Case Summary
| Case ID | 25F-H050-REL |
|---|---|
| Agency | — |
| Tribunal | — |
| Decision Date | 8/5/2025 |
| Administrative Law Judge | NR |
| Outcome | complete |
| Filing Fees Refunded | — |
| Civil Penalties | — |
Parties & Counsel
| Petitioner | Marilyn J. Fogelsong | Counsel | Pro se |
|---|---|---|---|
| Respondent | Park Townhouses Homeowners Association, Inc. | Counsel | — |
Alleged Violations
No violations listed
Video Overview
Audio Overview
Decision Documents
25F-H050-REL Decision – 1380164.pdf
25F-H050-REL Decision – 1384549.pdf
25F-H050-REL Decision – 1384804.pdf
25F-H050-REL Decision – 1393862.pdf
25F-H050-REL Decision – 1401266.pdf
25F-H050-REL Decision – 1336348.pdf
25F-H050-REL Decision – 1348020.pdf
# Litigation Briefing: Fogelsong v. Park Townhouses Homeowners Association (Case No. 25F-H050-REL)
## Executive Summary
This briefing document analyzes the legal dispute between Marilyn J. Fogelsong ("Petitioner") and the Park Townhouses Homeowners Association, Inc. ("Respondent" or "Association"), a small eight-unit planned community in Tucson, Arizona. The litigation, spanning from March 2025 through March 2026, centered on Petitioner’s allegations of statutory and governing document violations by the Association’s Board of Directors.
The dispute followed a transition in 2024 from self-management to the hiring of Tucson Realty & Trust Company ("TRT") for professional HOA management. Petitioner, a former Board President and 5% co-owner of a unit, raised four primary issues: conflicts of interest regarding the property manager, unauthorized maintenance of private property, violations of open meeting laws, and breach of fiduciary duties.
Following an initial hearing in July 2025 (where Respondent failed to appear) and a subsequent rehearing in February 2026, the Office of Administrative Hearings (OAH) denied all of Petitioner's claims. The presiding Administrative Law Judges (ALJs) concluded that Petitioner failed to meet the burden of proof required to establish statutory violations and that several claims were either filed under incorrect statutes or fell outside the Department of Real Estate's jurisdiction.
---
## Detailed Analysis of Key Issues
The litigation was structured around four specific claims filed with the Arizona Department of Real Estate (ADRE).
### Issue 1: Conflict of Interest (A.R.S. § 33-1811)
Petitioner alleged that the Board failed to disclose conflicts of interest when hiring TRT as the HOA property manager.
* **Petitioner's Argument:** TRT manages individual rental units for two Board members (Gerald Schwarzenbach and Mark Schlang). Petitioner claimed TRT showed "preferential treatment" by failing to remit parking fines collected from tenants to the HOA and failing to disclose tenant contact information as required by law.
* **Respondent's Rebuttal:** The Association argued that the dual role of a management company handling both the HOA and individual units was a long-standing practice (over 20 years). Mark Schlang testified that parking fines were not remitted because they could not be authenticated (lacking time/date stamps) and were eventually settled under protest to "clean up" the records.
* **Judicial Finding:** The ALJ ruled that Petitioner failed to prove that the hiring of TRT constituted a conflict of interest under A.R.S. § 33-1811. The evidence did not establish that the contract provided an impermissible benefit to Board members or their families.
### Issue 2: Scope of Management (CC&R Paragraph 19)
Petitioner argued that the HOA exceeded its authority by pursuing a painting project for individual townhouses.
* **Petitioner's Argument:** Paragraph 19 of the CC&Rs restricts HOA management to "common areas" (driveways and specific landscaping). Petitioner claimed the Board used HOA resources to solicit bids for private structures, including her own, without consent.
* **Respondent's Rebuttal:** The Board clarified that while they solicited a bulk bid to ensure community aesthetic uniformity, they did not use HOA funds for private repairs. Instead, six of the eight owners voluntarily pooled their resources to hire the contractor individually.
