Tag Archives: Pro se

Jeremy R. Whittaker vs The Val Vista Lakes Community Association

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Case Summary

Case ID 25F-H054-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date —
Administrative Law Judge —
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Jeremy R. Whittaker Counsel Pro Se
Respondent The Val Vista Lakes Community Association Counsel Joshua M. Bolen, CHDB Law LLP

Alleged Violations

No violations listed

Audio Overview

Decision Documents

25F-H054-REL Decision – 1318153.pdf

Uploaded 2026-04-24T12:48:55 (46.4 KB)

25F-H054-REL Decision – 1324339.pdf

Uploaded 2026-04-24T12:48:58 (50.1 KB)

25F-H054-REL Decision – 1324343.pdf

Uploaded 2026-04-24T12:49:03 (43.8 KB)

25F-H054-REL Decision – 1324372.pdf

Uploaded 2026-04-24T12:49:12 (44.6 KB)

25F-H054-REL Decision – 1328416.pdf

Uploaded 2026-04-24T12:49:24 (38.0 KB)

25F-H054-REL Decision – 1337742.pdf

Uploaded 2026-04-24T12:49:27 (128.6 KB)

25F-H054-REL Decision – 1342973.pdf

Uploaded 2026-04-24T12:49:33 (47.1 KB)





Legal Briefing: Whittaker v. Val Vista Lakes Community Association

# Legal Briefing: Whittaker v. Val Vista Lakes Community Association

## Executive Summary
This briefing document analyzes the administrative legal proceedings and ultimate decision in the consolidated cases of **Jeremy R. Whittaker v. The Val Vista Lakes Community Association (No. 25F-H045-REL and 25F-H054-REL)**. The dispute centered on the Association’s failure to provide various financial and administrative records within the 10-business-day statutory deadline mandated by Arizona Revised Statute (A.R.S.) § 33-1805.

The Office of Administrative Hearings (OAH) determined that the Val Vista Lakes Community Association (Respondent) wrongfully withheld documents and improperly conditioned the production of records on the completion of an internal "Records Request Form." Consequently, the Administrative Law Judge (ALJ) ordered the Association to pay $1,000.00 in civil penalties and reimburse the Petitioner $1,000.00 in filing fees. The final order was further modified to mandate compliance for all pending and future record requests.

## Analysis of Key Themes

### 1. Statutory Compliance vs. Internal Association Policy
The central conflict involved the hierarchy of state law over internal Association procedures. The Association adopted a "Records Retention and Request Policy" on February 25, 2025, which required members to use a specific form and, in some cases, pay deposits.

*   **The Petitioner’s Stance:** Whittaker argued that A.R.S. § 33-1805 guarantees access to records without the prerequisite of a "signature, contract, or purchase prerequisite." He characterized the Association’s form as an "unlawful obstacle" designed to delay or reset the statutory 10-day clock.
*   **The Association’s Stance:** Counsel for the Association argued that the form was a legitimate tool for "management's efficiency" and to educate members on the statute. They contended that if a member refuses to fill out the form, the Association has no obligation to provide copies.
*   **Judicial Determination:** The ALJ ruled that the failure to use a specific form does not excuse an HOA from responding to a written request. The tribunal found that Whittaker had complied with the statute by submitting his requests in writing.

### 2. The Definition of "Official Records" and Draft Documents
A significant portion of the testimony focused on when a document becomes an "official record" subject to disclosure.

*   **Finalization Defense:** The Association's General Manager, Tamara Swanson, testified that the records retention policy requested on February 27 was not a "record" because it was not signed by the Board President until March 14.
*   **Meeting Minutes:** The Association argued that meeting minutes are not "official records" until the Board approves them, which can take months. 
*   **OAH Ruling:** The tribunal rejected the Association's silence as a valid response. The ALJ noted that even if documents contained privileged information or were in draft form, the Association was required to respond, redact sensitive data, or clarify the request within the 10-day window.

### 3. Privilege and Selective Withholding
The Association attempted to justify the withholding of legal service agreements, invoices, and attorney rate schedules by claiming attorney-client privilege.

*   **Broad Withholding:** The Association admitted to providing "absolutely zero documents" for the records requests in both petitions, largely because the Petitioner refused to use the internal form.
*   **Tribunal Finding:** The ALJ determined that the Association should have produced the documents with redactions for privileged or sensitive information rather than withholding them entirely.

## Key Quotes and Contextual Significance

| Quote | Source | Contextual Significance |
| :--- | :--- | :--- |
| "Failure to deliver within 10 business days is a per se violation of 33-1805A." | Jeremy Whittaker (Petitioner) | Establishes the Petitioner's core legal argument: the statutory timeline is absolute and non-negotiable. |
| "Until a document is signed and executed, it is not a complete and finalized document. Draft documents are not provided on records requests." | Tamara Swanson (General Manager) | Summarizes the Association's defense for delaying production—that a board-approved policy is not a "record" until physically signed. |
| "The association has the absolute right to adopt policies under its bylaws to assist with the operations of the association." | Joshua Bolen (Respondent Counsel) | Highlights the HOA’s belief that internal administrative policies can dictate the terms of statutory compliance. |
| "The fact that the second request was not made on the form, does not excuse Val Vista from at a minimum responding." | ALJ Adam Stone | The decisive legal conclusion: HOAs cannot use a lack of form-filling as a justification for total silence or non-production. |
| "Respondent shall follow the A.R.S. § 33-1805(A) for all pending and future requests." | Modified Order (Aug 26, 2025) | Expands the scope of the ruling beyond the specific petitions to ensure ongoing statutory adherence. |

## Detailed Financial Summary of Rulings

The tribunal issued separate but identical penalties for each of the two petitions filed by the Petitioner.

| Case Number | Statutory Violation | Filing Fee Reimbursement | Civil Penalty | Total Owed |
| :--- | :--- | :--- | :--- | :--- |
| **25F-H045-REL** | A.R.S. § 33-1805 | $500.00 | $500.00 | $1,000.00 |
| **25F-H054-REL** | A.R.S. § 33-1805 | $500.00 | $500.00 | $1,000.00 |
| **Total Combined** | | **$1,000.00** | **$1,000.00** | **$2,000.00** |

## Actionable Insights

### For Homeowners’ Associations
*   **Respond Regardless of Form:** Associations must respond to written record requests within 10 business days, even if the requester does not use a specific internal form. Silence is treated as a statutory violation.
*   **Redact, Don't Withhold:** If a record contains privileged information (e.g., attorney-client communications or sensitive bank details), the HOA must provide a redacted version of the record rather than refusing to produce it entirely.
*   **Clarify Ambiguity:** If a request is broad or unclear, the burden is on the Association to reach out and seek clarification rather than ignoring the request.
*   **Finalization is not a Shield:** A policy approved by the Board in a public meeting may be considered a record even before the physical signature is applied.

### For Homeowners
*   **Written Requests Suffice:** Per A.R.S. § 33-1805, a written request for records is sufficient to trigger the 10-day statutory clock; homeowners are not legally required to adhere to additional HOA-invented contractual hurdles for basic access.
*   **Enforce Deadlines via OAH:** The Office of Administrative Hearings provides a viable path for recourse when an HOA fails to meet the 10-day deadline, including the potential for civil penalties and fee reimbursements.
*   **Burden of Proof:** Petitioners must prove by a "preponderance of the evidence" (that the claim is more probably true than not) that the HOA failed to produce records. Timestamps of emails and evidence of HOA silence are critical.







Study Guide: Jeremy R. Whittaker v. Val Vista Lakes Community Association

# Study Guide: Jeremy R. Whittaker v. Val Vista Lakes Community Association

This study guide provides a comprehensive overview of the administrative hearing cases **25F-H045-REL** and **25F-H054-REL** heard before the Arizona Office of Administrative Hearings (OAH). It analyzes the legal interpretations of A.R.S. § 33-1805, the obligations of homeowners' associations (HOAs) regarding records disclosure, and the procedural history of the dispute between Jeremy R. Whittaker and the Val Vista Lakes Community Association.

---

## I. Key Concepts and Legal Framework

### 1. Arizona Revised Statute § 33-1805
The central pillar of these cases is A.R.S. § 33-1805, which governs the "Records of the association." Key provisions include:
*   **Accessibility:** All financial and other records of the association must be made reasonably available for examination by any member or their designated representative.
*   **Cost of Review:** Associations may not charge a member for making materials available for review/examination.
*   **Statutory Deadlines:** The association has **10 business days** to fulfill a request for examination and **10 business days** to provide copies of requested records.
*   **Copy Fees:** Associations may charge a fee for copies, but it cannot exceed **fifteen cents per page**.
*   **Withholding (33-1805-D):** Certain records may be withheld from disclosure, such as those protected by attorney-client privilege or relating to pending litigation.

### 2. The Definition of "Official Record"
A significant point of contention in these cases was when a document becomes an "official record" subject to request.
*   **Respondent's View:** The Association argued that draft meeting minutes or unexecuted policies are not records. They contended that policies must be signed and minutes must be approved by the Board at a subsequent meeting before they are releasable.
*   **ALJ Ruling:** The Administrative Law Judge (ALJ) determined that the Association cannot simply ignore a request for draft records. If a document contains sensitive or privileged information, it should be redacted or the specific reason for withholding should be communicated.

### 3. Internal Policy vs. State Statute
The Association implemented a "Records Request Policy" and a specific form that required homeowner signatures and purchase agreements as a prerequisite for fulfilling requests. The ALJ ruled that while an Association can adopt policies for efficiency, these internal forms cannot be used as a "legally unenforceable obstacle" to ignore or delay a written request that otherwise complies with state law.

---

## II. Short-Answer Practice Questions

**Q1: What is the mandatory timeframe for an HOA to provide copies of records after a written request is made?**
*   **Answer:** Ten (10) business days.

**Q2: According to the ALJ's final decision, what should an HOA do if they believe a records request is unclear or requires a fee for copies?**
*   **Answer:** The Association should reach out to the petitioner for clarification or inform them of the total cost rather than ignoring the request.

**Q3: What was the Association's justification for not providing the "Records Retention and Request Policy" by the March 13, 2025, deadline?**
*   **Answer:** The Association argued the policy was not "finalized" or "executed" until March 14, 2025, when the board president signed it, even though the board had voted to adopt a sample/draft version on February 25.

**Q4: Under A.R.S. § 33-1805, what is the maximum amount an association can charge for making copies?**
*   **Answer:** Fifteen cents ($0.15) per page.

**Q5: In case 25F-H054-REL, what specific financial records did the Petitioner request that were never produced?**
*   **Answer:** Operating bank statements (January 2024–Present) and reserve account statements.

**Q6: What legal standard did the Petitioner have to meet to prove the Association violated the law?**
*   **Answer:** The burden of proof was a "preponderance of the evidence," meaning the contention is more probably true than not.

---

## III. Essay Prompts for Deeper Exploration

### 1. The Conflict Between Administrative Efficiency and Transparency
The Val Vista Lakes Community Association argued that their new "Records Request Form" was necessary to "streamline the process" and prevent "wasting time" on broad member requests. Conversely, the Petitioner argued this form was an unlawful barrier to access. 
*   **Task:** Evaluate the ALJ’s decision regarding the use of internal forms. Does the ruling suggest that HOAs have no power to regulate how records are requested, or does it merely limit how those regulations are enforced against statutory deadlines?

### 2. The Status of Draft Minutes and Pending Policies
During testimony, Manager Tamara Swanson stated that "draft documents are not provided on records requests" and only "official policy final records" are subject to disclosure.
*   **Task:** Discuss the implications of this stance on HOA transparency. If a board takes several months to approve minutes (as alleged by the Petitioner), how does the withholding of "draft" records impact the members' ability to monitor association governance? Contrast the Association's testimony with the ALJ’s finding that the Association "wrongfully withheld the requested documents."

### 3. Attorney-Client Privilege in HOA Records
The Association withheld legal service agreements and billing records, citing privilege and pending litigation.
*   **Task:** Based on the source context, explain the ALJ's conclusion regarding these "privileged" documents. What is the obligation of an HOA when a request includes both public financial records (like invoices) and potentially privileged information?

---

## IV. Glossary of Important Terms

| Term | Definition |
| :--- | :--- |
| **A.R.S. § 33-1805** | The Arizona statute defining the requirements for HOA records maintenance, member access, and withholding criteria. |
| **Administrative Law Judge (ALJ)** | An independent official (in this case, Adam D. Stone or Velva Moses-Thompson) who presides over hearings and issues decisions on disputes between homeowners and associations. |
| **CC&Rs** | Covenants, Conditions, and Restrictions; the governing documents that outline the rules and requirements for a planned community. |
| **Civil Penalty** | A monetary fine awarded by the ALJ (in this case, $500 per petition) as a punishment for violating statutory obligations. |
| **Motion to Quash** | A legal request to void or stop a subpoena. In these cases, the Association successfully quashed portions of subpoenas requiring witnesses to produce documents, while still requiring their physical appearance. |
| **Office of Administrative Hearings (OAH)** | The independent state agency responsible for conducting evidentiary hearings for matters arising out of state regulation. |
| **Preponderance of the Evidence** | The evidentiary standard in administrative hearings; proof that makes a fact more likely to be true than not. |
| **Subpoena** | A legal order requiring a person to appear at a hearing (e.g., the subpoenas issued for Bryan Patterson and Tamara Swanson). |
| **Wrongful Withholding** | The legal determination that an association failed to provide records they were statutorily obligated to release within the required timeframe. |







Transparency Triumphs: A Deep Dive into the Whittaker v. Val Vista Lakes HOA Ruling

# Transparency Triumphs: A Deep Dive into the Whittaker v. Val Vista Lakes HOA Ruling

### 1. Introduction: The Battle for the Books
For many homeowners in planned communities, requesting access to association records often feels like engaging in a one-sided war of attrition. When boards of directors treat financial ledgers and meeting minutes as state secrets rather than communal property, the resulting friction leads to costly legal disputes. In Arizona, the legal landscape regarding transparency recently shifted in favor of homeowners through the case of *Jeremy R. Whittaker v. The Val Vista Lakes Community Association* (Nos. 25F-H045-REL and 25F-H054-REL). 

This ruling serves as a pivotal victory for member rights, establishing that administrative hurdles and board silence cannot override state-mandated transparency. The case was marked by particular urgency, as Petitioner Whittaker sought access to legal fee structures and service agreements—a request he argued was critical given the documented disciplinary history of the Association’s counsel regarding inflated or misleading HOA fee practices.

### 2. The Statutory Standard: A.R.S. § 33-1805 Explained
Arizona law provides a clear, non-negotiable framework for record transparency through A.R.S. § 33-1805. Under this statute, all financial and other records of an association must be made "reasonably available" for examination by a member or their designated representative.

The statute imposes two primary obligations on Homeowners Associations (HOAs):
*   **The 10-Business-Day Deadline:** Upon receiving a request to examine records or a request to purchase copies, the association has exactly 10 business days to fulfill that request.
*   **Reasonable Availability:** Associations are prohibited from charging for the review of materials and may only charge a maximum of fifteen cents per page for copies.

### 3. Timeline of a Dispute: From Request to Deadlock
The conflict began in early 2025 when Whittaker attempted to exercise his statutory rights. The Association’s refusal to respond created a month-long deadlock:

*   **February 25, 2025:** The Board of Directors votes to adopt a new records retention and member request policy.
*   **February 27, 2025:** Whittaker submits written requests for:
    *   **Records retention policies and meeting minutes** (specifically the exact version adopted on Feb 25).
    *   **Attorney service agreements and fee structures**, including rate schedules, invoices, and conflict-of-interest waivers.
*   **March 13, 2025:** The statutory 10-business-day deadline expires for the initial requests. The Association provides no documents and no correspondence.
*   **March 21, 2025:** Whittaker submits a second request for:
    *   **Operating and reserve bank statements** (January 2024 to present) and **Insurance Claims**.
*   **March 24, 2025:** Association counsel reiterates that no records will be provided unless Whittaker completes a specific internal "Records Request Form."

By the time of the hearing, not a single document had been produced, and the Association maintained that its silence was legally justified.

### 4. The Association’s Defenses: "Unsigned" Policies and Mandatory Forms
During the proceedings, the Val Vista Lakes HOA relied on technicalities to justify withholding documents. These arguments were meticulously picked apart during the hearing.

**The "Draft" Defense**
The Association argued that the records retention policy requested on February 27 was not a "final" record because it had not been signed by the board president until March 14. They claimed that clerical additions—such as filling in an email address—meant the document was a "draft" and exempt from disclosure. However, the ALJ noted that the Board voted to adopt the policy on February 25. Under Arizona law, once a board votes, the document becomes a record of the association’s actions, regardless of whether a signature is applied weeks later.

**The "Form Barrier" and "Examination" Defense**
HOA counsel Joshua Bolen argued that the "10-day clock" only applies after a member has already performed a physical examination of records. Furthermore, the HOA contended that members were required to use a specific internal form. This form contained "compulsory purchase" language and, critically, lacked the statutory option for a member to simply inspect records for free. The Petitioner argued this was an unlawful obstacle designed to force homeowners into a contract for paid copies.

### 5. The ALJ Decision: Why the HOA Lost
In his August 8, 2025, decision, Administrative Law Judge (ALJ) Adam D. Stone found the Association’s conduct to be a clear violation of A.R.S. § 33-1805(A). The Judge dismissed the Association’s attempt to "reset the clock" through internal policies.

> "No response by Val Vista was simply unacceptable, and in violation of the statute."

The ruling clarified that while an association may adopt policies for administrative ease, it cannot use those policies as a shield to ignore written requests. The ALJ specifically noted in Finding 12 that if the Association had concerns about privilege or fees, they had a duty to reach out to the Petitioner and provide redacted versions within the 10-day window rather than ignoring him entirely.

### 6. The Financial Impact: Filing Fees and Civil Penalties
The failure to comply with statutory deadlines resulted in direct financial consequences for the Association. The following table summarizes the awards granted:

**Judgment Summary: Val Vista Lakes Community Association**

| Case Number | Filing Fee Reimbursement | Civil Penalty Awarded | Total Awarded to Petitioner |
| :--- | :--- | :--- | :--- |
| 25F-H045-REL | $500.00 | $500.00 | $1,000.00 |
| 25F-H054-REL | $500.00 | $500.00 | $1,000.00 |
| **Total** | **$1,000.00** | **$1,000.00** | **$2,000.00** |

### 7. Closing Takeaways for Homeowners
The *Whittaker* ruling, bolstered by established case law, provides essential "Know Your Rights" insights for every Arizona homeowner:

*   **The 10-Day Clock is Absolute:** As established in *Brown v. Carravita (2017)* and *Burns v. West Laurel (2001)*, an HOA cannot delay or reset the 10-business-day response period by demanding internal forms. Silence after 10 days is a *per se* violation.
*   **Drafts vs. Finals:** Boards cannot indefinitely shield policies or minutes by claiming they are in "draft" status. If a board has voted to adopt a policy, it is an official record.
*   **Forms are Optional:** A specific HOA form is not a prerequisite for a valid request. If your written request (e.g., an email) is clear, the HOA must fulfill it. Any form that lacks an "inspection" option or requires a "compulsory purchase" commitment is legally defective.
*   **Privilege Requires Redaction:** Associations cannot withhold entire sets of records by claiming "privilege." They must provide the non-privileged portions and redact only the protected data (such as sensitive legal advice).

### 8. Conclusion: A New Precedent for Pending Requests
Following the initial ruling, Whittaker filed a "Motion for Clarification" to ensure the Association could not continue its pattern of withholding under new excuses. On August 26, 2025, Judge Stone issued a powerful supplemental order, modifying the decision to state explicitly that the Association must follow A.R.S. § 33-1805(A) for **"all pending and future requests."**

This case stands as a firm reminder that homeowner persistence is vital. State law guarantees the right to transparency, but it is the vigilance of members that holds associations accountable. When boards attempt to place procedural hurdles in front of statutory rights, the law provides a clear path to justice through the Office of Administrative Hearings.



Case Participants

Petitioner Side

  • Jeremy R. Whittaker (Petitioner)
    Appeared on his own behalf

Respondent Side

  • Joshua M. Bolen (Counsel for Respondent)
    CHDB Law LLP
  • Vicki Goslin (Counsel)
    CHDB Law LLP
    Listed on the service list for Respondent
  • Bryan Patterson (Witness / HOA President)
    The Val Vista Lakes Community Association
    Subpoenaed by Petitioner to appear at the hearing
  • Tamara Swanson (Witness / Acting General Manager)
    The Val Vista Lakes Community Association
    Testified regarding the association's records and policies

Neutral Parties

  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearing and issued the final decision
  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Issued pre-hearing orders and ruled on motions
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Antoinette McCarthy v. Wild Turkey Townhouse Association

Posted on by

Case Summary

Case ID 25F-H114-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2026-03-19
Administrative Law Judge ADS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Antoinette McCarthy Counsel Pro Se
Respondent Wild Turkey Townhouse Association Counsel Charles D. Onofry

Alleged Violations

No violations listed

Audio Overview

Decision Documents

25F-H114-REL Decision – 1395836.pdf

Uploaded 2026-04-24T12:55:57 (62.2 KB)

25F-H114-REL Decision – 1406436.pdf

Uploaded 2026-04-24T12:56:01 (102.6 KB)





Briefing Document: McCarthy v. Wild Turkey Townhouse Association (No. 25F-H114-REL)

# Briefing Document: McCarthy v. Wild Turkey Townhouse Association (No. 25F-H114-REL)

## Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision regarding a dispute between Antoinette McCarthy (Petitioner) and the Wild Turkey Townhouse Association (Respondent). The central conflict involved the Association Board’s decision to initiate a $3,356,596 roofing project and impose individual special assessments of approximately $20,000 per unit without obtaining a 66% membership ratification vote.

On March 19, 2026, Administrative Law Judge (ALJ) Adam D. Stone ruled in favor of the Petitioner. The tribunal determined that while the Association is authorized to "replace" roofs, the inclusion of significant system upgrades—such as new ventilation, thermal insulation, and structural modifications—constituted "alterations" under the Association’s Covenants, Conditions, and Restrictions (CC&Rs). Consequently, the Board exceeded its authority by bypassing the mandatory membership vote required for such improvements. The Association was ordered to comply with the CC&Rs and reimburse the Petitioner’s filing fee.

