Tag Archives: Pro se

Scott D Haferkamp v Artisan Parkview Condominium Association, INC.

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Case Summary

Case ID 25F-H047-REL
Agency —
Tribunal Arizona Office of Administrative Hearings
Decision Date 12/6/2025
Administrative Law Judge KAA
Outcome Petition Denied
Filing Fees Refunded —
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H047-REL Decision – 1341015.pdf

Uploaded 2026-04-24T12:45:54 (41.8 KB)

25F-H047-REL Decision – 1346232.pdf

Uploaded 2026-04-24T12:46:00 (48.2 KB)

25F-H047-REL Decision – 1375556.pdf

Uploaded 2026-04-24T12:46:18 (130.9 KB)

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

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

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

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Case Summary

Case ID 25F-H049-REL
Agency —
Tribunal —
Decision Date 2025-12-02
Administrative Law Judge ADS
Outcome —
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 – 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 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 —
Filing Fees Refunded —
Civil Penalties $167.00

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

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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 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

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

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

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Case Summary

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

Parties & Counsel

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

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H070-REL Decision – 1350920.pdf

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

25F-H070-REL Decision – 1352025.pdf

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

25F-H070-REL Decision – 1355826.pdf

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

25F-H070-REL Decision – 1363586.pdf

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

Briefing Document: Magana v. Wynstone Park Homeowners Association

Executive Summary

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

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

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

Case Overview

Entity / Individual

Petitioner

Sally Magana (Homeowner)

Respondent

Wynstone Park Homeowners Association (HOA)

Presiding Judge

Velva Moses-Thompson, Administrative Law Judge (ALJ)

Case Number

25F-H070-REL

Hearing Date

October 9, 2025

Decision Date

October 29, 2025

Timeline of Key Events

July 3, 2019

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

Feb 26, 2021

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

Jan 27, 2025

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

Feb 11, 2025

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

March 12, 2025

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

May/June 2025

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

June 2, 2025

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

June 11, 2025

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

July 14, 2025

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

July 17, 2025

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

Oct 29, 2025

The ALJ issued a decision dismissing the petition.

Petitioner’s Allegations and Arguments

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

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

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

Respondent’s Position and Defense

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

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

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

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

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

Key Testimonies and Evidence

Witness Testimony

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

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

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

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

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

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

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

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

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

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

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

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

Key Exhibits

Exhibit #

Description & Significance

Respondent

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

Respondent

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

Petitioner

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

Respondent

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

H, I, K

Respondent

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

Petitioner

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

Administrative Law Judge’s Decision and Rationale

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

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

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

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

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

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

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

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

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

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

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

1. Case Overview and Background

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

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

2. Key Legal and Procedural Concepts

OAH Jurisdiction

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

Burden of Proof

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

Maintenance vs. Architectural Change

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

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

3. Short-Answer Practice Questions

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

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

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

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

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

4. Essay Prompts for Deeper Exploration

Prompt 1: Jurisdictional Limits in HOA Disputes

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

Prompt 2: The Definition of "Alteration"

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

Prompt 3: Selective Enforcement and Evidence

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

5. Glossary of Important Terms

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

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

1. Introduction: The High Stakes of Home Improvements

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

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

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

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

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

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

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

3. The Parking Puzzle: Variances and Nuisances

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

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

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

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

4. Inside the Hearing: The Legal Thresholds

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

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

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

5. The Final Verdict: Why the HOA Prevailed

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

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

This case clarifies the murky waters between maintenance and modification.

For Homeowners:

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

For HOA Boards:

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

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

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Case Summary

Case ID 25F-H061-REL
Agency —
Tribunal —
Decision Date 2025-09-01
Administrative Law Judge KAA
Outcome —
Filing Fees Refunded —
Civil Penalties $0.00

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 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)

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.
  1. 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."
  1. 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.
  1. 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.
  1. 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."
  1. 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.
  1. 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.
  1. 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.

  1. 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?

  1. 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

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
📋 Consolidated cases — This decision resolved 2 consolidated dockets: 25F-H045-REL, 25F-H054-REL.

Case Summary

Case ID 25F-H045-REL
Agency —
Tribunal —
Decision Date 2025-08-08
Administrative Law Judge Adam D. Stone; Velva Moses-Thompson
Outcome Petitions granted in favor of Petitioner
Filing Fees Refunded —
Civil Penalties $1,000.00

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 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.

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25F-H045-REL

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These legal documents detail a dispute between Jeremy R. Whittaker and the Val Vista Lakes Community Association regarding the association’s refusal to provide access to corporate and financial records. The Arizona Office of Administrative Hearings oversaw the proceedings, which included motions to consolidate two separate cases, requests for virtual appearances, and various rulings on subpoenas for witnesses and documents. The Administrative Law Judge eventually determined that the association violated state law by ignoring record requests and mandating the use of an unauthorized internal form. As a result, the court ordered the association to reimburse filing fees, pay civil penalties, and comply with statutory transparency requirements for all current and future requests. The final records indicate that the evidentiary hearing concluded with the record being held open for written closing arguments before the final judgment was issued.

What were the legal disputes between Whittaker and the Association?
How did the judge rule on the records access violations?
What financial penalties were imposed against the Val Vista Lake Association?

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25F-H045-REL

11 sources

These legal documents detail a dispute between Jeremy R. Whittaker and the Val Vista Lakes Community Association regarding the association’s refusal to provide access to corporate and financial records. The Arizona Office of Administrative Hearings oversaw the proceedings, which included motions to consolidate two separate cases, requests for virtual appearances, and various rulings on subpoenas for witnesses and documents. The Administrative Law Judge eventually determined that the association violated state law by ignoring record requests and mandating the use of an unauthorized internal form. As a result, the court ordered the association to reimburse filing fees, pay civil penalties, and comply with statutory transparency requirements for all current and future requests. The final records indicate that the evidentiary hearing concluded with the record being held open for written closing arguments before the final judgment was issued.

