Tag Archives: Bylaw Violation

John R Ashley v. Rancho Reyes II Community Association, INC

Posted on by

Case Summary

Case ID 23F-H058-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-04
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John R. Ashley Counsel —
Respondent Rancho Reyes II Community Association, INC Counsel James Brewer, Esq.

Alleged Violations

Article IV, Section 1 of the Bylaws

Outcome Summary

The Administrative Law Judge dismissed Petitioner John R. Ashley's petition against Rancho Reyes II Community Association, Inc. The ALJ found that the HOA did not violate the Bylaws regarding the minimum number of directors because compliance was impossible due to lack of member interest, and the issue was subsequently moot as the board currently met the minimum requirement.

Why this result: Petitioner failed to provide sufficient evidence to rebut Respondent’s claim that it actively sought a third board member. The Respondent was exonerated under the legal doctrine of impossibility of performance, and the current compliance with the three-member minimum rendered the dispute moot.

Key Issues & Findings

Alleged violation regarding the minimum number of Board Directors

Petitioner alleged Respondent violated Article IV, Section 1 of the Bylaws by having only two Board Directors dismiss and order a redo of the 1/9/2023 Annual Membership Meeting for 3/7/2023, arguing that three directors were required to properly handle the Association’s affairs.

Orders: The petition is dismissed. Respondent was unable to comply with the Bylaws requiring three directors due to impossibility (lack of member interest) while actively seeking compliance, and the dispute is currently moot as the board now has three or more members.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. §§ 33-1801 to 33-1818
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • Garner v. Ellingson, 18 Ariz. 181, 182 (App. 1972)
  • Whelan v. Griffith Consumers Company, 170 A.2d 229, 230 (D.C. App., 1961)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Assân v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: impossibility of performance, board structure, election dispute, bylaw violation, Planned Communities Act, mootness
Additional Citations:

  • A.R.S. §§ 33-1801 to 33-1818
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • Garner v. Ellingson, 18 Ariz. 181, 182 (App. 1972)
  • Whelan v. Griffith Consumers Company, 170 A.2d 229, 230 (D.C. App., 1961)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Assân v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

23F-H058-REL Decision – 1075520.pdf

Uploaded 2026-01-23T17:58:49 (45.8 KB)

23F-H058-REL Decision – 1078604.pdf

Uploaded 2026-01-23T17:58:52 (47.9 KB)

23F-H058-REL Decision – 1078608.pdf

Uploaded 2026-01-23T17:58:56 (5.5 KB)

23F-H058-REL Decision – 1099484.pdf

Uploaded 2026-01-23T17:59:01 (104.5 KB)

Questions

Question

Can my HOA be penalized for having fewer than the required number of board members if no one volunteers to serve?

Short Answer

Likely not. If the HOA actively seeks candidates but no one steps up, they may be exonerated due to 'impossibility of performance.'

Detailed Answer

The decision establishes that if an HOA board is understaffed (e.g., 2 members when bylaws require 3) because homeowners refuse to volunteer despite recruitment efforts, the HOA is not held liable. The legal principle of 'impossibility' applies when circumstances beyond the parties' control prevent compliance with the bylaws.

Alj Quote

It is well settled that when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated.

Legal Basis

Contract Law Principles (Garner v. Ellingson); Bylaws Article IV, Section 1

Topic Tags

  • Board Composition
  • Impossibility Defense
  • Bylaws

Question

If my HOA has already fixed a violation by the time of the hearing, can I still get a ruling against them?

Short Answer

No. If the HOA comes into compliance before the decision is made, the dispute may be considered resolved and the petition dismissed.

Detailed Answer

In this case, the homeowner sued because the board had too few members. However, by the time of the hearing, a full board had been elected. The judge dismissed the petition because the violation was no longer active and compliance was not in dispute.

Alj Quote

Accordingly, because the preponderance of the evidence has shown that Respondent was unable to comply with Article IV, Section 1 of the Bylaws and compliance with Article IV, Section 1 of the Bylaws is no longer in dispute, the Petition must be dismissed.

Legal Basis

Mootness

Topic Tags

  • Procedural
  • Mootness
  • Dismissal

Question

Who has the burden of proof in an administrative hearing against an HOA?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation occurred.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated Article IV, Section 1 of its Bylaws, by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Hearing Procedures

Question

What counts as 'preponderance of the evidence' in an HOA dispute?

Short Answer

Evidence that makes a claim 'more probably true than not.'

Detailed Answer

It is not about the quantity of witnesses, but the convincing force of the evidence. It must be sufficient to incline a fair mind to one side over the other.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Evidence
  • Legal Definitions

Question

How are HOA bylaws and restrictive covenants interpreted by the judge?

Short Answer

They are interpreted to support the intent of the parties and the underlying purpose of the document.

Detailed Answer

The judge will look at the documents as a whole rather than isolating a single sentence, ensuring that the interpretation gives effect to the intended purpose of the rules.

Alj Quote

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

Legal Basis

Contract Interpretation Principles (Powell v. Washburn)

Topic Tags

  • CC&R Interpretation
  • Bylaws

Question

Can an HOA board order a new election if they suspect fraud in the previous one?

Short Answer

Yes, this action was accepted in the context of this decision.

Detailed Answer

The decision notes that the community manager and board members decided to hold a new election after consulting with an attorney regarding suspected fraudulent tactics and unfair processes in the initial election.

Alj Quote

Respondent’s community manager suspected that the election was not a fair process and that certain individuals used fraudulent tactics to influence the election. After consulting with Respondent’s attorney, the community manager along with Ms. Ortega decided to hold a new election in March of 2023.

Legal Basis

Board Authority

Topic Tags

  • Elections
  • Fraud
  • Board Powers

Case

Docket No
23F-H058-REL
Case Title
John R. Ashley v. Rancho Reyes II Community Association, Inc.
Decision Date
2023-10-04
Alj Name
Velva Moses-Thompson
Tribunal
Office of Administrative Hearings
Agency
Arizona Department of Real Estate

Questions

Question

Can my HOA be penalized for having fewer than the required number of board members if no one volunteers to serve?

Short Answer

Likely not. If the HOA actively seeks candidates but no one steps up, they may be exonerated due to 'impossibility of performance.'

Detailed Answer

The decision establishes that if an HOA board is understaffed (e.g., 2 members when bylaws require 3) because homeowners refuse to volunteer despite recruitment efforts, the HOA is not held liable. The legal principle of 'impossibility' applies when circumstances beyond the parties' control prevent compliance with the bylaws.

Alj Quote

It is well settled that when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated.

Legal Basis

Contract Law Principles (Garner v. Ellingson); Bylaws Article IV, Section 1

Topic Tags

  • Board Composition
  • Impossibility Defense
  • Bylaws

Question

If my HOA has already fixed a violation by the time of the hearing, can I still get a ruling against them?

Short Answer

No. If the HOA comes into compliance before the decision is made, the dispute may be considered resolved and the petition dismissed.

Detailed Answer

In this case, the homeowner sued because the board had too few members. However, by the time of the hearing, a full board had been elected. The judge dismissed the petition because the violation was no longer active and compliance was not in dispute.

Alj Quote

Accordingly, because the preponderance of the evidence has shown that Respondent was unable to comply with Article IV, Section 1 of the Bylaws and compliance with Article IV, Section 1 of the Bylaws is no longer in dispute, the Petition must be dismissed.

Legal Basis

Mootness

Topic Tags

  • Procedural
  • Mootness
  • Dismissal

Question

Who has the burden of proof in an administrative hearing against an HOA?

Short Answer

The homeowner (Petitioner) has the burden to prove the violation occurred.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated Article IV, Section 1 of its Bylaws, by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Hearing Procedures

Question

What counts as 'preponderance of the evidence' in an HOA dispute?

Short Answer

Evidence that makes a claim 'more probably true than not.'

Detailed Answer

It is not about the quantity of witnesses, but the convincing force of the evidence. It must be sufficient to incline a fair mind to one side over the other.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Evidence
  • Legal Definitions

Question

How are HOA bylaws and restrictive covenants interpreted by the judge?

Short Answer

They are interpreted to support the intent of the parties and the underlying purpose of the document.

Detailed Answer

The judge will look at the documents as a whole rather than isolating a single sentence, ensuring that the interpretation gives effect to the intended purpose of the rules.

Alj Quote

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

Legal Basis

Contract Interpretation Principles (Powell v. Washburn)

Topic Tags

  • CC&R Interpretation
  • Bylaws

Question

Can an HOA board order a new election if they suspect fraud in the previous one?

Short Answer

Yes, this action was accepted in the context of this decision.

Detailed Answer

The decision notes that the community manager and board members decided to hold a new election after consulting with an attorney regarding suspected fraudulent tactics and unfair processes in the initial election.

Alj Quote

Respondent’s community manager suspected that the election was not a fair process and that certain individuals used fraudulent tactics to influence the election. After consulting with Respondent’s attorney, the community manager along with Ms. Ortega decided to hold a new election in March of 2023.

Legal Basis

Board Authority

Topic Tags

  • Elections
  • Fraud
  • Board Powers

Case

Docket No
23F-H058-REL
Case Title
John R. Ashley v. Rancho Reyes II Community Association, Inc.
Decision Date
2023-10-04
Alj Name
Velva Moses-Thompson
Tribunal
Office of Administrative Hearings
Agency
Arizona Department of Real Estate

Case Participants

Petitioner Side

  • John R. Ashley (petitioner)
    Represented himself
  • Rmulo Gonzalez (board member elect)
    Elected in March 2023 election; contested re-election procedures
  • James Canella (board member elect)
    Elected in January 2023 election; member of the community who desired to serve
  • Daniel Walker (board member elect)
    Elected in January 2023 election
  • Richard Springer (witness reference)
    Homeowner mentioned by Petitioner as willing to serve on the board
  • Charles Seers (witness reference)
    Homeowner mentioned by Petitioner as willing to serve on the board; name variations include Charles Zippers

Respondent Side

  • James Brewer (attorney)
    Tyson & Mendes, LLP
    Represented Respondent Rancho Reyes II Community Association
  • Leah M. McKeever (attorney)
    Tyson & Mendes, LLP
  • Lynn M. Allen (attorney)
    Tyson & Mendes, LLP
  • Sherry Ortega (board member)
    Rancho Reyes II Community Association
    Vice President since March 2023; President previously; testified for Respondent
  • Maria Ruelas (board member)
    Rancho Reyes II Community Association
    Director in 2022 until March 2023
  • Kimberly Schone (COO/witness)
    Mission Management (Community Manager)
    Chief Operating Officer, testified for Respondent
  • Ronda Raal (CEO/property manager)
    Mission Management (Community Manager)
    CEO of the management company
  • Sammy (assistant)
    Mission Management (Community Manager)
    Assistant who helped count ballots for January 2023 election; name variations include Tammy, Cammy, Samantha
  • Joy (manager)
    Mission Management (Community Manager)
    Manager during January 2023 election period
  • Jennifer (manager)
    Mission Management (Community Manager)
    Current manager of the account
  • Vince (management staff)
    Mission Management (Community Manager)
    Saw ballot video footage

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Also referred to as Fala Moses Thompson
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)
  • AHansen (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • VNunez (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • DJones (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • Labril (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents

Other Participants

  • Cordova Sapola (board member elect)
    Elected in March 2023 election; unresponsive and did not attend meetings
  • Eugenia Francisco (elected candidate)
    Elected in January 2023 election but refuted candidacy; name variations include Eugene Silva
  • Yolanda Molina (former board member)
    Former Treasurer; resigned December 2021
  • Mario Martinez (witness reference)
    Adam LMC
  • Diane (former property manager)
    First manager for the HOA around 2017-2018

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.

Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-01-23T17:57:32 (115.3 KB)





Study Guide – 23F-H053-REL


{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }






Blog Post – 23F-H053-REL


{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }


Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Paradise Park Condominiums Phase II HOA Member
    Also referred to as Deborah Maer

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Law Group
    Appeared on behalf of Respondent
  • Carl Westlund (witness)
    Management Trust
    Community Manager for the HOA

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Also referred to as Judge Delio
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Lawrence Stewart v. Canyon Gate Condominium Association, Inc.

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 18F-H1818052-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-17
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lawrence M. Stewart Counsel —
Respondent Canyon Gate Condominium Association, Inc. Counsel Nicolas C. S. Nogami, Esq.

Alleged Violations

Bylaws section 5.4

Outcome Summary

The Administrative Law Judge dismissed the petition filed by homeowner Lawrence M. Stewart against Canyon Gate Condominium Association, Inc., finding that the Petitioner failed to prove the Association violated its Bylaws concerning good faith in denying his request for a variance.

Why this result: The Petitioner failed to meet the burden of proof, as Bylaws Section 5.4 was determined to be a shield protecting the Board from liability rather than a provision imposing a duty of good faith that could be violated by denying a variance.

Key Issues & Findings

Alleged failure of the HOA Board to act in good faith when denying a variance request

Petitioner alleged the Board failed to act in good faith when denying his request for a variance to changes he made, and asserted bias and unfair treatment. The ALJ concluded that Section 5.4 acts as a shield from liability for Board members, not a duty imposed upon them, and Petitioner failed to meet the burden of proof.

Orders: Petitioner Lawrence M. Stewart's petition is dismissed. Respondent is deemed to be the prevailing party in this matter.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. REV. STAT. section 32-2199.02(B)

Analytics Highlights

Topics: HOA governance, bylaw violation, good faith, variance denial, board liability
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

18F-H1818052-REL-RHG Decision – 683622.pdf

Uploaded 2025-10-09T03:33:04 (95.5 KB)

18F-H1818052-REL-RHG Decision – 694095.pdf

Uploaded 2025-10-09T03:33:04 (90.8 KB)

18F-H1818052-REL-RHG Decision – ../18F-H1818052-REL/660026.pdf

Uploaded 2026-01-20T13:47:49 (91.5 KB)

18F-H1818052-REL-RHG Decision – ../18F-H1818052-REL/720468.pdf

Uploaded 2026-01-20T13:47:51 (103.5 KB)





Briefing Doc – 18F-H1818052-REL-RHG


Briefing Document: Stewart v. Canyon Gate Condominium Association, Inc.

Executive Summary

This document synthesizes the findings and conclusions from an administrative legal case involving Petitioner Lawrence M. Stewart and Respondent Canyon Gate Condominium Association, Inc. The core of the dispute revolves around Mr. Stewart’s unauthorized modifications to a common area, for which the Association’s Board of Directors denied a retroactive variance. Mr. Stewart alleged the Board violated its bylaws by acting in bad faith, that a specific Board member was biased against him, and that he was subjected to unfair treatment compared to other homeowners.

The Administrative Law Judge, in both an initial hearing and a subsequent rehearing, consistently ruled against Mr. Stewart. The judge determined that the specific bylaw cited (Section 5.4) was an indemnification clause that shields the Board from liability and does not impose a duty of action. Crucially, Mr. Stewart failed to meet the legal burden of proving his claims by a “preponderance of the evidence.” The Board’s rationale for the denial—to avoid setting a precedent, or “opening a Pandora’s Box”—was deemed a reasonable position for a condominium association. Evidence presented to support claims of bias and unequal treatment was found to be insufficient or not probative. Ultimately, Mr. Stewart’s petition was dismissed in its entirety.

Case Overview

This matter, designated as No. 18F-H1818052-REL, was adjudicated by the Office of Administrative Hearings under the authority of the Arizona Department of Real Estate. The case centered on a petition filed by Mr. Stewart on May 21, 2018, alleging a violation of the Association’s Bylaws by the Board of Directors.