* **Judicial Finding:** The ALJ found no evidence that HOA funds were actually expended on individual units. Because the work was performed as a collaborative effort among willing owners and not mandated as an HOA expense, no violation of the CC&Rs occurred.
### Issue 3: Open Meeting Laws and Records Requests (A.R.S. § 33-1804)
Petitioner alleged that the Board held private meetings without notice and failed to provide requested documents within the statutory 10-day window.
* **Petitioner's Argument:** Requests for meeting minutes, financial statements, and management proposals made in early 2025 went ignored. Furthermore, a meeting held on February 17, 2025, was provided with only seven days' notice rather than the ten days required by the Bylaws.
* **Judicial Finding:** The ALJ noted that while the Board admitted to delays in providing records (due to confusion during the management transition), Petitioner pled her case under A.R.S. § 33-1804 (Open Meetings) rather than A.R.S. § 33-1805 (Records Requests). To find a violation under an unpled statute would violate the Respondent's due process. Regarding the February meeting, the notice sent via email was deemed sufficient for a Board meeting under the emergency/regular provisions of the Bylaws.
### Issue 4: Fiduciary Duty (A.R.S. § 10-830)
Petitioner alleged the Board failed to act in good faith and with the care of an ordinarily prudent person.
* **Outcome:** This issue was **stricken** from both the original and rehearing proceedings. The ADRE and OAH do not have jurisdiction to adjudicate claims under Title 10 (Corporations and Associations); their authority is limited to Title 33 (Planned Communities) and condominium documents.
---
## Key Entities and Roles
| Entity/Individual | Role in Dispute | Key Facts |
| :--- | :--- | :--- |
| **Marilyn J. Fogelsong** | Petitioner | Co-owner (5%) of Lot 8; former Board President (2021–2024). |
| **Park Townhouses HOA** | Respondent | 8-unit planned community in Tucson, AZ. |
| **Tucson Realty & Trust (TRT)** | Property Manager | Hired for HOA management Feb 2025; also manages private units for Board members. |
| **Mark Schlang** | Board Treasurer | Long-time owner (since 1984); witness for Respondent. |
| **Gerald Schwarzenbach** | Board Secretary | Designated representative for Respondent; owner since 1997. |
| **Nicole Robinson** | ALJ | Presided over the initial July 2025 hearing. |
| **Jenna Clark** | ALJ | Presided over the February 2026 rehearing. |
---
## Important Quotes with Context
> **"It’s all new to me, but I don’t have a specific question."**
> — *Marilyn J. Fogelsong (Initial Hearing, 1:21 p.m.)*
> **Context:** Petitioner's admission at the start of the first hearing, highlighting her status as a self-represented (pro se) litigant navigating administrative law for the first time.
> **"The association chose to find a professional management company to look after our interests because we are owners spread far and wide."**
> — *Gerald Schwarzenbach (Rehearing Testimony)*
> **Context:** Explaining the rationale for returning to professional management through TRT after a period of self-management under Petitioner's tenure.
> **"Notice was given on February 10th, which was improper notice because our CCNRs require 10 days notice... and Arizona law does too."**
> — *Marilyn J. Fogelsong (Rehearing Testimony)*
> **Context:** Petitioner’s central argument regarding the lack of transparency and statutory compliance in the Board’s decision-making process.
> **"Character is not at issue in an HOA dispute. Neither party shall be permitted to offer character evidence regarding a party or witness."**
> — *ALJ Jenna Clark (Minute Entry, Feb 9, 2026)*
> **Context:** A legal ruling issued to prevent the hearing from devolving into personal attacks regarding Petitioner's alleged "systematic attempt to devalue the property."
---
## Actionable Insights
Based on the findings of the Administrative Law Judges and the evidence presented in the case, the following insights are derived for future HOA governance or legal disputes:
1. **Statutory Precision in Filing:** The denial of Issue 3 (Records Requests) underscores the necessity of citing the correct statute. Filing a records request grievance under A.R.S. § 33-1804 (Open Meetings) rather than § 33-1805 (Records) is a fatal procedural error that an ALJ cannot correct without violating due process.