What were the legal disputes between Whittaker and the Association?
How did the judge rule on the records access violations?
What financial penalties were imposed against the Val Vista Lake Association?

Thursday, February 12

Save to note

Today • 5:24 PM

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Reports

Flashcards

Quiz

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Jeremy R. Whittaker (Petitioner)

Respondent Side

  • Joshua M. Bolen (Counsel)
    CHDB Law LLP

Neutral Parties

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

Other Participants

  • Bryan Patterson (Subpoenaed Party)
  • Tamara Swanson (Subpoenaed Party)

Marilyn J Fogelsong vs Park Townhouses Homeowners Association, INC

Posted on by

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

Uploaded 2026-04-24T12:47:57 (51.8 KB)

25F-H050-REL Decision – 1384549.pdf

Uploaded 2026-04-24T12:48:00 (49.0 KB)

25F-H050-REL Decision – 1384804.pdf

Uploaded 2026-04-24T12:48:04 (7.5 KB)

25F-H050-REL Decision – 1393862.pdf

Uploaded 2026-04-24T12:48:10 (59.6 KB)

25F-H050-REL Decision – 1401266.pdf

Uploaded 2026-04-24T12:48:20 (231.3 KB)

25F-H050-REL Decision – 1336348.pdf

Uploaded 2026-04-24T12:48:24 (157.7 KB)

25F-H050-REL Decision – 1348020.pdf

Uploaded 2026-04-24T12:48:28 (43.9 KB)

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.
  1. 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?
  1. 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

Nicholas Thomas v. Tanglewood Association

Posted on by

Case Summary

Case ID 25F-H037-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2025-07-13
Administrative Law Judge KAA
Outcome —
Filing Fees Refunded —
Civil Penalties $0.00

Parties & Counsel

Petitioner Nicholas Thomas Counsel Pro Se
Respondent Tanglewood Association Counsel Hector Saavedra, Co-President

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H037-REL Decision – 1300705.pdf

Uploaded 2026-04-24T12:40:08 (49.8 KB)

25F-H037-REL Decision – 1327762.pdf

Uploaded 2026-04-24T12:40:17 (147.6 KB)

Briefing Document: Nicholas Thomas v. Tanglewood Association (Case No. 25F-H037-REL)

Executive Summary

This briefing document synthesizes the proceedings and outcome of Case No. 25F-H037-REL, a dispute between property owner Nicholas Thomas (Petitioner) and the Tanglewood Association (HOA/Respondent). The case was adjudicated by the Arizona Office of Administrative Hearings, with a final decision issued on July 13, 2025.

The Petitioner filed a two-issue petition alleging that the HOA (1) failed in its duty to perform timely plumbing repairs, rendering his unit uninhabitable, and (2) failed to hire a professional property management company, leading to systemic financial and operational issues.

The HOA countered that the repair delays were not due to inaction but to severe financial constraints and the procedural necessity of securing a majority vote from homeowners for a special assessment. This funding was required for the extensive and costly repairs needed for the property’s aging infrastructure. The HOA highlighted that the Petitioner had never participated in these critical votes.

The Administrative Law Judge ultimately denied the petition in its entirety, finding that the Petitioner had not met his burden of proof. The decision concluded that the HOA’s actions were constrained by its financial reality and governing documents, not a breach of duty. The delays were attributed to the failed attempts to secure owner-approved funding via special assessment votes in prior years. The HOA was determined to be the prevailing party, and the Petitioner was ordered to bear his own filing fees.

I. Case Overview

• Case Number: 25F-H037-REL

• Parties:

◦ Petitioner: Nicholas Thomas, owner of Unit 141, Building 4

◦ Respondent: Tanglewood Association (HOA), represented by Co-President Hector Saavedra

• Adjudicating Body: Arizona Office of Administrative Hearings (OAH)

• Presiding Judge: Administrative Law Judge Kay A. Abramsohn

• Timeline:

◦ Petition Filed: February 7, 2025

◦ Hearing Date: May 16, 2025

◦ Decision Issued: July 13, 2025

The Petitioner filed a petition with the Arizona Department of Real Estate alleging the HOA violated its CC&Rs by failing to maintain the property and by not hiring professional management. The matter was referred to the OAH for an evidentiary hearing.

II. Complaint #1: Failure to Repair Plumbing Issue

Petitioner’s Position

The central claim was that the HOA failed to address a severe plumbing issue in a timely manner, which stemmed from common lines outside the Petitioner’s unit.

• Timeline of Events:

◦ October 2024: The Petitioner first became aware of a plumbing issue causing the kitchen sink to back up. A private plumber determined the issue was external to the unit.

◦ November 18, 2024: The HOA was formally notified of the problem.

◦ January/February 2025: Communication from the HOA ceased, prompting the Petitioner to file his complaint.

◦ February 18, 2025: The Petitioner canceled the lease with his tenants as the unit was deemed “uninhabitable” due to flooding and a non-functional sink.

• Consequences: The Petitioner cited damage to the kitchen floor and walls, the loss of rental income, and the ongoing uninhabitable state of the unit. The water line to the sink was eventually capped in February 2025 to stop the flooding, but this did not resolve the underlying issue.

• Key Quote: “The plumbing issue has been in place for 7 months. It has not been addressed. The house is currently unlivable, uninhabitable, still has damage in it. Um, and I do believe the HOA has failed in its required responsibilities to address this issue.” – Nicholas Thomas

• Requested Relief:

1. An order for the HOA to fix the plumbing with a specific timeline.

2. Reimbursement of the $500 portion of the filing fee for this complaint.

3. Reimbursement for lost rent.

Respondent’s Position (Tanglewood HOA)

The HOA argued that the delay was a direct result of financial insolvency and procedural requirements stipulated in its governing documents, not negligence.