Parties Involved

Name / Entity

Representation

Petitioner

Lawrence M. Stewart

On his own behalf

Respondent

Canyon Gate Condominium Association, Inc.

Mark K. Sahl, Esq. & Nichols C. S. Nogami, Esq.

Administrative Law Judge Thomas Shedden

Case Chronology

• November 15, 2017: The Association’s counsel informs Mr. Stewart in a letter that he is in violation of section 5.1 of the CC&Rs for making unapproved changes to a common/limited common area.

• Post-November 15, 2017: Mr. Stewart, then a member of the Board, requests a variance for the changes.

• December 27, 2017: The Association’s attorney sends a letter stating an understanding that Mr. Stewart had recused himself and that the other two Board members (Sandra Fernandez and David Larson) had required the area to be restored.

• January 4, 2018: Mr. Stewart writes to the other Board members, refuting that he had agreed to recuse himself and requesting a formal meeting to consider his variance request.

• February 18, 2018: At a Board meeting, Mr. Stewart resigns from the Board. The remaining two members vote to deny his variance request and require him to restore the area to its original condition.

• May 21, 2018: Mr. Stewart files his petition with the Arizona Department of Real Estate.

• September 6, 2018: The initial administrative hearing is conducted.

• September 14, 2018: The Administrative Law Judge (ALJ) issues a decision dismissing Mr. Stewart’s petition.

• January 2, 2019: A rehearing is conducted.

• January 17, 2019: The ALJ issues a final decision following the rehearing, again dismissing the petition.

Petitioner’s Central Allegations

Mr. Stewart’s case rested on four primary claims against the Association’s Board.

1. Violation of Bylaws Section 5.4

The formal petition alleged a violation of Association Bylaws Article V, Section 5.4 (Liability), which states in part:

“So long as he/she has acted in good faith on the basis of information actually possessed, neither the Board nor any member of the Board nor any officer of the ASSOCIATION shall be liable to the ASSOCIATION, any OWNER, or to any other party for any damage, loss, or prejudice suffered or claimed on account of: (i) the approval or disapproval of any plans, drawings, or specifications, whether or not defective…or (v) any act or failure to act by the ASSOCIATION, or Board.”

Mr. Stewart cited this section because it was the only part of the governing documents he could find that included a “good faith” requirement.

2. Lack of Good Faith by the Board

Mr. Stewart asserted that the Board did not act in good faith when it denied his variance request. He based this claim on several points:

• He resigned from the Board during the February 18, 2018 meeting because he “got the sense ‘right away’ that the other Board members’ minds were made up and that they would not approve his request.”

• He presented unrebutted testimony that the Board members were unwilling to physically look at the changes he had made and only gave a “cursory look” at photographs he provided.

• The Board’s decision appeared to have been made prior to the meeting, as evidenced by the attorney’s December 27, 2017 letter which erroneously stated he had recused himself.

3. Bias of Board Member David Larson

A significant portion of Mr. Stewart’s argument was that Board member David Larson was personally biased against him. The evidence presented to support this included:

• Initial Hearing Evidence:

◦ A biography of Mr. Larson prepared by the property manager. When questioned, Mr. Stewart could not identify specific information showing bias but stated the “entire document coupled with the other statements shows a bias.”

◦ Notes from a November 28, 2017 Board meeting where Mr. Larson informed members that enforcement actions (towing, violation notices) would begin immediately and that he was “too busy to talk to people about Board business in driveways.”

• Rehearing Evidence:

◦ A letter dated October 3, 2018, from Mr. Larson to Association members urging them not to vote for Mr. Stewart in an upcoming election.

4. Unfair and Unequal Treatment

Mr. Stewart claimed he was treated unfairly because other units in the condominium were also not in conformity with the CC&Rs.

• He presented photos of units he believed were out of compliance.

• He testified that he had verified with the Association that none of these units had received a variance in the last two years.

• However, he acknowledged he did not know if variances had been granted more than two years prior or if the changes had received pre-approval, which would not require a variance.

Respondent’s Position and Legal Arguments

The Canyon Gate Condominium Association, represented by counsel, did not present witnesses but argued on legal grounds.

• Inapplicability of Bylaws Section 5.4: The Association’s core argument was that Section 5.4 was not applicable to Mr. Stewart’s complaint. They contended the section is an indemnification clause designed to act as a “shield” to protect Board members from liability when they act in good faith, not a “sword” that imposes an affirmative duty on them that can be violated.

• Reasonableness of Board Decision: The Association maintained that the Board’s decision was reasonable. According to Mr. Stewart’s own testimony, the Board’s basis for denial was the fear that granting his variance would “open a Pandora’s Box where other unit owners would request variances.”

Administrative Law Judge’s Rulings and Conclusions

The ALJ’s decisions in both the initial hearing and the rehearing were consistent, ultimately finding in favor of the Respondent.

Legal Framework

• Burden of Proof: The ALJ established that Mr. Stewart, as the petitioner, bore the burden of proof. The standard of proof was a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”

• Board’s Duty: The judge noted that while the Bylaws are a contract, the Association, in exercising its authority, must “act reasonably.”

Analysis of Bylaws Section 5.4

• The judge agreed entirely with the Association’s interpretation, concluding that Section 5.4 “does not impose any duty on the Board members, but rather merely shields them from liability if they act in good faith.”

• In the initial hearing, the judge noted Mr. Stewart “appeared to acknowledge that section 5.4 acts as a ‘shield’ and not a ‘sword.'”

• By the rehearing, this was solidified, with the finding that “Mr. Stewart acknowledges that the Association has not violated Bylaws Section 5.4.”

Assessment of ‘Good Faith’ and Bias Claims

• The ALJ concluded that even if Section 5.4 were applicable, Mr. Stewart “has not shown by a preponderance of the evidence that the Board did not act in good faith, that it had a bias against him, or that it treated him unfairly.”

• The judge found the Board’s reasoning for the denial—the “Pandora’s Box” concern—was “not an unreasonable position for the Board of a condominium association.”

• Given this reasoning, the judge stated that “the specifics of the changes Mr. Stewart made would not be germane to the decision,” thereby neutralizing the claim that the Board failed to properly inspect the modifications.

Evaluation of Unfair Treatment Claim

• The evidence of other non-compliant units was deemed “not probative of the issue at hand.”

• The judge reasoned that there was “no evidence to show that they had requested that the Board grant variances,” meaning their situations were not comparable to Mr. Stewart’s, who had made unapproved changes and was subsequently denied a variance.

Final Disposition

• Initial Decision (September 14, 2018): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This order was subject to a request for rehearing within 30 days.

• Rehearing Decision (January 17, 2019): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This final order was noted as binding on the parties, with any further appeal requiring judicial review filed with the superior court within 35 days.






Study Guide – 18F-H1818052-REL-RHG


Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.

This guide provides a review of the administrative case Lawrence M. Stewart, Petitioner, vs. Canyon Gate Condominium Association, Inc., Respondent (No. 18F-H1818052-REL), including the initial hearing and a subsequent rehearing.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, based on the provided case documents.

1. What action by Petitioner Lawrence M. Stewart initiated the dispute with the Canyon Gate Condominium Association?

2. What specific provision of the Association Bylaws did Mr. Stewart allege was violated in his petition?

3. Why did Mr. Stewart resign from the Association’s Board during the February 18, 2018 meeting?

4. What was the Board’s stated reason for denying Mr. Stewart’s request for a variance?

5. Explain the legal interpretation of Bylaws Section 5.4 as a “shield” and not a “sword.”

6. List two pieces of evidence Mr. Stewart presented at the initial hearing to support his claim that Board member David Larson was biased against him.

7. What was the legal standard of proof in this case, and which party was required to meet it?

8. How did Mr. Stewart attempt to prove he was being treated unfairly in comparison to other unit owners, and why did the judge find this evidence unconvincing?

9. At the rehearing, what new evidence did Mr. Stewart present regarding Mr. Larson’s alleged bias?

10. What was the final outcome of both the initial administrative hearing and the subsequent rehearing?

——————————————————————————–

Answer Key

1. Mr. Stewart initiated the dispute by making changes to the common area and/or limited common area around his unit without first receiving permission from the Association. The Association informed him in a letter dated November 15, 2017, that this was a violation of section 5.1 of the CC&Rs.

2. Mr. Stewart alleged in his petition that the Association violated Bylaws Section 5.4. He later acknowledged this section was not technically violated but cited it because it was the only provision in the governing documents he could find that included a “good faith” requirement.

3. Mr. Stewart resigned from the Board because he “got the sense ‘right away’ that the other Board members’ minds were made up” and that they would not approve his request for a variance, regardless of the details.

4. The Board denied Mr. Stewart’s request on the basis that approving it would “open a Pandora’s Box” where other unit owners would then also request variances. The Administrative Law Judge found this was not an unreasonable position for a condominium association board to take.

5. The interpretation of Section 5.4 is that it acts as a “shield” to protect, or indemnify, Board members from liability for damages, loss, or prejudice, provided they have acted in good faith. It is not a “sword” that imposes an affirmative duty on the Board that Mr. Stewart could use to compel a certain action or claim a violation.

6. At the initial hearing, Mr. Stewart presented two of the following: (1) a biography of Mr. Larson; (2) notes from a November 28, 2017 meeting where Mr. Larson stated that enforcement actions would begin immediately; and (3) a letter from the Association’s attorney that erroneously stated Mr. Stewart had recused himself, suggesting the matter was decided without him.

7. The standard of proof was a “preponderance of the evidence.” The burden of proof rested entirely on the petitioner, Mr. Stewart, to show that the Association had acted improperly.

8. Mr. Stewart presented testimony and photos of other units that he believed were not in conformity with the CC&Rs. The judge found this evidence was not probative because Mr. Stewart provided no evidence that those owners had requested and been denied variances, and he acknowledged he did not know if they had received variances more than two years prior or had received preapproval.

9. At the rehearing, Mr. Stewart entered into evidence an October 3, 2018 letter from Mr. Larson to the Association’s members. In this letter, Mr. Larson urged the members not to vote for Mr. Stewart in an upcoming election.

10. In both the initial decision (September 14, 2018) and the decision following the rehearing (January 17, 2019), the Administrative Law Judge ordered that Mr. Stewart’s petition be dismissed. The Respondent, Canyon Gate Condominium Association, Inc., was deemed the prevailing party in the matter.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and legal conclusions from the case documents.

1. Analyze the Administrative Law Judge’s reasoning for concluding that Bylaws Section 5.4 was not applicable to Mr. Stewart’s petition. How did Mr. Stewart’s own testimony during the legal proceedings support this conclusion?

2. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Evaluate the evidence Mr. Stewart presented across both hearings and explain why the judge found it insufficient to meet this standard regarding his claims of bias, bad faith, and unfair treatment.

3. Examine the Canyon Gate Board’s justification for denying the variance request (the “Pandora’s Box” argument). Based on the legal principles cited in the decisions, why was this considered a reasonable position for a condominium association board to take, and why did it render the specifics of Mr. Stewart’s changes non-germane?

4. Trace the procedural timeline of this case from the Association’s initial notice of violation on November 15, 2017, to the final binding order issued on January 17, 2019. Identify the key events, arguments, and decisions at each stage of the administrative process.

5. Mr. Stewart argued that he was treated unfairly because other units were also out of compliance with the CC&Rs. Deconstruct this argument and explain why the judge dismissed this line of reasoning as not being probative to the issue at hand in both the initial hearing and the rehearing.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Thomas Shedden) who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.

Association

The Canyon Gate Condominium Association, Inc., the entity responsible for enforcing the Bylaws and CC&Rs. In this case, it is the Respondent.

The governing body of the Association, which at the time of the variance request included Lawrence M. Stewart, Sandra Fernandez, and David Larson.

Burden of Proof

The obligation to prove one’s assertion. In this case, the burden of proof was on the Petitioner, Mr. Stewart.

Bylaws

A contract between the Association and its members. The parties are required to comply with its terms, and the Association must act reasonably in exercising its authority under them.

Covenants, Conditions, and Restrictions. Mr. Stewart was found to be in violation of section 5.1 of the CC&Rs for making unapproved changes.

Common Area / Limited Common Area

The property around a condominium unit that is shared or has restricted use. Mr. Stewart made unauthorized changes to this area.

Good Faith

A standard of conduct mentioned in Bylaws Section 5.4. It protects Board members from liability so long as they act in good faith based on information they possess. Mr. Stewart claimed the Board failed to meet this standard.

Indemnification

The act of compensating for loss or damage. Bylaws Article V, which contains Section 5.4, pertains to indemnification.

Petitioner

The party who files a petition initiating a legal case. In this matter, the petitioner was Lawrence M. Stewart.

Preponderance of the Evidence

The standard of proof required in this case, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Rehearing

A second hearing granted in a legal matter. A rehearing was conducted on January 2, 2019, after which the judge issued a final, binding order.

Respondent

The party against whom a petition is filed. In this matter, the respondent was Canyon Gate Condominium Association, Inc.

Variance

An official exception or deviation from a rule. Mr. Stewart requested a variance to allow the unapproved changes he had made, which the Board denied.






Blog Post – 18F-H1818052-REL-RHG


A Homeowner Sued His HOA and Lost—The Surprising Reasons Why Might Save You Thousands

Introduction: The Perennial Battle Between Homeowner and HOA

For many homeowners, the relationship with their Homeowners’ Association (HOA) can feel like a constant source of friction. From landscaping rules to paint colors, the potential for disputes is endless. But what happens when a homeowner feels so strongly wronged that they take the ultimate step of suing their association? More importantly, what happens when they lose?

This is the story of a homeowner who was also a board member. After making unauthorized changes to his property, he was denied his request for a variance to approve the changes he had already made. Believing the Board had acted in bad faith, he sued the association. His case failed, not on a minor technicality, but due to fundamental misunderstandings of how HOA law and governing documents function.

This outcome highlights a common, and costly, misconception about HOA governance. We will explore the surprising legal realities revealed in the case of Lawrence M. Stewart vs. Canyon Gate Condominium Association, Inc., offering several crucial takeaways for any homeowner before they decide to challenge their HOA.

1. A “Good Faith” Clause Can Be a Shield, Not a Sword

Mr. Stewart based his entire case on the claim that the Board violated Section 5.4 of the bylaws by not acting in “good faith,” as this was the only section in the governing documents he could find that mentioned the phrase.

This is where the case pivots on a crucial legal distinction. The court found that this clause was not intended to impose a duty on the board that a homeowner could sue over (a “sword”). Instead, its function was to protect board members from liability if they acted in good faith (a “shield”). Legally, this is an indemnification clause. Think of it as a form of insurance, designed to protect volunteer board members from being personally sued for making reasonable decisions, not a weapon for homeowners to attack those decisions.

In his testimony, Mr. Stewart even acknowledged this “shield” versus “sword” distinction but proceeded with the argument anyway. The lesson for homeowners is unequivocal: you must understand the precise legal function of a clause within your governing documents, not just its keywords.

2. The “Pandora’s Box” Defense Is a Powerful Argument

The Board’s primary reason for denying Mr. Stewart’s variance request was its fear that approval “would open a Pandora’s Box where other unit owners would request variances.” While a homeowner might hear “Pandora’s Box” and think it’s a lazy excuse, the court viewed it as the board performing its fundamental duty.

The judge stated this reasoning “was not an unreasonable position for the Board of a condominium association.” This validation is incredibly impactful because it shifts the focus from the merits of one homeowner’s request to the Board’s overarching fiduciary duty to uphold the rules consistently for the entire community. It shows that an HOA’s duty to maintain consistent enforcement and avoid setting a messy precedent is a legally sound basis for a decision, making the specific details of one homeowner’s changes irrelevant.

