Michael D. Ludden vs Mountain Gate Homeowners Association

Posted on September 23, 2025 by [email protected]

Case Summary

Case ID	25F-H051-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2025-09-23
Administrative Law Judge	Nicole Robinson
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael D. Ludden	Counsel	—
Respondent	Mountain Gate Homeowners Association	Counsel	—

Alleged Violations

CC&Rs Article 1, Definitions, Area of Association Responsibility

Outcome Summary

The Administrative Law Judge granted the petition, concluding that the HOA CC&Rs mandate that the Association is responsible for replacing individual homeowners' roofs, if needed, primarily by interpreting the contractual term 'repair' to encompass 'replacement,' and noting that the roof is explicitly included under the HOA's maintenance and repair duties while items solely the owner's responsibility (windows, doors, interior plumbing) are specifically excluded from Areas of Association Responsibility.

Key Issues & Findings

Areas of Association Responsibility – Association responsibility for roof replacement by the association not clearly specified as to whether or not it’s an association or homeowner responsibility.

Petitioner sought clarification on whether the HOA's CC&Rs mandate roof replacement as part of 'Areas of Association Responsibility.' The ALJ concluded that the term 'repair' includes 'replacement,' and based on the CC&Rs language regarding maintenance and repair of the roof and the specific exclusion of windows and doors, the HOA is responsible for roof replacement if needed.

Orders: Respondent ordered to reimburse Petitioner’s filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 32-2199.01
CC&Rs Article 1
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Merriam-Webster dictionary

Analytics Highlights

Topics: HOA Responsibility, Roof Replacement, CC&R Interpretation, Planned Community

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02
CC&Rs Article 1
CC&Rs Article 5.18
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
In re William L., 211 Ariz. 236, 238 (App. 2005)

Audio Overview

Decision Documents

25F-H051-REL Decision – 1323178.pdf

Uploaded 2026-01-23T18:23:58 (68.2 KB)

25F-H051-REL Decision – 1328240.pdf

Uploaded 2026-01-23T18:24:04 (71.7 KB)

25F-H051-REL Decision – 1353423.pdf

Uploaded 2026-01-23T18:24:09 (167.6 KB)

Briefing Doc – 25F-H051-REL

Briefing Document: Ludden v. Mountain Gate Homeowners Association

Executive Summary

This document synthesizes the proceedings and outcome of the legal dispute between petitioner Michael D. Ludden and the Mountain Gate Homeowners Association (HOA) concerning the responsibility for roof replacement. On September 23, 2025, an Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings issued a final decision, ruling conclusively in favor of the petitioner.

The central finding is that the Mountain Gate HOA is financially responsible for the full replacement of homeowner roofs when necessary, in addition to its acknowledged duties of maintenance and repair. The ruling was based on a close interpretation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the CC&Rs’ definition of an “Improvement” (which includes any building or structure) combined with the Association’s explicit obligation to “maintain, repair and replace” such improvements, established the HOA’s liability for roof replacement.

The dispute arose from ambiguous language within the CC&Rs, which was compounded by conflicting verbal and written promises made by both the original and subsequent developers during home sales. The HOA argued that financial impracticality and a 2010 amendment requiring individual homeowner insurance shifted replacement liability to the owners. However, the ALJ’s decision rejected these arguments, finding the language of the governing documents to be controlling. As a direct result of the ruling, the Mountain Gate HOA must reimburse the petitioner’s $500 filing fee and is legally bound to comply with this interpretation of its responsibilities moving forward.

Case Overview

Legal Proceedings

Case Name

In the Matter of: Michael D. Ludden, Petitioner, v. Mountain Gate Homeowners Association, Respondent.

Case Number

25F-H051-REL

Tribunal

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Nicole Robinson, Administrative Law Judge

Hearing Date

September 3, 2025

Decision Date

September 23, 2025

Parties Involved

Title/Position

Petitioner

Michael D. Ludden

Homeowner and HOA President

Petitioner’s Witness

Brenda Anderson

HOA Secretary Treasurer

Respondent Representative

James “Jim” Pieper

HOA Board Member at Large

Respondent’s Witness

Pablo Martinez

HOA Director at Large

Central Issue

The core of the dispute was the interpretation of the Mountain Gate HOA’s CC&Rs to determine whether the Association is financially responsible for the full replacement of homeowner roofs at the end of their service life, or if its obligation is limited solely to maintenance and repair.

Background and Community History

The dispute is rooted in the development history of the Mountain Gate community, which consists of 42 townhome units in Lakeside, Arizona.

• 2006: The community is established and the association is incorporated as a condominium association.

• 2007: Construction begins on the first 12 units under the original developer.

• 2010: The development is re-platted from condominiums to townhomes, becoming a planned community. The CC&Rs are amended (Article 5.18) to require individual owners to obtain comprehensive insurance for the full replacement cost of their dwelling unit.

• c. 2014: The original developer goes bankrupt. Petitioner Michael Ludden purchases his unit from the developer’s sales agent, Gary Laframboise, who verbally stated that roof maintenance and replacement were the HOA’s responsibility.

• 2016: A new developer, Maebee Mountaingate LLC, purchases the remaining lots and resumes construction.

• 2018: The new developer utilizes sales brochures that explicitly promise roof replacement coverage. One document states, “Roofs last 20 years, replacement can cost $9500. In Mountain Gate part of your homeowner’s dues will be there to replace your roof if it is needed.”

• 2021: The new developer commissions a reserve study which includes line items for roof replacement.

• July 2022: With all 42 units completed, control of the HOA is transitioned from the developer to the homeowners. The Association’s reserve fund has a zero balance at the time of turnover.

• 2024: A homeowner demands the HOA replace his roof, prompting the board to seek a legal opinion and bringing the ambiguity in the CC&Rs to the forefront.

• February 28, 2025: Michael Ludden files a petition with the Arizona Department of Real Estate to seek a formal ruling on the matter.

• September 3, 2025: An evidentiary hearing is conducted by the Office of Administrative Hearings.

Arguments Presented at Hearing

Petitioner’s Position (Michael D. Ludden)

The petitioner argued that the HOA is, and has always been represented as being, responsible for roof replacement.

• Governing Documents (CC&Rs): The primary argument centered on Article 1 of the CC&Rs. It defines “Improvements” as “any building, wall or structure” and states the Association “is obligated to maintain, repair and replace” these improvements. The petitioner asserted that a dwelling unit is an “Improvement,” and therefore its roof is subject to replacement by the HOA.

• Developer Representations: Evidence was presented showing consistent promises from both developers.

◦ A text message from the original developer’s agent, Gary Laframboise, dated October 8, 2024, confirmed, “roof maintenance and replacement is HOA responsibility.”

◦ Sales brochures from the second developer, dated 2018, were used to attract buyers with the explicit promise that HOA dues would cover roof replacement.

