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Joseph Allan vs The Springs Condominium Association

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Case Summary

Case ID 25F-H081-REL
Agency —
Tribunal —
Decision Date 2/5/2026
Administrative Law Judge VMT
Outcome Petition is dismissed
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Joseph Allan Counsel —
Respondent The Springs Condominium Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H081-REL Decision – 1374850.pdf

Uploaded 2026-04-24T12:55:08 (73.8 KB)

25F-H081-REL Decision – 1393068.pdf

Uploaded 2026-04-24T12:55:18 (106.6 KB)

Case Briefing: Joseph Allan v. The Springs Condominium Association

Executive Summary

This briefing document summarizes the administrative hearing and subsequent decision in the matter of Joseph Allan v. The Springs Condominium Association (Case No. 25F-H081-REL). The dispute centered on a petition filed by Mr. Allan, a unit owner, alleging that the Association violated Arizona Revised Statute (A.R.S.) § 33-1258 by failing to provide requested financial records.

The core of the conflict involved a $15,240 tax refund from the 2022 tax year that Mr. Allan asserted was missing from the Association’s 2023 financial reports. Mr. Allan sought physical documentation—such as checks or deposit receipts—to verify the handling of these funds. The Association, represented by its Treasurer, John Calgamone, and Property Manager, Belen Guzman, maintained that the funds were never received as a check but were instead applied as a rolling credit toward future tax liabilities to avoid penalties.

On February 5, 2026, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision dismissing the petition. The ALJ concluded that Mr. Allan failed to establish that the Association was in possession of the specific records requested (checks/receipts), as the evidence indicated the refund existed only as an IRS credit rather than a liquid asset.

Detailed Analysis of Key Themes

1. The Dispute Over the $15,240 Tax Refund

The primary catalyst for the hearing was Mr. Allan’s discovery that a $15,240 refund shown on the 2022 tax return (Form 1120) did not appear on the 2023 tax return or audit. Mr. Allan contended that because the IRS typically issues checks within 30 to 60 days, the absence of this money on the Association's financial ledgers suggested potential mismanagement or lack of transparency.

Conversely, the Association provided testimony that the credit had been "rolling over" for approximately seven years. The Association’s strategy was to leave overpayments with the IRS to cover future liabilities, a decision made because the property generates income through a restaurant and rentals, which carries a higher risk of tax penalties.

2. Statutory Requirements and Burden of Proof

The case was argued under A.R.S. § 33-1258, which requires condominium associations to make financial and other records reasonably available for examination by a member within ten business days.

  • The Petitioner’s Burden: As the party with the burden of proof, Mr. Allan had to demonstrate by a "preponderance of the evidence" that the Association violated the statute.
  • The Findings: The ALJ determined that an association cannot be found in violation of failing to provide records that do not exist. Since the Association had not received a physical check, they could not produce a copy of a check or a deposit receipt.
3. Communication Protocols and Management Relations

A recurring theme throughout the testimony was the procedural friction between Mr. Allan, the Board of Directors, and the management company, SSC Property Management.

  • Direct vs. Indirect Requests: The Association argued that Mr. Allan frequently bypassed the management company, sending requests only to Board members. While the ALJ noted there was no formal rule requiring requests to go through management, the Association testified that this caused delays because the Board members are volunteers and do not maintain the physical records.
  • Availability for Inspection: The Association emphasized that records are kept in an office just a short walk from Mr. Allan's unit and that he had been invited to inspect the files in person, an invitation he reportedly did not accept.
4. Professional Reliance and Accounting Expertise

The testimony revealed a reliance on external experts (Butler and Hansen, CPAs) to navigate IRS communications. Treasurer John Calgamone admitted to a lack of formal accounting training, stating he relied on Miss Guzman and the hired CPAs to ensure the Association's financial health. Mr. Allan challenged this, arguing that the Board should have more direct knowledge of IRS documents, specifically the CP145 (IRS Notice of Correction).

Key Quotes and Context

Regarding the Management of the Refund

"Rather than accept the overpayment, I made a point to tell the property manager to tell the accountant we want to leave that for next year's taxes so that we have already paid any money due next year." — John Calgamone, Association Treasurer

Context: This explains the Association's rationale for the missing "check." They viewed the refund as a strategic credit rather than a cash inflow.

Regarding the Request for Records

"You continue to demand letters that simply do not exist. We you have been told that you are welcome to make appointments to inspect the records in person to see for yourself which records are in hand. You have not done so." — Belen Guzman, Property Manager (quoting an email to Mr. Allan)

Context: This highlights the Association’s defense: they provided what they had (an IRS letter from November 2023) and argued that Mr. Allan was demanding documentation of a transaction that never took place in the form he imagined.

Regarding the Petitioner's Motivation

"Nothing. I made it clear a couple years ago that I'll be looking into our financials and straightening out our financials. And that's what I've been doing. I've been doing it professionally, diplomatically, politely." — Joseph Allan, Petitioner

Context: Mr. Allan framed his actions as a necessary oversight role to ensure the financial integrity of the 203-property community.

Regarding the Legal Representation Rule

"Miss Guzman can represent the [entity] but Miss Guzman and no other person can be receiving payment for the representation… unless your representative is an Arizona licensed attorney." — Judge Velva Moses-Thompson

Context: The Judge clarified the procedural rules of the Office of Administrative Hearings, noting that while property managers can represent associations, they cannot be specifically compensated for that legal representation unless they are licensed attorneys.

Actionable Insights

For Association Governance
  • Clarify Credit vs. Cash: Associations should ensure that tax credits held by the IRS are clearly footnoted in internal financial statements to prevent the appearance of "missing" funds.
  • Formalize Record Request Procedures: To avoid confusion, associations should adopt and distribute a written rule specifying the preferred channel for record requests (e.g., via the management company) as permitted by A.R.S. § 33-1258.
  • Documentation of IRS Communications: Maintain a dedicated file for all IRS notices (like CP145) to demonstrate a clear paper trail during audits or member inquiries.
For Members Requesting Records
  • In-Person Inspection: If a records dispute arises, the requesting member should utilize their right to inspect records in person. This can clarify whether a document is being withheld or if it truly does not exist.
  • Inclusion of Management: Even if not legally required, including the property management company on all formal record requests can expedite the process, as they are typically the custodians of the records.
Legal Summary Table
Item Detail
Case Number 25F-H081-REL
Statute in Question A.R.S. § 33-1258
Presiding Judge Velva Moses-Thompson
Final Decision Petition Dismissed; Association deemed prevailing party
Decision Date February 5, 2026

Case Study Guide: Joseph Allan v. The Springs Condominium Association

This study guide provides a comprehensive overview of the administrative hearing and subsequent legal decision regarding Joseph Allan v. The Springs Condominium Association (No. 25F-H081-REL). It covers the legal frameworks, key arguments, and procedural rules discussed in the source context.

Key Legal Concepts and Background

1. Arizona Revised Statute § 33-1258

The central legal issue in this case is whether the Association violated A.R.S. § 33-1258, which governs the availability of records for condominium associations.

  • Access: All financial and other records must be made "reasonably available" for examination by any member or their designated representative.
  • Fees: Associations cannot charge for the review of records but may charge up to $0.15 per page for copies.
  • Timeline: Associations have 10 business days to fulfill a request for examination or to provide copies of requested records.
2. Legal Representation in Administrative Hearings

According to Arizona Supreme Court rules for administrative hearings:

  • A community manager or designated person can represent an association.
  • However, that representative cannot receive a fee for the representation unless they are a licensed attorney in Arizona.
  • In this case, the ALJ moved the primary representation from the community manager (Belen Guzman) to the Association Treasurer (John Calderone) because Guzman confirmed she was receiving a fee for her role in the hearing.
3. Burden of Proof

In these proceedings:

  • The Petitioner (Joseph Allan) carries the burden of proof to establish a violation by a preponderance of the evidence. This means proving that the contention is "more probably true than not."
  • The Respondent (The Springs Condominium Association) carries the burden of establishing any affirmative defenses by the same standard.

Case Overview: The Tax Refund Dispute

The dispute originated from Joseph Allan's request for documentation regarding a $15,240 tax refund (alternatively cited as $15,199 or $15,890 in various testimony) from the 2022 tax year.

Participant Role Key Argument/Evidence
Joseph Allan Petitioner (Homeowner) Claimed the Association failed to provide proof of how the refund was handled. He requested checks, deposit receipts, or IRS documentation.
John Calderone Association Treasurer Testified that the Association chose to roll the credit over for future tax liabilities rather than taking a check to avoid penalties and cover future income taxes.
Belen Guzman Property Manager Stated that the Association has treated the refund as a rolling credit for nearly seven years and that no refund check existed at the time of the request.
Velva Moses-Thompson Admin. Law Judge Ruled that the Petitioner failed to prove the Association possessed the specific records (the check/receipt) he was requesting.

Short-Answer Practice Questions

1. What was the specific dollar amount of the tax refund Joseph Allan discovered was missing from the 2023 tax return? Answer: $15,240.

2. Which Arizona Revised Statute was the Association accused of violating? Answer: A.R.S. § 33-1258.

3. Why did the Administrative Law Judge (ALJ) question Belen Guzman’s ability to represent the Association? Answer: Under Arizona Supreme Court rules, a non-attorney cannot receive a fee for representing a party in these hearings. Guzman admitted she was receiving a fee for the representation.

4. How many days does an association have to fulfill a request for records under Arizona law? Answer: Ten business days.

5. What explanation did the Association provide for why there was no "check" or "deposit receipt" for the tax refund? Answer: The Association opted to have the refund applied as a credit toward future tax liabilities (rolling credit) rather than receiving a physical check.

6. Who did Joseph Allan submit his initial records request to on November 22, 2024? Answer: He submitted the request via email to several board members (including the Treasurer, Vice President, and Director) but did not include the property management company.

7. What was the final decision of the Administrative Law Judge regarding Mr. Allan’s petition? Answer: The petition was dismissed because the Petitioner failed to establish that the Association was in possession of records showing how the refund was handled (as the check did not exist).

Essay Prompts for Deeper Exploration

1. Statutory Compliance vs. Physical Existence of Records

Discuss the legal dilemma presented when a member requests a specific type of record (e.g., a check or deposit receipt) that does not exist. Based on the ALJ’s ruling, does an association have an obligation under A.R.S. § 33-1258 to create a record or provide an explanation for a record's absence, or is their duty strictly limited to providing existing documents?

2. Communication Protocols in Homeowners Associations

The Association argued that Mr. Allan’s failure to include the management company in his requests led to delays and missing information. Examine the tension between a member's right to request records from the Board of Directors versus the Association’s preference for requests to go through a "central depository" (the property manager). Should a written rule be required to mandate where requests are sent?

3. Professional Reliance in Association Management

John Calderone testified that board members are not experts in accounting and must rely on property managers and CPAs (Butler Hansen). Analyze the role of "expert reliance" in this case. How did the Association's reliance on a CPA firm to handle IRS communications affect their ability to fulfill the homeowner's document request in a timely manner?

Glossary of Important Terms

  • A.R.S. § 33-1258: The Arizona statute requiring condominium associations to make financial and other records available to members within ten business days.
  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing and makes a recommended or final decision.
  • CP145: An IRS notice of correction mentioned during testimony regarding tax adjustments.
  • Closing Argument: The final statement made by each party at the end of a hearing to explain why the judge should rule in their favor based on the evidence.
  • Office of Administrative Hearings (OAH): The agency responsible for conducting independent hearings for various state agencies.
  • Petitioner: The party who initiates a legal action or petition (in this case, Joseph Allan).
  • Preponderance of the Evidence: The standard of proof used in civil and administrative cases, meaning the evidence shows that a claim is "more likely than not" to be true.
  • Respondent: The party against whom a legal action or petition is filed (in this case, The Springs Condominium Association).
  • Rolling Credit: An accounting practice where a tax refund is not taken as cash but is instead left with the IRS to be applied against future tax obligations.
  • Under Advisement: A status where a judge takes time to consider the evidence and arguments before issuing a final decision.

The Case of the "Missing" $15,000: Lessons in HOA Transparency and Tax Credits

In the delicate ecosystem of community governance, trust is the currency that keeps a board functioning. When a homeowner—especially a former board member who knows where the proverbial bodies are buried—suspects financial foul play, the results are often explosive. Such was the scene at the Office of Administrative Hearings (OAH) in the case of Joseph Allan v. The Springs Condominium Association.

At the heart of the dispute was a "missing" $15,240 tax refund. Mr. Allan, a diligent critic of the Association’s financials, was convinced the money had been mishandled or hidden by the board. The irony? The Association was using the very CPA firm, Butler & Hansen, that Mr. Allan himself had recommended during his tenure on the board. This case serves as a masterclass in how a misunderstanding of sophisticated tax strategies and a breakdown in communication can lead to costly, unnecessary litigation.

The Petitioner’s Argument: "Where is the Money?"

Mr. Allan’s suspicion began when he reviewed the Association's 2022 tax return (Form 1120), which indicated an overpayment of $15,240. When this "refund" failed to appear as miscellaneous income in the 2023 financial reports or audits, he sounded the alarm. His argument was built on a simple premise: if the IRS owes the Association money, there should be a paper trail of its arrival and deposit.

In his testimony, Mr. Allan sought:

  • Physical Evidence: Copies of checks, deposit receipts, and specific general ledger entries for the 2022 tax year.
  • Fiduciary Justification: An explanation as to why the Board would leave $15,000 with the IRS rather than depositing it into a high-yield CD earning roughly 4% interest.
  • Expanded Inquiry: During the hearing, his suspicion widened to include a state tax refund of $3,656, which he also claimed was unaccounted for in the financial history.
The Association’s Defense: Credits vs. Checks

The Association’s Treasurer, John Caldamone—a volunteer who candidly admitted he was not an accountant by trade—provided the necessary business context. Unlike a standard residential HOA, The Springs is a taxable entity that operates a restaurant on-site and generates rental income. This creates a complex tax liability that most community associations never face.

The Property Manager, Belen Guzman, testified that the $15,000 was not a one-time windfall but a "rolling credit" that the Association had maintained with the IRS for nearly seven years to provide a "cushion" against potential penalties and underpayments.

Perception vs. Financial Reality

Petitioner’s Assumption Association’s Financial Reality
The IRS sent a $15,240 refund check to the Association in 2022. The amount was a rolling credit maintained for 7 years to offset high tax risks from restaurant and rental income.
The Board is intentionally withholding copies of the refund check. No check exists. The IRS actually sent a letter (received the day of the hearing) asking for more information before they would even consider issuing a check.
The money is "missing" because it isn't listed as "Miscellaneous Income." Because the funds never left the IRS’s possession, they cannot be recorded as cash income or a deposit in the Association's ledger.
The Communication Breakdown: The Management "CC" Conflict

A recurring theme in this dispute was a failure to follow established communication protocols. The Association pointed out that this was the second hearing involving Mr. Allan’s record requests. In a prior Department of Real Estate (DRE) hearing, Mr. Allan had been specifically instructed to include the management company, SSC Property Management, in his formal requests.

Despite this, Mr. Allan continued to email volunteer board members directly, excluding management. As a legal columnist, I often see this: homeowners believe they are going to "the source" by emailing the Board, but the physical "tax file" and financial records reside with the professional manager. By failing to include the manager, Mr. Allan created a lag in response that he interpreted as a cover-up.

The Legal Verdict: Why the Petition was Dismissed

Administrative Law Judge Velva Moses-Thompson dismissed the petition, ruling in favor of the Association. The decision rested on a fundamental interpretation of A.R.S. § 33-1258.

Key Legal Conclusion: An Association’s "right to manage its tax strategy" is distinct from a homeowner's "right to inspect records." Furthermore, the law only requires the production of records in existence. An Association cannot be found in violation for failing to provide a check that was never issued or a deposit slip that was never printed.

The Judge also noted a technical nuance of Arizona OAH hearings: she inquired whether Ms. Guzman was receiving a fee for her representation. Under Arizona Supreme Court rules, a non-attorney (like a property manager) can represent an HOA, but they cannot be paid specifically for that representation unless they are a licensed attorney. This highlighted the Association’s reliance on its volunteers and professional staff to navigate legal hurdles.

Summary of Key Insights for Homeowners and Boards

This case illustrates that transparency is not just about showing the books; it’s about explaining the "why" behind the numbers.

  1. Understand "Rolling Credits": For associations with high-risk tax profiles (like those with commercial income), keeping a credit with the IRS is a legitimate business strategy to avoid penalties.
  2. Verify Document Existence: The "right to inspect" is not a "right to demand the creation of new documents." If the IRS hasn't sent a check, the Board cannot produce one.
  3. Follow the Paper Trail (and the Protocol): Homeowners must include both the Board and Management in requests. As this case showed, a recurring failure to follow protocol can undermine a petitioner's credibility in court.
  4. The Irony of Expertise: Relying on professional CPAs (like Butler & Hansen) provides the Board with a "shield" of professional advice. If the CPA verifies the tax strategy, a homeowner’s disagreement with that strategy rarely constitutes a legal violation.
Closing: Building Trust Through Clarity

The dispute at The Springs was less about a "missing" $15,000 and more about a missing explanation. While the Board was legally vindicated, the time and stress of an administrative hearing could likely have been avoided with proactive financial education. When boards have unique tax liabilities—like a restaurant or rental units—they should over-communicate their tax strategies in annual meetings. Clarity is the best defense against suspicion.

Case Participants

Petitioner Side

  • Joseph Allan (Petitioner)
    Self-represented homeowner

Respondent Side

  • John Calgamone (Treasurer)
    The Springs Condominium Association
    Appeared and testified on behalf of the respondent
  • Belen Guzman (Property Manager)
    SSC Property Management
    Represented and testified for the Association management
  • Petri Ahonan (Director / President)
    The Springs Condominium Association
    Board member mentioned in testimony
  • Don Simpson (Board Member)
    The Springs Condominium Association
    Board member mentioned in testimony
  • Kevin Steffy (Vice President)
    The Springs Condominium Association
    Board member mentioned in testimony
  • Tom Commerce (Board Member)
    The Springs Condominium Association
    Board member mentioned in testimony

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who authored the final decision
  • Sondra J. Vanella (Administrative Law Judge)
    Office of Administrative Hearings
    Authored the order granting continuance
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

John R Krahn Living Trust / Janet Krahn Living Trust vs Tonto Forest Estates Homeowners Association

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Case Summary

Case ID 25F-H057-REL
Agency —
Tribunal Office of Administrative Hearings
Decision Date 2025-11-24
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner John R Krahn Living Trust / Janet Krahn Living Trust Counsel —
Respondent Tonto Forest Estates Homeowners Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H057-REL Decision – 1345301.pdf

Uploaded 2026-04-24T12:50:42 (64.7 KB)

25F-H057-REL Decision – 1348059.pdf

Uploaded 2026-04-24T12:50:48 (49.0 KB)

25F-H057-REL Decision – 1351266.pdf

Uploaded 2026-04-24T12:50:51 (56.2 KB)

25F-H057-REL Decision – 1354250.pdf

Uploaded 2026-04-24T12:50:55 (50.6 KB)

25F-H057-REL Decision – 1354340.pdf

Uploaded 2026-04-24T12:51:04 (46.2 KB)

25F-H057-REL Decision – 1364599.pdf

Uploaded 2026-04-24T12:51:19 (45.9 KB)

25F-H057-REL Decision – 1364611.pdf

Uploaded 2026-04-24T12:51:22 (6.2 KB)

25F-H057-REL Decision – 1372120.pdf

Uploaded 2026-04-24T12:51:26 (117.0 KB)

Briefing Document: Krahn Living Trust vs. Tonto Forest Estates HOA (Case No. 25F-H057-REL)

Executive Summary

This document synthesizes the proceedings and final decision in case number 25F-H057-REL, a dispute between the John R. Krahn Living Trust (Petitioner) and the Tonto Forest Estates Homeowners Association (Respondent). The core of the dispute was an allegation that the Respondent violated Arizona Revised Statute (A.R.S.) § 33-1805 by providing an improperly redacted version of the March 2025 check register in response to a formal records request.

The Petitioner argued that the redaction was unjustified, targeted, and part of a larger pattern of non-compliance and bad faith by the HOA’s board. The Respondent countered that mailing the redacted document was a clerical error and that it fulfilled its statutory duty by making the complete, unredacted check register available to all members on its online portal within the 10-day legal timeframe.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. The decision found that while the Respondent had mistakenly mailed a redacted document, the subsequent posting of the unredacted version on the community portal rendered the issue moot. The ALJ concluded there was insufficient evidence to prove the Respondent’s actions were purposeful, “personal,” or part of a negligent pattern of behavior.

Case Overview

Detail

Description

Case Number

25F-H057-REL

Petitioner

John R. Krahn Living Trust / Janet Krahn Living Trust (represented by John Khran)

Respondent

Tonto Forest Estates Homeowners Association (represented by President Dwight A. Jolivette)

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Core Statute

A.R.S. § 33-1805: Association financial and other records

Chronology of Key Events

• March 31, 2025: John Khran submits a written request to the HOA for the March 2025 check register and specific legal invoices from Maxwell & Morgan.

• c. April 10, 2025: The HOA responds via U.S. Mail, sending a packet that includes a partially redacted version of the March 2025 check register.

• April 14, 2025: The statutory 10-business-day deadline for the records request. The HOA asserts it uploaded the unredacted check register to its online portal on this date.

• April 14 – April 21, 2025: The ALJ’s final decision establishes that the unredacted check register was made available on the portal during this period.