3. Being on the Board Won’t Give You a Pass

In a surprising twist, Mr. Stewart was a member of the HOA Board at the very time he made the unauthorized changes and requested the variance. This created a clear conflict of interest and ultimately did not help his case.

The situation culminated in Mr. Stewart resigning from the Board during the meeting where his request was considered. He stated he resigned because he felt “the other Board members’ minds were made up” and they would not approve his request. This incident serves as a stark reminder: holding a position on the board does not grant special privileges or exceptions to the rules. In fact, it can complicate personal matters and highlight a direct conflict between a board member’s duties to the association and their personal interests.

4. “Whataboutism” Is Not a Legal Strategy

Like many homeowners in a dispute, Mr. Stewart argued that he was being treated unfairly because other units in the community were also out of compliance with the CC&Rs. This is a common defense, but its legal failure in this case is a masterclass in what courts actually require for proof.

Mr. Stewart’s effort was commendable but legally insufficient. He presented photos of other non-conforming units and even “verified with the Association that none of these units had received a variance in the last two years.” However, his evidence collapsed under cross-examination when he “acknowledged… he did not know if any of these units had received variances more than two years ago or whether preapproval for the changes had been granted.”

The judge dismissed his evidence entirely. This transforms the lesson from a simple “don’t point fingers” to a much more sophisticated legal principle: to prove selective enforcement, you must prove others in the identical procedural situation were treated differently, and incomplete evidence is no evidence at all.

5. The Burden of Proof Is Everything

Perhaps the most stunning fact from the case is that the Association “presented no witnesses” at either the initial hearing or the subsequent rehearing. They won the case without putting a single person on the stand to testify.

They could do this because the legal system placed the “burden of proof” squarely on Mr. Stewart. As the petitioner, it was his job to prove his claims of bad faith, bias, and unfair treatment by a “preponderance of the evidence.” The Association didn’t have to prove it acted in good faith; Mr. Stewart had to prove it acted in bad faith. He failed to meet this standard. In other words, he had to prove that his claims were more likely to be true than not—even if only by a 51% to 49% margin.

The court document formally defines this legal standard as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

In a legal dispute with your HOA, the case is not about who is morally right or wrong. It’s about who can meet their required burden of proof with convincing, relevant evidence.

Conclusion: Know the Rules Before You Fight the Rulers

The case of Lawrence M. Stewart is a cautionary tale that every homeowner should internalize. His failed lawsuit, which likely became a five-figure mistake when factoring in legal fees for both sides, underscores that HOA governing documents are a binding contract. Challenging the Board requires more than a sense of unfairness. It demands a precise, evidence-backed legal argument that aligns with the specific terms of that contract and the applicable legal standards.

Before you declare war on your HOA, ask yourself: are you prepared to prove your case with irrefutable evidence, or are you just banking on a feeling of being wronged?


Case Participants

Petitioner Side

  • Lawrence M. Stewart (petitioner)
    Also served as a Board member for Respondent until resigning during the variance request consideration.

Respondent Side

  • Mark K. Sahl (attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent in the initial hearing.
  • Nicolas C. S. Nogami (attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent in both the initial hearing (listed as 'Nichols C. S. Nogami') and the rehearing.
  • Sandra Fernandez (board member)
    Canyon Gate Condominium Association, Inc.
    Voted to deny Petitioner's variance request.
  • David Larson (board member)
    Canyon Gate Condominium Association, Inc.
    Voted to deny Petitioner's variance request; Petitioner alleged he was biased.

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Recipient of the decision copies.
  • F. Del Sol (administrative staff)
    Office of Administrative Hearings
    Signed the transmission of the decision copies.

Tom Barrs v. Desert Ranch Homeowner’s Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 18F-H1818035-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-12-26
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Barrs Counsel —
Respondent Desert Ranch Homeowners' Association Counsel —

Alleged Violations

Bylaw 2.4

Outcome Summary

In the initial decision, Petitioner established violations of A.R.S. § 33-1812(A)(7) (election materials disposal) and A.R.S. § 33-1804 (closed/improperly noticed meetings), but failed to establish a violation of Bylaw 2.4 (Issue 1). The rehearing only addressed Issue 1, which was ultimately dismissed.

Why this result: Petitioner lost Issue 1 (Bylaw 2.4 violation) because the ALJ found that while the Bylaw applied to Members, Petitioner failed to show it prohibited a Director from raising concerns about election validity after the meeting adjourned, and the investigation was initiated by a Board member immediately following the meeting.

Key Issues & Findings

Violation of Bylaw 2.4 (Election Objection Waiver)

Whether Respondent violated Bylaw 2.4 when it acted on an objection to the election results raised the day after the Annual Meeting, given that the Bylaw requires members to object to irregularities 'at the meeting' to avoid waiver.

Orders: The Petition was dismissed as to Issue 1.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA Dispute, Election Challenge, Bylaw Violation, Meeting Notice, Record Retention, Rehearing
Additional Citations:

  • A.R.S. § 33-1813
  • A.R.S. § 33-1811
  • A.R.S. § 33-1812
  • A.R.S. § 33-1804
  • Bylaw 3.3
  • Bylaw 2.4

Video Overview

Audio Overview

Decision Documents

18F-H1818035-REL-RHG Decision – 678304.pdf

Uploaded 2026-01-23T17:23:44 (117.5 KB)

18F-H1818035-REL-RHG Decision – 678305.pdf

Uploaded 2026-01-23T17:23:47 (38.8 KB)

18F-H1818035-REL-RHG Decision – ../18F-H1818035-REL/655766.pdf

Uploaded 2026-01-23T17:23:50 (113.2 KB)





Briefing Doc – 18F-H1818035-REL-RHG


Briefing Document: Tom Barrs vs. Desert Ranch HOA

Executive Summary

This document synthesizes the findings and rulings from an administrative legal dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent) concerning the HOA’s board election of March 18, 2017. The core of the dispute involved the HOA board’s decision to investigate and ultimately overturn the initially announced election results, leading to a run-off election.

The Administrative Law Judge (ALJ) overseeing the case and a subsequent rehearing issued a mixed final decision. The Petitioner, Mr. Barrs, successfully proved that the Desert Ranch HOA committed two statutory violations:

1. Destruction of Election Materials: The HOA violated Arizona statute A.R.S. § 33-1812(A)(7) by destroying ballot envelopes shortly after the election, materials which are required to be retained for at least one year.

2. Improper Closed Meeting: The HOA violated Arizona statute A.R.S. § 33-1804 by holding a board meeting with its attorney at a private residence without providing the required notice to its members.

However, the Petitioner’s primary challenge—that the board violated its own Bylaw 2.4 by acting on an objection raised after the annual meeting had adjourned—was dismissed. The ALJ ruled that the bylaw’s waiver of claims applied to general “Members” but not to “Directors” acting in their official capacity. This ruling effectively upheld the board’s authority to investigate the election, which led to the discovery of invalid ballots and the eventual run-off election won by Brian Schoeffler.

As the prevailing party on two of the three issues, Mr. Barrs was awarded a reimbursement of his $1,000.00 filing fee. The judge, however, found that no civil penalty against the HOA was appropriate.

——————————————————————————–

I. Case Overview

• Parties:

◦ Petitioner: Tom Barrs

◦ Respondent: Desert Ranch HOA, represented by Catherine Overby (President) and Brian Schoeffler (Vice President)

• Case Number: 18F-H1818035-REL

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Tammy L. Eigenheer

• Subject of Dispute: Alleged violations of Arizona statutes and HOA bylaws related to the handling and outcome of the March 18, 2017, annual board election.

II. Chronology of the Contested Election

The dispute originated from the following sequence of events surrounding the 2017 election for two vacant seats on the Desert Ranch HOA Board of Directors.

1. Pre-Election: Absentee ballots were distributed to members, listing Catherine Overby and Brian Schoeffler as candidates and providing a space for a write-in candidate.

2. March 18, 2017 (Annual Meeting): Ballots were submitted and counted. Catherine Overby and Jerome Klinger (a write-in) were announced as the winning candidates. No members present objected to the results before the meeting was adjourned.

3. Immediately Following the Meeting: Board member Patrick Rice gathered the ballots and “expressed his concerns with the election results.”

4. Circa March 18, 2017: All ballot envelopes from the election were destroyed.

5. March 19, 2017: Candidate Brian Schoeffler sent an email regarding the election, stating, “I’m asking you to review the situation and make a decision if there is enough concern that there should be a revote.”

6. March 20, 2017: Board President Catherine Overby emailed the members, announcing that the election had been “contested.” In the email, she asserted that the bylaws did not permit write-in candidates and declared that she and Mr. Schoeffler were the new directors.

7. March 29, 2017: Certain board members, including Ms. Overby and Mr. Rice, held an unannounced meeting with an attorney at Ms. Overby’s home. During this meeting, it was discovered that “duplicate ballots and a proxy ballot” had been improperly counted.

8. Post-March 29, 2017: After consulting the attorney, the board determined that the valid vote count resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board decided to hold a run-off election.

9. April 29, 2017: The run-off election was held, and Brian Schoeffler was announced as the winner.

10. May 10, 2017: The newly constituted Board of Directors held its organizational meeting.

III. Adjudicated Issues and Rulings

The petition, originally filed as a single issue, was converted to a multiple-issue case. At the hearing, the dispute was clarified into three distinct issues, each with a specific ruling from the ALJ.

Petitioner’s Allegation

Legal Basis

Final Ruling

The HOA improperly overturned the election results based on an objection raised after the annual meeting had adjourned.

Bylaw 2.4

Dismissed

The HOA unlawfully discarded ballot envelopes and related election materials.

A.R.S. § 33-1812(A)(7)

Violation Found

The HOA held closed board meetings without providing proper notice to the membership.

A.R.S. § 33-1804

Violation Found

——————————————————————————–

A. Issue 1: Violation of Bylaw 2.4 (Improperly Overturning Election)

• Petitioner’s Argument: Mr. Barrs contended that the board was barred from investigating or acting on any concerns about the election after the meeting had concluded. His argument was based on Bylaw 2.4, which states:

• ALJ Finding: The petition on this issue was dismissed. The judge’s finding was affirmed after a rehearing requested by the Petitioner.

• ALJ Rationale:

1. Initiation of Investigation: Testimony established that Board member Patrick Rice expressed concerns “immediately after the Annual Meeting adjourned.” Therefore, Mr. Schoeffler’s email the following day did not initiate the board’s investigation.

2. Distinction Between “Member” and “Director”: The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. The waiver in Bylaw 2.4 applies specifically to a “Member,” and the Petitioner failed to prove that a “Director” was prohibited from raising questions about the validity of an election after a meeting.

B. Issue 2: Violation of A.R.S. § 33-1812(A)(7) (Destruction of Election Materials)

• Statutory Requirement: Arizona law mandates that “Ballots, envelopes and related materials… shall be retained… for at least one year after completion of the election.”

• Respondent’s Action: The HOA destroyed the ballot envelopes at or around the time of the election.

• ALJ Finding: The Petitioner established that the HOA violated the statute.

• ALJ Rationale: The ruling was based on “uncontroverted evidence” presented at the hearing that established the destruction of the materials.

C. Issue 3: Violation of A.R.S. § 33-1804 (Improper Closed Meetings)

• Statutory Requirement: Arizona law requires all HOA board meetings to be open to all members. A meeting can only be closed for specific reasons, such as receiving legal advice, and the board must provide notice and cite the legal authority for entering a closed session.

• Respondent’s Action: Certain board members met with an attorney at a private residence on March 29, 2017, to discuss the election. No notice was provided to the membership regarding this meeting.

• ALJ Finding: The Petitioner established that the HOA violated the statute.

• ALJ Rationale: The ruling was based on “uncontroverted evidence” that the meeting occurred and that the board “did not provide any notice of the upcoming meeting and/or provide notice that the meeting would be closed because it involved legal advice from an attorney.”

IV. Final Order and Disposition

The final decision, issued on August 23, 2018, and upheld after a rehearing decision on December 26, 2018, ordered the following:

• Dismissal: The petition regarding Issue 1 (violation of Bylaw 2.4) was dismissed.

• Prevailing Party: The Petitioner, Tom Barrs, was deemed the prevailing party as to Issue 2 and Issue 3.

• Monetary Award: The Respondent, Desert Ranch HOA, was ordered to pay the Petitioner his filing fee of $1,000.00.

• Civil Penalty: The judge determined that “No Civil Penalty is found to be appropriate in this matter.”

• Finality: The decision after rehearing was binding on the parties, with any further appeal requiring judicial review in the superior court.






Study Guide – 18F-H1818035-REL-RHG


Study Guide:Barrs v. Desert Ranch HOA

This guide provides a detailed review of the administrative case Tom Barrs v. Desert Ranch HOA, based on the Administrative Law Judge Decisions issued on August 23, 2018, and December 26, 2018.

——————————————————————————–

Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, using only information provided in the case documents.

1. Who were the primary parties involved in this case, and what were their roles?

2. What were the initially announced results of the Desert Ranch HOA Board of Directors election on March 18, 2017?

3. What were the two primary procedural violations that the Desert Ranch HOA Board committed following the March 18, 2017 election?

4. What was the Petitioner’s central argument regarding the violation of Desert Ranch Bylaw 2.4?

5. On what grounds did the Administrative Law Judge (ALJ) dismiss the Petitioner’s claim regarding Bylaw 2.4?

6. Explain the violation related to Arizona Revised Statute (A.R.S.) § 33-1812(A)(7) that the ALJ found the Respondent had committed.

7. Describe the violation of A.R.S. § 33-1804 concerning open meetings.

8. What was the final order from the initial hearing on August 23, 2018?

9. What was the specific focus of the rehearing held on December 6, 2018?

10. What was the ultimate outcome of the rehearing, and what legal recourse was available to the parties afterward?

——————————————————————————–

Answer Key

1. The primary parties were Petitioner Tom Barrs, who filed the dispute, and Respondent Desert Ranch HOA. The HOA was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler. The case was heard by Administrative Law Judge Tammy L. Eigenheer.

2. At the Annual Board Meeting on March 18, 2017, the ballots were counted and Catherine Overby and Jerome Klinger were announced as the winning candidates for the two vacant seats on the Board of Directors. No members present raised an objection before the meeting was adjourned.

3. The HOA Board committed two primary procedural violations. First, they destroyed the ballot envelopes at or around the time of the election, and second, certain Board members met with an attorney without providing notice to the association members that a meeting was being held or that it would be a closed session.

4. The Petitioner argued that candidate Brian Schoeffler’s challenge to the election was invalid because it was raised the day after the meeting adjourned. According to Bylaw 2.4, any “Member” who fails to object to an irregularity at the meeting waives their claim, and the Petitioner argued this rule should also apply to Board members.

5. The ALJ dismissed the claim because the investigation was initiated by Board member Patrick Rice, who expressed concerns immediately after the meeting, not by Mr. Schoeffler’s later email. The judge also determined that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific, non-interchangeable meanings, and the Petitioner failed to show that a Director was barred from raising concerns after a meeting.

6. The ALJ found that the Respondent violated A.R.S. § 33-1812(A)(7) based on uncontroverted evidence presented at the hearing. This statute requires that ballots, envelopes, and related election materials be retained for at least one year after an election, but the HOA discarded the ballot envelopes around the time of the election.

7. The Respondent violated A.R.S. § 33-1804 when certain Board members met with an attorney at Ms. Overby’s house on March 29, 2017. The HOA failed to provide any notice of this meeting to the members and did not announce that the meeting would be closed to discuss legal advice, as required by the statute.

