April – June 2021: Petitioner receives fifth and sixth notices. Issues include exposed irrigation lines and a plant OPM identifies as a "vine/weed."
September 2021: The Association Board denies Petitioner’s appeal in executive session.
October 2021: Petitioner files a petition with the Arizona Department of Real Estate (ADRE).
May 25, 2022: A formal administrative hearing is held.
June 14, 2022: Administrative Law Judge (ALJ) Jenna Clark issues the final decision.

II. Short-Answer Practice Questions

1. What specific phrase did the Association include in the fourth and fifth notices that was not present in the first three?

Answer: "Fix rock area."

2. According to the testimony of Danielle Miglio (OPM Manager), what did "fix rock area" specifically require the Petitioner to do?

Answer: It required the Petitioner to cover exposed irrigation lines with granite and fill in the holes left by the removal of dead cacti.

3. Why did the Petitioner argue that the fourth violation notice was issued in "bad faith"?

Answer: Because the fourth notice (dated March 15) was issued just three days before the Petitioner reached a settlement agreement (March 18) with the Association, which he believed resolved all outstanding issues.

4. What was the "secret third option" proposed by the ALJ regarding the Petitioner's subpoena for documents on the day of the hearing?

Answer: The Petitioner could choose to move forward with the case immediately and then continue the matter to a later date only if the substance of the missing documents became necessary during testimony.

5. On what grounds did the ALJ rule that the Association violated Article 10.9?

Answer: The Association failed to provide "specific steps" to cure the violations. Directives like "PLEASE REMOVE WEEDS" or "fix rock area" were deemed too vague to inform a person of ordinary prudence that they needed to cover irrigation lines or remove a specific plant.

6. What was the judge's finding regarding the Association's use of Article 4.5 in the violation letters?

Answer: The judge found Article 4.5 inapplicable because it pertains solely to construction activities. The Association should have cited Article 4.4.

III. Essay Prompts for Deeper Exploration

The Requirement of Specificity in Administrative Notice:

Analyze the conflict between the Association’s use of broad "boilerplate" language in violation notices and the requirements of Article 10.9. How does the failure to provide specific curative steps (e.g., "cover irrigation lines" vs. "fix rock area") impact a homeowner's right to due process and their ability to reach compliance?

Arbitrary and Capricious Enforcement:

During the hearing, Board Vice President Cynthia Ecker admitted she had exposed irrigation lines on her property but had never received a violation. Discuss the legal implications of this testimony in the context of the Petitioner’s claim of "arbitrary and capricious" enforcement. Why did the judge ultimately conclude the Petitioner did not sustain the burden of proof for this specific allegation (Article 10.10) despite this testimony?

The Role of Settlement and Good Faith:

The Petitioner believed a "settlement" had been reached on March 18, 2021. Evaluate the Association's actions in issuing a fourth notice dated March 15 without mentioning it during the settlement negotiations. Discuss whether the Association’s behavior aligns with the "maintenance of harmony" typically intended by community governing documents.

IV. Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A judge who trie cases and makes determinations for administrative agencies (in this case, the Office of Administrative Hearings).
CC&Rs	Covenants, Conditions, and Restrictions; the governing legal documents that dictate the rules for a planned community.
Continuance	A postponement of a hearing or trial to a later date.
Exigency	An urgent need or demand; used in the text to describe the only condition under which further continuances would be granted.
Minute Entry	A brief record of the proceedings of a court or the steps taken in a case.
Petitioner	The party who presents a petition to a court or tribal (Wesley T. Chadwick).
Prima Facie	Based on the first impression; accepted as correct until proved otherwise.
Respondent	The party against whom a petition is filed (Entrada Mountainside HOA).
Soft Costs	Costs mentioned by the Board (e.g., administrative fees) that the Association often waives as a "one-time courtesy" if a homeowner reaches compliance.
Subpoena Duces Tecum	A court order requiring a witness to bring specific documents or evidence to a court or hearing.
Tribunal	A court of justice or an administrative body with the authority to adjudicate disputes.
Vacate	To cancel or render a previous legal proceeding or hearing void.

HOA Disputes: Lessons in Specificity and Fairness from Chadwick vs. Entrada Mountainside

1. Introduction: The Battle for the Front Yard

For many homeowners, few experiences are as universally frustrating as receiving a vague violation notice from their Homeowners Association (HOA). What begins as a simple directive to "remove weeds" can rapidly deteriorate into a cycle of escalating fines and administrative litigation. In the case of Wesley T. Chadwick vs. Entrada Mountainside Homeowners Association, a standard landscaping dispute became a crucial legal test: exactly how specific must an HOA be when demanding a homeowner perform repairs?

This conflict, which was ultimately decided by an Administrative Law Judge (ALJ) at the Arizona Office of Administrative Hearings, offers a masterclass in procedural due process. It examines whether generic commands like "fix rock area" meet the legal and contractual standards required of an association. As a community association advocate, I will break down the ALJ’s findings to show why specificity is not just a courtesy—it is a legal necessity.

2. The Paper Trail: A Timeline of Escalating Notices

The dispute between Mr. Chadwick and the Association spanned the first half of 2021. While the homeowner made significant efforts to comply, the Association continued to issue fines based on increasingly ambiguous requirements.

Date of Notice	Alleged Violation/Directive	Fine/Action Taken
January 25, 2021	Remove weeds and dead trees/plants (Article 4.5).	Initial Warning Notice.
February 9, 2021	"Please remove weeds."	$50.00 Fine.
February 25, 2021	"Please remove weeds."	$100.00 Fine.
March 15, 2021	Added new directive: "fix rock area."	$100.00 Fine.
March 30, 2021	"Remove weeds" and "fix rock area."	$100.00 Fine; Legal action threatened.
June 16, 2021	"Please remove weeds" (targeting a specific vine).	$100.00 Fine; Legal action threatened.

The turning point occurred in March 2021. As the Association transitioned from the specific issue of "weeds" to the subjective and vague command to "fix rock area," the homeowner was left guessing at the Association’s expectations.

3. The Resident's Defense: "Moving the Goalposts"

Petitioner Chadwick successfully dismantled the Association’s lack of procedural due process by highlighting a pattern of "moving the goalposts." His primary arguments included:

Failure of Specificity (Article 10.9): Chadwick argued the Association violated Article 10.9 of the CC&Rs, which mandates a "statement of the specific steps" required to cure a violation. He contended that "fix rock area" failed this contractual standard.
Good Faith Compliance and Bad Faith Negotiation: Chadwick spent $450 in February to remove dead cacti and weeds. On March 18, he reached a settlement with the Association to pay a $50 fine to resolve the matter. However, the Association acted in apparent bad faith by negotiating this settlement while already having mailed a new $100 fine on March 15—a fact the Association did not disclose during settlement talks.
Arbitrary Enforcement: In a "smoking gun" moment during the hearing, Chadwick pointed to the uneven application of the rules. Most notably, Cynthia Ecker, a Board member of 20 years and current Vice President, admitted under cross-examination that she had uncovered irrigation lines in her own yard but had never received a notice or a fine.

4. The Association’s Stance: Broad Authority and "Unsightly" Conditions

The Association, represented by Community Manager Danielle Miglio and the Board Vice President, justified their enforcement actions through the following arguments:

Broad Discretionary Power: They argued that Article 4.5 granted the Association the exclusive right to determine what constitutes an "unsightly" or "offensive" condition.
The "Incomplete Job" Theory: The Board contended that when Chadwick removed the dead cacti, he created a new "debris" issue by leaving holes and exposed irrigation lines. They argued this was an extension of the original maintenance failure.
Sufficiency of Notice: The Association maintained that "Remove Weeds" was a sufficient directive, asserting that it is the homeowner’s responsibility to cross-reference the CC&Rs or contact the office for further clarity.

5. The ALJ’s Verdict: Why Specificity Matters

The ALJ’s decision (No. 22F-H2221022-REL) provides a sharp critique of the Association's procedural failures. The Judge granted the petition in part, based on two critical legal errors:

The "Prudent Person" Standard The Judge ruled that a person of "ordinary prudence" could not be expected to be a mind-reader. A homeowner should not have to guess that the vague command to "fix rock area" actually meant they needed to "cover irrigation lines, fill holes, and remove a specific plant the Board labeled a vine." The fact that the Association eventually had to send a photo with circled areas to explain the violation proved that the written notices were insufficient.

The Procedural Failure: Article 4.4 vs. 4.5 In a significant blow to the Association’s legal standing, the ALJ found that the HOA cited the wrong Article in every notice. The Association relied on Article 4.5, which pertains solely to construction activities and nuisances. Landscaping issues fall under Article 4.4. Citing the wrong Article isn't a mere typo; it is a fundamental failure to provide proper notice, rendering the enforcement action contractually deficient.

6. Final Outcome and Financial Impact

While the Judge did not find the Association’s actions entirely arbitrary, the petition was granted regarding the violation of Article 10.9. The HOA was held accountable for the financial burden placed on the homeowner to seek justice.

### Final Order The Association was ordered to pay $500.00 to the Petitioner as a pro-rata portion of the filing fee, to be paid within 30 days of the order.

7. Key Takeaways for Homeowners and HOA Boards

For Homeowners

Demand Specificity: If a notice is vague, you have a contractual right to request "specific steps to cure." Reference your governing documents (like Article 10.9 in this case) to force the Board to define the violation.
Expose Inconsistency: Document other properties with similar "violations." As the Ecker testimony showed, proving that Board members are exempt from the rules they enforce is a powerful defense against arbitrary fines.
Appeal Early: Do not let fines accumulate while hoping the issue will disappear. Use the formal appeal process to create a paper trail of your compliance efforts.

For HOA Boards

Cite Correctly or Lose: Citing a "Nuisance" clause for a "Landscaping" issue is a procedural error that can void your fines in court. Ensure your management team is citing the exact, applicable section of the CC&Rs.
Eliminate Subjectivity: Phrases like "fix area" are legally unenforceable. Your notices must be descriptive (e.g., "Cover 4 inches of exposed black irrigation line near the front walkway with matching granite").
Negotiate in Good Faith: Settling past fines while a new notice is already in the mail is a fast track to being labeled a "bad faith" actor by a judge.

8. Administrative Note

Administrative Law proceedings in these matters follow a strict statutory timeline. Following the hearing, the ALJ has 20 days to draft a recommendation for the Commissioner of the Arizona Department of Real Estate, who then has 30 days to finalize the order. Parties should be aware that while a "rehearing" can be requested within 30 days of the final order, it is not a "second bite at the apple." A rehearing is only granted under specific hurdles, such as proving the discovery of new evidence that was not available at the time of the original hearing.