• Practical Concerns: It was argued that HOA control over replacement is necessary to maintain aesthetic uniformity and structural standards across the community, preventing homeowners from using substandard materials or unapproved colors (a “purple shingle” scenario was cited).

Respondent’s Position (Mountain Gate HOA)

The respondent, represented by board members, argued that roof replacement is the financial responsibility of the individual homeowner.

• Governing Documents (CC&Rs): The respondent focused on a more specific clause within Article 1 that states the Areas of Association Responsibility “shall include the maintenance and repair of: all exterior walls and the roof of any Dwelling Unit.” They contended that the absence of the word “replace” in this specific clause meant the duty did not exist, superseding the more general language.

• Shift in Liability (2010 Amendment): A key argument was that the 2010 re-platting of the community from condominiums to townhomes fundamentally shifted liability. The accompanying amendment requiring owners to carry their own insurance for the “full replacement cost of the Dwelling Unit” was presented as evidence that the replacement responsibility was transferred to the homeowner and their insurer.

• Financial Impracticality: The board stressed the severe financial burden. With annual dues already at $3,318 with no amenities (e.g., pool, clubhouse), adding the cost of roof replacement would require a further increase estimated at $2,000 to $4,000 per year, which would negatively impact property values and make homes difficult to sell.

• Extraneous Documents: The respondent’s position was that sales brochures and verbal promises are not legally binding and cannot override the language of the recorded CC&Rs.

Final Decision and Legal Rationale

The Administrative Law Judge granted the petitioner’s request, finding that the HOA is responsible for replacing homeowner roofs when necessary.

Outcome: PETITION GRANTED.

Judge’s Rationale

The decision was based primarily on an interpretation of the plain language of the CC&Rs.

1. Controlling Language of the CC&Rs: The judge found the broader definition in Article 1 to be controlling. Because an “Improvement” is defined as a “building,” and the Association is obligated to “maintain, repair and replace” such Improvements, the responsibility for roof replacement was established.

2. Definition of “Repair”: The judge cited the Merriam-Webster dictionary definition of “repair” as “to restore by replacing a part or putting together what is torn or broken.” From this, she concluded that “a repair could come through replacement,” further blurring the distinction the respondent tried to make.

3. The Window Hypothetical: The judge used a hypothetical scenario to illustrate the legal reasoning. The CC&Rs state that owners are solely responsible for the “maintenance and repair” of their windows. If a window needed to be replaced, the responsibility would clearly fall on the owner, even though the word “replace” is absent. The judge reasoned the inverse is true for the roof: since the roof is explicitly listed as an Area of Association Responsibility, that responsibility logically includes replacement when a simple repair is insufficient.

4. Rejection of Respondent’s Arguments: The judge determined that the 2010 amendment requiring individual homeowner insurance “still does not relieve the HOA from repairing and maintaining the roof” and, by extension, replacing it under its CC&R-defined duties. The developer’s promises were noted as supportive but were not the primary basis for the decision.

Direct Orders Issued

Based on the findings, the Administrative Law Judge issued the following orders:

1. IT IS ORDERED that Petitioner’s petition be GRANTED.

2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents as interpreted in the decision.

Case Participants

Petitioner Side

Michael D. Ludden (petitioner)
Mountain Gate Homeowners Association
HOA President and Property Owner
Brenda Anderson (witness)
Mountain Gate Homeowners Association
HOA Secretary-Treasurer

Respondent Side

James Pieper (respondent)
Mountain Gate Homeowners Association
HOA Director-at-Large
Pablo Martinez (witness)
Mountain Gate Homeowners Association
HOA Director-at-Large
Fzen (board member)
Mountain Gate Homeowners Association
Newest board member, observed hearing

Neutral Parties

Nicole Robinson (ALJ)
OAH
Susan Nicolson (ADRE commissioner)
ADRE
Miranda (OAH staff)
OAH
Mentioned by Petitioner regarding document submission
vnunez (ADRE staff)
ADRE
Recipient of official transmission
djones (ADRE staff)
ADRE
Recipient of official transmission
labril (ADRE staff)
ADRE
Recipient of official transmission
mneat (ADRE staff)
ADRE
Recipient of official transmission
lrecchia (ADRE staff)
ADRE
Recipient of official transmission
gosborn (ADRE staff)
ADRE
Recipient of official transmission

Other Participants

Gary Laframboise (former developer agent)
Original Developer
Provided external statements cited in hearing
Karen Johnson (sales agent)
Navy Construction/Homes Smart
Represented developer Maebee Mountaingate LLC

Marilyn J Fogelsong vs Park Townhouses Homeowners Association, INC

Posted on August 5, 2025 by [email protected]

Case Summary

Case ID	25F-H050-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2025-08-05
Administrative Law Judge	Nicole Robinson
Outcome	loss
Filing Fees Refunded	$2,000.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Marilyn J. Fogelsong	Counsel	—
Respondent	Park Townhouses Homeowners Association, INC.	Counsel	—

Alleged Violations

ARIZ. REV. STAT. § 33-1811
Paragraph 19 of the CC&Rs
ARIZ. REV. STAT. § 33-1804 (A) and (F)
ARIZ. REV. STAT. § 10-830(A)

Outcome Summary

Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).

Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.

Key Issues & Findings

The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.

Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1811

The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.

The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Paragraph 19 of the CC&Rs

The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.

Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1804

The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.

Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.

Orders: N/A

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 10-830

Analytics Highlights

Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof

Additional Citations:

ARIZ. REV. STAT. § 33-1811
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 10-830
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 41-1092
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Declaration of Covenants, Conditions and Restrictions for Park Association

Audio Overview

Decision Documents

25F-H050-REL Decision – 1336348.pdf

Uploaded 2026-01-23T18:23:33 (157.7 KB)

25F-H050-REL Decision – 1348020.pdf

Uploaded 2026-01-23T18:23:37 (43.9 KB)

25F-H050-REL Decision – 1380164.pdf

Uploaded 2026-01-23T18:23:41 (51.8 KB)

25F-H050-REL Decision – 1384549.pdf

Uploaded 2026-01-23T18:23:45 (49.0 KB)

25F-H050-REL Decision – 1384804.pdf

Uploaded 2026-01-23T18:23:50 (7.5 KB)

25F-H050-REL Decision – 1393862.pdf

Uploaded 2026-02-12T19:19:32 (59.6 KB)

Briefing Doc – 25F-H050-REL

Briefing Document: Fogelsong vs. Park Townhouses Homeowners Association (Docket No. 25F-H050-REL)

Executive Summary

This document synthesizes the proceedings and outcome of the legal dispute between Marilyn J. Fogelsong (“Petitioner”) and the Park Townhouses Homeowners Association, Inc. (“Respondent”). The case was adjudicated by the Arizona Office of Administrative Hearings (OAH).