• May 19, 2025: Mr. Khran files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1805.

• September 17, 2025: The ALJ denies the Petitioner’s request for a subpoena requiring an in camera review, deeming it unnecessary.

• September 26, 2025: The ALJ denies the Petitioner’s motion to order an exchange of position statements but allows parties to file prehearing memorandums.

• October 22, 2025: The evidentiary hearing is held. Both John Khran and Dwight Jolivette provide sworn testimony.

• November 3, 2025: The official record for the hearing closes after a period allowing for the submission of post-hearing exhibits and responses.

• November 24, 2025: ALJ Velva Moses-Thompson issues the final decision, dismissing the petition.

Petitioner’s Position and Arguments

The Petitioner, represented by John Khran, contended that the HOA willfully withheld records and acted in bad faith, violating both the letter and spirit of state law.

Core Allegation: Violation of A.R.S. § 33-1805

The central claim was that the HOA failed to make records “reasonably available” by providing a version of the March 2025 check register with a blacked-out line item. Khran argued this act constituted a direct violation of the statute.

Argument 1: Improper and Targeted Redaction

• The redacted information consisted of routine financial metadata: general ledger code (5703), budget category (“Legal General”), and an invoice number (53189).

• Khran demonstrated that this information was not privileged by showing it was unredacted on other parts of the same document, in the prior month’s (February 2025) check register, and on the legal invoice itself.

• He argued the redaction served no lawful purpose and was applied specifically to his request, as evidenced by the HOA later publishing the full, unredacted version to the community portal.

• Key Quote: “This kind of inconsistent, personal and excessive reaction is not only justified, his violate the RS 331805A and respond statutory duty to treat all members fairly.”

Argument 2: Pattern of Non-Compliance and Bad Faith

• Khran asserted this was the HOA’s third violation of A.R.S. § 33-1805, citing cases 24F13 and 25FH11.

• He accused the board of adopting a “litigate every ing strategy,” escalating every complaint to the OAH rather than seeking resolution through mediation or negotiation, which he claimed caused “serious and lasting harm” to the 52-member community.

• He noted that the HOA ignored a subpoena’s explicit warning that “excessive or unjustified redactions” could be deemed bad faith.

Requested Relief

The Petitioner requested four specific orders from the court:

1. A finding that the Petitioner was the prevailing party.

2. Reimbursement of the $500 filing fee.

3. An order mandating the HOA’s future compliance with A.R.S. § 33-1805.

4. Imposition of a symbolic $1 civil penalty to deter future non-compliance and prevent the board from claiming vindication.

Respondent’s Position and Arguments

The Respondent, represented by its President Dwight Jolivette, maintained that it had complied with its statutory obligations and that the incident was an unintentional error.

Core Defense: Compliance via Portal Publication

• The HOA’s primary defense was that the unredacted March 2025 check register was made available for review by all members on the community portal on April 14, 2025, within the 10-day statutory deadline.

• Jolivette argued this action satisfied the requirement to make records “reasonably available for examination.”

• Key Quote: “Our sole question today is whether or not the board provided the March 2025 check register as requested by the petitioner under ARS 331805 for review within the 10day time frame specified by the law. Our position is we did.”

Argument 1: Clerical Error and Miscommunication

• Jolivette testified that sending the redacted check register was not intentional but was “simply a mistake caused by miscommunication.”

• He explained that both redacted and unredacted versions were prepared, and a clerk mistakenly included the redacted version in the mail packet sent to Khran. The board was unaware of the error until the complaint was filed.

Argument 2: Lack of Malicious Intent

• Jolivette argued that since the HOA publishes the check register unredacted for the entire community every month, there was no logical reason to single out Khran’s request for redaction.

• Key Quote: “Why? Why would we suddenly want to redact this stuff? We’re hoping for a little common sense here today to go along with the law.”

Argument 3: Petitioner’s Failure to Mitigate

• The Respondent pointed out that Khran, a former board member familiar with the process, did not contact the board to report the error. Had he done so, Jolivette stated, the issue would have been corrected immediately without the need for a formal hearing.

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision focused on the material facts and the legal concept of mootness, ultimately dismissing the Petitioner’s case.

Summary of Findings

1. Request and Response: The Petitioner submitted a records request on March 31, 2025. On or about April 10, 2025, the Respondent mailed copies of the requested items but “mistakenly gave Petitioner a redacted 2025 check register.”

2. Portal Publication: The Respondent uploaded an unredacted March 2025 check register to its online portal, making it available to all members, sometime between April 14, 2025, and April 21, 2025.

3. Lack of Evidence for Intent: The ALJ found “insufficient evidence to establish that Respondent purposefully neglected to mail Khran an unredacted March 2025 check register or that the failure to include the correct check register…was ‘personal.'”

4. No Pattern of Negligence: The decision also stated there was “insufficient evidence to establish that Respondent had a negligent pattern of responding to records requests in error or untimely.”

Central Legal Conclusion: Mootness

The core of the legal decision rested on the issue being moot. The ALJ determined that because the unredacted document was made available on the online portal before the Petitioner filed the complaint, the underlying issue was resolved.

• Key Quote from Decision: “It is undisputed that the unredacted March 2025 check register was uploaded to Respondent’s online portal which is available to all members before the petition was filed… Even if the unredacted check register was made available on its website after the 10-day statutory period, the issue is now moot.”

Final Order

“IT IS ORDERED that John R Krahn Living Trust / Janet Krahn Living Trust’s petition against Respondent Tonto Forest Estates Homeowners Association is dismissed.”

Study Guide: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (No. 25F-H057-REL)

This study guide provides a comprehensive overview of the administrative hearing regarding the records request dispute between the John R. Krahn Living Trust and the Tonto Forest Estates Homeowners Association (HOA). It covers key legal concepts, procedural history, and the final judicial determination.

Section 1: Key Concepts and Case Overview

Case Summary

The central issue in case No. 25F-H057-REL was whether the Tonto Forest Estates Homeowners Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by willfully withholding association records. The Petitioner, John Krahn, alleged that the HOA failed to provide an unredacted March 2025 check register within the legally mandated timeframe after a formal request.

The Parties
Party Role Representation/Key Figure
John R. Krahn Living Trust Petitioner John Krahn (Trustee and former board member)
Tonto Forest Estates HOA Respondent Dwight A. Jolivette (President)
Office of Administrative Hearings Tribunal Velva Moses-Thompson (Administrative Law Judge)
Legal Standards and Statutory Requirements
  • A.R.S. § 33-1805(A): Requires that all financial and other association records be made "reasonably available" for examination by a member or their representative.
  • Timeline: The association has ten business days to fulfill a request for examination or to provide copies.
  • Exemptions (A.R.S. § 33-1805(B)): Associations may withhold records in specific categories, such as privileged legal communications, but redactions must not exceed the minimum necessary to protect that information.
  • Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence (showing the contention is "more probably true than not").

Section 2: Case Timeline (2025)

Date Event
March 31 John Krahn submits a written records request for the March 2025 check register and legal invoices.
April 10 The HOA mails records to Krahn, but the check register contains redactions (blacked-out lines).
April 14 The HOA's online portal is updated with the unredacted check register (the 10th business day).
May 19 Krahn files a petition with the Arizona Department of Real Estate alleging a violation.
August 7 Notice of Hearing is issued.
September 2 ALJ grants a continuance, moving the hearing from Sept 8 to Oct 22.
September 17 ALJ denies a subpoena request for in camera review of evidence, citing it as unnecessary.
September 26 ALJ issues an "Order Nunc Pro Tunc" to correct a typographical error in a previous order.
October 22 Formal evidentiary hearing is conducted.
November 24 ALJ issues the Final Decision, dismissing the petition.

Section 3: Short-Answer Practice Questions

  1. What specific document was at the heart of the dispute?
  • Answer: The March 2025 check register, which was initially provided to the Petitioner in a redacted format via mail.
  1. How did the Respondent (HOA) explain the delivery of the redacted check register?
  • Answer: The HOA President testified it was a "clerical error" or "dumb mistake." A clerk accidentally mailed a version intended for internal training/legal review instead of the unredacted version.
  1. According to A.R.S. § 33-1805, how many days does an association have to fulfill a records request?
  • Answer: Ten business days.
  1. Why did the Petitioner argue that the redaction was targeted and improper?
  • Answer: Krahn argued the redacted information (ledger codes and invoice numbers) was routine financial metadata, was disclosed unredacted in other parts of the same document, and had been published unredacted in previous months.
  1. What was the Petitioner’s requested "symbolic" remedy regarding the civil penalty?
  • Answer: A civil penalty of $1 to deter future non-compliance.
  1. What was the ALJ’s primary reason for dismissing the petition?
  • Answer: The ALJ found the issue "moot" because the unredacted record had been made available on the community portal before the petition was filed, and there was insufficient evidence of "willful" withholding or a negligent pattern.

Section 4: Essay Prompts for Deeper Exploration

  1. The Definition of "Reasonably Available": In this case, the HOA provided a redacted hard copy but posted an unredacted version on a digital portal. Analyze whether posting a document to a member portal satisfies the statutory requirement to make records "reasonably available" to a specific requester, especially if the requester is not notified of the digital upload.
  2. Intent vs. Error in Administrative Law: The Respondent argued the violation was a "clerical error," while the Petitioner argued it was "willful" and "personal." Discuss the importance of proving "intent" or "bad faith" when seeking civil penalties in HOA disputes, citing the ALJ’s findings on the sufficiency of evidence.
  3. The Doctrine of Mootness: The ALJ dismissed the case because the unredacted documents were eventually made available on the portal. Explore the implications of the "mootness" doctrine in records disputes. Does the eventual provision of records excuse a failure to meet the initial 10-day statutory deadline?

Section 5: Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who overrules proceedings in administrative agencies, such as the Office of Administrative Hearings.
  • In Camera Review: A private review of sensitive documents by a judge (in their chambers) to determine if the information should be disclosed to the other party or used in court.
  • Moot: A legal term meaning that the matter has already been resolved or the circumstances have changed such that a judicial determination would have no practical effect.
  • Nunc Pro Tunc: A Latin phrase meaning "now for then." In this case, it refers to an order issued to correct a clerical or typographical error in a previous ruling, treating the correction as if it had been made on the original date.
  • Petitioner: The party who initiates the lawsuit or petition (in this case, the Krahn Living Trust).
  • Preponderance of the Evidence: The standard of proof in civil and administrative cases; it means that the evidence shows that a fact is more likely than not to be true.
  • Respondent: The party against whom a petition is filed (in this case, the Tonto Forest Estates HOA).
  • Subpoena: A legal order requiring a person to appear in court or to produce specific documents.
  • Willful Withholding: An intentional act of refusing to provide records, as opposed to an accidental or negligent omission.

The 10-Day Rule and the Portal Loophole: Lessons from a Recent Arizona HOA Transparency Dispute

The delicate friction between a homeowner’s statutory right to information and a board’s administrative execution remains a primary source of litigation in Arizona community associations. Under Arizona Revised Statute A.R.S. § 33-1805, homeowners are granted the right to inspect association records, and boards are mandated to make those records "reasonably available" within 10 business days. However, as the case of John R. Krahn Living Trust / Janet Krahn Living Trust vs. Tonto Forest Estates HOA (No. 25F-H057-REL) demonstrates, the distinction between a "clerical error" and "willful withholding" is often determined by the presence of a digital portal, which can provide a decisive legal "out" for associations even when technical violations occur.

2. The Conflict: Redactions, Records, and Requests

The dispute in this Mesa, Arizona community was triggered on March 31, 2025, when Petitioner John Krahn submitted a formal records request. He sought the March 2025 check register and all legal invoices from the association's counsel, Maxwell & Morgan, dating back to December 2024.

The conflict intensified when the HOA mailed a physical packet containing a redacted version of the check register. The Petitioner’s strategy centered on the theory of selective targeting, arguing that the redactions—which obscured routine financial metadata such as General Ledger codes—were unnecessary and intended to obstruct transparency.

Case at a Glance Petitioner: John R. Krahn Living Trust / Janet Krahn Living Trust Respondent: Tonto Forest Estates Homeowners Association (Mesa, Arizona) Statute in Question: A.R.S. § 33-1805 (Association financial and other records) Central Issue: Willful withholding of association records.

3. The Timeline of a Tipping Point

The legal determination rested on a narrow window of administrative activity in April 2025. The following timeline illustrates the sequence of events analyzed by the Administrative Law Judge (ALJ):

  • March 31, 2025: Petitioner submits the records request via email.
  • April 10, 2025: The HOA mails a physical packet containing a redacted version of the March check register.
  • April 14, 2025: The 10th business day deadline. The HOA’s management software generated a report which the Association claimed was synonymous with its upload to the community portal.
  • April 21, 2025: The Petitioner acknowledges the presence of the unredacted version on the community portal.
  • May 19, 2025: The Petitioner files a formal petition alleging a violation of A.R.S. § 33-1805.

A pivotal evidentiary moment occurred during the hearing when the Respondent introduced Exhibit A, an email from the former community manager dated October 22, 2025. This document served as the "smoking gun" for the defense, confirming that the unredacted register was uploaded to the portal on April 14, meeting the 10-day statutory requirement despite the errors in the physical mailing.

4. Inside the Hearing: Two Sides of a "Dumb Mistake"

During the hearing on October 22, 2025, the parties presented competing narratives regarding the Association's intent.

The Petitioner's Case

The Petitioner argued that the redactions served no lawful purpose under A.R.S. § 33-1805(B), noting that specific metadata, such as General Ledger code "5703 – Legal General," was left unredacted in other documents but obscured in the register sent to him. He alleged a "conscious disregard" for the tribunal’s authority, claiming the Association had simply "photocopied" excessive redactions from a prior subpoena response into the current request. Driven by principle, the Petitioner requested only a symbolic $1 civil penalty to underscore the need for accountability.

The Association's Defense

Dwight Jolivette, HOA President, characterized the mailing of redacted records as a "clerical error." He testified that the version sent to the Petitioner was actually a "training draft" intended for the Association’s attorney to review redaction standards, which was mailed by a clerk in error. The defense argued that because the unredacted version was accessible via the member portal by April 14, the Association had fulfilled its duty to make the records "reasonably available."

Competing Perspectives
Petitioner’s Claim: Willful Withholding Respondent’s Claim: Clerical Error
Redactions were targeted, inconsistent, and obscured non-privileged metadata like GL Code 5703. Redactions were part of a "training draft" for counsel, sent accidentally by administrative staff.
The Association showed bad faith by photocopying old redactions despite subpoena warnings. The Association acted in good faith by ensuring unredacted files were live on the portal.
Failure to notify the Petitioner of the portal upload constitutes withholding. Digital availability on the portal satisfies the "reasonably available" statutory standard.

5. The Verdict: Why the ALJ Dismissed the Case

On November 24, 2025, Administrative Law Judge Velva Moses-Thompson issued a decision dismissing the petition. The ruling was based on the "Preponderance of the Evidence" standard, finding the Petitioner did not meet the burden of proof.

The ALJ's dismissal focused on three legal pillars:

  1. Insufficient Evidence of Malice: The court found no proof that the HOA "purposefully neglected" the request or that the error was "personal" in nature.
  2. Lack of Pattern: There was no established history of the HOA consistently responding to records requests with negligent errors or delays.
  3. The "Mootness" Nuance: This was the critical legal takeaway. The ALJ ruled that because the unredacted records were available on the member portal before the Petitioner filed his complaint in May, the issue was moot. Crucially, the court found that even if a technical timing violation occurred, the availability of the records prior to the filing of a petition effectively cures the violation.

6. Conclusion: Takeaways for Homeowners and Boards

The Tonto Forest Estates decision offers essential guidance for navigating the administrative complexities of HOA governance.

  1. The "Portal Defense": This case establishes that digital availability can mitigate physical administrative errors. Boards should maintain a consistent "upload-first" policy for financial records to ensure they meet the "reasonably available" standard.
  2. The Burden of Proof: Proving "willful" withholding is an exceptionally high bar. Administrative judges are reluctant to penalize boards for "dumb mistakes" or "clerical errors" in the absence of a documented, malicious pattern.
  3. Communication First: A simple inquiry regarding the "clerical error" could have resolved the dispute. The ALJ’s findings suggest that homeowners should seek clarification or request a corrected copy before committing to the costs of a formal petition.
  4. The High Cost of Friction: The Petitioner noted that legal expenses for this 52-member community had exceeded $135,000 due to a "litigate everything" environment. Transparency is not only a statutory duty but a fiduciary necessity to protect the association's financial health.

Document Credits & Statutory Reference

  • Primary Statute: Arizona Revised Statute § 33-1805
  • Case Reference: John R. Krahn Living Trust / Janet Krahn Living Trust vs. Tonto Forest Estates HOA, Case No. 25F-H057-REL

Case Participants

Petitioner Side

  • John R. Krahn (Trustee)
    John R. Krahn Living Trust / Janet Krahn Living Trust
    Testified on behalf of the petitioner; requested the records; former board member of the respondent HOA.

Respondent Side

  • Dwight A. Jolivette (President)
    Tonto Forest Estates Homeowners Association
    Testified on behalf of the respondent HOA.

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who issued the final administrative law judge decision.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Listed in the transmission logs for the tribunal's orders and decisions.

Sally Magana v. Wynstone Park Homeowners Association

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Case Summary

Case ID 25F-H070-REL
Agency —
Tribunal —
Decision Date 2025-10-29
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Sally Magana Counsel —
Respondent Wynstone Park Homeowners Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H070-REL Decision – 1350920.pdf

Uploaded 2026-04-24T12:52:59 (50.9 KB)

25F-H070-REL Decision – 1352025.pdf

Uploaded 2026-04-24T12:53:03 (48.7 KB)

25F-H070-REL Decision – 1355826.pdf

Uploaded 2026-04-24T12:53:09 (59.1 KB)

25F-H070-REL Decision – 1363586.pdf

Uploaded 2026-04-24T12:53:17 (144.5 KB)

Briefing Document: Magana v. Wynstone Park Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision in case number 25F-H070-REL, Sally Magana v. Wynstone Park Homeowners Association. The petitioner, Sally Magana, filed a two-issue petition alleging the Homeowners Association (HOA) improperly fined her for a public nuisance related to parking and mischaracterized necessary property maintenance as an unauthorized architectural modification.

The respondent, Wynstone Park HOA, countered that the Office of Administrative Hearings (OAH) lacked jurisdiction over the alleged city ordinance violation and that the work performed by the petitioner was, in fact, an unapproved “alteration” under the community’s Covenants, Conditions, and Restrictions (CC&Rs). The HOA maintained its enforcement actions were authorized and appropriate.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case in its entirety. The decision was based on two key findings: 1) The OAH does not have the jurisdiction to rule on violations of a municipal (City of Mesa) ordinance, and 2) The petitioner failed to meet her burden of proof to establish that the HOA violated its own governing documents. The ALJ concluded that the work performed—which included removing the original paver base, installing a new gravel surface, and altering the slope of the driveway—constituted a “change or alteration” requiring prior approval under CC&R Section 7.1, which the petitioner did not obtain.

Case Overview

Entity / Individual

Petitioner

Sally Magana (Homeowner)

Respondent

Wynstone Park Homeowners Association (HOA)

Presiding Judge

Velva Moses-Thompson, Administrative Law Judge (ALJ)

Case Number

25F-H070-REL

Hearing Date

October 9, 2025

Decision Date

October 29, 2025

Timeline of Key Events

July 3, 2019

HOA granted a variance allowing Ms. Magana to park anywhere on her driveway extension.

Feb 26, 2021

HOA sent a notice to Ms. Magana for parking past the garage, citing nuisance under CC&R Section 8.4.

Jan 27, 2025

Ms. Magana submitted a Design Review Application to modify drainage under her paver extension.

Feb 11, 2025

HOA’s Architectural Review Committee (ARC) disapproved the application, citing the 50% lot coverage rule and nuisance complaints from a neighbor.

March 12, 2025

The HOA Board met with Ms. Magana at her property to discuss the matter.

May/June 2025

Ms. Magana proceeded with work on the pavers without ARC approval.

June 2, 2025

HOA issued a courtesy notice for an unapproved architectural change under CC&R Section 7.1.

June 11, 2025

HOA issued a Violation Notice with a $25 fine for the unapproved change.

July 14, 2025

HOA issued a second Violation Notice with a $50 fine.

July 17, 2025

Ms. Magana filed her petition with the Arizona Department of Real Estate.

Oct 29, 2025

The ALJ issued a decision dismissing the petition.

Petitioner’s Allegations and Arguments

Ms. Magana’s case was centered on two primary allegations:

1. Violation of Public Nuisance Ordinance: The petitioner alleged the HOA violated “Title 8, Chapter 6, Article I, 8-6-3: PUBLIC NUISANCES PROHIBITED” of the City of Mesa code by fining her for parking on her driveway extension. She argued that the extension was approved in 1998 and reaffirmed by an HOA variance in 2019, making the fine improper.

2. Violation of CC&R Section 7.1 (Architectural Approval): The petitioner contended that the HOA mischaracterized routine maintenance as an “unauthorized modification.” She argued the work was necessary to correct a drainage issue causing water pooling against her foundation and creating a risk of termites. Her position was that since no new pavers were installed and the layout was not changed, the work did not constitute an architectural change requiring ARC approval. She also raised the issue of selective enforcement, providing photos of other homes with alleged violations that had not been cited.