Case Participants

Petitioner Side

Wesley Todd Chadwick (Petitioner)

Respondent Side

Nick Eicher (Counsel for Respondent)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Eadie Rudder (Counsel for Respondent)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Danielle Christine Miglo (Witness and Manager)
Oasis Community Management
Cynthia Marie Ecker (Witness and Board Vice President)
Entrada Mountainside Homeowners Association
Mara Jolie (Assistant Manager)
Oasis Property Management

Neutral Parties

Jenna Clark (Administrative Law Judge)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Miranda Alvarez (Legal Secretary)
Office of Administrative Hearings

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

Posted on March 21, 2022 by [email protected]

Case Summary

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

Parties & Counsel

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

Alleged Violations

5th Amended Master Declaration Article 6.7

Outcome Summary

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

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

Key Issues & Findings

Change in Use of Common Area

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

Orders: Petitioners' petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

Additional Citations:

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

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Video Overview

Audio Overview

Decision Documents

22F-H2221011-REL Decision – 935334.pdf

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

22F-H2221011-REL Decision – 956246.pdf

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

22F-H2221011-REL Decision – 935334.pdf

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

22F-H2221011-REL Decision – 956246.pdf

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

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

Key Facts and Main Issues

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

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

Hearing Proceedings and Key Arguments

Association's (Respondent's) Position:

The Association argued that offering wine sales was a minor component of the overall renovation of the approximately 22,000 square foot Activity Center and did not constitute a substantial change in use.
Association witnesses (including General Manager Mark Wade and Controller/Liquor License Agent Randy Trenary) testified that information regarding the renovation, including the wine bar component, was presented to members via multiple forums, presentations, and weekly newsletters.
Crucially, the membership voted on the renovation project, including the wine bar, on March 23, 2021. The vote passed with 1,121 votes (65%) in favor (only 859 votes were required to pass), thereby satisfying and exceeding the 60% requirement stipulated in Article 6.7.

Petitioner's Position:

Petitioner Balaco argued that adding an Arizona liquor license to any portion of the common area significantly changes the character and nature of its use.
He contended that the license imposes restrictions, such as prohibiting the consumption of personal alcohol (BYOB) in the designated area and restricting access for minors unless accompanied by an adult 21 or older, thus restricting use residents had previously enjoyed.
Petitioner also argued that the board made a mistake, asserting that the area was covered by an existing license when, in fact, the Department of Liquor License and Control later confirmed no part of the activity center was currently covered. Petitioner requested an order requiring a specific resident vote prior to the board applying for any liquor license extension.

Final Decision and Legal Points

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

The ALJ emphasized the following legal points:

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

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

Questions

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
procedure

Question

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

Short Answer

A preponderance of the evidence.

Detailed Answer

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

Alj Quote

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

Legal Basis

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5

Topic Tags

evidence
legal standards

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Ripeness Doctrine

Topic Tags

ripeness
future violations
construction

Question

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

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Hearing Limits

Topic Tags

injunctions
remedies
legal relief

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

common areas
renovations
change of use

Question

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

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

appeals
binding order
procedure

Case

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

Questions

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
procedure

Question

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

Short Answer

A preponderance of the evidence.

Detailed Answer

Alj Quote

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

Legal Basis

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5

Topic Tags

evidence
legal standards

Question

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

Short Answer

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

Detailed Answer

Alj Quote

Legal Basis

Ripeness Doctrine

Topic Tags

ripeness
future violations
construction

Question

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

Short Answer

No, injunctive relief is unavailable in this administrative process.

Detailed Answer

Alj Quote

Legal Basis

Administrative Hearing Limits

Topic Tags

injunctions
remedies
legal relief

Question

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

Short Answer

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

Detailed Answer

Alj Quote

Legal Basis

Master Declaration Article 6.7 (cited in decision)

Topic Tags

common areas
renovations
change of use

Question

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

Short Answer

Yes, unless a rehearing is granted.

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(B)

Topic Tags

appeals
binding order
procedure

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Dean A Yelenik v. Meridian Condominiums Homeowners Association

Posted on February 22, 2022 by [email protected]

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

22F-H2221021-REL Decision – 948752.pdf

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

22F-H2221021-REL Decision – 948752.pdf

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

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

Key Facts

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

Main Issues and Legal Arguments

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

Petitioner's Argument:

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

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

Respondent's Argument:

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

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

Outcome and Final Decision

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

Questions

Question

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

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

Board Vacancies
Term Limits
Board Appointments

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Bylaws Interpretation

Topic Tags

Board Qualifications
Vacancies

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

Elections
Board Authority

Question

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

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

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

Alj Quote

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

Legal Basis

Board Discretion

Topic Tags

Board Conduct
Decision Making

Question

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

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

Legal Standards
Hearings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

Jurisdiction
Contract Interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

Procedure
Fees

Case

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

Questions

Question

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

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

Alj Quote

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

Legal Basis

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

Topic Tags

Board Vacancies
Term Limits
Board Appointments

Question

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

Short Answer

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

Detailed Answer

Alj Quote

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

Legal Basis

Bylaws Interpretation

Topic Tags

Board Qualifications
Vacancies

Question

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

Short Answer

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

Detailed Answer

Alj Quote

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

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

Elections
Board Authority

Question

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

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

Alj Quote

Legal Basis

Board Discretion

Topic Tags

Board Conduct
Decision Making

Question

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

Short Answer

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

Detailed Answer

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

Legal Standards
Hearings

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

Jurisdiction
Contract Interpretation

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

Procedure
Fees

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Raymond M Uyleman v. Casita Royale Townhomes Association

Posted on November 23, 2021 by [email protected]

Case Summary

Case ID	22F-H2221006-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-11-22
Administrative Law Judge	Jenna Clark
Outcome	Petitioner's petition was granted in part and denied in part. The ALJ found the Respondent Association violated its Bylaws regarding the election and terms of Board members. Respondent was ordered to comply with the relevant Bylaw sections and reimburse $375.00 of the filing fee. Petitioner's prayer to remove the current Board from office was denied.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Raymond M Uyleman	Counsel	—
Respondent	Casita Royale Townhomes Association	Counsel	—

Alleged Violations

Bylaws Article 4 Section 2, and Article 8 Sections 2 and 3

Outcome Summary

Petitioner's petition was granted in part and denied in part. The ALJ found the Respondent Association violated its Bylaws regarding the election and terms of Board members. Respondent was ordered to comply with the relevant Bylaw sections and reimburse $375.00 of the filing fee. Petitioner's prayer to remove the current Board from office was denied.

Why this result: Petitioner’s prayer to remove the Association’s current Board from office was denied.

Key Issues & Findings

Unlawful transfer of Board positions and Association bank account

Petitioner alleged the Association violated Bylaws when the former President/Treasurer unlawfully transferred his Board positions and the bank account to new individuals without proper election procedures. The ALJ found the Association was in violation of Bylaws requiring a minimum of five directors and regular annual elections for those positions.

Orders: Respondent must henceforth comply with Bylaws Article 4 Section 2, and Article 8 Sections 2 and 3, and reimburse $375.00 of the filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Bylaws Article 4 Section 2
Bylaws Article 8 Section 2
Bylaws Article 8 Section 3

Analytics Highlights

Topics: HOA Board Election, Bylaws Violation, Director Appointment, Filing Fee Reimbursement

Additional Citations:

ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov
ARIZ. REV. STAT. §32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.09

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Decision Documents

22F-H2221006-REL Decision – 927006.pdf

Uploaded 2026-05-01T21:55:11 (152.9 KB)

22F-H2221006-REL Decision – 927006.pdf

Uploaded 2026-01-23T17:40:02 (152.9 KB)

This is a concise summary of the Administrative Law Judge (ALJ) Decision regarding the hearing between Raymond M Uyleman (Petitioner) and the Casita Royale Townhomes Association (Respondent).

Case Identification and Procedure

The hearing was held before Administrative Law Judge Jenna Clark on November 04, 2021, at the Office of Administrative Hearings (OAH). The matter involved a dispute between a homeowner (Petitioner) and a planned community association, falling under the jurisdiction of the Arizona Department of Real Estate.

Key Facts and Background

The Association's Bylaws require the Board of Directors to consist of not less than five (5) directors. Directors are elected for terms up to three years, and officers are elected annually by the Board.

By January 2014, Gary Knutson, who held the titles of President and Treasurer, was the only remaining Board member, having unilaterally assumed all Board roles after the other members resigned or passed away. No meetings were held thereafter to elect new directors.

The central dispute arose on or about March 16, 2021, when Mr. Knutson sold his townhome. Upon selling, he unilaterally selected Natalie Terry as his Presidential successor and Carmel Ogle as his Secretarial successor, and transferred the Association’s bank account and assets to them. Petitioner Uyleman, who became an Association member in May 2021, filed a petition alleging this transfer was unlawful.

Main Issues and Arguments

The core legal issue determined by the OAH was whether Mr. Knutson’s transfer of Board positions and assets violated Bylaws Article 4, Sections 2 and 3, and Article 8, Sections 2 and 3.

Petitioner’s Argument: Petitioner argued that the appointments were illegal and fraudulent because Terry and Ogle seated themselves without a proper election. Petitioner also raised objections regarding the successors' prior criminal convictions and requested a financial audit, demanding the removal of the current Board.
Respondent’s Argument: The Association denied the claims, arguing that Terry and Ogle were merely serving as "fillers" until an annual meeting could be held to properly vote in new Board members.

Legal Findings and Conclusion

The Administrative Law Judge concluded that Petitioner sustained the burden of proof by a preponderance of the evidence.

The ALJ determined that the Association had a clear obligation under its Bylaws to maintain a minimum of five (5) Board members and to hold multiple annual meetings between 2011 and 2021 to elect the necessary directors. Because Mr. Knutson was not properly elected to all three positions he held at the time of his resignation—and because elections had not been held as required—the transfer of positions to Ms. Terry and Ms. Ogle was not conducted in accordance with the community’s governing documents.

The ALJ specifically found that the Association violated Bylaws Article 4 Section 2 (Terms of Office) and Article 8 Sections 2 and 3 (Election of Officer, Term). Issues regarding the criminal backgrounds of Ms. Terry and Ms. Ogle were dismissed, as no evidence supported the Petitioner's contention that they should have been subjected to background checks.

Outcome and Order

The Petitioner’s petition was granted in part and denied in part.

Compliance: The Association was ORDERED to henceforth comply with Bylaws Article 4 Section 2 and Article 8 Sections 2 and 3.
Reimbursement: Respondent was ORDERED to reimburse the Petitioner $375.00 (three-quarters of the filing fee).
Denial of Removal: Petitioner’s request to remove the Association’s current Board from office was denied.