8. In the initial order, the ALJ dismissed the petition as to Issue 1 (the Bylaw 2.4 violation) but found the Petitioner to be the prevailing party on Issues 2 and 3 (the statutory violations). The judge ordered the Respondent HOA to pay the Petitioner his filing fee of $1,000.00 but found that no civil penalty was appropriate.

9. The rehearing focused exclusively on the first issue from the initial hearing: whether the Respondent violated Bylaw 2.4 when it acted on objections to the election results after the Annual Meeting had adjourned. The Petitioner did not seek reconsideration of the lack of penalties for the other two violations.

10. The rehearing upheld the original decision, dismissing the petition as to Issue 1. The decision from the rehearing was final and binding, and any party wishing to appeal the order was required to seek judicial review in the superior court within thirty-five days.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, drawing upon specific facts and legal arguments presented in the source documents.

1. Analyze the Administrative Law Judge’s interpretation of Desert Ranch Bylaw 2.4, specifically the distinction between a “Member” and a “Director.” Discuss the strength of the Petitioner’s counter-argument and why the judge’s reasoning ultimately prevailed.

2. Examine the series of actions taken by the Desert Ranch HOA Board of Directors following the March 18, 2017 election announcement. Evaluate whether their actions to investigate irregularities, consult an attorney, and hold a run-off election were ultimately justified, despite the procedural violations they committed.

3. Discuss the concept of “preponderance of the evidence” as the burden of proof in this case. For each of the three issues presented, explain how the Petitioner either met or failed to meet this standard, citing specific evidence mentioned in the decisions.

4. Based on the events described, from the initial election to the final administrative ruling, critique the effectiveness of the HOA’s internal governance and dispute resolution processes. What systemic failures are evident, and how did they lead to a formal administrative hearing?

5. Although the Petitioner was the “prevailing party” on two of the three issues, the remedy was limited to a refund of his filing fee, with no civil penalty imposed. Argue for or against the appropriateness of this remedy, considering the nature of the HOA’s violations and their impact on the integrity of the election process.

——————————————————————————–

Glossary of Key Terms

Term / Statute

Definition

Administrative Law Judge (ALJ)

The official who presides over the administrative hearing at the Office of Administrative Hearings and issues a decision based on evidence and law. In this case, Tammy L. Eigenheer.

A.R.S. § 33-1804

An Arizona Revised Statute requiring that all meetings of a homeowners’ association and its board of directors be open to all members. A meeting may only be closed for specific reasons, such as receiving legal advice, and the board must state the statutory reason for closing the meeting.

A.R.S. § 33-1812(A)(7)

An Arizona Revised Statute that mandates the retention of election materials, including ballots and envelopes, in either electronic or paper format for at least one year after the completion of an election for member inspection.

A.R.S. § 41-2198.01

An Arizona statute that permits an owner or a planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of community documents or statutes.

Burden of Proof

The obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In this case, the Petitioner bore the burden of proof.

Desert Ranch Bylaw 2.4

A provision in the HOA’s bylaws stating, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”

Homeowners Association (HOA) Dispute Process Petition

The formal document filed with the Arizona Department of Real Estate by a homeowner to initiate a legal proceeding against their HOA for alleged violations.

Petitioner

The party who files a petition initiating a legal action. In this case, Tom Barrs.

Preponderance of the evidence

The standard of proof in this administrative hearing. It is defined as evidence that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of the evidence.

Rehearing

A second hearing of a case to consider a decision that has already been made, typically granted if there are perceived errors of law, misconduct, or if the decision was not supported by the evidence.

Respondent

The party against whom a petition is filed. In this case, the Desert Ranch HOA.






Blog Post – 18F-H1818035-REL-RHG


A Homeowner Sued His HOA Over a Botched Election—Here Are 3 Lessons Every Board Should Learn

Friction between homeowners and their Homeowners Association (HOA) board is a common feature of community living, and nowhere is that friction more apparent than in disputes over elections and rule enforcement. But what happens when a board, trying to correct an error, makes the situation exponentially worse?

This article is a deep dive into the real administrative law case of Barrs v. Desert Ranch HOA, a seemingly straightforward dispute that reveals surprising and practical lessons for anyone living in or governing a planned community. It’s a story of a cascade of errors, where initial election confusion led to a panicked and procedurally flawed response, compounded by a pre-existing failure in record-keeping. As we’ll see, the outcome wasn’t what anyone expected, and the board’s biggest mistakes weren’t the ones they thought they were fighting.

——————————————————————————–

1. You Can Lose the Main Argument But Still Win the Case

The dispute began at the Desert Ranch HOA’s annual meeting, where election results were announced. The trouble started immediately after the meeting adjourned when a board Director, Patrick Rice, gathered the ballots and expressed concerns about irregularities. A day later, a losing candidate, Brian Schoeffler, echoed those concerns via email. Citing the Director’s objection, the board overturned the initial results, prompting homeowner Tom Barrs to file a petition arguing this was a violation of the HOA’s own rules.

Barrs’ case hinged on Bylaw 2.4, which stated that any “Member” must object to irregularities during the meeting itself, or else they waive their right to complain. Barrs argued that since no one objected before adjournment, the results should stand. However, the judge disagreed, pointing to two critical distinctions in the evidence. First, the investigation was triggered by the concerns of a “Director,” not the losing candidate’s later email. Second, a close reading of the bylaws showed that the terms “Member” and “Director” were used as distinct categories and were not interchangeable. Since the bylaw only restricted “Members,” it did not prevent a Director from raising concerns after the meeting. Barrs lost his primary argument.

Despite this, in a counter-intuitive twist, the judge declared Barrs the “prevailing party” in the overall case and ordered the HOA to repay his $1,000 filing fee. Why? Because while investigating the petitioner’s main claim, the judge found the board had committed other clear violations of state law while trying to “fix” the election. This outcome underscores a critical principle for all boards: procedural integrity is paramount. The HOA won the battle over its right to review the election but lost the war because of its flawed process.

——————————————————————————–

2. Your Records (or Lack Thereof) Will Be Your Downfall

One of the board’s most significant errors was a simple but critical failure of administrative duty: they destroyed election materials in direct violation of state law. The HOA was found to have violated A.R.S. § 33-1812(A)(7), which is unambiguous about an HOA’s responsibility.

According to A.R.S. § 33-1812(A)(7), “Ballots, envelopes and related materials…shall be retained…for at least one year after completion of the election.”

The legal decision states the evidence was “uncontroverted” that the HOA discarded the ballot envelopes around the time of the election. Because the HOA could not dispute this fact, it was an easy violation for the petitioner to prove.

This wasn’t just a minor administrative oversight; it was a catastrophic error. By destroying the envelopes, the board not only violated the law but also eliminated any possibility of independently verifying the vote count after their own director discovered irregularities. This single failure trapped them in a procedural corner of their own making. It made a definitive resolution of the election challenge impossible, leading to the messy and expensive situation of declaring a tie and holding a run-off, all of which could have been avoided if the primary evidence had been preserved as required by law.

——————————————————————————–

3. “Private” Board Business Can Be an Illegal Secret Meeting

In an attempt to resolve the election dispute correctly, the board took what it likely considered a responsible step: seeking legal advice. After the election was contested, certain board members met with an attorney at a board member’s house to figure out how to proceed. However, the way they did it constituted another clear violation of state law.

This private meeting violated Arizona’s open meeting law, A.R.S. § 33-1804. While the statute does allow a board to enter a closed session to receive legal advice, it has strict procedural requirements. The board must first provide notice of the meeting to all members and then, at that public meeting, officially vote to enter the closed session for that specific, legally permissible reason. The evidence was “uncontroverted” that the board failed to provide any notice of this meeting to the association members.

The board’s desire for confidential legal advice was understandable, but their method created an unforced legal error. The correct procedure—notifying members of a meeting and then voting to enter a closed session—protects the board by demonstrating procedural propriety. The shortcut they took exposed them to a clear-cut violation that was impossible to defend. For an HOA board, transparency is the default, and secrecy is a narrow, legally defined exception. The process of going private matters as much as the reason for doing so.

——————————————————————————–

Conclusion: It’s Not Just What You Do, It’s How You Do It

The Desert Ranch HOA board, in its attempt to correct a perceived election error, committed two clear statutory violations. In their haste, they held an illegal secret meeting and were hamstrung by their prior failure to properly retain election records—the very evidence needed for a clean resolution. These procedural missteps ultimately cost them the case.

The ultimate lesson from Barrs v. Desert Ranch HOA is that for any governing body, procedural correctness is just as important as substantive correctness. This case serves as a stark reminder that good intentions are no defense against procedural law. When a crisis hits, does your board have the discipline to follow procedure, or will the rush to find a solution lead you to commit unforced errors that are far worse than the original problem?


Case Participants

Petitioner Side

  • Tom Barrs (petitioner)
    Appeared on his own behalf
  • Stephen Barrs (witness)
    Testified for Petitioner

Respondent Side

  • Catherine Overby (board president, witness)
    Desert Ranch HOA
    Appeared on behalf of Respondent
  • Brian Schoeffler (board vice president, witness)
    Desert Ranch HOA
    Appeared on behalf of Respondent
  • Patrick Rice (board member)
    Desert Ranch HOA
    Board member who expressed concerns with election results

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Jerome Klinger (board member)
    Desert Ranch HOA
    Director elected in disputed election

Tom Barrs vs Desert Ranch HOA

Posted on by

Case Summary

Case ID 18F-H1818035-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-12-26
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Barrs Counsel —
Respondent Desert Ranch Homeowners' Association Counsel —

Alleged Violations

Bylaw 2.4

Outcome Summary

In the initial decision, Petitioner established violations of A.R.S. § 33-1812(A)(7) (election materials disposal) and A.R.S. § 33-1804 (closed/improperly noticed meetings), but failed to establish a violation of Bylaw 2.4 (Issue 1). The rehearing only addressed Issue 1, which was ultimately dismissed.

Why this result: Petitioner lost Issue 1 (Bylaw 2.4 violation) because the ALJ found that while the Bylaw applied to Members, Petitioner failed to show it prohibited a Director from raising concerns about election validity after the meeting adjourned, and the investigation was initiated by a Board member immediately following the meeting.

Key Issues & Findings

Violation of Bylaw 2.4 (Election Objection Waiver)

Whether Respondent violated Bylaw 2.4 when it acted on an objection to the election results raised the day after the Annual Meeting, given that the Bylaw requires members to object to irregularities 'at the meeting' to avoid waiver.

Orders: The Petition was dismissed as to Issue 1.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA Dispute, Election Challenge, Bylaw Violation, Meeting Notice, Record Retention, Rehearing
Additional Citations:

  • A.R.S. § 33-1813
  • A.R.S. § 33-1811
  • A.R.S. § 33-1812
  • A.R.S. § 33-1804
  • Bylaw 3.3
  • Bylaw 2.4

Video Overview

Audio Overview

Decision Documents

18F-H1818035-REL Decision – 655766.pdf

Uploaded 2025-12-09T10:04:26 (113.2 KB)

18F-H1818035-REL Decision – 678304.pdf

Uploaded 2025-10-09T03:32:44 (117.5 KB)

18F-H1818035-REL Decision – 678305.pdf

Uploaded 2025-10-09T03:32:44 (38.8 KB)





Briefing Doc – 18F-H1818035-REL


Barrs v. Desert Ranch HOA: Case Briefing

Executive Summary

This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.

An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.

The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.

Case Overview

This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.

Case Detail

Information

Case Number

18F-H1818035-REL-RHG

Petitioner

Tom Barrs

Respondent

Desert Ranch Homeowners’ Association

Presiding Judge

Tammy L. Eigenheer, Administrative Law Judge

Initial Hearing

Not specified in document

Rehearing Date

December 6, 2018

Decision Date

December 26, 2018

Key Individuals:

• Tom Barrs: Petitioner.

• Catherine Overby: HOA President, appeared for Respondent.

• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.

• Jerome Klinger: Candidate initially announced as a winner of the election.

• Patrick Rice: Board member at the time of the election.

Chronology of the 2017 Election Dispute

1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.

2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.

3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.

4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.

5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.

6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.

7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.

8. May 10, 2017: The Board of Directors holds an organizational meeting.

Procedural History and Allegations

Initial Petition and Hearing

• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.

• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.

• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”

The three core issues alleged by the petitioner were:

1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.

2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.

3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.

Initial Decision

Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:

• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.

• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.

• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.

Rehearing and Final Order

• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.

• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.

Judicial Analysis and Final Rulings

The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.

Key Bylaw and Legal Standard

• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:

• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Analysis of Issue 1: Violation of Bylaw 2.4

• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.

• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.

• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.

◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.

◦ Bylaw 2.4 applies specifically to a “Member.”

◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.

◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.

Final Order

Based on the analysis from the rehearing, the judge issued the following order:

IT IS ORDERED that the Petition be dismissed as to Issue 1.

This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.






Study Guide – 18F-H1818035-REL


Study Guide: Barrs v. Desert Ranch Homeowners’ Association (No. 18F-H1818035-REL-RHG)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Tom Barrs and Respondent Desert Ranch Homeowners’ Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

——————————————————————————–

Short-Answer Quiz

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

1. Who were the primary parties involved in case No. 18F-H1818035-REL-RHG, and what were their roles?

2. What specific event on March 18, 2017, served as the catalyst for the entire legal dispute?

3. What were the initial, announced results of the election held at the March 18, 2017, Annual Meeting?

4. According to the Petitioner, how did the HOA Board violate Bylaw 2.4 following the election?

5. In the initial hearing, which two of the Petitioner’s allegations were found to be valid violations committed by the Respondent?

6. Why did the Commissioner of the Arizona Department of Real Estate grant the Petitioner’s request for a rehearing?

7. During the rehearing on December 6, 2018, what was the single issue that the Petitioner chose to focus on for reconsideration?

8. According to the Administrative Law Judge’s findings, what action initiated the Board’s investigation into the election results, separate from Brian Schoeffler’s email?

9. How did the Judge’s interpretation of the terms “Member” and “Director” in the bylaws defeat the Petitioner’s primary argument on rehearing?

10. What was the final order issued by the Administrative Law Judge regarding Issue 1 after the conclusion of the rehearing?

——————————————————————————–

Answer Key

1. The primary parties were Tom Barrs, who served as the Petitioner, and the Desert Ranch Homeowners’ Association, which was the Respondent. The Petitioner, Mr. Barrs, appeared on his own behalf, while the Respondent was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler.

2. The dispute was triggered by the election for two vacant seats on the HOA Board of Directors held during the Annual Meeting on March 18, 2017. The subsequent actions by the Board to investigate and ultimately overturn the initial results of this election led the Petitioner to file a dispute.

3. The initially announced results of the March 18, 2017, election declared that Ms. Catherine Overby and Mr. Jerome Klinger were the winning candidates. No members present at the meeting raised an objection to these announced results before the meeting was adjourned.

4. The Petitioner argued that the Board violated Bylaw 2.4 by acting on an objection to the election results raised by Brian Schoeffler the day after the meeting. The bylaw states that any member who fails to object to an irregularity during a meeting “forever waives that claim,” and the Petitioner argued Mr. Schoeffler, as a member, had waived his right to object.

5. In the initial hearing, the Judge found that the Petitioner successfully established two violations by the Respondent. These were a violation of A.R.S. § 33-1812(A)(7) for discarding ballot envelopes and a violation of A.R.S. § 33-1804 for holding closed meetings without proper notice.

6. The Commissioner granted the rehearing “for the reasons outlined in the Petitioner’s Rehearing Request.” The Petitioner’s request cited multiple grounds, including misconduct by the prevailing party, errors of law, and that the initial findings of fact were not supported by the evidence or were contrary to law.