• Systemic Problem: The plumbing issues were not isolated to the Petitioner’s unit but were part of a larger problem with the property’s aging infrastructure, dating back to 1965. A similar issue in another building cost $15,000 to repair two years prior.

• Financial & Procedural Hurdles: The estimated cost for the current repairs was initially $15,000 but rose to $50,000. The HOA stated it was “flat broke” with minimal reserves. The CC&Rs mandate a majority vote of over 50% (50.1%) of owners to approve a special assessment for such funding.

• Key Quote: “It should be noted that the board cannot increase the dues of the HOA or or ask for an special assessment unless we have a 50.01% vote from the owners. Mr. Thomas hasn’t voted in two three years and the things that he’s been asking for need their vote to make them happen.” – Hector Saavedra

• Voting History: Attempts to pass a special assessment failed in 2022 and 2023 due to a lack of owner participation. The Petitioner acknowledged he had never voted.

• Eventual Success: In 2025, after significant effort, the HOA secured a 50.35% vote to approve a $70,000 special assessment. This was structured in three phases to ease the financial burden on owners.

• Current Action Plan: At the time of the hearing, the HOA had collected approximately $40,000, made a $15,000 down payment to a plumbing contractor, and was scheduling the work. The repairs were set to begin with Building 4, which includes the Petitioner’s unit and was identified as having the most severe damage.

III. Complaint #2: Lack of Professional Management

Petitioner’s Position

This complaint asserted that the root cause of the HOA’s problems was its self-managed, volunteer-run structure, which was incapable of handling the property’s complex needs.

• Core Argument: A volunteer board lacks the time, expertise, and resources for effective financial management, enforcement of dues collection (including foreclosure on delinquent owners), and timely handling of maintenance. The Petitioner’s brother, Lucas Thomas, testified that in his 15 years as a property manager, he has consistently seen self-managed HOAs fail to operate correctly.

• Alleged Financial Mismanagement: The Petitioner argued the HOA should have been proactively increasing dues up to the 20% annual limit allowed by Arizona Revised Statutes (A.R.S. § 33-1803) without an owner vote, which would have built necessary reserves.

• Key Quote: “Every time that there is a self-managed HOA, the volunteers just don’t have the knowledge or the knowhow or the connections to locals that they need to properly facilitate a giant management especially for 42 units.” – Lucas Thomas

• Requested Relief:

1. An order for the HOA to hire a professional property management company.

2. Reimbursement of the $500 portion of the filing fee for this complaint.

Respondent’s Position (Tanglewood HOA)

The HOA acknowledged the challenges of a volunteer board but maintained that its primary obstacle was financial, not a lack of willingness to act.

• Affordability: The board had discussed hiring a professional management company but concluded it could not afford the expense. They feared that passing the cost to owners would result in even greater delinquency in dues payments.

• Volunteer Effort and Investment: The board is comprised of unpaid owner volunteers who live on the property and are personally impacted by the issues. Mr. Saavedra noted the immense personal time and stress involved, stating, “We are working we understand there’s around seven units right now that are vacant just like Mr. Thomas’s. We understand the pain of not being able to collect money from that from rent.”

• Invitation to Participate: The HOA extended an invitation to Mr. Thomas to join the board and contribute to finding solutions.

IV. Administrative Law Judge’s Decision & Rationale

The Administrative Law Judge (ALJ) denied the Petitioner’s petition on all counts, finding the evidence did not support a conclusion that the HOA had violated its duties.

• Final Order:

◦ The Petitioner’s Petition is denied.

◦ The HOA is the prevailing party.

◦ The Petitioner shall bear his own filing fees ($1,000.00).

◦ The OAH does not have the authority to award damages, such as lost rent.

• Rationale for Denying Complaint #1 (Plumbing Repair):

◦ The Petitioner failed to meet the burden of proving the HOA was not performing its duties.

◦ The evidence demonstrated that upon receiving complaints, the HOA hired a vendor and investigated the issue. The subsequent delay was a direct result of the high cost of repair and the HOA’s lack of funds.

◦ The HOA’s governing documents prevent a property manager or agent from spending more than $5,000, even in an emergency, without Board approval. Therefore, an immediate, large-scale repair was contractually and financially impossible without the owner-approved special assessment. The delay was thus a consequence of procedural and financial constraints, not a failure of duty.

• Rationale for Denying Complaint #2 (Professional Management):

◦ The ALJ found the hearing record to be “simply vague” on this issue.

◦ It could not be determined whether the HOA ever had a property manager in the past or to whom the “Management Agreement” clauses in the CC&Rs currently apply. Without a clearer record, a violation could not be established.

V. Key Participants & Testimony

Participant

Key Testimony & Contributions

Nicholas Thomas

Petitioner, Owner of Unit 141

Outlined the 7-month timeline of the plumbing failure, the resulting uninhabitability of his unit, and the financial losses incurred. Argued for professional management and acknowledged he had never voted in HOA elections or assessments.

Hector Saavedra

Respondent, Co-President of Tanglewood HOA

Explained the HOA’s financial insolvency, the procedural requirement for a majority owner vote to pass special assessments, and the history of failed votes. Detailed the successful 2025 vote and the current plan to begin repairs. Invited the Petitioner to join the board.

Carl Kesler

Petitioner’s Property Manager

Corroborated the timeline of events and communications with the HOA. Confirmed the plumbing issue was localized to the kitchen and stemmed from a mainline sewer problem. Stated he had never been to the unit in person and did not forward all HOA correspondence to the Petitioner.

Lucas Thomas

Petitioner’s Brother, Former Property Manager

Testified from his 15 years of experience that self-managed HOAs are typically ineffective. Argued that a professional firm is necessary for proper financial management and maintenance, citing a past lawsuit where he forced another HOA to hire a management company, which turned the property around.

Questions

Question

Can I get monetary damages (like lost rent) from my HOA through an administrative hearing?