{ “case”: { “docket_no”: “22F-H2221006-REL”, “case_title”: “Raymond M Uyleman vs. Casita Royale Townhomes Association”, “decision_date”: “2021-11-22”, “alj_name”: “Jenna Clark”, “tribunal”: “Office of Administrative Hearings”, “agency”: “Arizona Department of Real Estate” }, “questions”: [ { “question”: “Can a Board member unilaterally appoint their own successor and transfer HOA assets without an election?”, “short_answer”: “No. Board positions must be filled through elections or selection by remaining Board members as outlined in the Bylaws, not by the departing member alone.”, “detailed_answer”: “A Board member cannot simply ‘bestow’ their position or the HOA’s bank account to a successor upon selling their home. The Bylaws generally require directors to be elected by members at annual meetings. Even in the event of a resignation, the successor usually must be selected by the remaining members of the Board, not the outgoing individual.”, “alj_quote”: “Therefore, it cannot be concluded that the Board positions Mr. Knutson bestowed on Ms. Terry and Ms. Ogle were done in accordance with the community’s governing documents.”, “legal_basis”: “Bylaws Article 4 Sections 2 and 3; Article 8 Sections 2 and 3”, “topic_tags”: [ “Board Elections”, “Transfer of Power”, “Bylaws Compliance” ] }, { “question”: “Is it a violation if the HOA fails to maintain the minimum number of directors required by the Bylaws?”, “short_answer”: “Yes. If the Bylaws stipulate a minimum number of directors (e.g., five), the HOA must maintain that number through regular elections.”, “detailed_answer”: “The ALJ found that allowing a single individual to hold all Board positions violated the Bylaws, which explicitly required a Board of not less than five directors. The Association is obligated to hold annual meetings to elect the requisite number of members.”, “alj_quote”: “The Association’s Bylaws clearly indicate that there must be no less than five (5) Board members, and that elections for those positions must be held at annual meetings every 1-3 years.”, “legal_basis”: “Bylaws Article 4 Section 1”, “topic_tags”: [ “Board Composition”, “Bylaws Compliance”, “Governance” ] }, { “question”: “Can I prevent someone with a criminal record from serving on the HOA Board?”, “short_answer”: “Generally, no, unless the specific governing documents require background checks or prohibit those with criminal records from serving.”, “detailed_answer”: “The ALJ dismissed the homeowner’s complaint regarding the Board members’ criminal backgrounds (felonies) as a ‘red herring.’ Since the petitioner could not provide evidence that the governing documents required background checks for Board candidates, the argument was not grounds for a violation.”, “alj_quote”: “As are Ms. Terry’s and Ms. Ogle’s criminal backgrounds, as no evidence in the record supports Petitioner’s contention that they should have been subjected to background checks.”, “legal_basis”: “Evidentiary Standard / Governing Documents”, “topic_tags”: [ “Board Eligibility”, “Criminal Background”, “Discrimination” ] }, { “question”: “What is the standard of proof for a homeowner suing their HOA in an administrative hearing?”, “short_answer”: “The homeowner (Petitioner) must prove their claims by a ‘preponderance of the evidence.'”, “detailed_answer”: “The burden lies with the person bringing the complaint to show that their claims are more likely true than not. This does not require removing all doubt, but the evidence must have ‘superior evidentiary weight’ to incline an impartial mind to one side.”, “alj_quote”: “Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 4 sections 2 and 3, and Article 8 sections 2 and 3 of the Association’s Bylaws.”, “legal_basis”: “Arizona Law of Evidence”, “topic_tags”: [ “Legal Procedure”, “Burden of Proof”, “Hearing Process” ] }, { “question”: “Does the ADRE have jurisdiction to hear disputes about violations of CC&Rs and Bylaws?”, “short_answer”: “Yes. The Department has the authority to hear disputes between owners and associations regarding violations of community documents.”, “detailed_answer”: “The ALJ confirmed that the dispute was within the Department’s jurisdiction, citing statutes that allow owners to petition for hearings concerning violations of community documents (like CC&Rs and Bylaws) or statutes regulating planned communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee…”, “legal_basis”: “A.R.S. § 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE Authority”, “Dispute Resolution” ] }, { “question”: “If I win my case against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the ALJ has the discretion to order the HOA to reimburse the filing fee, often proportional to the success of the petition.”, “detailed_answer”: “In this case, because the petitioner’s petition was ‘granted in part,’ the ALJ ordered the HOA to reimburse 3/4 of the 500filingfee(375).”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse ¾ of Petitioner’s filing fee (e.g. $375.00) in certified funds.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “Remedies”, “Fees”, “Financial Reimbursement” ] }, { “question”: “Will the ALJ automatically remove Board members from office if they find a violation in how they were appointed?”, “short_answer”: “Not necessarily. The ALJ may find a violation and order future compliance without granting a request to immediately remove the current Board.”, “detailed_answer”: “Although the ALJ found the Board members were not appointed in accordance with the Bylaws, the specific request to remove them from office was denied. The order focused on ensuring the HOA complies with Bylaws moving forward (presumably by holding the required elections).”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s prayer to remove the Association’s current Board from office is denied.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “Remedies”, “Board Removal”, “Enforcement” ] } ] }

Case Participants

Petitioner Side

Raymond M Uyleman (petitioner)
Appeared on his own behalf

Respondent Side

Natalie Terry (respondent representative/HOA president)
Casita Royale Townhomes Association
Appeared on behalf of Respondent; current HOA President
Carmel Ogle (witness/HOA secretary)
Casita Royale Townhomes Association
Witness for Respondent; current HOA Secretary

Neutral Parties

Jenna Clark (ALJ)
OAH
Louis Dettorre (commissioner)
Arizona Department of Real Estate

Other Participants

Gary Knutson (former board member)
Casita Royale Townhomes Association
Former President/Treasurer who transferred positions leading to dispute
John Paquin (former board member)
Casita Royale Townhomes Association
Former Vice President (resigned 2014)
Carol Paquin (former board member)
Casita Royale Townhomes Association
Former Secretary (passed away 2011)

Rodney F Kirby v. Dove Cove Estates Homeowners Association

Posted on October 13, 2021 by [email protected]

Case Summary

Case ID	21F-H2121049-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-10-12
Administrative Law Judge	Jenna Clark
Outcome	total
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Rodney & Patricia Kirby	Counsel	—
Respondent	Dove Cove Estates Homeowners Association	Counsel	Lydia Peirce Linsmeier and Kaylee Ivy

Alleged Violations

CC&Rs Article IV, Section 4.1.1

Outcome Summary

The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.

Key Issues & Findings

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.

Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121049-REL Decision – 940829.pdf

Uploaded 2026-04-24T11:35:22 (47.0 KB)

21F-H2121049-REL Decision – 950132.pdf

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21F-H2121049-REL Decision – 916848.pdf

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21F-H2121049-REL Decision – 917026.pdf

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21F-H2121049-REL Decision – 916848.pdf

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21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-01-23T17:37:51 (124.9 KB)

This summary details the hearing before Administrative Law Judge Jenna Clark at the Office of Administrative Hearings (OAH) on September 22, 2021, concerning a dispute between homeowners and their association.

Key Facts and Parties

The Petitioners, Rodney and Patricia Kirby, are property owners and members of the Dove Cove Estates Homeowners Association (HOA/Respondent). The Petitioners, who are retired and use their pool daily for exercise, filed a petition alleging the Association violated its Covenants, Conditions, and Restrictions (CC&Rs). The dispute centered on the Association's refusal to remove two sissoo trees, approximately 35 feet high, located on Common Area property just behind the Petitioners’ residence.

The Petitioners testified that since around 2017, the trees caused substantial problems: debris, including leaves and small dead animals, fell into their pool, clogging the pump, which had to be replaced multiple times. Furthermore, roots from the trees caused damage to their retaining wall and back patio slab.

Main Issue and Arguments

The core issue was whether the Association was in violation of CC&Rs Article IV, Sections 4.1 and 4.1.1 for failing to remove the two sissoo trees. CC&R Article IV required the Association to maintain and keep in good condition and repair the Common Area, including the maintenance, repair, and replacement of all landscaping and structures situated upon it.

The Respondent (HOA) denied the complaint, arguing that its duty of maintenance was fulfilled through its landscaping contractor, ProQual Landscaping. The HOA contended that it reasonably relied on ProQual's expert advice; ProQual had inspected the trees in April 2021 and advised that removal was unnecessary, instead leaving them on a regular trimming schedule.

The Petitioners argued that the Association’s inadequate maintenance endangered their health and welfare due to the debris and financial burdens incurred from pool and pump repairs and increased cleaning costs. They asserted that the Association had not given their request proper consideration.

Legal Points and Outcome

The OAH determined it had jurisdiction to hear the dispute and interpret the CC&Rs, which form an enforceable contract between the Association and property owners. Petitioners bore the burden of proof by a preponderance of the evidence.

The ALJ concluded that Petitioners sustained their burden of proof. The decision emphasized that the Association's duty to maintain the Common Area does not end at the boundary line. The evidence established that *but for* the sissoo trees being situated and maintained in their current state, the degree of debris causing damage or harm to Petitioners’ property would not exist.

Final Decision

The ALJ concluded that the Association had violated Article IV section 4.1.1 of the CC&Rs.

IT IS ORDERED that Petitioners’ petition is granted. The Respondent was FURTHER ORDERED to pay Petitioners their filing fee of $500.00 within thirty days. The OAH clarified that while it lacked statutory authority to grant declaratory or injunctive relief, the decision acts to "Order Respondent to abide by the section of the planned community specified".

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

maintenance
common_area
liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

vendor_reliance
negligence
defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden_of_proof
evidence
procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

remedies
injunctive_relief
alj_powers

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

fees
reimbursement
costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

damages
nuisance
evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

jurisdiction
adre
oah

Case

Docket No: 21F-H2121049-REL
Case Title: Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date: 2021-10-12
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

maintenance
common_area
liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

Alj Quote

Legal Basis

Contract Law / CC&Rs

Topic Tags

vendor_reliance
negligence
defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

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

Detailed Answer

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden_of_proof
evidence
procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

Alj Quote

Legal Basis

Statutory Authority

Topic Tags

remedies
injunctive_relief
alj_powers

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

fees
reimbursement
costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

Alj Quote

Legal Basis

Evidence of Damages

Topic Tags

damages
nuisance
evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

jurisdiction
adre
oah

Case

Docket No: 21F-H2121049-REL
Case Title: Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date: 2021-10-12
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Rodney Kirby (petitioner)
Patricia Kirby (petitioner)

Respondent Side

Lydia Peirce Linsmeier (HOA attorney)
Carpenter, Hazelwood, Delgado & Bolen LLP
Kaylee Ivy (HOA attorney)
Carpenter, Hazelwood, Delgado & Bolen LLP
Regis Salazar (witness)

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Arthur Fisenko & Viktoriya Tkach-Fisenko v. Bellvue Homeowners

Posted on September 21, 2021 by [email protected]

Case Summary

Case ID	21F-H2121046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-09-20
Administrative Law Judge	Jenna Clark
Outcome	The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Arthur Fisenko & Viktoriya Tkach-Fisenko	Counsel	Laurence Stevens, Esq.
Respondent	Bellvue Homeowners Association	Counsel	Jamie B. Palfai, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1817(B)(3) and CC&Rs Article VII, Section 2

Outcome Summary

The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.