---

## Detailed Analysis of Key Themes

### 1. Interpretation of "Replacement" vs. "Alteration"
The core of the legal dispute rested on the distinction between maintenance and improvement. 
*   **The Association's Stance:** The Board argued that Article VI of the CC&Rs granted them the authority to "paint, repair, replace and care for roofs" as part of their maintenance duties. They contended that modernizing roofs to current building standards (after 40 years) was a logical extension of the power to "replace."
*   **The Petitioner's Stance:** McCarthy argued that the project was not a "like-for-like" replacement. She presented evidence from the Association’s own roofing assessment (Recorp) showing the addition of entirely new systems:
    *   **Ventilation:** The installation of balanced ventilation systems where none previously existed.
    *   **Insulation:** The addition of four inches of R25 insulation.
    *   **Structural/Mechanical Changes:** The necessity of raising HVAC units and extending plumbing penetrations to accommodate the increased roof height.
*   **Judicial Finding:** The ALJ agreed with the Petitioner, stating that while "replace" does not strictly mean "like-for-like," the project included "costly additions/upgrades" that transformed the scope from maintenance into "alterations and improvements" governed by Article VIII.

### 2. Financial Governance and Special Assessments
The Association implemented a complex financial structure to fund the $3.3 million project:
*   **Cost Splitting:** The Board determined a 65/35 split, where individual owners bore 65% of the cost and the Association's reserves covered 35%.
*   **The 5% Escalator:** Because the project was scheduled in three phases over three years, a 5% annual cost escalator was added to the assessments. Finance Chair Daniel Meyers testified this was intended to ensure fairness so that owners in later phases would not pay significantly more due to rising material costs.
*   **True-Up Process:** The Association issued "estimated" assessments of $20,000 per unit, with the intention of performing a "true-up" (adjusting the bill up or down) after completion, based on the specific needs of each unit (e.g., skylights).

### 3. Board Authority and Membership Rights
The proceedings highlighted a breakdown in communication and perceived transparency:
*   **Lack of Vote:** Chrystalyn Lash (HOAMCO) and Daniel Meyers confirmed that no membership vote was held. They relied on legal counsel's interpretation that because the roofs benefited individual units rather than common areas, the specific voting requirements of Article VIII, Section 4 did not apply.
*   **Member Exclusion:** Witnesses Rosa Vangrieken and Fred Grove expressed frustration that the roofing committee was cancelled or that member input was disregarded. Vangrieken testified to the personal financial strain caused by the $20,000 assessment, which required her to secure a private loan at 6.5% interest.

---

## Important Quotes with Context

### On the Nature of the Upgrades
> "During the re-roofing phase, insulation would need to be installed above the decking to achieve an R25 insulation value... The height of the new roofs would require the HVAC units to be raised and extended."
— **Antoinette McCarthy**, quoting the Recorp Roofing Assessment to demonstrate that the project involved mechanical and structural redesign rather than simple maintenance.

### On Financial Fairness and the Escalator
> "One of the concerns is that the people that are going to be paying in the third phase are going to be paying a higher amount than the people in the first phase... we provided that 5% across everybody's cost and then shared it."
— **Daniel Meyers**, Finance Chair, explaining the rationale behind the 5% cost escalator that McCarthy challenged as unauthorized.

### On the Responsibility for Costs
> "The maintenance of the roof is the responsibility of the HOA... The HOA is responsible for paying for it, not individual homeowners, but the association. And if there's no money there, it was quite clear a special assessment would be required."
— **Fred Grove**, Witness and former Board Member, arguing that the Board's 65/35 cost-splitting model contradicted historical and CC&R-based understandings of Association duties.

### On the Board's Reliance on Counsel
> "I based my assessment on seeing what the attorneys... who we hired to review the CCNRs... recommended. That is my understanding that that was their recommendation that we did not need that [vote] based on their interpretation."
— **Daniel Meyers**, acknowledging that the decision to bypass the membership vote was based on legal advice rather than a direct mandate from the community.

### The Judicial Ruling
> "Because of the complicated nature of the project and the calculations required, the matter should have been brought to a vote by the members of the Association."
— **Administrative Law Judge Adam D. Stone**, in his Final Decision, concluding that the Board failed to follow the procedural requirements for significant capital improvements.

---

## Key Data Points and Facts

| Category | Detail |
| :--- | :--- |
| **Case Number** | 25F-H114-REL |
| **Location** | Wild Turkey Townhomes, Sedona, Arizona |
| **Total Project Cost** | $3,356,596 |
| **Individual Assessment** | Approximately $20,000 per unit |
| **Cost Allocation** | 65% Owner / 35% Association Reserve |
| **Project Duration** | 3 years (Phased approach) |
| **Total Units** | 122 Townhomes |
| **Voting Requirement** | 66% of members present (for alterations/improvements) |
| **Filing Fee Reimbursement** | $500.00 (Ordered by ALJ) |

---

## Actionable Insights

*   **Distinguish Maintenance from Alteration:** Association Boards must carefully evaluate whether "replacement" projects include new systems or structural changes. In this case, the addition of insulation and ventilation systems legally moved the project from "maintenance" to "alteration," triggering a higher threshold for approval.
*   **Procedural Compliance is Mandatory:** Even when acting on the advice of legal counsel, Boards must ensure they do not bypass the specific ratification votes required by their CC&Rs for large-scale improvements. Failure to do so can result in the invalidation of the assessment.
*   **Transparency in Special Assessments:** When implementing complex financial models like "cost escalators" and "true-ups," early and frequent membership engagement is necessary. The lack of a formal vote contributed to the perception that the Board exceeded its authority.
*   **Reserve Fund Management:** The dispute raised questions regarding the adequacy and use of reserve funds. Former Treasurer Lance Nelson noted a prior balance of $740,000, suggesting that long-term financial planning and clear reporting of reserve status are critical to avoiding sudden, massive special assessments that burden individual owners.







Study Guide: McCarthy v. Wild Turkey Townhouse Association (No. 25F-H114-REL)

# Study Guide: McCarthy v. Wild Turkey Townhouse Association (No. 25F-H114-REL)

This study guide provides a comprehensive overview of the administrative hearing and subsequent legal decision regarding the dispute between Antoinette McCarthy and the Wild Turkey Townhouse Association. It covers the core themes of homeowners' association (HOA) governance, the interpretation of Covenants, Conditions, and Restrictions (CC&Rs), and the limits of board authority in imposing special assessments.

---

## I. Key Concepts and Case Overview

### Central Conflict
The dispute centers on a $3,356,596 roofing project initiated by the Wild Turkey Townhouse Association. The Petitioner, Antoinette McCarthy, challenged a special assessment of approximately $20,000 per unit, arguing that the Board of Directors exceeded its authority by failing to obtain a mandatory 66% member approval for what she categorized as "alterations" rather than simple "replacements."

### Governing Documents and Statutes
*   **Article VI (Exterior Maintenance):** Mandates that the Association maintain and replace roofs, gutters, and other exterior surfaces. It specifies that maintenance of individual townhouse units is the owner's obligation except for what the Association provides.
*   **Article VIII, Section 4 (Special Assessments):** Outlines the Board's power to levy assessments for specific costs. Crucially, it requires a three-fourths (3/4) Board vote and a 66% affirmative vote from members for "alterations, demolition, removal, construction or improvements" of recreational and other common facilities.
*   **Arizona Revised Statutes (A.R.S.):** Title 33, Chapter 16, Article 1 (Planned Communities) and §§ 32-2199.01 regarding the Department of Real Estate's authority to hear HOA disputes.

### Arguments Presented

| Party | Core Argument | Evidence/Rationale |
| :--- | :--- | :--- |
| **Petitioner (McCarthy)** | The project constitutes an "alteration" requiring a membership vote. | The project includes system redesigns: adding ventilation where none existed, increasing insulation to R25, raising HVAC units, and changing skylight types. |
| **Respondent (HOA)** | The project is "maintenance/replacement" and does not require a vote. | Article VI gives the Board the duty to replace roofs. They argued the 66% vote requirement in Article VIII only applies to common areas/recreational facilities, not individual roofs. |

### The "5% Escalator"
The Association included a 5% annual cost escalator in the assessment. The Finance Chair, Daniel Meyers, justified this because the project is phased over three years. The escalator was intended to distribute the risk of rising material and labor costs fairly across all owners, regardless of which year their roof was replaced.

---

## II. Short-Answer Practice Questions

1.  **What was the total estimated cost of the roofing project special assessment?**
2.  **According to the testimony of Chrystalyn Lash, what was the decided cost-sharing split between individual homeowners and the Association?**
3.  **Identify three specific technical upgrades McCarthy cited as evidence that the project was an "alteration" rather than a "replacement in kind."**
4.  **Under Article VIII, Section 4, what specific double-approval process is required for improvements or alterations?**
5.  **What was the Association's primary justification for not holding a membership vote?**
6.  **Who performed the roofing assessments used by the Board to justify the project?**
7.  **What was the Administrative Law Judge's (ALJ) final ruling regarding the necessity of a membership vote?**
8.  **What reimbursement did the ALJ order the Association to pay to the Petitioner?**

---

## III. Essay Prompts for Deeper Exploration

### 1. The Scope of "Replacement" vs. "Alteration"
In his decision, Judge Stone noted that "replace" does not necessarily mean "like-for-like," but it should not include "costly additions/upgrades." Analyze the tension between modern building codes (which may require upgrades like increased insulation) and historical CC&R language. At what point does a necessary repair transition into a project requiring membership ratification?

### 2. Equity in Phased Assessments
Discuss the ethical and legal implications of the "5% escalator" used by the Wild Turkey Townhouse Association. Was the Board's attempt to achieve "fairness" through an estimated escalator a valid exercise of fiduciary duty, or did it unfairly burden homeowners with speculative costs? Consider the testimony regarding fluctuating interest rates and material costs.

### 3. Board Authority and Member Oversight
The Association argued that since the roofs benefited individual units rather than common areas, the specific voting requirements for common area improvements did not apply. Contrast this with the Petitioner’s view that any major project altering the structure of the buildings falls under the spirit of Article VIII. Which interpretation better serves the stability of a planned community?

---

## IV. Glossary of Important Terms

*   **Administrative Law Judge (ALJ):** A presiding officer (in this case, Adam D. Stone) who conducts hearings and issues decisions for state agencies like the Office of Administrative Hearings.
*   **CC&Rs (Covenants, Conditions, and Restrictions):** The legal documents that lay out the rules and guidelines for a planned community.
*   **Cost Escalator:** A clause in a contract or assessment (here 5%) that allows for an increase in prices based on future estimates of material or labor costs.
*   **Exterior Maintenance:** Tasks related to the upkeep of the outside of a building (roofs, siding, etc.) which, in this association, are handled by the HOA.
*   **Preponderance of the Evidence:** The legal burden of proof in civil and administrative cases, meaning that a claim is "more probably true than not."
*   **Replacement in Kind:** Replacing a building component with an identical or nearly identical version without changing the design or system.
*   **Special Assessment:** A one-time fee charged to HOA members to cover expenses not included in the regular budget (in this case, the $3.35M roofing project).
*   **Statutory Agent:** An individual or entity (like HOAMCO) designated to manage the affairs and receive legal documents on behalf of the association.
*   **True-up Bill:** A final adjustment or billing cycle conducted after a project's completion to reconcile estimated costs with actual expenses.







HOA Governance on Trial: The $3.3 Million Roofing Dispute in Sedona

# HOA Governance on Trial: The $3.3 Million Roofing Dispute in Sedona

## 1. Introduction: A Costly Conflict in the Village of Oak Creek

In the shadow of Sedona’s iconic red rocks, a legal battle recently unfolded that serves as a high-stakes cautionary tale for every HOA board in Arizona. At the Wild Turkey Townhouse Association in the Village of Oak Creek, what began as a necessary infrastructure project devolved into a $3,356,596 dispute that pitted homeowners against their leadership.

The conflict centered on a massive roofing initiative that imposed individual assessments of approximately $20,000 per homeowner. When resident Antoinette McCarthy challenged the project, the case moved to the Arizona Office of Administrative Hearings, forcing a deep dive into a question that keeps community managers awake at night: At what point does a "repair" or "replacement" become a structural "alteration" that requires a vote of the entire membership? For the Wild Turkey board, the answer would prove to be a million-dollar lesson in the limits of board discretion.

## 2. The Project Breakdown: Scope, Cost, and Controversy

The roofs at Wild Turkey were over 40 years old, and after assessments from Hails Roofing and project manager Recor, the board determined a full replacement was the only viable path forward. However, the sheer scale of the $3.3 million project necessitated a complex financial and logistical structure.

According to testimony from Community Manager Chrystalyn Lash and Finance Chair Daniel Meyers, the project featured several controversial pillars:

*   **The 65/35 Cost Split:** The board established a formula where individual homeowners were responsible for 65% of the cost, with the HOA covering the remaining 35% from the reserve fund.
*   **The $20,000 Individual Assessment:** Each owner was issued an assessment of roughly $20,000, which varied slightly based on roof square footage and specific unit needs (such as plywood replacement).
*   **A Three-Year, Three-Phase Rollout:** To manage cash flow and logistics, the 122-unit development was divided into three phases to be completed over three years.
*   **The 5% Annual Cost Escalator:** To ensure "fairness" so that Phase 3 owners didn't pay significantly more than Phase 1 owners due to inflation, the board added a 5% annual escalator to offset rising material and production costs.

## 3. Petitioner’s Argument: The Difference Between "Replace" and "Redesign"

Antoinette McCarthy’s petition was built on a fundamental distinction: the difference between maintenance and improvement. While Article VI of the CC&Rs gives the board the authority to "replace" roofs, McCarthy argued that the board used the project as a vehicle for a total system redesign. By adding components that never existed on the original townhomes, she contended the project moved out of the realm of maintenance and into "alterations," which require a 66% membership vote under Article VIII.

### Maintenance vs. Alteration

| CC&R Authorized Maintenance (Article VI) | Actual Project Scope (Recor Assessment) |
| :--- | :--- |
| Paint, repair, and replace roofs | Installation of new "balanced" ventilation systems where none existed |
| Provide exterior maintenance | Addition of high-value R25 thermal insulation (approx. 4" thick) |
| "Replace and care for" roofs | Raising structural height to accommodate insulation, requiring HVAC/plumbing extensions |
| Maintain gutters and downspouts | Changing architectural profile from self-flashing to curb-mounted skylights |

McCarthy’s evidence highlighted that the project wasn't just a new layer of shingles. It involved a structural shift—raising the roof height to fit R25 insulation—which in turn required extending mechanical systems like HVAC and plumbing. In the eyes of the petitioner, this was a redesign of the community’s architecture, not a simple repair.

## 4. The Board’s Defense: Discretion and Professional Interpretation

The Association’s defense rested on a specific, and ultimately risky, interpretation of Article VIII, Section 4. They argued that because the roofing work benefited individual lots rather than "common facilities," it fell under a provision where owners, by "accepting" the service, were "deemed to have agreed in writing" to the assessment.

Board witnesses emphasized that they were managing 122 individual townhome roofs that had reached the end of their functional life. They relied heavily on the advice of legal counsel, who suggested that modern building codes and the age of the structures necessitated these "upgrades" as part of a proper replacement. The board viewed the project as a necessary exercise of their fiduciary duty to maintain the property, believing they had the discretion to bypass a community-wide vote because the benefit was to the individual unit owners.

## 5. The Administrative Law Judge’s Decision

Administrative Law Judge Adam D. Stone issued a Final Decision on March 19, 2026, that served as a sharp rebuke to the board’s "discretionary" approach. While the Judge noted that a replacement does not have to be a "like-for-like" clone of the original, the inclusion of costly, brand-new systems—specifically the R25 insulation and ventilation—transformed the project into an "alteration."

The Judge focused on the complexity and the magnitude of the project, concluding:

> "Because of the complicated nature of the project and the calculations required, the matter should have been brought to a vote by the members of the Association... the matter should have been brought to a 66% membership vote."

**The Final Order:**
*   **Violation Confirmed:** The Association was found to have violated the CC&Rs by failing to obtain the mandatory 66% member approval.
*   **Compliance Mandate:** The Association was ordered to follow the CC&Rs moving forward, effectively halting the board’s unilateral path.
*   **Reimbursement:** The Association was ordered to reimburse McCarthy’s $500 filing fee.

## 6. Community Voices: Testimony from the Hearing

The hearing brought to light the human cost of governance failures. Homeowner Rosa Vangrieken provided a sobering look at the financial impact, testifying that she was forced to take out a personal loan at a 6.5% interest rate to cover the $20,000 assessment. She expressed a sentiment common in such disputes: that the community was "dragged along" on a $3.5 million ride without a voice.

Perhaps most damaging to the board’s position was the testimony of Fred Grove. As a retired architect, general contractor, and former board member, Grove’s professional opinion carried significant weight. He described the situation as "unbelievable," noting that the process had "gotten so totally out of hand" and that the clear responsibility of the HOA under the CC&Rs was being mismanaged.

Adding to the tension was the testimony of Lance Nelson, a former board treasurer. Nelson raised a critical transparency issue, stating that two years prior, the reserve fund had a balance of $740,000. He testified that he had been unable to confirm the current balance because it was no longer published on the year-end Profit & Loss (P&L) statements—a lack of transparency that fueled homeowner distrust.

## 7. Conclusion & Key Takeaways for HOA Members

The Wild Turkey dispute is a stark reminder that even boards acting on the advice of legal counsel can find themselves on the wrong side of an administrative order. For this Sedona community, the $500 filing fee reimbursement was the least of the costs; the real damage lies in the legal fees, the fractured community trust, and the delay of a critical $3.3 million infrastructure project.

### Lessons Learned for HOA Boards

1.  **Scope Creep Requires Votes:** "Maintenance" has limits. When you add new systems (like R25 insulation or ventilation) or change the structural profile of a building, you are likely performing an "alteration." When in doubt, the safer, more cost-effective path is always to seek membership ratification.
2.  **Transparency is a Fiduciary Duty:** The suspicion surrounding the $740,000 reserve fund highlights a best-practice failure. Boards must ensure that all financial balances, including reserves, are clearly published on year-end P&L statements. Silence breeds litigation.
3.  **The "Narrow Branch of Authority":** Boards do not have absolute power. Their authority is a "narrow branch" granted by the CC&Rs. Relying on an interpretation that bypasses the democratic process of the community—especially on a multi-million dollar project—is a recipe for a legal and financial disaster.

Ultimately, this case proves that the governing documents are not mere suggestions. Adhering to the specific voting requirements of your CC&Rs is not just a "best practice"—it is the only way to shield the association from the high cost of being overturned in court.



Case Participants

Petitioner Side

  • Antoinette McCarthy (Petitioner)
    Wild Turkey Townhouse Association
    Homeowner and Association member representing herself
  • Rosa Van Grieken (Witness)
    Association member who testified regarding the special assessment
  • Fred Grove (Witness)
    Wild Turkey Townhouse Association
    Former board member, retired architect, and general contractor

Respondent Side

  • Charles D. Onofry (Counsel)
    SCHNEIDER, ONOFRY & LOMELI, P.C.
    Attorney representing the respondent
  • Chrystalyn Lash (Witness)
    HOAMCO
    Community Association Manager for the association
  • Daniel Meyers (Witness)
    Wild Turkey Townhouse Association
    Finance Chair of the board

Neutral Parties

  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge for the hearing
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmitted decision

Oren Snir v. Gila Springs Association

Posted on by

Case Summary

Case ID 25F-H066-REL
Agency —
Tribunal —
Decision Date 2026-01-06
Administrative Law Judge KAA
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Oren Snir Counsel Pro Se
Respondent Gila Springs Association Counsel Austin Baillio

Alleged Violations

No violations listed

Audio Overview

Decision Documents

25F-H066-REL Decision – 1370774.pdf

Uploaded 2026-04-24T12:52:45 (59.0 KB)

25F-H066-REL Decision – 1383263.pdf

Uploaded 2026-04-24T12:52:49 (132.4 KB)





Case Briefing: Oren Snir v. Gila Springs Association (No. 25F-H066-REL)

# Case Briefing: Oren Snir v. Gila Springs Association (No. 25F-H066-REL)

## Executive Summary

This briefing summarizes the administrative hearing and subsequent decision regarding a dispute between Oren Snir ("Petitioner") and the Gila Springs Association ("Respondent" or "HOA"). The central issue was whether the HOA violated Arizona Revised Statutes (A.R.S.) § 33-1805(A) by failing to provide phone call records requested by the Petitioner.

The Petitioner sought records of a specific telephone conversation between a representative of the HOA’s management company, PMG Services, Inc. ("PMG"), and an incumbent board member. The Petitioner argued that this call constituted an "expression of interest" in a board candidacy and that the resulting call log held by a service provider was a discoverable HOA record, regardless of whether it occurred on a personal device. The Respondent contended that call logs do not meet the statutory definition of an HOA record, were not in the HOA’s possession or control, and that the specific records in question no longer existed.

Administrative Law Judge (ALJ) Kay A. Abramsohn denied the petition, ruling that a telephone call initiated on an employee’s personal device does not automatically become an HOA record. The ALJ further concluded that the HOA had adequately responded to the original request by confirming no documentary forms or emails existed from other candidates.

## Detailed Analysis of Key Themes

### 1. Scope and Definition of "Records of the Association"
A primary point of contention was the interpretation of A.R.S. § 33-1805(A), which requires "all financial and other records of the association" to be made available to members. 
*   **Petitioner’s View:** Snir argued that the statute is broad and does not distinguish between records kept by the association and those kept on its behalf by third parties (like phone service providers). He posited that if a business-related conversation occurs, the metadata (call logs) generated by the provider is an HOA record.
*   **Respondent’s View:** Counsel for the HOA argued that a call log—containing only numbers, times, and durations—cannot be considered an "expression of interest." Furthermore, the HOA maintained that not every action taken by a management agent creates an association record, particularly if the HOA did not request the action or possess the resulting data.

### 2. Personal Devices and Professional Obligations
The hearing explored the legal intersection of personal technology and corporate records. 
*   **The Incident:** Former PMG CEO Mary Jo Edel used her personal cell phone to call an incumbent board member (who was hospitalized at the time) to confirm her intent to run for re-election.
*   **The Legal Argument:** Snir cited case law (*Luney v. State of Arizona*) to argue that public records created on personal devices remain public records. He suggested that allowing HOAs to shield records created on personal devices would permit them to circumvent transparency laws.
*   **The Counter-Argument:** The HOA argued that under A.R.S. § 33-1805(B)(4), personal records of a vendor's employee are exempt from disclosure. They asserted that the HOA has no contract with the manager's personal cell provider and no authority to compel the production of those records.