Respondent’s Position and Defense

The HOA’s defense, presented by attorney Ashley Turner and Board President Andrew Hancock, rested on the following points:

1. Jurisdictional Challenge: The HOA argued that the OAH does not have jurisdiction to decide whether the association violated a City of Mesa ordinance, and that this issue should be dismissed on that basis alone.

2. The Work Was an “Alteration,” Not “Maintenance”: The HOA asserted that the work performed went beyond simple maintenance. Testimony revealed that the original play sand base was removed, a new decomposed granite base was installed, and the grade of the surface was altered to change the slope and water flow. The HOA considered these actions a “change or alteration” as defined in CC&R Section 7.1, which explicitly requires prior written approval from the ARC.

3. Proper Denial and Enforcement: The HOA’s denial of Ms. Magana’s initial application was based on established Design Guidelines, specifically that the total parking area “may not exceed… fifty percent (50%) of the lot width.” The denial also cited ongoing nuisance complaints from a neighbor regarding noise and access issues caused by vehicles parked on the extension. The subsequent fines were issued in accordance with the HOA’s enforcement policy after Ms. Magana completed the work without approval.

4. Authority to Enforce: The HOA cited CC&R Section 10.1, which grants it the right to enforce all covenants and restrictions in the governing documents.

Key Testimonies and Evidence

Witness Testimony

• Rita Elizalde (Petitioner’s Witness; Owner, JLE Heartscape and Design):

◦ Testified that the initial proposal, which included drains, was not executed due to the HOA’s denial.

◦ Characterized the work performed as “a maintenance on what you already had” to correct sinking pavers and water pooling against the foundation.

◦ Confirmed that the previous installer had used an improper “play sand base,” which her company removed.

◦ Stated they installed a new base of “decomposite granite,” replaced the original pavers in the same design, and added polymeric sand to lock them in.

◦ Confirmed the ground “had to be sloped back a little bit” to ensure water ran toward the street and not toward the neighbor’s property or the house foundation.

• Andrew Hancock (Respondent’s Witness; HOA Board President):

◦ Testified that the board considered the work a “change to the design of the pavers” because it addressed slope and drainage issues, which is more than basic maintenance.

◦ Stated that the board denied the initial application due to the 50% lot coverage rule and nuisance complaints from the neighbor, which included “the sound of the vehicle’s wake child” and the car blocking the neighbor’s access for taking out trash cans.

◦ Clarified that the board offered Ms. Magana two potential compromises: stopping the pavers at the garage line or bringing her fence/gate forward to be in line with the garage.

◦ Testified that photos of the work in progress (Exhibit G) showed all pavers removed and the base grading “manipulated.” He also noted what appeared to be new PVC piping.

◦ Referencing a photo of the pre-maintenance water pooling (Exhibit E), he testified that it showed water flowing “over the end border into the gravel and the neighbor’s yard.”

Key Exhibits

Exhibit #

Description & Significance

Respondent

The HOA’s CC&Rs, establishing the rules for architectural approval (Sec 7.1) and enforcement (Sec 10.1).

Respondent

Ms. Magana’s initial Design Review Application (denied) and a photo showing significant water pooling on the pavers and onto the neighboring lot.

Petitioner

Before and after photos of the paver extension, intended to show no visual change in design.

Respondent

Photos taken during the project showing all pavers removed, piled up, and the underlying base exposed and re-graded.

H, I, K

Respondent

The series of enforcement letters: Courtesy Notice (June 2), $25 Fine (June 11), and $50 Fine (July 14) for the unapproved alteration.

Petitioner

The HOA’s Design Guidelines, which include the 50% lot width limitation for parking areas.

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision dismissed Ms. Magana’s petition. The ruling was grounded in the following conclusions of law:

• Lack of Jurisdiction over Municipal Ordinance: The ALJ determined that “The OAH does not have jurisdiction to determine whether a planned community organization has violated a City of Mesa Code Ordinance.” This effectively dismissed the first issue of the petition without ruling on its merits.

• Petitioner’s Failure to Meet Burden of Proof: For the second issue, the ALJ found that the petitioner bore the burden of proving the HOA violated its CC&Rs and failed to do so. The decision noted:

◦ CC&R Section 7.1 regulates homeowners, requiring them to obtain prior approval for any “exterior addition, change, or alteration.”

◦ The preponderance of evidence, including testimony from the petitioner’s own witness (Ms. Elizalde), showed that changes were made to the surface under the pavers and to the slope of the driveway.

◦ These actions constitute an “alteration” under the CC&Rs.

◦ Because Ms. Magana made these changes without prior approval, she did not establish that the HOA mischaracterized her actions or violated Section 7.1.

• HOA’s Authority to Enforce: The decision affirmed that CC&R Section 10.1 authorizes the respondent to enforce its governing documents.

The final order concluded: “Petitioner has failed to meet her burden to establish that Respondent violated Respondent’s CC&Rs, governing document, or any statutes that regulate planned communities. Petitioner’s petition should be dismissed.”

Study Guide: Magana v. Wynstone Park Homeowners Association (No. 25F-H070-REL)

This study guide provides a comprehensive overview of the administrative hearing between Petitioner Sally Magana and Respondent Wynstone Park Homeowners Association. It synthesizes the legal arguments, procedural history, and ultimate judicial determination regarding property maintenance, architectural modifications, and jurisdictional boundaries within a planned community.

1. Case Overview and Background

The dispute centers on a home located at 9926 E. Diamond Avenue in Mesa, Arizona, within the Wynstone Park community. The Petitioner, Sally Magana, sought to overturn fines and violations issued by the Homeowners Association (HOA) regarding her driveway extension.

Core Issues
  1. Public Nuisance and Parking: Whether the HOA violated City of Mesa Ordinance (Title 8, Chapter 6, Article I, 8-6-3) by fining the Petitioner for parking on a driveway extension she claimed was approved and "grandfathered."
  2. Maintenance vs. Modification: Whether the HOA violated CC&R Section 7.1 by characterizing the repair of sinking pavers as an "unauthorized modification" rather than "routine maintenance."
Procedural History
  • July 17, 2025: Petitioner filed a two-issue petition with the Arizona Department of Real Estate (ADRE).
  • September 19, 2025: Administrative Law Judge (ALJ) Velva Moses-Thompson denied the Respondent’s Motion to Dismiss, moving the case to a full hearing.
  • October 9, 2025: An evidentiary hearing was conducted via Google Meet.
  • October 29, 2025: The ALJ issued a final decision dismissing the petition.

2. Key Legal and Procedural Concepts

OAH Jurisdiction

The Office of Administrative Hearings (OAH) is authorized to decide petitions concerning violations of planned community documents under A.R.S. Title 33, Chapter 16. However, the ALJ explicitly ruled that the OAH does not have jurisdiction to determine if a community organization has violated municipal codes, such as the City of Mesa Code Ordinances.

Burden of Proof

In this administrative matter, the Petitioner bears the burden of proof to establish violations by a preponderance of the evidence. This legal standard requires proof that the contention is "more probably true than not," or carries the "greater weight of the evidence."

Maintenance vs. Architectural Change

The crux of the second issue was the definition of work performed:

  • Petitioner's View: The work was "routine maintenance" involving lifting existing pavers, replacing a "play sand" base with decomposed granite to fix water pooling/termite issues, and relaying the same pavers in the same design.
  • Respondent's View: The work constituted a "change or alteration" because it manipulated the grading/slope and introduced new base materials (PVC piping and gravel) without prior written approval from the Architectural Review Committee (ARC).

3. Short-Answer Practice Questions

Q1: What specific section of the CC&Rs governs architectural approval in Wynstone Park? A: Section 7.1. It stipulates that no exterior addition, change, or alteration may be made to any unit until plans are approved in writing by the Architectural Committee.

Q2: Why did the HOA Board originally disapprove the Petitioner’s January 2025 Design Review Application? A: The Board cited two main reasons: (1) Community guidelines state pavers should not exceed 50% of the front yard, and (2) parking on those pavers caused nuisances for neighbors (noise and blocking access for trash cans).

Q3: What was the significance of the 2019 e-mail from the Community Manager to the Petitioner? A: It granted a variance allowing the Petitioner to park on the driveway extension, provided no damage was caused to neighboring property (such as excessive water run-off).

Q4: What specific work did the contractor (JLE Hardscape and Design) perform on the pavers? A: They removed the original sand base, altered the slope to prevent water pooling against the foundation, installed a new decomposed granite base, and re-laid the original pavers using polymeric sand.

Q5: What was the ALJ’s final ruling regarding the fines issued to the Petitioner? A: The ALJ dismissed the petition, ruling that the Petitioner failed to meet her burden of proof to show the HOA violated its governing documents.

4. Essay Prompts for Deeper Exploration

Prompt 1: Jurisdictional Limits in HOA Disputes

Analyze the ALJ's decision regarding the City of Mesa Code Ordinances. Discuss why an Administrative Law Judge for the State might lack the authority to enforce municipal codes and how this affects a homeowner's strategy when filing a petition. What alternative venues might a homeowner use to address municipal code violations?

Prompt 2: The Definition of "Alteration"

The Petitioner argued that because she used the same pavers in the same layout, the work was "maintenance." The HOA argued that changing the subsurface and the slope constituted an "alteration." Using the evidence from the transcript and the final decision, argue which side's interpretation better aligns with the language of CC&R Section 7.1.

Prompt 3: Selective Enforcement and Evidence

During the hearing, the Petitioner alleged "selective enforcement," pointing to the HOA Vice President's home and other neighbors with similar driveway extensions. Evaluate the impact of this testimony on the final decision. Why might an ALJ find such comparisons irrelevant to the specific violation of Section 7.1?

5. Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who trios and decides disputed matters for state agencies. In this case, Velva Moses-Thompson of the OAH.
ARC / Architectural Committee The body within an HOA responsible for reviewing and approving changes to the exterior of properties.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules of a planned community.
Decomposed Granite (DG) A base material used under pavers, also referred to in the hearing as "quarter minus."
Design Review Application The formal request a homeowner must submit to the HOA before starting exterior modifications.
Minute Entry A brief written record of the proceedings or a specific order issued by a court/tribunal before a final decision.
Petitioner The party who brings the case to the tribunal; in this matter, Sally Magana.
Preponderance of the Evidence The standard of proof in civil/administrative cases, meaning a fact is more likely than not to be true.
Respondent The party responding to the petition; in this matter, Wynstone Park Homeowners Association.
Variance An official exception to the standard rules or CC&Rs granted by the HOA Board.

When Maintenance Becomes a Modification: Lessons from a Real-World HOA Legal Battle

1. Introduction: The High Stakes of Home Improvements

For most homeowners, property upkeep is an act of stewardship—a necessary defense against termite damage, foundation shifts, and the desert’s unpredictable drainage patterns. However, within a Common Interest Community, these restorative efforts are often viewed through the strict lens of community standards. The line between "routine maintenance" and "unauthorized modification" is frequently where neighborly cooperation ends and legal conflict begins.

The case of Sally Magana v. Wynstone Park Homeowners Association serves as a quintessential cautionary tale. What the homeowner viewed as an essential repair to protect her 70-year-old investment from water damage, the Board viewed as an unapproved engineering overhaul. This dispute, which culminated in a formal hearing before the Office of Administrative Hearings (OAH), highlights the significant legal risks homeowners face when they attempt "workarounds" after an architectural denial.

2. The Core Conflict: Pavers, Drainage, and the "M" Word

In early 2025, Sally Magana sought to address a persistent issue: pooling water and termite concerns on her existing driveway extension. After the Board denied her initial proposal for a new drainage system, Magana’s contractor, JLE Hardscape, suggested a "maintenance" approach: lifting the existing pavers, replacing the failing base, and relaying the same stones.

The homeowner’s advocate position is understandable here: the contractor discovered the original installer had used improper "play sand," a fundamental error that caused the pavers to sink. Correcting this installer error felt like restoring the property to its intended state. However, the Board viewed the removal of the sand and the introduction of new engineering elements as a bridge too far.

Petitioner’s Argument (Sally Magana) Respondent’s Argument (Wynstone Park HOA)
Maintenance & Protection: JLE Hardscape testified that the work was "essential" to prevent foundation and termite damage. No new pavers were purchased; the original stones were simply reset to fix sinking caused by "play sand." Unauthorized Alteration: Board President Andrew Hancock testified that the project constituted a "change" or "alteration" under CC&R Section 7.1 because it involved more than just cleaning or resetting.
No Structural Change: The homeowner argued that because the layout remained identical, no architectural review was triggered. The goal was restoration, not innovation. Engineering Overhaul: The Association argued that manipulating the grade/slope and replacing sub-surface materials (adding PVC piping and gravel) changed the lot's engineering.

The "Smoking Gun" Materials: While Magana argued she was simply replacing "play sand" with "decomposed granite" (DG) to provide a stable base, the Board presented evidence that PVC piping had been added to the sub-grade. This addition proved to the court that the project was a modification of the home's drainage system rather than simple maintenance.

3. The Parking Puzzle: Variances and Nuisances

The conflict was exacerbated by a long-standing dispute over the use of the driveway extension. While Magana pointed to a variance granted in 2019 as her "right" to park there, the Association noted a critical legal caveat: the variance was conditional. It was permitted only "so long as no damage is caused to the neighboring property."

When neighbors began complaining, the HOA determined the conditions of the variance were being violated. The "Nuisance" complaints included:

  • Vehicular Noise: Neighbors testified that engine noise and car doors near the property line woke their children.
  • Obstruction of Services: To move trash cans to the curb, neighbors were forced to walk through gravel to bypass vehicles parked on the extension.
  • Water Runoff: Most damagingly, Exhibit E showed that the extension was causing water to pool and runoff onto the neighbor’s lot, effectively voiding the 2019 variance.

Furthermore, the Board enforced the "50% Rule" from the Wynstone Park Design Guidelines, which dictates that the total parking area (original driveway plus extension) cannot exceed 50% of the lot width.

4. Inside the Hearing: The Legal Thresholds

During the OAH hearing, the legal strategy of the Association outmatched the homeowner’s anecdotal evidence. A major factor was the homeowner's failure to provide an expert engineering report to counter the Board’s claims about slope changes—a strategic error that left the Board’s technical testimony unchallenged.

Jurisdictional Limits of the OAH Homeowners must recognize that the OAH has a narrow scope of authority. The Administrative Law Judge (ALJ) explicitly ruled that the OAH does NOT have jurisdiction over City of Mesa Code Ordinances. The tribunal’s power is strictly limited to the Arizona Planned Community Act and the Association's governing documents (CC&Rs, Bylaws, and Design Guidelines).

The evidence that swayed the Judge included "before and after" photos (Exhibits 4, 5, and G). While the homeowner saw "the same pavers," Board President Hancock pointed to Exhibit G, which showed that the pavers were now at a different height relative to the home's rock fascia and pillars. This physical marker, combined with the presence of new PVC piping, provided the "preponderance of evidence" required to prove a modification had occurred.

5. The Final Verdict: Why the HOA Prevailed

In a decision dated October 29, 2025, the Administrative Law Judge dismissed Sally Magana’s petition. The ruling rested on three primary pillars:

  1. Burden of Proof: The homeowner, as the Petitioner, bore the burden of proving the HOA violated its documents. Without an expert witness or engineer, she could not legally disprove the Board’s claim that the drainage grade had been altered.
  2. Broad Definition of Section 7.1: The Judge interpreted "exterior addition, change, or alteration" to include the sub-surface work and the manipulation of the slope.
  3. Failure of the "Selective Enforcement" Defense: Magana attempted to argue selective enforcement by pointing to the Board Vice President’s own driveway. However, the Board successfully rebutted this by showing that the Vice President had adhered to a compromise (shortening the extension) that Magana had refused.
6. Key Takeaways for Homeowners and HOA Boards

This case clarifies the murky waters between maintenance and modification.

For Homeowners:

  • Maintenance vs. Modification: In a legal sense, "maintenance" is generally restorative—returning an item to its original state. Once you change the underlying engineering (the base material, the slope, or adding PVC pipes), you have moved into "modification," which requires ARC approval.
  • Expertise Matters: If you are challenging a Board’s claim regarding drainage or grading, a contractor’s testimony may not be enough. An engineering report is often the only way to meet your burden of proof in an administrative hearing.
  • Conditional Variances are Fragile: A variance is not a permanent right; it is a permission slip that can be revoked if the conditions (like not bothering neighbors or causing runoff) are not met.

For HOA Boards:

  • The "Invitation to Resubmit": The Board’s legal position was strengthened because they didn't just say "no"—they offered multiple alternatives (moving the gate or adding landscaping). This insulated them from claims of being "arbitrary or unreasonable."
  • Documentation is King: The Association won because of specific, dated photographic evidence (like the March 2025 site visit) that used static physical markers (the rock fascia) to prove a change in height and slope.
7. Conclusion: The Value of Clarity

The Magana v. Wynstone Park dispute is a sobering reminder that even well-intentioned home repairs can lead to costly legal defeats if the architectural review process is bypassed. While the homeowner felt she was doing the "right thing" by fixing a drainage error, the legal reality is that the Association has a mandate to oversee any change that affects the community's engineering and aesthetics.

To avoid fines and legal fees, homeowners should view the ARC process not as a hurdle to be cleared, but as a collaborative process. Seeking compromises and documenting every step of a project is far more effective—and significantly cheaper—than attempting to re-label a modification as "maintenance" after the work is done.

Case Participants

Petitioner Side

  • Sally Magana (Petitioner)
    Homeowner at Wynstone Park
  • Rita Elizalde (Witness)
    JLE Hardscape and Design
    Contractor hired by petitioner for driveway work
  • Jesus Ortiz (Witness)
    Testified on behalf of the petitioner
  • Adeline Escudero-Mendoza (Witness)
    Testified on behalf of the petitioner

Respondent Side

  • Ashley Turner (Attorney)
    CHDB Law
    Counsel representing the Wynstone Park Homeowners Association
  • Andrew Hancock (Board President and Witness)
    Wynstone Park Homeowners Association
    Testified on behalf of the respondent
  • Dawn Feigert (Community Manager)
    Trestle Management Group
    Issued variance notice in 2019 and a courtesy notice in 2021
  • Lea Austin (Community Manager)
    Trestle Management Group
    Issued a courtesy notice regarding unapproved architectural changes in 2025
  • Jennifer Irving (Board Vice President)
    Wynstone Park Homeowners Association

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge for the hearing
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Keith A. Shadden v. Las Brisas Community Association

Posted on by

Case Summary

Case ID 25F-H043-REL
Agency —
Tribunal —
Decision Date 2025-07-07
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Keith A. Shadden Counsel Pro Per
Respondent Las Brisas Community Association Counsel Kyle Banfield, Esq., Emily E. Cooper, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H043-REL Decision – 10_TAB H – Denial of Architectural Design hearing request.pdf

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25F-H043-REL Decision – 11_TAB I – Email concerning unable to attend hearing on Architectural Design with HOA Board.pdf

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25F-H043-REL Decision – 1298924.pdf

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25F-H043-REL Decision – 12_TAB J – HOA Board denial Letter of Architectural Design appeal.pdf

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25F-H043-REL Decision – 1303564.pdf

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25F-H043-REL Decision – 1312135.pdf

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25F-H043-REL Decision – 1312136.pdf

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25F-H043-REL Decision – 1314210.pdf

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25F-H043-REL Decision – 1315443.pdf

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25F-H043-REL Decision – 1315444.pdf

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25F-H043-REL Decision – 1316546.pdf

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25F-H043-REL Decision – 1316554.pdf

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25F-H043-REL Decision – 1317444.pdf

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25F-H043-REL Decision – 1317445.pdf

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25F-H043-REL Decision – 1317647.pdf

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25F-H043-REL Decision – 1317648.pdf

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25F-H043-REL Decision – 1325514.pdf

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25F-H043-REL Decision – 1325661.pdf

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25F-H043-REL Decision – 1325928.pdf

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25F-H043-REL Decision – 13_TAB K – Email for HOA Board consideration before rendering Architectural Design Appeal Decision.pdf

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25F-H043-REL Decision – 14_TAB L – Email to Community Manager with Owner Building Option List for window blinds.pdf

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25F-H043-REL Decision – 15_Table of Content.pdf

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25F-H043-REL Decision – 1_Homeowner Association HOA Dispute Process Petition.pdf

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25F-H043-REL Decision – 2_Statement of Facts and Argument.pdf

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25F-H043-REL Decision – 3_TAB A – Home Build option sheet.pdf

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25F-H043-REL Decision – 4_TAB B – Violation notification from HOA.pdf

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25F-H043-REL Decision – 5_TAB C – Hearing Request and communication with Community Manager.pdf

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25F-H043-REL Decision – 6_TAB D – Las Brisas.3.Declaration of Covenants Conditions Restrictions.pdf

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25F-H043-REL Decision – 7_TAB E – HOA Board Response Letter.pdf

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25F-H043-REL Decision – 8_TAB F – Architectural Design Request.pdf

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25F-H043-REL Decision – 9_TAB G – Architectural Design Request Response Letter.pdf

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25F-H043-REL Decision – Answer – Las Brisas (1).pdf

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25F-H043-REL Decision – Arizona Corporation Commission.pdf

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25F-H043-REL Decision – Filing Fee Receipt.pdf

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25F-H043-REL Decision – Notice of Hearing.pdf

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25F-H043-REL Decision – Notice of Petition.pdf

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Briefing Document: Shadden v. Las Brisas Community Association, Case No. 25F-H043-REL

Executive Summary

This document provides a comprehensive analysis of the legal dispute between homeowner Keith A. Shadden (Petitioner) and the Las Brisas Community Association (Respondent) concerning a violation for reflective material on garage door windows. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on whether the Association correctly applied its Covenants, Conditions, and Restrictions (CC&Rs).