The Petitioner, a co-owner of a unit in the eight-unit Park Townhouses community, filed a petition on or about March 31, 2025, alleging four distinct violations by the HOA board. These allegations included failure to disclose a conflict of interest in hiring an HOA manager, violating the community’s CC&Rs by pursuing projects for individual units, violating state open meeting laws, and failing to act in good faith as fiduciaries.

An evidentiary hearing was conducted on July 16, 2025, before Administrative Law Judge (ALJ) Nicole Robinson. The Respondent did not appear at the hearing, and the Petitioner provided sole testimony.

On August 5, 2025, the ALJ issued a decision denying the Petitioner’s petition in its entirety. The judge concluded that the Petitioner failed to meet her burden of proof by a preponderance of the evidence for three of the four issues. The fourth issue was dismissed on the grounds that the OAH lacked the jurisdiction to enforce the specific statute cited (A.R.S. § 10-830). A subsequent request for a rehearing filed by the Petitioner was rejected by the OAH as it was submitted to the incorrect office after the OAH’s jurisdiction had ended.

Case Overview

Case Number

25F-H050-REL

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Nicole Robinson

Petitioner

Marilyn J. Fogelsong

Respondent

Park Townhouses Homeowners Association, Inc.

Subject Property

Park Townhouses, an 8-unit planned community in Tucson, AZ

Petition Filed

On or about March 31, 2025

Hearing Date

July 16, 2025

Decision Issued

August 5, 2025

Final Outcome

Petition DENIED

The Parties and Property

• Petitioner Marilyn J. Fogelsong: A partial owner of unit 2467 East 1st Street since April 2021, co-owning with her 39-year-old son who resides in the unit. Fogelsong previously served as the HOA board president for three years, with her last term ending in September 2024.

• Respondent Park Townhouses HOA: A planned community association for an eight-unit townhouse development in Tucson, Arizona. Each unit owner is responsible for their own structure and lot.

• The Property: The community consists of two buildings, each with four townhouses facing each other across a 20-foot wide common driveway.

Petitioner’s Allegations and Testimony

During the July 16, 2025 hearing, Ms. Fogelsong, representing herself, presented testimony on the four issues outlined in her petition. The HOA did not appear.

Issue #1: Conflict of Interest (A.R.S. § 33-1811)

The Petitioner alleged that the HOA failed to disclose conflicts of interest when hiring Tucson Realty & Trust Company (TRT) as the HOA property manager, rendering the contract void.

• Core Allegation: On February 17, 2025, the HOA board presented only one proposal—from TRT—and asked homeowners to approve the hire without disclosing pertinent conflicts.

• Identified Conflicts:

◦ TRT’s property management division manages two units within the community (2463 and 2467) owned by then-current board members Mark Schlang (Treasurer) and Gerald Schwarzenb[erger] (Secretary).

◦ Both the property management and HOA management divisions of TRT operate under the same broker, Deborah Garcia.

• History of Misconduct by TRT: The Petitioner testified to a history of issues with TRT that she believed constituted conflicts of interest:

◦ TRT collected parking violation fines from a tenant but failed to remit them to the HOA.

◦ TRT failed to provide tenant contact information to the HOA upon request, which is a violation of Arizona law.

◦ TRT’s attorney, BL Edmonson, sent a “cease and desist” letter to Fogelsong and then invoiced the HOA for the legal fees, which Fogelsong, as president at the time, rejected. The invoice was resubmitted to the HOA 18 months later.

Issue #2: CC&R Violation (Paragraph 19)

The Petitioner alleged the HOA violated Paragraph 19 of the Covenants, Conditions, and Restrictions (CC&Rs) by directing the HOA manager to pursue an “unsanctioned project for individual townhouses.”

• Core Allegation: The HOA manager (TRT) met with a painting company on March 31, 2025, to solicit bids for painting the exteriors of all townhouses. The Petitioner argued this action is beyond the scope of the HOA’s authority, which is limited to maintaining common areas.

• Supporting Evidence:

◦ The Petitioner cited a legal opinion she obtained from an HOA attorney, Jason Smith, which concluded that the HOA does not have the right to conduct repairs on individual units.

◦ She referenced a past incident where another homeowner, David Zinfeld, paid an assessment for awning wood repair “under protest” because the funds were being used for an individual unit, not a common area.

Issue #3: Open Meeting Law Violations (A.R.S. § 33-1804)

The Petitioner claimed the board violated Arizona’s open meeting laws through multiple actions.

• Secret Meeting: The board held a private meeting to approve TRT as the manager before the February 17, 2025, homeowners meeting where the vote occurred. No notice of this prior board meeting was given to homeowners.

• Failure to Provide Information: The Petitioner made multiple requests for documents that were ignored. She requested management proposals on February 4, 2025, and later requested minutes, financial statements, and property management agreements, none of which were provided.

• Disregarded Standing: In its written response to the petition, the HOA claimed the Petitioner lacked “sufficient standing” due to her “limited ownership stake,” a position the Petitioner refutes based on her recorded deed.

Issue #4: Failure to Act in Good Faith (A.R.S. § 10-830A)

The Petitioner alleged the board failed to perform its duties with the care an “ordinarily prudent person” would exercise.

• Dereliction of Duties:

◦ The board, elected in September 2024, waited 10 weeks to meet and elect officers.

◦ The board failed to take control of the HOA bank account until March 2025, approximately six months into its one-year term.

◦ It failed to schedule a required annual backflow test for the irrigation system, resulting in the water being shut off.

◦ It failed to replace a dead tree that was on the agenda for replacement in fall 2024.

◦ It failed to check the HOA’s post office box, leading to the return of dues checks from homeowners.

◦ It did not abate new graffiti for six weeks, at which point the Petitioner did so herself after receiving permission.

Respondent’s Position

Although the HOA was not present at the hearing, its positions were articulated in a five-page written response submitted to the Department of Real Estate on May 8, 2025, and were referenced during the hearing.

• Denial of Claims: The Respondent denied all of the Petitioner’s claims.

• Challenge to Standing: The HOA’s formal position was that Ms. Fogelsong lacked sufficient standing due to her “limited ownership stake.”

• Allegation of Ulterior Motive: The Respondent accused the Petitioner of a “calculated and systematic attempt to devalue the property and agitate the owners to possibly sell their respective units to Miss Fogong [sic] and her son at a below market value.” They claimed several owners could testify to her “repeated suggestions and solicitations to sell.”

• Claim of Non-cooperation: The HOA stated that the Petitioner had “not been fully cooperative in the transition process” regarding missing documentation after her term as president ended.

Administrative Law Judge’s Decision

On August 5, 2025, ALJ Nicole Robinson issued a decision denying the petition. The core finding was that the Petitioner failed to meet her burden of proving the violations by a preponderance of the evidence.