7. At the rehearing, the Petitioner stated he was only seeking reconsideration of the initial decision as it related to Issue 1. This issue was the allegation that the Board improperly overturned the election results in violation of Bylaw 2.4.

8. The Judge found that the Board’s investigation was initiated by Mr. Patrick Rice, a Board member at the time, who expressed his concerns with the vote “immediately after the Annual Meeting adjourned.” This occurred prior to and independent of the email sent by Brian Schoeffler the following day.

9. The Judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. Because the Petitioner made no showing that a “Director” (like Mr. Rice) could not raise questions after a meeting, the restriction on “Members” in Bylaw 2.4 did not apply to the Board’s actions.

10. The final order stated that the Petition was to be dismissed as to Issue 1. The Judge concluded that the Petitioner failed to sustain his burden of proof to establish that the Respondent had violated Bylaw 2.4.

——————————————————————————–

Essay Questions

1. Analyze the timeline of events from the Annual Meeting on March 18, 2017, to the run-off election on April 29, 2017. Discuss the key actions taken by the HOA Board—including the meeting with an attorney and the discovery of invalid ballots—and explain how these actions led to the legal dispute.

2. Detail the three distinct issues the Petitioner alleged in his “Clarification of Three Issues alleged in Petition.” Based on the outcome of the initial hearing, evaluate the success of these claims and explain why the Petitioner prevailed on some issues but not others.

3. The Petitioner’s case on rehearing hinged on the interpretation of Bylaw 2.4. Construct the Petitioner’s argument regarding this bylaw and then fully explain the Administrative Law Judge’s legal reasoning for ultimately rejecting it, focusing on the distinction between “Members” and “Directors.”

4. Discuss the concept of “burden of proof” as it is defined and applied in this case. Explain the “preponderance of the evidence” standard and analyze how the Petitioner’s failure to meet this standard led to the dismissal of Issue 1 on rehearing.

5. Examine the procedural history of the case, from the initial single-issue petition to the final binding order after rehearing. What were the key procedural steps, such as amending the petition and filing for a rehearing, and how did these steps shape the final scope and outcome of the case?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S.

Abbreviation for Arizona Revised Statutes, the collection of laws for the State of Arizona. The Petitioner alleged violations of several statutes, including A.R.S. § 33-1813, § 33-1811, § 33-1812, and § 33-1804.

Bylaw 2.4

The specific bylaw of the Desert Ranch HOA that was the central focus of the rehearing. It states, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish the alleged violations.

Department

The Arizona Department of Real Estate, the state agency with which the Homeowners Association Dispute Process Petition was filed.

Director

An elected member of the HOA’s Board of Directors. The ALJ’s decision distinguished this role from that of a general “Member.”

Homeowners Association (HOA)

The governing organization for the planned community of Desert Ranch, responsible for enforcing community documents and statutes.

Member

A homeowner within the planned community. The ALJ’s decision emphasized that in the bylaws, this term has a specific meaning that is not interchangeable with “Director.”

Petitioner

The party who initiates a legal action or petition. In this case, the Petitioner was Tom Barrs.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Rehearing

A second hearing of a case, granted in this instance by the Commissioner of the Arizona Department of Real Estate, to reconsider the initial decision based on alleged errors.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Desert Ranch Homeowners’ Association.






Blog Post – 18F-H1818035-REL


5 Shocking Lessons from an HOA Election Gone Wrong

Introduction: When “The Rules” Aren’t What You Think

Homeowners’ Associations (HOAs) run on rules. From lawn maintenance to paint colors, the governing documents are the ultimate authority. But what happens when the rules themselves become the center of a dispute? Imagine this scenario: your HOA holds its annual board election. The results are announced, the winners are declared, and everyone goes home. Then, the next day, the board decides to overturn the result.

This isn’t a hypothetical. It’s the core of a real-life legal case that reveals surprising truths about community governance, the power of a single word, and what can happen when an election goes off the rails.

——————————————————————————–

1. An Election Isn’t Over Until the Board Says It’s Over

The dispute began at the Desert Ranch Homeowners’ Association Annual Meeting on March 18, 2017. The ballots for two open board seats were counted, and Catherine Overby and Jerome Klinger were announced as the winning candidates. Crucially, no members present raised an objection before the meeting adjourned. By all appearances, the election was over.

But it wasn’t. Immediately after the meeting, a board member, Mr. Rice, gathered the ballots and expressed his concerns with the election results. The next day, the losing candidate, Brian Schoeffler, sent an email asking the board to “review the situation” and consider a “revote.” The board then formally announced that the election had been contested and that it was obligated to investigate.

After consulting an attorney, the board discovered several ballot irregularities, including duplicate ballots and an improperly counted proxy ballot. This new tally resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board then forced a run-off election, which Mr. Schoeffler ultimately won. While the losing candidate’s email drew attention, the true turning point had already occurred moments after the meeting ended, when a board member himself questioned the results—an act that would prove legally decisive.

2. A Single Word in the Bylaws Can Change Everything

The homeowner who filed the legal petition, Tom Barrs, built his case on a seemingly straightforward rule in the HOA’s bylaws. He argued that any challenge to the election was invalid because it wasn’t raised before the Annual Meeting adjourned. The bylaw in question, Section 2.4, reads:

Any Member who fails to object to any perceived or actual irregularity at the meeting (whether procedural, parliamentary, substantive or technical) forever waives that claim.

The petitioner’s argument was simple: the challenge was raised after the meeting by a “Member,” so the claim was waived. The case seemed open-and-shut.

However, the Administrative Law Judge made a critical distinction that decided the case. The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific meanings and were not interchangeable. While a Member had to object during the meeting, the judge found no rule preventing a Director from raising questions later.

Because a board member, Mr. Rice, had expressed concerns immediately following the meeting, the board’s subsequent investigation was deemed permissible. This razor-thin interpretation of a single word highlights the immense power that definitions and precise language hold in governing documents.

3. The Board Broke the Law, But Still Won on the Main Issue

In a surprising twist, the judge determined that the HOA had, in fact, violated Arizona state law on two separate counts during the election controversy. The petitioner successfully proved that the board failed to follow established statutes.

The two violations established in the initial hearing were:

• Improper Destruction of Ballots: The HOA violated A.R.S. § 33-1812(A)(7) when it destroyed all of the ballot envelopes around the time of the election. This act made a true, verifiable recount impossible, directly undermining the integrity of the very election the board was claiming to investigate.

• Improper Meetings: The HOA violated A.R.S. § 33-1804 by holding closed meetings without providing proper notice to the members, particularly a meeting at the home of a board member, Ms. Overby, where the decision to hold a run-off was made. By making these critical decisions behind closed doors, the board created an appearance of secrecy that fueled the dispute and eroded member trust.

Despite proving these clear legal violations, the petitioner still lost on his primary complaint—overturning the run-off and reinstating the original election results. This outcome serves as a stark example of a pyrrhic victory. You can successfully prove that an organization broke the rules without achieving your ultimate goal in the dispute.

4. An Investigation Can Uncover a Cascade of Deeper Problems

The board’s decision to contest its own election results was controversial, but the subsequent investigation brought a cascade of other procedural failures to light. The initial challenge acted like a pulled thread that unraveled a series of previously unknown mistakes.

During the board’s meeting with its attorney, it was discovered that “duplicate ballots and a proxy ballot that were improperly counted” had skewed the original vote. This alone was enough to call the first result into question.

Furthermore, the board itself asserted that its own bylaws “did not allow for a write-in candidate.” This was a significant admission, as one of the original winners, Jerome Klinger, had been a write-in. If true, his victory would have been invalid from the start, regardless of any other challenges. The board’s investigation, initiated to resolve one perceived error, ended up exposing its own systemic incompetence—from improperly counting ballots to being unaware of its own rules regarding write-in candidates. The effort to fix the election proved the election was fundamentally broken from the start.

5. An HOA Board Can Investigate Itself

The petitioner’s case rested on the idea that board members are also “Members” of the association and are therefore bound by the same rules. If a regular member had to object during the meeting, a director should have to as well.

The judge rejected this argument, implicitly affirming the board’s higher-level fiduciary duty to ensure a fair and legal election. The final decision made it clear that the bylaws used “Member” and “Director” with distinct meanings and responsibilities. The bylaw requiring members to object during the meeting was the mechanism for an individual’s challenge; it did not override the board’s inherent duty to govern properly.

The key takeaway from the judge’s decision was unambiguous: The petitioner “made no showing that a Director could not raise questions as to the validity of the election results after the meeting adjourned.” This legally affirms a board’s power to investigate its own processes, a responsibility separate from the rules that govern challenges from the general membership.

——————————————————————————–

Conclusion: Have You Read Your Bylaws Lately?

This case serves as a powerful reminder that the dense, legalistic language of HOA governing documents is not just boilerplate. These documents have immense real-world power, dictating the outcomes of contentious disputes and shaping the governance of a community. The intricate details and specific wording can mean the difference between a final result and one that is just the beginning of a long and costly fight.

This entire, year-long legal battle hinged on the definition of a single word. When was the last time you read the fine print governing your own community?


Case Participants

Petitioner Side

  • Tom Barrs (petitioner)
    Appeared on his own behalf,.
  • Stephen Barrs (witness)
    Testified for Petitioner,.

Respondent Side

  • Catherine Overby (board member/president)
    Desert Ranch HOA
    Appeared on behalf of Respondent,; Board President,; testified at hearing,.
  • Brian Schoeffler (board member/vice president)
    Desert Ranch HOA
    Appeared on behalf of Respondent,; Board Vice President,; testified at hearing,.
  • Patrick Rice (board member)
    Desert Ranch HOA
    Board member who expressed concerns immediately after the meeting,,,; involved in meeting with attorney,.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner (ADRE))
    Arizona Department of Real Estate
    Issued Order Granting Rehearing; recipient of decision copy,.
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision copy.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision copy.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision copy.
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision copy.
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of decision copy.

Other Participants

  • Jerome Klinger (board director)
    Desert Ranch HOA
    Initially announced as a winning candidate for director,; later removed after contest; involved in run-off,.
  • Paula Barrs (listed resident)
    Listed with Tom Barrs on mailing address.

Tom Pyron vs Cliffs at North Mountain Condominium Association, Inc.

Posted on by

Case Summary

Case ID 17F-H1717026-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-19
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Pyron Counsel —
Respondent Cliffs at North Mountain Condominium Association, Inc. Counsel B. Austin Baillio

Alleged Violations

Bylaws, Article III, §§ 3.02 and 3.06, and Article IV, § 4.06

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated its Bylaws.

Key Issues & Findings

Dispute over the number of Board of Director positions available for the 2017 election.

Petitioner alleged Respondent HOA violated Bylaws by stating only one Board position was up for election for a one-year term in 2017, when Petitioner contended two positions (one-year and two-year terms) were open.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Analytics Highlights

Topics: HOA Election, Bylaw Violation, Board Term, Staggered Terms, Condominium Association
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Video Overview

Audio Overview

Decision Documents

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2026-01-23T17:19:38 (120.2 KB)

17F-H1717026-REL Decision – 576045.pdf

Uploaded 2026-01-23T17:19:41 (959.2 KB)

  • 2016




Study Guide – 17F-H1717026-REL


Study Guide: Pyron v. Cliffs at North Mountain Condominium Association, Inc.

This study guide provides a review of the administrative hearing case No. 17F-H1717026-REL between Tom Pyron (Petitioner) and the Cliffs at North Mountain Condominium Association, Inc. (Respondent). It covers the central arguments, key evidence, relevant bylaws, and the final legal decision.

Short Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.

1. What was the single issue at the heart of Tom Pyron’s petition filed on March 16, 2017?

2. According to the Association’s bylaws, how are Board of Director terms structured when the board consists of three members?

3. What was the Petitioner’s argument regarding Jeff Oursland’s term on the Board of Directors?

4. What was the Respondent’s counter-argument regarding Barbara Ahlstrand’s 2015 election and, subsequently, Jeff Oursland’s term?

5. What actions did the Respondent take in an attempt to resolve the dispute with the Petitioner before the hearing?

6. Who was the key witness for the Respondent, and what was their role?

7. Explain the legal standard “preponderance of the evidence” as it is defined in the case documents.

8. What was the Administrative Law Judge’s core legal reasoning for concluding that only one board position was open in 2017?

9. What was the final outcome of the case as stated in the Recommended Order and adopted by the Commissioner of the Department of Real Estate?

10. Following the Final Order issued on July 12, 2017, what legal recourse was available to a party dissatisfied with the decision?

——————————————————————————–

Answer Key

1. Tom Pyron’s petition alleged that the Respondent violated its bylaws by announcing only one Board position was open for a one-year term in the 2017 election. Pyron contended that two positions—one for a one-year term and another for a two-year term—should have been up for election.

2. Bylaw Article III, § 3.02 specifies that for a three-person board, the directors hold staggered terms of one year, two years, and three years. The bylaw further dictates which terms end at which annual meetings (e.g., the two-year term ends at the second, fourth, sixth, etc., annual meetings).

3. The Petitioner argued that Barbara Ahlstrand was elected to a two-year term in 2015. Therefore, when Jeff Oursland was appointed to fill her vacancy, his term should have expired in 2017, meaning his two-year position should have been on the 2017 ballot.

4. The Respondent argued that under the plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015. Since Sandra Singer received the most votes and secured the three-year term, Ms. Ahlstrand must have been elected to the one-year term, meaning Mr. Oursland’s appointed term expired in 2016.

5. In response to the petition, the Respondent twice rescheduled the 2017 annual meeting and re-issued ballots to include all candidates who had submitted an application. The Association also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with this resolution.

6. The key witness for the Respondent was Cynthia Quillen. She served as the Community Manager for the Association’s management company, Associated Property Management, and testified about the Board’s composition and her interpretation of the bylaws.

7. “A preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence, which is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The Judge’s decision was based on the “plain language” of Bylaw § 3.02. This bylaw dictated that only the one-year and three-year terms were up for election in 2015. Since the parties agreed Ms. Singer won the three-year term, the Judge concluded Ms. Ahlstrand must have been elected to the one-year term, making the Respondent’s subsequent actions and election notices correct.

9. The Administrative Law Judge’s Recommended Order was that the Petitioner’s petition be denied. This order was adopted by the Commissioner of the Department of Real Estate in a Final Order, making it binding on the parties.

10. According to the Final Order, a dissatisfied party could request a rehearing within thirty days by filing a petition setting forth the reasons. The document lists eight specific causes for a rehearing. A party could also appeal the final administrative decision by filing a complaint for judicial review.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the conflicting interpretations of the 2015 election presented by the Petitioner and the Respondent. How did the Administrative Law Judge use the “plain language” of Bylaw § 3.02 to resolve this conflict, and what does this reveal about the interpretation of governing documents in legal disputes?

2. Trace the chain of events from the 2012 election to the 2017 dispute. Explain how the board composition, terms of office, and specific actions (like Ms. Ahlstrand’s resignation) compounded to create the disagreement at the heart of this case.

3. Discuss the burden of proof in this administrative hearing. Define “preponderance of the evidence” and explain why the Petitioner, Tom Pyron, failed to meet this standard in the view of the Administrative Law Judge.

4. Examine the roles and authorities of the different entities involved: the homeowners’ association Board, the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge. How do these bodies interact to resolve disputes within a planned community?

5. Based on the Final Order, outline the legal recourse available to Tom Pyron following the denial of his petition. What specific grounds for a rehearing are mentioned, and what is the process for further appeal?