On July 7, 2025, Administrative Law Judge Velva Moses-Thompson issued a decision dismissing Mr. Shadden’s petition. The judge ruled that the Petitioner failed to meet his burden of proof to establish that the Association had violated its governing documents.

The core of the dispute was Mr. Shadden’s allegation that the Association improperly used CC&R Section 5.10 (“Windows”) to cite him for reflective tint on his garage door’s glass cutouts. He argued that the garage door should be governed by Section 5.12 (“Garages and Driveways”). His primary evidence was that the original builder, Taylor Morrison, did not install window treatments on the garage door (a requirement of 5.10), implying the builder did not consider the cutouts to be “windows.”

The Association maintained that the plain language of the CC&Rs prohibits reflective materials on windows, that the glass cutouts are functionally windows, and that this rule is consistently enforced throughout the community. The Judge ultimately agreed with the Association’s interpretation, defining a “window” in its plain meaning as “any transparent opening through which light passes” and noting that Section 5.10 does not explicitly exclude garages.

Case Overview

Case Name

In the Matter of: Keith A. Shadden v. Las Brisas Community Association

Case Number

25F-H043-REL

Arizona Office of Administrative Hearings

Presiding Judge

Velva Moses-Thompson, Administrative Law Judge

Hearing Date

June 16, 2025

Decision Date

July 7, 2025

Petitioner

Keith A. Shadden (representing himself)

Respondent

Las Brisas Community Association, represented by Emily Cooper, Esq.

Core Dispute and Allegations

The central issue of the hearing, as defined in a June 5, 2025 order, was the Petitioner’s allegation that the Respondent was “using incorrect CC&R section (5.10) to create violation for garage door glass cutouts which fall under section 5.12”.

The dispute originated from a violation notice issued to Mr. Shadden on August 19, 2024, for having reflective material on his garage door windows. Subsequent notices with escalating fines were issued on February 13, 2025 (25fine),March21,2025(50 fine), and April 23, 2025 ($100 fine).

Relevant Governing Documents

The case revolved around the interpretation of two specific sections of the Las Brisas Community Association CC&Rs.

Section

Full Text

Article 5.10

Windows

“Within ninety (90) days of occupancy of a Residential Unit each Owner shall install permanent suitable window treatments that are Visible from Neighboring Property. No reflective materials, including, but without limitation, aluminum foil, reflective screens or glass, mirrors or similar type items, shall be installed or placed upon the outside or inside of any windows.”

Article 5.12

Garages and Driveways

“The interior of all garages situated on any lot shall be maintained in a neat and clean condition. Garages shall be used only for the parking of Vehicles and the storage of normal household supplies and materials and shall not be used for or converted to living quarters or recreational activities after the initial construction thereof without the prior written approval of the Architectural Committee. Garage doors shall be left open only as needed for ingress and egress.”

Arguments and Evidence Presented at Hearing

The evidentiary hearing was conducted virtually via Google Meet on June 16, 2025. Both parties presented arguments, testimony, and exhibits.

Petitioner’s Case (Keith A. Shadden)

Mr. Shadden argued that the Association’s application of Section 5.10 to his garage door was incorrect and unreasonable.

• Argument from Declarant’s Intent: Mr. Shadden testified that as the original homeowner, he paid the declarant, Taylor Morrison, nearly $1,600 for window treatments on all windows in the home. Because Taylor Morrison did not install any treatments on the garage door’s glass cutouts, he contended this showed the declarant’s intent that these cutouts were not to be considered “windows” under Section 5.10.

• Unreasonable Application: He argued that applying the entirety of Section 5.10, including the requirement for window treatments like blinds, to a garage door is an “unrealistic expectation for a homeowner.”

• Conflicting Communication: Mr. Shadden presented an email (Exhibit M) from the assistant community manager, K. White, which stated, “you do not have to install window treatment you can leave the windows without the treatments or you may install window treatments.” He argued this showed the Association itself did not apply the full scope of Section 5.10 to the garage.

• Testimony on “Window” Definition: Under cross-examination, Mr. Shadden offered several definitions of a window, including “something you look through.” He eventually conceded that the glass cutouts meet a common-sense understanding of a window but maintained his position based on the specific context of the CC&Rs.

Respondent’s Case (Las Brisas Community Association)

The Association, represented by Emily Cooper, Esq., with testimony from Community Manager Jamie Cryblskey, argued its actions were proper and consistent.

• Plain Language Interpretation: The Association asserted that the governing documents, including the CC&Rs and Design Guidelines, have “clear and plain language” that expressly prohibits reflective materials on windows.

• Consistent Enforcement: Ms. Cryblskey testified that the rule against reflective tint is enforced consistently across all 1,321 lots in the community. She noted that at the time of the hearing, one or two other homeowners had active violations for the same issue and were being treated in the same manner.

• Definition of “Window”: The Association argued that a “garage window is a window.” Ms. Cryblskey testified that she personally considers the glass inserts in a garage door to be windows.

• Adherence to Due Process: The Association outlined the procedural history, noting Mr. Shadden was provided a hearing before the Board of Directors on October 15, 2024. After his dispute was denied, he was required to submit an architectural application, which was also denied. His subsequent appeal of that denial was heard and denied by the board on December 17, 2024.

• Compliance Status: During opening statements, Ms. Cooper noted that Mr. Shadden had since installed a charcoal tint, which is permissible, rendering the petition moot. During testimony, Mr. Shadden stated he had applied black masking tape. Ms. Cryblskey confirmed that as of her last inspection on June 12, 2025, the reflective material was removed and the lot was in compliance.

Final Decision and Legal Conclusions

The Administrative Law Judge issued a final decision on July 7, 2025, dismissing Mr. Shadden’s petition.

• Burden of Proof: The decision established that the Petitioner, Mr. Shadden, bore the burden to prove by a preponderance of the evidence that the Respondent had violated its CC&Rs.

• Legal Interpretation: The judge’s central conclusion addressed the definition of “window.”

• Final Ruling: The judge found that Mr. Shadden failed to meet his evidentiary burden.

• Order: The recommended order stated, “IT IS ORDERED that Keith A. Shadden’s petition against Respondent Las Brisas Community Association is dismissed.” The decision is binding unless a party files for a rehearing within 30 days of the order.

Questions

Question

If I file a petition against my HOA, who is responsible for proving the violation occurred?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the dispute must prove that the HOA violated the governing documents. It is not automatically the HOA's job to prove they were right; the petitioner must first establish the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence do I need to win a hearing against my HOA?

Short Answer

You need a 'preponderance of the evidence,' meaning your claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' (like in criminal cases). It is a 'preponderance of the evidence,' which means the evidence must show that the homeowner's argument is more probably true than the HOA's.

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
  • definitions

Question

Can the HOA apply 'Window' restrictions (like tint bans) to glass cutouts in my garage door?

Short Answer

Yes, if the cutouts function as windows (allow visibility) and the homeowner fails to prove the specific garage section overrides the window section.

Detailed Answer

In this case, the ALJ dismissed the homeowner's claim that the HOA used the 'incorrect' CC&R section by applying window rules to garage door glass. The ALJ noted it was undisputed that one could see through the cutouts.

Alj Quote

It was undisputed that there are glass door cut outs on Petitioner’s garage door. Petitioner admitted during hearing that a person can see through the glass door cut outs… Petitioner has failed to meet its burden to establish that Respondent used incorrect sections of the CC&Rs when it issued its VIOLATION NOTICE.

Legal Basis

CC&Rs Section 5.10 vs 5.12

Topic Tags

  • architectural control
  • garage doors
  • windows
  • interpretation

Question

Does the HOA have to prove anything during the hearing?

Short Answer

Yes, if the HOA asserts any 'affirmative defenses,' they must prove them.

Detailed Answer

While the homeowner has the initial burden to prove the violation, if the HOA claims a specific legal defense justifies their actions, they carry the burden of proof for that specific defense.

Alj Quote

Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

Legal Basis

A.A.C. R2-19-119(B)(2)

Topic Tags

  • affirmative defense
  • burden of proof
  • procedure

Question

Can I argue that a restriction doesn't apply because the builder didn't install the item (like blinds) originally?

Short Answer

That argument may fail if the text of the CC&Rs explicitly restricts the item in question.

Detailed Answer

The homeowner argued that because the builder didn't put blinds on the garage door, the 'Window' section (requiring treatments and banning reflective tint) shouldn't apply. The ALJ rejected this argument and dismissed the petition.

Alj Quote

Petitioner contended that because Taylor Morrison did not place window treatment on the garage door cut outs, Taylor Morrison did intend for Section 5.10 of the CC&Rs to apply to garage doors… Petitioner has failed to meet its burden to establish that Respondent used incorrect sections of the CC&Rs

Legal Basis

Preponderance of Evidence

Topic Tags

  • builder intent
  • interpretation
  • architectural restrictions

Question

What agency handles hearings regarding HOA disputes in Arizona?

Short Answer

The Arizona Department of Real Estate (ADRE) receives petitions, which are heard by the Office of Administrative Hearings (OAH).

Detailed Answer

State law authorizes the Department of Real Estate to receive petitions from association members regarding violations of planned community documents.

Alj Quote

The Arizona Department of Real Estate (hereinafter “the Department”) is authorized by statute to receive and to decide Petitions for Hearings from members of homeowners’ associations… concerning violations of planned community documents

Legal Basis

A.R.S. § 32-2199(B)

Topic Tags

  • jurisdiction
  • ADRE
  • OAH

Case

Docket No
25F-H043-REL
Case Title
Keith A. Shadden v. Las Brisas Community Association
Decision Date
2025-07-07
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

If I file a petition against my HOA, who is responsible for proving the violation occurred?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the dispute must prove that the HOA violated the governing documents. It is not automatically the HOA's job to prove they were right; the petitioner must first establish the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

How much evidence do I need to win a hearing against my HOA?

Short Answer

You need a 'preponderance of the evidence,' meaning your claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' (like in criminal cases). It is a 'preponderance of the evidence,' which means the evidence must show that the homeowner's argument is more probably true than the HOA's.

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
  • definitions

Question

Can the HOA apply 'Window' restrictions (like tint bans) to glass cutouts in my garage door?

Short Answer

Yes, if the cutouts function as windows (allow visibility) and the homeowner fails to prove the specific garage section overrides the window section.

Detailed Answer

In this case, the ALJ dismissed the homeowner's claim that the HOA used the 'incorrect' CC&R section by applying window rules to garage door glass. The ALJ noted it was undisputed that one could see through the cutouts.

Alj Quote

It was undisputed that there are glass door cut outs on Petitioner’s garage door. Petitioner admitted during hearing that a person can see through the glass door cut outs… Petitioner has failed to meet its burden to establish that Respondent used incorrect sections of the CC&Rs when it issued its VIOLATION NOTICE.

Legal Basis

CC&Rs Section 5.10 vs 5.12

Topic Tags

  • architectural control
  • garage doors
  • windows
  • interpretation

Question

Does the HOA have to prove anything during the hearing?

Short Answer

Yes, if the HOA asserts any 'affirmative defenses,' they must prove them.

Detailed Answer

While the homeowner has the initial burden to prove the violation, if the HOA claims a specific legal defense justifies their actions, they carry the burden of proof for that specific defense.

Alj Quote

Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

Legal Basis

A.A.C. R2-19-119(B)(2)

Topic Tags

  • affirmative defense
  • burden of proof
  • procedure

Question

Can I argue that a restriction doesn't apply because the builder didn't install the item (like blinds) originally?

Short Answer

That argument may fail if the text of the CC&Rs explicitly restricts the item in question.

Detailed Answer

The homeowner argued that because the builder didn't put blinds on the garage door, the 'Window' section (requiring treatments and banning reflective tint) shouldn't apply. The ALJ rejected this argument and dismissed the petition.

Alj Quote

Petitioner contended that because Taylor Morrison did not place window treatment on the garage door cut outs, Taylor Morrison did intend for Section 5.10 of the CC&Rs to apply to garage doors… Petitioner has failed to meet its burden to establish that Respondent used incorrect sections of the CC&Rs

Legal Basis

Preponderance of Evidence

Topic Tags

  • builder intent
  • interpretation
  • architectural restrictions

Question

What agency handles hearings regarding HOA disputes in Arizona?

Short Answer

The Arizona Department of Real Estate (ADRE) receives petitions, which are heard by the Office of Administrative Hearings (OAH).

Detailed Answer

State law authorizes the Department of Real Estate to receive petitions from association members regarding violations of planned community documents.

Alj Quote

The Arizona Department of Real Estate (hereinafter “the Department”) is authorized by statute to receive and to decide Petitions for Hearings from members of homeowners’ associations… concerning violations of planned community documents

Legal Basis

A.R.S. § 32-2199(B)

Topic Tags

  • jurisdiction
  • ADRE
  • OAH

Case

Docket No
25F-H043-REL
Case Title
Keith A. Shadden v. Las Brisas Community Association
Decision Date
2025-07-07
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Keith A. Shadden (Petitioner)
    Homeowner of Lot 1-175
  • Donna M. Shadden (Homeowner)
    Spouse of Keith A. Shadden, co-owner of the property

Respondent Side

  • Kyle Banfield (Attorney)
    CHDB Law LLP
    Attorney for Las Brisas Community Association
  • Emily E. Cooper (Attorney)
    CHDB Law LLP
    Attorney for Las Brisas Community Association
  • Suzanne Hilborn (Legal Assistant)
    CHDB Law LLP
    Filed documents on behalf of Respondent's counsel
  • Jaime Cryblskey (Community Manager)
    City Property Management Company
    Community Manager for Las Brisas Community Association
  • Makayla White (Community Assistant)
    City Property Management Company
    Assistant to Jaime Cryblskey
  • Erica Golditch (Witness)
    City Property Management Company
    Requested to appear via videoconference by Respondent

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Assigned ALJ for the hearing
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Gabe Osborn (Representative)
    Arizona Department of Real Estate
    Filed Notice of Hearing
  • Vivian Nuñez (HOA Dispute Process Contact)
    Arizona Department of Real Estate
    Sent Notice of Petition to Respondent

Jeremy R. Whittaker vs The Val Vista Lakes Community Association

Posted on by

Case Summary

Case ID 25F-H041-REL
Agency —
Tribunal Arizona Office of Administrative Hearings / Department of Real Estate
Decision Date 2025-06-05
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Jeremy R. Whittaker Counsel Self-represented
Respondent The Val Vista Lakes Community Association Counsel Josh Bolen, Esq. (CHDB Law, LLP)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H041-REL Decision – 1297701.pdf

Uploaded 2026-04-24T12:40:30 (46.2 KB)

25F-H041-REL Decision – 1297767.pdf

Uploaded 2026-04-24T12:40:33 (47.1 KB)

25F-H041-REL Decision – 1301723.pdf

Uploaded 2026-04-24T12:40:38 (56.1 KB)

25F-H041-REL Decision – 1301746.pdf

Uploaded 2026-04-24T12:40:42 (45.1 KB)

25F-H041-REL Decision – 1304724.pdf

Uploaded 2026-04-24T12:40:47 (47.6 KB)

25F-H041-REL Decision – 1314414.pdf

Uploaded 2026-04-24T12:40:52 (92.7 KB)

Briefing: Case No. 25F-H041-REL, Whittaker v. The Val Vista Community Association

Executive Summary

This briefing synthesizes the key events, arguments, and outcomes of the administrative case Jeremy R. Whittaker v. The Val Vista Community Association (No. 25F-H041-REL), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the Association’s failure to comply with its own bylaws during its 2023 Board of Directors election.

The Petitioner, Jeremy R. Whittaker, alleged that the Association violated Article IV, Section 3 of its bylaws by using a candidate application form that did not require the disclosure of familial ties or conflicts of interest. This issue became prominent when two board candidates, Diana Ebertshauser and Brodie Hurtado, did not disclose their familial relationship with a partner at the law firm hired to count election votes until after the election.

The Association admitted to the violation, which significantly narrowed the legal proceedings. Administrative Law Judge (ALJ) Velva Moses-Thompson focused the case exclusively on determining whether a civil penalty against the Association was warranted. Consequently, several motions and requests from the Petitioner to broaden the scope—including a motion to consolidate cases, attempts to argue attorney misconduct, and subpoenas for numerous witnesses—were denied as irrelevant to the single issue at hand.

In the final decision issued on June 5, 2025, the ALJ found that while the Association had indeed violated its bylaws, the Petitioner failed to present sufficient evidence to justify a civil penalty. Despite the denial of a penalty, the Petitioner was declared the “prevailing party.” The Association was ordered to refund the Petitioner’s $500 filing fee and to ensure future compliance with its bylaws.

Case Overview and Parties

Detail

Description

Case Number

25F-H041-REL

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Petitioner

Jeremy R. Whittaker

Respondent

The Val Vista Community Association

Respondent’s Counsel

Josh Bolen, Esq. of CHDB Law, LLP

Core Allegation and Admitted Violation

Bylaw at Issue: Article IV, Section 3

The petition centered on a violation of the Association’s bylaws governing the election of its Board of Directors. The relevant section, Article IV, Section 3, mandates specific disclosures from candidates:

“Each candidate for the Board of Directors shall fill out an application which at minimum will require the candidate to disclose any familial, business or ownership relationships with other Directors or candidates; any current or anticipated conflicts of interest with the Association… and whether they have previously served on the on the Board.”

Nature of the Violation

The core of the case was the Association’s use of a non-compliant application form for its 2023 Board election.

• Deficient Application: The 2023 Board Candidate Application form failed to require candidates to disclose familial ties or other conflicts of interest as stipulated by the bylaws.

• Undisclosed Conflict: Board candidates Diana Ebertshauser and Brodie Hurtado did not disclose their familial ties to a partner at the law firm Carpenter Hazelwood. This disclosure was only made after the election, in which the firm was asked to count the votes.

• Respondent’s Admission: The Val Vista Community Association filed a written answer admitting that the candidate application forms supplied by the 2023 Board were not in compliance with Article IV, Section 3. This admission eliminated the need to litigate the facts of the violation itself.

Key Procedural Rulings and Hearing Scope

Following the Association’s admission, ALJ Velva Moses-Thompson strictly limited the scope of the proceedings to the single question of whether a civil penalty was appropriate. This focus resulted in several key rulings that shaped the case.

Narrowing the Hearing’s Scope

During the May 16, 2025 hearing, the ALJ explicitly defined the legal boundaries:

“The only way for the association to violate this bylaw is to fail to require the candidate to disclose any familial uh conflicts of interest. So that is the sole issue for this hearing… I can’t make decisions just about anything, but it’s specifically related to the alleged violation.”

The Petitioner’s attempts to introduce other issues were consistently disallowed. During his opening statement, Mr. Whittaker began to argue for sanctions against the Respondent’s attorneys for alleged discovery violations and harassment. The ALJ interrupted, stating, “these may be important and relevant issues, but not to the alleged violation today,” and clarified that “the attorneys are not the association.”

Denied Motions and Subpoenas

Several requests by the Petitioner were denied on the grounds of relevance to the narrowly defined issue:

• Motion to Consolidate (Denied April 24, 2025): The Petitioner’s motion to consolidate docket No. 25F-H041-REL with a separate case, No. 25F-H046-REL, was denied.

• Subpoena for Laura Tannery (Denied May 6, 2025): A subpoena request for Ms. Tannery was denied because the “Petitioner has not demonstrated the relevance of Ms. Tannery’s testimony to the issue of whether a civil penalty should be imposed.”

• Mass Subpoenas Quashed (May 13, 2025): Subpoenas issued on April 28, 2025, for eight individuals were quashed following a motion from the Respondent. The individuals were Brodie Hurtado, Diana Ebertshauser, Kevin McPhillips, Jonathan Ebertshauser, Esq., Joshua Bolen, Esq., Rob Actis, David Watson, and Laura Tannery.

In contrast, the Respondent’s motion to vacate the hearing was denied on April 24, 2025, with the ALJ affirming that a hearing was necessary to rule on the civil penalty question.

Final Decision and Outcome

The Administrative Law Judge Decision, issued on June 5, 2025, provided a conclusive resolution to the matter.

Ruling on Standing

The Respondent had moved to dismiss the petition, arguing the Petitioner lacked standing because he only became a property owner in June 2024, after the 2023 violation occurred. The ALJ rejected this argument, concluding that the Petitioner had standing because he “was a member of Respondent at the time that the petition was filed.”

Ruling on the Violation and Civil Penalty

• Violation Confirmed: The decision reiterated that “Respondent has admitted that it violated Article IV, Section 3 of Respondent’s Bylaws.”

• Civil Penalty Denied: The ALJ determined that a civil penalty was “not appropriate in this matter.” The official reasoning was that the “Petitioner failed to meet its burden to establish that a civil penalty should be imposed” and “did not present relevant evidence” at the hearing to support such a penalty.

Final Orders

The ALJ’s order contained three key directives:

1. Prevailing Party: The Petitioner, Jeremy R. Whittaker, was deemed the prevailing party.

2. Reimbursement: The Respondent was ordered to pay the Petitioner his $500.00 filing fee within thirty days.

3. Future Compliance: The Respondent was directed to comply with Article IV, Section 3 of its bylaws in all future elections.

All other forms of requested relief were denied.