Findings on Each Issue

• Issue #1 (Conflict of Interest): No Violation Found. The ALJ concluded that the Petitioner failed to prove the hiring of TRT constituted a conflict of interest as defined by A.R.S. § 33-1811. The evidence showed that a prior management company (McElwain) also managed individual units while serving as the HOA manager, suggesting this was an established practice. The statute specifically addresses benefits to board members or their families, which was not sufficiently established by the evidence presented.

• Issue #2 (CC&R Violation): No Violation Found. The decision stated that the Petitioner failed to submit the entirety of the CC&Rs and Bylaws, providing only “snippets.” Without the complete governing documents, the tribunal could not definitively determine the scope of the HOA’s authority regarding projects on individual units. Furthermore, the evidence only showed that a bid was solicited for painting; there was no evidence that work was actually performed.

• Issue #3 (Open Meeting Law): No Violation Found. The ALJ found that the February 17, 2025, meeting was properly noticed via email. Regarding a March 5, 2025, email the Petitioner did not receive, the evidence showed her co-owner son did receive it, meaning the unit was properly notified. A December 2024 meeting was deemed emergent, for which the statute does not require prior notice.

• Issue #4 (Failure to Act in Good Faith): No Jurisdiction. The ALJ concluded that the Office of Administrative Hearings lacks jurisdiction to enforce A.R.S. § 10-830. The OAH’s authority is limited by statute to adjudicating violations of Title 33 (Planned Communities and Condominiums) and community documents, not Title 10 (Corporations and Associations).

Post-Decision Events

• On August 26, 2025, the Petitioner filed a request for a rehearing.

• On September 8, 2025, the OAH issued a Minute Entry stating that the request would not be considered because it was “inappropriately sent to the Office of Administrative Hearings.”

• The OAH’s jurisdiction over the matter had concluded with the August 5 decision. The Petitioner was advised to address any further requests to the Arizona Department of Real Estate.

Case Participants

Petitioner Side

Marilyn J. Fogelsong (petitioner)
Park Townhouses HOA
Represented herself; former HOA President/Treasurer
Levi Benjamin Lazarus (co-owner/son of petitioner)
Park Townhouses HOA
Co-owner of petitioner's unit
Jason Smith (HOA attorney)
Consulted by petitioner regarding CC&R interpretation for unit repairs

Respondent Side

Gerald Schwarzenb (board member/Secretary)
Park Townhouses HOA
Current HOA board member; his unit managed by TRT
Mark Schlang (board member/Treasurer/architect)
Park Townhouses HOA
Current HOA board member; his unit managed by TRT
Deborah Garcia (broker/HOA manager)
TRT Property Management
Broker of TRT; homeowners voted to accept her as HOA manager
Andrew Viscara (HOA property manager)
TRT Property Management
TRT representative designated for Park Townhouses HOA management
Mary Lord Lr (property manager)
TRT Property Management
Property manager for unit 2465
B.L. Edmonson (attorney)
TRT Property Management
Wrote cease and desist letter to petitioner; billed HOA

Neutral Parties

Nicole Robinson (ALJ)
OAH
Susan Nicolson (Commissioner)
ADRE

Other Participants

David Zinfeld (homeowner/former Treasurer)
Park Townhouses HOA
Property owner; prior treasurer during self-managed period; paid assessment under protest
Ray Floyd (former board member)
Park Townhouses HOA
Served on board with petitioner during self-managed period
Sasha Flores (bank account signer)
Park Townhouses HOA
Wife of Rick Flores; co-signer on HOA bank account
Rick Flores (homeowner/delegate)
Park Townhouses HOA
Delegated authority to wife Sasha Flores for bank account deeds

Miera Phx LLC v. Dartmouth Trace Homeowner Associations, Inc

Posted on March 28, 2025 by [email protected]

Case Summary

Case ID	25F-H022-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2025-03-27
Administrative Law Judge	Nicole Robinson
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Miera Phx LLC	Counsel	—
Respondent	Dartmouth Trace Homeowner Associations, Inc	Counsel	—

Alleged Violations

CC&Rs Sections 17, 6.1, 6.2, 5; Bylaws Articles I, Section 3; Article VI, Section 3(b); Article IX, Section 2

Outcome Summary

The petition was denied because the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated the cited documents or statutes, as the ALJ determined the complaint was fundamentally a dispute regarding violations committed by individual unit owners (a homeowner vs. homeowner argument).

Why this result: The ALJ found that Petitioner failed to establish that the HOA violated the governing documents or statutes, particularly noting that the Association cannot violate the Use & Occupancy restrictions cited, only a homeowner can. The statute regarding monetary penalties uses 'may' (ARIZ. REV. STAT. § 33-1242(A)(11)), indicating discretion, not a mandatory duty enforceable as a violation against the HOA.

Key Issues & Findings

HOA's failure to enforce CC&Rs prohibiting transient/short-term rentals and managing parking/common areas misuse

Petitioner alleged the HOA failed to enforce restrictions prohibiting short-term rentals (under 30 days) and misused parking/common areas by transient guests, citing conflicts of interest among Board members operating STRs.

Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 33-1242(A)(11)
ARIZ. REV. STAT. § 32-2199.02(A)
Dartmouth Trace CC&Rs Section 17
Dartmouth Trace Bylaws Article VI Section 3(b)

Audio Overview

Decision Documents

25F-H022-REL Decision – 1264772.pdf

Uploaded 2026-01-23T18:15:25 (66.0 KB)

25F-H022-REL Decision – 1275713.pdf

Uploaded 2026-01-23T18:15:30 (49.9 KB)

25F-H022-REL Decision – 1275762.pdf

Uploaded 2026-01-23T18:15:34 (8.3 KB)

25F-H022-REL Decision – 1287568.pdf

Uploaded 2026-01-23T18:15:38 (182.8 KB)

25F-H022-REL Decision – 1318865.pdf

Uploaded 2026-01-23T18:15:42 (56.7 KB)

Briefing Doc – 25F-H022-REL

Briefing Document: Miera Phx LLC v. Dartmouth Trace Homeowners Association, Inc.

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case Miera Phx LLC v. Dartmouth Trace Homeowner Associations, Inc. (No. 25F-H022-REL). The core of the dispute was the Petitioner’s allegation that the Homeowners Association (HOA) failed to enforce its governing documents, specifically the prohibition against short-term rentals (STRs) of less than 30 days.

The Petitioner, represented by homeowner Angel Miera, argued that the HOA’s inaction allowed STRs to proliferate, leading to safety concerns, nuisance issues, and a degradation of the community’s residential character. A central claim was that a conflict of interest existed, alleging the HOA Board President himself operated an STR. The Petitioner sought mandated enforcement, board reorganization, and financial compensation for HOA fees.