Why this result: The record did not establish violation(s) of ARIZ. REV. STAT. § 33-1817(B)(3) or CC&Rs Article VII, Section 2 by a preponderance of the evidence. Petitioners did not provide sufficient and/or requisite information necessary for the ARC to make a reasonably objective determination, nor did they attempt to cure the deficient application.

Key Issues & Findings

Arbitrary and capricious denial of architectural request to move garage-side yard block wall and install a double-wide gate.

Petitioners alleged the Association (ARC) arbitrarily and capriciously rejected their request to move their garage-side yard wall eight (8) feet forward on their property, using the same materials as the existing wall, except replacing the single-wide gate with a double-wide gate previously approved by Respondent.

Orders: Petitioners’ petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1817(B)(3)
CC&Rs Article VII, Section 2

Analytics Highlights

Topics: HOA, Architectural Request, Block Wall, Architectural Review Committee (ARC), A.R.S. 33-1817

Additional Citations:

ARIZ. REV. STAT. § 33-1817(B)(3)
CC&Rs Article VII, Section 2
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

21F-H2121046-REL Decision – 912007.pdf

Uploaded 2026-04-24T11:35:00 (138.0 KB)

21F-H2121046-REL Decision – 912007.pdf

Uploaded 2026-01-23T17:37:39 (138.0 KB)

This is a summary of the Administrative Law Judge Decision in *Arthur Fisenko & Viktoriya Tkach-Fisenko vs. Bellvue Homeowners Association* (No. 21F-H2121046-REL), heard on August 30, 2021.

Key Facts and Proceedings

The dispute involved Arthur Fisenko and Viktoriya Tkach-Fisenko (Petitioners), property owners in the Bellvue subdivision, and the Bellvue Homeowners Association (Respondent). The case was heard by the Office of Administrative Hearings (OAH) pursuant to Arizona statutes governing disputes between owners and planned community associations.

Petitioners initially filed a two-issue petition with the Arizona Department of Real Estate alleging that the Association's Architectural Review Committee (ARC) arbitrarily and capriciously rejected landscaping modification requests. By July 30, 2021, the issue concerning the installation of pavers and artificial grass became moot when the Respondent reversed its initial denial.

The main issue for the hearing was whether the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) and/or CC&Rs Article VII, Section 2, by denying Petitioners’ request to move their garage-side yard wall eight (8) feet forward on their property. The proposal included using the same materials and replacing an existing single-wide gate with a previously approved double-wide gate.

Key Arguments

Petitioners’ Argument: Petitioners asserted that the Association's denial was arbitrary and capricious, noting that the ARC had approved the paver/artificial grass portion of their request without requiring supplemental information. They argued that their initial Architectural Request Form, filled out without counsel, should have been approved despite any technical omissions.
Respondent’s Argument: The Association contended that the Petitioners' Architectural Request Form was deficient and incomplete because crucial and relevant information was missing. Specifically, after the initial denial in February 2021 (citing concerns over length and neighbor impact), Petitioners were instructed in March 2021 to submit a complete form, a plot plan, elevation plans, and specifications. Respondent argued that because Petitioners failed to provide this specific supplemental information, the ARC was unable to make a reasonably objective determination necessary for approval.

Legal Points and Outcome

The Petitioners bore the burden of proving, by a preponderance of the evidence, that the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) (which mandates that architectural approval "shall not unreasonably be withheld") or CC&Rs Article VII, Section 2.

The Administrative Law Judge concluded that Petitioners failed to sustain their burden of proof. The decision rested on the finding that the Petitioners did not provide sufficient and/or requisite information necessary for the ARC to reasonably evaluate the wall modification request. Furthermore, the record established that Petitioners were specifically advised what supplemental information was required but failed to cure their application deficiencies.

The final decision held that the Respondent’s refusal to grant the Architectural Request was neither arbitrary nor capricious. Therefore, the Petitioners’ petition was denied.

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21F-H2121046-REL

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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.

What was the core legal dispute between the Fisenkos and the HOA?

Why did the Administrative Law Judge ultimately rule against the homeowners?

How do Arizona statutes regulate the architectural approval process for HOAs?

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21F-H2121046-REL

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What was the core legal dispute between the Fisenkos and the HOA?

Why did the Administrative Law Judge ultimately rule against the homeowners?

How do Arizona statutes regulate the architectural approval process for HOAs?

Thursday, February 12

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Today • 11:01 AM

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Mind Map

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Data Table

Case Participants

Petitioner Side

Arthur Fisenko (petitioner)
Testified on behalf of Petitioners
Viktoriya Tkach-Fisenko (petitioner)
Laurence Stevens (petitioner attorney)
Stevens & Van Cott, PLLC

Respondent Side

Jamie Palfai (HOA attorney)
O’Hagan Meyer LLC
Samuel Truett (witness)
Bellvue Homeowners Association
Witness for Bellvue Homeowners Association

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate

Nancy Bender v. Foothills Townhomes Association, Inc.

Posted on August 23, 2021 by [email protected]

Case Summary

Case ID	21F-H2121048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-08-23
Administrative Law Judge	Jenna Clark
Outcome	The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Nancy Bender	Counsel	—
Respondent	Foothills Townhomes Association, Inc.	Counsel	Jason Smith, Esq.

Alleged Violations

Community Bylaws 3.03

Outcome Summary

The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.

Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.

Key Issues & Findings

Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).

Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Community Bylaws 3.03
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)

Analytics Highlights

Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid

Additional Citations:

ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Community Bylaws 3.03

Video Overview

Audio Overview

Decision Documents

21F-H2121048-REL Decision – 906190.pdf

Uploaded 2026-01-23T17:37:43 (117.4 KB)

This is a concise summary of the Administrative Law Judge Decision in the case of Nancy Bender v. Foothills Townhomes Association, Inc. (No. 21F-H2121048-REL), heard on August 2, 2021, by Administrative Law Judge Jenna Clark.

Key Facts and Background

The Petitioner, Nancy Bender, is an owner and member of the Foothills Townhomes Association, Inc. (Respondent), a planned community association in Arizona. The Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which form an enforceable contract between the Association and its members.

The dispute arose after the Petitioner drafted a letter, along with other homeowners, intended to request a special meeting to discuss issues such as meeting minutes, water bills, financial statements, and due increases. Although this draft letter was never formally submitted to the Board to schedule a special meeting, the Association came into possession of the draft. On February 15, 2021, the Board posted the Petitioner’s draft letter on the HOA’s online platform, along with a written response directed to the Petitioner by the Association’s attorney. Petitioner alleged that this conduct was an act of retaliation intended to dismantle a platform for discussion and that the Association breached its fiduciary duty.

Main Issues and Legal Arguments

Petitioner filed an amended single-issue petition alleging the Association violated Community Bylaws 3.03 and specific Arizona statutes: ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D). The Administrative Law Judge (ALJ) had jurisdiction over disputes between owners and planned community associations regarding violations of community documents or regulating statutes. The Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Legal Points and Findings

Statutory Claims Dismissed as Inapplicable: The Tribunal found that the alleged statutory violations (ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D)) were inapplicable because the Respondent Association is not subject to governance or regulation by those statutes, thus rendering those concerns moot.
Focus on Bylaws 3.03: Because the statutory claims were moot and Petitioner paid for adjudication of only one issue, the ALJ focused solely on whether the Association violated Community Bylaws Section 3.03. Bylaws Section 3.03 governs the procedure for calling a special meeting of homeowners.
Issue Found Unripe: The ALJ determined that no violation of Bylaws Section 3.03 existed because the issue was unripe. The record showed that a special meeting was *not* held, nor had the Petitioner formally requested one prior to filing her petition. The Petitioner’s actual grievance—the Association’s public dissemination and address of her private correspondence—was determined *not* to be a violation of Bylaws Section 3.03.

Outcome and Decision

The Administrative Law Judge concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated Bylaws Section 3.03. Therefore, the Petitioner's petition was denied.

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

procedure
jurisdiction
filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.

Alj Quote

However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

legal standards
statutes
planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

privacy
bylaws
communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.

Alj Quote

Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

jurisdiction
constitutional rights
adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.

Alj Quote

No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.

Legal Basis

ripeness doctrine

Topic Tags

meetings
procedural requirements
violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

CC&Rs
contracts
enforcement

Case

Docket No: 21F-H2121048-REL
Case Title: Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date: 2021-08-23
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?

Short Answer

No. The tribunal is limited to the specific issue paid for and filed.

Detailed Answer

If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

procedure
jurisdiction
filing fees

Question

What happens if I cite Condominium statutes in a dispute regarding a Planned Community?

Short Answer

The claims will likely be dismissed as moot or inapplicable.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16

Topic Tags

legal standards
statutes
planned communities

Question

Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?

Short Answer

No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.

Detailed Answer

Alj Quote

Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.

Legal Basis

Bylaws Section 3.03

Topic Tags

privacy
bylaws
communications

Question

Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?

Short Answer

No. The Department's jurisdiction is limited to violations of community documents and specific statutes.

Detailed Answer

Alj Quote

Legal Basis

ARIZ. REV. STAT. §§ 32-2102, 32-2199

Topic Tags

jurisdiction
constitutional rights
adre authority

Question

Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?

Short Answer

No. The issue is considered 'unripe' if no meeting was actually requested or held.

Detailed Answer

Alj Quote

Legal Basis

ripeness doctrine

Topic Tags

meetings
procedural requirements
violations

Question

What is the standard of proof required for a homeowner to win an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

burden of proof
legal standards
evidence

Question

Are the CC&Rs considered a legal contract between me and the HOA?

Short Answer

Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.

Detailed Answer

When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.

Alj Quote

Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.

Legal Basis

Contract Law Principles

Topic Tags

CC&Rs
contracts
enforcement

Case

Docket No: 21F-H2121048-REL
Case Title: Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date: 2021-08-23
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Nancy Bender (petitioner)
Foothills Townhomes owner/member

Respondent Side

Jason Smith (respondent attorney)
Goodman Holmgren Smith

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Dan Gardener (Constituent Services Manager)
Arizona Department of Real Estate

Daniel J Coe v. Maricopa Meadows Homeowners Association

Posted on June 24, 2021 by [email protected]

Case Summary

Case ID	21F-H2120029-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2021-10-12
Administrative Law Judge	Adam D. Stone
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Daniel J Coe	Counsel	—
Respondent	Maricopa Meadows Homeowners Association	Counsel	Edith Rudder

Alleged Violations

No violations listed

Outcome Summary

The Office of Administrative Hearings issued an order vacating the scheduled hearing and remanding the matter to the Department of Real Estate, based on the Petitioner's motion to withdraw the rehearing petition.

Why this result: Petitioner withdrew the rehearing petition.