Timeline of Key Events

The Val Vista Community Association holds its Board election using non-compliant candidate applications.

June 2024

Jeremy R. Whittaker becomes a property owner in the Val Vista Lakes development.

May 20, 2019

Petitioner files a single-issue petition with the Department of Real Estate (as recorded in the final decision).

April 24, 2025

ALJ denies Respondent’s motion to vacate the hearing and Petitioner’s motion to consolidate cases.

April 28, 2025

The tribunal signs subpoenas for eight individuals.

May 6, 2025

A sanctions hearing is scheduled for May 16. The Petitioner’s subpoena request for Laura Tannery is denied.

May 9, 2025

Deadline for parties to provide information regarding the 2023 election and discovery of the conflict.

May 13, 2025

ALJ grants Respondent’s motion to quash all eight subpoenas.

May 16, 2025

A hearing is held to determine the appropriateness of a civil penalty.

June 5, 2025

The final Administrative Law Judge Decision is issued.

Questions

Question

Can I file a petition against my HOA for a violation that occurred before I became a homeowner?

Short Answer

Yes. You have standing to file a petition as long as you are a member of the association at the time you file the paperwork, even if the violation happened prior to your ownership.

Detailed Answer

The ALJ rejected the HOA's argument that the homeowner lacked standing because they were not a member at the time of the alleged violation. The ruling established that standing is determined by membership status at the time of filing.

Alj Quote

The Administrative Law Judge concludes that Petitioner had standing to file the petition. Petitioner was a member of Respondent at the time that the petition was filed.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Standing
  • Homeowner Rights
  • Procedure

Question

If the HOA admits they violated the bylaws, will they automatically be required to pay a civil penalty?

Short Answer

No. An admission of guilt does not automatically result in a monetary fine. The homeowner must still provide evidence proving that a penalty is necessary or appropriate.

Detailed Answer

In this case, the HOA admitted that their candidate application forms violated the bylaws. However, the judge ruled that no civil penalty was appropriate because the petitioner did not present sufficient evidence to justify imposing one.

Alj Quote

Respondent has admitted that it violated Article IV, Section 3 of Respondent’s Bylaws. However Petitioner failed to meet its burden to establish that a civil penalty should be imposed in the above-entitled matter.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • Civil Penalties
  • Violations
  • Burden of Proof

Question

Does the HOA have to require board candidates to disclose conflicts of interest or family ties?

Short Answer

Yes, if the association's bylaws specifically require such disclosures in the candidate application.

Detailed Answer

The decision affirmed that the HOA violated its bylaws by failing to require candidates to disclose familial relationships. The bylaws stated that the application 'at minimum' must require disclosure of familial, business, or ownership relationships.

Alj Quote

Each candidate for the Board of Directors shall fill out an application which at minimum will require the candidate to disclose any familial, business or ownership relationships with other Directors or candidates…

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Elections
  • Board of Directors
  • Conflicts of Interest

Question

If I win my case against the HOA, will I get my filing fee back?

Short Answer

Yes. If the homeowner is deemed the prevailing party, the judge can order the HOA to reimburse the filing fee.

Detailed Answer

Because the petitioner prevailed in establishing that a violation occurred (via the HOA's admission), the ALJ ordered the HOA to pay the $500 filing fee directly to the petitioner within 30 days.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Fees
  • Remedies
  • Prevailing Party

Question

What is the standard of proof required to win a hearing against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The petitioner bears the burden of proving the violation. This does not require removing all doubt, but providing evidence that has 'the most convincing force' to incline a fair mind to one side.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated… by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(B)(1)

Topic Tags

  • Legal Standards
  • Evidence
  • Procedure

Question

What happens if the HOA used invalid forms for a past election?

Short Answer

The judge may order the HOA to comply with the bylaws for future actions, even if they do not impose a fine for the past violation.

Detailed Answer

The ALJ ordered the HOA to comply with the specific bylaw section regarding candidate applications going forward, ensuring future elections meet the disclosure requirements.

Alj Quote

IT IS FURTHER ORDERED that Respondent is directed to comply with Article IV, Section 3 of Respondent’s Bylaws.

Legal Basis

Order

Topic Tags

  • Remedies
  • Compliance
  • Elections

Case

Docket No
25F-H041-REL
Case Title
Jeremy R. Whittaker vs. The Val Vista Lakes Community Association
Decision Date
2025-06-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I file a petition against my HOA for a violation that occurred before I became a homeowner?

Short Answer

Yes. You have standing to file a petition as long as you are a member of the association at the time you file the paperwork, even if the violation happened prior to your ownership.

Detailed Answer

The ALJ rejected the HOA's argument that the homeowner lacked standing because they were not a member at the time of the alleged violation. The ruling established that standing is determined by membership status at the time of filing.

Alj Quote

The Administrative Law Judge concludes that Petitioner had standing to file the petition. Petitioner was a member of Respondent at the time that the petition was filed.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Standing
  • Homeowner Rights
  • Procedure

Question

If the HOA admits they violated the bylaws, will they automatically be required to pay a civil penalty?

Short Answer

No. An admission of guilt does not automatically result in a monetary fine. The homeowner must still provide evidence proving that a penalty is necessary or appropriate.

Detailed Answer

In this case, the HOA admitted that their candidate application forms violated the bylaws. However, the judge ruled that no civil penalty was appropriate because the petitioner did not present sufficient evidence to justify imposing one.

Alj Quote

Respondent has admitted that it violated Article IV, Section 3 of Respondent’s Bylaws. However Petitioner failed to meet its burden to establish that a civil penalty should be imposed in the above-entitled matter.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • Civil Penalties
  • Violations
  • Burden of Proof

Question

Does the HOA have to require board candidates to disclose conflicts of interest or family ties?

Short Answer

Yes, if the association's bylaws specifically require such disclosures in the candidate application.

Detailed Answer

The decision affirmed that the HOA violated its bylaws by failing to require candidates to disclose familial relationships. The bylaws stated that the application 'at minimum' must require disclosure of familial, business, or ownership relationships.

Alj Quote

Each candidate for the Board of Directors shall fill out an application which at minimum will require the candidate to disclose any familial, business or ownership relationships with other Directors or candidates…

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Elections
  • Board of Directors
  • Conflicts of Interest

Question

If I win my case against the HOA, will I get my filing fee back?

Short Answer

Yes. If the homeowner is deemed the prevailing party, the judge can order the HOA to reimburse the filing fee.

Detailed Answer

Because the petitioner prevailed in establishing that a violation occurred (via the HOA's admission), the ALJ ordered the HOA to pay the $500 filing fee directly to the petitioner within 30 days.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • Fees
  • Remedies
  • Prevailing Party

Question

What is the standard of proof required to win a hearing against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The petitioner bears the burden of proving the violation. This does not require removing all doubt, but providing evidence that has 'the most convincing force' to incline a fair mind to one side.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated… by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(B)(1)

Topic Tags

  • Legal Standards
  • Evidence
  • Procedure

Question

What happens if the HOA used invalid forms for a past election?

Short Answer

The judge may order the HOA to comply with the bylaws for future actions, even if they do not impose a fine for the past violation.

Detailed Answer

The ALJ ordered the HOA to comply with the specific bylaw section regarding candidate applications going forward, ensuring future elections meet the disclosure requirements.

Alj Quote

IT IS FURTHER ORDERED that Respondent is directed to comply with Article IV, Section 3 of Respondent’s Bylaws.

Legal Basis

Order

Topic Tags

  • Remedies
  • Compliance
  • Elections

Case

Docket No
25F-H041-REL
Case Title
Jeremy R. Whittaker vs. The Val Vista Lakes Community Association
Decision Date
2025-06-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jeremy R. Whittaker (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Josh Bolen (respondent attorney)
    CHDB Law, LLP
  • Diana Ebertshauser (board member)
    The Val Vista Community Association
    Board candidate who failed to disclose familial ties; subpoena quashed
  • Brodie Hurtado (board member)
    The Val Vista Community Association
    Board candidate who failed to disclose familial ties; subpoena quashed

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • djones (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • labril (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • mneat (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • lrecchia (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)
  • gosborn (ADRE staff)
    ADRE
    Recipient of Order transmission (listed by email handle)

Other Participants

  • Laura Tannery (witness)
    Subpoena quashed/denied
  • Kevin McPhillips (witness)
    Subpoena quashed
  • Jonathan Ebertshauser (attorney/witness)
    Subpoena quashed
  • Rob Actis (witness)
    Subpoena quashed
  • David Watson (witness)
    Subpoena quashed

Sharon M. Maiden v. Val Vista Lakes Community Association

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Case Summary

Case ID 25F-H030-REL
Agency —
Tribunal —
Decision Date 2025-06-02
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Sharon M. Maiden Counsel —
Respondent Val Vista Lakes Community Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H030-REL Decision – 1272425.pdf

Uploaded 2026-04-24T12:38:18 (57.7 KB)

25F-H030-REL Decision – 1272426.pdf

Uploaded 2026-04-24T12:38:22 (49.7 KB)

25F-H030-REL Decision – 1282372.pdf

Uploaded 2026-04-24T12:38:25 (60.5 KB)

25F-H030-REL Decision – 1282375.pdf

Uploaded 2026-04-24T12:38:28 (9.1 KB)

25F-H030-REL Decision – 1284492.pdf

Uploaded 2026-04-24T12:38:33 (56.1 KB)

25F-H030-REL Decision – 1288176.pdf

Uploaded 2026-04-24T12:38:37 (60.1 KB)

25F-H030-REL Decision – 1288177.pdf

Uploaded 2026-04-24T12:38:40 (7.4 KB)

25F-H030-REL Decision – 1293820.pdf

Uploaded 2026-04-24T12:38:43 (41.1 KB)

25F-H030-REL Decision – 1313134.pdf

Uploaded 2026-04-24T12:38:47 (114.8 KB)

Administrative Hearing Briefing:Maiden v. Val Vista Lakes Community Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing case Sharon M. Maiden v. Val Vista Lakes Community Association (No. 25F-H030-REL), adjudicated by the Arizona Office of Administrative Hearings. The petitioner, Sharon Maiden, a former board member, alleged that the association selectively enforced its bylaws to disqualify her from running for the board and violated Arizona’s open meeting laws by making this decision in a closed executive session.

The central conflict revolved around the interpretation of a 2021 bylaw amendment that shortened board member term limits. The petitioner argued for a prospective application, which would reset the term-limit clock for sitting board members, while the respondent association argued for an interpretation that counted prior service.

On June 2, 2025, Administrative Law Judge Velva Moses-Thompson issued a decision denying the petition in its entirety. The judge concluded that the association’s board acted within the bounds of Arizona statute (A.R.S. § 33-1804(A)) by holding a closed session to consider legal advice. Furthermore, the judge found that the petitioner failed to prove a bylaw violation, reasoning that the association’s interpretation was consistent with the membership’s clear intent to shorten, not lengthen, the potential tenure of board members.

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Case Overview

Case Name

Sharon M. Maiden v. Val Vista Lakes Community Association

Case Number

25F-H030-REL

Tribunal

Arizona Office of Administrative Hearings (OAH)

Petitioner

Sharon M. Maiden

Respondent

Val Vista Lakes Community Association

Respondent’s Counsel

Josh Bolen, Esq. (CHDB Law LLP)

Presiding Judge

Velva Moses-Thompson

Petition Allegations

The petition, filed by Sharon Maiden on December 15, 2024, asserted two primary violations by the Val Vista Lakes Community Association:

1. Selective Enforcement of Bylaws: An alleged violation of Article IV, Sections 2 and 3 of the Association’s Bylaws, stemming from the board’s decision to disqualify the petitioner from running for a board position in 2024 based on its interpretation of term limits.

2. Open Meeting Law Violation: An alleged violation of Arizona Revised Statutes (A.R.S.) § 33-1804(A), contending that the board failed to hold an open meeting when it made the binding decision to disqualify her candidacy.

Initially filed as a single-issue petition for which a $500 fee was paid, the OAH ordered on March 12, 2025, that the petitioner must either pay an additional $500 to pursue both issues or select one to proceed with at the hearing.

——————————————————————————–

Procedural History

• January 27, 2025: The Arizona Department of Real Estate refers the petition to the OAH for an administrative hearing.

• February 4, 2025: Respondent files a Motion to Strike the Petition, arguing the petitioner improperly disclosed attorney-client privileged communications.

• February 11, 2025: Administrative Law Judge Kay A. Abramsohn denies the Motion to Strike. The hearing is continued to March 26, 2025.

• March 26, 2025: The first day of the evidentiary hearing is conducted.

• April 11, 2025: A further hearing is conducted. At its conclusion, the record is held open to allow for post-hearing briefing.

• May 13, 2025: The post-hearing briefing period concludes, and the record is closed.

• June 2, 2025: The Administrative Law Judge (ALJ) issues the final decision, denying the petition.

Central Dispute: Interpretation of Bylaw Term Limits

The core of the dispute was the interpretation of Article IV, Section 2 of the association’s bylaws, which was amended in 2021. The amendment’s purpose, as testified by multiple witnesses, was to shorten the length of time directors could serve on the board.

Evolution of the Bylaw

• 2012 Bylaws: Introduced term limits for the first time, establishing a maximum of three consecutive two-year terms (six years total), followed by a required one-year break.

• 2021 Bylaws: The membership approved a rewrite that reduced term limits to two consecutive elected two-year terms (four years total), followed by a required two-year break.

Both versions of the bylaw contained the following critical sentence: “Commencing with the first Annual Meeting after the adoption of these Amended and Restated Bylaws, Directors will be subject to term limits as follows.” The meaning of this sentence became the primary point of contention.

Competing Interpretations

Position

Argument Summary

Key Evidence and Testimony

Petitioner’s Position (Prospective Application)

The “Commencing with…” language resets the clock. Terms served before the 2021 amendment should not count toward the new, shorter limits. The association’s sudden shift to a retroactive interpretation was selective and targeted.

William Sutell (Former President): Testified the intent was to “reset the clock for everybody.” His 2022 newsletter stating his “term limit of four years is up” was “ineloquent” and meant to express he was tired of serving.
Douglas Keats (Former Board Member): Stated the intent of the rewrite was to “Go forward.”
Historical Precedent: The association, based on a 2016 legal opinion from Goodman Law Group, had allowed Director Cheryl McCoy to serve nine consecutive years despite the 2012 bylaw’s six-year limit.
Legal Opinions: An opinion from Krupnik & Speas in November 2023 stated the 2021 bylaws were prospective, not retroactive.

Respondent’s Position (Prior Service Counts)

The clear intent of the membership and the bylaw committee was to shorten terms. The petitioner’s interpretation creates a loophole allowing sitting board members to serve for 8 or more years, directly contradicting the amendment’s purpose.

Jill Brown (Bylaw Committee Chair): Testified the committee’s intent was to apply the new limits to sitting directors and there was no discussion of “grandfathering” anyone.
Bryan Patterson (Current President): Testified that the membership voted for two two-year terms “and that’s it.”
Sutell’s 2022 Newsletter: Presented as a direct admission from the former president that the four-year limit applied to him based on his service from 2018-2022.
Drafting Logic: The “Commencing with…” clause is a standard legal provision to prevent a new rule from invalidating a board member’s current term, not to erase their entire service history.

Central Dispute: Alleged Open Meeting Law Violation

The second major issue concerned the board’s decision-making process. On October 11, 2024, the board held a closed executive session where it voted 5-4 to accept the legal opinion of its counsel (CHDB Law) and disqualify Ms. Maiden from the ballot.

Competing Arguments

Position

Argument Summary

Key Evidence and Testimony

Petitioner’s Argument (Violation of A.R.S. § 33-1804(A))

The vote to disqualify a candidate was a final, binding decision that must be made in an open meeting. The closed session was not justified under the narrow exceptions of the statute.

Improper Notice: The meeting notice cited the incorrect statute (for condominiums, not planned communities) and was not properly distributed to all board members.
Lack of Statutory Justification: No attorney was present at the meeting, and there was no pending litigation at that specific moment. The agenda item was to “accept opinion,” not simply “receive advice.”

Respondent’s Argument (Compliance with Law)

The executive session was permissible under A.R.S. § 33-1804(A)(1), which allows closed meetings for the “consideration of… Legal advice from an attorney for the board or the association” and matters concerning “pending or contemplated litigation.”

Contemplated Litigation: Testimony indicated that Ms. Maiden had threatened to file an ADR complaint or lawsuit.
Consideration of Legal Advice: The board was reviewing three separate legal opinions regarding Ms. Maiden’s eligibility.
Petitioner’s Participation: Ms. Maiden was present at the meeting, participated in the vote, and did not object to the session being held in private at that time.

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Administrative Law Judge’s Decision and Rationale

The ALJ denied Ms. Maiden’s petition on both counts, finding that she failed to meet her burden of proof by a preponderance of the evidence.

Ruling on the Open Meeting Law

The ALJ concluded that the board did not violate A.R.S. § 33-1804(A).

• Key Rationale: The evidence demonstrated that the board met in executive session “to consider a legal opinion regarding the 2021 Amendment.” This action falls squarely within the statutory exception outlined in A.R.S. § 33-1804(A)(1).

• On Disclosure: The statute permits, but does not require, the board to disclose information from such a session after a “final resolution.” As the matter was still being litigated, no final resolution had been reached.

Ruling on the Bylaw Violation

The ALJ concluded that the petitioner failed to establish that the respondent violated Article IV of its bylaws.

• Key Rationale: The judge focused on the underlying purpose of the 2021 amendment, which testimony from both sides confirmed was to “prevent Board members from serving for long periods of time.”

• Rejection of Petitioner’s Interpretation: The decision noted that the petitioner, along with her witnesses, admitted that their interpretation “would have allowed the then-sitting Board Members the right to serve 6, 8, and potentially 10-year term limits.” The ALJ found this outcome would be contrary to the amendment’s purpose.

• Jurisdictional Note: The decision explicitly stated that the “issue of selective enforcement is not within the jurisdiction of the tribunal.” The ruling was based on the interpretation of the bylaw’s text and intent, not on whether it was applied unevenly.

Final Order

“IT IS ORDERED that Petitioners’ petition is denied because she has not established that Respondent’s Board violated A.R.S. § 33-1804 or Article IV, Sections 2 and 3 of the Bylaws.”

Administrative Hearing Study Guide: Maiden v. Val Vista Lakes Community Association

Short-Answer Quiz

Answer each of the following questions in 2-3 sentences, based on the provided source context.

1. What were the two primary legal issues Sharon Maiden raised in her petition against the Val Vista Lakes Community Association?

2. What was the key phrase in the 2021 bylaws that became the central point of interpretive conflict regarding term limits?

3. According to the hearing testimony, what were the main purposes of the 2021 bylaw committee’s rewrite of the association’s bylaws?

4. Explain the Respondent’s justification for holding a closed executive session on October 11, 2024, to decide on Sharon Maiden’s eligibility.

5. How did the legal opinions from the Goodman Law Group (Ashley Turner) and Krupnik & Spees (Adrien Speed) support the Petitioner’s case?

6. Describe the key piece of evidence the Respondent used involving former board president William (Bill) Sutell to argue against a prospective interpretation of the term limits.

7. What decision did the Board of Directors make during the October 11, 2024, executive session, and what was the final vote count?

8. What procedural issue did Petitioner Douglas Keats identify with the notice for the October 11, 2024, executive session?

9. According to witness Jill Brown, what was the general intent of the bylaw committee and community members regarding the length of board service?

10. What were the final conclusions of the Administrative Law Judge in the June 2, 2025, decision?

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Answer Key

1. Petitioner Sharon Maiden alleged that the Respondent (1) selectively enforced the Bylaws in violation of Article IV, Sections 2 and 3, and (2) failed to hold an open meeting when it decided to disqualify her from running for the Board, in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(A).

2. The central point of conflict was the phrase in Article IV, Section 2: “Commencing with the first Annual Meeting after the adoption of these Amended and Restated Bylaws, Directors will be subject to term limits…” The Petitioner argued this indicated a prospective “reset,” while the Respondent argued it did not erase prior service.

3. Testimony from witnesses like Douglas Keats and William Sutell indicated the rewrite was intended to address multiple issues, not just term limits. Key purposes included establishing secret ballots, eliminating the nominating committee which was seen as counter to the CCNRs, and creating a formal procedure for replacing board members based on vote counts rather than board appointments.

4. The Respondent justified the closed session under A.R.S. § 33-1804(A)(1), which allows for closed meetings to consider legal advice from an attorney. The board was discussing three separate legal opinions regarding Ms. Maiden’s eligibility and also noted that Ms. Maiden had contemplated legal action against the association.

5. The Petitioner argued that these opinions demonstrated a consistent historical interpretation by the association’s own general counsels. Both opinions stated that the term limit language in the 2012 and 2021 bylaws should be interpreted prospectively, meaning terms served prior to the adoption of the new bylaws did not count toward the new limits.

6. The Respondent heavily relied on a November 2022 newsletter message from then-president Bill Sutell. In it, Mr. Sutell stated, “This will be my last president’s message to the community as my term limit of four years is up,” which the Respondent argued was an admission that the term limits were not reset by the 2021 bylaw amendment.

7. The Board of Directors voted to accept the opinion of CHDB Law LLP regarding term limits, which effectively disqualified Sharon Maiden from running in the 2024 election. The motion passed with a vote of 5 to 4.

8. Douglas Keats testified that the email notice for the executive session was not sent to him or two other board members (Christine Rucker and Curtis Weile) at their correct addresses, while it was sent to a former board member. He also noted the notice cited an incorrect statute (A.R.S. § 33-1248 for condominiums) instead of the one for planned communities.