### 3. Possession, Custody, and Control
The Respondent emphasized the "possession, custody, or control" standard for record production.
*   **Access Barriers:** Testimony revealed that PMG did not have access to Mary Jo Edel’s personal phone records. Furthermore, Edel testified that she had changed service providers and ported her number multiple times after retiring in May 2025, making records from the period in question (April 2025) inaccessible.
*   **ALJ Finding:** The ALJ determined that the HOA only had an obligation to provide what it actually possessed. Since there were no physical candidate forms or emails from the incumbent, the HOA’s statement that it had "nothing to produce" was a valid response.

### 4. Election Integrity and Selective Enforcement
The underlying motivation for the Petitioner’s request was a concern over the fairness of the 2025 board election. 
*   **Deadline Enforcement:** Snir suspected that the incumbent board member missed the 5:00 p.m. deadline on March 24, 2025. He sought the call log to verify the exact timing of the "verbal expression of interest."
*   **Relevance Ruling:** The ALJ repeatedly cautioned that the hearing was limited to the records request violation and would not determine whether the HOA’s election process was fair or compliant with its own internal rules.

## Important Quotes

### Context: Petitioner's argument on the nature of digital records.
> "The statute doesn't distinguish between records that you requested or not. These are records that were created... It’s a record of that call. The reason that call is an HOA record is for the same reason that any other of the candidates' form submission methods would have been considered an HOA record." — **Oren Snir**

### Context: Respondent's argument regarding the definition of a record.
> "The association will prove that those phone records never belong to the association, weren't being held on the association's behalf, and are outside of the scope of what the association retains as part of its record... You can’t produce something that doesn't exist." — **Austin Baillio, HOA Counsel**

### Context: Manager's testimony regarding the nature of the call.
> "It was just a verification of, you know, if she wanted to submit a bio or if she just wanted me to put her on as an incumbent because she was already a current board member... The phone call was just, 'Did you want to add a bio or do you want me to add you as an incumbent?'" — **Mary Jo Edel, Former PMG CEO**

### Context: The ALJ’s final conclusion in the written decision.
> "The Administrative Law Judge concludes that Petitioner has not met his burden to demonstrate that a telephone call initiated on a personal phone device of an employee of the management company becomes an HOA record by virtue of the employee’s employment status." — **ALJ Kay A. Abramsohn**

## Summary of Findings and Actionable Insights

### Findings of Fact
| Detail | Fact |
| :--- | :--- |
| **Request Date** | April 23, 2025 |
| **Target Records** | Candidate forms or expressions of interest for the April 2025 election. |
| **Key Discovery** | Incumbent board member expressed interest via a personal phone call to the manager. |
| **HOA Response** | Stated they do not keep phone records and had no documents to provide. |
| **Manager Status** | Mary Jo Edel retired May 30, 2025; personal phone records from April were no longer accessible. |

### Actionable Insights

*   **For Homeowners:**
    *   **Documentary Focus:** Records requests under A.R.S. § 33-1805 are most effective when targeting existing physical or digital documents (emails, forms, ledgers) held by the association or its agents.
    *   **Burden of Proof:** The petitioner bears the burden of proving that a specific record exists and falls under the statutory definition of an "association record."

*   **For HOA Boards and Management Companies:**
    *   **Communication Protocols:** To avoid transparency disputes, associations should encourage all official business—especially election-related expressions of interest—to be conducted via official channels (email, mail, or fax) rather than personal phone calls.
    *   **Clarification of Possession:** When denying a records request, clearly stating that a record "does not exist" or is "not in the possession, custody, or control of the association" is a statutorily recognized response, provided it is factually accurate.
    *   **Contractual Intellectual Property:** Management companies should ensure their contracts clearly define the ownership of operational tools (like internal phone systems and servers) to distinguish vendor property from association records.







Study Guide: Snir v. Gila Springs Association (Case No. 25F-H066-REL)

# Study Guide: Snir v. Gila Springs Association (Case No. 25F-H066-REL)

This study guide provides a comprehensive overview of the administrative hearing and subsequent decision regarding a records request dispute between a homeowner and a planned community association. It analyzes the legal interpretations of Arizona Revised Statutes (A.R.S.) § 33-1805 and the definition of "association records."

---

## Key Concepts and Case Background

### 1. The Core Dispute
The case centers on a records request made by Petitioner Oren Snir to the Gila Springs Association (managed by PMG Services, Inc.). Snir sought documentary evidence of candidate forms or "expressions of interest" for a 2025 Board of Directors election. When informed that an incumbent board member had expressed interest via a telephone call to a management employee’s personal cell phone, Snir expanded his request to include the phone logs/call records of that specific conversation.

### 2. Statutory Framework: A.R.S. § 33-1805
*   **A.R.S. § 33-1805(A):** Mandates that all financial and other records of an association be made reasonably available for examination by a member or their designated representative. The association has ten business days to fulfill such a request.
*   **A.R.S. § 33-1805(B):** Provides specific exceptions where books and records may be withheld from disclosure (e.g., personal records of an individual employee of a vendor, though this was a point of contention in the hearing).

### 3. The "Association Record" Definition
A central theme of the case is whether a call log generated by a third-party service provider (like Verizon or AT&T) for a personal device used by a vendor's employee constitutes a "record of the association." 

*   **Petitioner's Argument:** The record was created during the conduct of association business (candidate interest) and is maintained by a service provider on behalf of the user; therefore, the HOA is obligated to obtain it.
*   **Respondent's Argument:** The HOA does not have possession, custody, or control over the personal devices or service contracts of its vendors' employees. Furthermore, a call log (showing only time and duration) does not constitute an "expression of interest."

### 4. Judicial Determination
Administrative Law Judge (ALJ) Kay A. Abramsohn ruled that a telephone call initiated on a personal device of a management company employee does not become an HOA record simply because of that employee's status. The petition was denied.

---

## Timeline of Key Events

| Date | Event |
| :--- | :--- |
| March 24, 2025 | Deadline (5:00 PM) for board candidates to submit forms/interest. |
| April 23, 2025 | Oren Snir submits initial records request for candidate forms/emails. |
| April 24, 2025 | PMG informs Snir an incumbent "verbally expressed" intent via phone. |
| April 25, 2025 | Snir requests the phone call log as an official HOA record. |
| June 7, 2025 | Snir files a formal petition with the Department of Real Estate. |
| December 1, 2025 | Evidentiary hearing held via Google Meet. |
| January 6, 2026 | ALJ issues Final Decision denying the petition. |

---

## Short-Answer Practice Questions

1.  **Who are the primary parties in Case No. 25F-H066-REL?**
    *   *Answer:* Petitioner Oren Snir and Respondent Gila Springs Association.
2.  **What specific document did the Petitioner request after learning no written form existed for the incumbent candidate?**
    *   *Answer:* The call log/call history/call record of the telephone conversation between the property manager and the incumbent board member.
3.  **According to A.R.S. § 33-1805(A), how many business days does an association have to fulfill a records request?**
    *   *Answer:* Ten business days.
4.  **What was the Respondent’s primary defense regarding the requested call logs?**
    *   *Answer:* That the association did not have possession, custody, or control of the records, as they were on a personal device and held by a third-party service provider with whom the HOA had no contract.
5.  **What was Mary Jo Edel’s role at the time of the disputed phone call?**
    *   *Answer:* She was the President and CEO of PMG Services, Inc. (the management company).
6.  **Why did the Petitioner believe the timing of the phone call was critical?**
    *   *Answer:* To determine if the incumbent board member met the March 24, 2025, 5:00 PM business hours deadline to express interest in candidacy.
7.  **What was the ALJ’s ultimate finding regarding personal phone devices and HOA records?**
    *   *Answer:* The ALJ concluded that a call on a personal device does not become an HOA record solely due to the employee’s employment status.

---

## Essay Prompts for Deeper Exploration

1.  **Statutory Interpretation and Transparency:** Analyze the Petitioner’s use of *Luney v. State of Arizona* and *Bradford v. Court of Appeals of Arkansas*. How did the Petitioner attempt to bridge the gap between public records (FOIA) and private HOA records? Why did the Respondent argue these cases were inapplicable?
2.  **Possession vs. Control:** Discuss the legal distinction between a record "held by" an association and a record "held for" an association. If a management company (an agent) uses personal tools to conduct HOA business, should the HOA be held responsible for the retrieval of those records? Support your answer with arguments from both Snir and Baillio.
3.  **The Evolution of "Records" in the Digital Age:** The Petitioner argued that an email is an HOA record even if it sits on a third-party server (like Gmail or a cloud provider). Explore the implications of the Respondent's counter-argument that phone logs are "intellectual property" or "tools of the trade" for a vendor, rather than association records.

---

## Glossary of Important Terms

*   **Administrative Law Judge (ALJ):** An official who presides over an administrative hearing and issues a decision or recommendation (e.g., Kay A. Abramsohn).
*   **A.R.S. § 33-1805:** The Arizona statute governing the inspection of records for planned communities.
*   **Association Records:** Financial and other documents related to the operation of an HOA that must be made available to members under state law.
*   **Burden of Proof:** The obligation of a party to prove their allegations by a "preponderance of the evidence" (the Petitioner in this case).
*   **Call Log:** A record maintained by a phone service provider showing the time, duration, and parties involved in a telephone call.
*   **Incumbent:** A current holder of a political or board position (in this case, board member "Rhonda").
*   **PMG Services, Inc.:** The third-party management company contracted by Gila Springs Association to handle operations.
*   **Preponderance of the Evidence:** A legal standard meaning that a claim is "more probably true than not."
*   **Respondent:** The party against whom a petition is filed (Gila Springs Association).
*   **Third-Party Vendor:** An outside entity (like PMG or a phone service provider) that provides services to the HOA but is not the HOA itself.







The "Personal Phone" Precedent: When is a Call a Public HOA Record?

# The "Personal Phone" Precedent: When is a Call a Public HOA Record?

## 1. Introduction: The Battle for the Digital Paper Trail

In the modern landscape of community management, the "paper trail" has evolved into a complex digital web that often blurs the line between professional systems and personal devices. This tension reached a legal flashpoint in the case of *Oren Snir v. Gila Springs Association* (Case No. 25F-H066-REL). At the heart of the dispute was a fundamental question of transparency: If a board member conducts official business via a personal phone call, does the metadata of that call—the call log—become an official HOA record that homeowners have a right to inspect?

As a resident advocate, I see this case as a pivotal moment for community governance. It pits the homeowner’s essential right to election transparency against the practical and legal limits of an association’s control over its vendors' personal equipment.

## 2. The Trigger: A Disputed Board Election

The conflict began on April 23, 2025, when homeowner Oren Snir submitted a formal records request to the Gila Springs Association. With the board election scheduled for April 28, Snir sought to verify the eligibility of candidates by reviewing all "expressions of interest" submitted to the management company, PMG Services (PMG).

The HOA’s response ignited the controversy. While Snir had submitted a formal written candidate form, the association revealed that the only other candidate, an incumbent named Rhonda, had not submitted a written document. Instead, she had "verbally expressed her intent to re-run during a telephone conversation" with PMG’s then-President, Mary Jo Edel.

> **THE DISPUTED RECORD**
> To verify the timing and validity of this verbal submission, the Petitioner requested the **"call log / call history / call record"** of the specific phone conversation between the management company and the incumbent candidate.

## 3. Petitioner’s Case: The "Plain Meaning" of Transparency

During the hearing on December 1, 2025, Oren Snir argued that the HOA was utilizing technicalities to bypass statutory transparency requirements. Utilizing the **"Plain Meaning Rule"** of statutory interpretation, he argued that A.R.S. § 33-1805(A) dictates that "all financial and other records" be made available.

His core arguments included:

*   **The "Email Analogy":** Snir pointed out that HOAs rarely own the physical servers where emails are stored (relying on third-party providers like Gmail or Outlook), yet they are legally required to produce those emails. He argued that records held "on behalf of" the HOA by third parties—including phone service providers—should be treated the same.
*   **The "Business Use" Argument:** Snir asserted that because the call involved a candidate’s intent to run for the board, the call was strictly HOA business. Therefore, any metadata generated by that call was an HOA record, regardless of the device used.
*   **Case Law Precedent:** Snir cited *Lunney v. State of Arizona* (an Arizona Court of Appeals case) and *Bradford v. Director* (an Arkansas case), arguing that business conducted over private communication mediums remains subject to transparency laws.

## 4. The HOA’s Defense: Possession, Custody, and Control

The HOA’s counsel, Austin Baillio, argued that the association could not be compelled to produce what it did not legally possess. The defense relied heavily on the testimony of PMG managers Melissa Jordan and Mary Jo Edel to establish a boundary between association property and vendor property.

| Issue | Petitioner's Claim | HOA’s Reality/Defense |
| :--- | :--- | :--- |
| **Control of Equipment** | Personal devices used for business generate HOA records. | The HOA does not own or provide the personal phones of PMG employees. |
| **Contractual Authority** | The HOA should obtain records from the provider. | The HOA has no contract with Verizon or other providers and no authority to demand personal logs. |
| **Intellectual Property** | All communication is HOA business. | PMG’s contract includes an **Intellectual Property Clause** stating PMG owns its own phone systems and server data. |
| **Existence of Records** | The call log is a responsive record of "interest." | A call log only shows duration/timing, not "intent." Furthermore, records were lost after Edel retired (May 30, 2025) and "ported" her number. |

## 5. Behind the Scenes: The "Hospital Phone Call"

The testimony of Mary Jo Edel provided critical context that shifted the narrative of the "secret" phone call. Edel testified that she initiated the call to Rhonda, who was in the hospital at the time. 

Significantly, Edel clarified that this was not a last-minute scramble to bypass a deadline. Rhonda had already expressed her intent to run during an open board meeting in January. The phone call was merely an administrative follow-up to confirm whether Rhonda wanted to submit a new biography or simply be listed as an "incumbent" on the ballot. Edel confirmed the call occurred during business hours, undermining the Petitioner's suspicion of a rule-breaking event or a missed deadline.

## 6. The Verdict: Why the Judge Denied the Petition

On January 6, 2026, Administrative Law Judge Kay A. Abramsohn issued a decision denying Snir’s petition. Applying the **"Preponderance of Evidence"** standard, the judge found that the HOA had not violated its statutory duties.

The ruling rested on two primary legal pillars:

1.  **Timely Response:** The HOA complied with the law by informing Snir within one business day that no other *documentary* candidate forms or emails existed.
2.  **Statutory Exceptions:** The Judge ruled that a phone call on an employee's personal device does not automatically become an HOA record. Crucially, the decision pointed to **A.R.S. § 33-1805(B)(4)**, which specifically excludes the "personal records of an individual employee of a vendor of the association" from public inspection.

The ruling cited the following statutes:
1.  **A.R.S. § 33-1805(A):** The general requirement to provide association records.
2.  **A.R.S. § 33-1805(B):** The definitions of records that may be withheld.
3.  **A.R.S. § 33-1805(B)(4):** The specific protection for vendor employee records.

## 7. Key Takeaways for Homeowners and Boards

This case establishes a significant boundary for HOA transparency in the digital age.

**The "Device" Divide and the Reality of Turnover**
While Snir's "Email Analogy" was clever, the legal reality is that management companies are separate legal entities. Their private tools are not "Association Records" by default. This is exacerbated by vendor turnover; Mary Jo Edel testified she "ported" her number three times after retiring, meaning that even if the HOA wanted to comply, the data was physically inaccessible. When a vendor leaves, the paper trail often goes with them.

**Written vs. Verbal Requirements**
This dispute was fueled by the lack of a paper trail. To protect the community, HOAs should adopt rules requiring all candidate submissions to be in writing via specific methods (email, fax, or mail). If the bylaws allow for verbal "expressions of interest," the association invites challenges regarding deadlines and favoritism.

**The Limits of Possession**
An HOA is only required to produce records within its "possession, custody, or control." As a **Legal Analyst’s Note**, this case confirms that homeowners cannot compel an HOA to subpoena a manager's personal Verizon bill or private phone logs.

## 8. Conclusion: The Future of HOA Transparency

Judge Abramsohn’s decision emphasizes the **"Fair and Sensible Result"** doctrine of statutory interpretation. This doctrine ensures that laws are not interpreted in a way that leads to "absurd" results—such as requiring a volunteer HOA board to seize the personal property of a third-party contractor.

While transparency is the lifeblood of a healthy HOA, the court has drawn a firm line at the digital boundary of personal devices. For homeowners, this case serves as a reminder that "records" are defined by law and contract, not just by the nature of the conversation. For management staff, it reinforces a layer of digital privacy that remains intact, even when conducting association business.



Case Participants

Petitioner Side

  • Oren Snir (Petitioner)

Respondent Side

  • George H. King (Board President)
    Gila Springs Association
  • Austin Baillio (Counsel)
    Gila Springs Association
  • Melissa Jordan (Managing Agent)
    PMG
  • Mary Joe Edel (Owner / Property Manager)
    PMG
    Spelled 'Adele' in the transcript but 'Edel' in the final decision document.
  • Maggie Story (Employee)
    PMG
  • Rhonda (Incumbent Board Member)
    Gila Springs Association

Neutral Parties

  • Nicole Robinson (Administrative Law Judge)
    Office of Administrative Hearings
    Issued scheduling order
  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge for the hearing and final decision
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Barbara Kunkel v. Agua Dulce Homeowners Association

Posted on by

Case Summary

Case ID 25F-H074-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2025-12-08
Administrative Law Judge ADS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Barbara Kunkel Counsel Pro Se
Respondent Agua Dulce Homeowners Association Counsel Sean K. Moynihan, Esq.

Alleged Violations

No violations listed

Audio Overview

Decision Documents

25F-H074-REL Decision – 1363718.pdf

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25F-H074-REL Decision – 1363721.pdf

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25F-H074-REL Decision – 1363722.pdf

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25F-H074-REL Decision – 1363723.pdf

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25F-H074-REL Decision – 1363728.pdf

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25F-H074-REL Decision – 1364435.pdf

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25F-H074-REL Decision – 1364438.pdf

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25F-H074-REL Decision – 1364440.pdf

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25F-H074-REL Decision – 1364441.pdf

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25F-H074-REL Decision – 1364442.pdf

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25F-H074-REL Decision – 1364444.pdf

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25F-H074-REL Decision – 1365902.pdf

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25F-H074-REL Decision – 1375623.pdf

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Briefing Document: Kunkel v. Agua Dulce Homeowners Association (No. 25F-H074-REL)

# Briefing Document: Kunkel v. Agua Dulce Homeowners Association (No. 25F-H074-REL)

## Executive Summary

This document provides a comprehensive analysis of the legal and administrative dispute between Petitioner Barbara Kunkel, former President of the Agua Dulce Homeowners Association (HOA), and the Association itself. The conflict centered on a recall effort initiated against Kunkel in mid-2025 and her subsequent allegations that the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to fulfill a formal records request.

The core of the dispute involved a disagreement over the timeline of the recall process—specifically, when the management company, Cadden Community Management, received the signed recall petition. Kunkel sought internal communications and metadata to prove a receipt date that would invalidate the recall meeting timing under A.R.S. § 33-1813. The Association, represented by legal counsel Sean K. Moynihan, argued that the records requested either did not exist or were never in the Association’s possession, particularly during a turbulent transition between management companies. 

On December 8, 2025, Administrative Law Judge (ALJ) Adam D. Stone denied Kunkel’s petition, concluding that while she may not have received the records, she failed to prove they were in the Association’s possession at the time of the request and was ultimately a "victim of bad timing" due to a management transition.

---

## Context and Core Conflict: The Recall Petition

In May 2025, members of the Agua Dulce HOA initiated a petition to recall Barbara Kunkel from her position as Director/President. The petition alleged several specific grievances regarding her leadership since the board's term began in 2025:

*   **Violations of Member Rights:** Abuse of power and holding illegal organizational meetings.
*   **Financial Mismanagement:** Incurring unauthorized legal expenses.
*   **Lack of Transparency:** Disseminating false information regarding Cadden Community Management and providing inaccurate information at board meetings.
*   **Information Withholding:** Failing to provide financial information during the management search process.

### Petition Signatories and Scope
The petition process involved a substantial portion of the community. A master list identifies 102 homeowners who signed the petition, representing streets such as Banner Mine Drive, Robert Daru Drive, Corgett Wash Court, and Winter Wash Drive. Signatures were collected and dated between May 27 and May 31, 2025.

---

## Detailed Analysis of Key Themes

### 1. The Statutory Framework (A.R.S. § 33-1805 and § 33-1813)
The legal dispute rested on two primary Arizona statutes:
*   **A.R.S. § 33-1805:** Mandates that all financial and other records of an association be made reasonably available for examination by members within 10 business days of a written request.
*   **A.R.S. § 33-1813:** Dictates the recall process. Specifically, once a valid petition is received, a special meeting must be called and held within 30 days. If the meeting is not held within this window, the board member is deemed removed by operation of law.

### 2. The Timeline and Receipt Controversy
A central point of contention was the exact date the Association (via Cadden Management) received the petition.
*   **Kunkel's Argument:** Petitioner argued that metadata and notations (regarding owner fine balances) suggested Cadden possessed the petition materials by **June 2, 2025**. If true, the 30-day deadline for the special meeting was July 2, 2025. Since the meeting occurred on July 3, 2025, Kunkel argued the process was procedurally flawed.
*   **Association's Defense:** Counsel Sean Moynihan argued the petition could not have been received on May 29 (as Kunkel initially suggested) because the final signature was not collected until **May 31, 2025**. The Association maintained official receipt occurred on **June 5, 2025**, making the July 3 meeting timely.

### 3. Management Transition Challenges
The dispute was complicated by the Association switching management companies from Cadden Community Management to Sienna Community Management on July 1, 2025. 
*   **Records Custody:** Sienna's manager, Jena Carpenter, testified that obtaining records from Cadden was "challenging." 
*   **The "Gap" in Possession:** The Association argued it could not produce emails or timestamped receipts held by Cadden that were never transferred to Sienna or the Board. Moynihan emphasized that A.R.S. § 33-1805 only applies to records actually in the Association’s possession.