The Respondent HOA, represented by its management company and a board member, countered that enforcing the STR prohibition was practically impossible without “hard proof,” such as an exterior photo with a unit number, which is difficult to obtain. They cited financial constraints, other pressing maintenance priorities, and limitations imposed by state law on collecting fines as significant hurdles. The board also highlighted its own instability, with only two members remaining—both of whom were in the process of selling their properties—and a severe lack of community volunteers.

The Administrative Law Judge (ALJ) ultimately denied the petition. The decision concluded that the Petitioner had not met the burden of proof. The ALJ reasoned that the underlying issue was a “homeowner versus homeowner argument,” as the HOA itself cannot violate the rental restrictions, only individual owners can. Furthermore, the governing statute is permissive, stating an association may impose penalties, not that it must. The tribunal found it had no jurisdiction to order the reimbursement of HOA dues or to compel board stability.

Case Overview

Case Number

25F-H022-REL

Petitioner

Miera Phx LLC

Petitioner Representatives

Angel Miera (Manager), Bill Miera (Witness)

Respondent

Dartmouth Trace Homeowner Associations, Inc.

Respondent Representatives

Gladis Hernandez (Community Manager, Ogden & Co.), Fernanda Lopez (Board VP)

Administrative Law Judge

Nicole Robinson

Hearing Date

February 19, 2025

ALJ Decision Date

March 27, 2025

Central Dispute: Failure to Enforce Short-Term Rental Prohibitions

The foundational issue of the case was the Petitioner’s allegation that the Dartmouth Trace HOA was in violation of its own governing documents by failing to enforce the prohibition on short-term rentals.

The primary governing rule cited is Section 17 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which states:

“No Owner shall permit his Unit to be used for transient or hotel purposes or shall enter into any Lease for less than the entire Unit or for a term of less than thirty (30) days.”

The Petitioner alleged that the HOA’s failure to act on violations of this rule undermined the community’s residential character, stability, and property values.

——————————————————————————–

Petitioner’s Position and Evidence (Miera Phx LLC)

The Petitioner, Angel Miera, a resident of 11 years and an owner for three, built her case on several key arguments supported by extensive documentation submitted to the court.

Pervasive and Unenforced STR Activity

• Core Complaint: The community, located near the Chicago Cubs Spring Training facility, has been “overrun” with illegal STRs, transforming it into a “transient hotel.”

• Evidence Provided: Miera submitted numerous online listings from platforms like Airbnb and VRBO, dating from 2022 to the week before the hearing, which she alleged were units within Dartmouth Trace.

• Community Impact: The influx of transient guests has allegedly led to numerous disturbances, including noise complaints, police calls, and overuse of common amenities like the pool and parking. Miera noted her car had been dinged by vehicles in the adjacent STR unit’s parking space and that oversized vehicles often made it difficult for her to exit her own car.

• History of Complaints: Miera documented a three-year history of reporting suspected STRs to the HOA and its management company, Ogden & Company, Inc., which she claimed resulted in no meaningful enforcement action.

Conflict of Interest on the HOA Board

• Central Allegation: The failure to enforce the rules stems from a direct conflict of interest, as key board members have allegedly operated STRs themselves.

• Board President Rod Proce: Miera submitted a listing she claims was for Board President Rod Proce’s unit (Unit 29), which advertised it as a vacation rental. She also submitted his recent MLS listing for the sale of the unit, in which the description states, “This condo has been a great vacation rental.”

• Former Board Member: Allegations were also made against former board member Tiffany Barentine, who reportedly operated STRs and resigned from the board after Miera raised the issue.

Retaliation and Lack of Homeowner Engagement

• Perceived Retaliation: Miera testified that since she began raising the STR issue, her requests for essential landscaping maintenance for her unit have been ignored for three years, while common areas advertised in STR listings (e.g., the pool area) remain “impeccable.”

• Suppressed Engagement: The HOA moved from monthly meetings to a single annual meeting, which Miera argued made it “nearly impossible for homeowners to effectively raise concerns.” She also testified that her attempt to run for a board position was accepted and then blocked without explanation.

Requested Remedies

1. Mandated Enforcement: An order compelling the HOA to take “meaningful corrective action,” including issuing fines, notices, and liens against illegal STR owners.

2. Oversight and Transparency: Creation of a tracking system for STRs, installation of prohibitive signage, and mandatory disclosures to new buyers about STR restrictions.

3. Board Reorganization: The removal of the two current board members (Rod Proce and Fernanda Lopez) due to alleged mismanagement, conflicts of interest, and the fact that both had their units listed for sale.

4. Financial Compensation: Reimbursement for the $500 case filing fee and over $8,000 in HOA fees paid over the last three years, during which her safety and property concerns were allegedly ignored.

——————————————————————————–

Respondent’s Position and Rebuttal (Dartmouth Trace HOA)

The HOA and its representatives acknowledged the existence of STRs as a problem but argued that their ability to act was severely constrained by practical, legal, and financial limitations.

The Challenge of “Hard Proof”

• Enforcement Standard: Community Manager Gladis Hernandez stated that the HOA cannot issue fines without “hard proof” that would withstand a legal challenge. Based on legal advice, this means obtaining an online ad that includes an exterior photo showing the building and a specific unit number.

• Impracticality of Investigation: Hernandez argued it would be an improper use of association funds to book suspected STRs simply to obtain their addresses. She stated, “we don’t hunt them down.” The HOA does not have the resources or software to run license plates to identify owners.

• Action on Confirmed Units: Regarding Miera’s neighboring unit (Unit 26), Hernandez testified that upon confirmation, she contacted the owner. The owner asserted that her rental listing is for a 30-day minimum, which complies with the CC&Rs.

Resource and Legislative Constraints

• Volunteer Board: Board VP Fernanda Lopez emphasized that board members are unpaid volunteers. She herself joined the board as a “disgruntled resident” but was met with the reality of limited budgets and significant responsibilities. The board has only two members, both of whom are selling their units, and no other homeowners are willing to volunteer.

• Financial Priorities: The HOA faces significant expenses for larger projects like roofing ($35,000 for parking lot repairs) and rising water bills, leaving limited funds for other issues like comprehensive landscaping or legal battles over STRs.

• Limited Power of Fines: Hernandez testified that recent changes in state legislation prevent HOAs from pursuing foreclosure based on unpaid fines. This weakens the power of fines as a deterrent, as homeowners can choose to pay their assessments but ignore fines without severe consequence.

Response to Specific Allegations

• Board President’s Actions: Hernandez confirmed that Rod Proce admitted to a past STR listing from around 2022 but stated it was no longer active.

• Retaliation Claim: Lopez countered the landscaping claim by stating that Miera’s unit is in the same section as Rod Proce’s unit, and “he’s looking at bare dirt as well.” She asserted that she gave Miera’s unit “preferential treatment” with the new landscaping company to address her long-standing complaints.

——————————————————————————–

Key Testimonies

Angel Miera, Petitioner: “For the governing documents to have any real meaning, they must be enforced. This court has the authority to require the HOA to fulfill its obligations, and I ask that it does so today.”