9. Jill Brown, who chaired the bylaw committee, testified that the general consensus of the committee and community members was that they did not want directors serving for long periods. The intent was to shorten the available terms to encourage turnover and prevent directors from serving for “excessive amounts of time.”

10. The Administrative Law Judge denied Sharon Maiden’s petition. The Judge concluded that the Respondent did not violate A.R.S. § 33-1804(A) because the closed meeting to consider legal advice was permissible. Furthermore, the Judge found Maiden failed to prove a violation of the bylaws, stating the purpose of the 2021 amendment was to prevent long service periods, and deemed the issue of selective enforcement to be outside the tribunal’s jurisdiction.

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Essay Questions

Construct detailed responses to the following prompts, synthesizing evidence and arguments from across the source documents. Do not provide answers.

1. Analyze the legal arguments presented by both the Petitioner and Respondent regarding the proper interpretation of A.R.S. § 33-1804 (Arizona’s open meeting law). Discuss the specific actions taken by the board and how each party framed those actions in the context of the statute’s exceptions for closed sessions.

2. Compare and contrast the testimonies of William Sutell and Douglas Keats with that of Jill Brown. How did their recollections and interpretations of the bylaw committee’s intent differ, particularly concerning whether the new term limits should apply prospectively or retroactively to sitting board members?

3. Trace the evolution of the Val Vista Lakes Community Association’s bylaws regarding term limits from 2012 to 2021. Evaluate the arguments concerning “long-standing practice” and “selective enforcement,” referencing the specific cases of board members Cheryl McCoy, William Sutell, and Sharon Maiden.

4. Examine the role of conflicting legal advice in this dispute. Discuss the different opinions offered by the Goodman Law Group, Krupnik & Spees, and CHDB Law LLP, and analyze how the Board of Directors chose to navigate these contradictory recommendations.

5. The Administrative Law Judge’s final decision states that the “issue of selective enforcement is not within the jurisdiction of the tribunal.” Based on the testimony and arguments presented, construct an argument that Sharon Maiden might have made regarding selective enforcement, and explain why the Respondent would have refuted it.

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Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Kay A. Abramsohn and Velva Moses-Thompson served as ALJs.

Arizona Department of Real Estate (Department)

The state agency authorized to receive and decide on petitions from members of homeowners’ associations. It referred this case to the OAH.

Arizona Revised Statutes (A.R.S.)

The codified laws of the state of Arizona. Key statutes in this case include § 33-1804(A) and § 32-2199.

A.R.S. § 33-1804(A)

The Arizona statute concerning open meeting laws for planned community associations. It mandates that meetings be open to members but provides specific, limited exceptions for closed (executive) sessions, such as to discuss legal advice.

Bolen, Josh

An attorney with CHDB Law LLP who served as counsel for the Respondent, Val Vista Lakes Community Association.

Brown, Jill

A witness for the Respondent. She served as the chair of the 2021 bylaw committee and was a current board member at the time of the hearing.

Bylaw Committee

A committee established by the board in 2021 to review and recommend changes to the association’s bylaws. Its members included Jill Brown, William Sutell, and Douglas Keats.

Carpenter Hazelwood (CHDB LAW LLP)

The law firm that represented the Respondent. The Petitioner filed an unsuccessful motion to disqualify the firm.

Covenants, Conditions, and Restrictions. The governing documents for the community. The 2021 bylaw committee sought to address bylaw provisions that were counter to the CCNRs, such as the nominating committee.

Commencing with…

The key phrase in Article IV, Section 2 of the bylaws that was central to the dispute. The Petitioner argued it signaled a prospective application of term limits, while the Respondent disagreed.

Executive Session

A closed meeting of the Board of Directors, permitted under A.R.S. § 33-1804(A) for specific purposes, such as discussing legal advice or pending litigation.

Keats, Douglas

A witness for the Petitioner. He was a former board member who served as secretary of the 2021 bylaw committee.

Maiden, Sharon M.

The Petitioner in the case, a homeowner in Val Vista Lakes and a former member of its Board of Directors who was disqualified from running for a third consecutive term.

Office of Administrative Hearings (OAH / Tribunal)

The independent state agency that conducted the administrative hearing for this case after referral from the Department of Real Estate.

Patterson, Bryan

A witness for the Respondent. He was the HOA President at the time of the hearing and was Vice President when the vote to disqualify the Petitioner occurred.

Petitioner

The party who files a petition initiating a legal action. In this case, Sharon M. Maiden.

Preponderance of the Evidence

The standard of proof in this administrative hearing, defined as evidence that is more likely true than not. The ALJ found the Petitioner failed to meet this burden.

Prospective Interpretation

The argument that a new rule or law applies only “going forward” from its effective date and does not consider service or actions that occurred prior to that date. This was the Petitioner’s central argument.

Respondent

The party against whom a petition is filed. In this case, Val Vista Lakes Community Association.

Retroactive Interpretation

The argument that a new rule or law applies to past events, meaning prior service on the board would count against the newly established term limits. This was the Respondent’s position.

Sutell, William (Bill)

A witness for the Petitioner. He is an attorney, a former board president, and served on the 2021 bylaw committee.

Val Vista Lakes Community Association

The Respondent in the case; a homeowners’ association (HOA) in Gilbert, Arizona.

5 Surprising Lessons from an HOA War Over a Single Sentence

Introduction: The Butterfly Effect of Bylaws

For many homeowners, the rules set by their homeowners’ association (HOA) can feel arbitrary, buried in dense legal documents. But the precise wording of those governing documents has massive, unforeseen consequences—a legal butterfly effect where a minor change creates a major storm. This dynamic was on full display in the case of Sharon Maiden vs. Val Vista Lakes Community Association, where one seemingly simple sentence sparked a complex, year-long legal dispute.

The case offers a masterclass in the tension between the technical reading of a text versus its clear, underlying intent. It provides surprising insights into law, community governance, and human nature. Here are five key lessons from this HOA war over a single sentence.

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1. One Sentence, Two Meanings, and a Mountain of Legal Bills

A 2021 bylaw amendment, designed to reduce board member term limits, lit the fuse for the central conflict. The entire dispute hinged on the interpretation of one introductory phrase, demonstrating just how much can ride on a few words.

The critical sentence from Article IV, Section 2 of the 2021 Bylaws reads:

“Commencing with the first Annual Meeting after the adoption of these Amended and Restated Bylaws, Directors will be subject to term limits as follows.”

This single sentence gave rise to two completely opposite interpretations:

• The “Reset” Theory (Petitioner’s view): Proponents argued this language meant the term limit clock reset for all sitting board members. Under this view, their prior years of service didn’t count toward the new, shorter limit. This interpretation seemed solid, even supported by a formal legal opinion from the association’s previous general counsel, attorney Adrien Spees.

• The “Look-Back” Theory (Respondent’s view): The association argued the phrase was merely a legal formality to prevent sitting members from being disqualified mid-term. They contended that a board member’s prior service absolutely still counted toward the new limit.

The fact that this ambiguity was enough to fuel a formal administrative hearing shows the high stakes of precise legal drafting. What’s truly surprising is how a standard legal phrase like “Commencing with…” could be interpreted so diametrically as to potentially erase years of board service from the term-limit calculation.

2. The Architect of the Rule Became Its Most Complicated Case

One of the most fascinating aspects of the case involved the testimony of Bill Sutell, the former Board President. Mr. Sutell was in charge when the 2021 bylaw changes were drafted and approved, and he testified in support of the “reset” theory, which would have allowed him and other members to serve longer.

However, the strongest piece of evidence used against his position came from his own hand. In a 2022 newsletter to the community, Mr. Sutell had written:

“This will be my last president’s message to the community as my term limit of four years is up.”

When questioned, he explained the statement was “ineloquent.” He testified he was tired and had a “self-imposed term limit” because he “didn’t want to be a career board member.” This created a paradox where the rule’s architect argued for one interpretation in court while his own public statement seemed to support the opposing view. As community governance analysts, we see a crucial lesson here: for HOA volunteers, informal communications like a newsletter can be scrutinized with the same intensity as a legal document—a trap many well-meaning leaders are unprepared for.

3. Why a “Correct” Interpretation Can Still Be Wrong

The petitioner’s side came to the hearing with what seemed like very strong evidence. They had testimony about the bylaw committee’s intent and presented a formal legal opinion from attorney Adrien Spees that appeared to settle the matter:

“This amendment is prospective not retroactive. The Term limits only apply to directors elected beginning the first annual meeting following November 9th, 2021. Thus, a director who has served for several years before November 9th, 2021 will still be eligible to serve two consecutive terms after November 9th, 2021.”

This seems clear-cut. However, the argument that ultimately won focused not on what the words said, but on what they would do. The fatal blow to the “reset” theory came not from the respondent’s lawyers, but from the petitioner’s own key witnesses. During testimony, both Sutell and another witness, Douglas Keats, admitted that their interpretation would create a massive loophole, allowing sitting board members “the right to serve 6, 8, and potentially 10-year term limits.” This admission was critical. The Administrative Law Judge rejected an interpretation—even one supported by a legal opinion—because it led to an “absurd result” that directly contradicted the stated purpose of the rule, which was to shorten term limits, not accidentally lengthen them for a select few.

4. The Peril of a Closed-Door Meeting

The second major issue was the claim that the board violated Arizona’s open meeting laws. The vote to disqualify Sharon Maiden from the 2024 ballot was not taken in public. Instead, it happened during a closed executive session while she, a sitting board member, was present.

The board justified the closed-door meeting by stating they were discussing legal advice and contemplated litigation, a valid exception under A.R.S. § 33-1804. However, the ALJ’s final decision highlighted a crucial detail:

“Petitioner was a member of the Board at the time of the meeting and did not object to the Board voting on whether Article IV, Section 2 of Respondent’s Bylaws permitted Petitioner to run for the board…”

This offers a stark lesson. A person’s failure to object to a process in the moment can significantly weaken their ability to challenge it later. It’s easy to see why someone might stay silent: they may be intimidated, unsure of the rules, or simply not realize the procedural gravity of their silence. This surprising takeaway underscores that understanding the rules of order as they are happening is critical, because silence can be interpreted as consent.

5. The “Why” Trumped the “What”

The story concluded when the Administrative Law Judge denied the petitioner’s case on both counts. In the face of ambiguous text and competing legal opinions, the judge focused on the fundamental purpose of the 2021 bylaw amendment. The final decision stated:

“…the preponderance of the evidence presented at hearing shows that the purpose of the 2021 amendment was to prevent Board members for serving on the Board for long periods of time.”

In this legal gray area, the underlying intent—the “why” behind the rule—proved more powerful than the technical arguments about the “what.” The judge determined that an interpretation creating 10-year term limits could not possibly align with the members’ vote to prevent people from serving for long periods. The surprising lesson is that even when the text is debatable, the spirit of a rule can become the most decisive factor in its application.

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Conclusion: Are You Sure You Know What Your Rules Mean?

The Val Vista Lakes case is a powerful reminder that the words in bylaws are not just suggestions; they have real-world power to shape communities, define rights, and launch costly legal battles. Bylaws are “living documents” in the sense that they have a daily impact, but they are dangerously “dead documents” if members don’t understand them. The consequences are not just financial. At the hearing, former president Bill Sutell gave a poignant final statement explaining his departure from the community he had worked so hard to serve: “I sold my home that this was more than I needed in my retirement.”

This case is a cautionary tale about the human cost of ambiguity. It leaves every HOA member with a final, thought-provoking challenge: When was the last time you read your community’s governing documents, and are you willing to actively question ambiguity and push for clarity before a conflict arises?

Case Participants

Petitioner Side

  • Sharon M. Maiden (Petitioner)
    Val Vista Lakes Community Association
    Self-represented petitioner and homeowner
  • William Sutell (Witness)
    Val Vista Lakes Community Association
    Former board president who testified on behalf of the petitioner
  • Douglas Keats (Witness)
    Val Vista Lakes Community Association
    Former board member who testified on behalf of the petitioner

Respondent Side

  • Josh Bolen (Counsel)
    CHDB Law LLP
    Attorney representing the respondent
  • Jill Brown (Witness)
    Val Vista Lakes Community Association
    Current board member who testified on behalf of the respondent
  • Bryan Patterson (Witness)
    Val Vista Lakes Community Association
    Current board president who testified on behalf of the respondent

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who issued the final decision
  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
    Signed a pre-hearing order
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Received copies of the orders and decisions

Tatum Highlands Community Association, INC. vs Matthew P. Petrovic

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Case Summary

Case ID 25F-H019-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2025-12-26
Administrative Law Judge VMT
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Tatum Highlands Community Association, Inc. Counsel Danny M. Ford, Esq. (Goodman Law Group)
Respondent Matthew P. Petrovic Counsel Pro Se

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H019-REL Decision – 1327903.pdf

Uploaded 2026-04-24T12:34:31 (2245.4 KB)

25F-H019-REL Decision – 1344402.pdf

Uploaded 2026-04-24T12:34:35 (57.4 KB)

25F-H019-REL Decision – 1353469.pdf

Uploaded 2026-04-24T12:34:39 (73.9 KB)

25F-H019-REL Decision – 1353471.pdf

Uploaded 2026-04-24T12:34:43 (9.4 KB)

25F-H019-REL Decision – 1364458.pdf

Uploaded 2026-04-24T12:34:46 (59.3 KB)

25F-H019-REL Decision – 1381249.pdf

Uploaded 2026-04-24T12:34:49 (233.9 KB)

25F-H019-REL Decision – 1301437.pdf

Uploaded 2026-04-24T12:34:52 (137.3 KB)

Briefing Document: Tatum Highlands Community Association, INC vs. Matthew Petrovic

Executive Summary

This document synthesizes the key events, arguments, and rulings in the administrative dispute between homeowner Matthew Petrovic (Respondent) and the Tatum Highlands Community Association, INC (Petitioner), case number 25F-H019. Following an initial Administrative Law Judge (ALJ) decision on May 5, 2025, that found the Petitioner to be the prevailing party, the Respondent successfully petitioned for a rehearing.

The Respondent’s request for a rehearing was based on several grounds, including the misinterpretation of evidence regarding landscaping (Sago palms), insufficient evidence for a paint violation, and the arbitrary denial of a medically necessary walkway. Critically, Mr. Petrovic also cited significant procedural failures, alleging he was denied due process because he was misinformed about the nature of the original hearing and was thus unprepared and without legal counsel. He further claimed that the Petitioner’s witness provided false testimony and that key evidence was improperly excluded.

The Petitioner objected to the rehearing request, arguing solely that it was filed five days past the statutory 30-day deadline. Despite this objection, the Commissioner of the Arizona Department of Real Estate granted the rehearing. The official order cites two specific grounds for granting the request: “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding,” and “That the findings of fact or decision is arbitrary, capricious, or an abuse of discretion.” A subsequent continuance has moved the new hearing to October 22, 2025.

Case Overview and Procedural History

The case involves a dispute between a homeowner and his HOA that was initially adjudicated by the Office of Administrative Hearings (OAH). The homeowner, Matthew Petrovic, appealed the initial decision to the Arizona Department of Real Estate (ADRE) Commissioner and was granted a new hearing.

Key Parties and Representatives:

Name/Entity

Affiliation

Petitioner

Tatum Highlands Community Association, INC

Attorney for Petitioner

Danny M. Ford, Esq.

Goodman Law Group

Respondent

Matthew P. Petrovic

Original ALJ

Velva Moses–Thompson

Office of Administrative Hearings

Deputy Commissioner

Mandy Neat

Arizona Department of Real Estate

ALJ for Continuance

Nicole Robinson

Office of Administrative Hearings

Timeline of Events:

Description

April 15, 2025

Original Hearing

The initial hearing on the dispute takes place.

May 5, 2025

Initial ALJ Decision

ALJ Velva Moses–Thompson issues a decision deeming the Petitioner the “prevailing party.” The decision includes a notice of a 30-day deadline to request a rehearing.

June 9, 2025

Rehearing Request Filed

Respondent Matthew Petrovic files a Dispute Rehearing Request with the ADRE Commissioner.

June 17, 2025

Objection to Rehearing

The Petitioner files a timely response, objecting to the rehearing request on the grounds that it was filed five days past the deadline.

July 3, 2025

Rehearing Granted

The ADRE Deputy Commissioner issues an “Order Granting Rehearing Request.”

July 23, 2025

Notice of Hearing Issued

A notice for the new hearing is issued (as referenced in a later document).

August 28, 2025

Continuance Granted

At the Respondent’s request, ALJ Nicole Robinson grants a continuance for the hearing.

October 22, 2025 (1:00 PM)

Scheduled Rehearing

The new, continued date for the rehearing is set.

Respondent’s Grounds for Rehearing Petition

Matthew Petrovic submitted a detailed petition outlining four primary areas of concern: the factual basis for the violations, procedural irregularities, false testimony, and a lack of due process.

1. Landscape Violation – Sago Palms

Mr. Petrovic argues the ruling that Sago palms are prohibited was incorrect and contradicted the evidence he presented.

• Evidence Submitted: He claims to have provided copies of the CC&Rs, documentation from the Arizona Municipal Water Users Association (AMWUA) classifying Sago palms as drought-tolerant plants and not true palm trees, and supporting witness testimony.

• Allegation of False Testimony: He asserts that the petitioner’s witness, identified as “Kevin,” gave false testimony under oath by stating the plants were not allowed, despite being presented with contrary evidence.

• New Evidence: Since the hearing, Mr. Petrovic states he has directly contacted AMWUA, which confirmed Sago palms are not in the palm family. He also notes that a current board member is willing to testify that the plants are permitted under the HOA’s governing documents.

2. Paint Condition Dispute

The petition contends that the ruling on his home’s paint being “in disrepair” was not supported by credible evidence.

• Conflicting Testimony: Three witnesses, including Mr. Petrovic, testified that the paint is in good condition. The individual who testified against the paint’s condition is reportedly no longer a sitting board member.

• Prior Approval and Inconsistent Reasoning: The exterior paint was reviewed and approved by the HOA board when he purchased the home. He alleges the board has demonstrated “inconsistent reasoning” by first claiming the violation was due to the paint needing to be two colors and later changing the reason to “disrepair.”

• Lack of Evidence from Petitioner: The petition states the board has not submitted objective proof, such as photographs or condition reports, to support its claim. Mr. Petrovic views these actions as potential “selective enforcement and retaliation” for his opposition to prior board actions.

3. Paver Walkway Denial

Mr. Petrovic claims the HOA has engaged in selective enforcement and bad faith by repeatedly denying his application for a modified walkway over the past three years.

• Medical Necessity: The walkway modifications are supported by a physician’s letter referencing chronic back and shoulder conditions.

• Selective Enforcement: Similar walkways have allegedly been approved for other homeowners, yet his requests have been denied without justification.

• Violation of CC&Rs: He argues the denial violates the community’s CC&Rs, which require the board to act reasonably and impartially, and that the denial could be viewed as discrimination.

4. Procedural and Due Process Concerns

A significant portion of the petition focuses on procedural failures that Mr. Petrovic believes deprived him of a fair hearing.

• Exclusion of Evidence: He states that key evidence relevant to his claim of selective enforcement was excluded from the hearing due to concerns about third-party privacy.

• Misunderstanding of Hearing Nature: Mr. Petrovic was “led to believe the meeting was a mediation session” and was unaware that binding decisions could result.

• Inability to Prepare Defense: Due to this misunderstanding and “financial hardship,” he was unable to retain legal counsel or properly prepare his case, which he argues “constitutes a denial of due process.”

Petitioner’s Objection to Rehearing

The Tatum Highlands Community Association, through its attorney Danny M. Ford of Goodman Law Group, filed an objection based on a single procedural argument.

• Untimely Filing: The Petitioner’s core argument is that the request for rehearing was time-barred.

◦ The decision was served on May 5, 2025.

◦ The 30-day statutory deadline, per A.R.S. § 41-1092.09, was June 4, 2025.

◦ Mr. Petrovic filed his request on June 9, 2025, five days late.

• Notice of Deadline: The objection notes that the deadline was “plainly written on the very Decision” and that being unrepresented is not an excuse for missing it.

• Requested Action: The Petitioner respectfully requested that the ALJ deny and dismiss the rehearing request as untimely.

Official Rulings and Current Status

Order Granting Rehearing Request

On July 3, 2025, Deputy Commissioner Mandy Neat of the Arizona Department of Real Estate issued an order granting Mr. Petrovic’s request. The order implicitly overruled the Petitioner’s objection regarding the filing deadline. The Commissioner cited two of the grounds available for granting a rehearing, which directly align with the arguments made in Mr. Petrovic’s petition:

1. Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.

2. That the findings of fact or decision is arbitrary, capricious, or an abuse of discretion.

Order Granting Continuance and Current Status

An order dated August 28, 2025, from Administrative Law Judge Nicole Robinson shows that the rehearing was continued at the request of the Respondent, Matthew Petrovic.

• The rehearing is officially scheduled to take place on October 22, 2025, at 1:00 PM.

Questions

Question

Who has the burden of proof in an HOA violation hearing?

Short Answer

The Petitioner (usually the HOA initiating the case) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the party filing the petition (the Petitioner) must prove that the other party violated the governing 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 the aforementioned CC&Rs and Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

What is the standard of proof used in these hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means the existence of a contested fact is more probable than not.

Alj Quote

A preponderance of the evidence means 'proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.'