——————————————————————————–

Glossary of Key Terms

Definition

Acclamation

A form of election where a candidate is declared elected without opposition, as when Sandra Singer’s election was “unanimously passed by acclamation” in 2014.

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, draws conclusions of law, and issues a recommended decision. In this case, the ALJ was Diane Mihalsky.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations. The Commissioner of the Department, Judy Lowe, issued the Final Order in this case.

Bylaws

The governing documents of the homeowners’ association that outline its rules and procedures, including the number of directors, terms of office, and process for filling vacancies.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which accepts and adopts the Administrative Law Judge’s decision. This order becomes effective and can only be changed by a successful rehearing or judicial appeal.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department of Real Estate refers petitions for an evidentiary hearing.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner was Tom Pyron, a homeowner in the association.

Preponderance of the Evidence

The standard of proof required in this hearing, defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioner bore this burden to prove the Respondent violated its bylaws.

Recommended Order

The decision and order issued by the Administrative Law Judge following a hearing. In this case, it recommended that the Petitioner’s petition be denied.

Rehearing

A formal request to have a case heard again. The Final Order specifies that a petition for rehearing must be filed within thirty days and may be granted for specific causes, such as newly discovered evidence or an arbitrary decision.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Cliffs at North Mountain Condominium Association, Inc.

Staggered Terms

A system where not all board members are elected at the same time. As defined in Bylaw § 3.02, the three-person board had terms of one, two, and three years to ensure continuity.

Unexpired Portion of the Prior Director’s Term

The remainder of a board member’s term that an appointee serves after the original member resigns or is removed, as specified in Bylaw § 3.6.






Blog Post – 17F-H1717026-REL


We Read an HOA Lawsuit So You Don’t Have To: 3 Shocking Lessons Hidden in the Bylaws

1. Introduction: The Hidden Drama in Your Community’s Fine Print

If you live in a condominium association or a planned community, you’re familiar with the thick packet of governing documents you received at closing—the Covenants, Conditions & Restrictions (CC&Rs) and the Bylaws. For many, these documents are filed away and forgotten, seen as a collection of mundane rules about trash cans and paint colors. But hidden within that legalese is the complete operating manual for your community, and a simple misunderstanding of its contents can have significant consequences.

What happens when a homeowner’s interpretation of the rules clashes with the association’s? In a case from Arizona involving homeowner Tom Pyron and the Cliffs at North Mountain Condominium Association, the dispute escalated into a formal administrative hearing. The central question was simple: how many board seats were open for election in 2017? But this wasn’t just a procedural disagreement. Court documents reveal that before the hearing, the association offered to re-issue ballots to include all candidates and even “offered to pay Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution.” The homeowner refused.

This decision transforms the case from a simple rules dispute into a cautionary tale about how a deeply held belief can override a pragmatic, no-cost compromise. The official court documents offer a fascinating look at how community governance can go awry, revealing powerful, practical lessons for any homeowner or board member who believes they know what the rules should say.

2. Takeaway 1: Your Beliefs Don’t Overrule the Bylaws

What You Think the Rules Say Doesn’t Matter—Only What They Actually Say

The core of the dispute rested on a belief held by a former board member, Ms. Ahlstrand, who was elected in 2015. She testified that she believed she had been elected to a two-year term. Based on this belief, the petitioner argued that the director appointed to replace her after her resignation should have served until 2017, meaning a two-year position was open for election that year.

The Administrative Law Judge, however, looked not at what anyone believed, but at the “plain language” of the community’s governing documents. The judge’s conclusion was a matter of inescapable logic derived directly from the bylaws:

1. First, Bylaw § 3.02 clearly states that in an election with multiple open seats, “the person receiving the most votes will become the Director with the longest term.”

2. Next, the court record shows that “the parties agreed that… because she got the most votes, Ms. Singer was elected to a three-year term” in the 2015 election.

3. Finally, the judge determined that according to the same bylaw, only the one-year and three-year terms were available in 2015. Since Ms. Singer secured the three-year term, Ms. Ahlstrand, by definition, must have been elected to the only other available position: the one-year term.

The lesson is stark and unambiguous: an individual’s interpretation or assumption, however sincere, cannot change the written rules. The bylaws are the ultimate authority. As the judge stated in the final decision, the documents speak for themselves.

The Bylaws do not allow their plain language to be modified or amended by a member’s understanding.

3. Takeaway 2: The Domino Effect of a Single Resignation

A Single Resignation Can Create Years of Confusion

This entire legal conflict was set in motion by a single, routine event: a board member’s resignation. The timeline of events shows how one small action, when combined with a misunderstanding of the rules, can create a ripple effect with long-lasting consequences.

1. On August 3, 2015, the newly elected board member, Ms. Ahlstrand, resigned.

2. The Board then appointed another member, Jeff Oursland, to serve the remainder of her term, as permitted by the bylaws.

3. The critical point of contention became the length of that “remainder.” Was it the rest of a one-year term ending in 2016, or a two-year term ending in 2017?

4. The judge’s determination that Ahlstrand’s original term was only one year (as explained above) meant that Mr. Oursland’s appointed term correctly expired in 2016. He was then properly elected to a new two-year term at the 2016 meeting.

5. This sequence confirmed that the association was correct all along: only one board position (a one-year term) was actually open for election in 2017.

A single resignation created two years of confusion that ultimately required an administrative hearing to resolve. It’s a powerful reminder of how crucial it is for boards to precisely follow their own procedures, especially when handling vacancies and appointments, as one small error can cascade into years of conflict.

4. Takeaway 3: The Hidden Complexity of “Staggered Terms”

“Staggered Terms” Are Designed for Stability, But Can Cause Chaos

Many associations use staggered terms for their board of directors. The concept, outlined in Bylaw § 3.02 for the Cliffs at North Mountain, is simple: instead of all directors being elected at once, they serve terms of varying lengths (in this case, one, two, and three years). This is a common and effective practice designed to ensure leadership continuity and prevent the entire board from turning over in a single election.

However, this case reveals the hidden downside of that system: complexity. The staggered terms created an election cycle where the available term lengths changed every single year. The court documents show that in 2014, the one-year and two-year positions were on the ballot. In 2015, the one-year and three-year terms were available. This rotating schedule was difficult for members—and apparently even some board members—to track accurately.

This built-in complexity was the root cause of the entire disagreement. The system’s lack of intuitive clarity created the exact conditions necessary for a personal belief, like Ms. Ahlstrand’s, to seem plausible even when it was contrary to the bylaws. The very governance structure intended to create stability inadvertently created the fertile ground for confusion, allowing a misunderstanding to grow into a lawsuit.

5. Conclusion: The Power Is in the Paperwork

The overarching theme from this case is that in the world of community associations, the governing documents are the ultimate source of truth. They are not merely suggestions; they are the binding legal framework that dictates how the community must operate. A board’s actions and a homeowner’s rights are all defined within that paperwork.

In the end, the homeowner’s petition was denied, and the judge’s order affirmed the association’s position. The written rules, as found in the bylaws, prevailed over individual beliefs and interpretations. The case stands as a powerful testament to the importance of reading, understanding, and strictly adhering to your community’s foundational documents.

This entire conflict stemmed from a few lines in a legal document—when was the last time you read yours?


Case Participants

Petitioner Side

  • Tom Pyron (petitioner)

Respondent Side

  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Cynthia Quillen (property manager)
    Associated Property Management
    Community Manager

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (ADRE commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (coordinator)
    HOA Coordinator/Admin Official listed for rehearing requests and transmission

Other Participants

  • Anne Fugate (witness)
    Elected to the Board in 2012
  • Barbara Ahlstrand (witness)
    Elected to the Board in 2015
  • Kevin Downey (witness)
    Candidate for 2017 election
  • John Haunschild (board member)
    Elected to the Board in 2012
  • Ron Cadaret (board member)
    Elected to the Board in 2012, re-elected 2013
  • Sandra Singer (board member)
    Elected to the Board in 2014 and 2015
  • Jeff Oursland (board member)
    Appointed to the Board in 2015, elected 2016
  • Steve Molever (board member)
    Elected to the Board in 2016

Tom Pyron vs Cliffs at North Mountain Condominium Association, Inc.

Posted on by

Case Summary

Case ID 17F-H1717026-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-19
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Pyron Counsel —
Respondent Cliffs at North Mountain Condominium Association, Inc. Counsel B. Austin Baillio

Alleged Violations

Bylaws, Article III, §§ 3.02 and 3.06, and Article IV, § 4.06

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated its Bylaws.

Key Issues & Findings

Dispute over the number of Board of Director positions available for the 2017 election.

Petitioner alleged Respondent HOA violated Bylaws by stating only one Board position was up for election for a one-year term in 2017, when Petitioner contended two positions (one-year and two-year terms) were open.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Analytics Highlights

Topics: HOA Election, Bylaw Violation, Board Term, Staggered Terms, Condominium Association
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Audio Overview

Decision Documents

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2025-10-08T06:57:37 (120.2 KB)

17F-H1717026-REL Decision – 576045.pdf

Uploaded 2025-10-08T06:57:38 (959.2 KB)





Briefing Doc – 17F-H1717026-REL


Briefing Document: Pyron v. Cliffs at North Mountain Condominium Association

Executive Summary

This document synthesizes the findings and legal conclusions from an administrative hearing concerning a dispute between homeowner Tom Pyron (“Petitioner”) and the Cliffs at North Mountain Condominium Association, Inc. (“Respondent”). The central issue was the Petitioner’s allegation that the Respondent violated its bylaws by announcing only one Board of Directors position was open for election in 2017, whereas the Petitioner contended two positions should have been open.

The Administrative Law Judge (ALJ) ruled decisively in favor of the Respondent. The decision hinged on a strict interpretation of the association’s bylaws, specifically Article III, § 3.02, which governs the staggered terms of office for the three-member board. The ALJ found that a board member’s personal understanding of their term length could not amend the plain language of the bylaws. Based on the bylaw’s schedule for staggered terms, the judge concluded that a pivotal 2015 election could only have filled a one-year and a three-year term, which sequentially led to only one position being open in 2017. The Petitioner’s petition was denied, and this decision was subsequently adopted as a Final Order by the Arizona Department of Real Estate.

I. Case Overview

• Parties:

◦ Petitioner: Tom Pyron, a condominium owner and member of the Respondent association.

◦ Respondent: Cliffs at North Mountain Condominium Association, Inc., represented by B. Austin Baillio, Esq., of Maxwell & Morgan, P.C.

• Case Numbers: 17F-H1717026-REL; HO 17-17/026

• Adjudicator: Administrative Law Judge Diane Mihalsky, Office of Administrative Hearings.

• Final Order By: Judy Lowe, Commissioner, Arizona Department of Real Estate.

• Hearing Date: June 12, 2017.

• Final Order Date: July 12, 2017.

The case was initiated when Tom Pyron filed a single-issue petition with the Arizona Department of Real Estate on March 16, 2017, alleging a violation of the homeowners’ association’s bylaws concerning the 2017 Board of Directors election.

II. Petitioner’s Allegations

The Petitioner’s claim centered on the belief that the Respondent improperly noticed the number of available Board positions for the 2017 election.

• Core Allegation: The Respondent violated its Bylaws (Article III, §§ 3.02 and 3.06, and Article IV, § 4.06) by informing members that only one Board position for a one-year term was available for the 2017 election.

• Petitioner’s Contention: Two positions—one for a one-year term and one for a two-year term—should have been up for election in 2017.

• Basis of Argument: The Petitioner’s argument was built upon the 2015 election of Barbara Ahlstrand. He contended, supported by Ahlstrand’s testimony, that she was elected to a two-year term. Following this logic:

1. Ahlstrand’s term would run from 2015 to 2017.

2. When she resigned in August 2015, her replacement, Jeff Oursland, was appointed to serve the remainder of that two-year term, which would expire in 2017.

3. Therefore, Jeff Oursland should not have been on the ballot for the 2016 election, and his two-year position should have been one of the two seats open for election in 2017.

III. Respondent’s Position and Pre-Hearing Actions

The Respondent denied any violation of its bylaws and maintained that its actions were consistent with the governing documents.

• Pre-Hearing Resolution Attempts: In response to the Petitioner’s concerns, the Respondent twice rescheduled the 2017 annual meeting and re-issued election ballots. The Respondent also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution, an offer the Petitioner did not accept.

• Core Defense: The Respondent’s position was based on a direct interpretation of Bylaw § 3.02, which dictates the schedule of staggered terms.

• Basis of Argument: The Respondent argued that according to the bylaw’s prescribed cycle, only the one-year and three-year positions were up for election in 2015.

1. As it was agreed that Sandra Singer received the most votes and was elected to the three-year term, Barbara Ahlstrand must have been elected to the available one-year term.

2. Therefore, Ahlstrand’s term was set to expire in 2016.

3. Her replacement, Jeff Oursland, was correctly appointed to serve only until the 2016 election.

4. Consequently, Oursland was properly elected to a new two-year term in 2016 (expiring in 2018), and the only seat open in 2017 was the one-year term completed by Steve Molever.

IV. Chronology of Board Elections and Appointments

The dispute originated from differing interpretations of election outcomes from 2014 onward. The Board of Directors has consistently been comprised of three members.

Election Year

Agreed Facts & Election Results

Petitioner’s Interpretation/Contention

Respondent’s Interpretation/Position

Anne Fugate elected to a 3-year term.
John Haunschild elected to a 2-year term.
Ron Cadaret elected to a 1-year term.

N/A (Agreed)

N/A (Agreed)

Ron Cadaret re-elected to a 1-year term.

N/A (Agreed)

N/A (Agreed)

Minutes state “the election of Sandra Singer was unanimously passed by acclamation.”

Sandra Singer was elected to a 1-year term. No other officers were elected.

Based on bylaw § 3.02 and the 2015 Board composition, John Haunschild must have been re-elected to a 2-year term (expiring 2016), and Sandra Singer was elected to a 1-year term (expiring 2015).

Sandra Singer and Barbara Ahlstrand were elected. Singer received the most votes and was elected to a 3-year term. Ahlstrand resigned 8/3/2015.

Ahlstrand believed she was elected to a 2-year term (expiring 2017).

Per bylaw § 3.02, only the 1-year and 3-year terms were open. Since Singer got the 3-year term, Ahlstrand must have been elected to the 1-year term (expiring 2016).

Appointment

The Board appointed Jeff Oursland to serve the remainder of Ahlstrand’s term.

Oursland was appointed to a term expiring in 2017.

Oursland was appointed to a term expiring in 2016.

Jeff Oursland was elected to a 2-year term.
Steve Molever was elected to a 1-year term.

Oursland should not have been on the ballot, as his term was not set to expire until 2017.

Oursland’s appointed term expired, so he was properly elected to a new 2-year term (expiring 2018).

No election had been held due to the pending petition.

Two positions should be open for election: the 2-year term (Ahlstrand/Oursland’s) and the 1-year term (Molever’s).

Only one position is open for election: the 1-year term completed by Molever.

V. Analysis and Conclusions of Law

The Administrative Law Judge’s decision was based on the legal standard of “a preponderance of the evidence” and a strict textual interpretation of the association’s bylaws. The Petitioner bore the burden of proof to establish a violation.

• Primacy of Bylaw Language: The judge’s central legal conclusion was that the bylaws must be interpreted based on their plain meaning. Key quotes from the decision include:

• Key Legal Finding: The pivotal determination concerned the 2015 election. The ALJ found that under the “plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015.”

◦ Because the parties agreed that Ms. Singer was elected to the three-year term, the judge concluded that “Ms. Ahlstrand must have been elected to the one-year term.”