Key Issues & Findings

Motion to Withdraw Rehearing Petition

Petitioner filed a Motion to Withdraw Rehearing Petition, advising that the scheduled hearing was not necessary.

Orders: Hearing vacated and matter remanded to the Department of Real Estate.

Filing fee: $0.00, Fee refunded: No

Disposition: procedural_closure

Analytics Highlights

Topics: withdrawal, procedural, remand

Video Overview

Audio Overview

Decision Documents

21F-H2120029-REL Decision – 916851.pdf

Uploaded 2026-04-28T10:55:51 (51.8 KB)

21F-H2120029-REL Decision – 890760.pdf

Uploaded 2026-04-28T10:56:07 (151.9 KB)

21F-H2120029-REL Decision – 916851.pdf

Uploaded 2026-04-24T11:32:32 (51.8 KB)

21F-H2120029-REL Decision – 890760.pdf

Uploaded 2026-04-24T11:32:40 (151.9 KB)

This summary details the administrative disposition of the legal matter between Daniel J Coe, Petitioner, and Maricopa Meadows Homeowners Association, Respondent, identified as Case No. 21F-H2120029-REL-RHG, before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings:

The Petitioner, Daniel J Coe, was involved in a dispute with the Maricopa Meadows Homeowners Association. A hearing concerning this matter was scheduled before the OAH for October 12, 2021. However, the proceedings were terminated before the scheduled date. On October 8, 2021, the Petitioner filed a Motion to Withdraw Rehearing Petition with the OAH. In this motion, the Petitioner explicitly advised that the scheduled hearing was "not necessary".

Main Issues and Legal Points:

The central legal point addressed in the order was the disposition of the Petitioner’s request for a hearing. The Administrative Law Judge (ALJ), Adam D. Stone, determined that there was sufficient cause to act on the Petitioner's motion to withdraw the petition.

Outcome and Final Decision:

On October 12, 2021, the ALJ issued an ORDER VACATING HEARING. The Order formally vacated the scheduled hearing from the calendar of the Office of Administrative Hearings. Crucially, the Order FURTHER ORDERED remanding this matter to the Department of Real Estate for further action. This administrative decision concluded the OAH's involvement in the pending hearing request, shifting the responsibility for subsequent steps back to the Department of Real Estate.

Questions

Question

Does the number of homeowners ineligible to vote (due to delinquency) lower the number required for a quorum?

Short Answer

No. The quorum is generally calculated based on the total class of membership, and subtracting ineligible voters to lower the quorum threshold is not automatically accepted without specific support.

Detailed Answer

The ALJ rejected the homeowner's argument that the quorum threshold should be lowered by subtracting the 222 members who were ineligible to vote due to delinquent accounts. The quorum remained 10% of the total membership class (1,626), not 10% of the eligible voters.

Alj Quote

Petitioner’s argument that because only 1,404 Members were eligible to vote, that quorum was established at 140 voting Members is erroneous. Moreover, Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

Elections
Quorum
Voting Rights

Question

What happens to the results of an election if the required quorum is not met?

Short Answer

The election is invalid and no candidates are elected, even if votes were cast.

Detailed Answer

In this case, candidates received over 100 votes each, but because the total number of ballots cast (147) did not meet the quorum requirement (163), no one was elected to the Board.

Alj Quote

Although Alicia Chin received 109 votes, Randy Eilts received 103 votes, Petitioner received 103 votes… none were elected to the Board of Directors because the Association determined that quorum had not been met.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

Elections
Quorum
Board of Directors

Question

Are CC&Rs considered a legally binding contract?

Short Answer

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

Detailed Answer

When a person buys a property in an HOA, they agree to be bound by the CC&Rs, creating a contractual relationship.

Alj Quote

When a party buys a residential unit in the development, the party receives a copy of the CC&Rs and agrees to be bound by their terms. Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

CC&Rs
Legal Standards
Contracts

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

Procedure
Burden of Proof
Evidence

Question

What evidence is required to win a dispute about interpreting bylaws?

Short Answer

You generally need to provide statutes, regulations, governing documents, or binding case law that supports your interpretation.

Detailed Answer

The ALJ denied the petition partly because the homeowner offered only an argument without supporting legal authority to counter the plain text of the bylaws.

Alj Quote

Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention. Here, the clear authority lies within the plain text of Article III Section 3.6.

Legal Basis

Administrative Law

Topic Tags

Evidence
Legal Interpretation
Bylaws

Question

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

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

The tribunal is authorized to hear disputes and interpret the governing documents (the contract) to resolve the case.

Alj Quote

Pursuant to ARIZ. REV. STAT. §§ 32-2199(2)… OAH has the authority to hear and decide the contested case at bar. OAH also has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199

Topic Tags

Jurisdiction
OAH Authority
Contracts

Question

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

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

It is the greater weight of convincing evidence, enough to incline a fair mind to one side, even if doubts remain.

Alj Quote

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

Legal Basis

Arizona Law of Evidence

Topic Tags

Legal Standards
Definitions
Evidence

Case

Docket No: 21F-H2120029-REL
Case Title: Daniel J. Coe v. Maricopa Meadows Homeowners Association
Decision Date: 2021-06-24
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Questions

Question

Does the number of homeowners ineligible to vote (due to delinquency) lower the number required for a quorum?

Short Answer

No. The quorum is generally calculated based on the total class of membership, and subtracting ineligible voters to lower the quorum threshold is not automatically accepted without specific support.

Detailed Answer

Alj Quote

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

Elections
Quorum
Voting Rights

Question

What happens to the results of an election if the required quorum is not met?

Short Answer

The election is invalid and no candidates are elected, even if votes were cast.

Detailed Answer

In this case, candidates received over 100 votes each, but because the total number of ballots cast (147) did not meet the quorum requirement (163), no one was elected to the Board.

Alj Quote

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

Elections
Quorum
Board of Directors

Question

Are CC&Rs considered a legally binding contract?

Short Answer

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

Detailed Answer

When a person buys a property in an HOA, they agree to be bound by the CC&Rs, creating a contractual relationship.

Alj Quote

Legal Basis

Contract Law

Topic Tags

CC&Rs
Legal Standards
Contracts

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

Procedure
Burden of Proof
Evidence

Question

What evidence is required to win a dispute about interpreting bylaws?

Short Answer

You generally need to provide statutes, regulations, governing documents, or binding case law that supports your interpretation.

Detailed Answer

The ALJ denied the petition partly because the homeowner offered only an argument without supporting legal authority to counter the plain text of the bylaws.

Alj Quote

Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention. Here, the clear authority lies within the plain text of Article III Section 3.6.

Legal Basis

Administrative Law

Topic Tags

Evidence
Legal Interpretation
Bylaws

Question

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

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

The tribunal is authorized to hear disputes and interpret the governing documents (the contract) to resolve the case.

Alj Quote

Pursuant to ARIZ. REV. STAT. §§ 32-2199(2)… OAH has the authority to hear and decide the contested case at bar. OAH also has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199

Topic Tags

Jurisdiction
OAH Authority
Contracts

Question

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

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

It is the greater weight of convincing evidence, enough to incline a fair mind to one side, even if doubts remain.

Alj Quote

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

Legal Basis

Arizona Law of Evidence

Topic Tags

Legal Standards
Definitions
Evidence

Case

Docket No: 21F-H2120029-REL
Case Title: Daniel J. Coe v. Maricopa Meadows Homeowners Association
Decision Date: 2021-06-24
Alj Name: Jenna Clark
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Daniel J. Coe (petitioner)
Also a candidate for Board Member Elect
Randy Eilts (board member candidate)
Also listed as an observer
Summer Wierth (board member candidate)
Also listed as an observer
Alicia Chin (board member candidate)
Albert Barnes (board member candidate)

Respondent Side

Ed O’Brien (attorney)
Maricopa Meadows Homeowners Association
Michael LaPoint (witness)
Lydia A. Peirce Linsmeier (attorney)
Carpenter, Hazelwood, Delgado & Bolen LLP
Counsel for Respondent
Edith Rudder (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Counsel for Respondent in later filing

Neutral Parties

Jenna Clark (ALJ)
OAH
Issued Administrative Law Judge Decision
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate
DGardner (ADRE staff)
Arizona Department of Real Estate
Adam D. Stone (ALJ)
OAH
Issued Order Vacating Hearing
AHansen (ADRE staff)
Arizona Department of Real Estate
djones (ADRE staff)
Arizona Department of Real Estate
c. serrano (OAH staff)
OAH
Transmitting staff

Other Participants

Andrea Chin (observer)

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

Posted on May 18, 2021 by [email protected]

Case Summary

Case ID	21F-H2120020-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2022-02-02
Administrative Law Judge	Jenna Clark
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Sandra Swanson & Robert Barnes	Counsel	Kristin Roebuck Bethell, Esq.
Respondent	Circle G Ranches 4 Homeowners Association	Counsel	Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)

Additional Citations:

ARIZ. REV. STAT. § 33-1805

Video Overview

Audio Overview

Decision Documents

21F-H2120020-REL Decision – 944169.pdf

Uploaded 2026-04-24T11:31:09 (184.1 KB)

21F-H2120020-REL Decision – 944171.pdf

Uploaded 2026-04-24T11:31:17 (184.1 KB)

21F-H2120020-REL Decision – 881665.pdf

Uploaded 2026-04-24T11:31:20 (167.3 KB)

Administrative Law Judge Decision: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The final order, issued on February 2, 2022, denied the petition. The ALJ concluded that the Petitioners failed to sustain their burden of proof that a statutory violation occurred. The decision found that the Association’s method of providing the requested documents—redacted ballots in one stack and unredacted envelopes in another—was a “reasonable” approach that balanced the Petitioners’ right to examination with the Association’s duty to protect member privacy. While acknowledging this methodology was “not ideal,” the ALJ determined it made the totality of the requested information “reasonably available” as required by law and was not a violation. The ruling also established that the Association’s initial request for the Petitioners to sign a non-disclosure agreement did not constitute a statutory violation.

Case Overview

Entity

Details

Case Number

21F-H2120020-REL-RHG

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Petitioners

Sandra Swanson & Robert Barnes

Respondent

Circle G Ranches 4 Homeowners Association

Central Allegation

Respondent failed to comply with a January 16, 2020, voting records request, violating ARIZ. REV. STAT. § 33-1805.

Final Order Date

February 2, 2022

Outcome

Petition Denied.

Chronology of Key Events

• October 4, 2017: The Association’s Board of Directors adopts the “Rule Requiring Secret Ballots” for votes on special assessments.

• October 28, 2019 (approx.): A vote occurs regarding an increase in association dues.

• December 2019: A vote occurs regarding a proposed CC&R amendment to prohibit cumulative voting.

• January 6, 2020: Petitioners submit a written request to view the votes for the cumulative voting amendment.

• January 13, 2020: The Association’s Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots, citing member privacy concerns. Petitioners decline to sign the NDA.