Short Answer

No, the Office of Administrative Hearings (OAH) does not have the legal authority to award damages.

Detailed Answer

While the OAH can order an HOA to follow its governing documents, it cannot award financial compensation for losses such as lost rent or property damage.

Alj Quote

OAH does not have authority to award damages.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • damages
  • jurisdiction
  • compensation

Question

If my HOA fails to make repairs due to lack of funds, is it considered a violation?

Short Answer

Not necessarily, especially if the HOA is taking steps to secure funding through a special assessment.

Detailed Answer

In this case, the ALJ found that the HOA could not be held in violation for failing to make immediate repairs when it lacked the necessary funds and was actively seeking a special assessment vote from owners to cover the costs.

Alj Quote

Given its financial situation, HOA determined the overall plumbing issues could not be repaired absent a special assessment to cover those specific and projected expenses… Therefore, the hearing record demonstrates that more immediate action to repair either Petitioner’s plumbing issues or the overall plumbing issues could not have been taken.

Legal Basis

Governing Documents / Financial Feasibility

Topic Tags

  • repairs
  • finances
  • special assessment

Question

Who acts as the 'burden of proof' in a hearing against an HOA?

Short Answer

The homeowner (Petitioner) must prove the violation occurred.

Detailed Answer

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

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent HOA violated the alleged CC&R provisions.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standard
  • procedure

Question

Can I force my HOA board to hire a professional property management company?

Short Answer

Likely no, unless you can prove a specific requirement in the governing documents is being violated.

Detailed Answer

The ALJ ruled that the homeowner did not meet the burden of proof to show that the HOA was violating its duties by not hiring a property manager, noting the evidence regarding the requirement was vague.

Alj Quote

The Tribunal concludes that Petitioner has not met his burden to demonstrate by a preponderance of the evidence that HOA was not timely performing 'their duties outlined' in CC&Rs Page 2, Section A; and Management Agreement… regarding property management, the hearing record is simply vague.

Legal Basis

CC&Rs / Management Agreement

Topic Tags

  • property management
  • board duties
  • self-management

Question

Does an HOA manager have unlimited spending power for emergency repairs?

Short Answer

No, governing documents often place specific dollar limits on spending without board/association approval.

Detailed Answer

The decision cites a management agreement that limits emergency repair spending (e.g., to $5,000) without prior approval from the Association.

Alj Quote

Agent shall not incur liabilities (direct or contingent) which will at any time exceed the aggregate of $5,000.00 … without first obtaining the approval of the Association.

Legal Basis

Management Agreement Contracts

Topic Tags

  • spending limits
  • emergency repairs
  • budget

Question

If I lose my case against the HOA, do I get my filing fee back?

Short Answer

No, if the petition is denied, the petitioner is typically responsible for their own filing fees.

Detailed Answer

The ALJ ordered that the Petitioner bear his own filing fees after Tanglewood Association was determined to be the prevailing party.

Alj Quote

IT IS FURTHER ORDERED that Petitioner shall bear his filing fees.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Case

Docket No
25F-H037-REL
Case Title
Nicholas Thomas v. Tanglewood Association
Decision Date
2025-07-13
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I get monetary damages (like lost rent) from my HOA through an administrative hearing?

Short Answer

No, the Office of Administrative Hearings (OAH) does not have the legal authority to award damages.

Detailed Answer

While the OAH can order an HOA to follow its governing documents, it cannot award financial compensation for losses such as lost rent or property damage.

Alj Quote

OAH does not have authority to award damages.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • damages
  • jurisdiction
  • compensation

Question

If my HOA fails to make repairs due to lack of funds, is it considered a violation?

Short Answer

Not necessarily, especially if the HOA is taking steps to secure funding through a special assessment.

Detailed Answer

In this case, the ALJ found that the HOA could not be held in violation for failing to make immediate repairs when it lacked the necessary funds and was actively seeking a special assessment vote from owners to cover the costs.

Alj Quote

Given its financial situation, HOA determined the overall plumbing issues could not be repaired absent a special assessment to cover those specific and projected expenses… Therefore, the hearing record demonstrates that more immediate action to repair either Petitioner’s plumbing issues or the overall plumbing issues could not have been taken.

Legal Basis

Governing Documents / Financial Feasibility

Topic Tags

  • repairs
  • finances
  • special assessment

Question

Who acts as the 'burden of proof' in a hearing against an HOA?

Short Answer

The homeowner (Petitioner) must prove the violation occurred.

Detailed Answer

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

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent HOA violated the alleged CC&R provisions.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standard
  • procedure

Question

Can I force my HOA board to hire a professional property management company?

Short Answer

Likely no, unless you can prove a specific requirement in the governing documents is being violated.

Detailed Answer

The ALJ ruled that the homeowner did not meet the burden of proof to show that the HOA was violating its duties by not hiring a property manager, noting the evidence regarding the requirement was vague.

Alj Quote

The Tribunal concludes that Petitioner has not met his burden to demonstrate by a preponderance of the evidence that HOA was not timely performing 'their duties outlined' in CC&Rs Page 2, Section A; and Management Agreement… regarding property management, the hearing record is simply vague.

Legal Basis

CC&Rs / Management Agreement

Topic Tags

  • property management
  • board duties
  • self-management

Question

Does an HOA manager have unlimited spending power for emergency repairs?

Short Answer

No, governing documents often place specific dollar limits on spending without board/association approval.

Detailed Answer

The decision cites a management agreement that limits emergency repair spending (e.g., to $5,000) without prior approval from the Association.

Alj Quote

Agent shall not incur liabilities (direct or contingent) which will at any time exceed the aggregate of $5,000.00 … without first obtaining the approval of the Association.

Legal Basis

Management Agreement Contracts

Topic Tags

  • spending limits
  • emergency repairs
  • budget

Question

If I lose my case against the HOA, do I get my filing fee back?

Short Answer

No, if the petition is denied, the petitioner is typically responsible for their own filing fees.