2. **Clarifying Management Scope:** To avoid disputes regarding "unsanctioned projects" on private property, Associations should clearly distinguish between HOA-funded maintenance and owner-funded maintenance facilitated by the HOA. In this case, the Board avoided liability because they did not mandate the project or spend Association funds on private units.
3. **Conflict of Interest Disclosure:** While the court did not find a violation, the friction caused by TRT's dual role suggests that HOAs should formally disclose any business relationships between the management firm and individual board members during open meetings to ensure compliance with A.R.S. § 33-1811.
4. **Jurisdictional Limits:** Petitioners must recognize that the ADRE only handles matters related to Title 33. Any claims regarding corporate "good faith" or general standards of conduct for directors (Title 10) must be pursued in Superior Court, as they fall outside administrative jurisdiction.
5. **Documentation of Violations:** For enforcement of fines (e.g., parking), documentation must be robust. The Board’s inability to collect or remit fines in this case stemmed from a lack of "independent verification" (time/date stamps), making the violations legally vulnerable.
# Study Guide: Marilyn J. Fogelsong v. Park Townhouses Homeowners Association This study guide provides a comprehensive overview of the administrative legal proceedings regarding the dispute between Marilyn J. Fogelsong and the Park Townhouses Homeowners Association (HOA). It covers the core legal issues, the procedural history of the case before the Arizona Office of Administrative Hearings (OAH), and the specific statutes and governing documents at the center of the conflict. --- ## Part 1: Key Concepts and Case Summary ### Case Overview The matter of *Marilyn J. Fogelsong v. Park Townhouses Homeowners Association, Inc.* (No. 25F-H050-REL) involved a homeowner (Petitioner) alleging multiple violations of state statutes and community governing documents by the HOA Board (Respondent). The case underwent an initial hearing in July 2025 and a subsequent rehearing in February 2026. ### The Four Primary Issues The petition filed with the Arizona Department of Real Estate (ADRE) identified four central legal claims: 1. **Conflict of Interest (A.R.S. § 33-1811):** Allegations that the Board failed to disclose conflicts of interest when hiring Tucson Realty & Trust (TRT) as the HOA property manager, specifically because TRT also managed individual rental units for Board members. 2. **Unauthorized Maintenance Projects (CC&R Paragraph 19):** Allegations that the HOA overstepped its authority by directing the property manager to pursue painting and repair projects for individual townhouses, which the Petitioner argued was beyond the scope of common area management. 3. **Open Meeting Law Violations (A.R.S. § 33-1804 A & F):** Allegations that the Board held private meetings without notice and failed to provide requested material information, such as minutes, financial statements, and budgets. 4. **Breach of Fiduciary Duty (A.R.S. § 10-830A):** Allegations that the Board failed to act in good faith or with the care of an ordinarily prudent person. Note: This issue was eventually **stricken** because the ADRE and OAH lack jurisdiction over Title 10 corporate statutes. ### Legal Standards and Burdens * **Burden of Proof:** In these administrative proceedings, the Petitioner (Fogelsong) maintains the burden of proof. * **Preponderance of the Evidence:** The evidentiary standard required. This means the Petitioner must prove that the existence of a contested fact is more probable than its nonexistence (i.e., more likely than not). * **Standing:** The right of a party to bring a legal claim. The Respondent challenged Fogelsong’s standing because she held only a 5% ownership interest in the property, while her son held the remainder. The Tribunal ultimately recognized her standing based on the recorded deed and authorization from her co-owner. --- ## Part 2: Short-Answer Practice Questions **1. Why was the Petitioner’s claim regarding A.R.S. § 10-830(A) (Issue 4) dismissed without being adjudicated on its merits?