---

## Chronology of Key Events (2025)

| Date | Event |
| :--- | :--- |
| **May 27–31** | Signatures collected for the recall of Barbara Kunkel. |
| **June 2** | Metadata suggests Cadden Management was processing petition-related data. |
| **June 5** | Association counsel claims official receipt of the petition. |
| **June 10** | Sean Moynihan emails the petition to Kunkel, advising her to resign "as soon as possible." |
| **June 25** | Kunkel submits the first official records request for the petition receipt proof. |
| **June 26** | Kunkel expands the request to include all emails between Cadden and homeowners regarding the recall. |
| **July 1** | Sienna Community Management officially takes over from Cadden. |
| **July 3** | Special meeting held; recall of Kunkel proceeds. |
| **July 7** | Kunkel issues a Statutory Violation Notice for unfulfilled records. |
| **July 21** | Kunkel files a petition with the Arizona Department of Real Estate (ADRE). |
| **Nov 21** | OAH Evidentiary Hearing held (Docket 25F-H074-REL). |
| **Dec 8** | ALJ Adam D. Stone issues a decision denying Kunkel's petition. |

---

## Important Quotes with Context

### On the Records Request Dispute
> "I have been forced to independently research metadata to determine internal document handling... Cadden Community Management never notified the Board of the petition’s receipt."
> — **Barbara Kunkel** (*July 7, 2025, email to the Board*).
> *Context: Kunkel expressing frustration that the management company she oversaw as President appeared to be withholding information from her regarding the effort to remove her.*

### On the Legal Obligation of the HOA
> "Section 33-1805 contains no language allowing the Association to refuse production because responsive records are 'held by a prior management company.'... The duty is on the Association."
> — **Barbara Kunkel** (*OAH Submission, Nov 2, 2025*).
> *Context: Kunkel's legal argument that a change in management does not absolve the HOA of its statutory duty to provide records.*

### On the Non-Existence of Records
> "Miss Kungle is asking for records that do not exist or if they do exist, they never came into the association's possession... the association had no obligation to make records it does not have reasonably available."
> — **Sean K. Moynihan** (*Hearing Testimony, Nov 21, 2025*).
> *Context: The Association's core defense that they cannot be held in violation for failing to provide documents they never received from the outgoing management firm.*

### The Judge's Conclusion
> "Unfortunately for Petitioner, she was simply the victim of bad timing... This may not be the Association’s fault if Cadden was uncooperative in disclosing the documents to Sienna and/or the Association."
> — **Judge Adam D. Stone** (*Findings of Fact, Dec 8, 2025*).
> *Context: The final ruling determining that a statutory violation did not occur because there was no proof the Association willfully withheld records it possessed.*

---

## Actionable Insights

### For Homeowners Associations
*   **Management Transitions:** Ensure that "books and records" transfer clauses in management contracts are robust. The transition from Cadden to Sienna created a "black hole" of documentation that led to costly litigation.
*   **Receipt Protocols:** Standard industry protocol, as noted by Jena Carpenter, includes date-stamping all incoming materials and maintaining a sign-in sheet. Implementing these practices consistently can prevent timeline disputes.
*   **Records Retention:** A.R.S. § 33-1813(G) requires the board to retain all records related to a recall. Associations must ensure these specific records are sequestered and accessible even during management changes.

### For Members Initiating Recalls
*   **Proof of Delivery:** When submitting a recall petition, members should use certified mail or obtain a signed, date-stamped receipt from the management company or board to establish an indisputable 30-day timeline.
*   **Scope of Requests:** Records requests under § 33-1805 should be specific. While Kunkel’s request was deemed "proper," her inability to prove the records existed within the Association's current files led to the dismissal of her case.







Study Guide: Kunkel v. Agua Dulce Homeowners Association

# Study Guide: Kunkel v. Agua Dulce Homeowners Association

This study guide provides a comprehensive overview of the legal dispute between Barbara Kunkel and the Agua Dulce Homeowners Association (HOA), specifically regarding records requests and statutory compliance during a board recall process.

## I. Key Concepts and Case Background

### 1. Statutory Framework for Planned Communities
The dispute is governed primarily by the Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Article 1. Two specific statutes are central to the case:
*   **A.R.S. § 33-1805:** Governs the inspection of financial and other records of an association. It requires associations to make records available within 10 business days of a written request.
*   **A.R.S. § 33-1813:** Outlines the procedure for the removal of a board member (recall). This includes specific timelines for calling a special meeting (30 days) and requirements for retaining recall-related records for inspection.

### 2. The Nature of the Dispute
The petitioner, Barbara Kunkel (former President of the Agua Dulce HOA), filed a petition alleging that the Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted on June 25 and 26, 2025. The records requested included:
*   Documentation showing the exact time and date Cadden Community Management received the recall petition.
*   Copies of all emails between management (Cadden) and homeowners regarding the recall.

### 3. The Management Transition Factor
A significant complicating factor in this case was the transition between property management companies. Cadden Community Management served the association until June 30, 2025, and Sienna Community Management took over on July 1, 2025. The Association argued that many of the requested records (specifically internal Cadden emails or logs) were never in the actual possession of the Association or the successor management company.

### 4. Judicial Outcome
The Office of Administrative Hearings (OAH) in Docket No. 25F-H074-REL issued a decision on December 8, 2025. Administrative Law Judge Adam D. Stone denied Kunkel's petition, finding that she did not meet the burden of proof to show that the specific documents requested existed and were being improperly withheld by the Association.

---

## II. Short-Answer Practice Questions

**1. According to A.R.S. § 33-1805, how many business days does an association have to provide copies of requested records?**
*Answer:* Ten business days.

**2. What was the specific date of the "Unfulfilled Records Request – Statutory Violation Notice" sent by Barbara Kunkel?**
*Answer:* July 7, 2025.

**3. What evidence did Barbara Kunkel cite to suggest the management company had possession of the petition earlier than acknowledged?**
*Answer:* Metadata and internal document annotations (specifically highlights made by "JoseB") showing activity on June 2, 2025, and May 30, 2025.

**4. Why did the Association’s counsel argue that the requested emails were "not association records"?**
*Answer:* Counsel argued that if the management company (Cadden) was working with homeowners "behind the association's back," those communications were records of Cadden, not the Association, and were never in the Association's possession.

**5. What is the maximum fee per page an association may charge for making copies of records under A.R.S. § 33-1805?**
*Answer:* Fifteen cents per page.

**6. Who was the Community Manager from Sienna Community Management who testified at the hearing?**
*Answer:* Jena Carpenter.

**7. What was the Association’s primary legal defense regarding the failure to produce a "timestamped receipt" of the petition?**
*Answer:* The Association argued that no such document was ever created or received by them, and they are not required to create a record that does not exist.

**8. What was the result of the Administrative Law Judge's decision regarding the civil penalty and filing fee?**
*Answer:* Both the request for a civil penalty and the request for reimbursement of the $500 filing fee were denied.

---

## III. Essay Prompts for Deeper Exploration

**1. The Burden of Proof in Administrative Hearings**
Analyze the Administrative Law Judge's finding that the Petitioner failed to meet her burden of proof. Discuss the challenges a member faces when requesting records that a management company claims do not exist or were never transferred during a transition. How does the "preponderance of the evidence" standard apply to internal metadata versus formal management denials?

**2. Agency and Responsibility in HOA Management**
Explore the legal relationship between an HOA Board and its management company as presented in the transcript. If a management company (an agent) receives a petition or conducts business related to the HOA, under what circumstances do those documents officially become "Association records"? Use the arguments from Sean Moynihan and Barbara Kunkel to contrast the "agent vs. entity" perspectives.

**3. Statutory Protection and Exceptions**
Examine A.R.S. § 33-1805(B). Discuss the categories of records that an Association is legally permitted to withhold. Based on the source context, why did Kunkel argue her request was "narrowly focused" to avoid these exceptions, and why did the Association still fail to provide the documents?

---

## IV. Glossary of Important Terms

| Term | Definition |
| :--- | :--- |
| **A.R.S. § 33-1805** | The Arizona statute requiring planned community associations to make financial and other records available to members within 10 business days. |
| **A.R.S. § 33-1813** | The Arizona statute governing the removal of board members (recall), including meeting timelines and record-keeping duties. |
| **ADRE** | Arizona Department of Real Estate; the state agency authorized to receive and decide petitions from HOA members. |
| **Cadden Community Management** | The management company that handled the Agua Dulce HOA affairs during the initial collection and receipt of the recall petition. |
| **JoseB (Jose Becerra)** | A Cadden representative whose metadata and highlights on the petition list were used as evidence regarding the receipt date of the recall materials. |
| **OAH** | Office of Administrative Hearings; the independent agency that conducts evidentiary hearings for the ADRE. |
| **Planned Community** | A real estate development (like Agua Dulce) where members are subject to CC&Rs and mandatory HOA membership. |
| **Preponderance of the Evidence** | The legal standard of proof required in this case, meaning the evidence shows a contention is "more probably true than not." |
| **Prima Facie Evidence** | Evidence that is sufficient to establish a fact or raise a presumption unless disproved or rebutted. |
| **Sienna Community Management** | The successor management company that took over the Agua Dulce HOA account on July 1, 2025. |
| **Special Meeting** | A meeting called specifically for the purpose of voting on the removal of a board member. |







The Metadata Mystery: A Deep Dive into the Agua Dulce HOA Records Dispute

# The Metadata Mystery: A Deep Dive into the Agua Dulce HOA Records Dispute

### 1. Introduction: The High Stakes of Homeowner Association Governance
In the high-pressure world of Arizona planned communities, the difference between a valid leadership transition and a legal quagmire often comes down to a single date on a calendar. For the Agua Dulce Homeowners Association in Tucson, the summer of 2025 became a masterclass in the technicalities of transparency. What began as a contentious effort to recall Association President Barbara Kunkel quickly devolved into a sophisticated legal battle over "behind-the-scenes" metadata and the definition of an official Association record.

At the heart of the dispute brought before the Arizona Office of Administrative Hearings (OAH) was a fundamental question: Did the Association violate **A.R.S. § 33-1805** by failing to produce internal management emails and timestamped receipts? As the case unfolded, it revealed how a poorly timed management transition can create a "transparency gap" that even the most forensic records request might struggle to bridge.

### 2. The Timeline of a Recall: May–July 2025
The core of the litigation hinged on the "receipt date" of the recall petition. This date is not merely administrative; under **A.R.S. § 33-1813(C)**, it triggers a strict 30-day statutory clock. If a board fails to hold a recall meeting within that window, the directors are deemed removed **by operation of law**.

**The Disputed Timeline**

| Event | Petitioner’s Claim (Kunkel) | Respondent’s Claim (HOA/Management) |
| :--- | :--- | :--- |
| **Receipt of Petition** | Claimed receipt on **May 29, 2025**. | Formally received Friday afternoon, **June 6, 2025**. |
| **Internal Handling** | PDF metadata shows "JoseB" (Jose Becerra of Cadden Management) annotating delinquency statuses on **May 30** and **June 2**. | Internal management work by Cadden did not constitute official Board possession until the final packet was transmitted on June 6. |
| **30-Day Deadline** | Calculated from May 29, the deadline was **June 28**. The July 3 meeting was therefore illegal. | Calculated from June 6, the **July 3** meeting fell within the valid 30-day window. |

**The Legal Consequence:** Had Kunkel proven the May 29 receipt date, the Board would have been removed automatically on June 29 for failing to hold the meeting in time. However, a "smoking gun" signature proved fatal to this claim: the final signature on the petition (Mark Unis) was dated **May 31, 2025**, making a May 29 delivery of the completed petition logically impossible.

### 3. The Legal Core: Understanding A.R.S. § 33-1805 and § 33-1813(G)
Kunkel argued that the Association’s failure to provide internal emails and receipts violated two distinct statutory mandates. While § 33-1805 provides the general framework for records, Kunkel contended that **A.R.S. § 33-1813(G)** creates a higher, specific duty to "retain and make available... all business and other records of the association" related to a recall.

**Member Rights & Board Obligations under § 33-1805:**
*   **10-Day Rule:** The Association must fulfill a request to examine records within **10 business days**.
*   **Copy Requirements:** Copies must be provided within **10 business days** of a purchase request, with fees capped at $0.15 per page.
*   **Broad Access:** All "financial and other records" must be made reasonably available unless a specific exception applies.

**Statutory Exceptions (Records that may be withheld):**
*   *Attorney-client privileged communications.*
*   *Records regarding pending litigation.*
*   *Minutes from executive sessions.*
*   *Personal, health, or financial records of individual members or employees.*
*   *Employee job performance records or specific personnel complaints.*

### 4. The Management Muddle: Cadden vs. Sienna
The dispute was exacerbated by what Administrative Law Judge Adam D. Stone called "bad timing." On July 1, 2025, the Association transitioned from **Cadden Community Management** to **Sienna Community Management**. This hand-off created a significant administrative hurdle.

Jena Carpenter, Sienna’s Community Manager, testified that the transition was "challenging." While Sienna attempted to secure all historical documents, she noted that Cadden’s records were sometimes **"filed oddly"** or appeared incomplete. The Association’s defense relied on the fact that if internal "surreptitious" emails or timestamped receipts existed within Cadden’s private servers, they never entered the **constructive possession** of the Board or the new management team, and thus could not be produced.

### 5. Inside the Hearing: The November 21st Virtual Showdown
The November 21st hearing was a technical battle over the definition of an "Association Record." 

*   **Barbara Kunkel’s Argument:** Kunkel used forensic metadata to show that Jose Becerra (Cadden) was highlighting owner names as "over 30" or "over 90" days delinquent as early as **May 30, 2025**. She argued this proved the management company—and by extension the Board—possessed the records. She demanded the "behind the scenes" emails between management and homeowners to verify the true timeline.
*   **Sean Moynihan’s Defense:** Representing the HOA, Moynihan argued that internal management emails and un-transmitted receipts do not automatically become "Association records" under § 33-1805. He maintained that the Association cannot be held in violation for failing to produce documents that were never in its possession during the transition. He emphasized that the Board cannot produce what it does not have.

### 6. The Verdict: Why the Judge Ruled for the HOA
On December 8, 2025, Judge Stone issued a decision denying Kunkel’s petition. The ruling hinged on the high bar for homeowners in administrative court.

> **The "Preponderance of the Evidence" Burden**
> In OAH hearings, the Petitioner bears the burden of proof. They must show it is "more probably true than not" that a violation occurred. Judge Stone ruled that while Kunkel showed that a file was *modified* early by a manager, she failed to provide **"persuasive evidence"** that a completed, signed petition—or the requested emails—ever existed in the Association’s actual possession.

The judge concluded that Kunkel was a **"victim of bad timing."** Because the Association changed management companies during the request window, and because there was no proof the Board was hiding documents it actually held, the HOA was found to be in compliance.

### 7. Key Takeaways for Homeowners and HOA Boards
This case serves as a vital roadmap for navigating records disputes and management transitions.

1.  **The Necessity of a "Certified Records Transfer":** When changing management companies, Boards should not assume all records are transferred. A certified audit and digital archive transfer are essential to ensure the Association retains "possession" of its history and avoids "bad timing" defenses.
2.  **Internal Manager Notes vs. Association Records:** Homeowners should recognize that internal management company emails and draft notes may not legally qualify as "Association records" until they are officially transmitted to the Board.
3.  **The Metadata Trap:** Metadata can show *when* a file was touched, but it cannot always prove *what* was in the file. Kunkel’s metadata showed work was being done, but the May 31 signature date on the petition itself was the more "dispositive" evidence.
4.  **Strict Adherence to Receipt Logs:** To avoid claims of removal by "operation of law," Boards should adopt Sienna’s policy: use sign-in sheets and physical date-stamps for every document received to create an unassailable paper trail.

### 8. Conclusion
The Agua Dulce dispute highlights the fragile nature of transparency in planned communities. While the Association was cleared of statutory violations, the "metadata mystery" underscores the need for absolute clarity in record-keeping. In the gap between one management company’s departure and another’s arrival, transparency often suffers. For Boards, the lesson is clear: rigorous document logging is the only defense against the confusion of a community in transition.



Case Participants

Petitioner Side

  • Barbara Kunkel (Petitioner)
    Agua Dulce Homeowners Association
    Former President of the board and property owner filing the petition

Respondent Side

  • Sean K. Moynihan (Counsel for Respondent)
    SMITH + WAMSLEY
    Attorney representing the Agua Dulce Homeowners Association
  • Jena Carpenter (Witness / Community Manager)
    Sienna Community Management
    Testified regarding the management company transition and records possession

Neutral Parties

  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who authored the decision
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Copied on tribunal orders and final decision

Scott D Haferkamp v Artisan Parkview Condominium Association, INC.

Posted on by

Case Summary

Case ID 25F-H047-REL
Agency —
Tribunal Arizona Office of Administrative Hearings
Decision Date 12/6/2025
Administrative Law Judge KAA
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Scott D. Haferkamp Counsel Pro Se
Respondent Artisan Parkview Condominium Association, Inc. Counsel Daniel S. Francom

Alleged Violations

No violations listed

Audio Overview

Decision Documents

25F-H047-REL Decision – 1341015.pdf

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25F-H047-REL Decision – 1346232.pdf

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25F-H047-REL Decision – 1375556.pdf

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Briefing Document: Scott D. Haferkamp v. Artisan Parkview Condominium Association, Inc.

# Briefing Document: Scott D. Haferkamp v. Artisan Parkview Condominium Association, Inc.

## Executive Summary

This document summarizes the administrative proceedings and final decision in Case No. 25F-H047-REL, heard before the Arizona Office of Administrative Hearings (OAH). The dispute involved Scott D. Haferkamp (Petitioner) and the Artisan Parkview Condominium Association, Inc. (Respondent or HOA).

The core of the conflict centered on the Petitioner's attempts to install solar panels and battery backup systems at his condominium unit, which the HOA repeatedly denied. The Petitioner sought relief through a formal petition filed with the Arizona Department of Real Estate (ADRE), alleging that the HOA failed to act on a homeowner petition from 2015 and failed to provide specific guidelines for solar technology, thereby creating a de facto ban on state-protected technology (A.R.S. § 33-439).

On December 6, 2025, Administrative Law Judge Kay A. Abramsohn issued a decision in favor of the HOA. The Tribunal concluded that the Petitioner failed to prove that the HOA violated its governing documents. The Judge ruled that the HOA board has the discretion to call special meetings and that the board's decision to address solar issues at a regular meeting rather than calling a special membership meeting did not constitute a violation of the Bylaws.

---

## Detailed Analysis of Key Themes

### 1. Interpretation of HOA Bylaws and Board Discretion
A primary point of contention was the interpretation of **Bylaws Section 2.2**, which governs the calling of special membership meetings. 

*   **Petitioner's Argument:** The Petitioner collected signatures from 25% of the homeowners, believing this mandated a special meeting to vote on solar guidelines. He argued that the HOA’s failure to hold such a meeting was a procedural violation.
*   **Respondent's Argument:** The HOA argued that the language of Section 2.2 ("Special meetings... may be called") is discretionary, not mandatory. They further contended that rule-making regarding solar guidelines is a Board function under Section 3.10, not a membership function.
*   **Tribunal Finding:** The Judge agreed with the Respondent, noting that the Bylaws grant the HOA discretion. By placing the solar issue on a regular board meeting agenda in September 2015, the HOA "implicitly declined" to call a special meeting.

### 2. Common Elements and Architectural Control
The HOA consistently justified its denials of solar applications by citing the preservation of "common elements."

*   **Roof and Exterior Walls:** The HOA asserted that the roofs and exterior walls are common elements collectively owned by the association. 
*   **Structural Integrity:** The Board President, Tim Pollock, testified that solar installations would involve puncturing the common roof, potentially voiding warranties and creating maintenance complications.
*   **Uniformity and Character:** The HOA argued that its duty includes protecting the uniform appearance and character of the community, which consists of 35 units in separate buildings.

### 3. State Law and "De Facto" Bans
The Petitioner alleged a violation of **A.R.S. § 33-439**, which protects the right of homeowners to use solar energy devices.

*   **Petitioner Position:** He claimed the HOA had enacted a "de facto ban" by denying three separate applications over 11 years without providing alternative solutions or clear guidelines.
*   **HOA Position:** The Board stated their decisions were not an "absolute ban" but were based on the unique constraints of a condominium where the infrastructure is shared. They claimed they remained open to alternative designs that did not encroach on shared areas.

### 4. Statute of Limitations and Procedural Laches
The HOA’s legal counsel raised a significant procedural defense regarding the age of the dispute.

*   **Historical Claims:** The primary homeowner petition in question was from 2015. The HOA argued that any claim regarding a failure to hold a meeting in 2015 was time-barred by Arizona’s statute of limitations (A.R.S. § 12-548 or 12-550).
*   **Ongoing Controversy:** The Petitioner argued the issue was ongoing because his solar applications continued to be denied as recently as 2025.

---

## Key Quotes with Context

| Quote | Speaker | Context |
| :--- | :--- | :--- |
| "I think that in general they've kind of enacted a de facto ban on a state protected technology." | Scott D. Haferkamp | During the pre-hearing conference, explaining his frustration with the HOA's lack of solar guidelines. |
| "A petition has to be narrowed down to you are alleging a specific violation of a particular statute or provision in the HOA declaration or CCNRs." | Judge Kay A. Abramsohn | Instructing the Petitioner on the necessity of specificity in administrative hearings. |
| "The Board’s decision does not constitute an absolute ban on solar devices. Rather, it reflects the unique constraints of a condominium in which the roofs and walls are collectively owned." | HOA Board (Letter) | Cited in the final decision as the justification for denying the Petitioner's February 2025 solar application. |
| "The Bylaws do not call for members to vote on amendments to Board rules or guidelines, and that members cannot force the Board to take action." | Daniel S. Francom (HOA Counsel) | Argument made during the hearing to differentiate between Board powers and Member powers. |
| "I have never seen that petition until yesterday when that was presented to me from Dan [HOA Counsel]." | Tim Pollock (HOA President) | Testifying under oath that he had no recollection of seeing the homeowner petition from 2015 until the current litigation began. |

---

## Chronology of Solar Applications and Denials

| Date | Event | Outcome |
| :--- | :--- | :--- |
| **Sept 2014** | First Solar Panel Application submitted by Petitioner. | **Denied** (Sept 26, 2014). |
| **Sept 2015** | Petitioner submits homeowner petition with 12 signatures (25%). | Discussed at Board meeting; no special meeting called. |
| **Aug 2024** | Application for Tesla battery backup installation. | **Denied** (Oct 4, 2024). |
| **Feb 2025** | Application for combined solar panels and battery backup. | **Denied** (March 4, 2025). |
| **March 2025** | Formal Petition filed with ADRE. | Case referred to OAH. |
| **Dec 2025** | Final Administrative Law Judge Decision. | **Petition Denied**; HOA prevailing party. |

---

## Actionable Insights

Based on the Tribunal's findings and the conduct of the case, the following insights are derived from the record:

*   **Clarity of Governing Documents:** Boards and homeowners must distinguish between mandatory actions (e.g., "shall") and discretionary actions (e.g., "may"). In this case, the word "may" in the Bylaws regarding special meetings gave the Board legal cover to decline the Petitioner's request.
*   **Documentation and Management:** The discrepancy regarding whether the Board President ever saw the 2015 petition highlights a potential failure in communication between the property management company (Vision Community Management) and the Board. Formal records of all homeowner petitions should be maintained and verified.
*   **Narrowing of Issues:** In OAH proceedings, a "one-issue" petition (which carries a $500 fee) must be strictly focused. The Petitioner's initial inclusion of 11 years of history and multiple grievances was procedurally trimmed to a single focus: the 2015 petition and the lack of solar guidelines.
*   **Burden of Proof:** The Petitioner in an administrative hearing bears the burden of proving a violation by a "preponderance of the evidence." Merely showing that an HOA's decision was frustrating or lacked transparency is insufficient if it does not violate a specific provision of the CC&Rs, Bylaws, or state law.
*   **Solar Policy Proactivity:** To avoid litigation, associations may benefit from adopting proactive solar guidelines that define what constitutes an "undue burden" on common elements, rather than reacting to applications on a case-by-case basis.