Detailed Answer

The ALJ ordered that the Petitioner bear his own filing fees after Tanglewood Association was determined to be the prevailing party.

Alj Quote

IT IS FURTHER ORDERED that Petitioner shall bear his filing fees.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • costs
  • penalties

Case

Docket No
25F-H037-REL
Case Title
Nicholas Thomas v. Tanglewood Association
Decision Date
2025-07-13
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nicholas Thomas (Petitioner)
    Owner of Unit 141 in Building 4.
  • Carl Kesler (Witness and Property Manager)
    Current property manager for the Petitioner's unit.
  • Lucas Thomas (Witness)
    Petitioner's brother and former property manager.

Respondent Side

  • Hector Saavedra (Co-President and Representative)
    Tanglewood Association
    Represented the Tanglewood Association at the hearing.

Neutral Parties

  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who authored the decision.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Copied on transmittal of the hearing order and decision.

Sharon M. Maiden v. Val Vista Lakes Community Association

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Case Summary

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

Parties & Counsel

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

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H030-REL Decision – 1272425.pdf

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

25F-H030-REL Decision – 1272426.pdf

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25F-H030-REL Decision – 1282372.pdf

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

25F-H030-REL Decision – 1282375.pdf

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

25F-H030-REL Decision – 1284492.pdf

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

25F-H030-REL Decision – 1288176.pdf

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

25F-H030-REL Decision – 1288177.pdf

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

25F-H030-REL Decision – 1293820.pdf

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

25F-H030-REL Decision – 1313134.pdf

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

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

Executive Summary

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

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

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

——————————————————————————–

Case Overview

Case Name

Sharon M. Maiden v. Val Vista Lakes Community Association

Case Number

25F-H030-REL

Tribunal

Arizona Office of Administrative Hearings (OAH)

Petitioner

Sharon M. Maiden

Respondent

Val Vista Lakes Community Association

Respondent’s Counsel

Josh Bolen, Esq. (CHDB Law LLP)

Presiding Judge

Velva Moses-Thompson

Petition Allegations

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

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

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

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

——————————————————————————–

Procedural History

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

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

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

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

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

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

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

Central Dispute: Interpretation of Bylaw Term Limits

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

Evolution of the Bylaw

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

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

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

Competing Interpretations

Position

Argument Summary

Key Evidence and Testimony

Petitioner’s Position (Prospective Application)

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

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

Respondent’s Position (Prior Service Counts)

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

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

Central Dispute: Alleged Open Meeting Law Violation

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

Competing Arguments

Position

Argument Summary

Key Evidence and Testimony

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

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

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

Respondent’s Argument (Compliance with Law)

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

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

——————————————————————————–

Administrative Law Judge’s Decision and Rationale

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

Ruling on the Open Meeting Law

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

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

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

Ruling on the Bylaw Violation

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

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

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

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

Final Order

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

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

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Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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

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Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

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

Arizona Department of Real Estate (Department)

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

Arizona Revised Statutes (A.R.S.)

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

A.R.S. § 33-1804(A)

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

Bolen, Josh

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

Brown, Jill

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

Bylaw Committee

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

Carpenter Hazelwood (CHDB LAW LLP)

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

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

Commencing with…

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

Executive Session

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

Keats, Douglas

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

Maiden, Sharon M.

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

Office of Administrative Hearings (OAH / Tribunal)

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

Patterson, Bryan

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

Petitioner

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

Preponderance of the Evidence

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

Prospective Interpretation

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

Respondent

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

Retroactive Interpretation

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

Sutell, William (Bill)

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

Val Vista Lakes Community Association

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

5 Surprising Lessons from an HOA War Over a Single Sentence

Introduction: The Butterfly Effect of Bylaws

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

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

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

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

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

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

This single sentence gave rise to two completely opposite interpretations:

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

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

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

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

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

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

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

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

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

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

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

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

4. The Peril of a Closed-Door Meeting

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

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

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

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

5. The “Why” Trumped the “What”

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

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

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

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Anne F. Segal vs Prince Court Homeowners Association, INC.

Posted on by

Case Summary

Case ID 25F-H032-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2025-05-22
Administrative Law Judge JC
Outcome Petition Denied
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Anne F. Segal Counsel Pro Se
Respondent Prince Court Homeowners Association, Inc. Counsel Wendy Ehrlich, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H032-REL Decision – 1269718.pdf

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25F-H032-REL Decision – 1269742.pdf

Uploaded 2026-04-24T12:39:05 (7.8 KB)

25F-H032-REL Decision – 1274756.pdf

Uploaded 2026-04-24T12:39:08 (54.6 KB)

25F-H032-REL Decision – 1274775.pdf

Uploaded 2026-04-24T12:39:17 (7.9 KB)

25F-H032-REL Decision – 1277633.pdf

Uploaded 2026-04-24T12:39:22 (48.1 KB)

25F-H032-REL Decision – 1288621.pdf

Uploaded 2026-04-24T12:39:25 (51.6 KB)

25F-H032-REL Decision – 1308520.pdf

Uploaded 2026-04-24T12:39:30 (206.1 KB)

Briefing Document: Segal vs. Prince Court Homeowners Association, Inc.

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case Anne F. Segal, Petitioner, vs. Prince Court Homeowners Association, Inc., Respondent (No. 25F-H032-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute centered on the petitioner’s allegation that the respondent HOA utilized unlawful procedures to replace the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The petitioner argued that the HOA violated state statutes and the original governing documents by failing to hold sufficient open meetings for discussion, by not providing a proper ballot for a vote, and by circumventing a one-year discussion period intended by the original developer. Key evidence presented by the petitioner included testimony from the community’s original developer, who affirmed his intent for a lengthy, homeowner-driven amendment process, and testimony detailing significant, substantive changes to the CC&Rs that were allegedly not transparently communicated.