Gladis Hernandez, Community Manager: “It is not proper to go spend association money to see if this unit… is being Airbnbed out to go and spend association money just to find out if it’s a unit within that community itself. … I believe that every homeowner that pays their assessments would also agree that it’s not proper use of funds.”

Fernanda Lopez, Board Vice President: “I highly recommend that you change your LLC to your name so that you can be part of that board and have those conversations and figure out solutions because it’s not just easy. You can complain every single day, but to find solutions is the difficult part.”

Bill Miera, Petitioner’s Witness, on the Board President’s attitude: “[He said] ‘well, you know, we don’t want to be the meanies and you know, give out violations.’ That was his response.”

——————————————————————————–

Final Judgment and Rationale

On March 27, 2025, Administrative Law Judge Nicole Robinson issued a decision denying the Petitioner’s petition in its entirety.

Conclusions of Law

The ALJ’s decision was based on the following key legal conclusions:

1. Homeowner vs. Homeowner Dispute: The judge determined that the core issue was a dispute between homeowners, not a direct violation by the HOA itself. The decision states, “Ultimately, Petitioner’s underlying complaint is a homeowner versus homeowner argument and that type of complaint is not addressed in this forum.”

2. HOA Cannot Violate Occupancy Rules: The Association itself cannot violate the Use & Occupancy restrictions or the Bylaws cited by the Petitioner; only a homeowner can.

3. Enforcement is Permissive, Not Mandatory: The judge cited Arizona statute (ARIZ. REV. STAT. § 33-1242(A)(11)), which states that an “Association MAY… impose reasonable monetary penalties.” The use of the word “may” makes the action discretionary, not mandatory. Therefore, the HOA’s failure to issue fines was not a violation of the law or its governing documents.

4. Lack of Jurisdiction for Requested Remedies: The tribunal found it had no jurisdiction to order the reimbursement of HOA dues or to intervene in the internal stability of the HOA board.

Final Order

• The Petitioner’s petition was denied.

• The Respondent HOA was not ordered to reimburse the Petitioner’s $500 filing fee.

• The decision noted that the Petitioner is not barred from seeking further legal recourse outside the administrative jurisdiction of the Department of Real Estate.

Study Guide – 25F-H022-REL

{ “case”: { “docket_no”: “25F-H022-REL”, “case_title”: “Miera Phx LLC v. Dartmouth Trace Homeowner Associations, Inc”, “decision_date”: “2025-03-27”, “alj_name”: “Nicole Robinson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I use the administrative hearing process to force my HOA to enforce rules against my neighbor?”, “short_answer”: “Likely no. The tribunal views disputes about rule enforcement against other residents as ‘homeowner versus homeowner’ arguments, which are outside its forum.”, “detailed_answer”: “The ALJ clarified that while a petitioner may be diligent in reporting neighbors (such as those violating short-term rental or parking rules), the underlying complaint is fundamentally between homeowners. The administrative hearing process is designed for disputes between an owner and the association regarding the association’s specific violations, not to compel the association to police other owners in specific ways.”, “alj_quote”: “Ultimately, Petitioner’s underlying complaint is a homeowner versus homeowner argument and that type of complaint is not addressed in this forum.”, “legal_basis”: “Jurisdictional Limitations”, “topic_tags”: [ “enforcement”, “jurisdiction”, “neighbor disputes” ] }, { “question”: “Is the HOA legally required to fine homeowners who violate the CC&Rs?”, “short_answer”: “No. State statute provides that an association ‘may’ impose penalties, implying it is discretionary rather than mandatory.”, “detailed_answer”: “The decision highlights that Arizona Revised Statutes grant the association the power to impose penalties but do not mandate it. Therefore, an HOA failing to issue fines is not necessarily violating the statute.”, “alj_quote”: “Petitioner has not established by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. § 33-1242(A)(11) which states in pertinent part that the ‘Association MAY. . . . impose reasonable monetary penalties.'”, “legal_basis”: “A.R.S. § 33-1242(A)(11)”, “topic_tags”: [ “fines”, “penalties”, “statutory interpretation” ] }, { “question”: “Can the administrative tribunal order the HOA to reimburse my assessment fees if they fail to manage the property well?”, “short_answer”: “No. The tribunal lacks jurisdiction to mandate the reimbursement of HOA dues.”, “detailed_answer”: “Even if a homeowner feels the HOA has failed in its duties or that services (like landscaping) have declined, the Administrative Law Judge does not have the authority to order the return of assessments paid.”, “alj_quote”: “In addition, the Tribunal has no jurisdiction to mandate that the Association reimburse Petitioner’s HOA dues which is out of the purview per this Order.”, “legal_basis”: “Jurisdictional Limitations”, “topic_tags”: [ “assessments”, “reimbursement”, “dues” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence.'”, “detailed_answer”: “This standard means the homeowner must show that their contention is more probably true than not. It is based on the convincing force of the evidence rather than just the amount of evidence or number of witnesses.”, “alj_quote”: “Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the aforementioned CC&Rs and the Bylaws.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “evidence” ] }, { “question”: “Can the HOA itself be found guilty of violating use and occupancy restrictions in the CC&Rs?”, “short_answer”: “Generally, no. Use and occupancy restrictions apply to the conduct of homeowners, not the corporate entity of the HOA.”, “detailed_answer”: “The ALJ ruled that an Association cannot violate restrictions designed for residents (like short-term rental bans); only the individual homeowners can violate those specific rules.”, “alj_quote”: “The Association cannot violate the Use & Occupancy restrictions or the Bylaws cited by Petitioner in her complaint; a homeowner can but not the HOA.”, “legal_basis”: “CC&R Interpretation”, “topic_tags”: [ “CC&Rs”, “occupancy restrictions”, “liability” ] }, { “question”: “Can the judge force the HOA to fill vacant board seats if no one wants to volunteer?”, “short_answer”: “No. The tribunal cannot compel individuals to run for election or remain in board positions.”, “detailed_answer”: “While a lack of participation or board vacancies may cause instability, the administrative law judge has no jurisdiction to force homeowners to serve on the board or to create stability in governance.”, “alj_quote”: “The Tribunal heard testimony regarding the lack of participation of homeowners to become Board Directors, however, individuals cannot be forced into an election or made to remain in their positions.”, “legal_basis”: “Governance”, “topic_tags”: [ “board of directors”, “elections”, “volunteers” ] }, { “question”: “Does the Office of Administrative Hearings (OAH) have the authority to interpret the contract between a homeowner and the HOA?”, “short_answer”: “Yes. The OAH has the authority to interpret the contract (CC&Rs and Bylaws) between the parties.”, “detailed_answer”: “The decision affirms that the OAH is an independent agency authorized to decide contested cases and interpret the governing documents (contract) between the association and the owner.”, “alj_quote”: “OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov”, “topic_tags”: [ “contract interpretation”, “OAH authority” ] } ] }

Blog Post – 25F-H022-REL

Case Participants

Petitioner Side

Angel Miera (petitioner)
Miera Phx LLC
Manager of LLC; testified on own behalf.
Bill Miera (witness)
Miera Phx LLC
Father of Angel Miera.