• January 16, 2020: Counsel for Petitioners submits a formal written request for all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

• January 30, 2020: The Association’s counsel responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners” and that the records will be made available for inspection.

• February 7, 2020: Petitioners inspect documents at the office of the Association’s counsel. They are provided with two stacks of documents: redacted ballots and unredacted envelopes. They review the cumulative voting records for approximately 3.5 hours but cannot match specific ballots to specific voter envelopes.

• August 5, 2020: Petitioners issue a new demand for “unredacted ballots” and all related documents. No additional documentation is provided.

• September 22, 2020: Petitioners file a petition with the Arizona Department of Real Estate, initiating the formal dispute process.

• May 17, 2021: An initial ALJ Decision is issued.

• June 22, 2021: Petitioners file a request for a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.”

• July 15, 2021: The rehearing request is granted.

• January 13, 2022: The evidentiary rehearing is held before the OAH.

• February 2, 2022: The final ALJ Decision is issued, again denying the Petitioners’ petition.

Central Legal Arguments

The rehearing focused on oral arguments from both parties regarding the interpretation of ARIZ. REV. STAT. § 33-1805, which mandates that association records be made “reasonably available” for member examination.

Petitioners’ Position

• Unredacted Records Required: The statute requires the production of unredacted copies of requested documents, and the Association’s failure to provide original, unaltered documents was a violation.

• Methodology Impeded Access: By providing redacted ballots and separate unredacted envelopes, the Respondent prevented the Petitioners from cross-referencing votes with voters. This action meant the documents were not made “reasonably available.”

• NDA Was an Unlawful Barrier: The Association’s demand for an NDA was not supported by any enumerated exception in the statute and constituted an unlawful barrier to accessing records.

• No Expectation of Privacy: Petitioners argued that the ballots were not truly “secret ballots” because some had names or signatures on them, meaning voters “could not have reasonably held an expectation of privacy.”

Respondent’s Position

• Statute is Silent on Method: The statute does not specify how records must be made available, only that they must be. Respondent argued it had complied by providing the “totality of records” requested in a timely fashion.

• Balancing of Duties: The Association devised a method to satisfy its dual obligations: complying with the records request and protecting its members’ privacy and safety. This concern was heightened by complaints from other homeowners about “harassing” behaviors by the Petitioners.

• Information Was Provided: The two sets of documents (redacted ballots, unredacted envelopes) amounted to one complete set of unredacted records, allowing Petitioners to “cross reference and discern the information they sought.”

• NDA Was Reasonable: The NDA was proposed to protect member privacy regarding their secret ballot votes. Respondent argued it was ultimately irrelevant to the case, as the records were provided even after Petitioners declined to sign it.

Administrative Law Judge’s Analysis and Final Order

The ALJ’s decision rested on a direct interpretation of ARIZ. REV. STAT. § 33-1805 and a finding that the Petitioners did not meet their evidentiary burden.

Key Rulings and Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Association violated the statute. The ALJ concluded they failed to do so.

2. On the NDA: The Judge explicitly held that “Respondent’s request that Petitioners sign an NDA does not constitute a violation of ARIZ. REV. STAT. § 33-1805.”

3. On Timeliness: The Association’s response on January 30, 2020, to the January 16, 2020, request was within the 10-business-day statutory deadline (which ended January 31, 2020). The Petitioners did not establish that the documents were unavailable for review prior to the February 7 inspection date.

4. On the Method of Disclosure: This was the central finding. The decision states that the manner in which the documents were provided did not violate the statute. The ALJ found that the record reflected that “Petitioners timely received the totality of the documents from their records request(s).” Because there was no evidence that the documents were not made “reasonably available,” a violation could not be concluded.

5. Reasonableness of Association’s Actions: The ALJ offered a final assessment of the Association’s methodology: “While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Final Order

Based on the finding that the Petitioners did not sustain their burden of proof, the final order was unambiguous: “IT IS ORDERED that Petitioners’ petition is denied.”

The order is binding on the parties, who were notified of their right to seek judicial review by filing an appeal with the Superior Court within 35 days from the date of service.

Study Guide: Swanson & Barnes v. Circle G Ranches 4 HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 21F-H2120020-REL-RHG. It is designed to test and reinforce understanding of the key parties, events, arguments, and legal principles outlined in the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, drawing exclusively from the information provided in the case documents.

1. Who are the primary parties involved in this legal dispute, and what are their respective roles?

2. What specific statute did the Petitioners allege the Respondent violated, and what is the core requirement of that statute?

3. What two specific sets of voting records did the Petitioners request from the Association in their January 16, 2020 letter?

4. What action did the Association’s Board of Directors take on January 13, 2020, in response to the Petitioners’ initial request, and what was their stated reason for doing so?

5. Describe the method the Association used to provide the requested voting records to the Petitioners on February 7, 2020.

6. What was the Petitioners’ main argument for why the Association’s method of providing the documents failed to comply with the law?

7. What was the Association’s primary defense for the way it provided the records and for its overall actions?

8. According to the “Conclusions of Law,” who bears the burden of proof in this proceeding, and what is the standard required to meet that burden?

9. What was the Administrative Law Judge’s final conclusion regarding the Association’s request that the Petitioners sign a nondisclosure agreement (NDA)?

10. What was the ultimate outcome of the case as determined by the Administrative Law Judge in the final order issued on February 2, 2022?

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Answer Key

1. The primary parties are Sandra Swanson & Robert Barnes, who are the “Petitioners,” and the Circle G Ranches 4 Homeowners Association, which is the “Respondent.” The Petitioners are property owners and members of the Association who filed a complaint against it. The Association is the governing body for the residential development, managed by Vision Community Management, LLC.

2. The Petitioners alleged a violation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805. The core requirement of this statute is that all financial and other records of a homeowners’ association must be made “reasonably available” for examination by any member within ten business days of a request.

3. The January 16, 2020 letter requested all ballots and related documents from the vote regarding the increase in dues that occurred around October 28, 2019. It also requested all written consent forms and ballots for the Proposed Declaration Amendment regarding cumulative voting, which occurred in December 2019.

4. On January 13, 2020, the Board of Directors voted 8 to 1 to require the Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots. Their stated reason was a concern for members’ expectation of privacy regarding non-public information and a fear that members could be harassed based on their votes.

5. The Association provided the Petitioners with two separate stacks of documents. One stack contained redacted ballots, and the other stack contained unredacted envelopes that the ballots had been mailed in. This method separated the vote from the identity of the voter.

6. The Petitioners argued that by providing redacted copies and separate envelopes, the Respondent had not made the documents “reasonably available” as required by statute. They contended this method created an unlawful barrier because they were unable to cross-reference the ballots with the purported voters to verify the vote.

7. The Association defended its actions by arguing that the statute does not specify the how records should be produced, only that they be made available. It contended that it provided the totality of the information requested in a timely manner while also fulfilling its duty to protect the privacy and safety of its members from potential harassment.

8. The Petitioners bear the burden of proving by a “preponderance of the evidence” that the Respondent violated the statute. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge concluded that the Respondent’s request for the Petitioners to sign an NDA did not constitute a violation of ARIZ. REV. STAT. § 33-1805. The judge also noted the NDA was ultimately irrelevant to the outcome because the Association provided the documents even though the Petitioners declined to sign it.

10. The Administrative Law Judge denied the Petitioners’ petition. The judge concluded that the Petitioners did not sustain their burden of proof to show that the Association had committed a violation of ARIZ. REV. STAT. § 33-1805, finding the Association’s actions to be reasonable under the circumstances.

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Essay Questions

The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and arguments from the case documents.

1. Analyze the central legal conflict over the interpretation of the phrase “reasonably available” in ARIZ. REV. STAT. § 33-1805. Contrast the arguments made by the Petitioners and the Respondent, and explain how the Administrative Law Judge ultimately resolved this conflict in the decision.

2. Discuss the competing interests the Circle G Ranches 4 Homeowners Association attempted to balance in its response to the records request. Evaluate the measures it took, including the proposed NDA and the method of document delivery, in light of its duties to both the Petitioners and its general membership.

3. Trace the procedural history of the case from the initial petition filing on September 22, 2020, to the final order on February 2, 2022. What does this timeline reveal about the administrative hearing and appeals process for HOA disputes in Arizona?

4. The Petitioners argued that the ballots in question were not truly “secret ballots” and that voters could not have had a reasonable expectation of privacy. Based on the evidence presented, construct an argument supporting this position and a counter-argument defending the Association’s stance on member privacy.

5. Examine the legal reasoning employed by the Administrative Law Judge in the “Conclusions of Law.” How did principles of statutory construction and the “preponderance of the evidence” standard directly influence the final order denying the Petitioners’ petition?

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Glossary of Key Terms

Definition in the Context of the Document

Administrative Law Judge (ALJ)

The official, in this case Jenna Clark, who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision based on findings of fact and conclusions of law.

ARIZ. REV. STAT. § 33-1805

The specific Arizona statute at the heart of the dispute, which mandates that a homeowners’ association’s records be made “reasonably available” for member examination within ten business days of a request.

Association / Respondent

The Circle G Ranches 4 Homeowners Association, the governing body for the residential development and the party against whom the petition was filed.

Board of Directors (the Board)

The group that oversees the Association and is responsible for its governance. The Board voted to require an NDA before releasing voting records.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioners) to produce the evidence that will prove the claims they have made against the other party.

Covenants, Conditions, and Restrictions. These are the governing documents for the Circle G Ranches 4 Homeowners Association.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings involving homeowners’ associations.

Nondisclosure Agreement (NDA)

A legal contract proposed by the Association’s Board that would have required the Petitioners to keep the voting information confidential. The Petitioners declined to sign it.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department refers HOA dispute cases for an evidentiary hearing before an Administrative Law Judge.

Petitioners

Sandra Swanson and Robert Barnes, members of the Association who filed the petition alleging a violation of state law by the Association.

Preponderance of the Evidence

The evidentiary standard required for the Petitioners to win their case. It is defined as proof that convinces the judge that a contention is more probably true than not.

Redacted

Edited to remove or black out confidential or private information. The Association provided redacted ballots to the Petitioners to protect member privacy.

Vision Community Management, LLC (Vision)

The management company hired by and acting on behalf of the Association.

Your HOA Can Legally Keep Secrets From You. Here’s How.

Introduction: The Fight for Transparency

As a homeowner in an association, you assume a right to see the records. Transparency, after all, is the bedrock of accountability. But a recent legal dispute in Arizona offers a masterclass in how the gap between a right to information and the reality of obtaining it can be vast. The case demonstrates how a determined HOA, armed with a nuanced legal strategy and a literal interpretation of the law, can fulfill its obligation to provide records while ensuring they reveal almost nothing. It’s a story of escalation that began not with redacted documents, but with a demand for a nondisclosure agreement, setting the stage for a battle over what it truly means for records to be “available.”