Legal Basis

In re William L., 211 Ariz. 236, 238 (App. 2005)

Topic Tags

  • legal standards
  • evidence

Question

Can I install a driveway extension without prior HOA approval if neighbors have similar ones?

Short Answer

No. You must seek approval first.

Detailed Answer

Even if neighbors have similar features, failing to seek Architectural Review Committee (ARC) approval prior to installation constitutes a violation of the CC&Rs. The presence of other potentially non-compliant homes does not excuse the failure to follow the approval process.

Alj Quote

Regardless, the record has established that Respondent did not seek ARC approval prior to installing the paver driveway extension. … As such, Petitioner has established that Respondent violated CC&R, Section 4.2.1.

Legal Basis

CC&R Section 4.2.1

Topic Tags

  • architectural control
  • driveways
  • selective enforcement

Question

What happens if I plant trees that the Architectural Committee specifically denied?

Short Answer

It is a violation of the governing documents.

Detailed Answer

Proceeding to install landscaping that was explicitly denied by the Architectural Review Committee establishes a clear violation of the community's restrictions.

Alj Quote

In regard to the pigmy palm tree matter, the evidence clearly established that Respondent requested to plant two pigmy palm trees in his front yard, was denied by ARC, and planted them anyway. … Hence, Petitioner has established that Respondent violated CC&R Section 4.2.7.

Legal Basis

CC&R Section 4.2.7 / Design Guidelines

Topic Tags

  • landscaping
  • architectural control
  • violations

Question

Can the Administrative Law Judge rule on Fair Housing Act discrimination claims?

Short Answer

No, that venue cannot address Fair Housing Act claims.

Detailed Answer

The Office of Administrative Hearings for the Department of Real Estate does not have jurisdiction to address claims regarding violations of the Fair Housing Act in these proceedings.

Alj Quote

In addition, Respondent’s claims regarding the Association violating the Fair Housing Act cannot be addressed in this venue.

Legal Basis

Jurisdiction limits

Topic Tags

  • jurisdiction
  • discrimination
  • Fair Housing Act

Question

Can the HOA fine me for 'disrepair' of paint if the paint is just old but not damaged?

Short Answer

Not necessarily, if evidence shows it is not in disrepair.

Detailed Answer

If witness testimony establishes that the paint is not actually in disrepair, fines based on that allegation may be waived, even if the homeowner needs to eventually repaint to meet new color schemes.

Alj Quote

Also, the evidence established from firsthand witnesses that Respondent’s paint was not in disrepair. Therefore, Respondent should be given the opportunity to move forward with the ARC approval for painting his home and any fines he received in regards to the paint be waived.

Legal Basis

CC&R Section 4.2.7

Topic Tags

  • maintenance
  • paint
  • fines

Question

Do I have to reimburse the HOA's filing fees if I lose the hearing?

Short Answer

Yes, typically for the issues on which the HOA prevails.

Detailed Answer

The ALJ may order the Respondent to reimburse the Petitioner's filing fees. In this case, the Respondent was ordered to pay fees proportional to the two issues the HOA won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $1,000.00 in certified funds for the two issues.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • fees

Question

Does the HOA have to waive fines if a violation was not proven?

Short Answer

Yes.

Detailed Answer

If the HOA fails to prove a specific violation (e.g., that paint was in disrepair), the ALJ may order the Association to waive fines related to that specific issue.

Alj Quote

IT IS FURTHER ORDERED that Petitioner waive all fines issued to Respondent in regards to the paint issue.

Legal Basis

Administrative Order

Topic Tags

  • fines
  • penalties

Case

Docket No
25F-H019-REL-RHG
Case Title
Tatum Highlands Community Association, Inc. v. Matthew P. Petrovic
Decision Date
2025-12-26
Alj Name
Nicole Robinson
Tribunal
OAH
Agency
ADRE

Questions

Question

Who has the burden of proof in an HOA violation hearing?

Short Answer

The Petitioner (usually the HOA initiating the case) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the party filing the petition (the Petitioner) must prove that the other party violated the governing 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 the aforementioned CC&Rs and Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

What is the standard of proof used in these hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

The standard is 'preponderance of the evidence,' which means the existence of a contested fact is more probable than not.

Alj Quote

A preponderance of the evidence means 'proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.'

Legal Basis

In re William L., 211 Ariz. 236, 238 (App. 2005)

Topic Tags

  • legal standards
  • evidence

Question

Can I install a driveway extension without prior HOA approval if neighbors have similar ones?

Short Answer

No. You must seek approval first.

Detailed Answer

Even if neighbors have similar features, failing to seek Architectural Review Committee (ARC) approval prior to installation constitutes a violation of the CC&Rs. The presence of other potentially non-compliant homes does not excuse the failure to follow the approval process.

Alj Quote

Regardless, the record has established that Respondent did not seek ARC approval prior to installing the paver driveway extension. … As such, Petitioner has established that Respondent violated CC&R, Section 4.2.1.

Legal Basis

CC&R Section 4.2.1

Topic Tags

  • architectural control
  • driveways
  • selective enforcement

Question

What happens if I plant trees that the Architectural Committee specifically denied?

Short Answer

It is a violation of the governing documents.

Detailed Answer

Proceeding to install landscaping that was explicitly denied by the Architectural Review Committee establishes a clear violation of the community's restrictions.

Alj Quote

In regard to the pigmy palm tree matter, the evidence clearly established that Respondent requested to plant two pigmy palm trees in his front yard, was denied by ARC, and planted them anyway. … Hence, Petitioner has established that Respondent violated CC&R Section 4.2.7.

Legal Basis

CC&R Section 4.2.7 / Design Guidelines

Topic Tags

  • landscaping
  • architectural control
  • violations

Question

Can the Administrative Law Judge rule on Fair Housing Act discrimination claims?

Short Answer

No, that venue cannot address Fair Housing Act claims.

Detailed Answer

The Office of Administrative Hearings for the Department of Real Estate does not have jurisdiction to address claims regarding violations of the Fair Housing Act in these proceedings.

Alj Quote

In addition, Respondent’s claims regarding the Association violating the Fair Housing Act cannot be addressed in this venue.

Legal Basis

Jurisdiction limits

Topic Tags

  • jurisdiction
  • discrimination
  • Fair Housing Act

Question

Can the HOA fine me for 'disrepair' of paint if the paint is just old but not damaged?

Short Answer

Not necessarily, if evidence shows it is not in disrepair.

Detailed Answer

If witness testimony establishes that the paint is not actually in disrepair, fines based on that allegation may be waived, even if the homeowner needs to eventually repaint to meet new color schemes.

Alj Quote

Also, the evidence established from firsthand witnesses that Respondent’s paint was not in disrepair. Therefore, Respondent should be given the opportunity to move forward with the ARC approval for painting his home and any fines he received in regards to the paint be waived.

Legal Basis

CC&R Section 4.2.7

Topic Tags

  • maintenance
  • paint
  • fines

Question

Do I have to reimburse the HOA's filing fees if I lose the hearing?

Short Answer

Yes, typically for the issues on which the HOA prevails.

Detailed Answer

The ALJ may order the Respondent to reimburse the Petitioner's filing fees. In this case, the Respondent was ordered to pay fees proportional to the two issues the HOA won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $1,000.00 in certified funds for the two issues.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • fees

Question

Does the HOA have to waive fines if a violation was not proven?

Short Answer

Yes.

Detailed Answer

If the HOA fails to prove a specific violation (e.g., that paint was in disrepair), the ALJ may order the Association to waive fines related to that specific issue.

Alj Quote

IT IS FURTHER ORDERED that Petitioner waive all fines issued to Respondent in regards to the paint issue.

Legal Basis

Administrative Order

Topic Tags

  • fines
  • penalties

Case

Docket No
25F-H019-REL-RHG
Case Title
Tatum Highlands Community Association, Inc. v. Matthew P. Petrovic
Decision Date
2025-12-26
Alj Name
Nicole Robinson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Danny M. Ford (Attorney for Petitioner)
    Goodman Law Group
  • Kevin Hufnagel (Witness)
    Tatum Highlands Community Association, Inc.
    Board of Directors member
  • Brian Lemke (Witness)
    Tatum Highlands Community Association, Inc.
    Board Vice President; spelled 'Lumpkey' in transcript
  • Elizabeth Lindlam (Observer)
    Goodman Law Group
    Observing attorney

Respondent Side

  • Matthew P. Petrovic (Respondent)
    Represented himself pro se
  • Todd Pehrson (Witness)
    Neighbor of the respondent
  • Thomas Coletto (Witness)
    Neighbor of the respondent
  • Tracy Kennedy (Witness)
    Neighbor and former board president
  • Joe Barry (Witness)
    Appeared for rehearing but had to drop off due to a conflict

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the initial hearing
  • Nicole Robinson (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the rehearing
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Mandy Neat (Deputy Commissioner)
    Arizona Department of Real Estate
    Granted the rehearing request

Allan, Joseph P v. The Springs Condominiums Association

Posted on by

Case Summary

Case ID 25F-H018-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2025-03-31
Administrative Law Judge VMT
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Joseph P. Allan Counsel —
Respondent The Springs Condominiums Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H018-REL Decision – 1263777.pdf

Uploaded 2026-04-24T12:34:17 (48.3 KB)

25F-H018-REL Decision – 1288586.pdf

Uploaded 2026-04-24T12:34:21 (105.9 KB)

Briefing Document: Case No. 25F-H018-REL, Allan v. The Springs Condominiums Association

Executive Summary

This briefing document synthesizes the key facts, arguments, and legal conclusions from the administrative hearing and subsequent decision in the matter of Joseph P. Allan (Petitioner) versus The Springs Condominiums Association (Respondent). The central issue was the Respondent’s failure to provide financial records to the Petitioner within the timeframe mandated by Arizona law.

The Petitioner, a homeowner and former board member, formally requested to examine bank statements and original invoices by sending emails directly to the association’s board members. The Respondent, represented by the owner of its property management company, did not fulfill these requests within the statutory ten-business-day period. The primary defense offered was that the requests were not sent to the management company, which is the customary channel for processing such items, and the board failed to forward the requests.

The Administrative Law Judge (ALJ) found conclusively in favor of the Petitioner. The decision established that the legal obligation to comply with Arizona Revised Statutes (A.R.S.) § 33-1258 rests with the association itself, and internal procedural preferences or communication failures between the board and its management agent do not absolve the association of this statutory duty. The documents were ultimately provided on the eve of the hearing, well past the legal deadline. The final order deemed the Petitioner the prevailing party, mandated the refund of his $500 filing fee, and directed the association to ensure future compliance with state law.

Case Overview

Case Number

25F-H018-REL

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Petitioner

Joseph P. Allan

Respondent

The Springs Condominiums Association

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Hearing Date

March 11, 2025

Decision Date

March 31, 2025

Core Allegation and Legal Framework

The dispute centered on the Petitioner’s allegation that The Springs Condominiums Association violated A.R.S. § 33-1258, which governs a member’s right to access association records.

• Statutory Requirement (A.R.S. § 33-1258 A): The statute mandates that “all financial and other records of the association shall be made reasonably available for examination by any member.” It explicitly states, “The association shall have ten business days to fulfill a request for examination.”

• Specific Violations Alleged: The Petitioner filed a petition with the Arizona Department of Real Estate after the association failed to respond to two separate requests for documents:

1. A request for original invoices for May 2024.

2. A request for bank statements from four association accounts.

Chronology of Events

• July 9, 2024: Mr. Allan emails several board members, including the President and Vice President, requesting to examine original invoices for May 2024.

• September 23, 2024: Mr. Allan emails several board members requesting to examine bank statements from four association accounts.

• October 2024 (approx.): After receiving no response, Mr. Allan files a petition with the Department of Real Estate, alleging the violations. The petition incorrectly listed the request dates as July 29 and September 24, a discrepancy clarified and acknowledged by both parties at the hearing.

• January 16, 2025: An “Order Granting Continuance” is issued at the Petitioner’s request, moving the hearing date.

• March 10, 2025: At 6:45 PM, the evening before the scheduled hearing, the Respondent provides the requested documents to Mr. Allan.

• March 11, 2025: The evidentiary hearing is held before ALJ Velva Moses-Thompson.

• March 31, 2025: The ALJ issues the final decision and order.

Analysis of Testimony and Arguments

Petitioner’s Position (Joseph P. Allan)

Mr. Allan, representing himself, argued that he followed the law by submitting his requests directly to the association. His key points were:

• Direct Communication with the Association: He intentionally sent his requests to the board members (President, Vice President, Treasurer, and Director) because he considers them to be the “association” as defined by the statute.

• Investigation of Management Company: He deliberately bypassed the management company because he was actively investigating its conduct.

• Lack of Timely Response: It was undisputed that the association failed to provide the documents within the 10-day period. He confirmed receipt only on March 10, 2025, months after the requests were made.

• Past Experience: As a former board member for three years, he was familiar with the association’s financial documents and was requesting them to ensure everything was correct due to perceived problems.

Respondent’s Position (The Springs Condominiums Association)

The association was represented by Belen Guzman, the owner of its management company, SSC Property Management. Her defense centered on a procedural failure, not a denial of the Petitioner’s right to the documents.

• Improper Channel of Request: The primary defense was that Mr. Allan failed to follow standard practice by not including the management company in his email requests.

• Board’s Failure to Act: Ms. Guzman testified that the board members who received the emails did not forward them or follow up. She stated she was unaware of the requests until after the official complaint was filed and one of the board members, Petri (the president at the time), forwarded an email to her.

• Lack of Written Policy: Ms. Guzman acknowledged that the association has no written policy requiring requests to be sent to the management company, but stated the board had verbally instructed Mr. Allan in a meeting to include management on such communications.

• Knowledge of Procedure: She argued that as a former board member, Mr. Allan was aware that record requests are typically handled by the management company.

Findings of Fact and Conclusions of Law

The ALJ’s decision provided a clear legal interpretation of the events and the responsibilities of the parties.

Key Findings of Fact

• It was undisputed that the Petitioner is a member of the Respondent association.

• The Petitioner made formal requests for records via email to board members on July 9, 2024, and September 23, 2024.

• These requests were not sent to the Respondent’s property management company.

• The Respondent did not respond to the requests within the ten-business-day timeframe required by law.

• The Respondent provided the requested documents on March 10, 2025.

• The Respondent’s representative, Ms. Guzman, did not dispute that the board members had received the requests.

Key Conclusions of Law

• The Petitioner successfully met his burden to prove by a “preponderance of the evidence” that the Respondent violated A.R.S. § 33-1258(A).

• The Respondent failed to provide any legal authority supporting its defense that a request must be sent to its property management company to be valid.

• The statutory obligation to provide records lies with the “association.” The failure of the board to forward the requests to its management agent does not excuse the association’s non-compliance.

• The ALJ concluded: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements from four of Respondent’s accounts, within ten business days of the date of Petitioner’s requests.”

Final Order and Implications

Based on the findings, the ALJ issued a binding order with the following components:

1. Prevailing Party: The Petitioner, Joseph P. Allan, was deemed the prevailing party.

2. Reimbursement: The Respondent was ordered to pay the Petitioner his $500.00 filing fee within thirty days of the order.

3. Future Compliance: The Respondent was formally directed to comply with the requirements of A.R.S. § 33-1258(A) going forward.

4. No Civil Penalty: The judge determined that a civil penalty was not appropriate in this matter.

The primary implication of this decision is that a condominium or homeowner association is directly and legally responsible for fulfilling its statutory obligations. It cannot use internal protocols, informal procedures, or communication breakdowns between its board and third-party vendors (like a management company) as a legal defense for failing to comply with state law.

{ “case”: { “docket_no”: “25F-H018-REL”, “case_title”: “Allan, Joseph P v. The Springs Condominiums Association”, “decision_date”: “2025-03-31”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I send a records request to the Board but not the management company, can the HOA ignore it?”, “short_answer”: “No. Sending the request to Board members is sufficient to trigger the HOA’s legal obligation to respond.”, “detailed_answer”: “Even if the management company prefers requests to go directly to them, the Association is still obligated to comply with the law if the Board receives the request. In this case, the management company argued they didn’t know about the request because it went to the Board, but the judge ruled the violation still occurred.”, “alj_quote”: “Respondent did present any legal authority to establish that it was not obligated to comply with A.R.S. section 33-1258(A), for the reason that the requests were not sent to Respondent’s property management company.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “HOA obligations”, “property management” ] }, { “question”: “How many days does the HOA have to let me examine the records I requested?”, “short_answer”: “The HOA must make records available for examination within 10 business days.”, “detailed_answer”: “Arizona law grants the Association ten business days to fulfill a request for examination after receiving it.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “timelines”, “records request”, “statutory requirements” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to 15 cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “What happens if I win my hearing against the HOA?”, “short_answer”: “You may be deemed the prevailing party and the HOA can be ordered to reimburse your filing fee.”, “detailed_answer”: “If the judge rules in your favor, they can order the HOA to pay back the filing fee you paid to bring the case. In this decision, the HOA was ordered to pay the homeowner $500.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Order”, “topic_tags”: [ “penalties”, “reimbursement”, “ruling” ] }, { “question”: “Does the HOA have to provide original invoices if I request them?”, “short_answer”: “Yes. Financial records, including original invoices, must be made reasonably available.”, “detailed_answer”: “The decision confirms that failure to allow examination of original invoices constitutes a violation of the statute governing association records.”, “alj_quote”: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “invoices”, “financial records”, “transparency” ] }, { “question”: “What is the standard of proof for proving the HOA violated the law?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove their case by showing it is ‘more probably true than not.’ This is the standard evidentiary weight required in these administrative hearings.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1258 (A) by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Will the HOA always be fined a civil penalty if they break the law?”, “short_answer”: “Not necessarily. The judge has discretion on whether to apply a civil penalty.”, “detailed_answer”: “Even if a violation is found (as it was in this case regarding the records), the judge may decide that a civil penalty is not appropriate based on the circumstances.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Order”, “topic_tags”: [ “civil penalty”, “fines”, “enforcement” ] } ] }

{ “case”: { “docket_no”: “25F-H018-REL”, “case_title”: “Allan, Joseph P v. The Springs Condominiums Association”, “decision_date”: “2025-03-31”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I send a records request to the Board but not the management company, can the HOA ignore it?”, “short_answer”: “No. Sending the request to Board members is sufficient to trigger the HOA’s legal obligation to respond.”, “detailed_answer”: “Even if the management company prefers requests to go directly to them, the Association is still obligated to comply with the law if the Board receives the request. In this case, the management company argued they didn’t know about the request because it went to the Board, but the judge ruled the violation still occurred.”, “alj_quote”: “Respondent did present any legal authority to establish that it was not obligated to comply with A.R.S. section 33-1258(A), for the reason that the requests were not sent to Respondent’s property management company.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “HOA obligations”, “property management” ] }, { “question”: “How many days does the HOA have to let me examine the records I requested?”, “short_answer”: “The HOA must make records available for examination within 10 business days.”, “detailed_answer”: “Arizona law grants the Association ten business days to fulfill a request for examination after receiving it.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “timelines”, “records request”, “statutory requirements” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to 15 cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “What happens if I win my hearing against the HOA?”, “short_answer”: “You may be deemed the prevailing party and the HOA can be ordered to reimburse your filing fee.”, “detailed_answer”: “If the judge rules in your favor, they can order the HOA to pay back the filing fee you paid to bring the case. In this decision, the HOA was ordered to pay the homeowner $500.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Order”, “topic_tags”: [ “penalties”, “reimbursement”, “ruling” ] }, { “question”: “Does the HOA have to provide original invoices if I request them?”, “short_answer”: “Yes. Financial records, including original invoices, must be made reasonably available.”, “detailed_answer”: “The decision confirms that failure to allow examination of original invoices constitutes a violation of the statute governing association records.”, “alj_quote”: “Respondent violated A.R.S. section 33-1258(A) when it failed to allow Petitioner to examine the May 2024 original invoices and bank statements”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “invoices”, “financial records”, “transparency” ] }, { “question”: “What is the standard of proof for proving the HOA violated the law?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove their case by showing it is ‘more probably true than not.’ This is the standard evidentiary weight required in these administrative hearings.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1258 (A) by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Will the HOA always be fined a civil penalty if they break the law?”, “short_answer”: “Not necessarily. The judge has discretion on whether to apply a civil penalty.”, “detailed_answer”: “Even if a violation is found (as it was in this case regarding the records), the judge may decide that a civil penalty is not appropriate based on the circumstances.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Order”, “topic_tags”: [ “civil penalty”, “fines”, “enforcement” ] } ] }

Case Participants

Petitioner Side

  • Joseph P. Allan (Petitioner)
    The Springs Condominiums Association
    Homeowner, former board member, and member of the Respondent association.

Respondent Side

  • Belen Guzman (Respondent Representative)
    Respondent's property management company
    Owner of the property management company that represents The Springs Condominiums Association.
  • Petri Ahon (Former President of the Board)
    The Springs Condominiums Association

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Carmen (Homeowner)
    The Springs Condominiums Association
    Included on email correspondence.

Keystone Owners Association V. Bernadette M. Bennett

Posted on by

Case Summary

Case ID 24F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-12-09
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keystone Owners Association Counsel Erica L. Mortenson
Respondent Bernadette M. Bennett Counsel Thomas A. Walcott

Alleged Violations

Mountain Park Association CC&Rs Art. IV, Sec. 2; Keystone CC&Rs Art. V, Sec. 5.19; Rules (35% Frontage Limit)

Outcome Summary

The Petitioner (HOA) prevailed. The Respondent (Homeowner) was found in violation of Governing Documents for installing an unapproved driveway extension that exceeded 35% of the total yard frontage area. Respondent was ordered to pay the Petitioner the $1,500.00 filing fee and comply with all Governing Documents henceforth. No civil penalty was levied.