The respondent HOA defended its actions by asserting full compliance with Arizona law, particularly A.R.S. § 33-1817, which permits amendments via written consent of a majority of homeowners—a process legally distinct from a formal vote. The HOA maintained that state law superseded any conflicting provisions in the original CC&Rs. The board justified its decision to forgo a large, open-forum meeting by citing perceived “aggressive and threatening” communications from the petitioner, opting instead for a process of email-based “straw polls,” a formal Q&A period with its attorney, and a notarization event for collecting written consent.

Ultimately, the Administrative Law Judge (ALJ) denied the petition. The final decision concluded that the petitioner failed to meet her burden of proof. The ALJ found that the HOA acted lawfully by using executive sessions to obtain legal advice, by amending the CC&Rs through the statutory process of written consent, and that other statutes cited by the petitioner were inapplicable to the case.

Case Overview

The matter involves a formal petition filed on December 22, 2024, by homeowner Anne F. Segal with the Arizona Department of Real Estate. The petition alleged that the Prince Court Homeowners Association, Inc. violated multiple Arizona Revised Statutes (§§ 33-1812, 33-1803(B-E), 33-1804, 33-1817) and its own governing documents (initially cited as Article V, later amended to Article VII) during the process of replacing the community’s CC&Rs.

The case was referred to the Office of Administrative Hearings, with evidentiary hearings held on March 27, 2025, and May 2, 2025, before Administrative Law Judge Jenna Clark. A final decision denying the petition was issued on May 22, 2025.

Key Parties and Witnesses

Name / Entity

Key Contributions

Anne F. Segal

Petitioner, Homeowner

Argued the HOA’s process was unlawful, lacked transparency, and violated open meeting laws and voting rights. Provided testimony and evidence regarding communications and the substance of the CC&R changes.

Prince Court Homeowners Association

Respondent

Defended its amendment process as compliant with state statutes for written consent and justified its communication methods based on legal advice and the petitioner’s conduct.

Mary Beth Snyder

President, HOA Board

Testified on behalf of the HOA (also called as an adverse witness by Petitioner). Detailed the board’s decision-making process, reliance on legal counsel, and rationale for avoiding an open-forum meeting.

Susan Matheson

Vice President, HOA Board

Corroborated Snyder’s testimony. Testified to managing the HOA’s email communications, including the accidental removal of David Zinfeld from the distribution list. Detailed complaints received from other homeowners about the petitioner’s communications.

David Zinfeld

Witness for Petitioner; Original Developer of Prince Court

Testified that he wrote the original CC&Rs with the intent for a year-long, homeowner-led discussion before any amendments. Stated he stopped receiving HOA communications and was not involved in or properly notified of the replacement process.

Dr. Robert Segal

Witness for Petitioner; Husband of Petitioner and Property Manager

Testified to the lack of open meetings and poor communication. Described the proposed CC&R changes as a “heart transplant” and highlighted discrepancies between the board’s “summary of changes” and the actual legal text.

Wendy Ehrlich, Esq.

Counsel for Respondent

Provided legal advice to the HOA board, which formed the basis for their procedural decisions. Argued the case for the Respondent during the hearings.

Jenna Clark

Administrative Law Judge

Presided over the hearings and issued the final decision, concluding the HOA acted lawfully and denying the petition.

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Central Arguments and Evidence

Petitioner’s Core Allegations

The petitioner’s case was built on the premise that the HOA’s procedure for replacing the CC&Rs was fundamentally flawed and unlawful.

• Violation of Governing Documents (Article VII): The petitioner argued the HOA ignored the original CC&Rs, which, according to the original developer David Zinfeld, intended a one-year period of open discussion prior to any amendment. Zinfeld testified, “I wanted it to be done at least a year beforehand…with discussion and meetings before any amendments should take place.”

• Improper Amendment Process: The petitioner contended that the “notarized agreement” process was not a valid “vote” and violated A.R.S. § 33-1812. This process did not provide a formal ballot or an opportunity for homeowners to vote “for or against” the action, effectively silencing dissent.

• Violation of Open Meeting Laws (A.R.S. § 33-1804): The petitioner alleged a lack of genuine open meetings where the substance of the new CC&Rs could be debated. Testimony indicated that discussions about the CC&Rs primarily occurred in closed executive sessions, justified by the board as necessary for receiving legal advice.

• Inadequate and Misleading Communication: Dr. Robert Segal described the summary of changes provided by the board as misleading and incomplete. He gave specific examples, such as a new rule allowing the board to remove any “objectionable” vehicle, which was not mentioned in the summary provided to homeowners. The petitioner also argued that relying solely on an incomplete and unverified email list was an unreasonable means of notice.

• Substantive Overhaul Without Consent: Dr. Segal characterized the changes as a “heart transplant,” not a minor revision. He noted the new CC&Rs gave the board “much more power and authority,” including the ability to raise fees by 20% per year.

Respondent’s Defense

The respondent HOA maintained that its actions were deliberate, based on legal counsel, and fully compliant with Arizona law.

• Adherence to Statutory Process (A.R.S. § 33-1817): The HOA’s central defense was that A.R.S. § 33-1817 allows for CC&R amendments through either an “affirmative vote or written consent.” They argued they lawfully chose the written consent path, which does not require a formal ballot under A.R.S. § 33-1812. Their counsel stated, “Article 7 dictated written consent. There was no vote conducted.”

• State Law Supersedes Governing Documents: The HOA argued, and noted in its October 14, 2024 email to members, that “The time limitations for CC&R amendments set forth in our current CC&Rs, Article VII… have been superseded by Arizona law which allows CC&Rs to be amended at any time; see A.R.S. § 33-1817.”

• Justification for Avoiding an Open Forum: Both Mary Beth Snyder and Susan Matheson testified that the decision not to hold a large, in-person informational meeting was based on legal advice and the board’s concern that the petitioner would “hijack the meeting” due to her perceived “aggressive and threatening” emails and communications. Matheson read excerpts from petitioner’s emails, including phrases like “This unilateral decision of the board is buying a lawsuit” and “I’m willing to legally challenge this effort.”