1. The Two-Pile Shuffle: How “Access” Doesn’t Always Mean “Answers”

The conflict began with a standard request from a group of homeowners (the Petitioners) to examine their HOA’s voting records. The Board’s response, however, was anything but standard. Citing privacy concerns, the Board voted 8-to-1 on a crucial first move: it would require the homeowners to sign a nondisclosure agreement (NDA) before they could view the ballots. The homeowners refused, creating a standoff.

Forced to provide access but unwilling to yield on its privacy stance, the HOA (the Respondent) devised a clever workaround. When the homeowners arrived to inspect the approximately 122 pages of records, they weren’t handed a coherent set of documents. Instead, after spending roughly three and a half hours sifting through the materials, they discovered they had been given two separate stacks: one containing redacted ballots with the votes visible but the names blacked out, and another containing the unredacted envelopes they arrived in.

This “two-pile shuffle” made it impossible to match a ballot to a voter, effectively neutralizing the homeowners’ ability to verify the vote. They argued that this method failed to make the documents “reasonably available” as required by Arizona statute. The HOA’s strategy proved legally astute, leading to a court case that hinged on the very definition of access.

2. The Privacy Shield: A Proactive Defense

The HOA’s justification for its actions was a proactive and layered defense rooted in protecting its members. The Board’s initial demand for an NDA was not a retroactive excuse, but its opening move, signaling a deep-seated concern that releasing the voting information could lead to conflict within the community.

This concern was not merely abstract. Faced with multiple homeowner complaints labeling the Petitioners’ behavior as “harassing,” the Board first attempted to manage the information release by requiring the nondisclosure agreement. When that failed, it developed the two-pile system. The HOA’s legal position was that it had a duty to balance the homeowners’ request against the “privacy and safety of all Owners.” In a letter, the association’s counsel articulated this position clearly:

The Association’s position is that it has to balance your clients’ requests against the privacy and safety of all Owners within the Association. The Board is concerned with the personal information contained on the written consent forms or other documents and fears that individual members will be retaliated against or harassed based on a member’s decision to support, or not support, the matters up for a decision.

This defense, framed as a duty to protect the community from internal strife, became the cornerstone of the HOA’s successful legal argument.

3. The “Reasonably Available” Loophole

The entire legal battle was ultimately decided by the interpretation of a single phrase in Arizona Revised Statute § 33-1805, which requires an association to make its records “reasonably available.” The case exposed a critical ambiguity in the law.

• The Homeowners’ View: They argued that “reasonably available” implies usability. To be meaningful, the records had to be provided in a way that allowed them to cross-reference votes with voters. A deliberately disorganized release, they contended, was not reasonable.

• The HOA’s View: The association countered with a brilliant legal distinction: the statute dictates what records must be produced, not how they must be presented. By providing all the components—the ballots and the envelopes—they had fulfilled their duty, even if they were separated.

In a decision that highlights the judiciary’s deference to the literal text of a statute, the Administrative Law Judge sided with the HOA. The judge’s ruling found no violation because, in the end, the homeowners had received everything they asked for. The legal linchpin of the decision was the finding that “the record reflects that Petitioners timely received the totality of the documents from their records request(s).” This interpretation effectively created a loophole, allowing the HOA to comply with the letter of the law while completely withholding the context the homeowners sought.

Conclusion: When “Legal” Isn’t the Whole Story

This case is a stark reminder that a legally defensible action can still feel like an affront to the spirit of community governance. The HOA’s victory demonstrates that in a dispute over transparency, the side with the more precise reading of the law, rather than the more open approach, may prevail. It reveals the profound tension between a homeowner’s right to know, an association’s duty to protect its members from potential harassment, and the powerful ambiguities hidden in legal statutes. An HOA can, with careful legal maneuvering, use privacy as a shield to deliver information in a way that obscures more than it reveals—and do so without breaking the law.

In a community governed by rules, what’s more important: absolute transparency, or the protection of every member’s privacy?

Case Participants

Petitioner Side

Sandra Swanson (petitioner)
Robert Barnes (petitioner)
Kristin Roebuck Bethell (petitioner attorney)
Horne Siaton, PLLC
Also listed as Kristin Roebuck, Esq.,

Respondent Side

Jeremy Johnson (respondent attorney)
Joes, Skelton & Hochuli, PLC
Samantha Cote (respondent attorney)
Joes, Skelton & Hochuli, PLC
Also listed as Sam Cote, Esq.,
Patricia Ahler (witness)
Circle G Ranches 4 Homeowners Association
Amanda Stewart (witness)
Circle G Ranches 4 Homeowners Association
Jennifer Amundson (witness)
Circle G Ranches 4 Homeowners Association
Regis Salazar (witness)
Circle G Ranches 4 Homeowners Association
Clint Goodman (HOA attorney)
Vision Community Management, LLC
Attorney for Vision, the HOA's property manager,

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Commissioner during initial decision phase
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Commissioner during final/rehearing decision phase,
Dan Gardner (ADRE Staff)
Arizona Department of Real Estate
ADRE contact c/o Commissioner,,

Clifford (Norm) S. Burnes v. Saguaro Crest Homeowners Association,

Posted on March 23, 2021 by [email protected]

Case Summary

Case ID	21F-H2120002-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2021-08-09
Administrative Law Judge	Jenna Clark
Outcome	partial
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Clifford Burnes and Maria Burnes	Counsel	Cynthia F. Burnes, Esq.
Respondent	Saguaro Crest Homeowners Association, Inc.	Counsel	John Crotty, Esq.

Alleged Violations

CC&Rs Section 5
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 33-1804(A), (D), and (E)
ARIZ. REV. STAT. § 33-1805

Outcome Summary

The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.

Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).

Key Issues & Findings

Alleged violation of CC&Rs Section 5

Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

CC&Rs Section 5

Alleged violation of Community Agricultural Design Guidelines Section 4.0

Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 10-3821

Alleged violation of A.R.S. § 33-1804(A), (D), and (E)

Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT § 10-3821

Alleged violation of A.R.S. § 33-1805

Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.

Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.

Filing fee: $125.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 33-1805

Analytics Highlights

Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 10-3821
CC&Rs Section 5
Architectural Design Guidelines Section 4.0

Video Overview

Audio Overview

Decision Documents

21F-H2120002-REL Decision – 902726.pdf

Uploaded 2026-04-24T11:28:59 (239.9 KB)

21F-H2120002-REL Decision – 866263.pdf

Uploaded 2026-04-24T11:29:03 (268.5 KB)

Briefing Document: Burnes v. Saguaro Crest Homeowners Association, Final Decision

Executive Summary

This document synthesizes the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association (“Respondent”), case number 21F-H2120002-REL-RHG. The dispute centered on a four-issue petition alleging violations by the Association related to new construction on a neighboring property (Lot 7), an unnoticed Board meeting, and the fulfillment of a records request.

Following an initial hearing and a subsequent rehearing, the Administrative Law Judge (ALJ) largely affirmed the original decision. The Petitioners failed to meet their burden of proof on three of the four issues, with the judge finding no violations by the Association regarding architectural controls, the waiver of a construction deposit, or the conduct of a Board meeting.

However, the Petitioners successfully proved that the Association violated Arizona Revised Statute § 33-1805 by failing to timely and completely fulfill a comprehensive records request. The final order requires the Association to reimburse the Petitioners for a portion of their filing fee ($500), comply with the records statute moving forward, and provide the specific missing documents (email attachments) from the original request. The rehearing was granted on the basis of “newly discovered evidence,” but the Petitioners conceded during the proceeding that they possessed no new evidence, leading the ALJ to rely solely on the record from the first hearing.

I. Background and Procedural History

The case involves a dispute between property owners Clifford and Maria Burnes and their homeowners’ association, Saguaro Crest, located in Tucson, Arizona. The Association is governed by Covenants, Conditions, and Restrictions (CC&Rs) recorded in 2006 and Architectural Design Guidelines adopted in 2018.

Procedural Timeline

July 17, 2020

Petitioners file a 4-issue petition with the Arizona Department of Real Estate.

August 11, 2020

Respondent (HOA) denies all claims in its answer.

Dec 11, 2020 & Mar 1-2, 2021

An evidentiary hearing is held before the Office of Administrative Hearings (OAH).

March 22, 2021

The Administrative Law Judge (ALJ) issues the initial decision.

April 28, 2021

Petitioners file a dispute rehearing request, alleging newly discovered evidence.

May 21, 2021

The Commissioner of the Department of Real Estate grants the rehearing request.

July 20, 2021

The rehearing is held. Petitioners concede they have no “new” evidence.

August 09, 2021

The Final Administrative Law Judge Decision is issued, affirming the initial ruling.

Key Parties

Name / Entity

Clifford & Maria Burnes

Petitioners; owners of Lot 6.

Cynthia F. Burnes, Esq.

Counsel for Petitioners.

Saguaro Crest HOA, Inc.

Respondent.

John Crotty, Esq.

Counsel for Respondent.

Norm Burnes

Petitioner; appointed to the Architectural Review Committee (ARC) in 2017.

Raul & Ramona Martinez

Owners of Lot 7, the property under construction.

Jenna Clark

Administrative Law Judge (ALJ).

II. Analysis of Allegations and Findings

The petition presented four distinct issues for adjudication. The Petitioners bore the burden of proving each violation by a preponderance of the evidence.

Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)

• Petitioners’ Allegation: The Association improperly allowed construction on Lot 7 to proceed without required documents being submitted to the Architectural Review Committee (ARC) for approval.

• Factual Record:

◦ The ARC, which included Petitioner Norm Burnes, unanimously approved construction plans for Lot 7 on January 3, 2018.

◦ Construction began sometime in 2018. Pima County approved the plans on May 4, 2018.

◦ On April 14, 2020, Petitioner Burnes sent a formal letter of concern to the Board, stating the placement of the home on Lot 7 was not per the approved plan and had destroyed their view and privacy. The letter included the following statement:

• Conclusion of Law: No violation found. The ALJ determined that while the construction on Lot 7 was not per the plans the ARC approved on January 3, 2018, no subsequent or modified plans were ever submitted to the ARC for review. The decision states, “The ARC cannot approve or deny proposed plans unless they are submitted for review.” Furthermore, the record shows the construction complies with the local government’s building authority.

Issue 2: Alleged Violation of Design Guidelines Section 4.0 (Construction Deposit)

• Petitioners’ Allegation: The Association allowed construction on Lot 7 without collecting the required $5,000.00 Construction Compliance Deposit.

• Factual Record:

◦ On May 3, 2020, the Board of Directors decided to honor a Construction Compliance Deposit waiver that had been previously granted to the Martinez family.

◦ This discretionary waiver was reportedly granted during an economic downturn to incentivize property purchases.

◦ Critically, the Association “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”

• Conclusion of Law: No violation found. The ALJ concluded it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record was noted, but the inquiry was deemed moot as it was not a noticed issue in the petition.