Case Study Guide: Haferkamp v. Artisan Parkview Condominium Association

# Case Study Guide: Haferkamp v. Artisan Parkview Condominium Association

This study guide provides a comprehensive overview of the administrative legal proceedings in the matter of *Scott D. Haferkamp v. Artisan Parkview Condominium Association, Inc.* (Case No. 25F-H047-REL). It covers the procedural history, core legal arguments regarding homeowner association (HOA) governance, and the final administrative decision.

## 1. Case Overview and Key Entities

### Core Dispute
The Petitioner, Scott D. Haferkamp, alleged that the Artisan Parkview Condominium Association (the Respondent) violated state statutes and its own governing documents by failing to act on a homeowner petition and by refusing to provide clear guidelines or rules for the installation of solar technology.

### Key Entities
| Entity | Role/Description |
| :--- | :--- |
| **Scott D. Haferkamp** | Petitioner; a homeowner in the Artisan Parkview Condominium Association. |
| **Artisan Parkview Condominium Association** | Respondent; a 35-unit residential development in Phoenix, Arizona. |
| **Tim Pawlak** | President of the HOA Board (served for 21 years at the time of the hearing). |
| **Arizona Dept. of Real Estate (ADRE)** | The state agency that receives and processes HOA petitions before forwarding them for hearing. |
| **Office of Administrative Hearings (OAH)** | An independent state agency that conducts evidentiary hearings for the ADRE. |
| **Kay A. Abramsohn** | The Administrative Law Judge (ALJ) who presided over the case and issued the final decision. |
| **Vision Community Management** | The property management company representing the HOA. |

---

## 2. Key Concepts and Legal Framework

### The "One-Issue" Rule
Pursuant to Arizona administrative procedures, a petitioner filing with the ADRE must pay a filing fee (in this case, $500.00) for a "one-issue" petition. Although the Petitioner’s initial filing contained multiple concerns spanning over a decade, he was required to narrow his focus to a single issue for the hearing: **The lack of action on a signed homeowner petition and the board's failure to provide solar guidelines.**

### Governing Documents
*   **CC&Rs (Covenants, Conditions, and Restrictions):** The primary deed restrictions governing the community. Article 8.4 gives the board authority to adopt rules regarding common elements.
*   **Bylaws:** The rules governing the administration of the association. 
    *   **Section 2.2 (Special Meetings):** Provides that special meetings of the members may be called by a written request signed by members representing at least 25% of eligible votes.
    *   **Section 3.10 (Powers and Duties):** Outlines the board's authority to adopt and publish rules and regulations.

### Statutory References
*   **ARS § 33-439:** Arizona statute regarding solar energy devices and the limitations associations can place on them.
*   **ARS § 32-2199 et seq.:** The statutes authorizing the ADRE to hear disputes between homeowners and associations.
*   **ARS § 44-1761:** Provides the definition of a "solar device," which the Petitioner argued includes battery backup systems (e.g., Tesla batteries).

---

## 3. Timeline of Significant Events

*   **2003:** Artisan Parkview Condominium Association is established; Tim Pawlak joins the board.
*   **September 2014:** Petitioner’s first application for solar panels is denied due to "common element" (roof) restrictions.
*   **2014–2015:** Petitioner collects signatures from 12 owners (exceeding the 25% threshold for the 35-unit community) to request a meeting/vote on solar panels.
*   **September 2, 2015:** Community Manager emails Petitioner stating solar will be discussed at the next board meeting.
*   **September 24, 2015:** The Board holds a meeting with legal counsel present. Solar is discussed but tabled; no special member meeting is called.
*   **August 15, 2024:** Petitioner applies to install Tesla batteries; the application is denied on October 4, 2024, citing aesthetic impact.
*   **February 2, 2025:** Petitioner submits a combined application for solar panels and battery backup.
*   **March 4, 2025:** HOA denies the combined application, citing structural integrity, roof warranties, and the shared nature of the walls and roof.
*   **March 20, 2025:** Petitioner files his formal petition with the ADRE.
*   **October 21, 2025:** The OAH conducts the formal evidentiary hearing.
*   **December 6, 2025:** ALJ Kay A. Abramsohn issues the final decision in favor of the HOA.

---

## 4. Short-Answer Practice Questions

**Q1: What was the primary reason the HOA gave for denying solar panel installations on the condominium roofs?**
**Answer:** The HOA contended that the roofs and exterior walls are "common elements" owned collectively by the association. They argued that punctures for solar attachments would void roof warranties and create maintenance complications.

**Q2: According to Section 2.2 of the HOA Bylaws, what percentage of member signatures is required to request a special meeting?**
**Answer:** At least 25% of the total number of eligible votes.

**Q3: How did the ALJ interpret the Board's decision to place the solar issue on a regular board meeting agenda rather than calling a special member meeting?**
**Answer:** The ALJ ruled that by placing the issue on the regular agenda, the Board "implicitly declined" to call a special meeting, which was within their discretionary power.

**Q4: Why was the Petitioner forced to narrow his case to a "single issue" before the hearing?**
**Answer:** Because he had filed a "one-issue" petition and paid the corresponding $500.00 fee. OAH procedures require that the scope of the hearing match the filing fee and petition type.

**Q5: What was the Respondent’s argument regarding the "statute of limitations"?**
**Answer:** The Respondent argued that the claims regarding the 2015 petition were more than 10 years old and thus "extinguished" under Arizona law (ARS 12-548 or 12-550), as the statute of limitations for breach of contract is typically six years.

---

## 5. Essay Prompts for Deeper Exploration

### Prompt 1: Board Discretion vs. Member Mandate
Analyze the distinction between "Board Business" and "Member Business" as presented in the case. In his closing argument, the Respondent’s attorney argued that the Petitioner's request (adopting solar guidelines) was a board function under Section 3.10 of the Bylaws, not a member function. Explain how this distinction influenced the ALJ’s decision regarding the 25% signature petition.

### Prompt 2: Common Elements and Technology Protection
The Petitioner argued that the HOA’s refusal to allow solar panels constituted a "de facto ban" on a state-protected technology (ARS § 33-439). However, the HOA argued that the unique nature of condominiums—where roofs are shared common elements—supersedes an individual's right to install such devices if they compromise the structure. Discuss the tension between state laws protecting green technology and the contractual obligations of condominium owners to preserve common property.

### Prompt 3: Procedural Fidelity and Evidence
Review the testimony regarding the September 2015 board meeting. The Petitioner claimed he did not recall an attorney being present or solar being discussed in detail, while the HOA provided minutes and testimony to the contrary. Evaluate the importance of "Administrative Notice" and the role of contemporaneous documentation (like meeting minutes) in resolving conflicting testimonies in an administrative hearing.

---

## 6. Glossary of Important Terms

*   **Administrative Law Judge (ALJ):** A judge who moves over administrative hearings, specializing in disputes involving state agency regulations.
*   **ARS (Arizona Revised Statutes):** The codified laws of the state of Arizona.
*   **Common Elements:** Parts of a condominium project (like roofs, hallways, and exterior walls) that are owned collectively by all unit owners or the association rather than by an individual.
*   **Continuance:** The postponement of a legal hearing to a future date.
*   **Design Review Application:** A formal request by a homeowner to the HOA's architectural committee to make changes to the exterior of their property.
*   **Evidentiary Hearing:** A formal proceeding where both parties present witnesses and exhibits under oath to establish facts.
*   **Pre-hearing Conference:** A preliminary meeting (often virtual) to clarify issues, discuss potential motions, and set the schedule for the formal hearing.
*   **Preponderance of the Evidence:** The legal standard of proof in civil and administrative cases; it means that a fact is "more probably true than not."
*   **Statute of Limitations:** A law that sets the maximum time after an event within which legal proceedings may be initiated.
*   **Tribunal:** A person or institution with authority to judge, adjudicate on, or determine claims or disputes.







Solar Rights vs. Shared Roofs: Lessons from the Haferkamp v. Artisan Parkview Dispute

# Solar Rights vs. Shared Roofs: Lessons from the Haferkamp v. Artisan Parkview Dispute

### 1. Introduction: The High-Stakes Collision of Green Energy and Community Living
For homeowners in managed associations, the promise of sustainable technology often runs headlong into the rigid framework of collective governance. This tension is magnified in condominium settings, where the very air above a unit is often a "common element" owned by all. In the matter of *Scott D. Haferkamp v. Artisan Parkview Condominium Association, Inc.*, a decade-long war of attrition over rooftop solar panels finally culminated in a significant legal clarification by the Arizona Department of Real Estate (ADRE).

At the heart of the dispute was a fundamental question of governance: Can a homeowner compel an HOA Board to adopt specific solar guidelines through a membership petition? Following an evidentiary hearing in late 2025, the Administrative Law Judge (ALJ) issued a decision that reaffirms the expansive discretionary powers of HOA boards, providing a stark lesson in the procedural hurdles facing "green" initiatives in shared-roof communities.

### 2. A Decade-Long Timeline: From First Application to Final Hearing
The conflict at Artisan Parkview was not a sudden flare-up but a persistent struggle that spanned over ten years of applications, petitions, and board-level friction:

*   **September 2014:** Haferkamp submitted his initial design application for solar panels. The Board denied it, citing concerns over penetrations into "common element" roofing.
*   **September 2015:** Haferkamp submitted a homeowner petition with **12 signatures** (representing approximately 34% of the 35-unit community) seeking a meeting and vote on solar guidelines.
*   **September 24, 2015:** At a formal Board meeting, the directors discussed the legalities of solar installation with counsel but took no specific action, effectively tabling the issue.
*   **August 2024 – February 2025:** After years of quiet, Haferkamp submitted new applications for Tesla battery backups and combined solar/battery systems. Both were denied.
*   **March 20, 2025:** Haferkamp formally filed his dispute with the ADRE under **ARS § 32-2199.05**, the statute authorizing the Department to hear such community disputes.
*   **October 21, 2025:** The Office of Administrative Hearings (OAH) conducted the final evidentiary hearing to resolve the narrowed legal question.

### 3. The Homeowner’s Argument: Seeking Transparency and Progress
Petitioner Scott Haferkamp presented himself as a frustrated pioneer, arguing that the Board’s persistent inaction constituted a systemic failure to respect member rights. His arguments focused on three primary claims:

*   **The "De Facto Ban":** Haferkamp alleged the HOA maintained an unlawful "de facto ban" on solar technology, violating **ARS § 33-439**, which protects the use of solar energy devices from unreasonable HOA restrictions.
*   **Ignored Mandates:** He highlighted the Board’s failure to call a special meeting after receiving a signed petition from over 25% of the community. He noted the internal community support for the initiative, pointing out that even **Board Member Eric Ferguson signed the petition** despite Ferguson’s own prior votes as a director to deny the applications.
*   **Feasibility and Guidelines:** Haferkamp introduced solar guidelines from California jurisdictions to demonstrate that installation on shared roofs is structurally feasible and standard practice in other regions. He argued the Board was derelict in its duty by not providing its own alternative guidelines.

### 4. The HOA’s Defense: Protecting the "Common Elements"
The Association, represented by Board President Tim Pawlak and legal counsel, argued that the Board’s denials were not a rejection of solar technology itself, but a necessary protection of the community’s shared assets. Their defense relied on:

*   **Structural Integrity:** The Board feared that roof penetrations by individual owners would void manufacturer warranties and create long-term maintenance liabilities for the Association.
*   **Aesthetics & Character:** As a 35-unit complex with a uniform architectural style, the Board argued it had the duty to maintain the community’s character.
*   **Jurisdictional Authority:** The HOA contended that adopting architectural rules is "Board Business," not "Member Business." They argued that while members can petition for a meeting, they cannot use that meeting to usurp the Board's discretionary rulemaking authority.
*   **Implicit Denial:** The HOA argued that by placing the solar issue on the September 2015 agenda and discussing it with counsel, they had formally "considered" the petition. Their subsequent inaction was not an "ignored" request, but an "implicit denial" of the demand for a special meeting.

### 5. The "One-Issue" Rule and Procedural Nuances
The OAH operates under strict procedural constraints, particularly regarding the "One-Issue Rule." Because Haferkamp filed under the **$500 filing fee** level at the Department of Real Estate, he was legally restricted to a single central claim. 

While Haferkamp’s original filing was a sprawling **147-page document** detailing a decade of grievances, the ALJ forced him to narrow the focus to a single issue: *"Lack of action on a signed homeowner petition and the HOA/board not providing guidelines/rules for solar."* Furthermore, the ALJ clarified that the OAH lacks the authority to order mediation or award financial damages; its role is strictly limited to determining if a violation of community documents or state statutes occurred.

### 6. The Verdict: Why the HOA Prevailed
On December 6, 2025, the ALJ issued a decision in favor of Artisan Parkview, ruling that the Board had not violated its governing documents. The decision hinged on the legal distinction between a board's duty to listen and its duty to act.

> **ALJ Interpretation of Bylaws Article II, Section 2.2**
> "The hearing evidence clearly demonstrates the HOA has discretion whether or not to call a special members meeting. The hearing record does not contain a specific written denial by the Board to call a special meeting; however, by placing the issue of solar installation on the September 24, 2015 Board meeting agenda, HOA had **implicitly declined** to call a special meeting at that time." (Conclusion of Law #6)

The judge further concluded that a Board's choice not to adopt specific rules does not constitute a violation of governing documents if the Board retains the authority to manage common elements at its discretion.

### 7. Key Takeaways for Homeowners and HOA Boards
This case serves as a vital case study for community associations navigating the transition to green energy:

1.  **Discretion vs. Mandate:** There is a sharp legal line between "Member Business" (e.g., electing directors) and "Board Business" (e.g., architectural rulemaking). Boards generally cannot be compelled by petition to adopt specific administrative rules.
2.  **The Common Element Barrier:** Condominium solar rights are vastly different from single-family home rights. Because the roof is a "common element," the Association's duty to maintain structural integrity often overrides an individual's desire for solar installation.
3.  **Procedural Precision is Fatal:** Haferkamp’s petition was ultimately deemed **defective** for its purpose. It requested a general "meeting/vote" on rules rather than proposing a specific, formal amendment to the CC&Rs that the membership actually had the authority to pass.
4.  **The Power of Minutes:** The HOA successfully defeated the claim of "inaction" because they could produce meeting minutes from 2015 showing they had discussed the issue with counsel. In the eyes of the law, "considering and rejecting" is a form of action.

### 8. Conclusion: The Path Forward
The ALJ’s ruling stands as a **Recommended Decision** for the Commissioner of the Arizona Department of Real Estate. While the HOA was named the prevailing party, the legal process allows for a final check: under **ARS § 41-1092.09**, the petitioner has 30 days to request a rehearing with the Commissioner.

Though the Association won on procedural and discretionary grounds, the Board indicated a theoretical openness to "alternative designs" that do not penetrate shared roofs or exterior walls. For homeowners at Artisan Parkview and beyond, the message is clear: the path to green energy in a condominium requires less of a "petition for rules" and more of a "technical design" that leaves the common elements untouched.



Case Participants

Petitioner Side

  • Scott D. Haferkamp (Petitioner)
    Homeowner representing himself in the proceeding.

Respondent Side

  • Daniel S. Francom (Attorney)
    Artisan Parkview Condominium Association, Inc.
    Legal counsel representing the HOA.
  • Tim Pawlak (HOA Board President)
    Artisan Parkview Condominium Association, Inc.
    Served on the HOA board for 22 years and testified as a witness.
  • Eric Ferguson (Former Board Member)
    Artisan Parkview Condominium Association, Inc.
    Served on the board in 2014 and signed the homeowner petition.
  • Clint Goodman (Attorney)
    Goodman Law Firm
    Represented the HOA during the 2015 board meeting regarding solar installations.

Neutral Parties

  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who issued the decision.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmittal of the administrative decisions.

Jeremy Whittaker vs Val Vista Lakes Community Association

Posted on by

Case Summary

Case ID 25F-H049-REL
Agency —
Tribunal —
Decision Date 2025-12-02
Administrative Law Judge ADS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Jeremy Whittaker Counsel Pro Se
Respondent Val Vista Lakes Community Association Counsel B. Austin Baillio (Maxwell & Morgan, P.C.)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H049-REL Decision – 1325671.pdf

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25F-H049-REL Decision – 1326128.pdf

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25F-H049-REL Decision – 1327595.pdf

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25F-H049-REL Decision – 1328824.pdf

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25F-H049-REL Decision – 1340610.pdf

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25F-H049-REL Decision – 1341273.pdf

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25F-H049-REL Decision – 1341623.pdf

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25F-H049-REL Decision – 1346067.pdf

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25F-H049-REL Decision – 1346912.pdf

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25F-H049-REL Decision – 1350318.pdf

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25F-H049-REL Decision – 1355212.pdf

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25F-H049-REL Decision – 1367233.pdf

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25F-H049-REL Decision – 1374019.pdf

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Briefing Doc – 25F-H049-REL


Briefing Document: Analysis of Whitaker v. Val Vista Lakes Community Association Hearing

Executive Summary

This document synthesizes testimony and arguments from the administrative hearing in the matter of Whitaker v. Val Vista Lakes Community Association (Docket 25F-H049-REL). The central issue is an alleged violation of Arizona Revised Statute (ARS) § 33-1811, which governs conflicts of interest for board members of homeowners associations. The petitioner, Jeremy Whitaker, alleges that board members Diana Evershower and Brody Herado failed to properly declare conflicts of interest arising from their familial relationships with Jonathan Evershower, a partner at the association’s legal counsel, Carpenter Hazlewood Delgado Bolan (CHDB).

The petitioner contends that numerous actions for compensation involving CHDB—including new engagements, litigation directives, rate increases, and invoice approvals—were undertaken without the required per-issue conflict declarations in an open meeting, as mandated by statute. The respondent, Val Vista Lakes, counters that the statute places the onus on individual directors, not the association, and that no violation occurred because there was no direct financial or other tangible benefit to the directors or their relative. Furthermore, the respondent argues that potential conflicts were disclosed, and that sensitive legal matters are appropriately handled in executive session to protect attorney-client privilege. The hearing featured conflicting testimony from current and former board members, centering on the interpretation of “benefit” under the statute, whether required disclosures were ever made publicly, and the procedural validity of the association’s engagement with its legal counsel.

Central Dispute: Interpretation and Application of ARS § 33-1811

The core of the case revolves around the specific requirements of ARS § 33-1811. The statute dictates that if a board action for compensation would “benefit” a director or their immediate family (including a spouse or child), that director “shall declare a conflict of interest for that issue.” The statute further specifies the declaration must be made “in an open meeting of the board of directors before the board discusses or takes action on that issue.”

Petitioner’s Position

• Per-Transaction Disclosure: The petitioner argues, citing the Arizona Court of Appeals case Arizona’s Biltmore Hotel Villas v. Tomlinfinny, that conflict disclosures must be transaction-specific and contemporaneous. A single, past disclosure is legally insufficient to cover all future actions.

• Broad Definition of “Benefit”: The word “financial” does not appear in the statute. The petitioner posits that “benefit” encompasses more than direct pecuniary gain, including reputational enhancement, shared overhead costs, and the overall economic health of the law firm, which benefits all partners.

• Open Meeting Mandate is Absolute: Disclosures made in executive session or implied through email votes do not satisfy the statute’s explicit “open meeting” requirement. The petitioner asserts that the proper procedure is to declare the conflict in an open session before recessing to an executive session for privileged discussion.

• Association Liability: The actions were taken by individuals acting in their official capacity as board members, making the association liable for the violations.

Respondent’s Position

• No Association Duty: The respondent’s counsel argues that ARS § 33-1811 imposes a duty on individual board members, not the association as an entity. Therefore, the association cannot, as a matter of law, violate the statute.

• No Proven Benefit: The central defense is that no benefit accrued to the directors or their relative. Testimony asserts Jonathan Evershower is a “named partner” but not a shareholder, receives no bonuses, and his salary is derived solely from his own billable hours on matters unrelated to Val Vista Lakes.

• Conflict with Attorney-Client Privilege: The respondent contends that forcing disclosures of legal engagements into open session would conflict with ARS § 33-1804, which authorizes legal discussions in executive session to protect attorney-client privilege.

• Superior Court Precedent: Counsel claims a Maricopa County Superior Court judge has already ruled in a related matter (Nathan Brown lawsuit) that no violation of the statute occurred.

The Alleged Conflict of Interest

The conflict centers on two board members and their relationship to a partner at the CHDB law firm.

• Diana Evershower: Board Treasurer and mother of Jonathan Evershower.

• Brody Herado: Board member and husband of Jonathan Evershower.

• Jonathan Evershower: Identified as a “named partner” at CHDB Law. Testimony indicates he is not a shareholder, receives no bonuses, and his compensation is based on his personal billable hours for clients other than Val Vista Lakes. He does not perform any work for the Val Vista Lakes account.

Key Areas of Contention and Evidence

1. The Nature of “Benefit”

A significant portion of testimony was dedicated to defining whether Jonathan Evershower and, by extension, his family on the board, benefited from CHDB’s work for the association.

Arguments for Benefit (Petitioner)

Arguments Against Benefit (Respondent)

Reputational Benefit: Witness Bill Satell, an attorney and former board president, testified that securing a large client like Val Vista Lakes (over 2,000 members) provides a significant “reputational benefit” that helps the firm attract more clients. He cited a CHDB legal brief where the firm touted itself as “one of the largest community association law firms in the southwest” as evidence of this marketing advantage.

No Financial Link: Brody Herado and Diana Evershower testified that their relative receives no direct financial gain, bonuses, or partnership distributions from Val Vista Lakes’ business. His salary is described as entirely separate from this revenue stream.