• Reasonable Communication Efforts: The board defended its use of email as a reasonable means of notice. They testified to sending eight separate email communications regarding the CC&Rs, including “straw polls” to gauge opinion, drafts of the new CC&Rs, and a formal Q&A where the board’s attorney answered submitted questions.

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Final Adjudication: Administrative Law Judge Decision

On May 22, 2025, Judge Jenna Clark issued a decision denying the petition in its entirety, finding that the petitioner had not sustained her burden of proof.

Findings of Fact

The decision outlined a timeline of events from the initial announcement in March 2024 to the notarization event in December 2024. Key findings included:

• The board hired counsel in April 2024 to assist with updating the CC&Rs.

• The association conducted “straw poll” emails in July and August 2024.

• The board held closed executive sessions to discuss legal advice from its attorney regarding the CC&R revisions.

• A draft of the proposed CC&Rs was distributed to members via email on October 14, 2024.

• A Q&A process was conducted, with attorney-provided answers distributed on November 25, 2025.

• The association intentionally did not hold a large open meeting due to concerns over the petitioner’s perceived behavior.

• A majority of homeowners (at least 20 of 39) provided signed and notarized consent agreements.

Conclusions of Law

The ALJ made the following legal conclusions, which formed the basis of the denial:

1. Written Consent is a Lawful Process: The Tribunal found that A.R.S. § 33-1817(A)(1) explicitly allows an association to amend its declaration by “an affirmative vote or written consent.” The HOA lawfully chose the written consent method.

2. State Law Supersedes CC&Rs: The provisions of A.R.S. § 33-1817 supersede the edicts outlined in Article VII of the original CC&Rs regarding the amendment timeline.

3. Executive Sessions Were Permissible: The board was permitted under A.R.S. § 33-1804(A) to go into executive session to receive legal advice from its attorney, even if the advice was unrelated to pending litigation.

4. Inapplicability of Other Statutes: The statutes regarding voting procedures (A.R.S. § 33-1812) and violation notices (A.R.S. § 33-1803) were deemed inapplicable and irrelevant to the matter at hand, as no formal vote was conducted and no violation notice was issued to the petitioner.

5. Failure to Meet Burden of Proof: The decision concluded that the petitioner failed to establish by a preponderance of the evidence that the respondent had violated any of the cited statutes or its governing documents. The petition was therefore denied.

Questions

Question

Can an HOA amend its CC&Rs by obtaining written consent from homeowners rather than holding a vote?

Short Answer

Yes, an HOA is permitted to amend CC&Rs by written consent under A.R.S. § 33-1817(A)(1), and voting statutes do not apply to this process.

Detailed Answer

The Administrative Law Judge ruled that the association was permitted to modify its CC&Rs by written consent of its members. Because this process falls under A.R.S. § 33-1817(A)(1), the statutes governing voting (A.R.S. § 33-1812) are considered unrelated and irrelevant to the proceedings.

Alj Quote

It is clear from the record that the Association … was also permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1)… Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant.

Legal Basis

A.R.S. § 33-1817(A)(1)

Topic Tags

  • CC&R Amendments
  • Written Consent
  • Voting Rights

Question

Does state law override CC&R provisions that restrict when amendments can be made (e.g., only every 10 years)?

Short Answer

Yes, A.R.S. § 33-1817(A)(1) supersedes original CC&R restrictions regarding periodic renewal or specific timelines for amendments.

Detailed Answer

The decision clarifies that state statute supersedes 'edicts' in original CC&Rs regarding timing for amendments. Even if the original documents specify a renewal period, the association can amend the documents via the statutory written consent process.

Alj Quote

…permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1); which supersedes any edicts outlined in Article VII of the original CC&Rs.

Legal Basis

A.R.S. § 33-1817(A)(1)

Topic Tags

  • CC&R Amendments
  • State Statute Supremacy
  • Governing Documents

Question

Can the HOA Board hold a closed executive session to get legal advice if there is no pending lawsuit?

Short Answer

Yes, the Board may meet in executive session to receive legal advice from their attorney, even if it is unrelated to pending litigation.

Detailed Answer

Homeowners often believe legal advice must relate to a lawsuit for a meeting to be closed. However, the ALJ ruled that the Board is permitted to go into executive session to receive legal advice unrelated to pending litigation under A.R.S. § 33-1804(A).

Alj Quote

It is clear from the record that the Association was not only permitted to go into executive session to receive legal advice unrelated to pending litigation from its attorney under ARIZ. REV. STAT. § 33-1804(A)…

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • Open Meetings
  • Executive Session
  • Legal Advice

Question

Is the HOA required to hold an open discussion or town hall meeting before amending the CC&Rs?

Short Answer

No, the tribunal found that there is no requirement to permit members to openly deliberate proposed changes for a specific period if the statutory process is followed.

Detailed Answer

The petitioner argued that the HOA was required to permit open deliberation for at least one year. The ALJ disagreed, ruling that the petitioner did not sustain the burden of proof for this contention, implying statutory compliance for written consent is sufficient.

Alj Quote

Specifically, Petitioner contends that Respondent was required to permit Members to openly deliberate proposed changes to the CC&Rs for at least 1 year… the Tribunal is not in agreement with either of Petitioner’s contentions, and holds that she has not sustained her burden of proof in this matter.

Legal Basis

A.R.S. § 33-1817

Topic Tags

  • Procedural Requirements
  • Open Discussion
  • CC&R Amendments

Question

Do statutes regarding monetary penalties apply to the process of amending CC&Rs?

Short Answer

No, statutes regarding fines and penalties are irrelevant to the amendment process if no actual violation notice was issued or penalty imposed.