Why this result: Respondent failed to obtain prior written approval for the driveway alteration and failed to prove the affirmative defense of laches.

Key Issues & Findings

Unauthorized Driveway Extension Exceeding 35% of Total Yard Frontage Area

Petitioner alleged Respondent violated CC&Rs by installing a driveway extension exceeding 35% of the total yard frontage area without prior written approval. The ALJ found by a preponderance of the evidence that the violation occurred and the Respondent failed to establish the affirmative defense of laches.

Orders: Respondent ordered to pay Petitioner $1,500.00 for the filing fee and comply henceforth with the Governing Documents.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Analytics Highlights

Topics: HOA, ARC, Driveway, Frontage Area, CC&Rs, Laches
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • Flynn v. Rogers, 172 Ariz. 62 (1992)

Video Overview

Audio Overview

Decision Documents

24F-H031-REL Decision – 1159036.pdf

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24F-H031-REL Decision – 1180542.pdf

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24F-H031-REL Decision – 1180545.pdf

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24F-H031-REL Decision – 1198622.pdf

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24F-H031-REL Decision – 1198623.pdf

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24F-H031-REL Decision – 1225107.pdf

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24F-H031-REL Decision – 1227639.pdf

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24F-H031-REL Decision – 1227642.pdf

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24F-H031-REL Decision – 1230660.pdf

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24F-H031-REL Decision – 1241815.pdf

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24F-H031-REL Decision – 1250037.pdf

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24F-H031-REL Decision – 1159036.pdf

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24F-H031-REL Decision – 1180542.pdf

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24F-H031-REL Decision – 1180545.pdf

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24F-H031-REL Decision – 1198622.pdf

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24F-H031-REL Decision – 1198623.pdf

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24F-H031-REL Decision – 1225107.pdf

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24F-H031-REL Decision – 1227639.pdf

Uploaded 2026-01-23T18:05:18 (48.7 KB)

24F-H031-REL Decision – 1227642.pdf

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24F-H031-REL Decision – 1230660.pdf

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24F-H031-REL Decision – 1241815.pdf

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24F-H031-REL Decision – 1250037.pdf

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This summary focuses on the hearing held on November 19, 2024 before Administrative Law Judge (ALJ) Velva Moses-Thompson, concerning the dispute between Keystone Owners Association (Petitioner) and Bernadette M. Bennett (Respondent).

Key Facts and Main Issues

The core issue was Petitioner's allegation that Respondent violated the Governing Documents by installing a driveway extension that exceeds 35% of the total yard frontage area. This included allegations of violating Article IV, Section 2 of the Mountain Park Association Covenants, Conditions, and Restrictions (CC&Rs) and Article V, Section 5.19 of Petitioner’s CC&Rs.

Key Facts Presented:

  • Respondent owns a home within Keystone, a subassociation of Mountain Park Ranch. Both associations' Governing Documents required Respondent to obtain prior written approval for any alteration to the exterior appearance.
  • Mountain Park Ranch Rules, which Keystone relied upon for enforcement, state that the parking surface shall not exceed 35 percent of the total yard frontage area.
  • Petitioner asserted that the Respondent installed the cement driveway extension without obtaining mandatory written approval.
  • An on-site inspection conducted in May 2024 determined that the driveway slabs (original 16 ft + unapproved 8 ft modification) measured 24 ft wide. Based on the lot frontage measurement of approximately 60 ft, the driveway covered 40% of the yard frontage, exceeding the 35% limit.
  • The Petitioner's right to enforce the Master Association’s rules was formalized by an Assignment Agreement signed on August 16, 2023.

Key Arguments and Proceedings

The Petitioner presented testimony from Harry Whitesell, a board member and former property appraiser, who detailed the measurements and the history of the Respondent's failed architectural requests (2015, 2017) to add parking. Petitioner argued that the Respondent ignored denial notices and that the modification was installed without approval and remains out of compliance.

The Respondent's legal strategy focused entirely on the affirmative defense of laches. Respondent's counsel argued that the condition had existed, open and obvious, since late 2017/early 2018 without enforcement. Respondent argued the HOA's delay was unreasonable, causing prejudice, and that the motivation to pursue the violation only arose after securing the enforcement authority from Mountain Park Ranch in 2023. Respondent also questioned the interpretation of "yard frontage area" used for the calculation, arguing it was ambiguous. Respondent did not present witness testimony at the hearing.

Petitioner countered the laches argument by citing a provision in the Keystone CC&Rs stating that failure to enforce a restriction "shall in no event be deemed a waiver of the right to do so thereafter".

Legal Points and Outcome

The ALJ admitted Petitioner’s Exhibits A through M and Respondent’s Exhibit 1 into evidence.

The ALJ made the following legal conclusions:

  1. Petitioner bore the burden of proof to establish the violation by a preponderance of the evidence.
  2. The preponderance of the evidence showed that Respondent erected a cement driveway extension that exceeds 35 percent of the total yard frontage area, without obtaining prior approval.
  3. Respondent failed to meet the burden of establishing the affirmative defense of laches. The ALJ found that Respondent had not established sufficient "unreasonable delay that has resulted in prejudice" to deny the relief sought by Petitioner.

Final Decision and Order:

  • Petitioner was deemed the prevailing party.
  • Respondent was ordered to pay Petitioner its filing fee of $1,500.00 within thirty days.
  • Respondent was ordered to henceforth comply with the provisions of the Governing Documents.
  • No Civil Penalty was found to be appropriate.

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

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

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a sub-association enforce the rules and CC&Rs of the master association?

Short Answer

Yes, if the master association has assigned those enforcement rights to the sub-association.

Detailed Answer

A sub-association (like a specific neighborhood HOA within a larger master planned community) generally enforces its own documents. However, this decision clarifies that a sub-association may be authorized to enforce the master association's governing documents if there is a specific assignment agreement executing that transfer of authority.

Alj Quote

The Governing Documents authorize Petitioner to enforce the Governing Documents, as further memorialized by an executed Assignment Agreement by and between Mountain Park Association and Keystone Owners Association signed on August 16, 2023.

Legal Basis

Assignment Agreement / Governing Documents

Topic Tags

  • jurisdiction
  • sub-associations
  • master association
  • enforcement authority

Question

If I extend my driveway without approval, does the HOA have to prove I didn't get permission, or do I have to prove I did?

Short Answer

The absence of written evidence granting approval can be used to establish a violation.

Detailed Answer

While the HOA bears the initial burden of proof for the violation, the lack of testimonial or written evidence showing that the homeowner received approval helps establish that the modification was unauthorized.

Alj Quote

However, there was no testimonial or written evidence presented to establish that Respondent was granted approval to install a driveway that exceeded 35% of the total yard frontage area.

Legal Basis

Burden of Proof

Topic Tags

  • architectural approval
  • evidence
  • driveways
  • modifications

Question

What is the 'burden of proof' for an HOA to win a violation hearing?

Short Answer

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

Detailed Answer

The HOA does not need to prove a violation 'beyond a reasonable doubt' (the criminal standard). They must only show that their contention is 'more probably true than not' or carries superior evidentiary weight.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 7.9 by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • legal standards
  • evidence
  • hearing procedures

Question

Can I use the defense that the HOA waited too long to enforce the rule (laches)?

Short Answer

Yes, but you bear the burden of proving that the delay was unreasonable and caused you prejudice.

Detailed Answer

Laches is an affirmative defense. It is not enough to simply show a delay; the homeowner must prove by a preponderance of the evidence that the delay was unreasonable and that it resulted in sufficient prejudice to deny the HOA's relief.

Alj Quote

Laches is an affirmative defense, and Respondent bears the burden of establishing the defense by a preponderance of the evidence… Respondent has not established by a preponderance of the evidence that there was unreasonable delay that has resulted in prejudice to Respondent sufficient to deny the relief Petitioner seeks…

Legal Basis

A.C.C. R2-19-119(B)(2); Flynn v. Rogers

Topic Tags

  • defenses
  • laches
  • enforcement delay

Question

If I lose the hearing, can the judge make me pay the HOA's filing fees?

Short Answer

Yes, the Administrative Law Judge can order the losing homeowner to reimburse the HOA's filing fee.

Detailed Answer

In this decision, the judge ordered the Respondent (homeowner) to pay the Petitioner's (HOA) filing fee of $1,500.00 directly to the Petitioner within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner its filing fee of $1,500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Question

How do judges interpret the meaning of restrictive covenants (CC&Rs)?

Short Answer

They are interpreted as a whole, looking at the underlying purpose of the document.

Detailed Answer

Legal interpretation does not isolate single phrases but looks at the document in its entirety to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Topic Tags

  • legal interpretation
  • CC&Rs
  • covenants

Question

Can the judge issue a civil penalty (fine) in addition to ordering me to fix the violation?

Short Answer

Yes, the judge has the authority to levy a civil penalty, though they may choose not to.

Detailed Answer

Under Arizona statute A.R.S. § 32-2199.02, the administrative law judge has the discretion to order compliance and also levy a civil penalty for each violation. In this specific case, the judge found no civil penalty was appropriate, but the authority exists.

Alj Quote

The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalties
  • fines
  • statutory authority

Case

Docket No
24F-H031-REL
Case Title
Keystone Owners Association vs. Bernadette M. Bennett
Decision Date
2024-12-09
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Erica L. Mortenson (attorney)
    Goodman Law Group
    HOA attorney
  • Harry Whitel (board member/witness)
    Keystone Owners Association
    Secretary of the Board
  • Tim Seyfarth (board member/president)
    Keystone Owners Association
    Board President
  • Glenn Steinman (board member)
    Keystone Owners Association
    Board Vice President
  • Debbie Burch (board member)
    Keystone Owners Association
    Board Treasurer
  • Cherry Collins (board member)
    Keystone Owners Association
    Member at large; Architectural Advisory Committee member
  • Joe Getti (ARC member/former board member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Mary Hamilton (ARC member)
    Keystone Owners Association
    Architectural Advisory Committee member
  • Dan (attorney/staff)
    Goodman Law Group

Respondent Side

  • Bernadette M. Bennett (respondent)
    Lot Owner
  • Thomas A. Walcott (attorney)
    Provident Lawyers
    Respondent attorney
  • Noah Alvarado (staff)
    Staff/assistant for Respondent's Counsel
  • Christopher J. Charles (attorney/staff)
    Provident Lawyers

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
    Administrative Law Judge
  • Amy Haley (ALJ)
    OAH
    Administrative Law Judge (prior to VMT)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Isabella (property manager)
    Vision Management
    Keystone Property Manager who was asked for documents
  • Annette Wthbon (property management agent)
    City Management
    Former Property Management Agent
  • Carla Garvin (property management agent)
    City Management
    Former Property Management Agent

Michael J Morris v. StarPass Master Homeowner Association, INC.

Posted on by

Case Summary

Case ID 24F-H030-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-04-23
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner was deemed the prevailing party based on the finding that Respondent violated A.R.S. § 33-1804(B) by failing to hold required annual meetings of the Association’s members since 2010. Respondent was ordered to refund the $500 filing fee and comply with A.R.S. § 33-1804. Petitioner failed to establish the remaining alleged violations concerning the Declarant's right to appoint the Board or violations of A.R.S. §§ 33-1810 and 33-1817, or most CC&R sections.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J Morris Counsel —
Respondent StarPass Master Homeowner Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

Petitioner was deemed the prevailing party based on the finding that Respondent violated A.R.S. § 33-1804(B) by failing to hold required annual meetings of the Association’s members since 2010. Respondent was ordered to refund the $500 filing fee and comply with A.R.S. § 33-1804. Petitioner failed to establish the remaining alleged violations concerning the Declarant's right to appoint the Board or violations of A.R.S. §§ 33-1810 and 33-1817, or most CC&R sections.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1810 and 33-1817, or the cited sections of the CC&Rs or Bylaws related to the Declarant's power to appoint the board.

Key Issues & Findings

Declarant control, board appointment without vote or meeting, and failure to hold annual meetings

Petitioner alleged Respondent violated multiple statutes and governing documents by allowing the Declarant to solely appoint the Board of Directors and failing to hold annual meetings. The Administrative Law Judge found that the Respondent violated A.R.S. § 33-1804(B) by failing to notice or hold annual members meetings since 2010. All other alleged violations were not established.

Orders: Respondent ordered to pay Petitioner his filing fee of $500.00 and directed to comply with the requirements of A.R.S. § 33-1804 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1810
  • A.R.S. § 33-1817
  • Bylaw Article Section 1
  • CC&Rs Article 3 Section 2(b)
  • CC&Rs Article 3 Section 5
  • CC&Rs Article 11 Section 8

Analytics Highlights

Topics: Declarant Control, Annual Meetings, Filing Fee Refund, HOA Board Appointment
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1810
  • A.R.S. § 33-1817
  • Bylaw Article Section 1
  • CC&Rs Article 3 Section 2(b)
  • CC&Rs Article 3 Section 5
  • CC&Rs Article 11 Section 8

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Video Overview

Audio Overview

Decision Documents

24F-H030-REL Decision – 1154358.pdf

Uploaded 2026-04-24T12:18:26 (41.8 KB)

24F-H030-REL Decision – 1156053.pdf

Uploaded 2026-04-24T12:18:29 (7.4 KB)

24F-H030-REL Decision – 1160349.pdf

Uploaded 2026-04-24T12:18:33 (53.8 KB)

24F-H030-REL Decision – 1170315.pdf

Uploaded 2026-04-24T12:18:38 (114.1 KB)

24F-H030-REL Decision – 1154358.pdf

Uploaded 2026-01-23T18:04:32 (41.8 KB)

24F-H030-REL Decision – 1156053.pdf

Uploaded 2026-01-23T18:04:39 (7.4 KB)

24F-H030-REL Decision – 1160349.pdf

Uploaded 2026-01-23T18:04:43 (53.8 KB)

24F-H030-REL Decision – 1170315.pdf

Uploaded 2026-01-23T18:04:47 (114.1 KB)

This summary focuses on the hearing proceedings, key arguments, and final decision of the dispute between Michael J. Morris and the StarPass Master Homeowner Association (HOA).

Key Facts and Parties

The administrative hearing was held before ALJ Velva Moses-Thompson on March 6, 2024, in Phoenix. The Petitioner, Michael J. Morris (a homeowner), alleged ongoing violations against the Master HOA. The Respondent, StarPass Master Homeowners Association, Inc., was represented by F. Christopher Ansley, who is the Declarant, President of the Board of Directors, and statutory agent of the Master HOA, controlling the association since 1992.

Main Issues in Dispute

The petition alleged that the Respondent violated Arizona Revised Statutes (A.R.S. §§ 33-1804, 33-1817) and specific sections of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The three core factual issues addressed were:

  1. Whether the Declarant (Mr. Ansley) was the sole person to appoint the Board of Directors without notice, a meeting, or a vote of the members.
  2. The failure to hold annual meetings of the Association’s members.
  3. Whether the actions constituted a breach of duty and violated governing documents, particularly concerning the expiration of the Declarant's voting power.

(The ALJ noted a jurisdictional limitation regarding the allegation concerning A.R.S. § 33-1810 related to audits, as the Petitioner filed a single-issue petition).

Key Arguments

Petitioner's Arguments (Mr. Morris):

Mr. Morris and his witnesses argued that the Declarant maintained total control, asserting complete and sole authority to appoint the board and failing to hold regular annual meetings as required by state law (A.R.S. § 33-1804) and the CC&Rs. A key legal contention involved the Declarant’s superior voting rights (Type B membership), which were set to terminate on December 31, 2010, per the CC&Rs (Article III, Section 2(b)). Petitioner argued that the "Sixth Amendment," which attempted to extend these rights, was recorded in May 2011, five months *after* the rights had already terminated, and the subsequent backdating of the amendment was invalid under Arizona law.

Respondent's Arguments (Mr. Ansley):

Mr. Ansley conceded that he was the sole person to appoint board members. He also admitted that he had stopped holding annual members meetings since 2010, citing repeated failure to reach a quorum among Type A (homeowner) members. Mr. Ansley maintained his authority based on his Type B votes, which provided three votes per planned lot, giving the Declarant well over 75% of the total vote. He asserted that the Sixth Amendment extension was valid because the *act* (such as restructuring assessments) was implemented in January 2007, and the later recordation in 2011 served only as public notice, not the effective date of the change.

Outcome and Final Decision

The Administrative Law Judge (ALJ) issued a decision on April 23, 2024, holding that the Petitioner was the prevailing party.

Most Important Legal Point:

The ALJ found it undisputed that the Respondent failed to notice or hold an annual meeting of the members from 2010 to the current time. This failure established a violation of A.R.S. § 33-1804(B), which mandates that a meeting of the members' association must be held at least once each year.

The ALJ concluded that Petitioner failed to establish violations of the other statutes or the CC&Rs/Bylaws related to the Declarant’s ability to appoint board members or concerning the expiration of Type B rights.

Orders Issued:

  1. Respondent was ordered to pay the Petitioner his $500.00 filing fee.
  2. Respondent was directed to comply with A.R.S. § 33-1804 going forward (i.e., hold annual members meetings).
  3. No Civil Penalty was deemed appropriate.

Questions

Question

Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?

Short Answer

No. State law requires an annual meeting regardless of past attendance issues.

Detailed Answer

Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.

Alj Quote

A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.

Legal Basis

A.R.S. § 33-1804(B)

Topic Tags

  • meetings
  • quorum
  • compliance

Question

If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?

Short Answer

Yes. You must submit the specific governing documents you claim were violated.

Detailed Answer

If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.

Alj Quote

Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.

Legal Basis

Evidentiary Burden

Topic Tags

  • evidence
  • procedure
  • bylaws

Question

Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?

Short Answer

No. The judge's power is limited to ordering compliance with laws and documents.

Detailed Answer

The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.

Alj Quote

While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.

Legal Basis

Jurisdiction

Topic Tags

  • remedies
  • board of directors
  • jurisdiction

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof

Question

Does the HOA automatically get fined if the judge finds they violated state law?

Short Answer

No. Civil penalties are not automatic.

Detailed Answer

A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • penalties
  • fines
  • enforcement

Question

Can I get my $500 filing fee back if I win the hearing?

Short Answer

Yes. The judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.

Alj Quote

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

Legal Basis

Prevailing Party Costs

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Is it illegal for a developer (Declarant) to appoint the Board without an election?

Short Answer

Not necessarily, unless specific statutes or bylaws prohibit it.

Detailed Answer

Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.

Alj Quote

Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.

Legal Basis

CC&Rs / Statutes

Topic Tags

  • declarant control
  • board appointments
  • elections

Case

Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?

Short Answer

No. State law requires an annual meeting regardless of past attendance issues.

Detailed Answer

Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.

Alj Quote

A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.

Legal Basis

A.R.S. § 33-1804(B)

Topic Tags

  • meetings
  • quorum
  • compliance

Question

If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?

Short Answer

Yes. You must submit the specific governing documents you claim were violated.

Detailed Answer

If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.

Alj Quote

Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.

Legal Basis

Evidentiary Burden

Topic Tags

  • evidence
  • procedure
  • bylaws

Question

Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?

Short Answer

No. The judge's power is limited to ordering compliance with laws and documents.

Detailed Answer

The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.

Alj Quote

While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.

Legal Basis

Jurisdiction

Topic Tags

  • remedies
  • board of directors
  • jurisdiction

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof

Question

Does the HOA automatically get fined if the judge finds they violated state law?

Short Answer

No. Civil penalties are not automatic.

Detailed Answer

A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • penalties
  • fines
  • enforcement

Question

Can I get my $500 filing fee back if I win the hearing?

Short Answer

Yes. The judge can order the HOA to reimburse the filing fee.

Detailed Answer

If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.

Alj Quote

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

Legal Basis

Prevailing Party Costs

Topic Tags

  • fees
  • reimbursement
  • costs

Question

Is it illegal for a developer (Declarant) to appoint the Board without an election?

Short Answer

Not necessarily, unless specific statutes or bylaws prohibit it.

Detailed Answer

Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.

Alj Quote

Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.

Legal Basis

CC&Rs / Statutes

Topic Tags

  • declarant control
  • board appointments
  • elections

Case

Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael J. Morris (petitioner)
    StarPass Master Homeowner Association member; Sub-HOA President
  • Bruce Prior (witness)
    StarPass Master Homeowner Association member; past subHOA president
  • Michael Schmidt (witness)
    Wildcat Pass HOA Board member
    Also referred to as Michael Smidt

Respondent Side

  • F. Christopher Ansley (declarant)
    StarPass Master Homeowner Association President/Property Manager; Devcon LLC
    Also referred to as Chris Ansley or mistakenly as Craig Ansley
  • David Makavoy (lawyer)
    Ansley's lawyer concerning amendment recording

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Also referred to as Alderman Thompson
  • Brian Larson (CPA)
    Brian Larson CTA
    Provided quarterly financial statements for Master HOA
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Jimmy Liscos (board member)
    StarPass Master Homeowner Association Board of Directors; focus group member
    Appointed board member who was also part of the focus group/group of seven
  • Jamie Haw (board member)
    StarPass Master Homeowner Association Board of Directors; focus group member
    Appointed board member who resigned
  • Nikki Morton (focus group member)