** *Answer:* The Office of Administrative Hearings (OAH) and the Department of Real Estate do not have jurisdiction to enforce Title 10 statutes, which pertain to corporate standards of conduct. Their jurisdiction is limited to Title 33 (Planned Communities/Condominiums) and the community’s governing documents. **2. What specific evidence did the Petitioner provide to support the "Conflict of Interest" claim regarding TRT Property Management?** *Answer:* The Petitioner argued that TRT managed individual units for Board members Mark Schlang and Gerald Schwarzenbach. She alleged TRT gave these members "preferential treatment," such as failing to remit parking fines collected from tenants to the HOA and failing to disclose tenant contact information. **3. What was the HOA Board's defense regarding the failure to provide tenant contact information to the Petitioner?** *Answer:* The Board (via Mark Schlang) testified that tenant information was withheld because the Petitioner had previously used such information to conduct unauthorized background checks on tenants without the knowledge of the landlords or the tenants. **4. How did the Tribunal rule on the issue of the HOA painting individual townhouses?** *Answer:* The claim was denied. The Tribunal found that while the HOA manages common areas, members can vote to delegate private property maintenance to the Association. Evidence showed that six out of eight members voted to pool resources and hire a contractor for a collective painting project. **5. What procedural error did the Petitioner make when alleging the Board failed to provide records within 10 days?** *Answer:* The Petitioner cited A.R.S. § 33-1804 (Open Meeting Laws). However, the Tribunal noted that records requests are governed by A.R.S. § 33-1805. Because the Petitioner did not specifically plead a violation of § 33-1805, the Tribunal could not find the Respondent in violation without infringing on their Due Process rights. --- ## Part 3: Essay Prompts for Deeper Exploration 1. **The Limits of HOA Authority:** Paragraph 19 of the Park Townhouses CC&Rs grants the HOA authority over "common elements" and "common areas." Analyze the tension between individual property rights and collective HOA action as presented in this case. In your response, consider the Board's argument that the community functioned through a "general plan or scheme of improvements" and the Petitioner’s counter-argument using the *Callaway v. Calabria Ranch* Supreme Court case. 2. **Evaluating the Preponderance of Evidence:** The Administrative Law Judge (ALJ) denied all of the Petitioner’s claims primarily based on a failure to meet the burden of proof. Detail the specific "indicia of evidence" the Petitioner lacked for Issue 1 (Conflict of Interest) and Issue 3 (Open Meetings). How might a Petitioner better substantiate claims of "favoritism" or "unauthorized meetings" in an administrative tribunal? 3. **Conflict of Interest in Small Associations:** Park Townhouses consists of only eight units. Discuss the practical and legal challenges of managing a very small HOA where board members are often neighbors and may share the same third-party property management services for their individual rentals. Does the dual role of a management company (managing both the HOA and individual units) create an inherent conflict, or must a "benefit" be specifically proven under A.R.S. § 33-1811? --- ## Part 4: Glossary of Important Terms | Term | Definition | | :--- | :--- | | **A.R.S. § 33-1804** | The Arizona statute governing open meetings for planned communities, requiring notice, agendas, and the right for members to speak. | | **A.R.S. § 33-1811** | The Arizona statute regarding conflicts of interest; it requires board members to declare a benefit in an open meeting before a vote is taken. | | **Advisory/Recommended Decision** | The initial decision issued by an ALJ, which is then sent to the Commissioner of the Department of Real Estate for final approval, rejection, or modification. | | **CC&Rs** | Covenants, Conditions, and Restrictions; the primary governing documents that "run with the land" and define the rights and obligations of owners and the HOA. | | **Common Elements** | Areas within a development owned by the HOA or by all owners collectively (e.g., driveways, streets, recreational facilities). | | **Due Process Rights** | The legal requirement that the state must respect all legal rights owed to a person, including the right to be informed of specific charges (statutes) being