Detailed Answer

The ALJ dismissed allegations regarding A.R.S. § 33-1803 (which governs monetary penalties) because they were inapplicable to a dispute centered on the procedural validity of amending CC&Rs where no fines were levied.

Alj Quote

Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant. No violations of these statutes have been established by a preponderance of the evidence.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • Penalties
  • Statutory Application
  • Relevance

Question

Who bears the burden of proof in a hearing regarding HOA procedural violations?

Short Answer

The petitioner (homeowner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In administrative hearings regarding HOA disputes, it is up to the homeowner filing the petition to prove that their allegations are more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory and/or governing document violation(s).

Legal Basis

Administrative Procedure

Topic Tags

  • Burden of Proof
  • Legal Procedure

Case

Docket No
25F-H032-REL
Case Title
Anne F. Segal v. Prince Court Homeowners Association, Inc.
Decision Date
2025-05-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA amend its CC&Rs by obtaining written consent from homeowners rather than holding a vote?

Short Answer

Yes, an HOA is permitted to amend CC&Rs by written consent under A.R.S. § 33-1817(A)(1), and voting statutes do not apply to this process.

Detailed Answer

The Administrative Law Judge ruled that the association was permitted to modify its CC&Rs by written consent of its members. Because this process falls under A.R.S. § 33-1817(A)(1), the statutes governing voting (A.R.S. § 33-1812) are considered unrelated and irrelevant to the proceedings.

Alj Quote

It is clear from the record that the Association … was also permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1)… Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant.

Legal Basis

A.R.S. § 33-1817(A)(1)

Topic Tags

  • CC&R Amendments
  • Written Consent
  • Voting Rights

Question

Does state law override CC&R provisions that restrict when amendments can be made (e.g., only every 10 years)?

Short Answer

Yes, A.R.S. § 33-1817(A)(1) supersedes original CC&R restrictions regarding periodic renewal or specific timelines for amendments.

Detailed Answer

The decision clarifies that state statute supersedes 'edicts' in original CC&Rs regarding timing for amendments. Even if the original documents specify a renewal period, the association can amend the documents via the statutory written consent process.

Alj Quote

…permitted to modify or otherwise amend its CC&Rs by written consent of its Members under ARIZ. REV. STAT. § 33-1817(A)(1); which supersedes any edicts outlined in Article VII of the original CC&Rs.

Legal Basis

A.R.S. § 33-1817(A)(1)

Topic Tags

  • CC&R Amendments
  • State Statute Supremacy
  • Governing Documents

Question

Can the HOA Board hold a closed executive session to get legal advice if there is no pending lawsuit?

Short Answer

Yes, the Board may meet in executive session to receive legal advice from their attorney, even if it is unrelated to pending litigation.

Detailed Answer

Homeowners often believe legal advice must relate to a lawsuit for a meeting to be closed. However, the ALJ ruled that the Board is permitted to go into executive session to receive legal advice unrelated to pending litigation under A.R.S. § 33-1804(A).

Alj Quote

It is clear from the record that the Association was not only permitted to go into executive session to receive legal advice unrelated to pending litigation from its attorney under ARIZ. REV. STAT. § 33-1804(A)…

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • Open Meetings
  • Executive Session
  • Legal Advice

Question

Is the HOA required to hold an open discussion or town hall meeting before amending the CC&Rs?

Short Answer

No, the tribunal found that there is no requirement to permit members to openly deliberate proposed changes for a specific period if the statutory process is followed.

Detailed Answer

The petitioner argued that the HOA was required to permit open deliberation for at least one year. The ALJ disagreed, ruling that the petitioner did not sustain the burden of proof for this contention, implying statutory compliance for written consent is sufficient.

Alj Quote

Specifically, Petitioner contends that Respondent was required to permit Members to openly deliberate proposed changes to the CC&Rs for at least 1 year… the Tribunal is not in agreement with either of Petitioner’s contentions, and holds that she has not sustained her burden of proof in this matter.

Legal Basis

A.R.S. § 33-1817

Topic Tags

  • Procedural Requirements
  • Open Discussion
  • CC&R Amendments

Question

Do statutes regarding monetary penalties apply to the process of amending CC&Rs?

Short Answer

No, statutes regarding fines and penalties are irrelevant to the amendment process if no actual violation notice was issued or penalty imposed.

Detailed Answer

The ALJ dismissed allegations regarding A.R.S. § 33-1803 (which governs monetary penalties) because they were inapplicable to a dispute centered on the procedural validity of amending CC&Rs where no fines were levied.

Alj Quote

Notably, ARIZ. REV. STAT. §§ 33-1812(A) and 33-1803 are inapplicable to the proceedings at bar as unrelated and irrelevant. No violations of these statutes have been established by a preponderance of the evidence.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • Penalties
  • Statutory Application
  • Relevance

Question

Who bears the burden of proof in a hearing regarding HOA procedural violations?

Short Answer

The petitioner (homeowner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In administrative hearings regarding HOA disputes, it is up to the homeowner filing the petition to prove that their allegations are more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory and/or governing document violation(s).

Legal Basis

Administrative Procedure

Topic Tags

  • Burden of Proof
  • Legal Procedure

Case

Docket No
25F-H032-REL
Case Title
Anne F. Segal v. Prince Court Homeowners Association, Inc.
Decision Date
2025-05-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Anne F. Segal (Petitioner)
    Appeared on her own behalf
  • Robert Segal (Witness)
    Husband of Petitioner
  • David Zeinfeld (Witness)
    Original developer of the subdivision

Respondent Side

  • Wendy Ehrlich (Counsel)
    Counsel for Respondent
  • Mary Beth Snyder (Witness)
    Prince Court Homeowners Association, Inc.
    Board President
  • Susan Matheson (Witness)
    Prince Court Homeowners Association, Inc.
    Board Vice President

Neutral Parties

  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding ALJ
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Dianna Tidle (Observer)