◦ This finding invalidated the Petitioner’s core premise that Ahlstrand had begun a two-year term.

• Consequential Logic: This central finding created a direct logical chain that affirmed the Respondent’s actions:

1. Ms. Ahlstrand’s term was for one year, expiring in 2016.

2. When she resigned, the Board appointed Mr. Oursland to serve the remainder of her term, which correctly ended at the 2016 election.

3. Mr. Oursland was therefore “properly elected to a two-year term at that time [2016], which will expire in 2018.”

VI. Final Disposition

Based on the analysis of the bylaws and the sequence of elections, the ALJ ruled against the Petitioner.

• Recommended Order (June 19, 2017): The Administrative Law Judge ordered that the “Petitioner’s petition in this matter is denied.”

• Final Order (July 12, 2017): The Commissioner of the Department of Real Estate accepted and adopted the ALJ’s decision. The Final Order states, “The Commissioner accepts the ALJ decision that Petitioner’s petition in this matter is denied.”

• Binding Nature: The Order is binding on the parties unless a rehearing is granted. The document outlines eight potential causes for which a rehearing or review may be granted, including procedural irregularities, misconduct, newly discovered material evidence, or a finding of fact that is arbitrary or contrary to law.


Tom Pyron vs Cliffs at North Mountain Condominium Association, Inc.

Posted on by

Case Summary

Case ID 17F-H1717026-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-19
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Pyron Counsel —
Respondent Cliffs at North Mountain Condominium Association, Inc. Counsel B. Austin Baillio

Alleged Violations

Bylaws, Article III, §§ 3.02 and 3.06, and Article IV, § 4.06

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated its Bylaws.

Key Issues & Findings

Dispute over the number of Board of Director positions available for the 2017 election.

Petitioner alleged Respondent HOA violated Bylaws by stating only one Board position was up for election for a one-year term in 2017, when Petitioner contended two positions (one-year and two-year terms) were open.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Analytics Highlights

Topics: HOA Election, Bylaw Violation, Board Term, Staggered Terms, Condominium Association
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Audio Overview

Decision Documents

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2025-10-08T07:01:49 (120.2 KB)

17F-H1717026-REL Decision – 576045.pdf

Uploaded 2025-10-08T07:01:50 (959.2 KB)





Briefing Doc – 17F-H1717026-REL


Briefing Document: Pyron v. Cliffs at North Mountain Condominium Association

Executive Summary

This document synthesizes the findings and legal conclusions from an administrative hearing concerning a dispute between homeowner Tom Pyron (“Petitioner”) and the Cliffs at North Mountain Condominium Association, Inc. (“Respondent”). The central issue was the Petitioner’s allegation that the Respondent violated its bylaws by announcing only one Board of Directors position was open for election in 2017, whereas the Petitioner contended two positions should have been open.

The Administrative Law Judge (ALJ) ruled decisively in favor of the Respondent. The decision hinged on a strict interpretation of the association’s bylaws, specifically Article III, § 3.02, which governs the staggered terms of office for the three-member board. The ALJ found that a board member’s personal understanding of their term length could not amend the plain language of the bylaws. Based on the bylaw’s schedule for staggered terms, the judge concluded that a pivotal 2015 election could only have filled a one-year and a three-year term, which sequentially led to only one position being open in 2017. The Petitioner’s petition was denied, and this decision was subsequently adopted as a Final Order by the Arizona Department of Real Estate.

I. Case Overview

• Parties:

◦ Petitioner: Tom Pyron, a condominium owner and member of the Respondent association.

◦ Respondent: Cliffs at North Mountain Condominium Association, Inc., represented by B. Austin Baillio, Esq., of Maxwell & Morgan, P.C.

• Case Numbers: 17F-H1717026-REL; HO 17-17/026

• Adjudicator: Administrative Law Judge Diane Mihalsky, Office of Administrative Hearings.

• Final Order By: Judy Lowe, Commissioner, Arizona Department of Real Estate.

• Hearing Date: June 12, 2017.

• Final Order Date: July 12, 2017.

The case was initiated when Tom Pyron filed a single-issue petition with the Arizona Department of Real Estate on March 16, 2017, alleging a violation of the homeowners’ association’s bylaws concerning the 2017 Board of Directors election.

II. Petitioner’s Allegations

The Petitioner’s claim centered on the belief that the Respondent improperly noticed the number of available Board positions for the 2017 election.

• Core Allegation: The Respondent violated its Bylaws (Article III, §§ 3.02 and 3.06, and Article IV, § 4.06) by informing members that only one Board position for a one-year term was available for the 2017 election.

• Petitioner’s Contention: Two positions—one for a one-year term and one for a two-year term—should have been up for election in 2017.

• Basis of Argument: The Petitioner’s argument was built upon the 2015 election of Barbara Ahlstrand. He contended, supported by Ahlstrand’s testimony, that she was elected to a two-year term. Following this logic:

1. Ahlstrand’s term would run from 2015 to 2017.

2. When she resigned in August 2015, her replacement, Jeff Oursland, was appointed to serve the remainder of that two-year term, which would expire in 2017.

3. Therefore, Jeff Oursland should not have been on the ballot for the 2016 election, and his two-year position should have been one of the two seats open for election in 2017.

III. Respondent’s Position and Pre-Hearing Actions

The Respondent denied any violation of its bylaws and maintained that its actions were consistent with the governing documents.

• Pre-Hearing Resolution Attempts: In response to the Petitioner’s concerns, the Respondent twice rescheduled the 2017 annual meeting and re-issued election ballots. The Respondent also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution, an offer the Petitioner did not accept.

• Core Defense: The Respondent’s position was based on a direct interpretation of Bylaw § 3.02, which dictates the schedule of staggered terms.

• Basis of Argument: The Respondent argued that according to the bylaw’s prescribed cycle, only the one-year and three-year positions were up for election in 2015.

1. As it was agreed that Sandra Singer received the most votes and was elected to the three-year term, Barbara Ahlstrand must have been elected to the available one-year term.

2. Therefore, Ahlstrand’s term was set to expire in 2016.

3. Her replacement, Jeff Oursland, was correctly appointed to serve only until the 2016 election.

4. Consequently, Oursland was properly elected to a new two-year term in 2016 (expiring in 2018), and the only seat open in 2017 was the one-year term completed by Steve Molever.

IV. Chronology of Board Elections and Appointments

The dispute originated from differing interpretations of election outcomes from 2014 onward. The Board of Directors has consistently been comprised of three members.

Election Year

Agreed Facts & Election Results

Petitioner’s Interpretation/Contention

Respondent’s Interpretation/Position

Anne Fugate elected to a 3-year term.
John Haunschild elected to a 2-year term.
Ron Cadaret elected to a 1-year term.

N/A (Agreed)

N/A (Agreed)

Ron Cadaret re-elected to a 1-year term.

N/A (Agreed)

N/A (Agreed)

Minutes state “the election of Sandra Singer was unanimously passed by acclamation.”

Sandra Singer was elected to a 1-year term. No other officers were elected.

Based on bylaw § 3.02 and the 2015 Board composition, John Haunschild must have been re-elected to a 2-year term (expiring 2016), and Sandra Singer was elected to a 1-year term (expiring 2015).

Sandra Singer and Barbara Ahlstrand were elected. Singer received the most votes and was elected to a 3-year term. Ahlstrand resigned 8/3/2015.

Ahlstrand believed she was elected to a 2-year term (expiring 2017).

Per bylaw § 3.02, only the 1-year and 3-year terms were open. Since Singer got the 3-year term, Ahlstrand must have been elected to the 1-year term (expiring 2016).

Appointment

The Board appointed Jeff Oursland to serve the remainder of Ahlstrand’s term.

Oursland was appointed to a term expiring in 2017.

Oursland was appointed to a term expiring in 2016.

Jeff Oursland was elected to a 2-year term.
Steve Molever was elected to a 1-year term.

Oursland should not have been on the ballot, as his term was not set to expire until 2017.

Oursland’s appointed term expired, so he was properly elected to a new 2-year term (expiring 2018).

No election had been held due to the pending petition.

Two positions should be open for election: the 2-year term (Ahlstrand/Oursland’s) and the 1-year term (Molever’s).

Only one position is open for election: the 1-year term completed by Molever.

V. Analysis and Conclusions of Law

The Administrative Law Judge’s decision was based on the legal standard of “a preponderance of the evidence” and a strict textual interpretation of the association’s bylaws. The Petitioner bore the burden of proof to establish a violation.

• Primacy of Bylaw Language: The judge’s central legal conclusion was that the bylaws must be interpreted based on their plain meaning. Key quotes from the decision include:

• Key Legal Finding: The pivotal determination concerned the 2015 election. The ALJ found that under the “plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015.”

◦ Because the parties agreed that Ms. Singer was elected to the three-year term, the judge concluded that “Ms. Ahlstrand must have been elected to the one-year term.”

◦ This finding invalidated the Petitioner’s core premise that Ahlstrand had begun a two-year term.

• Consequential Logic: This central finding created a direct logical chain that affirmed the Respondent’s actions:

1. Ms. Ahlstrand’s term was for one year, expiring in 2016.

2. When she resigned, the Board appointed Mr. Oursland to serve the remainder of her term, which correctly ended at the 2016 election.

3. Mr. Oursland was therefore “properly elected to a two-year term at that time [2016], which will expire in 2018.”

VI. Final Disposition

Based on the analysis of the bylaws and the sequence of elections, the ALJ ruled against the Petitioner.

• Recommended Order (June 19, 2017): The Administrative Law Judge ordered that the “Petitioner’s petition in this matter is denied.”

• Final Order (July 12, 2017): The Commissioner of the Department of Real Estate accepted and adopted the ALJ’s decision. The Final Order states, “The Commissioner accepts the ALJ decision that Petitioner’s petition in this matter is denied.”

• Binding Nature: The Order is binding on the parties unless a rehearing is granted. The document outlines eight potential causes for which a rehearing or review may be granted, including procedural irregularities, misconduct, newly discovered material evidence, or a finding of fact that is arbitrary or contrary to law.


Tom Pyron vs Cliffs at North Mountain Condominium Association, Inc.

Posted on by

Case Summary

Case ID 17F-H1717026-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-19
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Pyron Counsel —
Respondent Cliffs at North Mountain Condominium Association, Inc. Counsel B. Austin Baillio

Alleged Violations

Bylaws, Article III, §§ 3.02 and 3.06, and Article IV, § 4.06

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated its Bylaws.

Key Issues & Findings

Dispute over the number of Board of Director positions available for the 2017 election.

Petitioner alleged Respondent HOA violated Bylaws by stating only one Board position was up for election for a one-year term in 2017, when Petitioner contended two positions (one-year and two-year terms) were open.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Analytics Highlights

Topics: HOA Election, Bylaw Violation, Board Term, Staggered Terms, Condominium Association
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Video Overview

Audio Overview

Decision Documents

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2025-10-09T03:31:26 (120.2 KB)

17F-H1717026-REL Decision – 576045.pdf

Uploaded 2025-10-09T03:31:26 (959.2 KB)





Briefing Doc – 17F-H1717026-REL


Briefing Document: Pyron v. Cliffs at North Mountain Condominium Association

Executive Summary

This document synthesizes the findings and legal conclusions from an administrative hearing concerning a dispute between homeowner Tom Pyron (“Petitioner”) and the Cliffs at North Mountain Condominium Association, Inc. (“Respondent”). The central issue was the Petitioner’s allegation that the Respondent violated its bylaws by announcing only one Board of Directors position was open for election in 2017, whereas the Petitioner contended two positions should have been open.

The Administrative Law Judge (ALJ) ruled decisively in favor of the Respondent. The decision hinged on a strict interpretation of the association’s bylaws, specifically Article III, § 3.02, which governs the staggered terms of office for the three-member board. The ALJ found that a board member’s personal understanding of their term length could not amend the plain language of the bylaws. Based on the bylaw’s schedule for staggered terms, the judge concluded that a pivotal 2015 election could only have filled a one-year and a three-year term, which sequentially led to only one position being open in 2017. The Petitioner’s petition was denied, and this decision was subsequently adopted as a Final Order by the Arizona Department of Real Estate.

I. Case Overview

• Parties:

◦ Petitioner: Tom Pyron, a condominium owner and member of the Respondent association.

◦ Respondent: Cliffs at North Mountain Condominium Association, Inc., represented by B. Austin Baillio, Esq., of Maxwell & Morgan, P.C.

• Case Numbers: 17F-H1717026-REL; HO 17-17/026

• Adjudicator: Administrative Law Judge Diane Mihalsky, Office of Administrative Hearings.

• Final Order By: Judy Lowe, Commissioner, Arizona Department of Real Estate.

• Hearing Date: June 12, 2017.

• Final Order Date: July 12, 2017.

The case was initiated when Tom Pyron filed a single-issue petition with the Arizona Department of Real Estate on March 16, 2017, alleging a violation of the homeowners’ association’s bylaws concerning the 2017 Board of Directors election.

II. Petitioner’s Allegations

The Petitioner’s claim centered on the belief that the Respondent improperly noticed the number of available Board positions for the 2017 election.

• Core Allegation: The Respondent violated its Bylaws (Article III, §§ 3.02 and 3.06, and Article IV, § 4.06) by informing members that only one Board position for a one-year term was available for the 2017 election.

• Petitioner’s Contention: Two positions—one for a one-year term and one for a two-year term—should have been up for election in 2017.

• Basis of Argument: The Petitioner’s argument was built upon the 2015 election of Barbara Ahlstrand. He contended, supported by Ahlstrand’s testimony, that she was elected to a two-year term. Following this logic:

1. Ahlstrand’s term would run from 2015 to 2017.

2. When she resigned in August 2015, her replacement, Jeff Oursland, was appointed to serve the remainder of that two-year term, which would expire in 2017.

3. Therefore, Jeff Oursland should not have been on the ballot for the 2016 election, and his two-year position should have been one of the two seats open for election in 2017.

III. Respondent’s Position and Pre-Hearing Actions

The Respondent denied any violation of its bylaws and maintained that its actions were consistent with the governing documents.

• Pre-Hearing Resolution Attempts: In response to the Petitioner’s concerns, the Respondent twice rescheduled the 2017 annual meeting and re-issued election ballots. The Respondent also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution, an offer the Petitioner did not accept.

• Core Defense: The Respondent’s position was based on a direct interpretation of Bylaw § 3.02, which dictates the schedule of staggered terms.

• Basis of Argument: The Respondent argued that according to the bylaw’s prescribed cycle, only the one-year and three-year positions were up for election in 2015.

1. As it was agreed that Sandra Singer received the most votes and was elected to the three-year term, Barbara Ahlstrand must have been elected to the available one-year term.

2. Therefore, Ahlstrand’s term was set to expire in 2016.

3. Her replacement, Jeff Oursland, was correctly appointed to serve only until the 2016 election.

4. Consequently, Oursland was properly elected to a new two-year term in 2016 (expiring in 2018), and the only seat open in 2017 was the one-year term completed by Steve Molever.

IV. Chronology of Board Elections and Appointments

The dispute originated from differing interpretations of election outcomes from 2014 onward. The Board of Directors has consistently been comprised of three members.

Election Year

Agreed Facts & Election Results

Petitioner’s Interpretation/Contention

Respondent’s Interpretation/Position

Anne Fugate elected to a 3-year term.
John Haunschild elected to a 2-year term.
Ron Cadaret elected to a 1-year term.

N/A (Agreed)

N/A (Agreed)

Ron Cadaret re-elected to a 1-year term.