held against them. | | **In Limine** | A motion made "at the threshold" of a hearing to exclude or include certain evidence or arguments before the proceedings begin. | | **Preponderance of the Evidence** | The standard of proof in civil and administrative cases; proof that a claim is "more likely than not" to be true. | | **Rehearing** | A second hearing granted on specific grounds, such as an error in law or the discovery of evidence not supported by the initial findings of fact. | | **Standing** | The legal capacity of a person to participate in a lawsuit; in this case, established by a 5% interest in a property and co-owner authorization. | | **Tribunal** | A body of one or more judges (in this case, an Administrative Law Judge) gathered to adjudicate a dispute. |
# Behind the Gavel: Lessons from the Park Townhouses HOA Legal Battle In the world of Arizona property law, justice often comes with a steep price tag. For Marilyn J. Fogelsong, the entrance fee was exactly $2,000. That was the non-refundable "pay-to-play" filing fee required to bring four grievances before the Office of Administrative Hearings on July 16, 2025. The dispute centered on the Park Townhouses Homeowners Association, a "micro-HOA" in Tucson consisting of just eight units. But don't let the small scale fool you. What began as a disagreement over management choices and transparency spiraled into a multi-year legal saga that serves as a cautionary tale for any homeowner or board member navigating the administrative labyrinth of HOA governance. ### 1. The Standing Standoff: When is an Owner Not an Owner? Before the merits of the case could even be weighed, Fogelsong faced a significant procedural hurdle: standing. The Board challenged her right to sue, pointing to her limited ownership stake. Fogelsong had paid $12,000 for a 5% interest in a unit owned by her son, Levi Lazarus. The Board’s challenge carried a sting of irony. For three years, the Association and its management firm, Tucson Realty & Trust (TRT), had accepted Fogelsong as a voting member; she had even served as the Board President. However, as the legal battle intensified in 2025, the Board pivoted, arguing her "limited stake" disqualified her. While Administrative Law Judge (ALJ) Jenna Clark affirmed that standing is "always an issue," the court ultimately applied the preponderance of evidence standard, allowing the co-owner’s voice to be heard. ### 2. Conflict of Interest: Professional Management vs. Personal Ties The first major legal pivot involved the hiring of TRT. Fogelsong argued that TRT’s dual role—managing the HOA while simultaneously managing individual rental units for Board members Gerald Schwarzenbach and Mark Schlang—created a conflict of interest under ARS 33-1811. Fogelsong alleged that this "special relationship" led to unremitted fines and a lack of transparency. The Board’s defense, however, leaned on historical precedent and the practical realities of a small community. | Petitioner's Allegations | Respondent's Defense | | :--- | :--- | | TRT’s dual role (HOA and unit manager) created an undisclosed conflict under ARS 33-1811. | TRT maintained separate divisions; similar arrangements existed for 20 years with previous firms without issue. | | TRT failed to remit collected parking fines (approx. $350) to the HOA. | Fines lacked date/time stamps and were uncollectible; records were settled under protest during the management transition. | | The Board and TRT withheld mandatory tenant contact and vehicle information. | Information was withheld as a protective measure because the Petitioner allegedly used prior data to run unauthorized background checks on tenants. | The ALJ ultimately ruled that Fogelsong failed to prove the TRT contract specifically "benefited" board members in an unlawful manner, noting that the existence of separate management divisions mitigated the claim of a statutory violation. ### 3. The Painting Paradox: Authority vs. Owner Coordination Issue #2 took the court into the aesthetics of the community. Fogelsong challenged a community-wide painting project, citing Paragraph 19 of the CC&Rs. She argued that while the HOA has authority over "Common Elements" (like the driveway), it had no right to manage or spend HOA funds on individual townhouses. The 2026 rehearing revealed a crucial distinction for HOA boards: the "pooling of resources." The Board testified that while the HOA could not mandate the work, six out of eight owners had voluntarily contracted with the vendor to improve community aesthetics. Because the project was owner-coordinated and voluntary, the ALJ found no expenditure violation. The Petitioner’s case was further weakened by failing to provide the full text of the CC&Rs during the initial 2025 hearing, illustrating the "failed burden of proof" that haunts many self-represented litigants. ### 4. The "Paperwork Trap": Why Statutory Precision Matters Perhaps the most frustrating chapter for the Petitioner was Issue #3. Fogelsong alleged that the Board refused to provide meeting minutes, financial statements, and management proposals. In testimony, the Board actually admitted they had failed to provide these records in a timely fashion. **However, Fogelsong still lost the claim.** > **Legal Lesson Learned: The Due Process Trap** > In administrative law, the court is bound by what is explicitly pled in the petition. Fogelsong alleged violations of **ARS 33-1804** (Open Meeting Laws). However, the failure to provide documents is governed by **ARS 33-1805** (Records Access). Because the wrong statute was cited, the ALJ could not find the HOA in violation, despite the Board’s admission of the delay. Statutory precision also doomed the notice claim. Fogelsong pointed out that the agenda for the May 5, 2025 meeting was provided only 36 hours in advance, missing the 10-to-50-day requirement. But because the specific subsection (ARS 33-1804(B)) was not properly pled, the court’s hands were tied. ### 5. Jurisdictional Limits: The Stricken Claim It is vital to note that a fourth issue—an alleged violation of **ARS 10-830** (Corporate Good Faith)—was stricken from the 2026 proceedings entirely. The ALJ ruled that the Department of Real Estate lacks the jurisdiction to enforce corporate "Good Faith" statutes, as its authority is strictly limited to Title 33 (Property) and specific HOA/Condominium governing documents. ### 6. Conclusion: Navigating the HOA Maze Despite multiple hearings and a motion for summary judgment, Fogelsong’s petitions were ultimately denied. The 2025 and 2026 rulings reinforce a hard truth: in the administrative arena, being "right" about a grievance is only half the battle. **Key Takeaways for Homeowners:** 1. **The Burden is Yours:** The Petitioner must prove a fact is "more probable than not." Without time-stamped evidence or full CC&R texts, claims of illegal parking or unauthorized projects often fail. 2. **Cite with Care:** Confusing "Open Meetings" (33-1804) with "Records Access" (33-1805) is a fatal error. The court cannot "fix" your petition to cite the correct law. 3. **Understand "Pooling":** An HOA might not have the authority to paint your house, but if your neighbors voluntarily pool their resources, they can effectively bypass HOA expenditure restrictions to achieve community-wide goals. The final decisions in these cases are now binding. For the residents of Park Townhouses, any further challenge would require an appeal to the Superior Court within 35 days—a final exit ramp in a long and costly legal journey.
Case Participants
Petitioner Side
- Marilyn J. Fogelsong (Petitioner)
Co-owner of Unit 2467 - Levi Benjamin Lazarus (Co-owner)
Son of petitioner - Jason Smith (Attorney)
Retained by Petitioner to evaluate CC&Rs
Respondent Side
- Gerald Schwarzenbach (Secretary and Respondent Representative)
Park Townhouses Homeowners Association, Inc.
Owner of Unit 2463 - Mark Schlang (Treasurer and Witness)
Park Townhouses Homeowners Association, Inc.
Owner of Unit 2455 - Andrew F. Vizcarra (Associate Manager)
Tucson Realty & Trust Company, Management Services, LLC
HOA property manager - Ray Flores (President)
Park Townhouses Homeowners Association, Inc. - Sasha Flores (Bank Signer)
Park Townhouses Homeowners Association, Inc.
Wife of Ray Flores
Neutral Parties
- Nicole Robinson (Administrative Law Judge)
Office of Administrative Hearings
Presided over the initial hearing - Jenna Clark (Administrative Law Judge)
Office of Administrative Hearings
Presided over the rehearing - Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Other Participants
- David Zeinfeld (Observer)
Homeowner - Jodie Schlang (Observer)
- Deborah Garcia (Broker)
Tucson Realty & Trust Company