Respondent Side

Gladis Hernandez (community manager)
Ogden Community Management
Community Manager since October 2023; testified on behalf of Respondent.
Fernanda Lopez (board member)
Dartmouth Trace Homeowner Associations, Inc.
Vice President, Secretary, and Treasurer; testified on behalf of Respondent.
Rod Proce (board member (President))
Dartmouth Trace Homeowner Associations, Inc.
Board President; alleged STR host; did not appear at hearing due to health issues.
Lori Percival (Ogden President / Registered Agent)
Ogden & Company, Incorporated
Registered Agent for Dartmouth Trace HOA.
Tiffany Barentine (former board member)
Dartmouth Trace Homeowner Associations, Inc.
Alleged STR host; resigned from the board.
Erica Proy (STR host)
Dartmouth Trace Homeowner Associations, Inc.
Wife of Rod Proce; associated with STR listing.
Megan Wasik (Ogden staff)
Ogden Community Management
Ogden employee who responded to Petitioner's inquiries.

Neutral Parties

Nicole Robinson (ALJ)
Office of Administrative Hearings
Issued decision on March 27, 2025; Amended hearing date via Nunc Pro Tunc Order on June 19, 2025.
Susan Nicolson (Commissioner)
ADRE
vnunez (ADRE staff)
ADRE
Recipient of official case documents.
djones (ADRE staff)
ADRE
Recipient of official case documents.
labril (ADRE staff)
ADRE
Recipient of official case documents.
mneat (ADRE staff)
ADRE
Recipient of official case documents.
lrecchia (ADRE staff)
ADRE
Recipient of official case documents.
gosborn (ADRE staff)
ADRE
Recipient of official case documents.

Other Participants

Bethany Willis (homeowner/STR host)
Dartmouth Trace Homeowner Associations, Inc.
Unit 26 owner and Petitioner's neighbor.
Sharon Woods (former community manager)
Ogden Community Management
Managed Dartmouth Trace prior to Gladis Hernandez.
Chris Lindberg (former community manager)
Ogden Community Management
Former manager who enacted fine resolution for STRs.
Julie (former board member)
Dartmouth Trace Homeowner Associations, Inc.
Former board member who resigned.
Jennifer Salazar (STR co-owner)
Dartmouth Trace Homeowner Associations, Inc.
Co-owner/operator of listings associated with Tiffany Barentine (also mentioned as Callie Salazar).
Nah Holani Cutting (homeowner/STR host)
Dartmouth Trace Homeowner Associations, Inc.
Unit owner identified in STR listing.

Cross Creek Ranch Community Association v. Turquoise Textures, LLC

Posted on December 16, 2024 by [email protected]

Case Summary

Case ID	25F-H005-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2024-12-16
Administrative Law Judge	Nicole Robinson
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Cross Creek Ranch Community Association	Counsel	—
Respondent	Turquoise Textures, LLC	Counsel	—

Alleged Violations

CC&Rs Article 3, Section 3.1.3; Article 7, Section 7.5

Outcome Summary

The Administrative Law Judge granted the petition filed by the Cross Creek Ranch Community Association, finding that Turquoise Textures, LLC violated CC&Rs Article 3, Section 3.1.3 and Article 7, Section 7.5 by clear cutting old growth trees and vegetation in violation of approved plans. Respondent was ordered to reimburse the $500 filing fee and comply with governing documents.

Key Issues & Findings

Violation of Covenants, Conditions, and Restrictions (CC&Rs) by clear cutting old growth trees and vegetation contrary to approved plans.

Petitioner alleged Respondent clear cut approximately 30 old growth trees and native vegetation, violating approved plans and governing documents, and presenting a nuisance. The Administrative Law Judge concluded that Petitioner sustained its burden of proof that Respondent violated the Association’s governing documents, regardless of whether Respondent directed the general contractor, and granted the petition.

Orders: Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.

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(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.

Analytics Highlights

Topics: HOA violations, ARC approval, clear cutting, landscaping, governing documents, filing fee reimbursement

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
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.

Audio Overview

Decision Documents

25F-H005-REL Decision – 1246254.pdf

Uploaded 2026-01-23T18:13:02 (51.8 KB)

25F-H005-REL Decision – 1252576.pdf

Uploaded 2026-01-23T18:13:13 (148.6 KB)

25F-H005-REL Decision – 1252586.pdf

Uploaded 2026-01-23T18:13:21 (55.1 KB)

Briefing Doc – 25F-H005-REL

Briefing Document: Cross Creek Ranch Community Association vs. Turquoise Textures, LLC

Executive Summary

This briefing document synthesizes the proceedings and outcome of the case Cross Creek Ranch Community Association vs. Turquoise Textures, LLC (No. 25F-H005-REL), heard by the Arizona Office of Administrative Hearings (OAH). The central dispute involved the unauthorized clear-cutting of approximately 30 old-growth trees and native vegetation from a lot owned by William D. Durham, principal of Turquoise Textures, LLC.

The Administrative Law Judge (ALJ), Nicole Robinson, ultimately ruled in favor of the Petitioner, the Cross Creek Ranch Community Association (HOA). The decision found that Mr. Durham violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. While Mr. Durham’s primary defense was to blame his general contractor, the ALJ’s decision was based on credible testimony from the contractor implicating Mr. Durham, a documented pattern of non-compliance by Mr. Durham, and his own admission that the lot was cleared in violation of his approved plans.

The HOA sought a court order compelling Mr. Durham to plant 30 trees, 10-12 feet in height, by March 15, 2025. The final OAH order granted the HOA’s petition, requiring Mr. Durham to comply with the governing documents and reimburse the association’s $500 filing fee.

Case Overview

Parties Involved

Name / Entity

Key Role/Witness For

Petitioner

Cross Creek Ranch Community Association

Homeowners’ Association alleging violation of governing documents.

Respondent

Turquoise Textures, LLC (William D. Durham)

Property owner accused of violating governing documents.

Adjudicator

Nicole Robinson

Administrative Law Judge, Office of Administrative Hearings.

Witness

Greg Chambers

Petitioner; HOA Board Member.

Witness

Steve Germaine

Petitioner; Member of Architectural Review Committee (ARC), former ARC Chair.

Witness

Daniel Donahghue

Petitioner; Current ARC Chair and Board Member.

Witness

Jeffrey Penchina

Petitioner; Member of the ARC.

Witness

Timothy Smith

Petitioner; General Contractor hired by William Durham.