N/A (Agreed)

N/A (Agreed)

Minutes state “the election of Sandra Singer was unanimously passed by acclamation.”

Sandra Singer was elected to a 1-year term. No other officers were elected.

Based on bylaw § 3.02 and the 2015 Board composition, John Haunschild must have been re-elected to a 2-year term (expiring 2016), and Sandra Singer was elected to a 1-year term (expiring 2015).

Sandra Singer and Barbara Ahlstrand were elected. Singer received the most votes and was elected to a 3-year term. Ahlstrand resigned 8/3/2015.

Ahlstrand believed she was elected to a 2-year term (expiring 2017).

Per bylaw § 3.02, only the 1-year and 3-year terms were open. Since Singer got the 3-year term, Ahlstrand must have been elected to the 1-year term (expiring 2016).

Appointment

The Board appointed Jeff Oursland to serve the remainder of Ahlstrand’s term.

Oursland was appointed to a term expiring in 2017.

Oursland was appointed to a term expiring in 2016.

Jeff Oursland was elected to a 2-year term.
Steve Molever was elected to a 1-year term.

Oursland should not have been on the ballot, as his term was not set to expire until 2017.

Oursland’s appointed term expired, so he was properly elected to a new 2-year term (expiring 2018).

No election had been held due to the pending petition.

Two positions should be open for election: the 2-year term (Ahlstrand/Oursland’s) and the 1-year term (Molever’s).

Only one position is open for election: the 1-year term completed by Molever.

V. Analysis and Conclusions of Law

The Administrative Law Judge’s decision was based on the legal standard of “a preponderance of the evidence” and a strict textual interpretation of the association’s bylaws. The Petitioner bore the burden of proof to establish a violation.

• Primacy of Bylaw Language: The judge’s central legal conclusion was that the bylaws must be interpreted based on their plain meaning. Key quotes from the decision include:

• Key Legal Finding: The pivotal determination concerned the 2015 election. The ALJ found that under the “plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015.”

◦ Because the parties agreed that Ms. Singer was elected to the three-year term, the judge concluded that “Ms. Ahlstrand must have been elected to the one-year term.”

◦ This finding invalidated the Petitioner’s core premise that Ahlstrand had begun a two-year term.

• Consequential Logic: This central finding created a direct logical chain that affirmed the Respondent’s actions:

1. Ms. Ahlstrand’s term was for one year, expiring in 2016.

2. When she resigned, the Board appointed Mr. Oursland to serve the remainder of her term, which correctly ended at the 2016 election.

3. Mr. Oursland was therefore “properly elected to a two-year term at that time [2016], which will expire in 2018.”

VI. Final Disposition

Based on the analysis of the bylaws and the sequence of elections, the ALJ ruled against the Petitioner.

• Recommended Order (June 19, 2017): The Administrative Law Judge ordered that the “Petitioner’s petition in this matter is denied.”

• Final Order (July 12, 2017): The Commissioner of the Department of Real Estate accepted and adopted the ALJ’s decision. The Final Order states, “The Commissioner accepts the ALJ decision that Petitioner’s petition in this matter is denied.”

• Binding Nature: The Order is binding on the parties unless a rehearing is granted. The document outlines eight potential causes for which a rehearing or review may be granted, including procedural irregularities, misconduct, newly discovered material evidence, or a finding of fact that is arbitrary or contrary to law.






Study Guide – 17F-H1717026-REL


Study Guide: Pyron v. Cliffs at North Mountain Condominium Association, Inc.

This study guide provides a review of the administrative hearing case No. 17F-H1717026-REL between Tom Pyron (Petitioner) and the Cliffs at North Mountain Condominium Association, Inc. (Respondent). It covers the central arguments, key evidence, relevant bylaws, and the final legal decision.

Short Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.

1. What was the single issue at the heart of Tom Pyron’s petition filed on March 16, 2017?

2. According to the Association’s bylaws, how are Board of Director terms structured when the board consists of three members?

3. What was the Petitioner’s argument regarding Jeff Oursland’s term on the Board of Directors?

4. What was the Respondent’s counter-argument regarding Barbara Ahlstrand’s 2015 election and, subsequently, Jeff Oursland’s term?

5. What actions did the Respondent take in an attempt to resolve the dispute with the Petitioner before the hearing?

6. Who was the key witness for the Respondent, and what was their role?

7. Explain the legal standard “preponderance of the evidence” as it is defined in the case documents.

8. What was the Administrative Law Judge’s core legal reasoning for concluding that only one board position was open in 2017?

9. What was the final outcome of the case as stated in the Recommended Order and adopted by the Commissioner of the Department of Real Estate?

10. Following the Final Order issued on July 12, 2017, what legal recourse was available to a party dissatisfied with the decision?

——————————————————————————–

Answer Key

1. Tom Pyron’s petition alleged that the Respondent violated its bylaws by announcing only one Board position was open for a one-year term in the 2017 election. Pyron contended that two positions—one for a one-year term and another for a two-year term—should have been up for election.

2. Bylaw Article III, § 3.02 specifies that for a three-person board, the directors hold staggered terms of one year, two years, and three years. The bylaw further dictates which terms end at which annual meetings (e.g., the two-year term ends at the second, fourth, sixth, etc., annual meetings).

3. The Petitioner argued that Barbara Ahlstrand was elected to a two-year term in 2015. Therefore, when Jeff Oursland was appointed to fill her vacancy, his term should have expired in 2017, meaning his two-year position should have been on the 2017 ballot.

4. The Respondent argued that under the plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015. Since Sandra Singer received the most votes and secured the three-year term, Ms. Ahlstrand must have been elected to the one-year term, meaning Mr. Oursland’s appointed term expired in 2016.

5. In response to the petition, the Respondent twice rescheduled the 2017 annual meeting and re-issued ballots to include all candidates who had submitted an application. The Association also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with this resolution.

6. The key witness for the Respondent was Cynthia Quillen. She served as the Community Manager for the Association’s management company, Associated Property Management, and testified about the Board’s composition and her interpretation of the bylaws.

7. “A preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence, which is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The Judge’s decision was based on the “plain language” of Bylaw § 3.02. This bylaw dictated that only the one-year and three-year terms were up for election in 2015. Since the parties agreed Ms. Singer won the three-year term, the Judge concluded Ms. Ahlstrand must have been elected to the one-year term, making the Respondent’s subsequent actions and election notices correct.

9. The Administrative Law Judge’s Recommended Order was that the Petitioner’s petition be denied. This order was adopted by the Commissioner of the Department of Real Estate in a Final Order, making it binding on the parties.

10. According to the Final Order, a dissatisfied party could request a rehearing within thirty days by filing a petition setting forth the reasons. The document lists eight specific causes for a rehearing. A party could also appeal the final administrative decision by filing a complaint for judicial review.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the conflicting interpretations of the 2015 election presented by the Petitioner and the Respondent. How did the Administrative Law Judge use the “plain language” of Bylaw § 3.02 to resolve this conflict, and what does this reveal about the interpretation of governing documents in legal disputes?

2. Trace the chain of events from the 2012 election to the 2017 dispute. Explain how the board composition, terms of office, and specific actions (like Ms. Ahlstrand’s resignation) compounded to create the disagreement at the heart of this case.

3. Discuss the burden of proof in this administrative hearing. Define “preponderance of the evidence” and explain why the Petitioner, Tom Pyron, failed to meet this standard in the view of the Administrative Law Judge.

4. Examine the roles and authorities of the different entities involved: the homeowners’ association Board, the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge. How do these bodies interact to resolve disputes within a planned community?

5. Based on the Final Order, outline the legal recourse available to Tom Pyron following the denial of his petition. What specific grounds for a rehearing are mentioned, and what is the process for further appeal?

——————————————————————————–

Glossary of Key Terms

Definition

Acclamation

A form of election where a candidate is declared elected without opposition, as when Sandra Singer’s election was “unanimously passed by acclamation” in 2014.

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, draws conclusions of law, and issues a recommended decision. In this case, the ALJ was Diane Mihalsky.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations. The Commissioner of the Department, Judy Lowe, issued the Final Order in this case.

Bylaws

The governing documents of the homeowners’ association that outline its rules and procedures, including the number of directors, terms of office, and process for filling vacancies.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which accepts and adopts the Administrative Law Judge’s decision. This order becomes effective and can only be changed by a successful rehearing or judicial appeal.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department of Real Estate refers petitions for an evidentiary hearing.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner was Tom Pyron, a homeowner in the association.

Preponderance of the Evidence

The standard of proof required in this hearing, defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioner bore this burden to prove the Respondent violated its bylaws.

Recommended Order

The decision and order issued by the Administrative Law Judge following a hearing. In this case, it recommended that the Petitioner’s petition be denied.

Rehearing

A formal request to have a case heard again. The Final Order specifies that a petition for rehearing must be filed within thirty days and may be granted for specific causes, such as newly discovered evidence or an arbitrary decision.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Cliffs at North Mountain Condominium Association, Inc.

Staggered Terms

A system where not all board members are elected at the same time. As defined in Bylaw § 3.02, the three-person board had terms of one, two, and three years to ensure continuity.

Unexpired Portion of the Prior Director’s Term

The remainder of a board member’s term that an appointee serves after the original member resigns or is removed, as specified in Bylaw § 3.6.






Blog Post – 17F-H1717026-REL


We Read an HOA Lawsuit So You Don’t Have To: 3 Shocking Lessons Hidden in the Bylaws

1. Introduction: The Hidden Drama in Your Community’s Fine Print

If you live in a condominium association or a planned community, you’re familiar with the thick packet of governing documents you received at closing—the Covenants, Conditions & Restrictions (CC&Rs) and the Bylaws. For many, these documents are filed away and forgotten, seen as a collection of mundane rules about trash cans and paint colors. But hidden within that legalese is the complete operating manual for your community, and a simple misunderstanding of its contents can have significant consequences.

What happens when a homeowner’s interpretation of the rules clashes with the association’s? In a case from Arizona involving homeowner Tom Pyron and the Cliffs at North Mountain Condominium Association, the dispute escalated into a formal administrative hearing. The central question was simple: how many board seats were open for election in 2017? But this wasn’t just a procedural disagreement. Court documents reveal that before the hearing, the association offered to re-issue ballots to include all candidates and even “offered to pay Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution.” The homeowner refused.

This decision transforms the case from a simple rules dispute into a cautionary tale about how a deeply held belief can override a pragmatic, no-cost compromise. The official court documents offer a fascinating look at how community governance can go awry, revealing powerful, practical lessons for any homeowner or board member who believes they know what the rules should say.

2. Takeaway 1: Your Beliefs Don’t Overrule the Bylaws

What You Think the Rules Say Doesn’t Matter—Only What They Actually Say

The core of the dispute rested on a belief held by a former board member, Ms. Ahlstrand, who was elected in 2015. She testified that she believed she had been elected to a two-year term. Based on this belief, the petitioner argued that the director appointed to replace her after her resignation should have served until 2017, meaning a two-year position was open for election that year.

The Administrative Law Judge, however, looked not at what anyone believed, but at the “plain language” of the community’s governing documents. The judge’s conclusion was a matter of inescapable logic derived directly from the bylaws:

1. First, Bylaw § 3.02 clearly states that in an election with multiple open seats, “the person receiving the most votes will become the Director with the longest term.”

2. Next, the court record shows that “the parties agreed that… because she got the most votes, Ms. Singer was elected to a three-year term” in the 2015 election.

3. Finally, the judge determined that according to the same bylaw, only the one-year and three-year terms were available in 2015. Since Ms. Singer secured the three-year term, Ms. Ahlstrand, by definition, must have been elected to the only other available position: the one-year term.

The lesson is stark and unambiguous: an individual’s interpretation or assumption, however sincere, cannot change the written rules. The bylaws are the ultimate authority. As the judge stated in the final decision, the documents speak for themselves.

The Bylaws do not allow their plain language to be modified or amended by a member’s understanding.

3. Takeaway 2: The Domino Effect of a Single Resignation

A Single Resignation Can Create Years of Confusion

This entire legal conflict was set in motion by a single, routine event: a board member’s resignation. The timeline of events shows how one small action, when combined with a misunderstanding of the rules, can create a ripple effect with long-lasting consequences.

1. On August 3, 2015, the newly elected board member, Ms. Ahlstrand, resigned.

2. The Board then appointed another member, Jeff Oursland, to serve the remainder of her term, as permitted by the bylaws.

3. The critical point of contention became the length of that “remainder.” Was it the rest of a one-year term ending in 2016, or a two-year term ending in 2017?

4. The judge’s determination that Ahlstrand’s original term was only one year (as explained above) meant that Mr. Oursland’s appointed term correctly expired in 2016. He was then properly elected to a new two-year term at the 2016 meeting.

5. This sequence confirmed that the association was correct all along: only one board position (a one-year term) was actually open for election in 2017.

A single resignation created two years of confusion that ultimately required an administrative hearing to resolve. It’s a powerful reminder of how crucial it is for boards to precisely follow their own procedures, especially when handling vacancies and appointments, as one small error can cascade into years of conflict.

4. Takeaway 3: The Hidden Complexity of “Staggered Terms”

“Staggered Terms” Are Designed for Stability, But Can Cause Chaos

Many associations use staggered terms for their board of directors. The concept, outlined in Bylaw § 3.02 for the Cliffs at North Mountain, is simple: instead of all directors being elected at once, they serve terms of varying lengths (in this case, one, two, and three years). This is a common and effective practice designed to ensure leadership continuity and prevent the entire board from turning over in a single election.

However, this case reveals the hidden downside of that system: complexity. The staggered terms created an election cycle where the available term lengths changed every single year. The court documents show that in 2014, the one-year and two-year positions were on the ballot. In 2015, the one-year and three-year terms were available. This rotating schedule was difficult for members—and apparently even some board members—to track accurately.

This built-in complexity was the root cause of the entire disagreement. The system’s lack of intuitive clarity created the exact conditions necessary for a personal belief, like Ms. Ahlstrand’s, to seem plausible even when it was contrary to the bylaws. The very governance structure intended to create stability inadvertently created the fertile ground for confusion, allowing a misunderstanding to grow into a lawsuit.

5. Conclusion: The Power Is in the Paperwork

The overarching theme from this case is that in the world of community associations, the governing documents are the ultimate source of truth. They are not merely suggestions; they are the binding legal framework that dictates how the community must operate. A board’s actions and a homeowner’s rights are all defined within that paperwork.

In the end, the homeowner’s petition was denied, and the judge’s order affirmed the association’s position. The written rules, as found in the bylaws, prevailed over individual beliefs and interpretations. The case stands as a powerful testament to the importance of reading, understanding, and strictly adhering to your community’s foundational documents.

This entire conflict stemmed from a few lines in a legal document—when was the last time you read yours?


Case Participants

Petitioner Side

  • Tom Pyron (petitioner)

Respondent Side

  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Cynthia Quillen (property manager)
    Associated Property Management
    Community Manager

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (ADRE commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (coordinator)
    HOA Coordinator/Admin Official listed for rehearing requests and transmission

Other Participants

  • Anne Fugate (witness)
    Elected to the Board in 2012
  • Barbara Ahlstrand (witness)
    Elected to the Board in 2015
  • Kevin Downey (witness)
    Candidate for 2017 election
  • John Haunschild (board member)
    Elected to the Board in 2012
  • Ron Cadaret (board member)
    Elected to the Board in 2012, re-elected 2013
  • Sandra Singer (board member)
    Elected to the Board in 2014 and 2015
  • Jeff Oursland (board member)
    Appointed to the Board in 2015, elected 2016
  • Steve Molever (board member)
    Elected to the Board in 2016