Shared Overhead and Firm Viability: Mr. Satell and Mr. Thompson testified that revenue from any client contributes to the firm’s overall health, paying for shared overhead (rent, utilities, malpractice insurance) and ensuring its continued existence, which benefits all partners.

Speculative and Intangible: Respondent’s counsel dismissed the idea of “reputational benefit” as vague, speculative, and not the intended scope of the statute, which was designed to prevent kickback schemes.

Statutory Language: The petitioner repeatedly emphasized that the statute uses the word “benefit” without the qualifier “financial,” implying a broader legislative intent.

“Amazon” Analogy: Respondent’s counsel offered a hypothetical: if a board member worked for Amazon, they would not be expected to declare a conflict every time the association bought lake chemicals from Amazon, as the benefit is too remote.

2. The Disclosure Controversy

Whether any valid disclosures were ever made is a central factual dispute.

• Petitioner’s Evidence: The petitioner claims that despite subpoenas for all open meeting conflict declarations and a review of all open meeting video recordings, the respondent produced no evidence of a valid, per-issue declaration being made in an open meeting. Witnesses Sharon Maiden and Mark Thompson testified they never saw such a disclosure.

• Respondent’s Evidence:

◦ Brody Herado and Diana Evershower testified they did disclose their “potential conflict” or relationship multiple times.

◦ Specific instances cited include a town hall meeting, a board training session, and a February 2023 or 2024 open meeting regarding the renewal of a contract for the management company, First Service Residential (FSR).

◦ However, both witnesses were unable to provide specific dates or point to meeting minutes or videos for most other alleged disclosures, particularly those related to specific legal engagements.

◦ A key piece of evidence introduced by the petitioner is a legal brief from a prior hearing (Exhibit C) where the respondent’s counsel, Joshua Bolan, stated that Mr. Herado and Mrs. Evershower “disclose[d] their conflict to the newly elected board as required by Arizona law” in the “first executive session.”

3. Procedural and Contractual Disputes

The process by which CHDB was engaged and compensated was heavily scrutinized.

• The 2005 Engagement Letter: The respondent claims a 2005 engagement letter with Carpenter Hazelwood (CHDB’s predecessor) remains in effect and authorizes ongoing legal work without new board votes. Former board presidents Satell and Maiden testified that during their tenures, other firms were appointed as general counsel, superseding any prior agreement, and that they were unaware of the 2005 letter. The petitioner notes the letter is unsigned by any association representative and is not supported by any meeting minutes.

• Executive Session and Email Votes: Testimony and exhibits (emails, executive session minutes) showed that decisions to engage CHDB for specific matters, such as the Nathan Brown lawsuit, were made either via unanimous consent emails or in executive session. This prevented any possibility of an open meeting disclosure before the board acted.

• Rate Increases: Former director Mark Thompson testified that a CHDB rate sheet proposing new 2025 rates was provided to the board as part of an executive session packet and was never discussed in an open meeting. He affirmed that this constituted an “action for compensation” under the statute.

• Insurance Company Engagement: For the Nathan Brown lawsuit, the respondent argues the ultimate decision to hire CHDB was made by the association’s insurance carrier, not the board, thereby negating any conflict. The petitioner and witness Sharon Maiden counter-testified that the board first voted to engage CHDB on the matter in December 2023, months before it was turned over to insurance in February 2024.

Summary of Key Witness Testimonies

Witness

Key Testimony Points

Brody Herado

Board Member

Acknowledged his husband is a partner at CHDB but claimed there is no actual conflict due to a lack of financial benefit. Testified he disclosed the relationship in open and executive sessions “multiple times,” specifically citing a February 2023/2024 FSR meeting, but could not recall other specific dates.

Diana Evershower

Board Treasurer

Stated she does not believe a conflict exists but disclosed a “potential conflict” as advised during a board training. Denied personally approving a CHDB invoice despite her name appearing on the general ledger. Claimed disclosures were made but could not provide specific dates or meeting minutes.

Bill Satell

Former President, Attorney

Opined that a conflict exists under a broad reading of “benefit,” including reputational gain. Testified CHDB was not general counsel during his tenure and was superseded by other firms.

Sharon Maiden

Former President

Testified CHDB was not general counsel during her tenure. Stated she never witnessed Herado or Evershower make an open meeting conflict declaration on a CHDB matter. Confirmed votes to engage CHDB were taken in executive session or via email. Described a scheduled open meeting to discuss the conflict being canceled after the board majority became “unavailable.”

Mark Thompson

Former Director

Testified he never witnessed an open meeting declaration by Herado or Evershower regarding CHDB. Confirmed a CHDB rate sheet was discussed exclusively in executive session. Stated he received a letter from CHDB’s counsel, Joshua Bolan, which he perceived as threatening and intimidating regarding his testimony.


Questions

Question

If a board member's relative works for a vendor hired by the HOA, is that automatically a conflict of interest requiring disclosure?

Short Answer

Not necessarily. The ALJ ruled that if there is no evidence the relative received specific additional compensation (like a bonus or raise) from the contract, a violation may not exist.

Detailed Answer

The ALJ determined that a conflict of interest under A.R.S. § 33-1811 requires evidence that the specific contract or decision resulted in compensation for the relative. In this case, testimony indicated the relative received a salary based on their own billable hours, not the HOA's contract.

Alj Quote

Mr. Whittaker did not present any evidence that Mr. Ebertshauser received any additional compensation such as a raise, a bonus or other incentive from CHDB Law once they were hired by Val Vista Lakes.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • vendor contracts
  • compensation

Question

Does a law firm paying for a relative's office space or insurance count as 'compensation' that triggers a conflict of interest?

Short Answer

No. The ALJ distinguished between a 'benefit' (like overhead) and 'compensation,' ruling that the statute requires the latter.

Detailed Answer

The decision clarified that while professional overhead provided by a firm is a benefit to an employee/partner, it does not constitute 'compensation' under the statute's requirement for a 'contract, decision or other action for compensation.'

Alj Quote

Further, the fact that a law firm pays for malpractice insurance, or an office space, is not compensation, rather it is a benefit.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • legal definitions
  • financial benefit

Question

Is a board member legally required to abstain from voting if they have a conflict of interest?

Short Answer

No. While the ALJ noted it is a 'best practice' to abstain, the statute only mandates disclosure, not recusal.

Detailed Answer

The decision clarifies that Arizona law requires a board member to declare the conflict in an open meeting before the discussion or action, but it explicitly permits them to vote on the issue after doing so.

Alj Quote

Admittedly, the best practice of a Board member would be to abstain from voting, however, the statute does not require the same.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • board ethics
  • abstention

Question

Does the type of partnership a relative holds in a firm matter for conflict of interest purposes?

Short Answer

Yes. The ALJ indicated that a 'true shareholder with profit sharing' would create a conflict, whereas a partner receiving only a salary might not.

Detailed Answer

The ALJ distinguished between partners who share in the firm's overall profits (which would be affected by the HOA contract) and those who are salaried based on their own work. Without evidence of profit sharing, the conflict was not proven.

Alj Quote

If Mr. Ebertshauser was a sole practitioner and/or a true shareholder with profit sharing, there would absolutely be a conflict of interest which would need to be disclosed by Ms. Ebertshauser and Mr. Hurtado.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • profit sharing
  • corporate structure
  • conflict of interest

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof by a preponderance of the evidence.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statute or governing documents. In this case, the Petitioner failed to demonstrate the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1811 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I recover my filing fee if I lose my hearing against the HOA?

Short Answer

No. The filing fee is only awarded if the Petitioner prevails.

Detailed Answer

Because the tribunal denied the petition, the homeowner was not entitled to reimbursement of the $500 filing fee.

Alj Quote

IT IS ORDERED that Petitioners’ petition is denied as to a violation of A.R.S. 33-1811, and Petitioner is not entitled to his filing fee of $500.00.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • filing fees
  • penalties

Case

Docket No
25F-H049-REL
Case Title
Jeremy Whittaker v. Val Vista Lakes Community Association
Decision Date
2025-12-02
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

If a board member's relative works for a vendor hired by the HOA, is that automatically a conflict of interest requiring disclosure?

Short Answer

Not necessarily. The ALJ ruled that if there is no evidence the relative received specific additional compensation (like a bonus or raise) from the contract, a violation may not exist.

Detailed Answer

The ALJ determined that a conflict of interest under A.R.S. § 33-1811 requires evidence that the specific contract or decision resulted in compensation for the relative. In this case, testimony indicated the relative received a salary based on their own billable hours, not the HOA's contract.

Alj Quote

Mr. Whittaker did not present any evidence that Mr. Ebertshauser received any additional compensation such as a raise, a bonus or other incentive from CHDB Law once they were hired by Val Vista Lakes.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • vendor contracts
  • compensation

Question

Does a law firm paying for a relative's office space or insurance count as 'compensation' that triggers a conflict of interest?

Short Answer

No. The ALJ distinguished between a 'benefit' (like overhead) and 'compensation,' ruling that the statute requires the latter.

Detailed Answer

The decision clarified that while professional overhead provided by a firm is a benefit to an employee/partner, it does not constitute 'compensation' under the statute's requirement for a 'contract, decision or other action for compensation.'

Alj Quote

Further, the fact that a law firm pays for malpractice insurance, or an office space, is not compensation, rather it is a benefit.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • legal definitions
  • financial benefit

Question

Is a board member legally required to abstain from voting if they have a conflict of interest?

Short Answer

No. While the ALJ noted it is a 'best practice' to abstain, the statute only mandates disclosure, not recusal.

Detailed Answer

The decision clarifies that Arizona law requires a board member to declare the conflict in an open meeting before the discussion or action, but it explicitly permits them to vote on the issue after doing so.

Alj Quote

Admittedly, the best practice of a Board member would be to abstain from voting, however, the statute does not require the same.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • board ethics
  • abstention

Question

Does the type of partnership a relative holds in a firm matter for conflict of interest purposes?

Short Answer

Yes. The ALJ indicated that a 'true shareholder with profit sharing' would create a conflict, whereas a partner receiving only a salary might not.

Detailed Answer

The ALJ distinguished between partners who share in the firm's overall profits (which would be affected by the HOA contract) and those who are salaried based on their own work. Without evidence of profit sharing, the conflict was not proven.

Alj Quote

If Mr. Ebertshauser was a sole practitioner and/or a true shareholder with profit sharing, there would absolutely be a conflict of interest which would need to be disclosed by Ms. Ebertshauser and Mr. Hurtado.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • profit sharing
  • corporate structure
  • conflict of interest

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof by a preponderance of the evidence.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statute or governing documents. In this case, the Petitioner failed to demonstrate the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1811 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I recover my filing fee if I lose my hearing against the HOA?

Short Answer

No. The filing fee is only awarded if the Petitioner prevails.

Detailed Answer

Because the tribunal denied the petition, the homeowner was not entitled to reimbursement of the $500 filing fee.

Alj Quote

IT IS ORDERED that Petitioners’ petition is denied as to a violation of A.R.S. 33-1811, and Petitioner is not entitled to his filing fee of $500.00.

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • filing fees
  • penalties

Case

Docket No
25F-H049-REL
Case Title
Jeremy Whittaker v. Val Vista Lakes Community Association
Decision Date
2025-12-02
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jeremy Whittaker (Petitioner)
    Val Vista Lakes Community Association
    Homeowner representing himself.
  • Mark Thompson (Witness)
    Val Vista Lakes Community Association
    Former board member called to testify by the Petitioner.
  • Sharon Maiden (Witness)
    Val Vista Lakes Community Association
    Former board president called to testify by the Petitioner.
  • Bill Suttell (Witness)
    Val Vista Lakes Community Association
    Former board president and attorney called to testify by the Petitioner.
  • Kurt Wiler (Affiant)
    Val Vista Lakes Community Association
    Former director who provided a sworn affidavit (Exhibit K) for the Petitioner.

Respondent Side

  • B. Austin Baillio (Counsel)
    Maxwell & Morgan, P.C.
    Attorney representing Val Vista Lakes Community Association.
  • Brian Patterson (Board Representative)
    Val Vista Lakes Community Association
    Board president; appeared in the courtroom as the respondent's representative.
  • Diana Ebertshauser (Witness)
    Val Vista Lakes Community Association
    Board member and treasurer; mother of Jonathan Ebertshauser.
  • Brodie Hurtado (Witness)
    Val Vista Lakes Community Association
    Board member; husband of Jonathan Ebertshauser.
  • Josh Bolen (Attorney)
    CHDB Law
    Attorney for the association whose engagement was the subject of the conflict dispute.

Neutral Parties

  • Adam D. Stone (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearing and authored the final decision.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmittals and orders.

Other Participants

  • Jonathan Ebertshauser (Attorney)
    CHDB Law
    Partner at CHDB Law; the subject of the alleged conflict of interest.

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on by

Case Summary

Case ID 25F-H056-REL
Agency —
Tribunal —
Decision Date 2025-11-19
Administrative Law Judge JC
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner R.L. Whitmer Counsel Pro Se
Respondent Hilton Casitas Council of Homeowners Counsel Emily Mann, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H056-REL Decision – 1335493.pdf

Uploaded 2026-04-24T12:49:48 (847.7 KB)

25F-H056-REL Decision – 1335502.pdf

Uploaded 2026-04-24T12:49:52 (74.4 KB)

25F-H056-REL Decision – 1335656.pdf

Uploaded 2026-04-24T12:49:55 (10.6 KB)

25F-H056-REL Decision – 1352057.pdf

Uploaded 2026-04-24T12:50:01 (53.9 KB)

25F-H056-REL Decision – 1352067.pdf

Uploaded 2026-04-24T12:50:11 (7.8 KB)

25F-H056-REL Decision – 1353232.pdf

Uploaded 2026-04-24T12:50:20 (52.9 KB)

25F-H056-REL Decision – 1357681.pdf

Uploaded 2026-04-24T12:50:26 (82.0 KB)

25F-H056-REL Decision – 1360270.pdf

Uploaded 2026-04-24T12:50:31 (52.2 KB)

25F-H056-REL Decision – 1369834.pdf

Uploaded 2026-04-24T12:50:35 (190.0 KB)





Briefing Doc – 25F-H056-REL


Briefing Document: Whitmer v. Hilton Casitas Council of Homeowners

Executive Summary

This briefing document synthesizes the legal dispute between homeowner R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent), culminating in a decision by an Arizona Administrative Law Judge (ALJ). The case, docket number 25F-H056-REL, centered on allegations that the Homeowners Association (HOA) violated Arizona’s open meeting laws during and after a special meeting of the members on April 7, 2025.

The Petitioner alleged three primary statutory violations of A.R.S. § 33-1248: (1) failure to provide a meeting agenda, (2) denial of the opportunity to speak, and (3) holding an unnoticed informal meeting with a quorum of the board present. The Respondent countered that the meeting was a special meeting of the members, not a board meeting, that the petitioner never explicitly requested to speak, and that the post-meeting gathering was an informal discussion among neighbors, not an official meeting.

The ALJ’s final decision, issued on November 19, 2025, resulted in a partial victory for the Petitioner. The judge found the HOA in violation of A.R.S. § 33-1248(A) for failing to provide an opportunity for the Petitioner to speak, deeming the HOA’s argument that he did not make an explicit request “disingenuous.” The other two allegations were dismissed. Consequently, a civil penalty of $167.00 was imposed on the Respondent, but the Petitioner’s request for reimbursement of his $500.00 filing fee was denied.

I. Case Overview

Case Name

In the Matter of R.L. Whitmer, Petitioner, v. Hilton Casitas Council of Homeowners, Respondent

Docket Number

25F-H056-REL

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Referring Agency

Arizona Department of Real Estate (ADRE)

Petitioner

R.L. Whitmer (appearing on his own behalf)

Respondent

Hilton Casitas Council of Homeowners

Respondent’s Counsel

Emily Mann, Esq. (Phillips Maceyko & Battock, PLLC)

Respondent’s Witness

Robert Westbrook (HOA President)

Date of Incident

April 7, 2025

Petition Filed

April 9, 2025

Hearing Date

November 3, 2025

ALJ Decision Date

November 19, 2025

II. Petitioner’s Allegations and Requested Relief

On April 9, 2025, R.L. Whitmer filed a Homeowners Association Dispute Process Petition with the ADRE, alleging violations stemming from a “special meeting” presided over by HOA President Bob Westbrook on April 7, 2025.

Core Allegations:

• Failure to Provide an Agenda (A.R.S. § 33-1248(E)(1)): The Petitioner alleged that the HOA failed to provide an agenda for the meeting. The petition states, “When asked for the agenda…Mr. Westbrook stated there was no agenda.”

• Denial of Opportunity to Speak (A.R.S. § 33-1248(A)): The Petitioner claimed he was denied the opportunity to speak during the noticed session. The petition reads, “When asked for the opportunity to speak during the noticed session, Mr. Westbrook stated there would not be such an opportunity.”

• Unnoticed Meeting (A.R.S. § 33-1248(E)(4)): The Petitioner alleged that after the special meeting was adjourned, the board “unlawfully proceeded to hold an unnoticed meeting with a quorum of the board present.”

• Violation of Association Declaration: The petition initially cited a violation of “Article 23 § 23.9 of the Declaration of Horizontal Property Regime for Hilton Casitas.” During the hearing, the Petitioner acknowledged this was included in error and abandoned the claim.

Requested Relief:

1. An order directing the Respondent to abide by the Arizona statutes specified in the complaint.

2. The imposition of a civil penalty against the Respondent for the alleged violations.

III. Respondent’s Position and Defense

The Hilton Casitas HOA, represented by counsel, denied all allegations and argued for the petition’s complete dismissal.

Core Defense Arguments:

• Agenda Not Required for Member Meeting: The Respondent contended that the April 7, 2025 meeting was a “special meeting of the members” for the sole purpose of ratifying a revised budget, not a “meeting of the board of directors.” Therefore, the specific agenda requirements of A.R.S. § 33-1248(E)(1) did not apply.

• Ballot Packet Served as Agenda: Even if an agenda were required, the absentee ballot packet—which included a letter explaining the budget, the revised budget itself, and the ballot—sufficiently notified the membership of the meeting’s sole purpose.

• Petitioner Never Explicitly Requested to Speak: The Respondent argued that the Petitioner never made a formal request to speak. Citing the hearing transcript, they noted that in response to being asked if he cared to vote, the Petitioner stated, “I’m waiting for the public comment.” The defense argued this statement was not a direct request to speak.

• “Town Hall” Was Not a Board Meeting: The HOA characterized the gathering after the formal meeting as an “informal town hall discussion” where President Westbrook invited neighbors to stay at his home for a “neighborly conversation.” They asserted that no association business was conducted and that the mere presence of a quorum of board members did not transform the gathering into a formal, unnoticed board meeting, which would lead to the “absurd result” of directors being prohibited from attending member events.

IV. Procedural History and Hearing Chronology

• April 9, 2025: Petition filed by R.L. Whitmer.

• April 30, 2025: Petitioner pays the $500.00 single-issue filing fee.

• June 6, 2025: Respondent files its answer, denying all complaint items.

• June 24, 2025: ADRE issues a Notice of Hearing, scheduling it for August 1, 2025.

• August 1, 2025: Petitioner moves to continue the hearing to amend his petition.

• August 11, 2025: Petitioner submits an Amended HOA Dispute Petition.

• September-October 2025: A series of motions are filed, including a Motion for Summary Judgment by the Petitioner and a Cross-Motion for Summary Judgment by the Respondent.

• October 8, 2025: The OAH issues an order denying the Petitioner’s motion and dismissing his Amended Petition with prejudice, but allowing the original petition to proceed.

• November 3, 2025: The continued hearing is held remotely before ALJ Jenna Clark. R.L. Whitmer testifies on his own behalf, and Robert Westbrook testifies for the Respondent.

• November 19, 2025: ALJ Clark issues the final Administrative Law Judge Decision.

V. Administrative Law Judge’s Final Decision and Rationale

The ALJ granted the petition in part and denied it in part, finding the Respondent in violation of one of the three alleged statutory provisions.

The ALJ found that the Respondent violated the Petitioner’s right to speak. The decision concluded that although the Petitioner did not make an explicit request, his statement, “I’m waiting for the public comment,” was a clear and unequivocal indication of his desire to be heard.

• Rationale: The judge found the Respondent’s counterargument to be “disingenuous,” stating, “It cannot be faithfully argued that the HOA President was unaware Petitioner was desirous of speaking. Animosity notwithstanding, Petitioner should have been afforded a reasonable amount of time to be heard prior to adjournment.”

The ALJ ruled that the Respondent did not violate the statute regarding meeting agendas.

• Rationale: The decision affirms the Respondent’s position, stating, “the record clearly reflects that the April 07, 2025, special meeting was not a meeting of the board of directors, and did have an agenda issued to members in advance – as evidenced by the ballot and memorandum which provided objectively reasonable detail regarding the purpose and scope of the meeting.”

The ALJ determined that the post-meeting gathering did not constitute an illegal unnoticed meeting.

• Rationale: The judge concluded that “the existence of a quorum, intentional or otherwise, absent open discussion of Association business does not a meeting make.” The decision further supported the Respondent’s argument that holding otherwise “would unintentionally result in absurdity.”

VI. Final Order and Sanctions

Based on the findings, the final order established the following:

1. Petition Status: The petition was granted in part (for the A.R.S. § 33-1248(A) violation) and denied and dismissed for all other allegations.

2. Civil Penalty: The Respondent was ordered to pay a civil penalty of $167.00 to the ADRE within thirty days for the violation.

3. Filing Fee Reimbursement: The Petitioner’s request to be reimbursed for the $500.00 filing fee was denied.

4. Future Compliance: The Respondent was ordered to not violate A.R.S. § 33-1248(A) henceforth.






Study Guide: R.L. Whitmer v. Hilton Casitas Council of Homeowners

# Study Guide: R.L. Whitmer v. Hilton Casitas Council of Homeowners

This study guide provides a comprehensive overview of the administrative legal dispute between R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent). It explores the application of Arizona’s Open Meeting Laws, the procedural requirements of the Office of Administrative Hearings (OAH), and the nuances of statutory interpretation in homeowners' association (HOA) disputes.

## Key Concepts and Case Background

### The Core Dispute
The case (File No. 25F-H056) centers on whether the Hilton Casitas HOA violated Arizona Revised Statutes (A.R.S.) regarding open meetings during a budget ratification process on April 7, 2025. The Petitioner alleged that the HOA failed to provide an agenda, refused to allow him to speak, and held an unnoticed informal meeting ("Town Hall") involving a quorum of the board.