Issue 3: Alleged Violation of A.R.S. § 33-1804 (Unnoticed Meeting)

• Petitioners’ Allegation: The Board of Directors conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes.

• Factual Record:

◦ On April 18, 2020, Petitioner requested an urgent meeting with the Board, which was held the next day.

◦ On May 20, 2020, the Board acted with unanimous consent (obtained via individual signatures) to restrict Petitioner Burnes’s participation as an ARC member “regarding all issued related to the construction of Lot 7.”

◦ The Board’s notes state: “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.”

• Conclusion of Law: No violation found. The judge ruled that the Board’s failure to notice the April 19 meeting was excused as an exception because the Petitioner himself had requested it on an urgent basis. Regarding the May 20 action, the record shows Mr. Burnes was not removed from the ARC entirely, but only recused from matters concerning the Lot 7 dispute in which he had a direct conflict of interest.

Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)

• Petitioners’ Allegation: The Association failed to properly fulfill a records request.

• Factual Record:

◦ On June 4, 2020, Petitioners submitted a comprehensive, 17-point records request and demanded fulfillment within the statutory 10-day period.

◦ On June 16, 2020, the Association made 342 pages of documents available for in-person review but prohibited Petitioners from using their own scanning equipment.

◦ The statutory deadline for compliance was June 18, 2020.

◦ On June 24, 2020, after Petitioners paid a $51.30 fee, the Association provided copies of the documents.

◦ Later that day, Petitioners notified the Association that the document package was incomplete, as “attachments for some emails are not included.”

• Conclusion of Law: Violation established. The ALJ found that the Association failed to comply with the statute. The documents were made available for review within the 10-day window, but the copies were not provided until June 24, after the deadline. More importantly, the copies provided were incomplete. The judge rejected the Association’s argument that a clarification from the Petitioner reset the statutory clock.

III. Final Order and Directives

The Final Administrative Law Judge Decision, issued after the rehearing, affirmed the conclusions of the initial March 22, 2021 decision.

• Petition Status: The petition was granted in part (on Issue 4) and denied in part (on Issues 1, 2, and 3).

• Financial Reimbursement: The Respondent (Saguaro Crest HOA) is ordered to reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00.

• Statutory Compliance: The Respondent is ordered to henceforth comply with the requirements of A.R.S. § 33-1805 regarding records requests.

• Document Production: The Respondent is ordered to provide the Petitioners with the missing email attachments related to the June 4, 2020 records request within 10 business days of the final order’s effective date.

Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.

This study guide provides a detailed review of the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes versus the Saguaro Crest Homeowners Association, Inc. (No. 21F-H2120002-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms used in the legal proceedings.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.

1. Who are the Petitioners and the Respondent in this case, and what is their fundamental relationship?

2. List the four distinct issues the Petitioners alleged against the Respondent in their initial petition.

3. On what grounds did the Petitioners request and receive a rehearing after the initial decision was issued on March 22, 2021?

4. What was the outcome of the Petitioners’ attempt to present new witnesses and exhibits during the rehearing on July 20, 2021?

5. Why did the Administrative Law Judge conclude that the Respondent had not violated Section 5 of the CC&Rs regarding the construction on Lot 7?

6. Explain the controversy surrounding the $5,000 Construction Compliance Deposit and the court’s ultimate finding on the matter.

7. What action did the Board of Directors take against Petitioner Norm Burnes on May 20, 2020, and why was this action not considered a violation of A.R.S. § 33-1804?

8. Which of the four allegations was ultimately successful for the Petitioners, and what specific failures by the Respondent led to this finding?

9. What were the four key orders issued by the Administrative Law Judge in the Final Order?

10. What was Petitioner Norm Burnes’s official role within the Saguaro Crest community, and how did this position create a conflict of interest in the dispute?

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Quiz Answer Key

1. The Petitioners are Clifford and Maria Burnes, who are property owners in the Saguaro Crest subdivision and members of the homeowners’ association. The Respondent is the Saguaro Crest Homeowners Association, Inc. (HOA), which is the governing body for the subdivision.

2. The four issues were: (1) The HOA allowed construction on Lot 7 without required ARC document submission in violation of CC&Rs Section 5; (2) The HOA allowed construction without a required Construction Compliance Deposit; (3) The Board conducted an unnoticed meeting in violation of A.R.S. § 33-1804; (4) The HOA failed to fulfill a records request in violation of A.R.S. § 33-1805.

3. The Petitioners requested a rehearing on the grounds of having “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” They also alleged that the original decision was “arbitrary, capricious, or an abuse of discretion.”

4. At the rehearing, the Petitioners conceded they possessed no “newly discovered” evidence, but rather evidence they had strategically chosen not to present previously. Because they did not provide a satisfactory offer of proof for new evidence, they were precluded from recalling witnesses or offering additional exhibits.

5. The Judge found that while the construction on Lot 7 was not per the plans approved by the ARC on January 3, 2018, no additional plans had been submitted for the ARC’s consideration. The Judge reasoned that the ARC cannot approve or deny plans that are not submitted, and the build complied with the local government’s building authority.

6. The Architectural Design Guidelines required a $5,000 deposit, but the owners of Lot 7 had been granted a waiver. Although the HOA did not possess a corporate record of the waiver, the Board voted to honor it. The court found no violation because the waiver had been granted, and the lack of documentation was not the specific issue being litigated.

7. On May 20, 2020, the Board held an unnoticed meeting and, via unanimous consent, restricted Petitioner Burnes’s participation as an ARC member for all matters related to Lot 7. This was not a violation because the failure to notice was excused as an exception, and the Board only removed him from matters concerning Lot 7, not from the ARC entirely.

8. Issue #4, the records request violation, was successful for the Petitioners. The Respondent failed to provide copies of the requested documents within the statutory 10-day deadline, providing them on June 24, 2020, when the deadline was June 18, 2020. Furthermore, the documents provided were incomplete, as they were missing email attachments.

9. The Final Order affirmed the previous decision, ordered the Respondent to reimburse the Petitioners for 1/4 of their filing fee ($500.00), ordered the Respondent to comply with A.R.S. § 33-1805 going forward, and ordered the Respondent to provide the missing email attachments within 10 business days.

10. Petitioner Norm Burnes was a member of the Association’s Architectural Review Committee (ARC). This created a conflict of interest because he was part of the committee that initially approved the Lot 7 construction plans, but he later raised formal complaints against that same construction project due to its impact on his own property (Lot 6).

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the concept of “burden of proof” by a “preponderance of the evidence” as it applies to this case. How did the Petitioners succeed in meeting this burden for Issue #4 but fail for the other three issues?

2. Discuss the powers and limitations of a Homeowners’ Association Board and its Architectural Review Committee as illustrated in this case, specifically concerning construction approval, enforcement authority, and the management of member conflicts of interest.

3. The Petitioners’ request for a rehearing was based on “newly discovered material evidence.” Explain why this request ultimately failed to change the outcome and discuss the strategic decisions made by the Petitioners regarding the presentation of evidence.

4. Examine the conflict between a homeowner’s desire for privacy and unobstructed views (as expressed by the Petitioners) and the rights of a neighboring property owner to develop their land. How did the community’s governing documents and the final legal decision address this conflict?

5. Trace the timeline of the records request dispute (Issue #4). What were the specific actions and inactions by the Respondent that led to a finding of a statutory violation, and what does this illustrate about an HOA’s administrative and statutory responsibilities to its members?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Jenna Clark.

Architectural Review Committee (ARC)

A committee charged by an HOA’s CC&Rs with implementing architectural guidelines to maintain aesthetic standards and preserve property values. Petitioner Norm Burnes was a member of this committee.

Arizona Department of Real Estate (Department)

The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.

Arizona Revised Statute (ARIZ. REV. STAT. or A.R.S.)

The codified laws of the State of Arizona. Specific statutes cited include § 33-1804 (regarding open meetings) and § 33-1805 (regarding association records).

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioners bore the burden of proving their claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community. They form an enforceable contract between the HOA and each property owner.

Homeowners’ Association (HOA)

The organization that makes and enforces rules for a subdivision or planned community. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.

Offer of Proof

A presentation of evidence made to a judge to demonstrate the substance and relevance of evidence that a party seeks to introduce. The Petitioners’ offer of proof regarding new evidence was found to be unsatisfactory.

Office of Administrative Hearings (OAH)

An independent state agency that conducts evidentiary hearings for other state agencies. This matter was referred to the OAH by the Department of Real Estate.

Petitioners

The party that initiates a legal action or petition. In this case, Clifford and Maria Burnes are the Petitioners.

Preponderance of the Evidence

The standard of proof in most civil cases. It means that the evidence presented is sufficient to convince the trier of fact that a contention is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.

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21F-H2120002-REL-RHG

1 source

The provided text is a Final Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, detailing a dispute between petitioners Clifford and Maria Burnes and the Saguaro Crest Homeowners Association, Inc. The case involved four specific allegations of violations by the Association, including allowing unapproved construction on Lot 7, failing to collect a required construction deposit, conducting an unnoticed meeting, and failing to fulfill a records request. This document affirms an earlier decision, concluding that the Petitioners failed to sustain the burden of proof for the first three issues but succeeded on the fourth issue regarding the violation of Arizona law concerning records requests. Consequently, the Association was ordered to comply with the relevant statute, provide missing email attachments, and reimburse a portion of the Petitioners’ filing fee.

Case Participants

Petitioner Side

Clifford (Norm) S. Burnes (petitioner)
Saguaro Crest subdivision property owner; ARC Member
Maria Burnes (petitioner)
Saguaro Crest subdivision property owner
Jacob A. Kubert (attorney)
Cynthia F. Burnes (attorney)
Debora Brown (witness)

Respondent Side

John Crotty (attorney)
Law Offices of Farley, Choate & Wood
Kelsea Dressen (attorney)
Law Offices of Farley, Choate & Wood
Esmerelda Martinez (board president; witness)
Saguaro Crest HOA Board of Directors
President of the Board
Dave Madill (board member)
Saguaro Crest HOA Board of Directors
Vice President of the Board
Julie Stevens (board member)
Saguaro Crest HOA Board of Directors
Treasurer of the Board
Raul Martinez (property owner)
Owner of Lot 7 and 13
Construction on his property (Lot 7) is subject of the dispute
Ramona Martinez (property owner)
Owner of Lot 7

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Sadot Negreté (observer)
Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate
Dan Gardener (ADRE contact)
Arizona Department of Real Estate
Also listed as DGardner
c. serrano (administrative staff)
Office of Administrative Hearings

Other Participants

Jamie Argueta (ARC member; property seller)
Saguaro Crest HOA Architectural Review Committee
Sold Lots 7 and 13 to Martinez family
Joseph Martinez (ARC member)
Saguaro Crest HOA Architectural Review Committee
Jesus Carranza (substitute ARC member)
Saguaro Crest HOA Architectural Review Committee
Substitute for Petitioner during Lot 7 discussion