Core Allegation and Relief Sought

The HOA filed a petition on July 16, 2024, alleging that in September 2023, the Respondent clear-cut his lot of 20-30 old-growth trees (Junipers and Pinions) and native vegetation. This action was in direct violation of his ARC-approved plans, which were contingent on those plantings remaining in place. The HOA contended this violated:

• CC&Rs Article 3, Section 3.1.3: Pertaining to architectural approval and control.

• CC&Rs Article 7, Section 7.5: Pertaining to improper maintenance and use of lots.

The HOA argued that the clear-cutting was done to improve Mr. Durham’s view and detrimentally affected the community’s appearance and value. The specific relief requested was an order compelling Mr. Durham to plant 30 trees (10 to 12 feet in size) and replace additional vegetation by March 15, 2025.

Chronology of Key Events

• April 18, 2021: Prior to purchasing the lot, William Durham meets with ARC member Steve Germaine and is informed via a follow-up email that “The ARC does not approve the removal of trees… solely for the purpose of preserving or improving a view.”

• May 3, 2021: William Durham purchases Lot 62 in Cross Creek Ranch.

• July 7, 2022: Mr. Durham receives permission from the ARC to remove four specific dead trees.

• July 9, 2022: Mr. Germaine observes Mr. Durham removing more than the four approved dead trees and instructs him to stop.

• June 7, 2023: The ARC approves Mr. Durham’s residential and landscape plans, which show the preservation of existing trees and vegetation in the “transitional area.”

• August 29, 2023: A pre-construction meeting is held with Mr. Durham, his General Contractor (GC) Timothy Smith, and ARC members. ARC member Jeffrey Penchina testified that Mr. Durham personally assured him no trees outside the construction envelope would be removed.

• September 2023: Over approximately three days, Mr. Smith’s company clear-cuts the lot of 30+ old-growth trees and shrubs.

• October 2023: Following the discovery of the clearing, the ARC sends a letter to Mr. Durham to cease construction.

• October 6, 2023: Mr. Durham files a complaint with the Arizona Registrar of Contractors (ROC) against Tim Smith, blaming him for the tree removal.

• February 9, 2024: Mr. Durham transfers the property title to Turquoise Textures, LLC.

• July 16, 2024: The HOA files its petition with the Arizona Department of Real Estate.

• October 15, 2024: Mr. Durham submits a revised landscape plan to the HOA.

• November 4, 2024: The HOA responds to the plan, requiring 10-12 foot trees for remediation.

• November 11, 2024: Mr. Durham sends a detailed email responding to the HOA’s requirements.

• November 26, 2024: The OAH hearing is conducted virtually.

• December 16, 2024: The ALJ issues a final decision granting the HOA’s petition. A separate minute entry notes that documents filed by Mr. Durham after the hearing record closed would not be considered.

Key Testimony and Arguments

Petitioner’s Case (Cross Creek Ranch HOA)

The HOA presented a case built on documented warnings, contractual obligations, and direct eyewitness testimony.

• Established Pattern of Non-Compliance: Witness Steve Germaine testified that he warned Mr. Durham about the rules regarding tree removal for views even before the lot was purchased in April 2021. He further testified to the incident on July 9, 2022, where he witnessed Mr. Durham cutting down live trees without authorization, beyond the four dead trees he had permission for.

• Violation of Approved Plans: Daniel Donahghue and Jeffrey Penchina testified that during the pre-construction meeting on August 29, 2023, the rules were clearly explained. Mr. Penchina stated, “he assured me that nothing outside of the construction envelope would be removed.” The approved plans, entered as evidence, explicitly showed the preservation of the natural landscape in the transitional area.

• Direct Culpability via GC Testimony: The general contractor, Timothy Smith, provided critical testimony directly contradicting Mr. Durham’s defense.

◦ Mr. Smith stated that Mr. Durham directed the clear-cutting: “he started to point out at trees that were in disturbing the… surrounding views… I let him know, well, now we’re going outside of the construction envelope. And he said he doesn’t really care.”

◦ He testified that Mr. Durham was on-site during the three-day clearing process and that the business relationship fractured later over non-payment for subsequent work, not over the tree removal.

Respondent’s Defense (William D. Durham)

Mr. Durham admitted the plans were violated but placed all blame on his general contractor and portrayed the HOA as a hostile and unresponsive entity.

• Blame Assigned to General Contractor: Mr. Durham’s central argument was that his GC acted against instructions. He stated, “I was forced to have a GC that I didn’t need, and the GC insisted on doing all the initial work… He ignored all the directives from Mark and from me.” He testified that he “absolutely not” directed Mr. Smith to clear the land and claimed to be out of town for most of the clearing.

• Allegations of HOA Harassment and Inefficiency: Mr. Durham repeatedly described the HOA as slow, uncooperative, and corrupt.

◦ He claimed he was trying to remediate the issue but the HOA was “very very very slow to ever get back to me.”

◦ He accused the HOA of “moving the goalposts” by demanding 10-12 foot trees, a requirement he said was never mentioned until the hearing.

◦ He testified he was facing over “$40,000 in fines” and was being harassed by specific members. He stated, “There’s a degree of corruption and cronyism in this HOA that is deeply disturbing.”

• Proactive Remediation Efforts: Mr. Durham asserted he had been proactive, submitting a new landscape plan with 32 plants. He testified, “all I need is their input back that’s helpful to resolve everything.” He repeatedly requested a single liaison from the ARC to facilitate faster solutions.

Administrative Law Judge’s Decision

The ALJ’s decision, issued December 16, 2024, was a conclusive victory for the Petitioner.

Findings of Fact

The ALJ established a clear factual record that supported the HOA’s position, highlighting:

• The pre-purchase warning to Mr. Durham in April 2021 regarding tree removal.

• The unauthorized removal of viable trees in July 2022.

• The September 2023 clear-cutting incident, which the judge factually concluded occurred at Mr. Durham’s direction. Finding #15 states: “Mr. Smith, the general contractor, cleared Lot 64 of approximately 30 plus trees and shrubs that were not included in the approved plans per Respondent’s instruction.”

Conclusions of Law

Based on the evidence, the ALJ made the following legal conclusions:

• The Petitioner (HOA) successfully met its burden of proving by a preponderance of the evidence that the Respondent violated the governing documents.

• The ALJ identified a clear “pattern” of behavior, noting Mr. Durham began “failing to heed the ARC’s directions in July 2022.”

• Critically, the judge determined that even without the GC’s testimony, Mr. Durham’s own admission was sufficient for a finding of violation: “Respondent admitted what happened to his Lot was not a part of the approved plan and, hence, was a violation of Petitioner’s CC&Rs and Design Guidelines.”

Final Order

The OAH issued the following orders:

1. IT IS ORDERED that Petitioner’s petition be granted.

2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00.

3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents.

Study Guide – 25F-H005-REL

Select all sources