### Relevant Legislation: A.R.S. § 33-1248
This statute serves as the foundation for the litigation. Its primary components include:
*   **Subsection A:** Requires that meetings of unit owners' associations and boards of directors be open to all members and that members be allowed to speak at appropriate times during deliberations.
*   **Subsection E(1):** Mandates that an agenda be available in advance for unit owners attending board of directors meetings.
*   **Subsection E(4):** Requires any quorum of the board meeting informally to discuss association business (including workshops) to comply with open meeting and notice provisions.
*   **Subsection F:** Declares the state's policy that all condominium meetings be conducted openly and that notices/agendas contain information reasonably necessary to inform owners of matters to be decided.

### Procedural History
1.  **Initial Petition (April 2025):** Filed by Whitmer regarding a $500 single-issue fee.
2.  **Stay and Amended Petition (August 2025):** Whitmer attempted to amend the petition to include additional issues but failed to pay the required additional $1,000 in filing fees.
3.  **Summary Judgment Motions (September-October 2025):** Both parties filed for summary judgment. The ALJ dismissed the amended petition with prejudice but allowed the original petition to proceed.
4.  **Hearing (November 3, 2025):** A remote hearing was conducted via Google Meet, involving testimony from Whitmer and HOA President Robert Westbrook.

---

## Short-Answer Practice Questions

| Question | Answer based on Source Context |
| :--- | :--- |
| **1. What was the specific purpose of the April 7, 2025, special meeting?** | To ratify the 2025 revised budget and approve a $300 per month dues increase due to insolvency. |
| **2. Why was the Petitioner’s amended petition dismissed with prejudice?** | He failed to pay the $1,000 filing fee for the additional issues identified in the amendment. |
| **3. How many ballots were cast in the budget ratification, and what was the result?** | 25 of 29 ballots were received; 24 voted "Yes" and 1 voted "No." |
| **4. What was the HOA's primary defense against the charge of failing to provide an agenda?** | They argued the meeting was a "Special Meeting of Members," not a Board meeting, and that the ballot packet itself served as the agenda. |
| **5. What did the Petitioner say when asked if he cared to vote during the meeting?** | He stated, "I'm waiting for the public comment." |
| **6. Why did the ALJ dismiss the allegation regarding the "Town Hall" meeting?** | The ALJ ruled that the existence of a quorum at an informal gathering does not constitute a meeting unless association business is discussed; to rule otherwise would lead to "absurdity." |
| **7. What was the final civil penalty imposed on the Respondent?** | $167.00. |
| **8. Which specific statutory subsection did the ALJ find the Respondent had violated?** | A.R.S. § 33-1248(A). |

---

## Essay Prompts for Deeper Exploration

### 1. The Nuance of "Explicit" vs. "Implied" Requests to Speak
In the hearing, the Respondent argued that Petitioner never explicitly asked to speak. However, the ALJ found that Petitioner's statement—"I'm waiting for the public comment"—was a clear and unambiguous indication that he wished to be heard. Discuss the implications of this ruling for HOA boards. Should boards be required to proactively offer a comment period, or should the burden remain on the homeowner to use specific "magic words" to trigger their rights under A.R.S. § 33-1248(A)?

### 2. Statutory Interpretation and the "Absurd Result" Doctrine
The ALJ noted that prohibiting board members from attending informal social gatherings where a quorum might naturally occur (like the "Town Hall" at a member's home) would result in an "absurd result." Analyze how this doctrine balances the need for transparency in governance with the personal rights of board members to exist as individual members of a community. Where should the line be drawn between a "neighborly discussion" and "informal business discussion" under A.R.S. § 33-1248(E)(4)?

### 3. The Impact of Litigiousness on Association Governance
The source context highlights an "acrimonious relationship" between the parties, noting approximately 25 legal actions filed by the Petitioner in 10 years. Explore how persistent litigation affects an HOA's ability to remain solvent and functional. To what extent should an ALJ consider the history and motivations of the parties when determining the necessity of civil penalties or the reimbursement of filing fees?

---

## Glossary of Important Terms

*   **ADRE (Arizona Department of Real Estate):** The state agency authorized to receive and decide petitions for hearings from members of homeowners' associations.
*   **ALJ (Administrative Law Judge):** The presiding official at the Office of Administrative Hearings who hears evidence and issues a decision (in this case, Jenna Clark).
*   **Amended Petition:** A revised legal document intended to add or change claims; in this case, it was dismissed because the Petitioner did not pay the additional $500-per-issue fee.
*   **Dismissal With Prejudice:** A final judgment on the merits of a case that prevents the same parties from filing another lawsuit on the same claim.
*   **Insolvency:** A financial state where an association's expenses exceed its budget and reserves, as was the case with Hilton Casitas before the dues increase.
*   **OAH (Office of Administrative Hearings):** An independent state agency in Arizona that conducts hearings for various state agencies.
*   **Open Meeting Law:** Statutes (specifically A.R.S. § 33-1248 for condominiums) requiring that the deliberations and actions of governing bodies be open to the public.
*   **Preponderance of the Evidence:** The burden of proof in civil and administrative cases, meaning the claim is "more probably true than not."
*   **Quorum:** The minimum number of members of an assembly or board that must be present at any of its meetings to make the proceedings of that meeting valid.
*   **Ratification:** The official way to approve an action that has been proposed, such as the 2025 budget in this dispute.
*   **Summary Judgment:** A legal move where one party asks the judge to decide the case based on the facts already in the record, without going to a full hearing.







Transparency in the Neighborhood: Lessons from the Hilton Casitas HOA Legal Ruling

# Transparency in the Neighborhood: Lessons from the Hilton Casitas HOA Legal Ruling

### 1. Introduction: A Seven-Minute Meeting with Lasting Consequences
On the afternoon of April 7, 2025, a group of homeowners gathered at a private residence in Scottsdale, Arizona, for what was intended to be a routine special meeting of the Hilton Casitas Council of Homeowners. The stakes, however, were anything but routine: a proposed budget that would significantly impact every resident's wallet. Despite the gravity of the financial discussion, the official meeting was remarkably brief, lasting only seven minutes.

What transpired in that narrow window sparked a pivotal legal battle between homeowner R.L. Whitmer and the HOA Board. This case highlights the "procedural trap" many small boards fall into when they prioritize administrative expediency over the statutory speech rights of their members. It serves as a stark reminder that in the world of community governance, even the most "neighborly" interactions must strictly adhere to the law, or face the consequences of judicial scrutiny.

### 2. Case Background: The $300 Question
The conflict originated when the Hilton Casitas Board of Directors conducted its 2025 budget assessment and determined the association was essentially insolvent. To rectify the shortfall, the Board proposed a revised budget that was 21% higher than the previous year. For the individual homeowner, this translated to a $300 monthly dues increase—a staggering **75% jump** from the 2024 rate of $400 to a new rate of $700.

The HOA cited three primary drivers for this financial crisis:
*   **Maintenance:** Escalating costs related to the community’s aging physical infrastructure.
*   **Insurance:** Significant and unforeseen spikes in premiums and difficulty maintaining coverage.
*   **Legal Expenses:** A budget line item exhausted by an "acrimonious relationship" between the parties, characterized by approximately 25 legal actions filed over the last decade.

### 3. The Three Legal Pillars: Analyzing the Allegations
The Petitioner, R.L. Whitmer, alleged three specific violations of **A.R.S. § 33-1248**, commonly known as the **Arizona Open Meeting Law** for condominiums. The following table compares these statutory allegations against the findings of the Administrative Law Judge (ALJ):

| Statute/Allegation | Petitioner’s Argument | Judicial Finding |
| :--- | :--- | :--- |
| **A.R.S. § 33-1248(E)(1) (Agenda)** | Argued the Board failed to provide a formal meeting agenda, claiming a budget memorandum was insufficient. | **No Violation.** The Judge found the memorandum and ballot provided enough detail to inform owners of the meeting's purpose. |
| **A.R.S. § 33-1248(A) (Right to Speak)** | Claimed he was denied a chance to speak before the meeting was abruptly adjourned. | **Violation.** The Judge ruled the Board failed to allow the Petitioner to speak despite his clear indication that he wished to be heard. |
| **A.R.S. § 33-1248(E)(4) (Informal Quorum)** | Contended that a post-meeting "Town Hall" was actually an unnoticed board meeting because a quorum was present. | **No Violation.** The Judge determined the gathering was a social interaction and not a venue for "workshopping" official business. |

### 4. The "Public Comment" Turning Point
The centerpiece of the ALJ’s ruling was the Board’s failure to honor the "Right to Speak" provision. During the special meeting, Board President Robert Westbrook asked the Petitioner if he wished to cast a vote. The following exchange, recorded in the transcript, became the "aha!" moment for the court:

> **Mr. Westbrook:** "Do you care to vote?"
> **Mr. Whitmer:** "I’m waiting for the public comment."
> **Mr. Westbrook:** "I’m just asking if you’re going to vote."
> **Mr. Whitmer:** "No, I’m not."

Shortly after this exchange, the meeting was adjourned without a public comment period. The Board’s defense—that the Petitioner never used "magic legal words" to explicitly ask for the floor—was rejected by the ALJ as "disingenuous." The ruling clarified that stating one is "waiting for public comment" is a clear request to be heard. Under Arizona law, boards must allow members to speak before taking formal action or adjourning; failing to do so is a statutory violation.

### 5. The "Town Hall" Debate: When a Quorum is Just a Gathering
Following the seven-minute meeting, the Board President invited attendees to stay for an informal discussion, which one board member colloquially called a "Town Hall." While a quorum of the board remained, the ALJ ruled this was not a violation of unnoticed meeting laws. 

The legal distinction relies on the concept of **"Two Hats"**: a director does not lose their rights as an individual homeowner simply because they serve on a board. In this instance, the directors were acting in their capacity as neighbors engaging in social interaction, rather than "workshopping" or deciding association business.

***

> **The "Absurdity" Argument**
>
> The ALJ emphasized that a literal interpretation of the law barring board members from ever gathering socially would lead to "absurd" results. If the mere presence of a quorum at a neighborhood social event transformed it into an official board meeting, directors would effectively be barred from any community interaction. The law does not intend to exile board members from their own neighborhoods.

***

### 6. The Verdict: The $167 Penalty
On November 19, 2025, the Office of Administrative Hearings issued the Final Order, which included the following outcomes:

1.  **Partial Victory:** The petition was granted specifically regarding the violation of **A.R.S. § 33-1248(A)**.
2.  **Fee Denial:** The Petitioner was denied reimbursement for his $500 filing fee; both parties were ordered to bear their own costs.
3.  **Civil Penalty:** The HOA was ordered to pay a civil penalty of **$167.00** directly to the **Arizona Department of Real Estate**.
4.  **Cease and Desist:** The HOA was formally directed to comply with the Open Meeting Law and not violate this provision in the future.

### 7. Compelling Conclusion & Homeowner Takeaways
The Hilton Casitas ruling serves as a vital lesson in balancing administrative efficiency with the protection of homeowner rights. Transparency in community governance is not a courtesy; it is a statutory mandate. 

**Critical Takeaways for the Community:**

*   **For Boards: Don't Ignore the "Waiting" Member.** You do not need to hear a formal motion to speak. If a homeowner indicates they are waiting for a comment period, the Board must provide a reasonable window for them to be heard before the gavel falls.
*   **For Homeowners: Rights Have Limits.** While you have a fundamental right to speak at meetings, not every gathering of your neighbors—even those on the board—constitutes a secret meeting. The "two hats" doctrine protects the social fabric of the community.
*   **The Cost of Acrimony:** The ALJ noted a decade of friction, including 25 legal actions, contributed significantly to the budget crisis. When a community chooses litigation over communication, the financial impact—in this case, a 75% dues increase—is felt by every neighbor.

Ultimately, this case proves that even in a meeting lasting only seven minutes, the failure to listen can lead to months of litigation and costly penalties.



Case Participants

Petitioner Side

  • R.L. Whitmer (Petitioner)
    Hilton Casitas Council of Homeowners
    Homeowner appearing on his own behalf

Respondent Side

  • Emily Mann (Counsel)
    Phillips Maceyko & Battock, PLLC
    Counsel for Respondent
  • Robert Westbrook (President / Witness)
    Hilton Casitas Council of Homeowners
    HOA President and unit owner
  • Karen Kass (Statutory Agent)
    Hilton Casitas Council of Homeowners
  • John Brooke (Director)
    Hilton Casitas Council of Homeowners
  • Curt Richard Roberts (Secretary)
    Hilton Casitas Council of Homeowners
    Recorded meeting minutes
  • Jay Panzer (Director)
    Hilton Casitas Council of Homeowners
    Recorded the April 7th meeting
  • James Cox (Treasurer)
    Hilton Casitas Council of Homeowners

Neutral Parties

  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Liz Recchia (Division Manager)
    Arizona Department of Real Estate

Other Participants

  • Mike Benson (Former Board Member)
    Hilton Casitas Council of Homeowners
    Mentioned during the hearing as attending the gathering

Sally Magana v. Wynstone Park Homeowners Association

Posted on by

Case Summary

Case ID 25F-H070-REL
Agency —
Tribunal —
Decision Date 2025-10-29
Administrative Law Judge VMT
Outcome complete
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 Doc – 25F-H070-REL


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)

# 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

# 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

Rainey, Chad D. v. The Garden Lakes Community Association

Posted on by

Case Summary

Case ID 25F-H061-REL
Agency —
Tribunal —
Decision Date 2025-09-01
Administrative Law Judge KAA
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Chad D. Rainey Counsel Pro Se
Respondent The Garden Lakes Community Association Counsel Ashley N. Turner, Esq. (CHBD Law)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H061-REL Decision – 1327389.pdf

Uploaded 2026-04-24T12:51:38 (53.6 KB)

25F-H061-REL Decision – 1332130.pdf

Uploaded 2026-04-24T12:51:42 (48.6 KB)

25F-H061-REL Decision – 1334329.pdf

Uploaded 2026-04-24T12:51:47 (47.9 KB)

25F-H061-REL Decision – 1345206.pdf

Uploaded 2026-04-24T12:51:53 (136.1 KB)





Briefing Doc – 25F-H061-REL


Briefing Document: Rainey v. The Garden Lakes Community Association

Executive Summary

This document synthesizes the proceedings and outcome of case number 25F-H061-REL, a dispute between homeowner Chad D. Rainey (Petitioner) and The Garden Lakes Community Association (Respondent) adjudicated by the Arizona Office of Administrative Hearings. The central issue was the Association’s refusal to provide copies of vendor invoices related to lake maintenance and other expenses, which were requested by the Petitioner on April 18, 2025.

The Association argued that such invoices were not “records of the Association” under Arizona law, but rather “third-party” or “source” documents that it was not obligated to disclose. The Petitioner contended that Arizona statute A.R.S. § 33-1805(A), which mandates that “all financial and other records” be made available, clearly includes these invoices.

Following an evidentiary hearing on August 4, 2025, Administrative Law Judge Kay A. Abramsohn ruled decisively in favor of the Petitioner. The final decision, issued September 1, 2025, concluded that the Association’s characterization of the invoices as “disingenuous” and found that records kept by a management company on behalf of an association are legally considered the association’s records. The judge ordered the Association to provide access to the requested invoices and reimburse the Petitioner’s $500 filing fee, establishing that an association cannot arbitrarily exclude such fundamental financial documents from member examination.

Case Overview

Detail

Description

Case Number

No. 25F-H061-REL

Petitioner

Chad D. Rainey

Respondent

The Garden Lakes Community Association

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Kay A. Abramsohn

Hearing Date

August 4, 2025

Decision Date

September 1, 2025

Statutes at Issue

A.R.S. § 33-1805(A)

Bylaws at Issue

Article VI, Section 6.13

Procedural History

1. Initial Concern: Beginning March 12, 2025, Mr. Rainey communicated with the community manager regarding concerns about lake quality and fish kills within the community.

2. Formal Records Request: On April 18, 2025, Mr. Rainey sent a formal email request to the Association for specific documents, including vendor invoices for lake maintenance accounts.

3. Association’s Refusal: In a letter dated May 1, 2025, the Association’s legal counsel provided some requested documents (contracts) but explicitly refused to produce any vendor invoices.

4. Petition Filed: On May 8, 2025, Mr. Rainey filed a petition with the Arizona Department of Real Estate, alleging the Association violated state law and its own bylaws.

5. Subpoena Dispute: A subpoena was issued for the Association’s Treasurer, Deborah Taylor. The Association filed a Motion to Quash on July 21, 2025, which was initially granted on July 24. However, upon reconsideration, the OAH reissued the subpoena on July 30, 2025, compelling Ms. Taylor’s virtual appearance.

6. Evidentiary Hearing: A virtual hearing was conducted via Google Meet on August 4, 2025.

7. Final Decision: On September 1, 2025, the Administrative Law Judge (ALJ) issued a final decision granting the Petitioner’s petition.

The Central Dispute: The Records Request

The core of the conflict was Mr. Rainey’s formal request for documents, specifically the Association’s refusal to provide invoices.

Petitioner’s Request (April 18, 2025)

Mr. Rainey requested access to copies of the following:

• Invoices for the past 24 months for bookkeeping accounts related to lake maintenance, including:

◦ 618 Water Feature Maintenance

◦ 66702 Lake Repairs

◦ 664 Water Feature Repairs/Maint

◦ 70705 Chemicals

◦ 72308 Lake Chemicals/Dye

◦ 724 Fish Stock

• Invoices for the past 12 months for account 56701 Annual Meeting Expense.

• Copy of the current contract with CCMC (the management company).

• Copy of the current contract for the landscape contractor.

Respondent’s Refusal (May 1, 2025)

The Association’s law firm, CHBD Law, responded by providing the CCMC and landscape contracts but refused to supply the requested invoices. The letter stated:

“[T]he Association declines to produce any documents related to your requests for invoices from various vendors or other contractors. Such third-party invoices are not ‘records of the Association’ and the Association has no obligation under Arizona law to produce or disclose thirty-party invoices. See A.R.S. § 10-11601. For this reason, the Association declines to produce any of the invoices you requested for the past 12 or 24 months.”

Key Arguments Presented at Hearing

Petitioner’s Position (Chad D. Rainey)

• Plain Language of the Law: A.R.S. § 33-1805(A) is unambiguous, stating “all financial and other records of the association shall be made reasonably available.” The term “all” is inclusive and does not permit the Association to selectively withhold records like invoices.

• Insufficiency of Available Records: The summary financial documents on the homeowner portal are inadequate for transparency, as they only list line-item totals without identifying vendors or detailing specific services performed.

• Refutation of Association’s Legal Defense:

◦ The Association’s reliance on A.R.S. § 10-11601 (corporate records) is misplaced. Paragraph F of that statute explicitly states that in a conflict, Title 33 (which governs planned communities) prevails.

◦ None of the specific exemptions listed in A.R.S. § 33-1805(B) (e.g., privileged communications, pending litigation) apply to vendor invoices.

• Governing Documents: The Association’s own bylaws (Section 6.13) require it to keep “detailed and accurate records… of the receipts and expenditures affecting the Common Areas,” which logically includes invoices.

• Motivation for Request: The request was made in good faith to understand how the Association was maintaining community lakes amid declining water quality. As Mr. Rainey stated, “I requested these specific and pointed invoices to learn about how the association maintained the lakes.”

Respondent’s Position (The Garden Lakes Community Association)

• Invoices are Not “Association Records”: The core of the defense was the assertion that invoices created by third-party vendors are not financial records of the Association. They were characterized as “source documents” that inform the financials but are not the financials themselves.

• Demonstrated Transparency: The Association argued it complies with the law by making its official financial records—such as balance sheets, statements of revenue, and budget summaries—available to all homeowners on the online portal.

• Operational Structure: The defense emphasized that invoices are not part of the Association’s ordinary records. They are handled exclusively by the management company’s accounting department, processed through a separate system called “IPS,” and are not included in the monthly financial packets reviewed by the Board of Directors.

• Statutory Interpretation: The Association contended that the statute does not specifically mention the word “invoice” and therefore does not compel their disclosure.

Key Witness Testimony

Deborah Taylor (Association Treasurer)

• Role and Responsibilities: Ms. Taylor testified that her role as Treasurer involves reviewing financial statements prepared by the management company, primarily to check for variances from the budget.

• Invoice Handling: She confirmed that neither she nor any other board member reviews, processes, or approves individual vendor invoices. This function is entirely delegated to the management company. She stated, “They [the Board] do not” review invoices and approve them for payment. When asked who does, she said, “As far as I’m I know, the management company. That’s what they’re contracted for.”

• Financial Packet: She testified that the monthly financial packet provided to the Board is over 100 pages long but does not contain copies of vendor invoices.

Stephanie Via (Community Manager, CCMC)

• Invoice Process: Ms. Via detailed the “life cycle” of an invoice. Vendors typically send invoices to CCMC’s invoicing department, which are then uploaded into a third-party system called IPS. She or others in the management company then process the payments.

• Board Approval: She testified that the Board approves expenditures based on contracts agreed upon in open meetings, not by reviewing individual invoices. For non-contractual repairs, she has a spending limit of $2,500 for emergencies.

• Online Financials: Ms. Via confirmed that the financial statements posted on the homeowner portal are summaries of about 14-15 pages and do not contain vendor names, only line-item categories. When asked if a homeowner could see who was paid, she responded, “It doesn’t have vendor names, but it has line items that pertain to lake maintenance or landscape.”

Administrative Law Judge’s Decision and Order

The ALJ’s final decision sided entirely with the Petitioner, rejecting the Association’s arguments and interpretation of the law.

Findings and Conclusions

• Records Held by Agent are Association Records: The decision established that “Garden’s financial documents are prepared by, and kept in the custody of, Garden’s property management company and, thus, are considered to be Garden’s documents.” An association cannot evade its disclosure obligations by delegating record-keeping to a third party.

• Rejection of “Source Document” Argument: The ALJ found the Association’s attempt to reclassify the invoices to be without merit, stating, “Garden’s portrayal of requested documents as ‘executive,’ ‘third-party,’ or ‘source’ is disingenuous.”

• Plain Meaning of Statute and Bylaws: The decision affirmed that A.R.S. § 33-1805’s use of “all financial and other records” is comprehensive. Furthermore, the Association’s own bylaws require “detailed and accurate records” of expenditures, which invoices represent.

• Violation Confirmed: The judge concluded that the Petitioner had sustained his burden of proof and that the Association violated both A.R.S. § 33-1805(A) and its own Bylaws (Article VI, Section 6.13) by failing to provide the requested records.

Final Order

1. The Petitioner, Chad D. Rainey, is declared the prevailing party and his Petition is GRANTED.

2. The Garden Lakes Community Association is ordered to comply with the law and reasonably provide examination access to the requested documents.

3. The Association is ordered to reimburse the Petitioner’s filing fee of $500.00.

4. No civil penalty was found to be appropriate in the matter.






Study Guide: Rainey v. Garden Lakes Community Association (Case No. 25F-H061-REL)

# Study Guide: Rainey v. Garden Lakes Community Association (Case No. 25F-H061-REL)

This study guide provides a comprehensive overview of the administrative hearing and legal dispute regarding a homeowner's right to access financial records within a planned community association in Arizona.

---

## I. Case Overview and Key Concepts

### Central Dispute
The case centers on whether **The Garden Lakes Community Association** (Respondent) violated state law and its own bylaws by refusing to provide **Chad D. Rainey** (Petitioner) with specific vendor invoices. The Petitioner sought these documents to investigate the maintenance and water quality of the community’s lakes following concerns about fish kills.

### Legal Framework
*   **A.R.S. § 33-1805(A):** The primary Arizona statute governing records access. It mandates that "all financial and other records of the association" be made reasonably available for examination by members.
*   **A.R.S. § 33-1805(B):** Lists specific exemptions where records may be withheld (e.g., privileged legal communication, pending litigation, personal health/financial records of employees or members).
*   **Bylaws Article VI, Section 6.13:** The association’s internal rule requiring the Treasurer to keep detailed, itemized records of receipts and expenditures affecting common areas and property.
*   **A.R.S. § 10-11601:** A statute regarding nonprofit corporate records, which the Respondent unsuccessfully argued exempted third-party invoices from being classified as association records.

### Key Entities and Roles
| Entity/Individual | Role in Case |
| :--- | :--- |
| **Chad D. Rainey** | Petitioner; homeowner and trustee of the HN and PR Living Trust. |
| **The Garden Lakes Community Association** | Respondent; a planned community with 2,216 lots. |
| **CCMC** | The third-party property management company for the association. |
| **Kay A. Abramsohn** | Administrative Law Judge (ALJ) presiding over the Tribunal. |
| **Deborah Taylor** | Board Member and Treasurer of the Association. |
| **Stephanie Via** | Community Manager (CCMC) responsible for daily operations and paying invoices. |

---

## II. Short-Answer Practice Questions

1.  **What specific documents did the Petitioner request on April 18, 2025?**
    *   *Answer:* Invoices for the past 24 months for accounts related to water feature maintenance, lake repairs, chemicals, and fish stock (Accounts 618, 66702, 664, 70705, 72308, 724); invoices for the past 12 months for the annual meeting expense (Account 56701); and copies of current management and landscape contracts.

2.  **On what grounds did the Association initially refuse to provide the vendor invoices?**
    *   *Answer:* They argued that third-party vendor invoices are not "records of the association" under A.R.S. § 10-11601 and that the statute does not require the disclosure of "source documents."

3.  **What was the Respondent’s argument regarding the Petitioner’s "standing" to bring the case?**
    *   *Answer:* The Respondent questioned whether Chad Rainey was the legal owner of the property, noting the warranty deed listed Heather Rainey as the trustee of the living trust.

4.  **How did the Association make its standard financial information available to homeowners?**
    *   *Answer:* Through a homeowner portal where PDFs of approved meeting minutes and summary financial statements (balance sheets, income statements, operating statements) are posted.

5.  **Who bears the burden of proof in this administrative proceeding, and what is the standard?**
    *   *Answer:* The Petitioner bears the burden of proof by a "preponderance of the evidence."

6.  **What was the Judge's final ruling regarding the invoices?**
    *   *Answer:* The Judge ruled that the invoices are association records. The Association violated A.R.S. § 33-1805(A) and Bylaw 6.13 by failing to provide access.

7.  **What was the "IPS" mentioned during Stephanie Via's testimony?**
    *   *Answer:* IPS is the third-party system used by the management company to process and pay vendor invoices.

8.  **What financial penalty was assessed against the Association?**
    *   *Answer:* No civil penalty was assessed, but the Association was ordered to reimburse the Petitioner’s $500.00 filing fee.

---

## III. Essay Questions for Deeper Exploration

1.  **The Distinction Between Summary Financials and Source Documents:**
    Analyze the Association's argument that summary financial statements fulfill their legal obligations, whereas "source documents" like invoices do not. Why did the Tribunal find this distinction "disingenuous"? In your answer, reference the specific requirements found in the Association's Bylaws (Section 6.13) regarding "itemized" records.

2.  **Delegation of Duties vs. Statutory Responsibility:**
    The Association Treasurer testified that she does not manage or even see the invoices, as those duties were delegated to the management company (CCMC). Discuss the legal implications of a Board delegating its functions to a third party. Does delegation absolve the Association of its statutory duty to provide records under A.R.S. § 33-1805?

3.  **Transparency in Planned Communities:**
    Evaluate the Petitioner’s argument that transparency is "not optional" and that summary documents are insufficient for a homeowner to perform a "reconciliation" or "audit" of how funds are spent. Contrast this with the Association’s concern regarding the volume of records (the "100+ page" financial packet). How does the law balance the administrative burden on the association with the member’s right to oversight?

---

## IV. Glossary of Important Terms

*   **A.R.S. (Arizona Revised Statutes):** The codified laws of the state of Arizona.
*   **Administrative Law Judge (ALJ):** A judge who moves over trials and adjudicates disputes involving administrative agencies.
*   **Common Areas:** Property owned or controlled by the Association for the use and benefit of all members (e.g., the lakes in Garden Lakes).
*   **Ex-Parte:** A legal action or communication taken by one party without notice to or the presence of the other party. (The Petitioner's subpoena request was noted *not* to be an ex-parte filing).
*   **Motion to Quash:** A legal request to a court or tribunal to render a previous order or subpoena null or invalid. The Respondent moved to quash the subpoena for Deborah Taylor.
*   **Preponderance of the Evidence:** The standard of proof in most civil cases, meaning the evidence shows that the contention is "more probably true than not."
*   **Privileged Communication:** Protected interactions (like those between an attorney and client) that are exempt from disclosure.
*   **Record Holder of Legal Title:** The person or entity officially recognized on public deeds as the owner of a property.
*   **Subpoena:** A writ ordering a person to attend a court or hearing.
*   **Tribunal:** A body of some kind, such as a court or the Office of Administrative Hearings, that has the authority to adjudicate disputes.
*   **Variance Report:** A financial document that compares actual expenses against the established budget to identify overages or savings.







HOA Transparency Win: Why "Source Documents" are Your Right to See

# HOA Transparency Win: Why "Source Documents" are Your Right to See

In the realm of homeowners associations (HOAs), the line between board oversight and member transparency is a frequent battleground. The case of *Rainey v. The Garden Lakes Community Association* (No. 25F-H061-REL) recently brought this conflict into sharp focus before an Arizona administrative law judge. What began as a homeowner’s simple request to examine vendor invoices ended in a landmark victory for transparency. Despite the HOA’s sophisticated legal maneuvers to classify invoices as "third-party source documents" beyond the reach of members, the court issued a clear mandate: homeowners have a statutory right to see the receipts, not just the summaries.

## The Catalyst: Fish Kills and Financial Curiosities

The dispute was sparked by Chad Rainey, a homeowner in the Garden Lakes community, who observed a troubling decline in the quality of the community's lakes. Motivated by recurring "fish kills" and deteriorating aeration systems, Rainey sought to verify how community funds were being utilized for maintenance. 

To investigate the efficacy of the association’s spending, he requested access to specific invoices from the previous 12 to 24 months for the following accounts:

*   **Lake Repairs:** Account 66702
*   **Fish Stock:** Account 724
*   **Water Feature Maintenance & Repairs:** Accounts 618 and 664
*   **Chemicals & Lake Dye:** Accounts 70705 and 72308
*   **Annual Meeting Expense:** Account 56701 (noted by the Petitioner for appearing unusually high)

While the HOA provided copies of basic third-party contracts, they flatly refused to release the actual invoices, sparking a legal showdown over the definition of an "association record."

## The "Gatekeeper" Defense: The HOA’s Argument for Secrecy

The Association’s defense relied on a calculated, albeit flawed, interpretation of corporate record-keeping and statutory hierarchy. Their legal team attempted to shield the invoices by arguing they were the property of the management company, not the HOA itself.

| HOA Claim | Statutory/Legal Justification Cited | Legal Analyst’s Note |
| :--- | :--- | :--- |
| **Corporate Records Argument** | Claimed invoices are not "records of the association" under A.R.S. § 10-11601. | Under A.R.S. § 10-11601(F), Title 33 (Planned Communities) explicitly supersedes Title 10 when laws conflict. |
| **The "Executive" Nature Claim** | Argued that vendor invoices are private or "executive" in nature. | A.R.S. § 33-1805(B) lists specific exemptions (e.g., litigation, health records); invoices are not among them. |
| **Management/Custody Argument** | Claimed that because records were held by CCMC (the management company), the HOA did not "possess" them. | Ownership and custody are distinct; agents hold records on behalf of the principal (the HOA). |

The HOA further contended that since their management company utilized a proprietary "IPS" invoicing system, the board itself did not typically review individual documents, thus making them unnecessary for homeowner review.

## Testimony Highlights: The 10:1 Information Gap

The hearing testimony revealed a staggering disconnect between the board’s financial oversight and the information provided to the community. 

*   **The "Out-of-the-Loop" Board:** Board Treasurer Deborah Taylor admitted she does not review individual vendor invoices. Instead, she only reviews "Financial Packets" for budget variances. She testified that the board delegates the entire processing and management of invoices to the management company.
*   **The Manager’s Spending Power:** Community Manager Stephanie Via testified that she possesses a **$2,500 spending limit** for emergencies. This allows her to approve repairs and pay invoices without prior board review, effectively creating a stream of expenditure that neither the board nor the homeowners see at the invoice level.
*   **The Information Gap:** While the Board receives a "Financial Packet" that can exceed **100 pages**, Via admitted that homeowners are only provided a **14–15 page summary** on the community portal. This 10:1 ratio of information proves that the summaries provided to homeowners are insufficient for real oversight.

## The Legal Turning Point: The Judge’s Ruling

Administrative Law Judge Kay A. Abramsohn saw through the Association’s attempts to obfuscate. In a scathing Conclusion of Law, the judge dismissed the HOA’s portrayal of invoices as "executive" or "third-party" as **"disingenuous."** 

The judge specifically integrated the Association's own Bylaws (Article VI, Section 6.13) into the ruling, noting that the Treasurer is required to keep records **"specifying and itemizing the expenses incurred."** This itemization is impossible without the very invoices the HOA sought to hide. 

Crucially, the ruling sets a standard for all Arizona HOAs that use third-party managers: custody by a manager does not negate the association’s ownership or the members' right to see the records.

> **"Garden’s financial documents are prepared by, and kept in the custody of, Garden’s property management company and, thus, are considered to be Garden’s documents and Garden is obligated to provide access to those documents to homeowners pursuant to ARIZ. REV. STAT. § 33-1805."**

## Final Verdict and Member Impact

The Tribunal ruled entirely in favor of the Petitioner, affirming that transparency is a statutory mandate, not a board's discretion. The final order required the Association to:

1.  **Grant the Petition:** Formally finding the HOA in violation of state law and its own bylaws.
2.  **Provide Full Access:** The HOA was ordered to provide examination access to all requested invoices for lake maintenance, fish stock, and annual meeting expenses.
3.  **Pay for the Violation:** The HOA was ordered to reimburse the Petitioner’s **$500 filing fee**. 

## What This Means for You

This case is a major win for homeowner rights and offers three critical lessons:

1.  **"Financial Records" Includes "Source Documents":** The court rejected the idea that "records" only mean summary statements. If a document—like an invoice—is the source of a financial entry, it is a record of the association.
2.  **Management is Not a Shield:** An HOA cannot outsource its way out of transparency. Whether a management company holds the files or uses a proprietary software system (like IPS), those records belong to the HOA and must be disclosed.
3.  **Statutory Exemptions are Narrow:** Unless a document falls under the specific privacy or legal exemptions in A.R.S. § 33-1805(B) (such as pending litigation or personal health information), the HOA has no legal authority to withhold it.

## Closing Thought

Homeowner oversight is the only functional check on how community funds are spent. When boards delegate spending authority to managers—sometimes up to $2,500 at a time—the right to inspect the "receipts" becomes even more critical. This ruling reinforces that transparency is not a courtesy; it is a fundamental legal right that cannot be buried in a management company's filing cabinet. In the battle for the receipts, the law clearly sides with the homeowner’s right to know.



Case Participants

Petitioner Side

  • Chad D. Rainey (Petitioner)
    Represented himself.
  • Heather Rainey (Co-Trustee)
    HNC Living Trust
    Wife of the petitioner; co-trustee of the property.

Respondent Side

  • Ashley N. Turner (Attorney)
    CHBD Law
    Represented The Garden Lakes Community Association.
  • Deborah Taylor (Treasurer)
    The Garden Lakes Community Association
    Board member who testified regarding financial records and responsibilities.
  • Stephanie Villa (Community Manager)
    CCMC
    Testified regarding the association's management, records, and invoices. Spelled 'Via' in the transcript but 'Villa' in the final decision.
  • Madison Raider (Summer Associate)
    CHBD Law
    Observer during the hearing.
  • Sebastian Shuya (Summer Associate)
    CHBD Law
    Observer during the hearing.

Neutral Parties

  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
    Presided over the hearing and issued the decision.

Jeremy R Whittaker v. The Val Vista Lake Community Association (ROOT)

Posted on by

Case Summary

Case ID 25F-H045-REL
Agency —
Tribunal —
Decision Date 2025-08-08
Administrative Law Judge ADS
Outcome complete
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Jeremy R. Whittaker Counsel Pro Se
Respondent The Val Vista Lakes Community Association Counsel Josh Bolen, CHDB Law LLP

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H045-REL Decision – 1315733.pdf

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25F-H045-REL Decision – 1316066.pdf

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25F-H045-REL Decision – 1316100.pdf

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25F-H045-REL Decision – 1316101.pdf

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25F-H045-REL Decision – 1318153.pdf

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25F-H045-REL Decision – 1324339.pdf

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25F-H045-REL Decision – 1324343.pdf

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25F-H045-REL Decision – 1324372.pdf

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25F-H045-REL Decision – 1328416.pdf

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25F-H045-REL Decision – 1337742.pdf

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25F-H045-REL Decision – 1342973.pdf

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Briefing Doc – 25F-H045-REL


Briefing Document: Whittaker v. The Val Vista Lake Community Association

Executive Summary

This document summarizes the administrative legal proceedings and final judgment in the consolidated cases of Jeremy R. Whittaker v. The Val Vista Lake Community Association. The core of the dispute centered on the association’s failure to comply with member records requests, a direct violation of Arizona state law. The Office of Administrative Hearings (OAH) ruled decisively in favor of the Petitioner, Jeremy R. Whittaker, finding that The Val Vista Lake Community Association (Val Vista) wrongfully withheld documents and failed to respond to legitimate requests within the statutory timeframe.

The Administrative Law Judge (ALJ) rejected Val Vista’s defense, which included claims that the relevant statute was outdated and that the association’s internal “Records Policy” justified its non-compliance. The judge’s decision labeled the association’s failure to respond as “simply unacceptable.” Consequently, the OAH ordered Val Vista to comply with the law for all current and future requests, reimburse the Petitioner for $1,000 in filing fees, and pay an additional $1,000 in civil penalties. A subsequent clarification order explicitly extended the compliance mandate to “all pending and future requests,” solidifying the prospective impact of the ruling.

Case Overview

The matter involves two separate petitions filed by a homeowner against a homeowners’ association, which were later consolidated by the OAH for judicial economy.

Entity / Individual

Petitioner

Jeremy R. Whittaker (Appeared on his own behalf)

Respondent

The Val Vista Lake Community Association (Val Vista)

Respondent’s Counsel

Joshua M. Bolen, Esq., CHDB Law LLP

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Presiding ALJs

Velva Moses-Thompson (pre-hearing motions), Adam D. Stone (hearing and final decision)

Overseeing Agency

Arizona Department of Real Estate

Consolidated Dockets

25F-H045-REL and 25F-H054-REL

Procedural History and Key Rulings

The case progressed through a series of motions and orders leading to a final evidentiary hearing and decision.

• Case Consolidation (June 10, 2025): Petitioner’s motion to consolidate docket No. 25F-H054-REL with No. 25F-H045-REL was granted. The hearing for the consolidated matter was scheduled for 9:00 a.m. on July 15, 2025.

• Motions Denied (June 10, 2025): In the same order, a motion for summary judgment was denied, and a motion to quash a subpoena for Bryan Patterson was denied as moot, allowing the Petitioner to file a new subpoena for the revised hearing date.

• Virtual Appearance (June 10, 2025): The Respondent’s motion for a virtual appearance at the hearing via Google Meet was granted.

• Subpoena Rulings:

◦ Bryan Patterson (June 17 & July 1, 2025): The OAH granted a subpoena requiring the appearance of Bryan Patterson but denied the request for the production of documents listed as 2a through 2d. A subsequent motion to quash a new subpoena (dated June 25, 2025) was partially granted; Patterson was still required to appear but not to produce the specified documents.

◦ Tamara Swanson (July 1, 2025): A June 5, 2025 subpoena was partially quashed. Tamara Swanson was ordered to appear at the hearing but was not required to produce documents listed as 2a through 2d.

• Disqualification of Counsel Denied (July 1, 2025): Petitioner filed a motion to disqualify CHDB Law, LLP as counsel for the Respondent, which the OAH denied.

• Evidentiary Hearing (July 15, 2025): The consolidated hearing was held before ALJ Adam D. Stone. The record was held open until July 24, 2025, to allow both parties to submit written closing arguments.

• Final Decision (August 8, 2025): ALJ Adam D. Stone issued a final decision in favor of the Petitioner.

• Order Clarification (August 26, 2025): Upon the Petitioner’s Motion for Clarification, the ALJ modified the decision’s language to ensure future compliance from the Respondent.

Analysis of Records Requests and Disputes

The dispute originated from three separate, comprehensive records requests made by the Petitioner to which the Respondent, Val Vista, failed to provide documents or a substantive response.

Case 25F-H045-REL: Records Policy and Legal Fees

This case encompassed two records requests made on February 27, 2025. The official dispute was summarized in the Notice of Hearing:

“Petitioner alleges Respondent of violating, ‘A.R.S. § 33-1805 by failing to provide the requested records with the ten-business-day statutory deadline, conditioning production on a legally unenforceable ‘Records Request Form’, and withholding critical attorney fee information-particularly troubling given its counsel’s documented disciplinary history for inflated or misleading HOA fee practices.'”

Requested Documents (February 27, 2025):

1. Records Retention and Request Policy: The final, fully executed version of the policy adopted around February 25, 2025, including all exhibits and attachments.

2. Meeting Minutes: Draft or final minutes from the February 25, 2025, Board meeting discussing the adoption of the policy.

3. Legal Services Records:

◦ Current and past legal services agreements and retainers.

◦ Attorney rate schedules and fee structures.

◦ Invoices, billing statements, and payment records (with legally permitted redactions).

◦ Board meeting minutes discussing attorney engagement or retention.

◦ RFPs or other bid solicitations related to retaining legal counsel.

◦ Conflict-of-interest disclosures or waivers concerning the law firm.

◦ Any other records detailing the contractual or advisory relationship.

Case 25F-H054-REL: Financial Records

This case stemmed from a request made on March 21, 2025. The Notice of Hearing defined the dispute:

“Petitioner alleges Respondent of violating, A.R.S. § 33-1805(A), ‘by failing to provide the requested bank statements and FSR-related communications, and is operating in ongoing breach or its statutory obligations.’”

Requested Documents (March 21, 2025):

1. Operating Bank Statements: Complete monthly statements for all operating/checking accounts from January 1, 2024, to the present.

2. Reserve Account Statements: All monthly or quarterly statements for reserve accounts from January 1, 2024, to the present.

For both cases, the final decision confirmed that “No documents have been turned over by Val Vista.”

Final Administrative Law Judge Decision

The ALJ’s final decision on August 8, 2025, provided a clear resolution to the disputes, finding definitively against Val Vista.

Summary of Arguments

• Petitioner’s Position: Argued that Val Vista failed to produce the requested records within the statutory timeline and had no authority to compel the use of a specific records request form or to ignore a request not submitted on that form.

• Respondent’s Position: Argued that A.R.S. § 33-1805 was “outdated and misunderstood” and that it only had ten days to provide copies after an examination of records occurred. Val Vista claimed it created its Records Policy to streamline previously broad requests from members and that some requested documents were privileged.

Conclusions of Law

The ALJ found that the Petitioner met the burden of proving by a preponderance of the evidence that Val Vista violated A.R.S. § 33-1805.

• Wrongful Withholding: The central conclusion was that “Val Vista wrongfully withheld the requested documents.”

• Failure to Respond: The decision stated that Val Vista’s lack of any response was unacceptable. Even if documents were privileged, they “could have properly been withheld and/or redacted.”

• Invalid Justification: The fact that the second request was not made on Val Vista’s preferred form “does not excuse Val Vista from at a minimum responding.” The Petitioner’s written request complied with the statute.

• Unacceptable Conduct: The ALJ concluded, “No response by Val Vista was simply unacceptable, and in violation of the statute.”

Final Order and Penalties

The OAH granted both of the Petitioner’s petitions and imposed the following orders and penalties:

Case Docket

Filing Fee Reimbursement

Civil Penalty

25F-H045-REL

Granted; Respondent must follow A.R.S. § 33-1805(A).

$500.00

$500.00

25F-H054-REL

Granted; Respondent must follow A.R.S. § 33-1805(A).

$500.00

$500.00

$1,000.00

$1,000.00

The total financial judgment against The Val Vista Lake Community Association was $2,000.00.

Post-Decision Clarification

On August 26, 2025, in response to a Motion for Clarification from the Petitioner, ALJ Adam D. Stone issued a modifying order. The order strengthened the original decision by stating:

“IT IS ORDERED that the Administrative Law Judge Decision shall be modified to read, ‘Respondent shall follow the A.R.S. § 33-1805(A) for all pending and future requests.'”

This clarification ensures that the ruling is not limited to the specific past violations but establishes a clear, forward-looking mandate for the association’s compliance with state law regarding member access to records.






Study Guide – 25F-H045-REL



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